author: STOKER, Judge.

text:
    Joseph George LAFLEUR, Jr., Plaintiff-Appellee, v. HARTFORD INSURANCE COMPANY, Defendant-Appellant.
    No. 83-559.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.

      David K. Balfour and Charles J. Foret, Lafayette, for defendant-appellant.
    Fusilier & Chapman, Alex D. Chapman, Jr., Ville Platte, for defendant-appellee.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   STOKER, Judge.

Defendant, Hartford Insurance Company, appeals a judgment of the trial court awarding worker’s compensation benefits to plaintiff, Joseph George Lafleur, Jr., for permanent partial disability and awarding penalties and attorney’s fees in the amount of $4,500.00. Hartford is the worker’s compensation insurer for Mr. Lafleur’s former employer, Tide Products, Inc. (Tide). Plaintiff neither appeals nor answers the appeal. For reasons set out below, we affirm the trial court’s findings as to disability, penalties and attorney’s fees, but reverse the judgment and remand the matter for a redetermination of benefits due.

FACTS

Before going to work for Tide as a sales trainee in January of 1979, Mr. Lafleur did carpentry work. As a carpenter he sustained an injury to his right knee in 1978. This 1978 injury is not involved in this case, but it motivated Mr. Lafleur to seek a job involving less manual labor. This led to his employment by Tide. Nevertheless, as established at trial, the job at Tide did involve strenuous physical labor. Tide is a distributor of agricultural chemicals, fertilizer and seed. Its operations involve the loading and unloading of heavy bags and drums of these products by the use of large equipment and manual labor. Although Mr. Lafleur had the duty to supervise such, operations, he was regularly required to actually do the work himself.

This claim arises out of an accidental injury Mr. Lafleur sustained in July of 1981. Mr. Lafleur was injured at Tide on July 30, 1980, when a warehouse door fell on him crushing his knees against the ground. He was first seen by Dr. James McDaniel, an orthopedic surgeon, on July 31, and was thereafter treated by Dr. McDaniel. After conservative treatment with painkillers and exercise was unsuccessful in resolving the problem, Mr. La-fleur underwent an arthroscopy and an ar-throtomy, procedures in which loose debris is removed from the knee. On this same date, December 2, 1980, Dr. McDaniel also performed a procedure in which the kneecap is moved forward and screwed into place to prevent constant rubbing on injured parts of the knee.

In January of 1981, Mr. Lafleur returned to light duty work and in May, the screws were removed from his knee. He continued to work, eventually performing the same work he performed before his injury, but he was never released to do so by Dr. McDaniel. In July of 1981, Mr. Lafleur again injured his knee when climbing down from a tractor he had to move. A second arthroscopy was performed on August 18, 1981, in which more debris was removed from the knee. He returned to work for a few weeks in November, but subsequently resigned.

Mr. Lafleur and his wife began a business called La Pecanierre Sausage Kitchen in December of 1981. Mr. Lafleur anticipated that this would be less strenuous for him because he could set his own hours and duties. Upon Mr. Lafleur’s resignation from Tide, Hartford stopped compensation payments and this suit followed.

At trial, the parties stipulated that Mr. Lafleur was injured on the job, that he was entitled to some compensation, that Hartford was the worker’s compensation insurer, and that the maximum compensation rate for Mr. Lafleur is $148.00. (Tr. 237 and 238) (We accept this stipulation as to the maximum compensation rate for the purpose of this case without passing on its correctness.) The parties further stipulated that Mr. Lafleur was paid either in compensation or salary from the time he was injured until December 1,1981 (Tr. 285 and 286), and that he received no other payment until the day of trial at which time Hartford tendered to him a check for $396.00 representing nine weeks of compensation payments for a schedule loss at a rate of $44.00 per week, the minimum amount. The period represented by the check was from November 3, 1982 to January 4, 1983, the day of trial.

Hartford raises three issues for review in its appeal:

1. Whether the trial judge correctly found that Mr. Lafleur suffered a permanent, partial disability rather than a schedule loss;

2. Whether the trial judge erred in awarding penalties and attorney’s fees; and,

3. Whether the amount of benefits was properly computed.

EXTENT OF DISABILITY

The trial court found that Mr. Lafleur was permanently and partially disabled under LSA-R.S. 23:1221(3) as that provision of law read prior to July 1, 1983, in that he could no longer “perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description...” On appeal, Hartford contends that Mr. Lafleur suffered a schedule loss under LSA-R.S. 23:1221(4)(h) and (o), in that he only suffered a partial loss of the use of his leg and can still perform his previous duties.

The medical evidence introduced at trial consisted of the depositions of Dr. McDaniel, the treating physician, and Dr. William Hagemann, an orthopedic surgeon who examined Mr. Lafleur once for purposes of evaluation at his counsel’s request. Both specialists assigned a permanent disability rating to the right leg, twenty percent by Dr. McDaniel and twenty to twenty-five percent by Dr. Hageman. Both doctors also gave restrictions on Mr. Lafleur’s future activities which include repetitive squatting and bending or what is described by Dr. McDaniel as “fast loading type activities.” Both doctors also indicated that Mr. Lafleur’s climbing activities would have to be limited.

Hartford argues on appeal that Mr. Lafleur’s duties at Tide did not include those activities restricted by the doctors, and that his present duties with his sausage kitchen are more strenuous than those he had at Tide. We disagree. Testimony of Mr. Lafleur, together with testimony of a former co-worker at Tide, and his boss at Tide convince us that Mr. La-fleur was required to perform a substantial amount of physical labor at Tide including loading and unloading trucks, operating large equipment, and making deliveries of goods which he had to unload. The most strenuous work Mr. Lafleur does for the sausage kitchen is to deliver boxes containing five five-pound packages of sausage. Such activity is clearly easier than handling sixty-pound bags of feed and fertilizer and fifty-five gallon drums.

Although Mr. Lafleur was in a supervisory position at Tide, it is clear that he was required to perform physical tasks as a part of his job. Even though Tide may have been willing to retain Mr. Lafleur without requiring him to perform these tasks, his impairment still exists and he is entitled to compensation for a permanent and partial disability. See Naquin v. Uniroyal, Inc., 405 So.2d 525 (La.1981) and Stracener v. United States Fidelity & Guaranty Company, 420 So.2d 1101 (La. 1982).

The trial court’s finding as to disability is correct.

PENALTIES AND ATTORNEY’S FEES

The trial court found that Hartford was arbitrary and capricious in refusing benefits to Mr. Lafleur after December 1, 1981, and awarded penalties of twelve percent on all overdue payments and attorney’s fees in the amount of $4,500.00. Hartford argues on appeal that this award was in error. We agree with the findings of the trial judge.

As previously mentioned, the parties stipulated at trial that Mr. Lafleur suffered a job-related injury and was at least entitled to benefits for a schedule loss. On appeal, Hartford admits in brief that Mr. Lafleur is entitled to benefits; yet, none were paid prior to the day of trial at which time a check for $396.00 was given to Mr. Lafleur. In brief, Hartford alludes to an offer made to Mr. Lafleur in the amount of $6,510.16 for schedule loss benefits, but no evidence of such an offer appears in the record. Therefore, any such offer may not be considered in this matter.

Under the circumstances of this case it is clear that Hartford was not entitled to stop all compensation payments upon Mr. Lafleur’s resignation from Tide. Although the question of partial disability was unsettled, Mr. Lafleur was clearly entitled to benefits for a schedule loss. Hartford’s failure to pay at least those benefits was arbitrary and capricious and Mr. La-fleur is entitled to penalties and attorney’s fees. See Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977).

AMOUNT OF BENEFITS

In accordance with our previous findings, Mr. Lafleur is entitled to 450 weeks of compensation for permanent partial disability at the rate of $148.00 per week which was the rate stipulated to by the parties. Hartford argues on appeal that the amount of benefits was improperly determined. Apparently, the judgment was based on a post-trial memorandum prepared by counsel for Mr. Lafleur which does not appear in the record before us.

Specifically, Hartford claims that the credit it received for Mr. Lafleur’s earnings from the sausage kitchen should not have been reduced by half based on Mrs. La-fleur’s half ownership of the business. Alternatively, Hartford asserts that if half of the profits from the business is considered Mrs. Lafleur’s, then Mr. Lafleur’s wages from Tide should be reduced by half in determining benefits since they are considered to be community property.

We are not persuaded by this contention. It is apparent that both Mr. La-fleur and Mrs. Lafleur work in the business and make equal contributions in the conduct of the business. If Mrs. Lafleur did not work in the business, Mr. Lafleur would either have to employ someone to do her share of the work or take in a business partner other than Mrs. Lafleur. In such events, the net profits of the business would either be reduced by the wage or salary of an employee or be split between Mr. Lafleur and his business partner. For the purpose of the determination of the worker’s compensation under consideration we think the reduction for Mr. Lafleur’s earnings from the sausage kitchen was correctly set at one-half of the net earnings of the business.

Hartford also asserts that benefits received by Mr. Lafleur from the sausage kitchen such as van expenses and group insurance should be considered in determining his wages. The written summaries showing income and expenses of the sausage kitchen show expenditure for group insurance; however, the record is not specific and does not indicate those persons covered by this payment for group insurance or the amounts of any premiums attributable to any particular persons. Plaintiff rather than defendant offered evidence of net profits and defendant’s counsel objected to the evidence on the ground of relevancy only. Evidence as to net profits redounded to defendant’s benefit, not plaintiff’s. If it is appropriate to treat any payments for group insurance which may have been made on behalf of Mr. Lafleur as wages, we feel that defendant’s counsel should have explored this point at the time of trial so as to bring out the necessary facts.

In view of Mr. Lafleur’s testimony regarding his use of his van in delivery of goods for the sausage kitchen, the payment of the van expenses by the partnership cannot be considered compensation. The payment is merely reimbursement for expenses necessary to the job. See Price v. Houston Fire & Casualty Insurance Co., 155 So.2d 213 (La.App. 3rd Cir.1963). Any other benefits which may have been received by Mr. Lafleur have not been shown to be a factor in determining his wages from the business as was the case in Morgan v. Equitable General Insurance Company, 383 So.2d 1067 (La.App. 3rd Cir. 1980) and need not be considered as wages.

CONCLUSION

Although we find no manifest error in the trial court’s basic determinations, which we affirm, we nevertheless deem a remand necessary in order to permit the trial court to make a clearer determination of the compensation due to Mr. Lafleur and to eliminate patent ambiguity in the written reasons for judgment and the judgment.

Beginning Date for Payment of Compensation

In its written reasons for judgment, the trial court states that compensation is due from July 1,1981, yet the court later refers to the date as April 22, 1981. The judgment itself, apparently prepared by Mr. Lafleur’s attorney, fixes December 1, 1981 as the date on which benefits should have begun. We find that Mr. Lafleur became partially and permanently disabled on July 1, 1981, the approximate date of his second accident while employed at Tide. Accordingly the period of compensation of 450 weeks should begin on that date.

Payments Subject to Credits For Amounts Previously Paid

The trial court properly provided in its written reasons for judgment that compensation due should be subject to a credit “for all sums previously paid” and that “[a]ll accrued amounts be paid in a lump sum, together with legal interest thereon from date until paid...” Sums previously paid for which credit is due should include any worker’s compensation paid as well as any wages earned to the extent allowed by law. The judgment as presently written awards plaintiff compensation in the sum of $6,683.29 “for the time period of December 1, 1981 until January 3, 1983...” Aside from the fact that the beginning date is in error, we are unable to determine that the record itself contains evidence upon which any specific computation may be made. Neither figures for specific salary which may have been paid plaintiff prior to his resignation nor amounts of compensation which may have been paid appear in the record.

Weekly Compensation Reduced By Subsequent Weekly Earnings

Under the statute a permanently partially disabled worker is entitled (for a maximum of 450 weeks) to 66⅜ percentum “of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter...” (Emphasis added) The statute also refers to earnings “in any gainful occupation for wages...” Here we deal with profits from a sausage kitchen rather than a relatively fixed and constant wage in a new employment. Obviously profits should be treated the same as wages. Nevertheless, to do so presents accounting problems in practical application of self-evident magnitude. Profits in a business operation are not easily determinable on a weekly basis if in fact they may be so determined. Profits and losses are generally determined on an annual basis. Despite the problem presented, the credit for income, wages or otherwise, should be applied, according to the statutory requirement, on a weekly basis.

We shall return to the matter just discussed but at this point we note that whatever may be the result of compensation for any given week, the plaintiff will be restricted to the maximum weekly benefit provided by LSA-R.S. 23:1202(1). Martin v. H.B. Zachry Company, 424 So.2d 1002 (La.1982). In this case the parties have stipulated through counsel that this weekly amount is $148.00.

Earnings at the Time of Injury

Absent from the record is any evidence of the average weekly wage Mr. Lafleur was earning on July 1, 1981. From state-merits in both briefs it is apparent that the amount of this wage was furnished to the trial court in a post-trial memorandum wherein counsel for plaintiff evidently stated it to be $237.50. In plaintiffs brief filed with this court plaintiffs counsel stated that, upon further reflection the figure should be $202.50. Counsel states that the figure of $237.50 “was based upon plaintiffs salary of $950.00 per month at the time of his initial injury in July, 1980.” The figure of $262.50 is now urged before us as the correct figure because plaintiffs counsel urges that $262.50 “is based upon his [Lafleur’s] earnings in July, 1981, when he reinjured his knee...” We agree that the wage earned on July 1, 1981 is the correct figure, but, as we have noted, the record is devoid of any evidence on this figure. Mr. Lafleur testified that he was earning $1,050.00 when he resigned which was near the end of the year 1981, but he did not testify that he was making this same salary when he was injured.

Defendant’s counsel makes the following argument in its brief:

“Though it was stipulated at the time of trial that the plaintiff was earning ONE THOUSAND, FIFTY AND NO/100 ($1,050.00) DOLLARS per month when his employment was terminated, as pointed out by plaintiff’s counsel in his Post-Trial Memorandum, the plaintiff was earning NINE HUNDRED, FIFTY AND NO/100 ($950.00) DOLLARS per month at the time of his accident and therefore that is the appropriate wage to deal with. Therefore, Mr. Lafleur’s average weekly wage was TWO HUNDRED, THIRTY-SEVEN AND 50/100 ($237.50) DOLLARS. Sixty-six and two-thirds (66%%) percent of this wage equals ONE HUNDRED, FIFTY-EIGHT AND 33/100 ($158.33) DOLLARS.”

Frankly, we are unable to follow this argument. However, our inability is of no moment for we find that, although defendant’s counsel states there was a stipulation as to the figure of $1,050.00 per month, there was no stipulation. Plaintiff’s counsel mentions that figure in his opening statement but we do not find that it was ever agreed to by defendant’s counsel.

In view of the above, the wage being earned by Mr. Lafleur on July 1, 1981 should be determined from evidence to be taken on remand unless counsel should stipulate on the matter.

Weekly Earnings After Plaintiff Resigned His Employment

We earlier alluded to the difficulty posed in attempting to apply the formula relative to permanent partial disability where the former worker earns business income rather than a wage after leaving the employment of the employer who owes compensation. One case which considered pre-injury wages and post-injury wages held that post-injury wages (i.e. in other employment) must be applied on a weekly basis. The Court of Appeal for the Fourth Circuit stated in Jones v. Orleans Parish School Bd., 370 So.2d 677 (La.App. 4th Cir.1979):

“Under the statute, compensation payments are due in those weeks when plaintiff’s salary did not equal or exceed his weekly earnings prior to the accident. Although annual totals are available in the record there is insufficient evidence before us to compute the amount of compensation due. In order to properly compute the benefits, the plaintiff must furnish a breakdown of wages by the week. As the act states, the employer is to be allowed a credit for each week any wages are earned, no matter how small or how large the amount.”

In Martin v. H.B. Zachry Company, supra, the Louisiana Supreme Court was faced with computing post-injury wages for a number of years. Working in his father’s electrical contracting business after leaving the defendant’s employment, plaintiff earned wages in 1976 and several years thereafter. Apparently, the Supreme Court had before it only yearly totals. It computed the post-injury wages to be deducted from the pre-injury wage by dividing the total annual wages by 52 weeks or, as in the case of 1976, by any lesser number of total weeks worked. This formula was applied for the years 1976 through 1979. With reference to later years for which the record was deficient, the Supreme Court remarked:

“The record before us is complete through 1979, but we have no record of Martin’s earnings for 1980 to the present. His weekly benefits for those years and hereafter, however, are to be calculated by Employers National according to this formula as set out in LSA-R.S. 23:1221(3). Legal interest shall accrue on all past due installments from the date due until paid.”

In defendant’s brief defendant’s counsel makes a plea for guidance as to how future weekly benefits are to be calculated. Defendant asks whether it will be necessary to return to court for a trial each week to determine the profits in the Lafleurs’ sausage business, what the evidence should consist of and who should make the accounting. We do not know that we can make any more answer than the Supreme Court gave in the Martin case which we quoted above.

While we have no answer for the future, we suggest that counsel may explore amicable agreement on procedure. Plaintiff’s counsel states in his brief that to determine future benefits plaintiff “will furnish defendant a monthly statement of income for defendant to determine the amount of compensation due.” From such a statement plaintiff appears to suggest that he is amenable to a monthly payment rather than a weekly payment. At oral argument, when queried concerning this offer, plaintiff’s counsel reiterated his client’s willingness to furnish monthly statements concerning income from the sausage business. It was pointed out from the bench that if monthly statements, rather than weekly statements, are furnished, it will require that compensation checks be issued on a monthly basis instead of on a-weekly basis. In response, plaintiff’s counsel replied that monthly issuance of compensation checks would be satisfactory, and, furthermore, plaintiff would object to furnishing weekly statements and thought that weekly statements would not properly reflect the net profit figures and would operate unfairly against plaintiff.

For the compensation which may be past due, including amounts which shall have accrued when this case is heard on remand, we think that guidelines are suggested in the Martin case. In Martin, weekly income was computed from total annual earnings. Obviously the same could be done on a monthly basis. In this regard the trial court should be accorded some discretion as it will be in a position to determine the nature and size of plaintiff’s business and the feasibility of calculating the earnings (or losses) of the business on a monthly basis. As a matter of fact, the plaintiff’s evidence in the record is in the form of monthly recapitulations. We realize that equitable arguments can be made for and against resort to annual totals rather than monthly totals. However, we will leave the matter to the sound discretion of the trial court suggesting only that, as practically as possible, the determination should be made to approach a weekly determination. Moreover, if monthly recapitulations should be agreed upon for the future, monthly computations for the past would be consonant with such procedure.

For the above reasons, these portions of the judgment awarding specific monetary benefits to Mr. Lafleur are reversed and set aside and this matter is remanded to the trial court for further proceedings in accordance with the views expressed herein and a redetermination of the specific benefits. In all other respects, the judgment of the trial court is affirmed. Costs of this appeal are assessed to defendant-appellant.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    SUCCESSIONS OF Alexander MARCOTTE and Nora Charrier Marcotte, Marjorie R. RACHAL, Administratrix, Appellant, v. Maggie M. Hess CHARRIER, Petitioner-in-Rule, Appellee.
    No. 83-560.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Michael F. Kelly, Marksville, for appellant.
    Dan McKay, Jr., Bunkie, for appellee.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   DOMENGEAUX, Judge.

This case involves a claim against the successions of Alexander Marcotte and Nora Charrier Marcotte. Petitioner, Mrs. Maggie M. Hess Charrier, alleged that she is the creditor of the estate of Mr. Alex Marcotte and that she is entitled to $3,149.00 as expenses of the last illness of the decedent which are owed to her by the estate. Mrs. Charrier filed a petition in opposition to the tableau of distribution proposed by the administratrix, Mrs. Marjorie R. Rachal. The administratrix filed in the succession proceedings a proposed disbursement to Mrs. Charrier for $234.00 which reflected medical and funeral expenses paid by Mrs. Charrier.

The administratrix denied the alleged indebtedness, pled liberative prescription of one and three years, and entered a special objection to the admission of parol evidence.

A rule was ordered to show cause why Mrs. Charrier should not receive the full amount of her demand.

Trial was conducted on April 1, 1983. Mrs. Charrier was the only witness to testify. Her testimony concerned the existence, nature, and amount of the debt. The trial judge rendered judgment in favor of Mrs. Charrier for $2,004.60 (with legal interest from date of judicial demand until paid) plus all costs.

The administratrix has appealed suspen-sively, alleging nine (9) assignments of trial court error as follows:

SPECIFICATIONS OF ERROR

1.) In failing to apply La.R.S. 13:3721 (commonly referred to as the “Dead Man’s Statute”) and in refusing to prohibit the introduction of parol evidence to establish the existence of an alleged liability or debt on behalf of a deceased person;

2.) In ruling that Mrs. Charrier had sustained her legal burden of proof as to the existence of an alleged liability or debt on behalf of a deceased person when only one witness testified rather than the two witnesses required to testify by La.R.S. 13:3722;

3.) When it concluded as a matter of fact that a private attorney had informed Mrs. Charrier that there would be no administration of the succession when the record is totally devoid of any evidence to substantiate such a finding;

4.) In concluding that there was a “de facto” Administrator of the Succession;

5.) In concluding that the Administratrix had admitted a part of Mrs. Charrier’s claim by including another claim based upon a payment of debts subsequent to the death of the deceased in the proposed tableau of distribution;

6.) In concluding the issue before the court was only one of the amount of the claim and not its validity;

7.) In concluding that the position of the Administratrix was that there was no dispute as to Mrs. Charrier’s performance of services only whether or not she was due any compensation for them;

8.) In failing to apply the liberative prescriptive period of one (1) year; and

9.) In applying the liberative prescription of three (3) years from the date of the submission of a written statement to an attorney representing some of the heirs of the decedent rather than from the date the formal opposition to the petition for homol-ogation of the tableau of distribution was filed.

Mrs. Charrier answered the appeal alleging that the trial court erred in holding that La.R.S. 13:3721 was applicable and that a portion of the debt had prescribed. Appel-lee further contends that all or part of La.R.S. 13:3721-3722 is unconstitutional in violation of the separation of powers doctrine. Appellee seeks to have the judgment amended to increase the amount awarded.

ISSUES

Appellant contends that the trial court erred in allowing the introduction of parol evidence contrary to the provisions of La. R.S. 13:3721. Appellant also contends that the trial court erred in finding that the creditor sustained the burden of proving the validity of the debt.

FACTS

On January 8, 1982, Alexander Marcotte died intestate. His succession (as well as his wife’s Nora, who died on May 25, 1965) was judicially opened on August 19, 1982, by David Chatelain, an attorney representing Mrs. Rachal at the time. Subsequently, Mrs. Rachal retained other counsel.

On February 28, 1983, Mrs. Rachal filed a petition to be appointed administratrix. This was ordered by the district court on that date and letters of administration were issued to Mrs. Rachal. On March 3, 1983, the administratrix filed into the succession proceedings a proposed tableau of distribution. A portion of this reflected a sum of money ($234.00) to be paid Mrs. Charrier for reimbursement of the physician’s fee and funeral expenses paid to the priest.

On March 11, 1983, Mrs. Charrier filed a petition to establish liability for services allegedly performed on behalf of Mr. Mar-cotte between August 1977 and December 1981. No formal legal proceedings had been instituted by Mrs. Charrier prior to this date.

At trial on the merits, Mrs. Charrier stated that she visited Mr. Marcotte at the nursing home, performed chores and did errands for him. Mrs. Charrier admitted that she was never paid during this period and that there was no writing to support any agreement to pay for the services rendered. Mrs. Charrier testified that Mr. Marcotte promised to pay her from his estate for any expenses incurred and that she should keep a record of the expenditures.

The trial judge allowed into evidence a handwritten document of dates and expenses compiled by Mrs. Charrier. She admitted that this record was not a contemporaneous diary of events. The only other record was a summary of Mrs. Charrier’s expenses. It contained a breakdown of expenses into mileage, clerical duties, donations, and telephone calls.

Mrs. Charrier testified that she submitted the detailed written statement to Mr. Chatelain in August 1982. Mrs. Char-rier stated that Mr. Chatelain assured her that she would be paid for all of her expenses. In his written reasons for judgment, the trial judge found that Mr. Chate-lain was the “de facto” succession representative. He further found that Mr. Cha-telain told Mrs. Charrier there would be no administration of the decedent’s estate which created a reliance interest. The trial judge also found that the document presented to Mr. Chatelain constituted a formal proof of claim as required by La.C. C.P. Art. 3245 which effectively suspended the running of prescription and established the basis for the introduction of parol evidence to prove the debt or liability of the deceased.

The trial judge determined that the issue before the court was not the validity of Mrs. Charrier’s claim, but rather the amount thereof.

We conclude that the trial judge committed manifest error in his findings of fact and application of law.

THE DEAD MAN’S STATUTE

La.R.S. 13:3721 is the statute applicable to this case. It provides:

“Parol evidence shall not be received to prove any debt or liability of a deceased person against his succession representative, heirs, or legatees when no suit to enforce it has been brought against the deceased prior to his death, unless within one year of the death of the deceased:
(1) A suit to enforce the debt or liability is brought against the succession representative, heirs, or legatees of the deceased;
(2) The debt or liability is acknowledged by the succession representative as provided in Article 3242 of the Code of Civil Procedure, or by his placing it on a tableau of distribution, or petitioning for authority to pay it;
(3) The claimant has opposed a petition for authority to pay debts, or a tableau of distribution, filed by the succession representative, on the ground that it did not include the debt or liability in question; or
(4) The claimant has submitted to the succession representative a formal proof of his claim against the succession, as provided in Article 3245 of the Code of Civil Procedure.
The provisions of this section cannot be waived impliedly through the failure of a litigant to object to the admission of evidence which is inadmissible thereunder.”

The Second Circuit has explained the underlying legislative intent of this statute thusly:

“The purpose of the ‘Dead Man’s Statute’ is to protect the estates of decedents, their representatives and heirs, against stale and unfounded claims which might have been refuted or disproved by the testimony of the deceased were he living. Succession of Pohlmeyer, 192 So.2d 870 (La.App., 4th Cir.1966); Collier v. Administrator, Succession of Blevin, 136 So.2d 774 (La.App., 4th Cir. 1962 — cert. denied); In re Ford’s Succession, 91 So.2d 71 (La.App., 1st Cir.1957— cert. denied).”

Taylor v. Bocock, 276 So.2d 347, 350 (La. App. 2nd Cir.1973), writ refused, 279 So.2d 205 (La.1973).

The decedent, Mr. Marcotte, can no longer defend himself against the claims of the alleged creditor. The claims of Mrs. Char-rier were two-fold: the first, for reimbursement of money paid to Mr. Marcotte’s physician and the priest who performed the funeral service, which was acknowledged by the administratrix in the tableau of distribution; the second, for services rendered, was based solely upon the parol evidence of Mrs. Charrier. We find that the proof offered was legally inadmissible under the guidelines of La.R.S. 13:3721 and that it was legally insufficient to prove the claim according to the standard set forth in La.R.S. 13:3722. The necessity to fulfill these statutory requirements was stated in Barron v. Oden, 290 So.2d 386 (La.App. 2nd Cir.1974):

“No suit to enforce plaintiffs’ claims was brought against decedents prior to their deaths. Hence for parol evidence to be received, one of the four requirements listed under the quoted statute must have been satisfied. There is nothing in the record to indicate that any of these requirements were satisfied and since the suit was filed more than one year after the succession was opened, which act necessarily took place after the deaths of Mr. and Mrs. H.A. Barron, the trial judge was eminently correct in refusing to allow the introduction of parol evidence....”

At 387-388.

See Succession of Napoli, 286 So.2d 392 (La.App. 4th Cir.1973).

ADMISSIBILITY OF PAROL EVIDENCE

Mrs. Charrier did not file a suit against the succession representative, heirs, or legatees within one year of the death of the decedent to enforce the indebtedness for services performed as required by La.R.S. 13:3721(1); nor was the alleged debt for services placed on the tableau of distribution or petition for authority to pay it within one year of the date of death as required by La.R.S. 13:3721(2). The third exception to the rule which prohibits the introduction of parol evidence does not apply to Mrs. Charrier’s claim either because she filed the opposition to the tableau of distribution on March 11, 1983, more than one year following Mr. Marcotte’s death. In order to preserve the purpose of La.R.S. 13:3721, the statute must be strictly construed.

“Under La.R.S. 13:3721 parol evidence can be admitted to prove a claim against the deceased only if a suit or other action is filed within one year of the death of the deceased. The purpose of the provision, as often stated in the jurisprudence, is to prevent stale and unfounded claims from being filed against the succession which could have been refuted by the deceased had he been alive. See, e.g. Succession of DeLoach, 204 La. 805, 16 So.2d 361 (1944); Taylor v. Bocock, 276 So.2d 347 (La.App. 2nd Cir.1973), writ refused 279 So.2d 205 (La.1973).
“Only if the claim against the succession is brought within one year of the death of the decedent are the provisions of La.R.S. 13:3722 applicable. If the one year requirement of Section 3721 is not met, no parol evidence is admissible to prove the claim against the succession. Barron v. Oden, 290 So.2d 386 (La.App. 2nd Cir.1974). There is no question in this case that Mrs. Campbell’s claim was brought much later than a year after the death of her brother. The purpose of the Dead Man’s Statute would be thwarted if her testimony were allowed to prove her claims against the succession.
“The fact that a tableau of distribution in the succession was not filed does not change the result. A succession creditor under La.R.S. 13:3721 is given one year to assert his claim against the succession representative, heirs or legatees. He may file suit or submit his formal claim to the succession representative. See La.C.C.P. art. 3245. If a tableau of distribution or petition to pay debts is filed within a year of death, the creditor may file an opposition if his claim is not listed. If, however, a tableau or petition to pay debts is not filed within a year of death, a creditor must pursue the other means provided under La.R.S. 13:3721 or be barred from using parol testimony to prove his claim. This construction, we feel, conforms with the intent and purpose of the Dead Man’s Statute. The trial court, therefore, was in error in allowing Mrs. Campbell to testify as to her claims.”

Succession of Otts, 400 So.2d 1175, 1177-1178 (La.App. 1st Cir.1981).

La.C.C.P. Arts 3241 and 3242 provide an informal method for presentation and acknowledgment of a creditor’s claim; however, the succession representative neither received a submitted claim nor acknowledged one from Mrs. Charrier. A formal method of presentation is permitted by La.C.C.P. Art. 3245, and is specifically required under the fourth and final provision of La.R.S. 13:3721(4). The trial judge found that Mrs. Charrier followed the system of submitting a formal proof of claim to suspend prescription. The handwritten document given to Mr. Chatelain does not meet the requirements of La.C.C.P. Art. 3245 because of several factors. The statement was not sworn to by the claimant. Additionally, there had been no court appointed succession representative at the time the claim was presented, and the succession was not under administration.

Even if Mrs. Charrier’s testimony had been properly admitted, her claim was not validly supported by legally sufficient evidence. The companion statute to the parol evidence statute, La.R.S. 13:3722 explicitly requires that:

“When parol evidence is admissible under the provisions of R.S. 13:3721 the debt or liability of the deceased must be proved by the testimony of at least one creditable witness other than the claimant, and other corroborating circumstances.”

The Louisiana Supreme Court, in Savoie v. Estate of Rogers, 410 So.2d 683 (La. 1981), interpreted this statute:

“The statute clearly provides that the creditable witness whose testimony is required to prove the debt must be someone ‘other than the claimant.’ La.R.S. 13:3722. This provision implies that the witness whose testimony is necessary for proof of the claim against the deceased cannot be a co-owner of the claim. The purpose of the requirement is to eliminate the possibility of fraud and perjury by witnesses who have a direct pecuniary or proprietary interest in the claim. If the statute were construed to allow the co-owner of a claim to supply a necessary element of proof, the purpose of the requirement would be defeated. Accordingly, we now hold that a person who has a direct pecuniary or proprietary interest in the plaintiff’s claim against the deceased person may not serve as his one creditable witness.”

On rehearing, at 687. See Succession of Butler, 425 So.2d 1332 (La.App. 4th Cir. 1983); Porter v. Johnson, 408 So.2d 961 (La.App. 2nd Cir.1981), writ denied, 412 So.2d 99 (La.1982); Succession of Dean, 375 So.2d 162 (La.App. 2nd Cir.1979), writ denied, 376 So.2d 1272 (La.1979).

Thus, Mrs. Charrier’s testimony, standing alone without any corroborating evidence, does not meet any essential elements of La.R.S. 13:3722.

SUCCESSION REPRESENTATIVE

The trial judge created the concept of “de facto” succession representative. Successions law and procedure defines the term “succession representative.”

(2) ‘Succession representative’ includes an administrator, provisional administrator, administrator of a vacant succession, executor, and dative testamentary executor.”

La.C.C.P. Art. 2826.

An administrator must file a petition for appointment. La.C.C.P. Art. 3091. After the filing of a detailed descriptive list or inventory, the district court then issues an order authorizing the appointment of an administrator. La.C.C.P. Arts. 3094, 3096, and 3136. The functions, powers, and duties of the succession representative are imposed when the administrator furnishes security, takes an oath, and is issued letters of administration. La.C.C.P. Arts. 3151, 3158, and 3159.

The administrator of a succession is a fiduciary relationship with the duties of collecting, preserving, and managing the property of the succession and has responsibility for damages. La.C.C.P. Art. 3191. Thus the Code refers to a precise legal definition and procedure which entails the creation of a legal officer, i.e., the role of a prudent administrator who is answerable to the court, liable for damages incident to his failure to act properly, and subject to disqualification, revocation, or removal. La.C. C.P. Arts. '3097, 3181, and 3182.

The statutory law governs the appointment and function of the succession representative; it does not permit a popular definition of the term nor does it provide for a judicial extension of the concept of succession representative.

LIBERATIVE PRESCRIPTION

Although the trial judge applied La. C.C. Art. 3538 and found that three years was the prescriptive period for the debt claimed by Mrs. Charrier, we conclude that Mrs. Charrier’s claim prescribed by a one year limitation as governed by La.C.C. Art. 3534, which was the applicable provision at the time the claim ripened. Cf. Bahm v. Succession of McMichael, 415 So.2d 976 (La.App. 1st Cir.1982) (in that case the claim was properly filed within one year of decedent’s death); Succession of Galiano, 195 So. 377 (La.App.Orl.1940).

APPELLEE’S CLAIM OF UNCONSTITUTIONALITY

Appellee contends that the provisions of the Dead Man’s Statutes are unconstitutional. The language of La.R.S. 13:3721 and 3722 is clear and unambiguous. The statutes mandate clearly and expressly that parol evidence shall be incompetent to prove any debts against a deceased debtor except in a limited class of cases. Hava v. Cafiero, 157 La. 1007, 103 So. 294 (1925). When a law is clear and free from all ambiguity, it must be given effect as written. La.C.C. Art. 13; Succession of Manion, 148 La. 98, 86 So. 667 (1920), on rehearing, at 86 So. 668. Therefore, we find La.R.S. 13:3721 and 3722 constitutionally valid and fully applicable to the case sub judice. The provisions of La.R.S. 13:3721 and 3722 prohibit recovery of any amount except for $234.00 (for payment of debts after the death of the decedent) which was recognized and included in the proposed Tableau of Distribution.

DECREE

For the above and foregoing reasons, the judgment of the trial court which awarded Mrs. Charrier $2,004.60 (with legal interest from date of judicial demand until paid) plus all costs is reversed and her claims are ordered dismissed.

Costs both at trial and on appeal are assessed against Mrs. Charrier.

REVERSED.

      . The district court sustained the plea of three years prescription. This prevented recovery of that portion of Mrs. Charrier’s claim which arose before August, 1979 (three years prior to the date Mrs. Charrier presented her claim to the attorney for the heirs of the decedent).

      . The Official Revision Comments to La.C.C.P. Art. 2826 clarify this term:
      “The term 'succession representative’ is used throughout the articles in this Book dealing with the rights, duties, power, and authority common to administrators, provisional administrators, administrators of vacant successions, executors, and dative testamentary executors, for purposes of brevity, and to avoid repeated enumeration of all of these succession representatives.”

      . La.C.C. Art. 3538 provides:
      "The following actions are prescribed by three years:
      That for arrearages of rent charge, annuities and alimony, or of the hire of movables and immovables.
      That for the payment of money lent.
      That for the salaries of overseers, clerks, secretaries, and of teachers of the sciences who give lessons by the year or quarter.
      That of physicians, surgeons and apothecaries for visits, operations and medicines.
      That of parish recorders, sheriffs, clerks and attorneys for their fees and emoluments.
      That on the accounts of merchants, whether selling for wholesale or retail.
      That on the accounts of retailers of provisions, and that of retailers of liquors, who do not sell ardent spirits in less quantities than a quart.
      That on all other accounts.
      This prescription only ceases from the time there has been an account acknowledged in writing, a note or bond given, or an action commenced.”

      .La.C.C. Art. 3534 provides:
      “The following actions are prescribed by one year:
      That of justices of the peace and notaries, and persons performing their duties, as well as that of constables, for the fees and emoluments which are due to them in their official capacity.
      That of masters and instructors in the arts and sciences, for lessons which they give by the month.
      That of innkeepers and such others, on account of lodging and board which they furnish.
      That of retailers of liquors, who. sell ardent spirits in less quantities than one quart.
      That of workmen, laborers and servants, for the payment of their wages.

        That for the payment of the freight of ships and other vessels, the wages of the officers, sailors.and others of the crew.
      That for the supply of wood and other things necessary for the construction, equipment and provisioning of ships and other vessels."

      . Effective January 1, 1984, La.C.C. Arts. 3538 and 3534 were vacated, amended, and reenacted as La.C.C. Arts. 3494.


author: GUIDRY, Judge.

text:
    Katherine GUERRA, Plaintiff-Appellee, v. Phillip P. KARAM, et al., Defendants-Appellants.
    No. 83-609.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Rehearing Denied May 7, 1984.
    Writ Denied June 25, 1984.

      Schafer & Schafer, Ralph Aucoin, New Orleans, Guglielmo & Lopez, Gina Tuttle, Opelousas, for defendant-appellee-appel-lant.
    Taylor & Trosclair, Frank P. Troselair, Jr., Opelousas, for plaintiff-appellee.
    Perrell Fuselier, Oakdale, for defendant-appellee.
    Before GUIDRY, FORET and CULPEPPER, JJ.

       Judge William A. Culpepper, Retired, Judge Ad Hoc.

   GUIDRY, Judge.

This is a suit for damages resulting from personal injuries suffered by the plaintiff, Katherine Guerra, when her car collided with a tractor trailer rig being driven by the defendant, Phillip Karam. The accident occurred on May 20, 1980. Also made defendants were Karam’s employer and the owner of the tractor, Leonard Welch; the liability insurer of the tractor-trailer rig, Bituminous Casualty Corporation; the owner of the trailer, Terry Wheat; and, the uninsured motorist carrier of the plaintiff’s vehicle, United Services Automobile Association. A third party demand was filed by United Services Automobile Association against Karam and Welch seeking indemnity for any amounts it might be condemned to pay.

The matter was tried to a jury, which returned a special verdict on October 2, 1982. The jury found that the defendant, Phillip Karam, was negligent, and that the plaintiff, Katherine Guerra, was contribu-torily negligent, and that the negligence of each was a proximate cause of the accident. The jury also found, however, that Karam had the last clear chance to avoid the accident. Damages suffered by the plaintiff were fixed at $45,000.00. Finally, the jury found that the defendant, Terry Wheat, was not legally responsible for the actions of either Phillip Karam or Leonard Welch. On November 5, 1982, the trial court rendered judgment, in conformity with the jury verdict, against Phillip Kar-am, Leonard Welch, and Bituminous Casualty Corporation, in solido, in the amount of $45,000.00. Because the amount of the judgment did not exceed Bituminous’ policy limit of $100,000.00, judgment was rendered in favor of United Services Automobile Association, dismissing plaintiff’s demands against it. The plaintiff’s claim against Terry Wheat was likewise dismissed.

The plaintiff filed a motion for judgment notwithstanding the verdict, along with a subsequent amendment thereto, whereby she sought a judgment increasing the jury award of damages to $147,220.00. The plaintiff’s motion did not seek to modify the jury verdict in any other respect. The plaintiff also filed a motion for new trial or in the alternative, that additur be entered in order to increase the jury’s award of damages to $147,220.00.

On March 18, 1983, the trial court granted the plaintiff’s motion for judgment notwithstanding the verdict. The judgment was rendered against Karam, Welch, Bituminous Casualty Corporation, and United Services Automobile Association, in solido, in the amount of $125,000.00. The judgment against Bituminous was limited to its policy limit of $100,000.00. The judgment against USAA was likewise limited to its policy limit of $15,000.00. Judgment was rendered in favor of USAA against Karam and Welch on the third party demand in the amount of $15,000.00. The motion for new trial or in the alternative, additur, was denied.

Bituminous, Welch, Karam and USAA appeal. Plaintiff did not appeal but filed an answer to the appeals seeking an increase in the award of damages. The issues presented on appeal are:

(1) Whether the jury was clearly wrong in finding both Phillip Karam and Katherine Guerra guilty of negligence;

(2) Whether the jury properly applied the doctrine of last clear chance;

(3) Whether the trial court erred in modifying quantum by a judgment notwithstanding the verdict; and,

(4) Quantum of damages.

FACTS

The accident in question occurred on May 20, 1980, during daylight hours, on U.S. Highway 190 four miles east of Opelousas, Louisiana. At the point of the accident, U.S. 190 is a four lane highway with two eastbound lanes and two westbound lanes divided by a grass median. The plaintiff, Katherine Guerra, was proceeding in a westerly direction on the highway in a 1973 Volkswagen. Phillip Karam, driving a 1973 Freightline tractor trailer, was exiting the Seven Flags Truck Stop, which is situated on the south side of U.S. 190. Karam drove the truck out of the truck stop exit, across the two south, or eastbound lanes, across the crossover in the median which is immediately opposite the truck stop exit, and turned left onto the westbound traffic lanes. Prior to the accident, the plaintiff was travelling west in the outside lane behind a slower moving westbound vehicle being driven by Beatrice Nall. The plaintiff pulled into the left lane, passed the Nall vehicle, and returned to the right, or outside lane. At this point, the defendant, Karam, was straightening up the truck, in the process of completing his left turn into the inside lane. However, the truck still occupied a portion of the outside lane. The plaintiff, faced with the truck’s presence in the outside lane, applied her brakes, skidded 22 feet, struck the cab of the truck, and veered into the ditch on the right side of the highway. The Volkswagen flipped onto its top and slid through the ditch for some distance, then struck a culvert and flipped upright once again, coming to rest 165 feet from the point of the collision. The plaintiff suffered serious injuries in the accident.

NEGLIGENCE

The jury found that the defendant, Phillip Karam, was guilty of negligence which proximately caused the accident. The jury likewise found the plaintiff guilty of contributory negligence which proximately caused the accident.

On appellate review of findings of negligence, the following standard is applicable:

“While the duty of a defendant in a negligence action is created by law, the question as to the breach of that duty must be answered in accordance with the facts and circumstances of each particular case. Jones v. Robbins, 289 So.2d 104 (La.1974); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). Since the breach of duty issue involves a factual determination, the decision by a trier of fact will not be disturbed absent a showing of “manifest error”. Arceneaux v. Domingue [365 So.2d 1330 (La.1978)], supra.”

Steele v. St. Paul Fire & Marine Insurance Company, 371 So.2d 843 (La.App. 3rd Cir.1979), writ denied, 374 So.2d 658 (La. 1979). For the reasons which follow, we find no manifest error in the jury’s determination that both the defendant, Karam, and the plaintiff, Guerra, were negligent, and that the negligence of each was a proximate cause of the accident.

The record shows that Karam, having exited the truck stop, came to a “rolling stop” on the median crossover before turning left onto Highway 190. He then began to execute the left turn into the inside lane. The testimony of Karam and his passenger at the time of the accident, Allen Welch, makes it clear that Karam intended to complete the turn without encroaching upon the right, or outside, lane of the highway. Allen Welch testified that as the truck approached the crossover, he told Karam that there was no traffic approaching in the inside lane. In his deposition, Karam stated that his truck never entered the outside lane. In his testimony at trial, Karam stated that it was a “possibility” that his truck touched the center line in making the turn. He further testified that the truck and trailer, despite its length, was fully capable of negotiating the turn without encroaching upon the outside lane.

While the foregoing testimony indicates that Karam intended to occupy only the inside lane, the evidence in the record clearly shows that he was unsuccessful in doing so. Beatrice Nall, an eyewitness, stated that the accident occurred in the middle of the outside lane. The accident reconstruction expert who testified on behalf of the defendants, Duaine T. Evans, also placed the point of impact near the center of the outside lane.

The plaintiff testified that upon seeing the truck approach the median crossover, she assumed it would stop, but nevertheless slowed down and moved into the outside lane. The truck then crossed the center line and occupied both westbound lanes. The plaintiff testified that the collision occurred in the outside lane.

LSA-R.S. 32:124 provides:

“The driver of a vehicle about to enter or cross a highway from a private road, driveway, alley or building, shall stop such vehicle immediately prior to driving onto a sidewalk or onto the sidewalk area extending across any alleyway or driveway, and shall yield the right of way to any pedestrian as may be necessary to avoid collision, and shall yield the right of way to all approaching vehicles so close as to constitute an immediate hazard.”

The record provides a clear factual basis for the jury’s conclusion that Karam breached his duty to yield the right of way to approaching vehicles, and to maintain a proper lookout. We find no manifest error in the jury’s determination in this regard.

We likewise find no manifest error in the jury’s finding that the plaintiff, Katherine Guerra, was contributorily negligent, and that her negligence was a proximate cause of the accident. Beatrice Nall testified that at the time the defendant’s truck entered the inside westbound lane, the plaintiff’s Volkswagen had not yet passed her vehicle, which was still the lead vehicle in the outside lane. Mrs. Nall further stated that although she was travel-ling 50-55 miles per hour, she felt that no emergency was created by the truck’s entrance onto the highway. She stated that there was adequate time for the truck to complete the turn into the inside lane without impeding her progress in the outside lane. She further testified that when she was 200-250 feet away from the truck, the plaintiff's Volkswagen passed her at a high rate of speed, switched to the outside lane, and collided with the side of the truck while making no apparent attempt to avoid the collision.

R.C. Viscardis testified that, while he did not witness the accident, he arrived at the scene soon thereafter and recognized the plaintiff’s Volkswagen, which was then resting in the ditch on the right side of the highway. Viscardis stated that he and other members of his work crew were westbound on Highway 190 sometime prior to the accident, travelling 60-65 miles per hour, when the Volkswagen passed their vehicle at a speed of roughly 10 miles per hour faster than their own vehicle was travelling. This testimony was corroborated by the testimony of Reginald Fonten-ot, a passenger in the vehicle being driven by Viscardis.

The record also shows that a sample of the plaintiff’s blood was taken after the accident and sent to the State Police Crime Lab for analysis. The Crime Lab report showed that the plaintiff’s blood contained .11% alcohol by weight. Dr. Joseph T. Brierre, who was accepted by the court as an expert in pathology, testified to the effects of increasing levels of alcohol in the blood. He stated that a person with a blood alcohol level of .10% to .13% would exhibit various symptoms, including slurred speech, double vision, loss of balance, vertigo, dizziness, and sleepiness.

In sum, the record contains considerable evidence that the plaintiff was travelling at an excessive rate of speed in an impaired condition. There is also evidence, the testimony of Mrs. Nall in particular, that the plaintiff failed to maintain a proper lookout for traffic ahead or to take evasive action which would have allowed her to successfully avoid the collision. In light of the foregoing, we find no clear error in the jury’s determination that the plaintiff was guilty of contributory negligence.

LAST CLEAR CHANCE

The jury found that the defendant, Kar-am, had the last clear chance to avoid the accident. The defendants assert that the jury misapplied the doctrine of last clear chance. We agree.

The last clear chance doctrine was developed to ease the harsh effects of the contributory negligence defense, which would otherwise serve as an absolute bar to any recovery by a negligent plaintiff. Baumgartner v. State Farm Mutual Automobile Insurance Company, 356 So.2d 400 (La.1978). The doctrine is applicable only when both parties have been found guilty of negligence which proximately caused the accident. Champagne v. McDonald, 355 So.2d 1335 (La.App. 3rd Cir.1978). In order to avail himself of the doctrine, a plaintiff must prove: (1) that he was in a position of peril of which he was unaware or from which he is unable to extricate himself; (2) that the defendant actually discovered or should have discovered the peril; and, (3) that the defendant, after discovering the peril, had a reasonable opportunity to avoid the accident. Patin v. State Farm Insurance Company, 395 So.2d 466 (La.App. 3rd Cir.1981).

The record in the instant case shows that the plaintiff has failed to make the requisite proof to enable her to invoke the last clear chance doctrine. In particular, the plaintiff made no showing that she was in a position of peril of which she was unaware or from which she could not extricate herself. Further, plaintiff has failed to show that subsequent to the time the defendant actually discovered or should have discovered the plaintiffs peril, he had a reasonable opportunity to avoid the accident.

The plaintiffs own testimony establishes that she was not unaware of the presence of the truck. She testified that she first saw the truck as it approached the crossover, before it entered the westbound lanes of the highway, and assumed it would stop. She stated that she slowed down and switched lanes, but that the truck proceeded to block one, then both of the westbound lanes. This testimony makes clear the fact that the plaintiff was not unaware of the presence of the truck nor unaware of the peril created by the truck’s encroachment upon both westbound lanes of travel.

The record also fails to show that the plaintiff was unable to extricate herself from the peril. The plaintiff, having switched into the right, or outside, lane, was placed in peril by the truck’s entrance into, and blockage of, the outside lane. The record clearly establishes that a full paved shoulder adjacent to the outside lane was available to the plaintiff for evasive action. When the collision occurred, the cab of the defendant’s truck and the plaintiff’s Volkswagen were at a 10% angle, such that the collision was a glancing blow, occurring as the truck had nearly straightened out. This evidence makes it clear that the plaintiff might have completely avoided the collision by swerving a few feet to the right. However, it appears that no such evasive action was taken, as the collision occurred near the center of the outside lane. This is supported by the testimony of Mrs. Nall, who stated that the plaintiff’s Volkswagen ran directly into the side of the truck while making no apparent attempt to avoid the collision. In short, the record shows that the plaintiff, at all times aware of the presence of the defendant’s truck, had a means available whereby she could extricate herself from the peril created by the presence of the defendant’s truck in her lane of travel. By swerving slightly to the right, into the outermost portion of the right lane and/or the paved shoulder adjacent thereto, the plaintiff could have successfully averted the collision.

That the last clear chance doctrine is unavailable to the plaintiff is made most clear by her failure to show that the defendant, after discovering the plaintiffs peril, had an opportunity to avoid the accident. The doctrine contemplates that the defendant must have a reasonable opportunity to avoid the accident after the plaintiff is in a position of peril from which he cannot extricate himself. Johnson v. Powell, 346 So.2d 283 (La.App. 4th Cir.1977).

The plaintiff, travelling in the outside lane, would have been placed in no danger had the defendant been successful in his attempt to negotiate the turn onto the highway without encroaching upon the outside lane. Until the defendant did so, the plaintiff was not in a position of peril. Even if we assume that the plaintiff could not extricate herself from the peril, there was no ■ showing' that any means was available to the defendant to avert the collision. While the negligent encroachment upon the outside lane created the peril, the best means of clearing the outside lane, once the peril was created, was to complete the turn into the inside lane. The defendant did so but the collision, unfortunately, was not averted.

The plaintiff asserts that the defendant could have avoided the collision by stopping in the median crossover without entering the westbound lanes, or by completing the turn without obstructing the outside lane. The availability of these measures are relevant to the initial determination of negligence on the part of the defendant, but clearly do not establish a “last clear chance” for the defendant to avoid the collision. At the time these measures were available, the plaintiff was not yet in a position of peril. The plaintiff has not alleged or shown any step the defendant could have taken after the creation of the peril to avoid the collision. Johnson v. Powell, supra. The jury’s determination that the last clear chance doctrine is applicable was clearly erroneous.

Our determination that the last clear chance doctrine is inapplicable results in a reversal of the trial court’s judgment rendering the defendants liable for the plaintiff’s injuries. The plaintiff’s recovery is barred by the plaintiff’s contributory negligence. It thus becomes unnecessary for us to address the correctness of the judgment notwithstanding the verdict, since said judgment addressed only the issue of quantum. We express no opinion on the availability of a judgment notwithstanding the verdict to adjust a jury award of damages.

For the above and foregoing reasons, the judgment of the trial court is reversed, and the plaintiff’s demands are dismissed with prejudice. All costs at the trial level and on appeal are assessed to plaintiff-appellee.

REVERSED AND RENDERED.

      . The accident occurred on May 20, 1980, prior to the effective date of Louisiana's comparative negligence statute. LSA-C.C. Art. 2323. Thus, absent an application of the doctrine of Last Clear Chance, contributory negligence acts as a complete bar to the plaintiff’s recovery.

      . It should be noted that the record clearly shows that the plaintiffs vehicle left 22 feet of skid marks before colliding with the truck.

      . We observe that another panel of this court has held that judgment notwithstanding the verdict was not intended to supplant the procedure for additur and remittitur of jury awards, LSA-C.C.P. Art. 1813, now LSA-C.C.P. Art. 1814, which is the proper procedural vehicle for adjusting jury awards of damages. Rougeau v. Commercial Union Insurance Co., 432 So.2d 1162 (La.App. 3rd Cir.1983), writ denied, 437 So .2d 1149 (La.1983).


author: KNOLL, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Earl W. WILLIAMS, Defendant-Appellant.
    No. K83-1098.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Writ Denied June 8, 1984.

      Edwin S. Patout, Haik, Haik, Minvielle & Patout, New Iberia, for defendant-appellant.

      Glenn Foreman, Asst. Dist. Atty., Crowley, for plaintiff-appellee.
    Before CUTRER, YELVERTON and KNOLL, JJ.
   KNOLL, Judge.

We granted writs on the application of the defendant, Earl W. Williams, who was convicted of operating a vehicle while intoxicated in violation of LSA-R.S. 14:98.

This is a case of first impression in the State of Louisiana. The defendant is charged with operating a vehicle while intoxicated in that he rode a horse on Louisiana Highway # 100 while under the influence of alcoholic beverages.

The defendant was riding a horse on La. Hwy. # 100, one and one-tenth mile west of Crowley on the evening of March 29, 1983 when he was involved in an accident with an automobile. The horse was shot and killed at the scene of the accident. After investigating the accident, police officers administered a P.E.I. test to the defendant and determined that he had a blood alcohol concentration of .12 percent. Defendant was charged with second offense O.W.I. in violation of LSA-R.S. 14:98.

The defendant stipulated that: he had previously been convicted of D.W.I. in 1980 in Iberia Parish; he was involved in an accident on March 29, 1983 at 7:40 p.m. while he was riding a horse; and he was given a P.E.I. test which results showed that he had a blood alcohol concentration of .12 percent.

After a hearing on the stipulated facts, the trial court narrowed the issue of the case to whether a horse constituted “other means of conveyance” under the provisions of LSA-R.S. 14:98, and concluded that the defendant had violated the provisions of the statute. He was found guilty of second offense O.W.I. and was sentenced to pay a $350 fine and to serve a term of six months in the parish jail. The court suspended five of the six months and ordered the defendant to serve thirty days in the parish jail.

It is elementary that criminal statutes are to be strictly construed. State v. Freeman, 411 So.2d 1068 (La.1982). Doubt as to the scope of criminal statutes must be decided in favor of the accused and against the State. State v. Brown, 378 So.2d 916 (La.1979). A crime is that conduct which is defined as criminal in the Criminal Code, or in other acts of the legislature, or in the constitution of this State. LSA-R.S. 14:7; State v. Pierre, 320 So.2d 185 (La.1975).

The jurisprudence is well established that this court has the right to take cognizance of a legal error patent on the face of the record. LSA-C.Cr.P. Art. 920(2) in pertinent part provides:

“The following matters and no others shall be considered on appeal:
(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”

In accord: State v. Buttner, 411 So.2d 35 (La.1982); State v. De Generes, 194 La. 574, 194 So. 24 (1940).

The defendant urges that a horse is not a “means of conveyance” under the language of LSA-R.S. 14:98. We conclude that the defendant has not been charged with a crime punishable under the provisions of LSA-R.S. 14:98.

LSA-R.S. 14:98 provides in pertinent part:

“The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, vessel or other means of conveyance while under the influence of alcoholic beverages, narcotic drugs, central' nervous system stimulants, hallucinogenic drugs or barbiturates....”

The rules of statutory construction require a court to consider that all expressions in the statute have meaning. State v. Fontenot, 112 La. 628, 36 So. 630 (1904); State v. Dozier, 258 La. 323, 246 So.2d 187 (1971). “Vehicle” is not self-explanatory in R.S. 14:98, otherwise it would not have been necessary for the legislature to name “motor vehicle, aircraft, vessel or other means of conveyance” in the statute. Therefore, even if we could refer to the definition of “vehicle” in LSA-R.S. 32:1 (the opening paragraph of that statute restricts those definitions for use only in the Highway Regulatory Act), it would not illuminate the meaning of “other means of conveyance” because by the structure of R.S. 14:98 those two terms are not synonymous. Accordingly, we are faced with no statutory definition of “other means of conveyance”.

Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning of the law, shall be construed and understood according to such peculiar and appropriate meaning. LSA-R.S. 1:3.

Where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated. The particular words are presumed to describe certain species and the general words to be used for the purpose of including other species of the same genus. State v. Pabst Brewing Co., 128 La. 770, 55 So. 349 (1911). The words “motor vehicle,” “aircraft,” and “vessel” refer to inanimate objects of which the operation and control is dependent on the actions of the driver. A horse, on the other hand, is an animate object whose actions may not always be predicted with certainty. Plauche v. Consolidated Companies, 235 La. 692, 105 So.2d 269 (1958). A horse is ridden but not always controlled; it is not operated or driven.

When a statute is ambiguous or subject to two reasonable interpretations, the court can inquire into legislative aim and design for the purpose of determining legislative intent. Hebbler v. New Orleans Fire Department, 310 So.2d 113 (La.1975); State v. McCulloch, 126 So.2d 191 (La.App. 4th Cir.1961).

The introduction of the “driving while intoxicated” statute into the law closely parallels the growth of motorized transportation in society. The early legislative acts, Acts 78 of 1924 and 1'88 of 1936, simply denounced the operation of motorized vehicles while intoxicated; no other mode of transportation was mentioned. Act 143 of 1940 made it a crime in this state for “any person whether licensed or not, ... who is under the influence of intoxicating liquor or narcotic drug, to drive any vehicle upon any public road, highway or bridge of this State.” (Emphasis added). These early acts clearly imply a legislative concern to regulate the use and operation of motor vehicles and to safeguard the people of this state from injury or death caused by drivers who operate their motorized vehicles while under the influence of intoxicating liquor or narcotic drugs.

Act 122 of 1956 redefined the crime of driving while intoxicated and was significant for two reasons: (1) the words “intoxicating liquor” in the statute were changed to “alcoholic beverages;” and (2) for the first time the term “other means of conveyance” was utilized in R.S. 14:98.

We have been unable to find any case law in this state interpreting the term “other means of conveyance.” However, in their discussion of the term “alcoholic beverages” two Louisiana Supreme Court cases buttress our restriction of the term “other means of conveyance” to motorized vehicles by shedding light on the elements of the crime of operating a vehicle while under the influence of intoxicating beverages.

In State v. McAlister, 102 So.2d 444 (La.1958), the Louisiana Supreme Court was called upon to determine whether R.S. 14:98, as amended in Act 122 of 1956 (this was the same act which added the term “other means of conveyance” to the statute), denounced the same crime of operating a motor vehicle which existed prior to the amendment. Speaking for a unanimous court, Justice Hawthorne concluded:

“The reason the statute [R.S. 1⅛:98] defines the same crime before and after its amendment is that the essential elements of the crime are unchanged by the amendment, these essential elements being the operation of a motor vehicle while intoxicated.” (Emphasis added)

Then in State v. Hightower, 238 La. 876, 116 So.2d 699 (1959), Chief Justice Fournet stated:

“... a person is intoxicated within the provisions of the statute [R.S. 1):98] when he does not have the normal use of his physical and mental faculties by reason of the use of alcoholic beverages (or narcotics), thus rendering such person incapable of operating an automobile in a manner in which an ordinarily prudent and cautious man in full possession of his faculties, using reasonable care, would operate a motor vehicle under like conditions.” (Emphasis added)

We are persuaded in our decision by the determination of the McAlister and High-tower courts that the use of a motorized vehicle is a pivotal element of the crime of operating a vehicle while intoxicated.

Penal laws are strictly construed, and cannot be added to by inference, and do not embrace cases not within their letter, even though within their spirit. State v. Reed, 188 La. 402, 177 So. 252 (1937); State In Interest of Ogletree, 244 So.2d 288 (La.App. 4th Cir.1971). Criminal laws are not to be extended by analogy. State v. Leak, 306 So.2d 737 (La.1975). Therefore had the redactors wished to include non-motorized vehicles in R.S. 14:98 they should have made specific mention of this class of vehicles in the statutory definition of operating a vehicle while intoxicated. Furthermore, the courts of this state have always followed the rule that they would not impute to a statute a meaning which would lead to an absurd result or extend to a statute a situation which the Legislature never intended to be covered thereby. Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594 (1963); Parish of Jefferson v. Stansbury, 228 So.2d 743 (La.App. 4th Cir.1969).

Although we are aware that the headings to the various sections - of the Revised Statutes do not constitute part of the law, LSA-R.S. 1:14, they do provide some aid in the interpretation of legislative intent where language in the statute is unclear. Montelepre v. Edwards, 359 So.2d 1311 (La.App. 4th Cir.1978). We observe that the section in question is found in Part VI entitled “Offenses Affecting the Public Generally,” in Sub-Part A, entitled “Offenses Affecting the Public Safety,” under the heading “Driving Offenses.” (Emphasis added.) As noted above, horses are neither driven nor operated; they are ridden.

Therefore we conclude that R.S. 14:98 does not define a crime which would encompass the riding of a horse while intoxicated. This interpretation gives meaning to the various aspects of the statute and is consistent with the rule of strict construction which applies to R.S. 14:98.

Likewise, should it be the public policy of this State to prohibit equestrians from riding horses while intoxicated, it is within the authority of the Legislature, not this court, to enact such a policy.

Accordingly we find that riding a horse upon a public highway does not constitute “other means of conveyance” under R.S. 14:98 and was error patent on the face of the record. Therefore, the defendant’s conviction is reversed and his sentence is vacated with orders to discharge the defendant.

REVERSED AND RENDERED.


author: DOUCET, Judge. STOKER, Judge,

text:
    STATE of Louisiana, Plaintiff-Appellee, v. James SNIDER, Defendant-Appellant.
    No. K83-937.
    Court of Appeal of Louisiana, Third Circuit.
    April 24, 1984.

      Richard P. Ieyoub, Steven Broussard, Lake Charles, for defendant-appellant.
    F. Wayne Frey, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   DOUCET, Judge.

The defendant, James Snider, is accused of the murder of his mother. The victim, apparently strangled to death, was found after her home was discovered ablaze and firemen responded. The defendant filed a Motion to Suppress based on the fact arson investigators failed to secure a warrant before a search of the remains of the house.

The State and defendant stipulated to the facts at the motion to suppress hearing. The stipulation was as follows:

1. The fire was extinguished and the premises watered down at 9:03 A.M. on June 10, 1983;
2. That prior to any search or seizure by police, Mr. Jessen with the Lake Charles Fire Department made a preliminary determination that the fire was the result of arson based on a carpet sample and the fact there were two points of origin;
3. Prior to any search and seizure, the premises were secured by both the police and fire department;
4. The search and seizure was conducted without a search warrant;
5. James Sanford Snider lived in the house with his mother, Peggy Snider;
6. That Officer Joanne Sensat arrived at the scene of the fire at 8:46 A.M. on June 10, 1983, and at 10:14 A.M. she removed three cans of flammable liquid from an area of the house which was not involved in the fire, and additionally, she removed the victim’s denture plate and a bedspread from the area where the victim’s body was found;
7. Officer Sensat left the home at 10:40 A.M., June 10, 1983, after she had ample time to inspect the area where the fire occurred and after photographs had been taken;
8. At 4:21 P.M. on the same day, Officer Pape arrived at the house with members of the crime lab for the express purpose of seizing evidence; and
9. The only items that had been seized, prior to Officer Pape arriving, were the items taken by Officer Sensat mentioned above, together with the victim’s body with her bra, corset, panties and one black stocking.

The trial judge denied defendant’s motion to suppress the evidence seized during the warrantless search. Defendant applied to this court seeking to invoke our supervisory jurisdiction. Defendant’s writ was granted.

Defendant contends the trial court erred in denying his motion to suppress. As stated in the stipulation, there was a war-rantless search and seizure in this case. According to LSA-C.Cr.P. art. 703(D) the State has the burden of proving the admissibility of any evidence seized without a warrant.

Searches and seizures which are conducted without a valid search warrant are considered unreasonable, unless they fall within one of the legally recognized exceptions to a warrantless search. State v. Huizar, 414 So.2d 741 (La.1982).

In Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) the United States Supreme Court held:

“(t)hat an entry to fight a fire requires no warrant, and that once in the building, officials may remain there for a reasonable time to investigate the cause of the blaze. Thereafter, additional entries to investigate the cause of the fire must be made pursuant to the warrant procedures governing administrative searches. Evidence of arson discovered in the course of such investigations is admissible at trial, but if the investigating officials find probable cause to believe that arson has occurred and require further access to gather evidence for a possible prosecution, they may obtain a warrant only upon a traditional showing of probable cause applicable to searches for evidence of crime.” (Cities Omitted).

Additionally, in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), the Court stated:

“(w)hen the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises. Cf. Michigan v. Tyler, supra, 436 U.S. at 509-510, 98 S.Ct. at 1950-1951. ‘The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.’ (Citations omitted). And the police may seize any evidence that is in the plain view during the course of their legitimate emergency activities. Michigan v. Tyler, supra.

Subsequent to our granting of the writ, the United States Supreme Court rendered its opinion in Michigan v. Clifford, — U.S. —, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984) wherein it was held, per Justice Powell joined by three Justices, that where reasonable expectations of privacy remain in fire-damaged premises, administrative searches into the cause and origin of a fire are subject to the warrant requirement of the Fourth Amendment absent consent or exigent circumstances. There are especially strong expectations of privacy in a private residence and respondents there retained significant privacy interests in their fire-damaged home. Because the warrant-less search of the basement and upper areas of respondents' home was authorized neither by consent nor exigent circumstances, the opinion stated that the evidence seized in that search was obtained in violation of respondents’ right under the Fourth and Fourteenth Amendments and must be suppressed.

Where a warrant is necessary to search fire-damaged premises, an administrative warrant suffices if the primary object of the search is to determine the cause and origin of the fire, but a criminal search warrant, obtained upon a showing of probable cause, is required if the primary object of the search is to gather evidence of criminal activity. Michigan v. Clifford, supra.

The search in Clifford was held not to be a continuation of an earlier search, and the privacy interests in the residence made the delay between the fire and the midday search unreasonable absent a warrant, consent, or exigent circumstances. Michigan v. Tyler, supra, was distinguished. Because the cause of the fire was known upon search of the basement, the search of the upper portions of the house could only have been a search to gather evidence of arson requiring a criminal warrant absent exigent circumstances. Even if the basement search in Clifford had been a valid administrative search, the opinion stated it would not have justified the upstairs search, since as soon as it had been determined that the fire originated in the basement, the scope of the search was limited to the basement area. id.

Justice Stevens concurred, opining that search of respondents’ home was unreasonable, in contravention of the Fourth Amendment, because the investigators made no effort to provide fair advance notice of the inspection to respondents. His concurrence concluded that a non-exigent, forceful, warrantless entry cannot be reasonable unless the investigator has made some effort to give the owner significant notice to be present while the investigation is made.

As aforementioned, in the present case, the search occurred after the fire had been extinguished and a preliminary determination had been made that the fire resulted from arson. The premises had been secured. Thereafter, two warrantless searches were conducted: one search shortly after (one hour) the fire was believed to be extinguished, and another search five hours later.

No one questions the right of firefighters to enter a burning building without a warrant or remain for a sufficient time to insure there is no danger of rekindling. There is also no dispute that search of areas outside the area of the fire would require a warrant as does a search for criminal activity after any exigency has passed.

The need to protect or preserve life or avoid serious injury is justification for what would otherwise be illegal absent an exigency or emergency. Wayne v. United States, 115 U.S.App.D.C. 234, 318 F.2d 205 (1963). The Fourth Amendment does not bar police officers from making warrantless entries and searches when they believe that a person might be in need of immediate help. When police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if the killer is still on the premises. Cf: Michigan v. Tyler, supra. And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities. Michigan v. Tyler, supra; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

Efforts to ascertain the cause of a fire may extend for a reasonable period of time with entry and re-entry without a warrant being required yet an inquiry must be made whether reasonable expectations of privacy exist in the fire-damaged premises at a particular time and, if so, whether exigencies justify the re-entries. Michigan v. Clifford, supra. Immediate threat that a blaze might rekindle presents an exigency justifying a warrantless and nonconsen-sual post-fire investigation into the cause of the fire.

There is no evidence that defendant possessed any reasonable privacy interest in the fire-damaged remains of his mother’s residence including the garage whereat the flammables were discovered. No claim has been made that any section of the house, such as defendant’s bedroom, was searched. Once firefighters lawfully entered the premises, it was permissible for them to remain there for a reasonable period thereafter to insure there was no danger of rekindling and their seizure of flammables was reasonable in view of the danger of such combustibles re-igniting the fire.

Each case, of course, must be evaluated on its own facts. Aside from the fact this case involves both a murder and arson, there is no showing that defendant possessed any reasonable expectation of privacy in the fire-damaged remains of the house owned by his mother who he is alleged to have murdered. Moreover, the defendant had notice of the search, therefore he was in a position to safeguard his privacy interests more so than the defendant in Clifford.

As aforementioned, fire investigators may remain on the premises for a reasonable period after extinguishment of the blaze and seize evidence of crime in plain view. Michigan v. Tyler, supra. A return to the scene of the fire site shortly thereafter may be considered a continuation of the prior search, id. This exception to the requirement of a warrant is a recognition that fires present an exigency which continues after the blaze is extinguished. Smoke, electrical problems, water damage and decreased security are but a few of the consequences which continue after the conflagration is put out.

Unlike Clifford, the inhabitants of the house herein had not arranged to have the house secured which evidenced an expectation of privacy. Here, the owner of the home was dead. The defendant was aware of the fire yet took no efforts to preserve any privacy interest he may have possessed in the remains of the house. Unlike Mincey where officers conducted an exhaustive four-day search which included ripping up carpets, tearing apart walls and seizure of 200-300 objects, the scope of the search herein was limited and involved a minimal intrusion into defendant’s privacy. We find the afternoon search on June 10, 1983 was a valid continuation of the earlier lawful search.

For the reasons assigned hereinabove, the trial judge’s denial of the Motion to Suppress is affirmed and the case is remanded for further proceedings.

AFFIRMED AND REMANDED.

STOKER, J., concurs and assigns written reasons.

STOKER, Judge,

concurring.

I concur in the position stated in the majority opinion in this case. In order to emphasize certain points and posit others, I add this concurring opinion.

The only facts before us for consideration concerning the challenged searches are those expressly stipulated to by counsel for the State and the defendant as set out in the majority opinion.

In arson eases in which the accused is the alleged arsonist and is being tried for arson, the constitutional protection against unconstitutional searches and seizures has pertinence in the context of such cases. The arguments of counsel and the majority opinion focus primarily on the legal principles developed in such arson cases. However, this is not an arson case. James Snider is charged in this case with having murdered his mother in her house. Therefore, the searches and seizures in question relate to a murder scene rather than an arson scene. Proof of arson may bear on determining the defendant’s guilt for the crime of murder, but the prosecution here is for murder and not arson. Therefore, in my opinion this case requires a different focus and a different approach.

The holding of the Supreme Court of the United States in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), indicates that the scope of a search at a homicide scene is broader than that justified by the crime of simple arson. In such cases, for example, the police may search the area for other victims or the killer. As this case is concerned with homicide, I think the following points should be considered.

A most persuasive point made by the majority opinion is the fact that the defendant had no reasonable expectation of privacy in the fire-damaged premises of his mother’s home. Apparently, the defendant was present when authorities arrived to put out the fire but he chose to leave the premises. The authorities became aware that the homeowner was the victim of a homicide and conducted the investigation with that knowledge. In any event, the majority correctly points out that there is no claim that defendant’s bedroom was searched. The only person with a privacy interest in the house and grounds was dead. Any privacy interest she had cannot be asserted in order to suppress evidence which could lead to the conviction of her killer. Such a result would be absurd. In fact, in my opinion, it can be reasonably asserted that, being dead, she could have no legal or constitutional privacy interests. Considerations of decency would lead considerate persons to desire that the privacy of her corpse and private belongings be respected. However, this is not the same thing as holding that a deceased person has constitutionally protected rights.

In Louisiana, in addition to satisfying the constitutional guarantees of the Fourth Amendment of the federal constitution, searches and seizures must pass the test of Article I, Section 5 of the Louisiana Constitution of 1974. The section provides:

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

Thus, if defendant, James Snider, is a person “adversely affected” by a search or seizure in violation of that section, he has standing to challenge the constitutionality of the search. If, as asserted above, the deceased mother of Snider had no constitutional privacy interest because she was dead, then there was no violation which could “adversely affect” the defendant. However, even viewed from a broader perspective, and without application of technical interpretations, I would find that James Snider had no privacy interest under this section of the Louisiana Constitution.

In State v. Ragsdale, 381 So.2d 492 (La. 1980), the Louisiana Supreme Court considered the right to privacy of a person for whom the law enforcement authorities held a warrant of arrest who is found in the home of a third person. The Court’s opinion includes the following pronouncement:

“The test for determining whether one has a reasonable expectation of privacy is not only whether the person had an actual or subjective expectation of privacy, but also whether that expectation is of a type which society at large is prepared to recognize as being reasonable. State v. Wilbourn, 364 So.2d 995 (La. 1978); State v. Dupuis, 378 So.2d 934 (La.1979).”

In the factual context of this case it does not seem to me that if James Snider harbored any expectation of privacy at all with reference to his mother’s house, it nevertheless was not of a type which society at large is prepared to recognize as being reasonable. The police were legitimately investigating, not merely suspected arson, but an evident case of homicide. They were investigating in the home of the victim. They certainly had a duty to search and seize evidence of foul play. If exigent circumstances were not present, it seems to me nevertheless that the situation justified the searches and seizures in this case. I can not see that the defendant had any privacy interest at all; but if he did have any, it did not override the interest of the public in establishing the fact and cause of the homicide and the identity of the killer. Not all entries into the houses of third persons unauthorized by warrant “adversely affect” defendants to the extent that suppression of evidence is required by the Louisiana constitutional provision in question. Cf. State v. Johnson, 437 So.2d 350 (La.App. 4th Cir.1983) and State v. Barrett, 408 So.2d 903 (La.1981).


text:
    James C. LANGLEY, Deceased, Dependents of v. GREEN CONSTRUCTION COMPANY & Alaska Pacific Assurance Company.
    No. 54209.
    Supreme Court of Mississippi.
    May 2, 1984.
    H.L. Merideth, Jr., Robertshaw & Meri-deth, Greenville, for appellant.
    Clifford B. Ammons, Watkins & Eager, Jackson, for appellee.
   Appeal from Circuit Court, Washington County; B.B. Wilkes, Judge.

Before WALKER, P.J., and DAN M. LEE and SULLIVAN, JJ.

Affirmed.


text:
    William BRIDGES v. Hazel BRIDGES.
    No. 54849.
    Supreme Court of Mississippi.
    May 2, 1984.
    David Oliver, Gulfport, for appellant.
    Crockett Lindsey, Gulfport, for appellee.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

Before WALKER, P.J., and DAN M. LEE and SULLIVAN, JJ.

Affirmed.


text:
    In re Inquiry Concerning a Justice Court Judge, H.K. SMITH.
    No. 54357.
    Supreme Court of Mississippi.
    May 2, 1984.
    Floyd J. Logan, Hopkins, Logan, Vaughn & Anderson, Gulfport, for Mississippi Commission on Judicial Performance.
    Shirley Payne, Jackson, for H.K. Smith.
   Appeal from Mississippi Commission on Judicial Performance.

Before ROY NOBLE LEE, P.J., and PRATHER and ROBERTSON, JJ.

Affirmed.


text:
    Lillie B. GREGORY, on Behalf of Herself and the Estate of Will Gregory, Deceased, v. Dr. Durward Stanley HARTNESS, Jr.
    No. 54223.
    Supreme Court of Mississippi.
    May 2, 1984.
    Fredrick B. Clark, Greenwood, for appellant.
    Jimmie B. Reynolds, Jr., Steen, Reynolds, Dalehite & Currie, Jackson, for appellee.
   Appeal from Circuit Court, Attala County; Niles McNeel, Judge.

Before WALKER, P.J., and DAN M. LEE and SULLIVAN, JJ.

Affirmed.