text:
    Joseph FABRE v. KAISER ALUMINUM AND CHEMICAL CORPORATION, William Cook, E.J. Cappel, Joseph Lupe and XYZ Executive Officers.
    No. CA 1130.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Harry E. Forst, New Orleans, for plaintiff-appellant.
    William S. Penick and C. William Bradley, Jr. of Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendants-ap-pellees.
    Before SCHOTT, KLEES and CIACCIO, JJ.
   CIACCIO, Judge.

Plaintiff appeals from a judgment of the district court which sustained the defendant’s exception of no cause of action and dismissed plaintiff’s suit. We reverse the ruling of the district court and remand the case for further proceedings consistent with this opinion.

The sole issue is whether the plaintiff’s petition states a cause of action for the intentional acts of the defendants, so as to avoid the exclusive remedy rule of the Louisiana Workmen’s Compensation Act. R.S. 23:1032.

Joseph Fabre was an employee of Kaiser Aluminum and Chemical Company from November 9, 1956 until February 7, 1983 when he was discharged. In 1982, plaintiff contracted hepatoma (lung cancer). He filed suit against his employer to recover workmen compensation benefits (Doc. No. 43-463C). He also filed this action for damages against his employer and certain named executive officers. Following his death on April 9, 1983 his widow was substituted as plaintiff in both lawsuits.

In this petition, the plaintiff makes the following allegations which he contends state a cause of action for the “intentional acts” of the defendants:

3.
At all jobs, plaintiff was exposed to dangerously high levels of toxic materials and other inherently dangerous materials, chemicals and irritants in the normal routine course of his work.
4.
That the defendant, Kaiser Aluminum and its executive officers were aware and should have been aware that these dangerous conditions would cause your petitioner to suffer from cancer as a result of said exposure but failed and refused to so advise your petitioner. That furthermore these defendants withheld from plaintiff knowledge of the dangers of the toxic materials to his health.
6.
That in addition to the foregoing acts of intentional concealment and fraud, these defendants are guilty of the following:
a)failing to reveal and knowingly-concealing critical medical information to your petitioner;
b) failing to reveal and knowingly concealing the inherent dangers in the use of toxic materials in their manufacturing process;
c) intentionally depriving petitioner of necessary protective equipment;
d) other acts which may be revealed at the trial of this matter.
Defendants committed these intentional acts knowing full well that plaintiff’s injuries were substantially certain to follow.

Louisiana Revised Statute Title 23 Section 1032, as amended, provides in pertinent part:

“The rights and remedies herein granted to an employee ... on account of an injury ..., shall be exclusive of all other rights and remedies ... against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal ...
“Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act. (Emphasis Supplied)

Thus, in order to avoid the general rule that an employee’s exclusive remedy against his employer for a job-related injury is workmen’s compensation, the employee must prove that the injury resulted from an intentional act. An “intentional act” within the meaning of the Louisiana Compensation Act has been construed to mean the same as an “intentional tort” with reference to civil liability. R.S. 23:1031, et seq. Bazley v. Tortorich, 397 So.2d 475 at 480 (La.,1981).

In the Bazley decision, supra at 481, the Louisiana Supreme Court defined the disjunctive test to be utilized in determining the existence of “intent”:

The meaning of “intent” is that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Thus, intent has reference to the consequences of an act rather than to the act itself. Restatement (Second) of Torts, supra, Sec. 8; LaFave and Scott, Criminal Law, Sec. 28 (1972); see also, Pros-ser, supra. Sec. 8.

We now consider the sufficiency of the plaintiffs allegations.

An exception of no cause of action tests the legal sufficiency of the petition and is triable on the face of the petition. C.C.P. Art. 927. Haskins v. Clary, 346 So.2d 193 (La., 1977). For purposes of the validity of this exception all well pleaded allegations of fact are accepted as true and if the allegations set forth a cause of action as to any part of the demand the exception must be overruled. Haskins v. Clary, supra.

Accepting as true the allegations of fact presented in plaintiffs petition, it would appear that a cause of action is stated for the “intentional acts” of the defendant, in that the plaintiff alleges that the defendant acted, knowing “full well that plaintiffs injuries were substantially certain to follow.”

The defendant, however, contends that this language merely constitutes conclu-sionary allegations and is, therefore, insufficient. We cannot agree.

This precise issue was addressed by the Louisiana Supreme Court in its latest pronouncement on this subject. In the case of Mayer v. Valentine Sugar, Inc., et al., 444 So.2d 618 (La., 1984), the court stated:

The trial court sustained the employer’s exception of no cause of action because of the conclusory manner in which he alleged the element of intent: the employee merely alleged that the employer’s officers knew to a substantial certainty that their acts in violation of safety regulations would cause an explosion which injured the plaintiff.
We agree that La.C.C.P. art. 856 is controlling and conclude that the issue presented should be decided exclusively on this ground. Art. 856, in pertinent part, provides: “... Malice, intent, knowledge, and other condition of mind of a person may be alleged generally.” The official revision comment notes that a person’s malice, intent, knowledge or other condition of mind cannot be particularized, can only be raised through a general allegation thereof, and that this has been held to be sufficient under the jurisprudence. Parks v. Winnfield Life Ins. Co., 336 So.2d 1021 (La.App. 3rd Cir.1976); Cf. Brian v. Harper, 144 La. 585, 80 So. 885 (1919). Little v. Campbell, 20 So.2d 627 (La.App. 1st Cir.1945); See Federal Rule of Civil Procedure 9(b). Consequently, it was permissible for the employee to plead the intent element of his intentional tort cause of action generally and without particularity.

Therefore, accepting the well pleaded facts in the petition as true, we find that plaintiff has sufficiently stated a cause of action for recovery due to the personal injury resulting from the intentional acts of the defendants.

As in Mayer, supra, defendant argues that it should be able to go beyond the general allegations of intent in order to demonstrate that the plaintiff’s injuries did not result from the defendant’s intentional act. The Supreme Court addressed this issue by stating:

This is the function of a motion for summary judgment, however, and not that of an exception of no cause of action. See La.C.C.P. art. 966. As Judge, later Justice, Gardozo stated: “The very, object of a motion for summary judgment is to separate what is formal or pretended in denial or averment from what is genuine and substantial, so that only the latter may subject a suitor to the burden of a trial”: Richard v. Credit Suisse, 242 N.Y. 346, 152 N.E. 110 (1926). To attain this end, art. 966 permits a party to pierce the allegations of fact in the pleadings and to obtain relief by summary judgment where facts set forth in detail in affidavits, depositions, answers to interrogatories, and admissions, omissions on file show that there are no genuine issues of material fact to be tried. See 6 Moore’s Federal Practice 56.04[1]. Mayer v. Valentine Sugar, supra at p. 620.

Defendant also argues that the petition is deficient in that it fails to allege with particularity those acts and omissions characterized as fraud. We agree that fraud must be pleaded with particularity, however such an objection is properly addressed by an exception of vagueness. C.C.P. Arts. 856, 926. Such an exception is not now before this court.

For the reasons assigned the judgment of the trial court is reversed. The matter is remanded for further proceedings consistent herewith. Costs of this appeal are assessed against defendants. Other costs to await the final outcome of the litigation.

REVERSED AND REMANDED.

      . This opinion renders moot the alternative allegation of the plaintiff that he should be afforded an opportunity to amend his petition in order to state a cause of action.


source: Caselaw Access Project

author: CIACCIO, Judge. SCHOTT, Judge,

license: Public Domain

text:
    STATE of Louisiana v. Alex WRIGHT.
    No. KA-1181.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.

      William J. Guste, Jr., Atty. Gen., and Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty. and Joanne C. Mari-er, Asst. Dist. Atty., New Orleans, for ap-pellee.
    M. Craig Colwart, Orleans Indigent Defender Program, New Orleans, for appellant.
    Before SCHOTT, KLEES and CIACCIO, JJ.
   CIACCIO, Judge.

Defendant, Alex Wright, was charged with armed robbery and was convicted as charged. R.S. 14:64. He was sentenced to serve twenty-five (25) years in the custody of the Louisiana Department of Corrections. The defendant appeals his conviction relying on two (2) assignments of error. We affirm the defendant’s conviction, amend his sentence and, as amended, the sentence is affirmed.

The facts are not in dispute:

On December 29, 1976, Carolyn Riehm and Patricia Davis were employed as tellers with the Fifth District Homestead at 512 Yerret Street in Algiers. At approximately 11:30 a.m. on that day, Ms. Davis was seated at her desk behind the banking counter when she saw a man approach. There was one other customer in the Homestead at the time. When she went to the counter to assist the would be customer, she was told that it was a robbery. Patricia Davis did not respond quickly and the male subject pulled a gun from his belt and pointed it at her. Ms. Davis then opened her cash drawer as the defendant placed a bag on the counter. When she experienced difficulty in opening the bag, the male subject placed the gun in his pocket and opened the bag. The teller then placed the money in the bag. The subject inquired whether there were other money drawers. After answering affirmatively, Ms. Davis walked to the next money drawer and emptied it. The male subject then placed the bag of money containing $8,755.00 under his arm and walked out of the Homestead. Ms. Davis had pulled the money clip which set off the alarm system and which placed the surveillance camera into operation.

Carolyn Riehm, another teller at the Homestead, was assisting a customer when she observed the subject of the robbery enter the Homestead. She next observed her fellow teller as she placed money in a bag and it was at this time that Ms. Riehm realized it was a robbery. She pulled the money clip in the cash drawer which released the alarm and the camera over the front door of the Homestead.

Sergeant Roland Foreman of the New Orleans Police Department detective bureau was assigned to investigate this case. He interviewed Ms. Davis and Ms. Riehm regarding the incident and he received a description of the perpetrator of the crime. He observed a film cartridge being removed from the surveillance camera in the Homestead. The film was taken by Officer Ortigue to the police department’s crime lab for developing. There were approximately eight photographs depicting different poses of the perpetrator of. the offense. Sergeant Foreman then had 120 copies made of the photos and the copies were distributed to the various police districts, along with a memo prepared by Foreman. Sergeant Forman took six photographs to the Homestead, and upon viewing them, Carolyn Riehm and Patricia Davis each tentatively identified the photograph of Alex Wright as being the likeness of the person who had committed the armed robbery of December 29, 1976.

Assignment of Error No. 1

The defendant excepts and assigns error to the trial court’s finding that he was sane. He also assigns error to the court’s refusal to appoint a second lunacy commission to examine him. In support of this position, counsel for the defendant argues that the defendant’s disruptive and incoherent behavior and his failure to communicate made it impossible for him to assist in his'own defense. Defendant also argues that the trial judge’s desire to clear his docket of this old case was the overriding factor in the judge’s finding of sanity and denial of the defense motion for a new lunacy hearing.

Mental incapacity to proceed exists when, as a result of mental disease or defect the defendant lacks the capacity to understand the proceedings against him or to assist in his defense. C.Cr.P. Art. 641. State v. Brogdon, 426 So.2d 158 (La., 1983). The court shall therefore order a mental examination of the defendant when it has reason to doubt his mental capacity to proceed. C.Cr.P. Art. 643. The appointment of a sanity commission rests within the sound discretion of the trial judge and it will not be .disturbed on appeal absent a clear abuse of discretion. State v. Wilkerson, 403 So.2d 652 (La., 1981). For the purpose of the insanity defense the burden is on the defendant to prove by a preponderance of the evidence that he was insane at the time of the offense and that he suffered from a mental disease or defect which rendered him incapable of distinguishing right from wrong. State v. Brogden, supra; State v. Machon, 410 So.2d 1065 (La., 1982). The determination of the trial judge as to the defendant’s competency to stand trial is entitled to great weight on review and it will not be overturned absent an abuse of discretion. State v. Brogdon, supra.

At the proceedings of the sanity hearing, Dr. Kenneth Ritter, a psychiatrist, testified that he examined the defendant on May 11, 1982. Dr. Ignatio Medina, a psychiatrist, also examined the defendant. A report dated May 16, 1982 resulted from the two examinations and a consultation between the physicians. Dr. Ritter testified that he found that the defendant was competent to proceed to trial, that he understood the nature of the charges against him and he could aid in his own defense. He further testified that he found that the defendant was neither psychotic nor mentally retarded, nor did he suffer from a mental illness or defect. The defendant had no history of psychiatric examination nor treatment. He did, however, find that the defendant had an anti-social personality and he was a drug habítate. Counsel stipulated that, if called, Dr. Medina would testify to the same findings. Based upon the medical findings of Dr. Ritter, the court found the defendant competent to stand trial.

Under these circumstances we cannot say that the court erred in refusing a defense motion for a second lunacy hearing. Defendant made no showing that a second hearing was warranted.

Although the record reveals a desire by the trial judge to clear his docket, there is no evidence that this was a factor in his refusal to grant the defendant’s motion for a second commission hearing. Rather, a clear legal basis for the decision existed, that is, that the court appointed commission had found the defendant competent and there were no grounds to doubt the defendant’s mental capacity to proceed. C.Cr.P. Art. 643.

This assignment of error lacks merit.

Assignment of Error No. 2

The defendant, through this assignment, contends that the trial court erred in admitting certain hearsay statements into evidence. He further contends that the prejudicial effect of the statement warrants a reversal of his conviction.

The line of questioning to which the defendant objects in this assignment concerns an alleged conversation between Sergeant Foreman and the defendant’s father while Sergeant Foreman was attempting to execute a search warrant on the former residence of the defendant. Over the objections of defendant, Sergeant Foreman testified that a .38 caliber blue steel revolver, a plaid suit and green V neck sweater worn by the robbery suspect (and which were the object of the search warrant) had been at the residence because the defendant’s father told him so.

In State v. Martin, the Louisiana Supreme Court discussed the issue of hearsay evidence:

Hearsay evidence is testimony in court, or written evidence, of an out-of-court statement offered to show the truth of the matter asserted therein and resting its value upon the credibility of the out-of-court asserter. State v. Martin, 356 So.2d 1370 (La.1978); McCormick on Evidence, Sec. 246 (2d ed. 1972); Pugh, Louisiana Evidence Law, 387 (1974). The traditional exclusion of hearsay evidence is based upon considerations of unreliability and of potential unfairness to the accused to permit the introduction of out-of-court statements which cannot be tested by cross-examination of the out-of-court declarant. State v. English, 367 So.2d 815 (La.1979); State v. Ford, 336 So.2d 817 (La.1976). For these reasons, hearsay evidence is inadmissible in Louisiana criminal trials unless otherwise provided by law. LSA-R.S. 15:434. 376 So.2d 300 at 308 (La., 1979).

In this case, the statement made by Sergeant Foreman and attributed to the defendant’s father was clearly hearsay evidence and as such, should have been excluded. Accordingly, the trial court erred in admitting this statement into evidence over the objections of the defendant.

Not every error by a trial court constitutes reversable error. In order to lead to a reversal, an error must affect the substantive rights of the accused. C.Cr.P. Art. 921. See: State v. Boudreaux, 396 So.2d 1303 (La., 1981). In the instant case the admissibility of the evidence could act to deprive the defendant of a substantial right guaranteed to him by the United States Constitution, Sixth Amendment, that is, the right to confront witnesses against him. In order to determine if the error is harmless we must first consider the test established for evaluating “harmless error.” The test was set forth by the Louisiana Supreme Court in State v. Gibson, 391 So.2d 421 at 428 (La., 1981).

It appears that the Chapman test, i.e., “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction” and that “the court must be able to declare a belief that [the error] was harmless beyond a reasonable doubt,” will assist this Court to fulfill both of the requirements of state law. (Quoting Chapman v. California, 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] (1967)

A further consideration is whether the error was cured, that is, whether other evidence of the truth of the out-of-court statement exists, in that the speaker was present for cross-examination or there was independent evidence which confirmed the hearsay. See: State v. Banks, 439 So.2d 407 (La., 1982).

The importance of the hearsay testimony, in this case, was that it linked the physical items to this defendant and this defendant to the crime scene. However, our review of the record indicates that there exists other evidence of the truth of the out-of-court statement, that is, independent evidence existed which confirmed the hearsay. State Exhibit # 1 was a photograph of the defendant, as he appeared, in the bank, on the day of the robbery. Additionally, the victim of the robbery, Patricia Davis, positively identified the defendant in court as being the man who robbed her and the man in State Exhibit # 1. She testified that at the time of the robbery he had a big gun with a long barrel. Additionally, she stated that during the investigation, she tentatively identified a picture of this defendant as the perpetrator of the offense and she gave a description to the police that the robber had on a plaid suit with lines, a green sweater and a tie. Additionally, a fellow bank teller, Carolyn Riehms, also testified that this defendant was the man in the picture in State Exhibit # 1 and the man who robbed the Homestead on December 27, 1976.

Under the circumstances we do not find that there is a reasonable possibility that the evidence complained of might have contributed to this conviction. Considering the independent evidence which confirmed the hearsay we conclude beyond a reasonable doubt that the error was harmless.

Assignment of Error No. 2 lacks merit.

We have reviewed this case in order to determine if the State'has proven its case beyond a reasonable doubt. The standard for this review is whether a rational trier of fact, when viewing the evidence in the light most favorable to the prosecution could have found that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (U.S., 1979). State v. Edwards, 400 So.2d 1370 (La., 1981).

In this case the accused was charged with the commission of an armed robbery. R.S. 14:64(A)

Armed robbery is defined in LSA-R.S. 14:64 Section A:

“Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another by the use of force or intimidation, while armed with a dangerous weapon.”

In this case the record reveals that eye witness testimony established that the defendant entered the Homestead, demanded money while threatening the teller with a revolver and then fled the Homestead with a bag containing $8,755.00.

Therefore, the totality of the evidence when viewed in the light most favorable to the prosecution satisfies this Court that any rational trier of fact could have found that the State proved the essential elements of the crime beyond a reasonable doubt.

Our review of the record reveals an error in sentencing. No other errors discoverable by a mere inspection of the pleadings and proceedings have been found. La.C. Cr.P. Art. 920(2).

One found guilty of the crime of armed robbery shall be subject to the following sentence:

R.S. 14:64(B):
“Whoever commits the crime of armed robbery should be imprisoned at hard labor for not less than five years and for not more than ninety-nine years without benefit of parole, probation or suspension of sentence.”

The record fails to reveal that the sentence is to be served “without the benefit of probation, parole or suspension of sentence”, as required by statute. R.S. 14:64(B). The Louisiana Supreme Court has held that the omission of this restriction will render a sentence “unlawfully lenient.” State v. Telsee, 425 So.2d 1251 (La., 1983). Although the subsequent case of State v. Napoli, 437 So.2d 868 (La., 1983) appears to be in conflict with Telsee, supra, we adopt the rationale utilized by our bréthern of the First Circuit, who followed the Telsee approach in the cases of State v. Jackson, 439 So.2d 622 (La.App., 1st Cir., 1983); State v. Thomas, 439 So.2d 629 (La.App., 1st Cir., 1983); State v. Johnson, 439 So.2d 636 (La.App., 1st Cir., 1983).

Accordingly, we find that Wright’s sentence is illegally lenient and we, therefore, amend the sentence to add the provision that this sentence shall be served “without the benefit of probation, parole or suspension of sentence.” R.S. 14:64(B).

For the reasons assigned, the defendant’s conviction is affirmed. The sentence is amended to' provide that the defendant shall serve twenty-five (25) years in the custody of the Louisiana Department of Corrections, without the benefit of probation, parole or suspension of sentence; and as amended, the sentence is affirmed.

CONVICTION AFFIRMED. SENTENCE AMENDED AND AS AMENDED IS AFFIRMED.

SCHOTT, J., dissenting in part.

SCHOTT, Judge,

dissenting in part:

I concur with the majority in all respects except the amendment of defendant’s sentence. Faced with a definitive ruling by the Supreme Court in State v. Napoli, 437 So.2d 868 (La.1983) that an illegally lenient sentence cannot be corrected when the defendant alone seeks review, we are not at liberty to disregard that ruling and follow conflicting opinions of another court of appeal. We have no alternative but to defer to the Supreme Court as we did in State v. Barber, 445 So.2d 463 (La.App. 4th Cir.1984) and State v. Tate, 444 So.2d 753 (La.App. 4th Cir.1984) where the same question was before us and we reluctantly followed State v. Napoli, supra.


author: LOBRANO, Judge.

text:
    Fred GREENUP v. Kathleen MAGINNIS and Security Insurance Company of Hartford, Connecticut.
    No. CA-1040.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    George B. Recile, Metairie, for appellant.
    James J. Morrison, Jr., New Orleans, for appellees.
    Before GARRISON, GULOTTA and LO-BRANO, JJ.
   LOBRANO, Judge.

This appeal arises out of a vehicular/pedestrian accident in which George Greenup, appellant, was injured. Pursuant to stipulation by counsel, the trial court agreed to hear the evidence on liability first, then render a decision on same before hearing the quantum issue. At the close of plaintiff’s case, a directed verdict was granted in favor of defendant-appellee. This appeal followed.

The dispositive issue of this appeal is whether there was manifest error in the trial court’s conclusion that appellant failed to prove by a preponderance of the evidence any actionable negligence on the part of the defendant driver.

On the morning of September 24, 1980, appellant, a waiter at the Court of Two Sisters Restaurant was walking to work when he approached the intersection of St. Louis and Bourbon Streets. While crossing Bourbon Street he was struck by "an automobile driven by the appellee Kathleen Maginnis. Appellant contends that after looking both ways for oncoming traffic, he stepped out onto Bourbon Street, stopping at a point approximately one step from the curb to again look when he was hit by appellee’s vehicle.

Appellee argues that appellant’s own testimony on cross examination and at an earlier deposition, indicates that after looking and not seeing her vehicle he walked into the street and was immediately hit.

Appellant was the only witness to testify, and at the conclusion of his case, the trial court stated: “I have to rule that the evidence taken most favorable in light of the plaintiff’s cáse does not establish any negligence on the part of the defendant.”

Our review of the record convinces us that this ruling was not manifestly erroneous. Canter v. Koehring, 283 So.2d 716 (La.1973).

Appellant assigns as error on appeal the trial court’s refusal to properly apply the ruling of our Supreme Court in Baumgartner v. State Farm Mutual Ins. Co., 356 So.2d 400 (La.1978). Contrary to appellant’s argument, Baumgartner, supra does not impose strict liability upon the operator of a motor vehicle, but rather only bars the use of contributory negligence as a defense in vehicular/pedestrian accidents. A plaintiff in such a case must still prove by a preponderance of the evidence some negligence on the part of the driver. Aetna Casualty and Surety Co. v. Nero, 425 So.2d 730 (La.1988).

Although we agree with appellant’s proposition that an operator of a motor vehicle is under a duty to maintain a proper lookout, and must use more than ordinary care at a cross-walk, we adhere to the view expressed in Gauthreaux v. Edrington, 220 So.2d 138 (La.App. 1st Cir.1969) wherein the court stated:

“... the jurisprudence is well established that when a motorist sees a mature adult pedestrian apparently in full possession of his or her faculties, in a position of safety, the motorist can assume that such a pedestrian will not leave this position of safety and the motorist can rely on this presumption until some unusual action on the part of the pedestrian indicates to the driver otherwise.” Id. at p. 140.

Appellant relies on his testimony and certain statements contained in the police report to sustain this burden of proving negligence. We agree with the trial court that appellant has failed in this regard.

Additionally appellant urges that the doctrine of res ipsa loquitur is applicable and the burden is shifted to appellee to exculpate herself. We disagree. The doctrine of res ipsa loquitur applies only where the following circumstances exist:

1. The defendant had exclusive control over the area;
2. The cause of the accident which resulted in damages is more properly within the knowledge of defendant;
3. All the facts and circumstances indicate that the negligence of the defendant, rather than the negligence of others, is the most likely cause of the accident. Williams v. E.J. Hull Electric Co., Inc., 433 So.2d 1097 (La.App. 4th Cir.1983).

Clearly the above requirements were not met in the instant case and thus the trial court properly refused to apply this doctrine.

Accordingly the judgment of the lower court is affirmed.

AFFIRMED.

      . Although the trial judge commented on the possible contributory negligence of appellant, it is clear his decision was based on the failure to prove any negligence on the part of appellee.


text:
    SUCCESSION OF Clarence Joseph BATISTE.
    No. CA-1060.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Rehearing Denied March 21, 1984.

      Louis H. Schultz, Metairie, for appellants.
    Edmond R. Eberle, New Orleans, for ap-pellee.
    Before GARRISON, GULOTTA and LO-BRANO, JJ.
   LOBRANO, Judge.

Decedent, Clarence Joseph Batiste, died on September 10, 1981. His second, but divorced wife, Elaine Handy Batiste, was duly appointed administratrix of his estate on December 16, 1981.

Subsequently she filed a formal proof of claim against the succession claiming that she was the owner of an undivided one-half interest in and to the estate of the decedent, including both movable and immovable property as well as a claim for administratrix fees.

Appellants, Carolyn Batiste Payne, Paulette Batiste Johnson, Lavon Batiste, Clarence J. Batiste, Jr., Ronald T. Batiste and Demetrius Batiste, the seven major children of decedent by a former marriage brought a rule opposing Elaine Handy Batiste’s proof of claim. This rule was tried together with a rule to test her surety, a rule for contempt against appellants and a rule to show cause why appellants should not be placed in possession of decedent’s estate. The trial court rendered judgment dismissing the rule for contempt, placing appellants in possession of certain movable assets of the succession already in their physical possession, continued the rule to test surety indefinitely and recognized Elaine Handy Batiste as a creditor of the estate in the amount of $9,325.00. In addition the lower court ruled that she was entitled to an administratrix fee of $1,375.00, and that the estate owed attorney fees of $3,300.00.

From this judgment, appellants assert to this court that Elaine Handy Batiste is not entitled to the sum of $9,325.00 but a lessor sum which they claim is between $1,200 and $1,500. Appellee, Elaine Handy Batiste filed a cross appeal asserting that she should be recognized as having a full one-half interest in the estate of decedent by reason of a seven year relationship with decedent as his common law wife and subsequently a one and one-half year relationship as his legal wife.

The issues presented to this Court are whether Elaine Handy Batiste is entitled to share in one-half of decedent’s estate because of a seven year common law relationship with him and whether she is a creditor of his estate to the extent awarded by the trial court.

Appellee claims that she lived with decedent from 1969 in a common law relationship until June of 1976 when they were legally married. They subsequently separated in October of 1978, and were divorced on November 26, 1980. Shortly thereafter, she reconciled with decedent, and again resided with him in a common law relationship until his death. Because of their relationship appellee argues that she is entitled to share in decedent’s estate in the same manner as his legally married spouse. In particular, she seeks one-half ownership in the residence located at 4535 Paris Avenue!

The record is clear that the residence located at 4535 Paris Avenue was purchased solely by decedent prior to his marriage to appellee and is therefore his separate property. La. C. C. Arts. 2338 and 234-1. Further, appellee’s own testimony contradicts her assertion that decedent intended that she share ownership of the property. She testified that several separations both before and after the marriage occurred as a result of arguments over the fact that her name had not been included on the title to the property. Even if we assume arguendo that such an oral agreement had existed between appellee and decedent it would have been invalid. It is well settled in Louisiana law that no oral agreement between a man and a woman who cohabitate as husband and wife and agree to split property standing in the name of one of them is a valid contract. Heatwole v. Stansbury, 33 So.2d 196 (La.1947); Foshee v. Simkin, 174 So.2d 915 (La.App. 1st Cir.1965); Chambers v. Crawford, 150 So.2d 61 (La.App. 2nd Cir.1963); Gadlin v. Deggs, 23 So.2d 704 (Orl.Cir.1945). The recent ease of Blackledge v. Schwegmann, et al., 441 So.2d 316 (La.App. 5th Cir.1983); writs denied, 443 So.2d 1122 (La.1984), rejects the claim of a common law spouse seeking one-half of the assets acquired during her relationship with a decedent. We see no reason to differ from the views expressed therein.

The question of whether appellee is a creditor of the estate for the sum of $9,325.00 is a more difficult question to answer. The judgment does not define what debts comprise this amount or how it was arrived at. No oral or written reasons for judgment were given. Appellants assert that appellee is only entitled to reimbursement for certain sums she spent for repairs and improvements on the home at 4535 Paris Avenue, while appellee asserts she is entitled to reimbursement of all sums expended by her during her relationship with decedent.

Appellee introduced a number of checks and receipts for everyday household expenses which she paid out of her separate funds throughout her eight year common law relationship with decedent. By her own testimony, she and decedent shared equally in the running of the daily affairs of the household by dividing the bills between them. She paid certain expenses, he paid others, and they shared others. For these everyday living expenses we do not see any legal grounds for her recovery.

The record reflects that during the one and one-half years of marriage certain community funds were used for the improvement and maintenance of decedent’s separate property located at 4535 Paris Avenue. We compute those sums as follows:

July 6, 1976 Iron work $ 500.00
July 20, 1976 Iron work 110.00
Aug. 19,1976 Cement work 500.00
Sept. 24, 1976 Chandeliers 85.00
Sept. 24,1976 Pest control 12.00
Jan. 27, 1977 Neuter Seed Co. 45.00
Feb. 26,1977 Neuter Seed Co. 34.00
May 7,1977 Smith Florist 21.72
Total $1307.72

Of this amount, appellee is entitled to reimbursement of one half or $653.86. La. C.C.Art. 2366.

Appellee asserts that under former La.C.C.Art. 2408 she is entitled to one-half of the enhanced value of the Paris Avenue property from the date of her marriage until the date of the dissolution of the community. We disagree. Former Article 2408 only allows an award for the increased value of separate property of one of the spouses if it is proved that the increase was not due merely to “the ordinary course of things, the rise in the value of property, or the chances of trade.” Ap-pellee produced no evidence to the effect that the increase was due in anyway to common labor, expenses or industry. See, Madere v. Madere, 310 So.2d 166 (La.App. 4th Cir.1975); writ denied 313 So.2d 835.

In addition to the $653.86 of community funds spent on decedent’s separate property, appellee is also entitled to one-half of the $5,600.00 of community funds used to pay the $200.00 per month mortgage note on the Paris Avenue residence from the date of marriage until the date of legal separation. Thus, appellee is entitled to reimbursement of an additional sum of $2,800.00. She is also entitled to the $146.46 paid for the name plate on decedent’s tomb.

As to the movables of the succession, appellee produced no evidence that either community funds or her separate funds were used to purchase, repair or improve any of the movable assets of the succession and therefore she is not entitled to any reimbursement or to be recognized as having any ownership interest therein.

Because of the complexities of this case we see no error in the lower court’s award of attorney fees and administratrix fees. Accordingly the judgment of the lower court is amended recognizing Elaine Handy Batiste as a creditor of the estate of Clarence Joseph Batiste in the amount of $3,453.86. In all other respects this judgment is affirmed.

AMENDED AND AS AMENDED AFFIRMED.

      . Former Article 2408 of the Civil Code provided:
      “When the separate propert of either the husband or the wife has been increased or improved during the marriage, the other spouse, or his or her heirs, shall be entitled to the reward of one-half of the value of the increase or ameliorations, if it be proved that the increase or ameliorations be the result of the common labor, expenses or industry; but there shall be no reward due, if it be proved that the increase is due only to the ordinary cause of things, to the rise in the value of property, or to the chances of trade."


text:
    Harold J. DELAHOUSSAYE, Joe P. McKellar, Salvador A. Tassistro, Dino R. Huy, and Amos P. La Borde, Jr. v. The LOUISIANA STATE RACING COMMISSION.
    No. CA-1134.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Paul A. Tabary, III, Sapir & Krasnoff, New Orleans, for appellees.
    John E. Jackson, Jr., Asst. Atty. Gen. and Atty. for the Louisiana State Racing Commission, New Orleans, for appellant.

      Before GARRISON, GULOTTA and LO-BRANO, JJ.
   LOBRANO, Judge.

This suit was brought on October 22, 1981 by appellees, Harold J. Delahoussaye, Joe P. MeKellar, Salvador A. Tassistro, Dino R. Huy and Amos P. LaBorde, all trainers licensed by the Louisiana State Racing Commission, applying for injunctive relief to enjoin appellant, the Louisiana State Racing Commission (hereinafter Commission) from holding any hearings on the July 17 and July 18, 1981 rulings of the Stewards at Jefferson Downs, Inc. Those rulings held each appellee to be in violation of the Rules of Racing to wit:

“Each was held in violation of the medication rule of the Rules of Racing when the sample from his horse proved positive for prednisone, a prohibited medication under the Rules of Racing.

Each ruling referred the matter to the Commission for further action. Each ap-pellee appealed the particular Steward’s ruling against him to the Commission as per La.R.S. 4:154(F) which requires that the Commission grant a hearing within ten (10) days of receipt of an appeal from a Steward’s ruling.

On July 8, 1981, shortly before the Steward’s rulings were rendered, the State of Louisiana through Governor David C. Treen enjoined the commission from meeting on July 9, 1981 or at any time thereafter until the appointment of a new commission.

After its first organizational meeting, the newly constituted commission placed upon its agenda for hearing the appeals which had accumulated due to the State’s injunction. The Commission scheduled ap-pellees’ appeals for October 1 and 2, 1981. Appellees appeared at that time prepared to present their cases, however the Commission continued the hearing until October 22 and 23, 1981. Appellees objected to this continuance. At the October 22, 1981 hearing appellees appeared, but refused to go forward with the presentation of their case on the grounds that the Commission had violated the provisions of La.R.S. 4:154(F). A temporary restraining order, as well as a preliminary and permanent injunction were issued against the Commission prohibiting them from conducting a hearing on appellees’ cases. It is from the permanent injunction that the Commission perfects this appeal.

The Commission asserts several errors on the part of the trial court. However, the appeal raises the basic issue of whether or not La.R.S. 4:154(F), creates a ministerial duty on the part of the Commission, or whether the intent of same was to provide an administrative remedy for the protection of the substantive rights of all parties. If the latter is a correct interpretation of the statute, then were those substantive rights prejudiced?

La.R.S. 4:154(F) provides:

“(F) The commission must grant a hearing within ten days of the receipt of this appeal, and must render a decision within forty-eight hours following the conclusion of the appeal hearing. Any continuance of a hearing must be reasonable in duration and for just cause.”

This Court is of the same opinion as the trial court. When the legislature said “must” it meant exactly that. The evidence is abundantly clear that appellees were adversely affected by the stewards’ ruling and they were left in a state of limbo for at least 10 weeks. Once they did obtain a hearing date it was continued by the Commission for another three weeks. Had they- received a hearing within the ten day period, or a reasonable period beyond that their substantive rights would have been resolved, and they could have proceeded accordingly. Thus, we are of the opinion that the intent of the legislative was to provide for a swift resolution of the issues. The fact that the act contains a provision permitting a reasonable continuance for just cause does not lessen that opinion.

The Commission argues that La.R.S. 4:154(F) provides for a ministerial function and that the proper remedy is a mandamus proceedings. In support of this position they cite Lemoine v. Ducote, 12 So. 939 (La.1893) wherein the court defined “ministerial act” as follows:

“A ministerial act may be defined to be one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to, or the exercise of, his own judgment upon the propriety of the Acts being done.” Id. at 940.

We feel that the provisions of La.R.S. 4:154 do not fall within the meaning of a “ministerial act”. The entire statute must be read together in order to properly understand the meaning to be given it. The act provides for the right to appeal a steward’s hearing and the method for doing so. Of importance in this regard is Subsection E which provides:

“An appeal from the decision of the stewards to the commission shall not affect such decision until the appeal has been acted upon by the commission.”

The aggrieved party, having no right to a suspensive appeal, is guaranteed a “speedy” hearing before the commission. Certainly, the ten day provision of La.R.S. 4:154(E) requires more of the Commission than just a “ministerial act”. It requires a speedy determination of the aggrieved party’s substantive rights. Failure to do so by the Commission unduly prejudices their right to pursue their livelihood.

We do not intend to imply that a continuance beyond the 10 day period will not be permitted in cases where there is sufficient cause. We do hold, however, that under the facts of this case the Commission failed to act within a reasonable period of time. This is especially true in view of the fact that appellees were ready to go forward on October 1, 1981 only to havé the Commission delay the matter for another three weeks.

We do agree with the Commission’s contention that the testimony of Salvador Anzelmo, a former legislator, is not to be considered when determining legislative intent. Ethyl Corp. v. Collector of Revenue, 351 So.2d 1290 (La.App. 1st Cir.1977), writs denied. Accordingly, we have not considered same in making our determinations herein.

The judgment of the trial court is affirmed.

AFFIRMED.

      . Rulings 46, 49, 50 and 52 of July 17, 1981; Ruling 54 of July 18, 1981.

      . The temporary restraining order was issued on October 23, 1981; the preliminary injunction was issued on November 6, 1981, after a full hearing; and the permanent injunction was issued March 31, 1983.

      . La.R.S. 4:154 provides:
      A. Except as otherwise provided by this Section, the commission’s hearings, practice and procedure and rule making procedure are as provided in Title 49, Chapter 13, administrative procedure act R.S. 49:951, et seq.
      B. A final appeal, in the case of any person penalized, or disciplined by the stewards, may be taken to the commission.
      C. Such an appeal must be filed in writing at the office of the commission within five days of the date of said penalty or imposition of said discipline.
      D. Such an appeal must be signed by the person making it and must set forth his reason therefor.
      E. An appeal from the decision of the stewards to the commission shall not affect such decision until the appeal has been acted upon by the commission.
      F. The commission must grant a hearing within ten days of the receipt of this appeal, and must render a decision within forty-eight hours following the conclusion of the appeal hearing. Any continuance of a hearing must be reasonable in duration and for just cause.

      . Although the commission argues that their tardiness was due to the appointment of a new commission by Governor Treen, there is no evidence in the record to support the "just cause” for the delay from October 1, 1981 to October 21, 1981.


author: LOBRANO, Judge. PER CURIAM.

text:
    Walter G. LESTER, Jr. v. Elaine L. LESTER.
    No. CA-0877.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Rehearing Denied March 21, 1984.
    Robert C. Lowe, Terence L. Hauver, Sessions, Fishman, Rosenson, Boisfontaine & Nathan, New Orleans, for appellee.
    Trudy H. Oppenheim, New Orleans, for appellant.
    Before GARRISON, GULOTTA and LO-BRANO, JJ.
   LOBRANO, Judge.

Elaine L. Lester, appellant, prosecutes this appeal from the decision of the trial court granting a separation from bed and board on the basis of mutual fault. Mrs. Lester contends that she was not guilty of legal fault under La.Civil Code Article 160 and thus should not be precluded from collecting permanent alimony from her former husband, Walter G. Lester, appellee.

The jurisprudence is well settled that in a domestic relations case, an appellate court will not disturb the judgment of the trial court in the absence of manifest error.

“In the area of domestic relations, much discretion must be vested in the trial judge and particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of the credibility of witnesses. The trial judge having observed the demeanor of the witnesses is in the better position to rule on their credibility_ The factual findings of the trial court are therefore to be accorded very substantial weight on review.” Pearce v. Pearce, 348 So.2d 75 (La.1977); at 78.

After carefully reviewing the record we are unable to say that the trial judge abused his discretion in weighing the evidence and finding mutual fault on the part of the Lesters.

Mr. Lester alleged, and we believe proved, a consistent pattern of nagging harrassment by his wife concerning virtually every aspect of their lives. The essentials of his testimony are as follows:

“Couldn’t stand the bickering, the tension that she was bringing, that constant aggravation, that constant telling me that I didn’t know what I was doing, that what I was doing was wrong. Anything that I suggested in our lives was wrong, whether it was raising the boy, whether it was handling the finances and the house, whether it was investments, whether it was friends, the associations I had, the business I conducted.”

In addition, Mr. Lester testified his wife physically abused him and used foul and/or obscene language to revile him.

Mrs. Lester’s reconventional demand is based on the following alleged faults of her husband: abandonment, mental cruelty and the refusal to have sexual relations. Since Mr. Lester did not appeal the finding of fault on his part, the only relevance of these issues is to determine whether they justified Mrs. Lester’s behavior, thus absolving her from legal fault. In Honley v. Honley, 416 So.2d 631 (La.App. 2nd Cir.1982) the Court held that “... a justifiable, reasonable response by one spouse to the other spouse’s initial fault which renders further marital relations insupportable does not constitute fault within the meaning of L.S.A.-C.C. Art. 160 precluding an award of permanent alimony.” Id. at 632.

We find that Mrs. Lester’s actions do not fall under the justifiable response rule enunciated in Honley but rather were of a serious nature and were independent contributing and proximate causes of the separation. As such the requirements of La. Civil Code Article 141 were met, authorizing a separation in cases of mutual fault. Taddonio v. Taddonio, 428 So.2d 486 (La.App. 4th Cir.1983).

For the above and foregoing reasons the judgment of the trial court is affirmed. Appellant to bear all costs of this appeal.

AFFIRMED.

ON REHEARING

PER CURIAM.

We deny the rehearing application of Mrs. Lester and in so doing feel compelled to respond to the “erroneous assumption” made by counsel in her application for same.

This Court did not consider the question of the “fault” of Mr. Lester, and therefore the statement made by counsel that Mrs. Lester’s nagging, etc. justifies “... the husband to have an affair and withdraw from his wife” is completely erroneous. Mr. Lester was at fault, and was a proximate cause of the dissolution of the marriage. However, so were the actions of Mrs. Lester.


text:
    STATE of Louisiana v. Warren LAWSON.
    No. KA-1267.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.

      Harry F. Connick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for appellee.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for appellant.
    Before GARRISON, GULOTTA and LO-BRANO, JJ.
   LOBRANO, Judge.

Defendant, Warren J. Lawson, was charged by bill of information with two counts of simple burglary of a dwelling on January 6, 1983 in violation of La.R.S. 14:62.2.

He was arraigned February 25,1983, and pled not guilty to both counts. On June 16, 1983, a twelve man jury unanimously found the defendant not guilty on the first count and guilty of simple burglary on the second count. On June 21, 1983 defendant was sentenced to serve twelve (12) years at hard labor in the custody of the Department of Corrections with credit for time served.

Defendant has briefed no specific assignments of error. Assignments of error neither briefed nor argued are deemed waived on appeal. State v. Kenner, 384 So.2d 413 (La.1980). Defendant requests the court to review the record for errors patent as required by La.C.Cr.P. Art. 920(2). The recent case of State v. Raymo, 419 So.2d 858 (La.1982), also requires review of a record for “sufficiency of evidence” under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and State v. Edwards, 400 So.2d 1370 (La.1981), regardless of whether counsel has moved for a directed verdict or a new trial or filed a formal assignment of error. Accordingly, this record has been so reviewed.

The bill of information was in proper form and signed by the district attorney. The trial court acted appropriately in that the defendant was present and represented by counsel at his arraignment, jury selection, trial and sentencing. The composition of the jury was proper as required by C.Cr.P. Art. 782 as well as the unanimous vote to convict on the second count. The verdict was responsive to the charge. The sentence was the maximum allowable by law and all appropriate delays were accorded the defendant in accordance with statutory parameters. As to the “sufficiency of the evidence”, the following facts and testimony were adduced at trial:

Glynn Kehlor testified that on the morning of January 6, 1983, at approximately 2:30 a.m., he heard a noise coming from just outside his bedroom window. He looked out and saw a young black man standing at the back door of the residence of his neighbor, Robert Oglesby. The man was in the process of removing the glass jalousie windows from the door. Kehlor told his wife to call the police while he continued to watch the man outside the window. After removing several glasses, the man tried to squeeze in through the open space and was in up to his waist when the weight of his body broke a glass' at the bottom of the window, creating a very loud noise. Kehlor did not see the man’s face but remembered that he was wearing a beige windbreaker and blue jeans.

The victim, Robert M. Oglesby testified that on January 6, 1983, he was awakened by the sound of breaking glass and found the jalousie louvers removed from his back door.

Officer Edward Messina testified that he and his partner were called to investigate a burglary on January 6, 1983. He stated that when they arrived at the home of Robert Oglesby, they heard the sound of breaking glass. Officer Messina ran to the side of the house and observed the defendant exiting from the glass door. A second black male was standing in the yard. Officer Messina shouted “Freeze, Police”. The defendant ran to the rear of the yard, jumped the fence and began running towards Fountainbleu St. The officer lost the defendant but proceeded to Fountain-bleu where he observed his partner chasing the defendant down Pine Street. He joined in the pursuit. The defendant was apprehended and arrested at Pine and Foun-tainbleu Streets. The second man was never apprehended.

After a careful review of the record we conclude there are no errors patent.

The defendant was charged with a violation of R.S. 14:62.2, simple burglary of an inhabited dwelling.

In order to secure a conviction under this statute, the state must prove that (1) there was an unauthorized entry of an inhabited dwelling and (2) such entry was- made with the intent to commit a felony or any theft therein. The defendant was seen entering the dwelling of Robert M. Oglesby through the back door from which he had removed several glass louvers. Oglesby testified that he did not know the defendant and had not authorized his entry. This is sufficient to establish the first element of the crime. The second element presents a slightly more difficult problem. The Supreme Court has long held that the “intent” present must be a “specific intent” to commit a felony or theft within the premises. State v. Marcello, 385 So.2d 244 (La.1980). Specific intent is defined in LSA R.S. 14:10:

“Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.”

Specific intent may be proven by circumstantial evidence which requires a stricter standard of proof then when the essential elements are proven by direct evidence.

The standard of proof under Jackson is whether viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime were proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 2783, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La.1982).

The additional standard applied where the conviction is based upon circumstantial evidence is set forth in R.S. 15:438, which provides that such evidence is set forth in R.S. 15:438, which provides that such evidence must exclude every reasonable hypothesis of innocence. The court in State v. Shapiro, 431 So.2d 372 (La.1982) has held that this statutorily-mandated standard must be applied independently of and in addition to the Jackson standard used to review the sufficiency of evidence in purely direct evidence cases. State v. Graham, 422 So.2d 123, 129 (La.1982).

In the instant case, defendant was observed entering the victim’s dwelling in the dead of night through surreptitious means. Upon detection, he fled the scene. These facts are sufficient to exclude every reasonable hypothesis of innocence and there is no basis for reversal insofar as sufficiency of evidence is concerned.

For the foregoing reasons the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . R.S. 14:62.2.
      Simple burglary of an inhabited home is the unauthorized entry of any inhabited dwelling house, apartment or other structure used in whole or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein, other than as set forth in Article 60.
      Whoever commits the crime of simple burglary of an inhabited dwelling shall be imprisoned at hard labor for not less than one year, without benefit of parole, probation or suspension of sentence, nor more than twelve years.


author: WARD, Judge.

text:
    STATE of Louisiana v. Eugene BANKS.
    No. KA-1153.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Rehearing Denied March 21, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for State of La., plaintiff-appellee.
    Elizabeth W. Cole, New Orleans, for Eugene Banks defendant-appellant.
    Before WARD, SCHOTT and BARRY, JJ.
   WARD, Judge.

Eugene Banks was charged in the Criminal District Court of the Parish of Orleans with violating La.R.S. 14:65.1, which defines and prohibits purse snatching. A jury found Banks guilty as charged, and Judge Dennis Waldron sentenced him to serve seven years at hard labor.

Before trial Banks moved for production of exculpatory evidence. He also moved for production of prior recorded statements of the State’s witnesses and, if witnesses statements were incorporated in the police report, then for production of the report of the investigating officers — all for the specific purpose of cross-examination and impeachment. Alternatively, if the State did not produce exculpatory evidence, Banks requested the Trial Judge to search the State file to determine if it contained exculpatory evidence or statements of witnesses which may be inconsistent with trial testimony-in spite of the fact trial had not taken place. The State answered that it was not in possession of any exculpatory evidence, and the Trial Judge refused Banks’s request to examine the State’s file for it. The Trial Judge then denied Banks’s motion for production of either the witnesses statements or the police report, and again declined to review the State’s file.

During trial it became apparent there were no written statements of witnesses, although a description of the perpetrator was in the police report. Banks again moved for production of the report for the purpose of cross-examining or impeaching the State’s witnesses. This motion was also denied. Banks did not request the Trial Judge to review the report in chambers, but because we believe this is implicit in the motion, we construe it also as a request for the Trial Judge to review the report in chambers and to compare any pre-trial statements with trial testimony to determine if there were material inconsistencies which would require production.

Banks first contends that the Trial Judge erred before trial when he denied the pretrial motions for production of the police report. Banks argues that the Trial Judge ' at the very least should have reviewed the State’s file and the report to determine if it contained either exculpatory evidence or witnesses’ statements that would be. useful for cross-examination. He contends denial of access to the witnesses’ statements denies him the right to effectively cross-examine witnesses, thereby abridging his constitutional rights of confrontation and due process.

Banks next contends the Trial Judge erred during trial when he refused either to order the State to produce the police report after the witnesses testified or to examine the report himself to determine if the witnesses’ pre-trial statement was materially inconsistent with the trial testimony.

Banks now asks that we remand the case to the Trial Judge and order that he review all witness’ statements contained in the police report for material inconsistencies in witnesses’ statements to determine if they should have been produced for cross-examination.

We do not believe the Trial Judge erred and we affirm.

At trial the State presented the testimony of three witnesses to the purse-snatching. Elnita Winchester, the victim, only saw the perpetrator from the back and was unable to give more than a general description of him and his clothing. She could not identify Banks as the purse-snatcher. Edward Martin, who chased the man for several blocks, could not identify Banks as the perpetrator. However, the third witness, Monica Coleman, a ten year-old niece of the victim, told the investigating officer that she saw the purse-snatcher face-to-face, and she recognized him as a former neighbor, Eugene Banks, the defendant. The investigating officer did not ask Monica Coleman to give a written statement. Although her identification of Banks was incorporated into the police report, it is not clear whether ' the officer recorded her statements verbatim or summarized them, or whether the officer merely filled out an NOPD identification form.

We consider first, the State’s duty to respond to discovery motions prior to trial. There is no constitutional requirement that the prosecution provide defense counsel with unlimited discovery of police investigatory files. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Except as expressly provided by statute, a defendant in Louisiana is not entitled to the discovery of reports, memoranda, or other internal state documents which are made by the district attorney or agents of the state, nor is he entitled to witnesses’s statements made to the district attorney or agents of the state. La.C.Cr.P. art. 723.

The Constitution of the United States, however, requires that the State produce exculpatory evidence, upon the request of a defendant; that is, the State must produce material evidence favorable to the defense which supports innocence, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and this includes evidence such as a grant of immunity which may cast serious doubt upon the testimony of a witness whose credibility may be determinative of guilt. Giglio v. U.S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

In the instant case, Banks has not shown that the State possessed exculpatory evidence. On the other hand, he could not show the existence of exculpatory evidence because he has not had access to the district attorney’s files. Nonetheless, we do not believe that he should have access. When the district attorney, as an officer of the court responds to pre-trial motions, those responses must be accepted as true. And for good reasons. If the district attorney knowingly conceals exculpatory evidence, this is prosecutorial misconduct and the charges against a defendant may be entirely dismissed. Additionally, the district attorney, as an officer of the Court and a member of the Bar, may then be disciplined by the Bar Association. Moreover, the district attorney has no reason to believe that if he conceals exculpatory evidence it will never be discovered; he does not have the only copy of police reports. Further, after a case has been concluded, police reports, although exempt from disclosure under the public record doctrine, must be produced at appropriate post trial hearings. State v. Babin, 319 So.2d 367, 375 (La.1975), Tate, J., concurring.

We believe when there is a question, out of an abundance of precaution, the district attorney should either produce the material or request a ruling by the Trial Judge, United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). State v. Babin, supra. We, however, do not believe a pre-trial inspection of the District Attorney’s file is required as a matter of Constitutional right. As a practical matter if a Trial Judge -is required to examine the State’s file before trial in every instance where defendants specifically request statements of witnesses, there will be no end, for a defendant will make such a request in every case.

Hence, Banks has not shown the District Attorney suppressed exculpatory evidence; and the Trial Judge did not err when he refused to order production of the police report or when he declined to review it for exculpatory evidence or for statements of witnesses that may be favorable or useful in cross-examination.

The more interesting question is whether during trial the Trial Judge is required to examine the State’s file in his chambers and compare a witness’ pre-trial statement with the witness’ trial testimony. In some instances, he must. State v. Ates, 418 So.2d 1326 (La.1982), requires the State either to give a State witness’ written statement to the defense for use in cross-examination, or, alternatively, to give it to the Trial Judge so that he can make an in camera examination of it, compare it with the trial testimony, and if there is a material discrepancy or omission that would create a reasonable doubt as to a witnesses credibility, the statement then must be given to the defendant for his use in cross-examination.

We, however, do not believe the rule of State v. Ates requires the Trial Judge to do so in the instant case. State v. Ates relied on United States Constitutional standards requiring disclosure of exculpatory evidence and production of witnesses’s pre-trial statements, and it cites as support Giglio v. United States, supra, and State v. Sylvester, 388 So.2d 1155 (La.1980). State v. Sylvester had, in turn, relied heavily on Judge Tate’s concurring opinion in State v. Babin, 319 So.2d 367 (La.1975). In Giglio, the Supreme Court held that a grant of immunity to a crucial witness for the government must be disclosed to a defendant for his use in cross-examination. Thus, information in possession of the Government or State that may cast serious doubt on the credibility of a crucial witness must be given to the defendant. Although Giglio does not mention a witness’s written statement, they would of necessity be included when they are materially inconsistent with the witness’s trial testimony and if they would create a reasonable doubt as to the credibility of the witness. In State v. Sylvester, the Louisiana Supreme Court approved Judge Tate’s concurring opinion in State v. Babin, which suggested a witness’ written pre-trial statement should either be given to the defendant or to the Trial Judge for his review to determine if it should be given to a defendant. In Babin, Judge Tate in turn relied on United States Court standards, incorporated in statute and now made part of 18 U.S.C. Sec. 3500, but more commonly known as the Jencks Act. State v. Babin, supra, at p. 374.

The Jencks Act requires production of statements made by government witnesses even when incorporated in official investigatory reports. But it defines a discoverable “statement” as “a written statement made by said witness and signed or otherwise adopted by him.” 18 U.S.C. Sec. 3500(e)(1). A witness adopts a statement only when he approves as his own the investigating officer’s summary, selections, and interpretations of the witnesses’s oral statements. United States v. Scaglione, 446 F.2d 182 (5th Cir.1971). Approval by the witness must be comparable to signature of the written statement, and discussions between the officer and the witness of the general substance of what the witness said does not mean the witness has adopted the statement. Moreover, a witness does not adopt a statement when the person taking the statement does not read it to the witness or when the witness does not read what the officer has written. Goldberg v. United States, 425 U.S. 94, 96 S.Ct. 1338, 47 L.Ed.2d 603 (1976).

On the other hand, a memorandum of an interview with a government witness which is not adopted by the witness is discoverable where it is a “substantially verbatim recital” of the witness’s words and does not contain comments, impressions or opinions of the investigating officer. However, there is not a substantially verbatim recital merely because a report contains phrases or isolated sentences identical to language used by the witness. United States v. Cole, 634 F.2d 866 (5th Cir.1981). Generally, a police officer’s investigative notes of a suspect’s description are not a “substantially verbatim recital” of a witness’ statement. March v. United States, 362 A.2d 691 (D.C.1976).

While not exactly analagous since the Jencks act requires production before trial, we believe the Jencks act standards are appropriate to determine when and what the Trial Judge must examine during trial, after a witness has testified, upon request by a defendant. Applying those standards, in the instant case Banks does not contend Monica Coleman signed a written statement, nor has he shown that she adopted a statement in the police report, or that the officer made a “substantially verbatim recital” of her words. Hence, we do not believe the Trial Judge erred since Banks did not show that a discoverable statement was made to the investigating officer.

There are other reasons why we do not believe State v. Ates requires the Trial Judge to examine the State’s file in this case. In Babin, Sylvester, and Ates, the signed written statements were the best evidence of any alleged material inconsistencies. On the other hand, when as in this case a witness makes an oral statement before trial, and when it is alleged to be inconsistent with trial testimony, the best evidence to impeach that witness is the testimony of the officer who took the statement, not the police report. To impeach the witness, it seems at the very least, that officer should be present in court to testify that the witness gave an inconsistent oral statement, and the officer’s police report or notes are not sufficient, they are often made in haste, sometimes inaccurate, and a report may be prepared days or even weeks after the incident.

Officer Jacqueline Davis, the investigating officer, was present in court. Not only was she present, but she testified that when she arrived on the scene, Monica Coleman gave her a description of the purse-snatcher, yet counsel for Banks very deliberately declined to question Davis about Coleman’s description. After studiously avoiding the opportunity to question her about Coleman’s description, counsel cannot now claim that Davis’s police report should have been turned over for cross-examination of Coleman.

While we believe an in camera inspection of the description contained in the report would have dispelled needless questions, we do not believe it was error for the Trial Judge to refuse to order production of the police report or to decline to review it.

'Affirmed.


author: WILLIAMS, Judge.

text:
    Moses E. WILCOX, M.D. v. The LOUISIANA STATE BOARD OF MEDICAL EXAMINERS.
    No. CA-1026.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Rehearing Denied March 21, 1984.
    Writ Denied May 11, 1984.

      Robert J. Conrad, Jr., Adams & Reese, New Orleans, for defendant-appellee.

      William E. Wright, Jr., Mary Ann McGrath Swaim, Baldwin & Haspel, New Orleans, for plaintiff-appellant.
    Before REDMANN, BARRY and WILLIAMS, JJ.
   WILLIAMS, Judge.

Following a formal evidentiary hearing, the Louisiana State Board of Medical Examiners [“the Board”] found defendant Moses E. Wilcox, M.D., guilty of “[prescribing, dispensing or administering habit-forming or other legally controlled substances in other than a legal or legitimate manner,” and “[p]rofessional or medical incompetency,” in violation of the Louisiana Medical Practice Act’s provisions La.R.S. 37:1285(6) and (12), respectively. The Board suspended defendant’s license to practice medicine for three months, confiscated defendant’s licenses to prescribe Schedule II controlled substances, and placed defendant on three years probation. On review, the trial court modified the Board’s decision, reducing the suspension of defendant’s medical license to 60 days and making the confiscation of defendant’s license to prescribe Schedule II drugs run concurrently. The court increased defendant’s probation to five years.

On appeal, defendant argues that the action taken by the Board should be voided because the Board failed to comply with the Louisiana Open Meetings Law, La.R.S. 42:5 et seq. A suit to void any administrative action for violation of the Open Meetings Law is barred if not commenced within sixty days of the disputed action. La.R.S. 42:9; Kennedy v. Powell, 401 So.2d 453 (La.App. 2d Cir.), writ denied, 406 So.2d 607 (La.1981). Defendant raised this issue long after the sixty day period had run and it is therefore barred. Additionally, defendant failed to raise this issue in the trial court.

Defendant also argues on appeal that the Board violated his due process rights; first, by presenting primary evidence concerning defendant’s case at hearings about which defendant was not notified and at which defendant was not represented; and second, because the standards applied by the Board were unconstitutionally vague.

Defendant’s first argument is merely speculative. At trial, defendant was granted a continuance specifically to review and offer into evidence portions of transcripts from the contemporaneous Board hearings of other doctors accused of prescribing controlled substances in an illegal manner, so that defendant could prove his allegations of unconstitutionality. Defendant introduced no such evidence. Further, “[a] final decision or order adverse to a party in an adjudication proceeding shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law.” La.R.S. 49:958. “Findings of fact shall be based exclusively on the evidence and on matters officially noticed.” La.R.S. 49:955(G). These provisions of the Louisiana Administrative Procedure Act direct that the Board must not take into consideration extrinsic evidence such as any comments allegedly made in the other Board hearings. The weight of the evidence against defendant found in the record is heavy and convincing. We find no reason to conjecture that the Board’s decision was based in any part upon evidence other than that presented to it at defendant’s hearing alone.

Defendant further argues that La. R.S. 37:1285(6), empowering the Board to suspend or revoke a license for “[prescribing, dispensing, or administering habit-forming or other legally controlled substances in other than a legal or legitimate manner,” is unconstitutionally vague.

This argument is without merit. The statutory provision incorporates federal and Louisiana law in the area. Federal regulations provide that:

A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual scope of his professional practice.... An order purporting to be a prescription issued not in the usual course of professional treatment ... is not a prescription ... and the ... person issuing it shall be subject to the penalties provided for violations of the provisions of law relating to controlled substances.

21 C.F.R. Section 1306.04(a). In United States v. Collier, 478 F.2d 268 (5th Cir.1973), the court stressed that “[a] physician is restricted to dispensing or prescribing drugs in the bona fide treatment of a patient’s disease.” At 272 (emphasis added). Louisiana law defines “prescribe” to mean “the act of issuing of a written request or order for a controlled dangerous substance by a person licensed under this Part for a legitimate medical purpose. The act of prescribing must be in good faith and in the usual course of the licensee’s professional practice.” La.R.S. 40:961(29). “ ‘Prescription’ means a written request for a drug or therapeutic aid issued by a licensed physician ... for a legitimate medical purpose, for the purpose of correcting a physical, mental, or bodily ailment, and acting in good faith in the usual course of his professional practice.” La.R.S. 40:961(30). We do not consider the directive that La. R.S. 37:1285(6) imposes upon the medical profession to be unconstitutionally vague.

Lastly, defendant argues that the Board has failed to meet its substantive burden of proof and that the judgment, therefore, cannot stand. In particular, defendant attacks the qualifications and credibility of the Board’s witnesses, and seeks to justify each of the prescriptions he issued for Schedule II controlled substances. After reviewing the record we find the Board’s witnesses to be qualified and credible. The physical evidence in the record, including copies of 697 Schedule II prescriptions, primarily for Preludin and De-soxyn, issued by the defendant over a 15 month period, was highly probative. The defendant maintained patients on Preludin or Desoxyn for as long as eight months. One 5'6" patient, whose weight of 127 pounds was clearly not excessive, was prescribed Desoxyn for a period of five months. In some instances, a patient was issued two prescriptions for Schedule II drugs in the same day. We cannot conclude other than that the Board has easily met its burden of proving defendant’s violation of La.R.S. 37:1285(6) and (12).

On cross-appeal, the Board submits that the trial court erred in modifying the Board’s Final Decision.

In its Reasons for Judgment, the court wrote:

The indeterminate suspension of a narcotics license raises severe constitutional questions. The court also feels that permitting the medical practice by a physician with restrictions from prescribing necessary drugs, subjects the patient to dangers of improper treatment.
For this reason, the court feels the restriction should coincide with the suspension period.
More protection for society will be accomplished in this instance by a probation of five (5) years rather than the penalty previously imposed. La.R.S. 49:964(G).

The Board refers to its clear authority to permanently revoke a license to dispense controlled substances, La.R.S. 37:1285, as necessarily affirming the constitutionality of indefinitely suspending the same license. Nonetheless, the Board points out that it advised the trial court and defendant’s attorney in open court that the suspension of defendant’s controlled substances license was only to be contemporaneous with defendant’s three year probation. The Board offered to stipulate or amend its decision to clarify that the suspension is of a three year duration, and it remains willing to do so. A court may modify an administrative agency’s decision only:

... if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
Manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record.

La.R.S. 49:964(G).

Casting judgment upon the professional behavior of a fellow member of the medical profession is a matter peculiarly within the expertise of an agency composed of members of that profession. Courts should be cognizant of the very strong presumption of validity and propriety in such an administrative action. See Fisher v. Louisiana State Board of Medical Examiners, 352 So.2d 729 (La.App. 4th Cir.1977), writ den., 353 So.2d 1338 (La.1978).

The trial court modified the Board’s decision and substituted its own judgment. We believe that the Board’s decision should be reinstated, clarifying it to indicate that the controlled substances license suspension shall run concurrently with the three year probationary period.

Accordingly, we amend the trial court judgment such that defendant’s license to practice medicine is suspended for three months and his license to prescribe Schedule II controlled substances is suspended for three years, to run concurrently with his three year probation.

AMENDED.


text:
    STATE of Louisiana v. Virgil H. STRONG.
    No. KA-0811.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Susan Scott Hunt, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
    M. Craig Colwart, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    Before REDMANN, BARRY and WILLIAMS, JJ.
   WILLIAMS, Judge.

Defendant, Virgil Strong, appeals his conviction and sentence for violation of La. R.S. 14:106(A)(1), obscenity, claiming that the State failed to sustain its burden of proving all of the elements of that crime. We affirm.

Officers Keen and Crespo were the only witnesses at defendant’s bench trial. They testified that on April 6, 1982, at approximately 5 P.M., they were working a plainclothes detail in City Park in New Orleans. As the officers were walking about twenty feet apart in the area of Palm and Roosevelt Mall, they saw the defendant pull up, driving a white Maverick. Apparently the defendant got out of his car and began following Crespo on foot. Crespo walked over some railroad tracks into an area of trees and defendant followed, passing Crespo, and stopped. Defendant was standing between the railroad tracks and 1-610, where he would have been able to see automobiles passing and where those in passing automobiles could have seen him. When Crespo passed defendant, defendant turned around. Defendant was holding his erect penis outside of his pants, masturbating. Defendant nodded to the plainclothes officer, who then arrested defendant. Defendant made no other sexual advances to Crespo. Crespo did not have an erection; nor was he sexually stimulated.

Defendant was found guilty after a bench trial and subsequently sentenced to six months in Parish Prison, suspended; was fined $250.00; and was placed on eighteen months active probation on the condition he obtain psychological counseling.

Defendant argues before this court that the State failed to prove an intent to arouse the sexual desire of another and that, therefore, all of the elements of the crime of obscenity were not met.

La.R.S. 14:106 states in pertinent part: A. The crime of obscenity is the intentional:
(1) Exposure of the genitals, pubic hair, anus, vulva, or female breast nipples in any public place or place open to public view with the intent of arousing sexual desire, or which appeals to prurient interests or is patently offensive.

Defendant was charged with committing obscenity by exposing his genitals in a public place or a place open to public view with the intent of arousing sexual desire. Defendant does not deny the fact that Crespo saw defendant’s exposed penis or that defendant exposed himself in a public park in view of passing automobiles on the Interstate Highway. Rather, defendant maintains that “the state only proved that the defendant sexually stimulated himself” and, therefore, failed in proving the third element, an intent to arouse the sexual desire of another.

The Louisiana Supreme Court has very clearly stated in State v. Walters, 440 So.2d 115 (La.1983), that “[t]he statute requires the state to prove that the offender acted with a specific intent to arouse sexual desire, either of the actor or of the viewer ” (emphasis added).

Defendant was clearly acting with an intent to arouse his own sexual desire. He had an erection and was masturbating. This was far from the case in which a man urinating in what he believes is a private place is accidentally spotted by a passer-by. See State v. Washington, 412 So.2d 991 (La.1982).

The fact that defendant followed Crespo for some time in his car and then on foot, turned toward Crespo when the officer approached him so that Crespo could see defendant masturbating, catching Crespo’s eye and nodding to him, demonstrates that defendant’s intent was not solely to arouse only himself. That he could have done without actively seeking out a viewer for his performance. However, defendant’s intent-to arouse his own sexual desire is sufficient to prove the third element of the crime of obscenity.

After viewing the evidence presented at trial in the light most favorable to the prosecution, we find that the State has proved the essential elements of the crime of obscenity beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), State v. Graham, 422 So.2d 123 (La.1982).

For the foregoing reasons defendant’s conviction and sentence are AFFIRMED.

AFFIRMED.


author: GARRISON, Judge.

text:
    Alyce McCrary, wife of/and David McCRARY v. David K. PERSONS, Space Walk Rentals, Inc. and St. Paul Fire and Marine Insurance Company v. CITY OF NEW ORLEANS and Parkway and Park Commission for the City of New Orleans.
    No. CA 0507.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1984.
    Thomas E. Loehn, Boggs, Loehn & Ro-drigue, New Orleans, for defendants/third party plaintiffs/appellants.
    Salvador Anzelmo, City Atty., Douglas P. Wilson, Chief Deputy City Atty., Avis Marie Russell, Herbert B. Bowers, III, Deputy City Attys., New Orleans, for defendants/third party defendants/appellees.
    Before GARRISON, BYRNES and WILLIAMS, JJ.
   GARRISON, Judge.

This suit is based on a vehicular collision which occurred on April 30, 1977 between David McCrary, who was traveling westbound on Pressburg Street and David Persons, who was traveling southbound on Hauck Street in a vehicle owned by Space Walk Rentals, Inc. David and Alice McCrary filed suit against Persons, his employer, Space Walk Rentals, Inc., and its insurer, St. Paul Fire and Marine Insurance Company, for injuries sustained in the accident. Mr. and Mrs. McCrary alleged that Persons disregarded a “yield” sign controlling the Hauck Street traffic entering the intersection of Pressburg and Hauck. Defendants denied liability and filed a third party demand against the City of New Orleans and the Parkway and Park Commission alleging that the reason Persons disregarded the “yield” sign was that he was unable to see the sign because it was obscured by a tree limb. Plaintiffs then amended their petition to include the City and the Parkway and Park Commission as defendants.

Defendants Persons, Space Walk and St. Paul settled with plaintiffs prior to trial for the amount of $35,442.75 and became conventionally subrogated to plaintiffs' claim against the third party defendants, City of New Orleans and the Parkway and Park Commission and were substituted as parties plaintiff upon motion of the original plaintiffs. After trial in April, 1982, judgment was rendered in favor of the City and the Parkway and Park Commission. Defendants/plaintiffs in subrogation moved for a new trial. Upon denial of this motion, they filed this appeal.

The issue on appeal is whether the trial court erred in failing to find the City and the Parkway and Park Commission liable for their failure to properly maintain city property, such that the limbs of an untrimmed tree obscured a “yield” sign from motorists’ view.

The trial court in its reasons for judgment stated:

“The issue before the Court in this case is whether or not the yield sign for traffic on Hauck Street traveling in a southerly direction at its intersection with Pressburg was obstructed and was a legal causation of the accident that ensued. The Court finds that the yield sign was obstructed by the tree but that this obstruction was not a legal cause in fact of the accident. Rather, the Court finds that the accident was caused by the sole negligence of David Persons in failing to keep a proper lookout and entering the intersection without first ascertaining that it was safe to do so.”

In reaching this conclusion, the trial court relied heavily on the case of Pepitone v. State Farm Mutual Automobile Insurance Company, 369 So.2d 267 (La.App. 4th Cir.1979), writ denied 371 So.2d 1343 (La.1979). In Pepitone, this court (J. Lemmon) held that where a traffic control signal at an intersection is obstructed, the resulting obstruction at most can be. regarded as leading a motorist into believing that there is no sign, and, therefore, that the intersection is uncontrolled. This is true only in the absence of other factors which might indicate that the street on which the motorist is traveling is the favored street. The court in Pepitone further stated that the duty of a motorist who approaches an uncontrolled intersection with a street of equal dignity is to determine that he can safely cross before proceeding into the intersection. Therefore, the municipality is under no legal duty to warn motorists approaching every apparently uncontrolled intersection that he cannot enter the intersection.

Based on the reasoning in Pepitone, the trial court concluded that:

“... Mr. Persons was not keeping a proper lookout and that if he had been keeping a proper lookout he would have had ample time to bring his vehicle under control notwithstanding the fact that the yield sign was obstructed from his vision until he was 10 feet from it.”

The Pepitone case has recently been distinguished by this court (J. Williams) in the case of Victor v. Saporito, 444 So.2d 672 (La.App. 4th Cir.1984) rehearing pending. The facts of Victor v. Saporito are on point with those of the instant case. In both cases, plaintiff was traveling on the favored street and defendant, who did not heed the traffic sign, entered the intersection and collided with plaintiff. In Victor, the court quoted the law applicable to this situation from the case of Morgan v. Allstate Insurance Company, 393 So.2d 324 (La.App. 1st Cir.1980):

“[A]n examination of the applicable cases reveal two basic situations that arise frequently in the missing stop sign cases. On the one hand there is the situation where the plaintiff is traveling on the road normally controlled by the stop sign. The plaintiff is involved in an in-tersectional collision and sues the public entity for his damages. The courts have refused to allow recovery in this situation, reasoning that plaintiffs breach of his duty in failing to approach the intersection with due care is the sole proximate cause of the accident. Although the public entity’s negligence may well be a cause in fact the courts obviously feel it inequitable to allow a negligent plaintiff to recover in this situation, (citing Pepitone).
“On the other hand, there are situations where the plaintiff is traveling on the superior road and rightfully has the right of way. The defendant is traveling on the inferior road with the missing stop sign and proceeds through the intersection without stopping. As to the innocent plaintiff, courts have been willing to find solidary liability on the part of the negligent driver and the public entity [citation omitted]. The courts reason that if the stop sign had been in its proper place, the driver would have heeded it.”

In the instant case, as in the Victor case, plaintiff was traveling on a favored road and would have had the right of way had not the City been negligent. Therefore, we reverse the holding of the trial court and we find that the City and Parkway and Park Commission are strictly liable to the plaintiff under Civil Code Article 2317 for injuries sustained in this intersectional collision.

The medical evidence introduced at trial establishes that the settlement of $35,-442.75 received by the McCrary’s from defendants/third party plaintiffs-in-subrogation was adequate compensation for their injuries.

For the reasons stated, we reverse the decision of the trial court in favor of the City of New Orleans and the Parkway and Park Commission and we render judgment as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiffs, Alyce McCrary, wife of/and David McCrary, and against defendants, City of New Orleans and the Parkway and Park Commission, in solido, in the amount of $35,442.75 (THIRTY-FIVE THOUSAND FOUR HUNDRED FORTY-TWO AND 75/100 DOLLARS) plus legal interest from date of judicial demand until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the original defendants, now plaintiffs-in-subrogation, David K. Persons, Space Walk Rentals, Inc. and St. Paul Fire and Marine Insurance Company, and against Alyce McCrary, wife of/and David McCrary, in accordance with their subrogation agreement, in the amount of $35,442.75 (THIRTY-FIVE THOUSAND FOUR HUNDRED FORTY-TWO AND 75/100 DOLLARS) plus legal interest from date of judicial demand until paid.

All parties shall bear their respective costs.

REVERSED AND RENDERED.


author: REDMANN, Chief Judge.

text:
    Samson D. THOMAS v. DEPARTMENT OF WELFARE City of New Orleans.
    No. CA-1096.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 13, 1984.

      Lawrence M. Lehmann, Midió & Leh-mann, New Orleans, for appellant.
    Bernette J. Johnson, Deputy City Atty., Douglas P. Wilson, Chief Deputy City Atty., Salvador Anzelmo, City Atty., New Orleans, for appellee.
    Before REDMANN, C.J., and BARRY and WILLIAMS, JJ.
   REDMANN, Chief Judge.

A classified employee appeals from a decision of the New Orleans civil service commission that reversed his dismissal but ordered him suspended without pay from the date of the reversed dismissal until the date of the commission’s decision. The employee seeks reversal of the suspension without pay or reduction of its period to the 120-day maximum that an appointing authority could have imposed. The employer by answer to the appeal seeks restoration of the dismissal.

Preliminarily we deny plaintiffs motion to dismiss the answer to the appeal as untimely. The answer was filed within 15 days, La.C.C.P. Art. 2133, of the lodging of the transcript portion of the record and is therefore timely; Deutsch, Kerrigan & Stiles v. Rault, 389 So.2d 1373 (La.App. 4 Cir.1980), writ refused 396 So.2d 883.

Because of the employer’s argument that the commission overlooked testimony taken before a hearing examiner on December 20, 1982, and the commission’s decision’s recital of reading transcripts of the several hearings by the examiner “starting December 3, 1982 and concluding December 15, 1982,” we remand this matter to the commission so that it may either return it to us with the commission’s certificate that the December 15 date is an error and that in fact the December 20 transcript was read and considered or, if it was not, now read and consider the December 20 transcript and re-decide the appeal.

Remanded.


author: REDMANN, Chief Judge. WILLIAMS, Judge,

text:
    Belle PLAISANCE v. LOOP, INC. et al.
    No. CA-1014.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 13, 1984.

      Gordon Hackman, Boutte, for plaintiff.
    John M. Sartin, Jr., Normann & Nor-mann, New Orleans, for defendant.
    Before REDMANN, C.J., and BARRY and WILLIAMS, JJ.
   REDMANN, Chief Judge.

Plaintiff appeals from the partial dismissal of her petition on exception of no cause of action, insofar as it attempted to state a cause of action under Louisiana’s unfair trade practices and consumer protection law, La.R.S. 51:1401 ff

We need not decide whether the exception of no cause of action, La.C.C.P. 927(4), is available against one cause of action in a petition that attempts to assert two clearly separated ones. (See Succession of Curtis, 156 La. 243, 100 So. 412 (1924), and Reeves v. Barbe, 200 La. 1073, 9 So.2d 426 (1942), both decided before adoption of the 1960 Code of Civil Procedure.) Insofar as the present petition claims (in addition to workers’ compensation) entitlement to relief because of the employer’s alleged firing of plaintiff for demanding workers’ compensation, it at least states a cause of action under R.S. 23:1361, whether or not it states a cause of action under R.S. 51:1401. Reference to any statute in a petition is mere surplusage because Louisiana is a fact-pleading state, C.C.P. 891. C.C.P. 862, says its Comment (b), “suppresses the harsh and unduly technical ‘theory of the case’ doctrine in Louisiana .... ”

Reversed.

WILLIAMS, J., concurring.

WILLIAMS, Judge,

concurring.

In Rodriguez v. American Bankers Insurance Co. of Florida, 386 So.2d 652 (La.1980), the Supreme Court of Louisiana held that an exception of no cause of action must be overruled if a petition “states a cause of action as to any ground or portion of the demand ...” Ibid. Although I have reservations about the Rodriguez decision, I feel that it is applicable to this case.