author: MARCUS, Justice.

text:
    Albert RUSHING v. DAIRYLAND INSURANCE COMPANY.
    No. 84-C-0601.
    Supreme Court of Louisiana.
    Sept. 10, 1984.

      E. Wade Shows, Timothy M. Screen, Shows & Clegg, Baton Rouge, for interve-nor-applicant.
    James E. Kuhn, Fayard, Morrison & Kuhn, Denham Springs, for plaintiff-respondent.
    Joseph G. Simmons, Owen, Richardson, Taylor, Matthews & Atkinson, Baton Rouge, for defendant-respondent.
   MARCUS, Justice.

The issue on appeal is whether a mortgagee who has provoked a sale without appraisal of the mortgaged property may recover as a loss payee under its debtor’s insurance policy.

On April 8, 1980, Albert Rushing purchased a used pickup truck from Supreme Ford, Inc. for $4,195. The credit portion of the purchase price was represented by a promissory note and secured by a chattel mortgage on the truck. Rushing obtained insurance through Dairyland Insurance Company and, pursuant to the purchase agreement, had Ford Motor Credit Company (assignee of the contract from Supreme Ford) named as loss payee under the collision and comprehensive sections of the policy. On January 13, 1982, the truck was involved in an accident and rendered a total loss. Shortly thereafter, Rushing filed suit against Dairyland for the property damage to his truck. While this action was pending, Ford instituted executory proceedings and had the wrecked truck sold at public auction without appraisal. Ford purchased the property at the sale for $414.60, the costs of the sale. Alleging an outstanding balance on the mortgage debt of $3,109.98, Ford intervened in Rushing’s suit against Dairyland to recover the insurance proceeds as a loss payee under the insurance policy.

The trial judge rendered judgment in favor of Rushing and against Dairyland for $4,000, the amount of the loss, together with $1,000 as attorney fees. Ford’s intervention was dismissed. The court of appeal amended the judgment to $3,490, reversed the award of attorney fees and affirmed the dismissal of the intervention. Because of a conflict in the circuits over whether a mortgagee in the circumstances presented may recover under a loss payable clause, we granted Ford’s application for writs to review the correctness of the dismissal of its intervention.

The Deficiency Judgment Act, La. R.S. 13:4106, provides in pertinent part:

If a mortgagee or other creditor takes advantage of a waiver of appraisement ... and the proceeds of the judicial sale thereof are insufficient to satisfy the debt for which the property was sold, the - debt nevertheless shall stand fully satisfied and discharged insofar as it constitutes a personal obligation of the debtor. The mortgagee or other creditor shall not have a right thereafter to proceed against the debtor or any of his other property for such deficiency....

It is undisputed that Ford took advantage of Rushing's waiver of appraisal and sold the mortgaged property, the wrecked truck, without appraisal. Therefore, under the Deficiency Judgment Act, the mortgage debt Rushing owed Ford stood “fully satisfied and discharged.” By operation of law, the mortgage debt was extinguished.

It has been alleged that because the debt is discharged “insofar as it constitutes a personal obligation of the debtor,” there is a legislative intent to allow an action such as this one in which the suit is not directly against the debtor. We perceive no such intent from the quoted provision. This limitation was added to the Deficiency Judgment Act in 1952 as part of an amendment which provided that if a mortgage affects two or more properties and there is a sale without appraisal of one of the properties, an in rem mortgage subsists against the remaining properties. The quoted language was appended to ensure consistency within the Act. Hence, it is inapplicable to the present situation where only one property is affected by the chattel mortgage. Therefore, the Deficiency Judgment Act is not merely a procedural bar to recovery of the debt from Rushing, it effected a full and final discharge of the obligation.

The question remains, however, of the effect of an extinguishment of the mortgage debt on the mortgagee’s rights as a loss payee. Ford’s rights arise under the loss payable clause of Rushing’s insurance policy with Dairyland, which provides: “Should you [Rushing] have a loss that is covered by the comprehensive or collision sections of this policy, we pay you and the following: Ford Motor Credit.” This is an open or simple loss payable clause as distinguished from a standard or union clause. The simple clause merely provides in effect that the proceeds of the policy shall be paid first to the mortgagee to the extent of his interest; the standard or union clause is soméwhat more specific in that it also provides that the mortgagee shall be protected against loss from any act or neglect of the mortgagor or owner. May v. Market Insurance Co., 387 So.2d 1081 (La.1980); Couch on Insurance § 42:682 (2d rev. ed. 1982).

A simple loss payable clause such as the one in the instant case is no more than a provisional appointment by the debt- or of the one to whom the proceeds of the policy shall be paid to the extent of that person’s interest. Its purpose is to protect the mortgagee’s interest, which is the balance of the mortgage debt. The interest that is insured, however, is the debtor’s interest in the mortgaged property. Accordingly, when an insured loss occurs, the insurer is liable for the value of the loss to the extent of the policy limits and must direct payment to the loss payee up to the balance of the mortgage debt. Therefore, if the mortgage debt no longer exists, the loss payee is not entitled to any of the proceeds. See Bankston v. Commercial Credit Cory., 86 So.2d 245 (La.App. 1st Cir.1956). According to Couch on Insurance, supra § 42:695:

[W]hen the mortgage debt is extinguished in any manner it necessarily follows that the mortgagee is not entitled to any proceeds of insurance under the loss-payable clause.... [The clause acts only as] a provisional assignment of the contingent proceeds of the contract, and does not substitute the mortgagee for the mortgagor as the insured party, so that the mortgagee’s interest under the policy only extends to a security for his debt, and such interest ceases when the debt is extinguished.

Similarly, according to Appleman, Insurance Law and Practice § 3403 (1970):

[T]he full or partial extinguishment of the mortgage debt itself, whether prior to or subsequent to the loss, will preclude, to the extent thereof, any recovery on the policy by the mortgagee.

Hence, since the mortgage debt owed Ford by Rushing was extinguished by operation of the Deficiency Judgment Act, Ford’s rights to the proceeds under the loss payable clause terminated.

Moreover, we reject Ford’s contention that its intervention is permitted by the Deficiency Judgment Act because its action is not against “the debtor or his property.” While the intervention against Dairyland is not against the debtor, it is against the debtor’s property. In In re Clover Ridge Planting & Manufacturing Co., 178 La. 302, 151 So. 212 (1933) (on rehearing), this court held that the proceeds of a fire insurance policy were owned by the debtor and were not assets of the mortgagee-loss payee. Hence, Ford is proceeding against its debtor’s property contrary to the Deficiency Judgment Act.

Furthermore, we find no merit in Ford’s alternative contention that its interest under the loss payable clause is a separate and independent contractual right that became vested at the time of the accident and is not affected by the existence or fluctuation of the mortgage debt after that time. Under a simple loss payable clause, such as the one in the instant case, the mortgagee-loss payee does not have a separate and independent contractual right. The simple clause “merely makes the mortgagee an appointee, whereas the standard mortgage clause operates as a distinct and separate contract.” Couch on Insurance, supra § 42:683. See Officer v. American Eagle Fire Insurance Co., 175 La. 581, 143 So. 500 (1932); Hardy v. Commercial Standard Insurance Co., 172 La. 500, 134 So. 407 (1931). Moreover, even if there was a vested contractual right to recovery, this right was lost by the mortgagee’s own actions in causing the debt to become extinguished by provoking a sale without appraisal.

Our holding is consistent with the debtor protection policy promoted by the Deficiency Judgment Act. In situations involving a mortgagee-loss payee, a sale without appraisal will often result in the debtor being harmed by receiving a smaller portion of the insurance proceeds being divided between him and the mortgagee-loss payee than if the sale was with appraisal. Further recovery by the creditor would be contrary to the spirit of the Act despite the inequities that may result in a particular case.

Accordingly, the court of appeal correctly affirmed the dismissal of Ford’s intervention.

DECREE

For the reasons assigned, the judgment of the court of appeal is affirmed.

      . 449 So.2d 511 (La.App. 1st Cir.1984).

      . Compare American Bank & Trust Co. v. Byron, 347 So.2d 850 (La.App. 2d Cir.), application not considered, 350 So.2d 676 (La.), writ denied, 351 So.2d 155 (La.1977) with Powell v. Motors Insurance Corp., 235 So.2d 593 (La.App. 1st Cir.1970).

      .450 So.2d 660 (La.1984).

      . 1952 Acts, No. 20, § 1.

      . The Deficiency Judgment Act as amended in 1952 was reworded by 1960 Acts, No. 32, § 1. The substance of the 1952 amendment was retained and now provides that if there is a sale without appraisal, the debt shall stand fully satisfied and discharged insofar as it constitutes a personal obligation of the debtor....
      If a mortgage or pledge affects two or more properties, ... the judicial sale of any property so affected without appraisement shall not prevent the enforcement of the mortgage or pledge in rem against any other property affected thereby.


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Ronald HOCUM.
    No. 83-K-0732.
    Supreme Court of Louisiana.
    Sept. 10, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Louise Korns, Kenneth Lassus, Ronald Loumiet, George Mustakas, Tom Porteous and Michael Cullen, Asst. Dist. Attys., for plaintiff-appellee.
    Ralph L. Barnett, Gretna, for defendant-appellant.
   DENNIS, Justice.

Defendant, Ronald Hocum, was convicted by a jury of inciting a felony, La.R.S. 14:28, and sentenced to eighteen months in jail. Defendant appealed to this court and assigned errors. We reverse. The trial court erred in permitting the state to introduce a statement by a prosecution witness that his grant of immunity from prosecution by the state was conditioned upon the witness taking and successfully passing a polygraph examination prior to giving testimony against the defendant.

The controversy involved in defendant’s meritorious assignment of error centers around the testimony of Clay Gaulon, defendant’s former employer, an alleged co-conspirator in the offense, and the only witness solidly linking defendant with the crime. The state’s evidence at trial showed that in February 1981 Hocum arranged to have Gaulon abduct Hocum’s 17 month old daughter from her nurse at Hocum’s house; Hocum plotted only with Gaulon but was aware that Gaulon would recruit others to assist him; Gaulon’s confederates were aware of Hocum’s identity but did not communicate directly with him; Hocum planned to obtain a large sum of money from sympathetic wealthy friends as ransom in connection with the kidnap ruse to be shared with Gaulon and his assistants’ Hocum’s scheme fell apart when the nurse called in the police, and the child was released unharmed.

Within a week of the child’s release Gau-lon and his two confederates were arrested. Upon questioning the three men confessed, naming Hocum as the author of the scheme. Gaulon and one of the men who entered Hocum’s house related their stories to the grand jury and Hocum was indicted. None of the others involved in the kidnapping have been prosecuted.

At trial Gaulon testified, identifying Ho-cum as the instigator of the conspiracy. Defense counsel vigorously cross-examined, seeking to discredit his testimony by revealing his agreement with the state to testify in return for immunity from prosecution. Following Gaulon’s testimony, the state called Tom Porteous, a supervisor with the district attorney’s office, to the witness stand. Porteous testified that he participated in negotiating the immunity agreement worked out between the state and Clay Gaulon’s attorneys and described the agreement to the jury:

It was basically five fold; that in return for his testimony that I would give him immunity provided these things happened: 1. that there was no indication that the child had been subject to any physical or sexual abuse; 2. that he in fact give us a statement and testify; and 3. that the agreement did not apply to committing perjury; and 4. that he took and successfully pass ... .

At this point defense counsel objected and, following a bench conference, requested a momentary recess to allow for discussion. The trial judge refused this request however and, in the presence of the jury ruled:

[Counsel for Defendant], you make your argument but I’m going to permit Mr. Porteous to tell us the complete agreement. The jury is entitled to know the complete agreement. Now Mr. Porteous would not be permitted to tell us what happened if a Polygraph test was administered, that is not for the jury to consider, but since it was part of the agreement he may state that. Alright, you can ask a question.

The prosecutor resumed his examination of the witness, who stated:

The 4th was that he took and successfully pass a polygraph examination and the 5th was that the immunity would only apply to the crime here present; that there was not any other criminal conduct and it would not apply to that.

Defense counsel moved unsuccessfully for a mistrial based upon “the disclosure of things that could not be brought into this Court at anytime ...” Hocum thereafter took the stand and denied any complicity in the kidnapping.

In rebuttal argument, the state’s attorney invited the jury to draw a negative inference from the fact that defense counsel did not discuss the details of the immunity agreement during his closing argument. The prosecutor then reminded the jury of Tom Porteous’ testimony: “I’ll tell you what it was ... you must successfully complete a polygraph examination before you’re allowed to go to the Grand Jury and make statements after those original statements.”

After a full reconsideration of the problem of lie detector evidence, this court recently declared it to be the judicial policy of Louisiana to exclude for any purpose polygraph evidence in criminal trials. State v. Catanese, 368 So.2d 975 (La.1979). The principal reasons for such exclusion were stated to be: (1) the propensity of triers of fact to give conclusive weight to the polygraph expert’s opinion; (2) The lack of a regulatory program for maintaining an adequate level of examiners’ ability, experience, education, integrity and availability and (3) The need for procedural rules and safeguards governing the introduction of polygraph evidence. State v. Catanese, supra at 981.

See also, State v. Whitmore, 353 So.2d 1286 (La.1978); State v. Davis, 351 So.2d 771 (La.1977); State v. Sehouest, 351 So.2d 462 (La.1977); State v. Weeks, 345 So.2d 26 (La.1977); State v. Governor, 331 So.2d 443 (La.1976); State v. Corbin, 285 So.2d 234 (La.1973); State v. Refuge, 270 So.2d 842 (La.1972).

Subsequently, this court made it clear that the Catanese rule excluding polygraph evidence for any purpose from criminal trials also operates to prevent any reference during trial to the fact that a witness has taken a polygraph examination with respect to the subject matter of his testimony. State v. Tonubbee, 420 So.2d 126 (La.1982); State v. Davis, 407 So.2d 702 (La.1981). Such a reference invites a probable inference by the jury that the witness passed the polygraph examination and therefore is testifying truthfully. State v. Davis, supra at 706; see also, State v. Refuge, supra at 846.

By informing the jury that the witness had testified under protection of a grant of immunity, that the grant of immunity was conditioned upon his taking and passing a polygraph examination, and that the grant of immunity did not apply to perjury or any crime other than the Hocum abduction, the state, in effect, informed the jury that the witness had passed an examination with regard to the Hocum case and would testify at trial consistently with his examination or expose himself to a perjury prosecution. Thus, the state’s conduct' and the trial judge’s ruling were clear violations of this court’s decisions prohibiting the use of polygraph evidence in criminal trials.

The trial court fell into error because it assumed that the state had a duty to place the entire immunity agreement before the jury. It is true that suppression of material evidence constitutes a violation of due process justifying a new trial irrespective of the good faith or bad faith of the prosecution; Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and, that when the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within this general rule. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Evidence is not admissible, however, simply because it is contained in an immunity or plea agreement which must be disclosed to the court and the defendant. References to irrelevant, prejudicial and otherwise inadmissible matters are often excised. See, e.g., United States v. Roberts, 618 F.2d 530 (9th Cir.1980); United States v. Arroyo-Angulo, 580 F.2d 1137 (2nd Cir.1978). Consequently, the state was obliged to disclose the terms of its immunity for testimony agreement with its witness, but that duty did not make evidence of a polygraph examination admissible or give the state the right to introduce it over defendant’s timely objection.

We do not, however, automatically reverse a conviction whenever an impermissible reference is made to the occurrence of a polygraph examination during a criminal trial. A reversal and a new trial is required only if there is a reasonable possibility that the error complained of might have contributed to the conviction. State v. Gibson, 391 So.2d 421 (La.1980).

Here tke state’s case against Ho-cum depended almost entirely on Gaulon’s testimony; without it there could have been no indictment and no evidence to carry the case to the jury. Gaulon’s credibility as a witness was therefore an important issue in the case, and there is more than a reasonable possibility that the jury’s knowledge that Gaulon had successfully passed a polygraph test on the subject of his testimony could have affected its judgment and contributed to its verdict.

The judgment of conviction is therefore reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.


author: DIXON, Chief Justice. CALOGERO, Justice,

text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General, The Department of Natural Resources and the State Mineral Board v. BOARD OF COMMISSIONERS OF the ORLEANS LEVEE DISTRICT.
    No. 84-C-0312.
    Supreme Court of Louisiana.
    Sept. 10, 1984.
    Rehearing Denied Oct. 4, 1984.

      William J. Guste, Jr., Atty. Gen., Gary L. Keyser, David C. Kimmel, Michael 0. Hesse, Robert H. Carpenter, Asst. Attys. Gen., for applicants-plaintiffs.
    Richard J. McGinity, Baldwin & Haspel, Wilson S. Shirley, Jr., Lawrence K. Benson, Jr., David N. Schell, Jr., Milling, Benson, Woodward, Hillyer, Pierson & Miller, New Orleans, for respondent-defendant.
   DIXON, Chief Justice.

The State of Louisiana seeks a judgment declaring it the owner of those portions of the bed and bottom of Lake Pontchartrain situated in Orleans Parish which have not been reclaimed by projects of the Orleans Parish Levee Board. In addition, the state ' seeks a judgment declaring it the owner of mineral rights to those areas which have been reclaimed. The levee board answers and seeks a judgment declaring it the owner of all lands and lake bottoms within its jurisdiction. The levee board’s jurisdiction (and the area in dispute in this case) is between the western boundary of Orleans Parish (West End) and the line separating Township 11 South, Range 12 East, from Township 11 South, Range 13 East (near Paris Road), out to a distance of three miles from the 1918 shoreline of Lake Pontchartrain.

The trial judge declared the state owner of those areas which had not been reclaimed by the board and recognized the state’s mineral rights to such areas. He declared the board owner of the mineral rights to those areas which had been reclaimed and remain under control of the board. The Court of Appeal reversed and declared the levee board owner of the entire three mile area. 444 So.2d 1313 (La. App.1984). Upon application of the state, we granted writs. 446 So.2d 1217 (La. 1984). We reverse and reinstate the judgment of the trial court.

The parties have stipulated to the correctness of a map which is a part of the record. The map delineates the 1918 shoreline, the extent of the area reclaimed, and the areas of the lake which were dredged in order to create the fill used in the reclamation projects. These projects resulted in the creation of the lakefront area from West End to the Industrial Canal. The shoreline east of the Industrial Canal, except for the Lakefront Airport and Lincoln Beach, is the same as it was in 1918.

The source of the dispute lies in the language of the grant of authority from the state to the levee board over the three mile area. This authority began as an amendment to the 1913 Constitution which was approved by the people in 1916. See Acts 1916, No. 203. This amendment was then carried forward as Art. 16, § 7 of the 1921 Constitution. The levee board was given the power to “construct and maintain levees ... along, over and in the bed of Lake Pontchartrain at such distance from the present shoreline ... not to exceed twenty-five hundred feet.” La. Const, of 1921, Art. 16, § 7(a). The board was also given a right of way over any public land, including the bottom of the lake, which the board deemed necessary to carry out its purposes. La. Const, of 1921, Art. 16, § 7(b).

In 1922, the people adopted an amendment to this section. See Acts 1922, No. 106. The power of the board was enlarged to include construction of “seawalls, jetties, and other works,” but the twenty-five hundred foot restriction was continued. La. Const, of 1921, Art. 16, § 7(a) (1922). In addition to the right of way over public land previously granted, the provision also granted the board title to all lands within any “levees, embankments, retaining walls and sea walls” constructed by the Board. La. Const, of 1921, Art. 16, § 7(b) (1922).

In 1928, the people again adopted an amendment to this section. The power of the board was expanded to include the right to locate and relocate improvements, to construct breakwaters and water basins, and to carry out dredging operations. Additionally, the territorial limits of the board’s power to conduct such operations were enlarged to include an area three miles from the shoreline (as opposed to the previous twenty-five hundred foot limitation). La. Const, of 1921, Art. 16, § 7(a) (1928). The amendment gave the board title to public things “within the area of the said works of reclamation and improvement.” Id. § 7(e). The language granting a right of way was removed, and the board was given title to all public property necessary for the board’s purposes, to all lands reclaimed or filled in, and “in and to all lands lying within the territorial limits of said project.” Id. § 7(h). The board was given the power to sell or lease any such lands reclaimed; however, the board and the state were prohibited from reclaiming any more land or constructing any other works beyond a “front line of development,” once such a line was established by the board’s reclamation activities. Id.

Pursuant to La. Const. Art. 14, § 16(A)(12) (1974), these provisions, renumbered in statutory form and with stylistic changes, were transferred to the Revised Statutes dealing with the Orleans Levee Board (R.S. 38:1231-48). See Acts 1975, No. 729. The former constitutional provisions were inserted as R.S. 38:1235.1 to 1235.3. The relevant provisions to this dispute are therefore contained today in the Revised Statutes and are subject to change by legislative action. (Words in brackets indicate language in the 1928 amendment).

Section 1235.1(A) provides:
“... The board shall have full and exclusive right, jurisdiction, power, and authority to locate, relocate, construct, maintain, extend, and improve levees, embankments, seawalls, jetties, breakwaters, water-basins, and other works in relation to [this project] such projects, and to conduct all dredging operations necessary in connection therewith or incidental thereto, along, over, and on the shores, bottom, and bed of Lake Pontchartrain in the parish of Orleans from its western boundary to the boundary line separating township 11 south, range 12 east, from township 11 south, range 13 east, at a distance not to exceed three miles from the present shore line, as the board may determine, ...”
Section 1235.1(F) provides:
“All property owned by the state or the title to which is in the name of the state, and all property which by its nature, situation, and location is not susceptible of private ownership under the present laws and constitution of the state, and within the area of the [said] works of reclamation and improvement, is specifically vested in the levee board.”

Section 1235.2(A) (entitled “State land grants”) provides:

“To enable the board to perform the work herein provided for, to assist in defraying the cost and expenses thereof, and to carry out the purposes of this and other laws, the state of Louisiana hereby grants and releases to the board the title of the state in and to all public property necessary for the purposes hereof and all lands reclaimed or filled in within any levee embankments, slopes, retaining walls, seawalls, and breakwaters constructed hereunder and in and to all lands lying within the territorial limits of [said] a project_”
Section 1235.2(B) provides:
“... However, when the board has established and located the front line of the development in the bed of Lake Pontchartrain ... and has sold, leased, or otherwise disposed of any land or granted any rights based upon the line or location, or when any party, for a valuable consideration, has acquired rights based upon the line or location, then no further reclamation shall be made or other works constructed by the board beyond the established front line or location in the bed of the lake ...”

What these provisions mean with respect to the issues presented can be said, in the words of Civil Code article 16, to be “dubious.” In such a case, “their meaning may be sought by examining the context with which the ambiguous words, phrases and sentences may be compared, in order to ascertain their true meaning.” Id. In addition, a court should consider the reason and spirit of a law, “or the cause which induced the Legislature to enact it.” C.C. 18. Constitutional provisions, no less than other laws, should be construed so as to give effect to the purpose indicated by a-fair interpretation of the language used. See Barnett v. Develle, 289 So.2d 129, 146 (La.1974). In the event of conflict or inconsistency, provisions should be construed, if possible, to allow each provision to stand and be given effect. Id.

The board’s strongest argument, and the one found convincing by the Court of Appeal, is based on R.S. 38:1235.2(A), the actual land grant. The board reads it to contain three distinct grants: “[1] to all public property necessary for the purposes hereof [2] and all lands reclaimed or filled in ... and [3] in and to all lands lying within the territorial limits of [said] a project.” The board argues that three grants are meant, each moving progressively further from the shore. The grant in the third clause, however, of all lands lying within the territorial limits of the “project” surely was not intended to include all land from the 1918 shoreline to three miles out. Such an interpretation would necessarily include any reclaimed areas, and would render clause [1] and clause [2] redundant. If the intention was to grant title to the levee board over the entire three mile area, and if “project” means the entire area, then the language of clause [3] above would have sufficed.

It is more reasonable to assume that “project” means the area on the shore side of any front line which the board might establish. The area beyond such a line, except for dredging, is precisely where there would be no “project.” Such a line would be where the “project” ends.

Such an interpretation would not reduce clause [3] to “surplusage,” as argued by the board. A reading of the provisions leads to the conclusion that a certain amount of redundancy exists, possibly due to an overabundance of caution. Clause [3] is more reasonably read as a sort of residuary clause which makes clear that all lands within a reclamation project would be owned by the board.

This is reinforced by R.S. 38:1235.1(F), a somewhat curiously placed provision which grants title to public things within the area of works and reclamation. Though not in the section entitled “land grants,” this provision is indisputably a land grant of public things. See C.C. 450. A reasonable reading in this case does not compel a conclusion that each phrase refers to separate parcels of public property. R.S. 38:1235.-1(F) is indistinguishable from clause [2] above in R.S. 38:1235.2(A).

A reasonable view of the evolution of the amendments indicates that the legislature and the people realized that the increasingly ambitious nature of the board’s plans required a grant broad enough to allow major dredging operations. The twenty-five hundred foot area was clearly inadequate to provide enough fill. At the same time, the need to have to come to the people periodically in the form of a constitutional amendment to gain increased authority was undesirable. Already, three amendments in twelve years had been necessary. The 1928 amendment envisioned subdivisions, an airport, parks and golf links, among other things. See R.S. 38:1235.1(B)(3) and (C). R.S. 38:1235.1 generally confers on the board the power and authority within the three mile area to carry out its plans. It does not grant title to anything except public things within the area of reclamation and improvement. R.S. 38:1235.1(F). It is significant that authority to conduct dredging operations was conferred by the same amendment which increased the board’s authority to the area three miles from the 1918 shoreline.

In making such a grant of authority, the legislature and people, no doubt realizing the amount of discretion they were vesting in the board, attempted to provide safeguards to control such discretion: plans were required to be submitted to the Board of State Engineers (R.S. 38:1235.1(A)); development was to occur in stages and the area was divided into zones, the westernmost of which was to be completed first (R.S. 38:1235.1(B)); the public bid law would apply (R.S. 38:1235.1(1)); and a commission composed of persons from real estate, business and politics were given the power to approve a general plan of disposition for reclaimed land (R.S. 38:1235.2(A) and (D)).

We conclude that the intent of these provisions was to provide the board with administrative authority over an area large enough to carry out its ambitious development plans without the need for periodic constitutional amendments. This purpose has been met; no further changes in the board’s authority have been necessary. In order to finance the project, the board was given title to those areas reclaimed, and the board was given the power to alienate what otherwise would have been a public and inalienable thing, namely, the shore, bed and bottom within such reclaimed areas. Rather than set an exact line in the Constitution, the people and legislature left it to the board’s discretion how best to carry out the plans in light of the financial, physical and engineering realities of such a project.

There is a strong public policy in this state that control of public things should remain in the hands of the state, absent a clear and unambiguous intent to relinquish such control. Cf. La. Const. Art. 9, § 3 (1974); Gulf Oil Corporation v. State Mineral Board, 317 So.2d 576 (La.1975). Although the board is itself a state agency and the lands involved remain public things, analogous policy considerations and reasoning should apply with respect to any grant from the state to such an agency. The grant in this case is neither specific nor express, and it should not be presumed or implied. Cf. Gulf Oil Corporation v. State Mineral Board, supra, at 589. Read in their entirety, the provisions do not evince an unambiguous intent to grant to the board rights of ownership over areas beyond the front line of development.

For the reasons assigned, the judgment of the Court of Appeal is reversed, and the judgment of the trial court is reinstated:

“IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the State of Louisiana, the Department of Natural Resources and the Louisiana State Mineral Board, declaring and recognizing the right of the State of Louisiana to the ownership of that portion of the bed and bottom of Lake Pontchartrain situated in Orleans Parish which has not been reclaimed or filled in by the Board of Commissioners of the Orleans Levee District in connection with any authorized levee project.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the State of Louisiana, the Department of Natural Resources and the Louisiana State Mineral Board, recognizing the right and authority of the Louisiana State Mineral Board to enter into leases for the development of the mineral resources of that portion of the bed and bottom of Lake Pontchartrain situated in Orleans Parish which has not been reclaimed or filled in by the Board of Commissioners of the Orleans Levee District in connection with any authorized levee project.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the Board of Commissioners of the Orleans Levee District declaring and recognizing the right of the Board of Commissioners of the Orleans Levee District to the ownership of the mineral rights to that portion of the bed and bottom of Lake Pontchartrain situated in Orleans Parish which has been reclaimed or filled in by the Board of Commissioners of the Orleans Levee District in connection with any authorized levee project.”

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

I consider the majority opinion a strained interpretation of La. Const, art. 16 § 7(h) (as amended in 1928). It provides in pertinent part:

State land grants. To enable the said Board to perform the work herein provided for and to assist in defraying the cost and expenses thereof and to carry out the purposes of existing laws and this Article of the Constitution, the State of Louisiana hereby grants and releases to said Board the title of the State in and to all public property necessary for the purposes hereof and all lands reclaimed or filled in within any levee embankments, slopes, retaining walls, sea walls, and breakwaters constructed hereunder and in and to all lands lying within the territorial limits of said project and hereby releases said land from any public trust or dedication.... (Emphasis provided)

It is hard for me to imagine how the Constitution could have more explicitly granted title to the Orleans Levee Board of the state property at issue than to include (1) all public property necessary for the purposes hereof, (2) all lands reclaimed or filled in within any levee embankments, etc. constructed hereunder, and (3) all lands lying within the territorial limits of said project. From the history of art. 16, it becomes apparent that the initial grant of a right of way was gradually expanded by constitutional amendment to encompass title to the full extent of the so-called Lakefront Improvement Project.

Furthermore, comparison with the analogous granting authority to the Public Improvement Districts within Jefferson Parish reveals that that grant only included “lands lying within the territorial limits of said project, when said land shall have been reclaimed and filled in” and reserved to the state of Louisiana “the mineral rights on any and all said lands.” La. Const, art. 14 § 38 (1921). It must be assumed that were the grant to the Orleans Levee .Board to include only that portion of the lake bed actually reclaimed, the language of their grant would have paralleled that to the Jefferson Improvement Districts, which left no doubt as to its extent.

And, in any event, should not the majority at least concede that title to the lake bed from a line east of the industrial canal to the eastern end of the project area, where the development is not complete and no “front line” has been established, is yet in abeyance?

For these and further reasons assigned by the Court of Appeal, I respectfully dissent.

      . Both parties refer the court to the provisions of La. Const, of 1921, Art. 14, § 38(a), (d) and (g) (1952). (See Acts 1952, No. 529, adopted Nov. 4, 1952). These provisions unambiguously anticipate and resolve the issues in the present case with regard to Jefferson Parish Improvement Districts along Lake Pontchartrain. Both parties seek to have the court draw opposite inferences based on the clarity of these provisions as opposed to those in this case. However, little weight may be attached to these provisions since they were drafted and adopted some twenty-four years after the ones at issue here. They were, in addition, amended by Acts 1964, No. 555, adopted Nov. 3, 1964 and by Acts 1966, No. 554, adopted Nov. 8, 1966. They have not yet been reenacted as statutes as provided for in La. Const., Art. 14, § 16(A)(10) (1974). See La. Const, of 1921, Art. 14, § 38 (West Supp.1984) (Constitution Ancillaries).
      In light of our ultimate holding in this case, it is, however, significant that the people and legislature, in the Jefferson provisions and in those referred to in State v. Grace, 161 La. 1039, 109 So. 830 (1926), provided for the issuance of patents for the reclaimed land by the Register of the State Land Office whenever they unambiguously contemplated an actual and complete transfer of ownership rights to a state agency. E.g., La. Const, of 1921, Art. 14, § 38(d) (1952 and 1966).
      The parties have not cited to the court any such provision in the present case, nor has one been found. Neither is there any such patent in the record for lands reclaimed by the board, much less one for those portions of the lake beyond the front line of development.

      . The provision at issue was not included in the 1974 Constitution, but was enacted as R.S. 38:1235.2(A).


author: DENNIS, Justice. MARCUS, J.,

text:
    Mary McCASTLE, et al v. ROLLINS ENVIRONMENTAL SERVICES OF LOUISIANA, INC., et al.
    No. 83-C-2621.
    Supreme Court of Louisiana.
    Sept. 10, 1984.
    Rehearing Denied Oct. 4, 1984.

      Stephen M. Irving, Dennis Whalen, Baton Rouge, for applicant.
    E. Burt Harris, Trial Atty., Walter J. Hryszko, Elliott G. Courtright, New Orleans, Wallace Hunter, Baton Rouge, for respondents.
   DENNIS, Justice.

In this case plaintiffs brought a suit for injunctive relief and damages alleging that a chemical land farming operation near their homes had polluted the air and caused them injury. See also 415 So.2d 515. The plaintiffs petitioned for certification of a plaintiff class for a class action pursuant to La.C.C.P. articles 591-92. The trial court sustained one defendant’s exception to the class action on the grounds that the members of the proposed class were not easily identifiable, that there were variations in the plaintiffs’ injuries, and that' the plaintiffs had prayed for large amounts of individual damages. A majority of a divided court of appeal affirmed because the defendants’ defenses would not be generally applicable to the entire class, the plaintiffs alleged 129 tortious acts, the vast majority of the class has demonstrated no interest in controlling prosecution of its claims, a class action was not in the interest of judicial economy, and the class action would present management problems. We reverse. The pleadings and the showing in this case indicate clearly that a class action should be allowed because the class is so numerous that individual joinder is impractical, the representative parties are proper champions of the class, and a common character exists among the rights of the members of the class, as evidenced by the superiority of the class action over other available adjudicatory methods for effectuating substantive law, judicial efficiency and individual fairness.

FACTS

Plaintiffs have made the following allegations as the basis of their suit. Plaintiffs are among approximately 4000 residents of East Baton Rouge Parish who live near a hazardous waste disposal facility owned by Rollins Environmental Services, Inc., and operated by Rollins Environmental Services (Louisiana) Inc. Exxon Corporation is the generator of chemical sludge material which is being land farmed (a method of hazardous waste disposal) by Rollins at its facility. On numerous occasions between March 6, 1980 and February 21, 1981, the land farming operation produced nauseating chemical fumes causing plaintiffs’ illness and discomfort with burning eyes, sore throats, and upset stomachs. The chemical fumes have generally increased the risk of diseases, such as asthma, cancer and heart disease. Rollins and Exxon have knowledge of the pernicious qualities of the chemical sludge and its effects upon the residents but nevertheless intend to continue supplying and land farming the waste material. Exxon has, in fact, given Rollins financial and technical supervisory assistance in establishing and maintaining the land farm operation.

Plaintiffs requested certification of the class consisting of approximately 4,000 persons residing in the communities near the defendants’ hazardous waste and land farm facility. On behalf of this class plaintiffs seek monetary damages and injunctive relief ordering defendants to shut down its hazardous waste and land farm operations.

A hearing was held on the exception of improper use of a class action. The testimony at that hearing indicates that the members of the class live in a low income area. The odors and fumes which were present on various occasions in the area were probably released from the defendants’ land farm. The disposal of hazardous wastes at the land farm facility was an on-going operation. The continuous practice of land farming chemical waste was apparently the cause of the odors and fumes affecting the residents. The effects of the fumes from the land farm on individuals in the area included the tightness of chest, difficulty in breathing, headaches, and tearing of the eyes. Although the plaintiffs alleged other effects, these are the only effects testified to at the hearing. The testimony also indicates that the fumes were present in the area on numerous occasions and that the location and density of the fumes sometimes depended on the wind conditions. After the hearing the trial court sustained the exception and dismissed plaintiff’s suit as a class action. On appeal, the court of appeal affirmed. McCastle v. Rollins Environmental Services of Louisiana, Inc., 440 So.2d 812, 814 (La.App. 1st Cir.1983). We granted certio-rari to review the previous courts’ selection and application of class action precepts.

DISCUSSION

Basic Class Action Rules

The Louisiana class action has been discussed extensively in three previous opinions of this court. State ex rel Guste v. General Motors Corp., 370 So.2d 477 (La.1978) (on rehearing); Williams v. State, 350 So.2d 131 (La.1977); Stevens v. Board of Trustees, 309 So.2d 144 (La.1975). As stated in those cases La.C.C.P. articles 591(1) and 592 establish the basic requirements for a class action:

1. A class so numerous that joinder is impracticable, and
2. The joinder as parties to the suit one or more persons who are
(a) members of the class, and
(b) so situated as to provide adequate representation for absent members of the class, and
3. A “common character” among the rights of the representatives of the class and the absent members of the class.

See Guste, supra, 370 So.2d at 487; Williams, supra, 350 So.2d at 133; Stevens, supra, 309 So.2d at 150.

The court of appeal acknowledged that the first two requirements for a class action—impracticability of joinder and adequate representation—are present. See McCastle, supra, 440 So.2d at 814 (La.App. 1st Cir.1983). Thus, the appellate court’s decision was based on a finding that a “common character” was not present among the rights of the would-be class members.

Overview of “Common Character” Analysis

Lawyers for a long time have perceived that some litigious situations affecting numerous persons “naturally” or “necessarily” call for unitary adjudication. Ka-plan, Continuing Work of the Civil Committee: 1966 Amendments to the Federal Rules of Civil Procedure (I), 81 Harv.L.Rev. 356, 386 (1967). Modern practice starts with the well-agreed proposition that there is no basis for a class action unless the class is so numerous as to make individual joinder impracticable, questions of law or fact exist common to the class, and the representative parties are proper champions of the class. Kaplan, supra, at 387. Fed.Rule 23(a); La.C.C.P. arts. 591-92. But something else needs to be added to make for a “natural” or “proper” class action. Kaplan, supra, at 387.

Under Louisiana practice there must be a “common character” among the rights of the representatives and the absent members of the class in order to make for a proper class action. La.C.C.P. art. 591(1). This is not merely a reappearance of the common questions threshold requirement noted above. The requirement of a “common character” restricts the class action to those cases in which it would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results. Cf. Proposed Amendments to Rules of Civil Procedure for the United States District Courts, Rule 23, Advisory Committee’s Note, 39 F.R.D. 69, 102-103. Its object is to identify the cases where a class action promises important advantages of economy of effort and uniformity of result without undue dilution of procedural safeguards for members of the class or for the opposing party. It invites a close look at the case before it is accepted as a class action and even then requires that it be specially treated. Cf. Kaplan, supra, at 389-390.

When a “common character” of rights exists, a class action is superior to other available adjudicatory methods for the purpose of promoting the basic aims and goals of a procedural device: (1) effectuating substantive law; (2) judicial efficiency; and (3) individual fairness. Guste v. General Motors Corp., 370 So.2d 477, 488 (La.1978); Williams v. State, 350 So.2d 131, 133-34 (La.1977); Stevens v. Board of Trustees, 309 So.2d 144, 151 (La.1975). Therefore, if the superiority of a class action is disputed, the trial court must inquire into the aspects of the case and decide whether the intertwined goals of effectuating substantive law, judicial efficiency, and individual fairness would be better served by some other procedural device.

Many class action related circumstances in a particular case may contribute toward or detract from the intertwined goals. Non-exhaustive lists of some of the factors, which may appear in any given case with varying degrees of intensity, are set forth by Federal Rule 23(b) and the Uniform Class Actions Act and have been suggested for use by this court. See Stevens, supra, 309 So.2d at 150-51; Williams, su pra, 350 So.2d at 134, n. 3. After identifying the listed factors and any relevant unlisted ones that may be present in the case, the trial court must evaluate, quantify and weigh them to determine to what extent the class action would in each instance promote or detract from the goals of effectuating substantive law, judicial efficiency, and individual fairness. Upon arriving at an estimate of the class action’s overall effectiveness in furthering the intertwined goals, the court must compare this with its assessment of the effectiveness of other adjudicatory methods and decide whether the class action is the superior procedural device.

In determining whether a class action in a particular case will promote enforcement of legislative policy, fairness and efficiency, the trial court must actively inquire into every aspect of the case and should not hesitate to require showings beyond the pleadings. Stevens, supra, 309 So.2d at 152. Once the threshold requirements have been met and a prima facia showing for a class action has been made, the court must assume primary responsibility for directing the inquiry because of the effects its decision may have upon substantive law, absentees, and the court system.

A Class Action Is Superior to Other Procedural Methods

The circumstances shown here clearly favor allowance of a class action. A consideration of the pleadings and the showing in light of the pragmatic factors suggested by Williams and Stevens predominately indicates that a class action is superior to other procedural methods available for the fair and efficient adjudication of the controversy and the effectuation of substantive law.

Effectuating Substantive Law

Plaintiffs have asserted causes of action in behalf of a class of some 4000 residents and property owners for personal injuries caused by the emission of noxious odors, fumes and gases from defendant’s hazardous waste land farming operation. The essence of the causes of action, which arise under Civil Code articles 667, 668, 669, and perhaps 2315 as an abuse of right, see Hero Lands Company v. Texaco, 310 So.2d 93 (La.1975), is that the defendants conducted activities on their premises which unreasonably inconvenienced and personally injured the members of the class for which the defendants are strictly liable. See Hero Lands Company v. Texaco, Inc., supra; Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971).

In assessing the use of a class action in a particular case from the standpoint of effectuating a substantive policy, it may prove helpful for the court to bear in mind two principal ways in which the class action serves this goal:

First, to the extent that they open courts to claims not ordinarily litigated, class actions enable courts to enforce policies underlying causes of action in circumstance where those policies might not otherwise be effectuated. Second, to the extent that they enable courts to see the full implications of recognizing rights or remedies, class action procedures assist courts in judging precisely what outcomes of litigation would best serve the policies underlying causes of action. Class action procedures are fair because courts are more likely to see both the significance of the claims of a plaintiff and the consequences of imposing liability upon a defendant, and thus are more likely to arrive at a substantively just conclusion. Through class action procedures, moreover, the interests of absentees, who may be affected by the litigation regardless of its class nature, are given representation in the litigative process, and thus are more likely to be given their due.

Developments in the Law — Class Actions, 89 Harv.L.Rev. 1318, 1353 (1976) (the quoted language outlines the commentators’ substantive theory of class actions).

On the other hand, a class action in some instances may tend to skew, rather than to implement faithfully, the legislative policy underlying a cause of action. For example, it is arguable that the increased deterrent effect a class action creates may intensify the already heightened deterrent effect of a stiff penalty provision to a point perhaps counterproductive to statutory policies, thereby discouraging legitimate, socially useful activities. See Developments, supra, at 1361. By relating the pertinent circumstances of a case to these ways in which a class action may promote or distort the implementation of substantive law, the court can more effectively evaluate the extent to which this important goal would be advanced or deterred by a class action.

The evidence taken at the hearing on defendant’s exception to plaintiffs’ improper use of a class action indicates that in all likelihood the vast majority of the some 4000 claims asserted are for unreasonable inconvenience and minor, temporary illnesses resulting from inhalation of the odors, fumes and'gases emitted by defendants’ land farm. Although this fact must be considered in determining the propriety of a class action, our conclusion that most of the claims are relatively small is not intended to preclude any party from later proving a large claim. Nonetheless, since the claims do appear to be small, it is probable that a class action would open the courts to many claims which would not ordinarily be litigated because they could not be prosecuted economically as individual actions. Furthermore, it is probable that in a class action the court is more likely to see the significance of the individual claims of the residents based on defendants’ land farm emissions and the consequences of imposing liability upon defendants for the results of their useful and otherwise legal activities. Thus, the court is more likely to arrive at a substantively just conclusion, and the absentees are more likely to be given their due in a class action.

The legislative policy underlying these causes of action operates to deter landowners’ activities which cause injury and unreasonable inconvenience to others, to cause those who have profited by the activities to disgorge unjust enrichment gained thereby, and to compensate victims injured or unreasonably inconvenienced. If the claims are not asserted in a class action it is evident that many will not be pursued, that the court may not see the true significance of claims or liability, and that the court will therefore be unable to give full realization to the substantive legislative policy. On the other hand, if all claims are successfully enforced in a class action, since recovery by the victims will be limited to the amount required to compensate them fairly, there is little danger in this particular case that the legislative policy will be distorted by an exaggerated deterrent effect.

Judicial Efficiency

A fundamental objective of the class action device is the achievement of economies of time, effort, and expense. See Advisory Committee Notes, supra, 39 F.R.D. 69, 102-103. Because the questions of law or fact common to the members of the class in this case predominate over any questions affecting only individual members, a class action clearly would promote the goal of judicial efficiency more than other available methods.

The single most important issue is whether the defendants’ activities on their hazardous waste land farm deprived their neighbors of the liberty of enjoying their own land or caused them unreasonable inconvenience or damage. La. Civil Code arts. 667-669; Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975). Offering the same facts, all class members will strive to establish that the hazardous waste materials placed in the soil by the defendants emitted gases, fumes and odors capable of causing harm and unreasonable inconvenience to persons in the neighborhood. Each class member stands in an identical position with respect to the following issues: (1) whether hazardous waste materials of the quality and quantity capable of causing the damage and unreasonable inconvenience alleged were present at the land farm on the pertinent dates, (2) whether the land farm emitted harmful and malodorous gases on the dates alleged, (3) whether the probable dispersion patterns of the gases and odors emitted include the areas within which the residences of the members of the class are located.

The court of appeal concluded that these common issues did not predominate over the potential individual issues of whether each member of the class was harmed or inconvenienced on the same dates or sustained the same amount of injury. Our appellate brethren fell into clear error. From the pleadings and showing it appears that on all of the dates in question the land farm received similar hazardous waste from the same source and that the land farming operations were conducted consistently. Consequently, there exists as to the totality of issues a common nucleus of operative facts such as would justify allowing the class action to proceed. That individuals may have been injured or unreasonably inconvenienced by noxious gases on varying dates by the defendant’s land farm operations does not constitute a material variation in the elements of the class members’ claims. See 1 H. Newburg, Class Actions, § 1155 (1977); Esplin v. Hirschi, 402 F.2d 94 (10th Cir.1968). With respect to the question of damages, individual questions of quantum do not preclude a class action when predominant liability issues are common to the class. Guste, supra, 370 So.2d at 489; Williams, supra, 350 So.2d at 136; Stevens, supra, 309 So.2d at 149; 1 H. Newburg, supra, § 1155(a).

The court of appeal also erred in concluding that the defenses which will be urged by defendants will not be generally applicable to the entire class. In fact, the pleadings and the showing suggest that, with respect to the predominant liability issues, there will be no material deviations because such individual defenses as contributory negligence and assumption of risk are wholly inapplicable. See Williams, supra, 350 So.2d at 135.

We likewise disagree with the intermediate court as to the manageability of a class action in this case. Although difficulty may be encountered in managing this litigation, it does not outweigh the economies to be derived from unitary adjudication. The location of virtually all the witnesses and members of the class in the same vicinity, as well as identity of the main issues of liability in all claims, will facilitate a prompt, efficient, and relatively inexpensive single trial on the common nucleus of issues. Further, the interested parties appear to be so numerous, 490 having joined as plaintiffs so far, that the courts would be unduly burdened by their separate suits or by their joinder or intervention by formal pleadings in non-class actions separately brought. It cannot be denied that the resolution of class action issues places added responsibilities and burdens on the trial court. But if there is to be an error made, it should be in favor and not against the maintenance of the class action, for it is always subject to modification should later developments during the course of the trial so require. La.C.C.P. art. 593.1(B); Esplin v. Hirschi, 402 F.2d 94 (1968); 1 H. Newburg, supra, § 1160(e).

With respect to identification of the members of the class, the trial court erred in denying the class action on the grounds that it would be difficult to identify all of the members of the class. It is not essential that every member of the class be identified before a class action can be certified. Difficulty in identifying the claimants is one of the factors which makes joinder impracticable and a class action appropriate. Verdin v. Thomas, 191 So.2d 646 (La.App. 1st Cir.1966); Phillips v. Joint Legislative Comm., 637 F.2d 1014 (5th Cir.1981). To prevent a class action on the grounds that every member of the class cannot be identified would bar the class action where it is usually needed most. See 1 H. Newberg, Class Actions § 1105(h). Therefore, as long as the class itself is reasonably identified, it is not necessary that all the members of the class be identified at the commencement of the action.

Ultimately, problems of manageability must be added to any other disadvantages of a class action in a particular case and weighed with them against all of the benefits of unitary adjudication in that case to determine whether a class action is superior to other available methods of adjudication. Only if the net benefits of a class action in a particular case are so small in comparison with the net advantages of other adjudicatory methods as to make the class action an inferior method for that case should the court refuse to certify a class. Cf. Pruitt v. Allied Chemical Corp., 85 F.R.D. 100, 115 (Ed.Va.1980). Moreover, in assessing the difficulty of managing a class action in the case at hand, the court must take into account how the problems may be ameliorated by use of the procedural devices at its command. Under La.C.C.P. art. 593.1(C) the court may adopt a plan for the management of the class action subdividing the action and separating the issues for trial. For example, the plan may provide for separate trials of the issues in this order: (1) liability issues, (2) determination of damage items common to the class and the basis for assessment thereof, (3) assessment of common damages on an appropriate basis, (4) determination and assessment of individual damages not common to the class in one or a series of trials involving one or more members of the class. Furthermore, the court may at any time before decision on the merits alter, amend or recall its certification and may enlarge, restrict, or otherwise redefine the constituency of the class or the issues to be maintained in the class action. La.C. C.P. art. 593.1(B). See also Shelter Realty Corp. v. Allied Maintenance Corp., 75 F.R.D. 34, 38-39 (S.D.N.Y.1977); Siegel v. Chicken Delight, Inc., 271 F.Supp. 722 (N.D.Ca.1967); Manual For Complex Litigation, 1.42-1.44 (West 1982).

Fairness to the Parties

Another fundamental objective of the class action device is the promotion of uniformity of decision to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results. Advisory Committee Notes, 39 F.R.D. 69, 102-103. In determining whether it would be unfair to require separate adjudications, for instance, the courts should consider the precedential value of the first decision, as well as the extent of injustice that will be produced by inconsistent judgments in separate actions. Another factor to be considered, for example, is the size of the claims of the absent members of the class, for the greater the claim, the greater the interest of its owner in prosecuting it in a separate action. Stevens, supra, 309 So.2d at 151.

The plaintiffs allege that approximately 4,000 persons suffered unreasonable inconveniences or injuries arising from the defendants’ land farming operations. Despite the prayer of the plaintiffs’ petition, the showing indicates that similar if not identical damages, small in nature, were sustained by each. As noted in our discussion of the other goals of procedural law, the evidence as to the nucleus of liability issues must be identical for each claim. Based on these circumstances, we conclude that a class action is clearly the fairest method for adjudication of these claims.

Four thousand separate suits involve the danger of inconsistent determinations and of earlier separate adjudications with prejudicial effect upon subsequent separate litigation. Stevens, supra, 309 So.2d at 151; Williams, supra, 350 So.2d at 135. Due to the smallness of the recovery apt to be allowed to each member of the class, no substantial interest adverse to allowing a class action exists in favor of individual control by members of the class of separate action. Williams, supra at 135.

CONCLUSION

In conclusion, a pragmatic rather than formalistic review of the pleadings and the showing made herein clearly indicates that a class action would be superior to other available adjudicatory methods for effectuating substantive law, judicial efficiency and individual fairness in this case. Accordingly, all other requisites for a class action having been fulfilled, certification of a plaintiff class should be permitted.

DECREE

For the reasons assigned, therefore, we reverse the dismissal and order the reinstatement as a class action of this suit. We remand it to the district court for further proceedings consistent with the opinion and with law, particularly La.C.C.P. art. 593.1. All costs to await the final termination of this suit.

REVERSED AND REMANDED.

MARCUS, J.,

dissents.

BLANCHE, J., dissents being of the opinion that the court of appeal correctly affirmed the trial court’s refusal to certify this tort litigation as a class action.

      . Federal Rule of Civil Procedure 23(b) provides:
      (b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
      (1) the prosecution of separate actions by or against individual members of the class would create a risk of
      (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
      (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
      (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
      (3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of the members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in their particular forum; (D) the difficulties likely to be encountered in the management of a class action.

      . The Uniform Class Actions Act, Section 3(a) (National Conference' of Commissioners on Uniform State Laws (1976)) (reprinted at 12 Uniform Laws Annotated, Supp. (1984, p. 21)), provides in pertinent part:
      (a) In determining whether the class action should be permitted for the fair and efficient adjudication of the controversy, ... the court shall consider, and give appropriate weight to, the following and other relevant factors:
      (1) whether a joint or common interest exists among members of the class;
      (2) whether the prosecution of separate actions by or against individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class that would establish incompatible standards of conduct for a party opposing the class;
      (3) whether adjudications with respect to individual members of the class as a practical matter would be dispositive of the interests of other members not parties to the adjudication or substantially impair or impede their ability to protect their interests;
      (4) whether a party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making final injunctive relief or corresponding declaratory relief appropriate with respect to the class as a whole;
      (5) whether common questions of law or fact predominate over any questions affecting only individual members;
      (6) whether other means of adjudicating the claims and defenses are impracticable or inefficient;
      (7) whether a class action offers the most appropriate means of adjudicating the claims and defenses;
      (8) whether the members not representative parties have a substantial interest in individually controlling the prosecution or defense of separate actions;
      (9) whether the class action involves a claim that is or has been the subject of a class action, a government action, or other proceeding;
      (10) whether it is desirable to bring the class action in other forum;
      (11) whether management of the class action poses unusual difficulties;
      (12) whether.any conflict of laws issues involved pose unusual difficulties; and
      (13) whether the claims of individual class members are insufficient in the amounts or interest involved, in view of the complexities of the issues and the expenses of the litigation, to afford significant relief to the members of the class.


author: BLANCHE, Justice. WATSON, Justice,

text:
    Thomas K. KIRKPATRICK, and Gary L. Keyser v. Furman YOUNG, Lorena Rambin, Bessie Mae Henderson, Shannon Dunn Benis, Kevin Dunn and Kelly Dunn.
    No. 83-CC-2627.
    Supreme Court of Louisiana.
    Sept. 10, 1984.
    Rehearing Denied Oct. 4, 1984.

      Edwin K. Theus, Jr., Theus, Grisham, Davis & Leigh, Monroe, for relators.
    John D. Crigler, St. Joseph, for respondents.
   BLANCHE, Justice.

FACTS

This is an action by two attorneys seeking fees from certain heirs who benefitted from the successful opposition of a will. The plaintiffs were retained by seven heirs of Linda S. Dubuisson to challenge the validity of a nuncupative will by public act. Plaintiffs were successful in obtaining for their clients a judicial recognition of the invalidity of the will. See, Succession of Dubuisson, 378 So.2d 1049 (La.App. 2nd Cir.1979), writ denied, 381 So.2d 509 (La.1980).

Some time after the finality of the judgment of invalidity of the will and prior to the judgment of possession rendered on February 17, 1982, it was discovered that there were six more heirs entitled to inherit from Dubuisson. These heirs were named in the judgment of possession and are the defendants in this suit to recover attorneys fees.

Three of the defendants filed an exception of no cause of action, contending that under Louisiana law an attorney cannot collect a fee from one who did not employ him and that the plaintiffs not only admitted in their petition that there was no such employment contract, but that they failed to allege any other basis for recovery. The trial court overruled the exception without reasons, and the appellate court denied supervisory writs. Upon application of the three defendants, this court granted supervisory writs to consider whether the petition alleges facts to support any possible theory of recovery under Louisiana law.

THE PETITION

An exception of no cause of action must be tried and reviewed solely on the face of the well-pled petition; no evidence is admissible to support or controvert this peremptory exception. La.C.C.P. art. 931. In addition, the principle of law that for purposes of the exception the allegations of the petition must be taken as true is so well established as to require no further citation of authority. Plaintiffs contend that a fair reading of their petition will disclose a cause of action, if not under an express contract, then under 1) unjust enrichment; or, 2) implied contract; or, 3) quasi-contract or negotiorum gestio; or, 4) the “fund doctrine.”

A review of the petition discloses the following pertinent allegations:

(1) Plaintiffs were retained by seven heirs to challenge a will.
(2) Plaintiffs pursued their work under that contract “in the most diligent and professional manner possible,” and this work was “exceedingly extensive and required a commitment to detail, preparation, research, analysis, preparation for trial, and trial on a level much greater than the ordinary case.”
(3) Following trial, plaintiffs briefed the case extensively, appealed to the Second Circuit Court of Appeal, and filed a brief opposing an application for certiorari.
(4) Following the successful challenge of the will and the denial of the writ application, plaintiffs continued to perform extensive legal work pertaining to the administration and preservation of the estate of Linda Dubuisson.
(5) “During their legal work,” neither the plaintiffs nor their original clients were aware of the existence of the defendants in this suit nor that they were entitled to share in the succession.
(6) But for the work of petitioners, the defendants herein would never have become legally entitled to inherit and would have been excluded from a distribution of the assets of the succession.
(7) The work of the petitioners in challenging the validity of the will and, later, in administering and preserving the estate, inured to the direct benefit of the defendants.
(8) The defendants have refused to acknowledge any obligation whatsoever for the work performed on their behalf by the plaintiffs.

UNJUST ENRICHMENT

In 1967 this court recognized that the moral maxim contained in La.C.C. art. 1965 “that no one ought to enrich himself at the expense of another” provides the basis for an action for unjust enrichment. Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967). We have also enumerated the five prerequisites necessary to support such an action: 1) there must be an enrichment, 2) there must be an impoverishment, 3) there must be a causal relationship between the enrichment and the impoverishment, 4) there must be an absence of justification or cause for the enrichment or impoverishment, and 5) there must be no other remedy at law. Minyard, supra; Edmonston v. A-Second Mortgage Company of Slidell, Inc., 289 So.2d 116 (La.1974); Hoover v. Hoover, 313 So.2d 358 (La.App. 4th Cir.1975); see also, A. Tate, The Louisiana Action for Unjustified Enrichment: A Study in Judicial Process, 51 Tul.L.Rev. 446 (1977).

The petition in this case does not support an action for unjust enrichment because, although plaintiffs allege that the defendants were enriched as the result of these attorneys’ efforts, there is no allegation of a correlative impoverishment to the lawyers. There is no indication or allegation in the pleadings that the plaintiffs expended any more time, effort, or expenses in obtaining a result which “inured to the benefit of the defendants” than they would have in securing the same result for the benefit of their clients alone. Nor is there any allegation that the plaintiffs were impoverished by the loss or prevention of an expectation of gain, for by their own admission plaintiffs did not even know of the existence of the defendants until well after the completion of the opposition to the will and so could not have expected any gain or recompense from that quarter.

QUASI-CONTRACT

The Civil Code recognizes two principle kinds of quasi-contract, one being the transaction of another’s business and the other the payment of a thing not due; from these quasi-contracts flow obligations without any agreement. La.C.C. art. 2293. In this case, the plaintiffs contend that the allegations of their petition support an action in negotiorum gestio, the management of another’s affairs.

According to La.C.C. art. 2295, this quasi-contract comes into being when a person, the gestor, voluntarily undertakes to manage another’s affairs, whether the recipient of the benefit of this management is aware of it or not. The gestor is under the obligation to act as a prudent administrator, La. C.C. art. 2298, and the one whose business has been well managed is under an obligation “to indemnify the manager in all personal engagements he has contracted,” and “to reimburse him all useful and necessary expenses.” La.C.C. art. 2299.

The petition in this case cannot support an action in quasi-contract for the simple reason that plaintiffs do not allege that their actions in contesting the will and, later, in administering and preserving the estate were done with the benefit of the defendants in mind. Plaintiffs do not allege that they voluntarily undertook the management of the affairs of these defendants. On the contrary, the petition quite frankly admits that all of their actions were undertaken pursuant to an employment contract with other heirs and that they did not even know of the existence of these defendants until just prior to the rendering of the judgment of possession.

We do not mean to say that a mistake in the identity of the one for whom the gestor is acting will prevent assertion of the action in quasi-contract, but that again is not the case here. In a ease of mistaken identity, the one whom the gestor believed he was acting for could escape liability by showing that he did not receive the benefit of the management, but the principle whose identity was unknown would still owe the obligation because his affairs had been well managed and he had received a benefit therefrom. In this case, however, the petition states that all of the plaintiffs’ work was done pursuant to a contract with their clients; there was no “voluntary” assumption of the management of the affairs of the defendants named in this suit. The facts of this case are very similar to one decided by this court at the beginning of this century. In Succession of Kernan, 105 La. 592, 30 So. 239 (1901), this court held that the principles of negotiorum ges-tio did not apply when the attorneys were acting solely as the attorneys of the particular heirs in whose names they appeared in court, when those heirs did not pretend to act for any others. Citing Roselius v. Delachaise, 5 La.Ann. 481, the Kernan court stated:

[Hjowever valuable the services of an attorney might be to a party in a suit in which he represented others having a similar interest, he cannot recover a fee from a party who has not employed or authorized anyone to employ him. 30 So. 239, 244. •

THE FUND DOCTRINE

The “fund doctrine” originated as a common law theory of equity allowing an attorney to recover fees from one not his client in very limited situations. In 1893 this court recognized this exception to the general rule that a lawyer cannot recover a fee from one who has neither employed him nor authorized another to do so. See, McGraw v. Andrus, 45 La.Ann. 1073, 13 So. 630 (1893). Only once since then, in In re Interstate Trust & Banking Company, 235 La. 825, 106 So.2d 276 (1958), have we permitted recovery under this doctrine, and the prerequisites for such recovery were made explicit: An attorney may recover fees from those not his clients when that attorney alone and at his own expense has maintained a successful suit for the preservation, protection, or increase of a common fund, or of common property or who has created at his own expense, or brought into court, a fund in which others may share with him.

The petition now before us fails to state a cause of action under the fund doctrine on two counts: First, there is absolutely no allegation that the attorneys acted on their own or at their own expense. In fact, the contrary is implied in their admission that their actions were pursuant to a contractual obligation with other heirs. Second, the judicial recognition of the invalidity of a will does not preserve, protect, increase or create a common fund. The estate of Ms. Dubuisson existed and the heirs were seized as of the moment of her death whether the will purporting to dispose of that estate were valid or not. The efforts of these attorneys to have the will declared invalid did not increase or create an estate, but merely enlarged the class of heirs entitled to participate in the succession. See also, Succession of Kernan, supra.

DECREE

For the reasons above, the action of the district court is reversed and the plaintiffs’ suit is dismissed for failure to state a cause of action. Plaintiffs are hereby given fifteen days to amend their petition if they so desire in order to allege sufficient facts to support a valid cause of action.

REVERSED AND DISMISSED.

WATSON, J., concurs and assigns reasons.

LEMMON, J., dissents and will assign reasons.

WATSON, Justice,

concurring.

I respectfully concur. See Baron v. Peter, 286 So.2d 480 (La.App. 1 Cir.1973).


author: LEMMON, Justice. WATSON, Justice,

text:
    Jessie Rose PITRE v. AETNA INSURANCE COMPANY, INC., et al.
    No. 83-C-1771.
    Supreme Court of Louisiana.
    Sept. 10, 1984.
    Rehearing Denied Oct. 4, 1984.
    Ronald R. Thompson, Baton Rouge, for applicant.
    Bruce A. Gaudin, Ledet & Gaudin, Opel-ousas, for respondents.
   LEMMON, Justice.

This wrongful death action arises out of an accident in which the car driven by Widnay Pitre ran off the highway, traveled 300 feet on the shoulder of the road, struck a guardrail protecting a bridge abutment, and careened across the road before falling into a ditch. The trial court held the Department of Transportation and Development liable on the basis that a two-to-three-inch dropoff from the paved portion of the highway to the shoulder created an unreasonably dangerous risk of harm. The court of appeal affirmed. 434 So.2d 191. We granted certiorari to review the correctness of the judgments. 440 So.2d 754. After reviewing the record, we conclude that any difference in elevation between the roadway and the shoulder was not a legal cause of the accident. We accordingly reverse.

The accident occurred on U.S. Highway 167 between Opelousas and Yille Platte at about 10:20 p.m. on New Year’s Eve in 1979. Mr. and Mrs. Pitre had left Opelou-sas at about 8:00 p.m., had attended a party at a friend’s house for about two hours, and had stopped briefly at a nightclub before continuing toward Yille Platte.

The highway in the area of the accident consisted of a two-lane asphaltic concrete roadway, which had recently been overlaid. There was an aggregate surface core shoulder, about six to eight feet in width. Northbound traffic on the highway encountered a gradual curve to the left just before the bridge where the accident occurred, as shown on the following photograph:

The curve was marked by a warning sign which displayed an arrow pointing to the left and an advisory speed of 45 miles per hour. The bridge abutments on the south side were protected by guardrails. The abutments were also marked by one-foot by three-foot black-and-white delineators. Another delineator was placed at the beginning of the guardrail. The two delineators, the guardrail on the east shoulder, and the bridge are shown on the following photograph:

Mrs. Pitre testified that her husband had been driving north about 55 miles per hour (the posted speed limit) as they entered the curve before the bridge. A car with bright lights approached them, and the right wheels of their car went off the roadway onto the shoulder. She did not know the distance or the time lapse between the point where the car left the roadway and the point where they “hit something”. After the collision on the right (east) shoulder adjacent to the northbound lane, the car careened across the roadway and went off the embankment into a ditch.

A state trooper, called to the scene immediately after the accident, found the car in the ditch on the west side of the highway. After placing the Pitres in an ambulance, the trooper inspected the area and found tire tracks on the newly-resurfaced east shoulder. He measured the tracks, which extended for 300 feet along the shoulder from the point where the car left the roadway to the point where the car hit the guardrail just before the bridge. He did not notice anything unusual about the shoulder.

The following morning, two of the Pitres’ sons visited the scene. One son testified that tire tracks on the shoulder extended in an uninterrupted line for an estimated 150 feet from the bridge rail (at which point the tracks were six inches from the roadway) to a driveway (at which point the tracks were three feet from the roadway), where the markings were crossed by other tracks. The guardrail contained a dent at the point where the tracks on the east shoulder ended, and the guardrail on the west shoulder was badly damaged at the point where the car went into the ditch. The brothers also noticed evidence of the car’s crossing the highway between the points of damage on the two guardrails.

One brother testified that the level of the shoulder was “maybe a couple of inches ... probably somewhere between two and three inches” lower than the roadway. The second brother simply stated that he noticed that the shoulder was lower than the roadway. Neither brother related the drop-off to the point where the car left the roadway or to the point where the car struck the guardrail, or to any particular area between the two points.

The evidence thus established that the car left the roadway at a point about 300 feet from the bridge, that the driver never attempted reentry while traveling in a relatively straight line on the shoulder (described as “firm and smooth” by one of Pitre’s sons), and that the car struck the guardrail on the east side with sufficient velocity to cause it to careen across the highway and to jump the guardrail on the west side. These facts and circumstances established by the evidence dictate the legal conclusion that any difference in elevation between the roadway and the shoulder did not contribute to the causation of this accident.

The difference in elevation certainly did not cause the car to leave the highway (which had a white stripe marking the eastern edge and a sign warning of the curve). After the car went onto the shoulder and the driver regained control (as he apparently did), the difference in elevation did not cause the driver to again lose control, because the driver did not attempt reentry onto the highway, and none of the wheels of the car again touched the edge of the roadway until after the collision. Moreover, even if the driver was apprehensive of the dropoff (assuming he was aware of the dropoff), such apprehension did not cause the accident, because the driver had ample opportunity to bring the car to a safe stop on the shoulder before he reached the well-marked bridge area. Finally, since the shoulder in the area was hard and even, no defect in the shoulder can be ascribed as a cause of the accident.

Prudent behavior for a motorist who inadvertently drives off the paved roadway onto the shoulder is first to reduce speed and then to attempt a gradual reentry after he has regained control of the vehicle. The motorist in this case, upon leaving the roadway, had adequate warning of the bridge 300 feet ahead and had ample opportunity to reduce his speed and to make a controlled gradual reentry, or even to bring the vehicle to a complete stop before reentering. However, he apparently chose to remain on the shoulder without significantly reducing his speed until he passed the first delineator and struck an obvious and prominent guardrail.

The evidence in this record, viewed in the light most favorable to the prevailing party in the trial court, does not reasonably support a conclusion that any failure of maintenance by the Department contributed to the causation of this accident.

Neither was any improper placement of the delineators causally related to this accident, as plaintiffs contend. Highway regulations require markers to be placed in line with the inner edge of an object adjacent to the highway. The first delineator was placed at the beginning of the guardrail, outside and just above the rail. The second delineator, although outside the guardrail, was placed in line with the inner edge of the bridge abutment (which arguably was the “object” required to be marked). Thus, the delineators, even if at slight technical variance with the regulations, adequately served to provide a warning to motorists approaching the bridge abutment. The placement of the conspicuous and plainly discernible delineators cannot be said to have misled motorists into believing it was safe to ride along the shoulder in the area.

Accordingly, the judgments of the lower courts are reversed, and judgment is rendered in favor of the Department. All costs are assessed' to plaintiffs.

WATSON, J., dissents and assigns reasons.

WATSON, Justice,

dissenting.

After inadvertently leaving the paved portion of the roadway, Widnay Pitre attempted to return to the pavement. As he prudently attempted a gradual reentry, he struck an unmarked bridge railing only six inches from the highway. Compare Rue v. State, Dept, of Highways, 372 So.2d 1197 (La., 1979). Absent the dangerous condition of the shoulder, there is little question that Mr. Pitre would have been able to reenter the highway before striking the bridge railing. The situation here is similar to that in LeBlanc v. State, 419 So.2d 853 (La., 1982) where a motorist inadvertently went off on the shoulder of the road because of oncoming traffic. In attempting a gradual reentry to the highway, Wid-nay Pitre did exactly what is recommended by driving experts. See LeBlanc v. State, supra, and Sinitiere v. Lavergne, 391 So.2d 821 (La., 1980).

The excessive drop-off to the shoulder was a cause-in-fact of the Pitre accident. The Department had a duty to maintain the shoulder with a drop-off of less than two inches to protect Widnay Pitre against the risk he encountered when he inadvertently drove onto the dangerously low shoulder. The two markers for the bridge were placed on the outer edge of the obstruction rather than the inner edge as mandated by the Department’s manual. The daylight photographs in the majority opinion do not depict the scene as it appeared to Pitre at night. The placement of the bridge markers may well have contributed to the accident, inducing Widnay Pitre to believe that he was within a zone of safety rather than six inches away from it. The Department was clearly negligent; the shoulder and bridge markers were defective and presented an unreasonable risk of injury.

The trial court and the court of appeal did not err in concluding that the negligence of the Department was a substantial factor in the Pitre accident and that the Department is liable for the resulting damages. Dixie Drive It Yourself System, v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962); LeBlanc v. State, supra. The judgment of the trial court on the issue of liability is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La., 1978).

Therefore, I respectfully dissent.

      . The construction project, which included a four and one-eighth-inch roadway overlay as well as shoulder surfacing, was accepted by the Department on November 20, 1979.

      . The trooper noticed the odor of alcohol on Mr. Pitre’s breath and requested the hospital to obtain a blood sample. The crime laboratory analyst reported that the blood alcohol content was 0.15%. However, the Department did not introduce any expert evidence to establish the meaning of the test results or the relationship between the alcohol content of a person’s blood and the impairment of the person’s driving ability. We therefore disregard, as did the trial judge, the evidence concerning the blood alcohol test. We further note that the act of driving while intoxicated does not itself cause accidents; it is the conduct influenced by intoxication which causes accidents.

      . The first brother did not mention any tracks south of the driveway (at which point the tracks were three feet from the roadway). The second brother described the tracks from the point where the car veered off the road to the point of contact with the guardrail. He estimated that the distance between the rail and the driveway, where the tracks were crossed by other tire marks, was 100 feet and that the total length of the tracks was 150 feet.
      Because the trooper actually measured the tire tracks on the shoulder from the point where the car left the road to the point of contact with the guardrail, we accept the trooper’s testimony that the distance was 300 feet.