author: PER CURIAM.

text:
    DAUL INSURANCE AGENCY, INC. v. PARISH OF JEFFERSON, Robert B. Evans, Jr., Lloyd F. Giardina, James E. Lawson, Thomas J. Ward, Kenneth Hollis, Willie Hof and Aaron Broussard.
    No. 83-C-1998.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   PER CURIAM.

GRANTED. The judgments of the lower courts, 437 So.2d 1205, maintaining the exception of no cause of action are set aside. No evidence may be introduced to support the objection raised by an exception of no cause of action. La.C.C.P. Art. 931. Plaintiff’s petition, standing alone, is an insufficient basis for a determination that the services at issue in this litigation constitute professional services so as to be exempt from the requirement of public bidding. The case is remanded to the district court for introduction of evidence at a trial on the merits or by other appropriate procedures.

WATSON, J., recused.


source: Caselaw Access Project

license: Public Domain

text:
    T.J. SEAL, III et al. v. Stephen C. SLEDGE. Stephen C. SLEDGE v. T. Jay SEAL, III et al. FIRST GUARANTY BANK v. Stephen C. SLEDGE.
    No. 83-C-1336.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Stephen C. Sledge, applying for rehearing on denied writ of September 16, 1983, 437 So.2d 1155, First Circuit Court of Appeal. Nos. 82-CA-0429, 82-CA-0430 and 82-CA-0431. Twenty-first Judicial District Court, Parish of Tangipahoa. Nos. 57135, 57884 and 58002.

Reconsideration denied.


text:
    STATE of Louisiana v. David WELLS.
    No. 83-K-1062.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re David Wells, applying for reconsideration of denied writ of September 2,1983, 437 So.2d 502, Third Circuit Court of Appeal. Twelfth Judicial District Court, Parish of Avoyelles.

Reconsideration denied.


text:
    STATE of Louisiana v. Jeffery Wayne MANN.
    No. 83-K-1520.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Jeffery Wayne Mann, applying for a reconsideration on denied writ of September 30,1983, 439 So.2d 1074, Fourth Judicial District Court. No. 40686. Second Circuit Court of Appeal. Parish of Ouachita. No. 15316-KA.

Denied.


text:
    STATE of Louisiana ex rel. Robert WALKER v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 83-KH-0755.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Robert Walker, applying for reconsideration of denied writ of September 30, 1983,438 So.2d 585, Criminal District Court, Parish of Orleans. No. 227-865, Section “F”.

Denied.


text:
    The STATE of Louisiana, ex rel. William I. GUSTE, Jr., Attorney General v. NAPASCO INTERNATIONAL, INC., Napasco International, Inc., Eastern Division, Dapasco International, Inc., Southern Division Napasco International, Inc., Central Division, Napasco International, Inc., Western Division, Napasco International Corporation and Subsidiaries.
    No. 83-C-1406.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Napasco International, Inc. et al., applying for reconsideration of denied writ of September 23, 1983, 438 So.2d 572, Fourth Circuit Court of Appeal. No. 13192. Civil District Court. No. 78-12274. Parish of Orleans.

Reconsideration denied. The judgment is definitive. La.C.C.P.Art. 2166.


text:
    Henry MORGAN v. ROYAL OLDSMOBILE COMPANY, INC., and General Motors Corporation.
    No. 83-CC-1581.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re General Motors Corporation, applying for reconsideration of granted writ with order dated September 30, 1983, 438 So.2d 580, Twenty-fourth Judicial District Court, Parish of Jefferson. No. 261-308. Court of Appeal, Fifth Circuit. No. 83-C-513.

Rehearing denied.

BLANCHE and LEMMON, JJ., would grant rehearing.


text:
    STATE of Louisiana ex rel. Robert Earl PALMER v. Honorable W. Charles BROWN.
    No. 83-KH-1937.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Robert Earl Palmer, applying for out of time. Appeal from the Eleventh Judicial District Court, Parish of Sabine.

Granted only to transfer motion for out of time appeal to trial court.


text:
    Jimmy A. STELLY and Sylvia M. Stelly v. FIDELITY & CASUALTY COMPANY OF NEW YORK, et al.
    No. 83-CC-1489.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Elizabeth A. Richardson Dismukes and Fidelity and Casualty Company of New York, applying for reconsideration of granted writ with order, dated September 30, 1983,439 So.2d 1068, Court of Appeal, Third Circuit. No. 83-386. Twenty-seventh Judicial District Court, Parish of St. Landry. No. 85919-1.

Denied.


text:
    Paul WALDROP v. UNIROYAL, INC.
    No. 83-CC-1657.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Paul Waldrop, applying for reconsideration of granted W/O Writ of October 7,1983,438 So.2d 1114, from the Nineteenth Judicial District Court. No. 224836, Div. “I”, Parish. First Circuit Court of Appeal. No. 83-Cw-0795.

Denied.


text:
    STATE of Louisiana, ex rel. Bruce E. CHOYCE v. Criminal District Court Magistrate, Gerard J. HANSEN, Sheriff Charles C. Foti, Jr., Chief of the New Orleans Police Department, Gains, Criminal District Attorney Harry F. Connick, et al.
    No. 83-KH-1460.
    Supreme Court of Louisiana.
    Nov. 11, 1983.
   In re Bruce E. Choyce, applying for Reconsideration of denied writ of October 17,-1983, 439 So.2d 1085, Criminal District Court, Parish of Orleans. No. 279-940.

Writ denied as moot as relator has been forwarded the arrest register, minutes of the court and jail records, all of which will enable him to ascertain the length of his custody in Louisiana. Relator has further made no showing as to his entitlement to any documents other than those which have been forwarded him.


text:
    MERRILL LYNCH, PIERCE, FENNER & SMITH, INC. v. Gerald L. RAY. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC. v. James McCURRY. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC. v. Clayton C. GRIGG.
    No. 83-CC-2171.
    Supreme Court of Louisiana.
    Nov. 11, 1983.
   In re Merrill Lynch, Pierce, Fenner & Smith, Inc., applying for reconsideration of writ grant with order, on October 20, 1983, 439 So.2d 442, Second Circuit Court of Appeal. Nos. 16,060-CW, 16,061-CW, 16,062-CW. First Judicial District Court. Nos. 299,838, 299,844, 299,845. Parish of Caddo.

Denied.

BLANCHE, WATSON and LEMMON, JJ., would grant.


text:
    Thomas P. ANZELMO, Sr. and Donald Anzelmo v. LOUISIANA COMMISSION ON ETHICS FOR PUBLIC EMPLOYEES and Charles M. Brown, Victor Bussie, Miller D. Dial, Edward T.L. Borie, Dr. Robert C. Snyder, Individually and in their Official Capacity as Members of Said Commission.
    No. 83-C-2022.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Thomas P. Anzelmo, Sr., and Donald Anzelmo, applying for writ of certiorari or review. Court of Appeal, First Circuit. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 260171, Div. L.

Denied.

CALOGERO, J., would grant the writ.


text:
    WHITNEY NATIONAL BANK OF NEW ORLEANS v. Vincent J. DERBES, Gary R. Brown, Herbert B. Christianson, Andrew M. Hegre and Lloyd D. O’Quinn. Lloyd D. O’QUINN v. WHITNEY NATIONAL BANK OF NEW ORLEANS.
    No. 83-C-2067.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Vincent J. Derbes, Gary R. Brown, Herbert B. Christianson, and Lloyd D. O’Quinn, applying for certiorari or writ of review. Court of Appeal, Fourth Circuit. Civil District Court, Parish of Orleans. Nos. 78-8183 and 81-1399.

Denied.

WATSON, J., recused.


text:
    Linda PARKS v. LOUISIANA HEALTH CARE ASSOCIATION, et al.
    No. 83-C-2072.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Linda Parks, applying for writ of certiorari or review. Third Circuit Court of Appeal. Twelfth Judicial District Court, Parish of Avoyelles. No. 82-2453.

Denied.


text:
    Bonita O. GUILLORY v. PETROLEUM HELICOPTERS, INC., et al.
    No. 83-CC-2077.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Petroleum Helicopters, Inc., et al, applying for writ of certiorari. First Circuit Court of Appeal. Sixteenth Judicial District Court, Parish of St. Mary. No. 65321-W.

Denied.

MARCUS, J., would grant the writ.


text:
    Delton H. CASON v. DIAMOND M. DRILLING COMPANY and Union Oil Company of California.
    No. 83-C-2118.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Union Oil Company of California, applying for supervisory writs. First Circuit Court of Appeal. Sixteenth Judicial District Court, Parish of St. Mary. No. 60777.

Denied.


text:
    Delton H. CASON v. DIAMOND M. DRILLING COMPANY et al.
    No. 83-C-2091.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Diamond M. Drilling Company et al, applying for writs of certiorari and/or review. First Circuit Court of Appeal. Sixteenth Judicial District Court, Parish of St. Mary. No. 60777.

Denied.


text:
    Richard WOLLERSON v. LOUISIANA DEPARTMENT OF AGRICULTURE.
    No. 83-C-2094.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In Re: Department of Agriculture and Bob Odom, Commissioner of Agriculture, applying for certiorari, or writ of review. Court of Appeal, First Circuit. State Civil Service Commission. No. 2632.

Denied.

DIXON, C.J., and LEMMON, J., would grant the writ.


text:
    John MORRIS v. SCHLUMBERGER, LTD., et al.
    No. 83-C-2117.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re John Morris, applying for writ of certiorari and/or review. Third Circuit Court of Appeal. Thirty-eighth Judicial District Court, Parish of Cameron. No. 7775.

Denied.

DIXON, C.J., CALOGERO and WATSON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Joseph William WEST, Jr.
    No. 83-KK-2119.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Joseph William West, Jr., applying for supervisory and remedial writs, Fourth Judicial District Court, Parish of More-house. No. 82-2453A. Court of Appeal, Second Circuit. No. 15988-KW.

Denied.


text:
    Lewis T. GRAHAM, Jr. v. Don HATHAWAY, Sheriff.
    No. 83-KP-2121.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Lewis T. Graham, Jr., applying for writs of certiorari, mandamus and prohibition. First Judicial District Court, Caddo Parish. No. 124306-HC.

Denied.


text:
    Richard WOLLERSON v. DEPARTMENT OF AGRICULTURE.
    No. 83-C-2123.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Richard Wollerson, applying for cer-tiorari, or writ of review. Court of Appeal, First Circuit. State Civil Service Commission. No. 2632.

Denied.

DENNIS, J., would grant the writ.


author: LEMMON, J.,

text:
    Edward JOHNSON, Sr. v. John MANIS, et al.
    No. 83-C-2124.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Edward Johnson, Sr., applying for certiorari, or writ of review. Court of Appeal, Fourth Circuit. Civil District Court, Orleans Parish. Nos. 80-6667 and 79-18747.

Denied.

LEMMON, J.,

concurs, but disagrees with the application of any presumption of negligence in the first collision.


text:
    William Joseph RICHARD v. STATE of LOUISIANA, Through the DEPT. OF PUBLIC SAFETY.
    No. 83-C-2132.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re William Joseph Richard, applying for writ of certiorari or review. Court of Appeal, First Circuit. No. 82-CA-0983; 21st Judicial District Court, Parish of Tan-gipahoa, No. 63,003, Div. E.

Denied.

DIXON, C.J., and CALOGERO, J., would grant the writ.


text:
    Mrs. Darryl SANTIAGO, Darryl Santiago, Individually, and on Behalf of his minor Son, Calvin Lee Santiago v. EQUIPMENT LEASING OF CALIFORNIA, Car Clean Enterprises, Inc., Mr. Pride Car Wash Texaco, and Jole, Inc.
    No. 83-CC-2145.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Mrs. Darryl Santiago, Darryl Santiago, et al., applying for writs of certiorari, prohibition, and mandamus. Fourth Circuit Court of Appeal. Civil District Court, Parish of Orleans. No. 79-15023, Division “A”.

Denied.


text:
    Robert F. PERRY v. HOTARD’S PLUMBING, INC. and The Travelers Insurance Company.
    No. 83-C-2147.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Hotard’s Plumbing, Inc. and the Travelers Insurance Company, applying for writ of certiorari of review. Court of Appeal, Fifth Circuit. Parish of St. John The Baptist, Twenty-ninth Judicial District. No. 11,671.

Denied.


text:
    Ronald J. FOREMAN, Executor of Succession of J.Y. Foreman v. J. Boring MONTGOMERY, M.D.
    No. 83-CC-2151.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re J. Boring Montgomery, M.D. and Michael Montgomery, applying for certiora-ri, or writ of review. Fifteenth Judicial District Court, Parish of Lafayette. Third Circuit Court of Appeal. No. 83-859.

Denied.


text:
    STATE of Louisiana In the Interest of Angelique Rebecca MARCHADIE.
    No. 83-CK-2152.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re State of Louisiana, applying for certiorari, or writ of review. Court of Appeal, Fifth Circuit. Juvenile Court, Parish of Jefferson. No. 60478.

Denied.


text:
    Roma and Joseph QUARTANA v. David W. JENKS, Mrs. Romayne Jenks, Mrs. Pat Farley, and Progressive Arts, Incorporated.
    No. 83-C-2155.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re David W. Jenks, Mrs. Romayne Jenks, Mrs. Pat Farley and Progressive Arts, Inc., applying for certiorari, or writ of review. Court of Appeal, Fifth Circuit. Twenty-fourth Judicial District Court, Parish of Jefferson. No. 170-302.

Denied.


text:
    Tommie Holleman YOUNG v. Herman Neil YOUNG.
    No. 83-C-2168.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Herman Neil Young, applying for certiorari, or writ of review. Court of Appeal, Second Circuit. Second Judicial District Court, Parish of Jackson. No. 63281.

Denied.


text:
    SOUTHWEST LOUISIANA GRAIN, INC. v. HOWARD A. DUNCAN, INC., et al.
    No. 83-C-2233.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Howard A. Duncan, Inc., et al., applying for writ of certiorari/review. Third Circuit Court of Appeal. Fifteenth Judicial District Court. No. 47895, Parish of Acadia.

Denied.


text:
    STATE of Louisiana v. Eddie Lee JOHNSON.
    No. 82-KH-1520.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Eddie Lee Johnson, applying for rehearing on denied writ of November 5, 1982,422 So.2d 153, Criminal District Court. Parish of Orleans. No. 263-814.

Denied.


text:
    STATE of Louisiana, ex rel. David Clifton BAILEY v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary and John King, Secretary.
    No. 83-KH-1138.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re David Clifton Bailey, applying for reconsideration of denied writ of September 30, 1983, 438 So.2d 586, Fourteenth Judicial District Court, Parish of Calcasieu. No. 3210-79.

Denied.


text:
    STATE of Louisiana ex rel. Eddie Lee WADDLES v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-2159.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Eddie Lee Waddles, applying for reconsideration of denied writ dated April 5,1983, 430 So.2d 662, First Judicial District Court, Parish of Caddo. No. 98878.

Denied.


text:
    STATE of Louisiana, ex rel. Floyd JEFFERSON v. Rudolph F. BECKER, III, Judge, Section “E”, Criminal District Court, New Orleans, Louisiana.
    No. 83-KH-0385.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Floyd Jefferson, applying for writ of mandamus. Parish of Orleans. No. 272— 245.

Granted. Trial court ordered to furnish Boykin.


text:
    STATE of Louisiana, ex rel., Ruffes J. TUESNO v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-0423.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Ruffes J. Tuesno, applying for writs of certiorari, prohibition, mandamus and habeas corpus. Parish of Orleans. No. 280-513.

Granted. The trial court was without jurisdiction to impose an enhanced sentence as an order of appeal had been entered prior to imposition of the enhanced sentence. See La.C.Cr.P. art. 916; State v. Sharper, 383 So.2d 1248 (La.1980). Accordingly, the enhanced sentence is set aside and the original sentence of 15 years is reinstated. In the event defendant is re-sentenced as a multiple offender, his right to appeal his enhanced sentence is reserved to him.


author: LOTTINGER, Judge.

text:
    STATE of Louisiana v. Joseph CLAY.
    No. 82 KA 1089.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Rehearing Denied Dec. 13, 1983.

      Dixie C. Brown, Asst. Dist. Atty., Houma, for State.
    Warren Daigle and Gary Blaize, Attys., Houma, for Joseph Clay.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

Defendant, Joseph Clay, was indicted for second degree murder, La.R.S. 14:30.1, in the stabbing death of Lloyd Gosa. After a trial by jury, defendant was convicted as charged, and he was sentenced to life in prisonment, without the benefit of probation, parole or suspension of sentence. He has appealed, alleging ten assignments of error.

FACTS

On December 4th, 1980, defendant and a female companion, Barbara Jones, engaged in a fight with Lloyd Gosa, in which the victim suffered a fatal stab wound. According to the testimony of Jones, earlier that afternoon Gosa attempted to rape her in the apartment she shared with defendant. After Jones reported the attack to defendant, he engaged in a fight with the victim, during which defendant attempted to stab Gosa. This fight was broken up without serious injury. Later that evening, when defendant and Jones spotted the victim walking along a street, another fight ensued. Defendant and Jones were joined by Julius Moore. Clay and Moore used knives in the fray; all three assailants kicked the victim and hit him with glass bottles. The victim was stabbed once in the back and died a short time later in a local hospital. After the stabbing, the three assailants fled the area. Later, defendant, Jones, and another companion went to the hospital to determine if the victim had been taken there and the status of his condition. A security guard at the hospital obtained their names and addresses from defendant and his male companion. Defendant was arrested the next day, and a grand jury later indicted Clay, Jones and Moore for second degree murder.

ASSIGNMENTS OF ERROR

Defendant has assigned the following errors:

1. The trial court erred in replacing a selected juror, Mrs. Bertha Domangue, with an alternate, Mrs. DiMarco, without having an adversary hearing as to the reasons for said replacement.
2. The trial court erred in failing to grant a mistrial on defendant’s motion.
3. The trial court erred in overruling defendant’s objection to the question proposed to the witness Lelia Ann Williams by the State concerning the use of the word “stab.”
4. The trial court erred in overruling the defendant’s objection to the State’s question as to whether Constance Harvey understood the Judge’s instructions as to sequestration.
5. The trial court erred in sustaining the state’s objection to defendant’s questions about the police officers investigation involving Jerry Washington.
6. The trial court erred in sustaining the state’s objection proposed by the defendant to Barbara Jones pertaining to things said by Julius Moore, the deceased herein, which formed a part of the res gestae.
7. The trial court erred in sustaining the state’s objection to questions propounded to Julius Moore as to statements made by the deceased herein which were part of the res gestae.
8. The trial court erred in sustaining the state’s objection to the defendant’s testifying to a conversation he had with his landlord.
9. The trial court erred in sustaining the state’s objection to the defendant’s testifying to a conversation he had with his landlord.
10. The verdict of the jury is contrary to the law and the evidence.

ASSIGNMENT OF ERROR NO. 1

As assignment of error number one, defendant claims that the trial court erred in replacing a selected juror, Mrs. Bertha Do-mangue, with an alternate, Mrs. DiMarco, without conducting a hearing as to the reasons for the discharge.

At the beginning of the second day of trial, the trial judge stated:

“It has been reported that one of the jurors, Number 43, Bertha Domangue, has had some accident or problem in her family that requires her presence and she will be unable to attend the trial this morning. For that reason, since we have an alternate, Number 25, Mrs. Dimarco, we will replace Mrs. Domangue with Mrs. Dimarco and proceed with trial.”

Defense counsel then objected because the nature of Mrs. Domangue’s problem was undisclosed.

La.Code Crim.P. art. 789 provides for the replacement of a juror with an alternate juror in the event the former becomes unable to serve or is disqualified. Once a jury has been selected and sworn the defendant has a right to have his case decided by the particular jurors selected to serve. State v. Cass, 356 So.2d 396 (La.1978). A juror may not be discharged unless there is legal cause i.e., death, illness or any other cause which renders a juror unable or disqualified to perform, and an absence of this legal cause will lead to reversal. State v. Willie, 130 La. 454, 58 So. 147 (1912).

La.Code Crim.P. art. 831 lists the instances when a defendant charged with a felony shall be present. One instance when his presence is required is “... at the calling, examination, challenging, impanelling and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror... ”.

The Supreme Court has held that a trial judge conducting proceedings outside of a defendant’s presence to determine a juror’s competency to serve has the “.. . effect of vitiating the entire proceedings ... ”. State v. White, 244 La. 585, 153 So.2d 401, 408 (1963); State v. Copeland, 419 So.2d 899 (La.1982). Also, reversal will be ordered where a trial judge summarily discharges a juror for inability to perform without allowing the defendant an opportunity to explore that inability on the record (at least under similar circumstances as those found in State v. Cass, supra).

We believe that the facts of the instant case are distinguishable from those in the above-cited cases and that the differences mandate a different conclusion.

In State v. White, supra, the trial judge, during a recess, conducted a hearing in his chambers outside of the defendant’s presence after having been told by a juror that he (the juror) thought he was disqualified. After the recess the judge announced that the juror was disqualified and would be replaced by an alternate and that defense counsel would not be allowed to question the excused juror as to the reason for his disqualification. A reversal was ordered.

In State v. Copeland, supra, the trial judge examined two jurors outside the defendant’s presence either in the jury room or in a motel room where the jury was sequestered. Both jurors expressed fears that they might be unable to continue serving and both were told by the trial judge (erroneously) that the consequence of their dismissal would be a mistrial. Both remained jurors. The Supreme Court found that there was no difference between the hearing in the judge’s chambers in White and the discussions in that case. The trial judge had determined outside the presence of the defendant that the two jurors were capable of continuing to serve, and the court again reversed the conviction.

In State v. Cass, supra, the trial judge immediately dismissed a juror in open court because he observed the juror apparently sleeping for two to four minutes while a state’s witness was being cross-examined. The Supreme Court stated that the juror’s behavior did not constitute legal cause to discharge him. Furthermore, the trial court was in error for not allowing the defendant and the state to examine the juror’s inability to perform.

Here, the juror telephoned the trial court on the morning of the second day of trial, saying she was unable to attend trial because of “... some accident or a problem in her family that requires her presence ... ”. The judge then announced this in open court, in the presence of defendant, and replaced the juror with the alternate. Where this case differs materially from the above cases is the discharged juror’s unavailability for questioning as to her inability or incompetency to serve. In White, Copeland and Cass the jurors could have been questioned in front of the defendants, as all were present and available. The trial courts were in error in those cases for not taking the simple step of allowing the defendants to examine the jurors, which could have easily been done. The trial judge here reacted in a prudent manner in replacing the juror. He could have done little else except to direct the sheriff to round up Mrs. Domangue for questioning, which would only have been proper had he not believed she had a pressing family problem or accident which required her presence.

The defendant’s right to have the original twelve jurors selected decide his fate and his right to be present at certain stages of the proceedings are not absolute. Ample cause was present to discharge the juror, and defendant’s absence at the ex parte “hearing” was unavoidable.

We, therefore, find no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 2

In assignment of error number two, defendant argues that the trial court erred in failing to grant his motion for a mistrial based on prejudicial conduct by a witness.

The State called Lelia Ann Williams, a seventeen year old female who had witnessed the incident. Although she had indicated her willingness to cooperate with the prosecution, Williams refused to answer any questions about what she saw that night. After several futile attempts to question the witness, the jurors were removed from the courtroom and the State requested that she be declared a hostile witness and the statement she had given earlier be allowed into evidence. At that time, the defense objected and moved for a mistrial on the grounds that Williams’ actions, by indicating she was afraid to testify, had so prejudiced the proceedings that it would be impossible for defendant to obtain a fair trial. The court refused to grant a mistrial because “the mere fact that she has been silent is not prejudicial to the defendant, and may even be to his benefit for all I know.”

After several more futile attempts to elicit answers from the witness,.the court held a bench conference with both counsel, after which the sister of Julius Moore was removed from the courtroom. The witness then testified freely.

Mistrial is a drastic remedy, which is warranted only if substantial prejudice resulted which would deprive defendant of a fair trial, and the ruling of the trial court will not be disturbed absent an abuse of discretion. State v. Narcisse, 426 So.2d 118 (La.1983) and State v. Tribbett, 415 So.2d 182 (La.1982). Defendant does not substantiate any allegation of prejudice, nor did he request that the jury be admonished. We do not find an abuse of discretion.

ASSIGNMENTS OF ERROR NO. 3 AND 4

In these assignments, defendant submits the court erred in overruling certain objections by defendant. In assignment of error number three, defendant argues that the trial court erred in overruling his objection to the questioning of Williams by the State concerning what she meant by using the word “stab.” In assignment number four, defendant argues that the court erred in overruling his objection to the questioning of one of the witnesses relative to her understanding of the court’s sequestration order.

On cross examination, Williams testified that she saw the victim stabbed once during the fight. Defense counsel then questioned her about a prior statement where she claimed to have seen the victim stabbed several times. On re-direct, the state attempted to have the witness clarify what she was testifying to having seen. The following exchange took place:

Q. When you use the word “stab” do you mean swinging a knife?
A. Yes ma’am.

Defense counsel objected to this exchange and requested that it be stricken from the record because “stab” has a common meaning, and therefore the State was leading the witness. Although the objection was overruled the State rephrased the question eliciting the same response:

Q. What do you mean when you say stabbed?
A. Swinging and swinging a knife.

Defendant argues that it was improper for the State to attempt to have the witness give a specific answer; he argues that this testimony was crucial because only one stab wound was actually inflicted on the victim.

The obvious implication of these facts would be that, since the witness at one time testified that she saw the victim stabbed once, and on another occasion testified that the victim was stabbed several times her credibility was questionable. This implication was clearly presented to the jury, and defendant therefore accomplished his purpose. Under the circumstances, even assuming possible error in the ruling of the trial judge, the error was harmless. La.Code Crim.P. art. 921.

In assignment of error number four defendant argues that the trial court erred in overruling his objection to the State’s questioning of Constance Harvey to determine whether she understood the trial court’s instruction on the sequestration.

On cross examination Harvey revealed that during the trial she had spoken to Leila Williams about the events of the night of the stabbing. Defendant closely questioned her about this violation of the sequestration order. On redirect examination, the state asked Harvey if she had intentionally broken the order of the Court, or if she did not understand it. Defendant objected to the question as being self-serving, but the State argued it was permissible rehabilitation because defendant originally explored the issue on the cross-examination. The court permitted the witness to answer the question, and she responded that she had not understood the order.

Defendant clearly intended to impeach Harvey’s credibility by showing that her testimony was made after possible collusion with another witness. This evidence was presented to the jury. No substantial rights of defendant were prejudiced. La.Code Crim.P. art. 921.

Defendant also argues that the court should have ordered a mistrial sua sponte under La.Code Crim.P. art. 775(3). This article provides as follows:

A mistrial may be ordered, and in a jury case the jury dismissed, when:
(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law.

Although defendant does not specify what constituted the “legal defect,” he seems to argue that a mistrial should have been declared because evidence that the sequestration order had been violated was presented. A defect in the sequestration order does not require reversal, absent a showing that any testimony was changed due to witness tampering or collusion. State v. Tauzier, 397 So.2d 494 (La.1981). The witness stated that she was testifying on the stand from her memory refreshed about events she saw at the time. We find no error such as to render a legal defect in the proceedings.

ASSIGNMENTS OP ERROR NOS. 5, 6, 7, 8 AND 9

In these assignments of error, defendant argues that reversible error was committed by the trial court in its rulings on several objections. Each assigned error relates to an objection raised by the state which the court sustained.

Assignment of error number five relates to the testimony of Aurestile Scott, the officer of the Houma Police Department who conducted the investigation into the stabbing. Scott indicated that he had been advised at the scene of the stabbing that a complaint had been filed earlier regarding the victim, and he had been advised at that time that the victim’s name was Jerry Washington. Scott later testified again that he had spoken with the two other officers who had conducted the investigation involving “Jerry Washington,” but the state objected to any further testimony regarding this investigation as hearsay evidence. The court sustained the objection, noting that there was no clear relevance for the testimony.

We find no error in the court’s ruling. The witness knew of the prior investigation through facts related to him by others. His testimony as to those facts would clearly be hearsay. Moreover, we agree with the trial court that the prior investigation had no clear relevancy to the instant proceedings. This assignment of error has no merit.

In assignments of error six and seven, defendant argues that the court erred in sustaining objections to the testimony of Barbara Jones. Jones was prepared to testify to remarks made by Julius Moore and the victim immediately prior to the stabbing. The state objected to the testimony because of its hearsay nature. Defendant argues that it should have been allowed to be presented as part of the res gestae. The court sustained the objection based on the fact that it was made too far from the actual altercation to be a part of the res gestae. We do not agree that the statements were too far removed in time to actually comprise a part of the res gestae. Jones’ testimony indicates clearly that the statements were made immediately prior to the altercation, and therefore did comprise a part of the res gestae. We note, however, that Jones had already indicated that she could not hear what Moore was saying. She reiterated this point on further questioning. We find no prejudice to defendant because of this ruling.

In assignment of error number seven, defendant argues that the court erred by refusing to allow Julius Moore to testify as to statements made by the victim as a part of the res gestae. Moore testified that the victim was behind him as he walked along the street and stated that, “I guess, he was drunk, the way he was talking.” Defendant then asked Moore how the victim was talking, and the state objected to the question. The court sustained the objection to the question as calling for a hearsay response.

We note that the question did not call for an answer describing what the victim has said but rather the way the victim was speaking; this testimony obviously would not be elicited for the proof of what was said and would not have constituted hearsay. However, defendant does not allege any prejudice from this ruling. Injury, as well as error, must be alleged and shown to justify reversal of a conviction because of the exclusion of evidence. State v. Nahoum, 172 La. 83, 133 So. 370 (1931). Accordingly, this assignment does not merit reversal.

In assignment of error number eight, defendant alleges that the trial court erred in sustaining the state’s objection to testimony by defendant relating to a conversation he had with a friend, Donald James, earlier in the afternoon. Defendant took the stand on his own behalf, and when asked to relate the events of that evening he began to testify to statements made by James to him prior to the stabbing. The State objected to the hearsay testimony, and the court thereafter limited the scope of the conversation to statements which defendant made to James. Defendant objected, based on his right to explain what happened, since the same hearsay statements were contained in the confession defendant made after his arrest. The objection was overruled. Soon afterward, defendant began to relate a statement made by defendant’s landlord to him. The state objected to the hearsay, which objection was sustained, and defendant objected to the court’s ruling on the same basis he advanced relative to the testimony of James.

Hearsay evidence is testimony, in court or written evidence, of an out-of-court statement offered as an assertion to show the truth of the matters asserted therein. State v. Farrar, 374 So.2d 1204 (La.1979). It is inadmissible, except as provided by law. La.R.S. 15:434. The legislature has not provided an exception to this rule which would permit the introduction of hearsay specifically to explain events related in a confession when the hearsay is not otherwise admissible as an exception to the hearsay exclusion rule. See State v. Farrar, supra. A confession, inculpatory statement or declaration must be used in its entirety so that the person affected thereby may have the benefit of any exculpation that the whole statement may afford. La. R.S. 15:450. The statements sought to be introduced by defendant were included in the confession and thus were presented to the jury. We find no error in the denial of the admissibility of these statements.

ASSIGNMENT OP ERROR NO. 10

In assignment of error number ten, defendant argues that the verdict of the jury is contrary to the law and the evidence. Defendant’s argument is based on the fact that Julius Moore, having already pled guilty to manslaughter, testified at defendant’s trial that he had stabbed the victim, and that since the evidence established that the victim was stabbed only once, the verdict is not supported by the evidence.

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime are principals. La.R.S. 14:24. One who aids and abets in the commission of a crime may be charged and convicted with a higher or lower degree of crime, depending upon the mental element proved at trial. State v. Watson, 397 So.2d 1337 (La.1981), cert. den. 454 U.S. 903, 102 S.Ct. 410, 70 L.Ed.2d 222 (1981). The evidence indicated that both defendant and Moore wielded knives in the fray. Even if Moore were the individual who stabbed the victim, the fact that the actual perpetrator pled guilty to manslaughter' did not prevent defendant from being charged as a principal. See State v. McAllister, 366 So.2d 1340 (La.1978). This assignment of error has no merit.

Therefore, the conviction and sentences are affirmed.

AFFIRMED.

      . Both defendant and the State had subpoenaed James, but the Sheriff was unable to serve him. The parties entered into a stipulation as to what James would have testified to, which was introduced by the State.


author: PRICE, Judge. PRICE, Judge.

text:
    PIONEER BANK & TRUST COMPANY, Plaintiff-Appellant, v. DEAN’S COPY PRODUCTS, INC., et al., Defendants-Appellees.
    No. 15757-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.
    On Rehearing Nov. 17, 1983.

      Bodenheimer, Jones, Klotz & Simmons by J.W. Jones, Shreveport, for plaintiff-appellant.
    Jerry Kircus, Shreveport, for defendant-appellee Dean’s Copy Products.
    Wayne H. Cobb, Jr., Shreveport, for defendant-third party plaintiff, James R. Mcllwain.
    Kennedy, Goodman & Donovan by Robert Goodman, Shreveport, for third party defendant Steamer Corp.
    Ed Neilson, Shreveport City Marshall, Shreveport, in pro. per.
    Before PRICE, MARVIN, and JASPER E. JONES, JJ.
   PRICE, Judge.

This is a suit for restitution of the payment of a thing not due. Plaintiff bank appeals the trial court judgment denying its claim, contending that the trial judge erred in holding its reimbursement of funds paid pursuant to garnishment proceedings of the Shreveport City Court was barred by its own negligence.

The defendant Dean’s Copy Products Inc., as judgment creditor of Shreveport Steamer Corporation, served garnishment interrogatories on plaintiff Pioneer Bank. The bank, having an account entitled The Shreveport Steamer, answered affirmatively that it held funds in an account of the judgment debtor. A garnishment order was signed by the Shreveport City Court and the bank paid $1,073.24 to the city marshal, who in turn paid the judgment creditor.

A few days after making this payment, the bank discovered that the account to which it had attributed the payment of the judgment was not the account of Shreveport Steamer Corporation, but actually belonged to a different corporation named The Steamer Corporation, which demanded a credit to its account for the amount paid out. The bank then sued the creditor, the creditor’s attorney, and the city marshal to recover the funds paid in error, relying upon Louisiana Civil Code Articles 2301 and 2310.

It was conceded at trial that the error resulted from the negligence of the bank’s employees in failing to properly check the records of The Steamer Corporation’s account. The trial court held that even if the bank was entitled to restitution under Civil Code Article 2310, its recovery of the money was precluded by its own negligence in making the erroneous payment. The bank contends that its negligence in paying the debt is not a factor in its claim for restitution.

The pertinent code articles provide as follows:

Art. 2301. He who receives what is not due to him, whether he receives it through error or knowingly, obliges himself to restore it to him from whom he has unduly received it.
Art. 2310. He who, through mistake has paid the debt of another to whom he believed himself indebted, has a claim to restitution from the creditor.
This right ceases, if, in consequence of the payment, the creditor has destroyed or parted with his title; but the recourse still remains to the person paying against the true debtor.

Mr. Willie Dark, the Pioneer officer in charge of garnishments, testified that at the time of the defendant’s garnishment order Pioneer held two accounts bearing the customer name of The Steamer Corporation. The one from which the garnishment was paid was the corporation’s general account which was entitled The Shreveport Steamer. The other was the ticket account. He further testified that there were no other accounts bearing names similar to the Shreveport Steamer Corporation or The Shreveport Steamer at that time.

When it paid the garnishment, Pioneer erroneously believed the Shreveport Steamer Corporation was one of its depositors and consequently believed itself to be a debtor of that corporation. See Allen v. Cochran, 160 La. 425, 107 So. 292 (1926), stating that the depositors in a bank are the bank’s creditors. Therefore, Pioneer has, through mistake, paid the debt of one to whom it was not indebted and under the plain language of Civil Code Article 2310, quoted above, has a claim for restitution against the defendant creditor.

The defendant relies on Metropolitan Life Insurance Company v. Mundy, 167 So. 894 (La.App. 1st Cir.1936) and Pennsylvania Casualty Company v. Brooks, 24 So.2d 262 (La.App. 1st Cir.1945) in asserting that the plaintiff is not entitled to recover the payment made by mistake where the error was entirely due to the plaintiff’s own negligence or carelessness. The Metropolitan Life case was brought by an insurer who paid proceeds which were actually due under an insurance policy to the wrong party, even though it had been notified that there were conflicting claims to the proceeds. The court denied the plaintiff’s recovery, stating that the mistake intended by Louisiana Civil Code Articles 2301 et seq. is the honest or unavoidable mistake that the reasonably prudent individual might make under certain circumstances, and not the mistake which is entirely the result of his own gross carelessness. In the Pennsylvania Casualty Company case, the court sustained an exception of no cause of action against an insurer who had paid the claim of a third party after its insured’s policy had expired and then sued its insured for reimbursement of the money under Article 2301, basing its holding on the reasoning of Metropolitan Life.

The later jurisprudence, however, has either been distinguished from these older cases on the facts, or has simply stated that the proper interpretation of this section of the Civil Code is that the payor’s negligence should not bar his recovery. For example, in Jackson v. State, Teacher’s Retirement System, 407 So.2d 416 (La.App. 1st Cir.1981), where the defendant system paid the funds of the decedent’s retirement account to his surviving spouse and his sole heir and it was later found that decedent’s first wife was entitled to the benefits as his designated beneficiary, the court allowed the System to recover back the funds previously paid, stating that the defendant’s negligence, if any, is no bar to its claim for payment in error or through mistake.

In the case of Dynamic Exploration Inc. v. Sugar Bowl Gas Corp., 367 So.2d 18 (La.App. 1st Cir.1978), writ denied 368 So.2d 142 (La.1979), the First Circuit stated:

Additionally, we adhere to what we believe to be the proper interpretation of the Code and the one which a majority of cases follow, namely that negligence per se is not a bar to recovery for the payment of a thing not due. Central Surety and Insurance Corp. v. Corbello, 74 So.2d 341 (La.App. 1st Cir.1954); Continental Oil Company v. Jones, 191 So.2d 895 (La.App. 1st Cir.1966).

See also DeVillier v. Highlands Insurance Company, 389 So.2d 1133 (La.App. 3d Cir. 1980); Texas General Petroleum Corp. v. Brown, 408 So.2d 288 (La.App. 2d Cir.1981), at 292.

We believe that the error of the bank in making payment for another to whom it was not indebted was of the character of ordinary or “honest” mistake which falls within the ambit of Louisiana Civil Code Articles 2301 et seq., and is specifically covered by Article 2310. Thus, such negligence should not bar the bank’s recovery from the creditor. The defendant has received from the bank a sum of money which, while due, was not owed by the bank to defendant’s judgment debtor at the time of the garnishment. We recognize that the payor’s right to restitution ceases if the creditor’s title is destroyed in consequence of the payment, but there is nothing in this record which would tend to show that the defendant has suffered any detriment as a result of receiving the payment from the bank. See Central Surety and Insurance Corporation v. Corbello, supra. Under these circumstances, we find that the plaintiff is entitled to reimbursement of $1,073.24 from the defendants.

One of the defendants, the attorney for the creditor, filed a third party demand against The Steamer Corporation seeking judgment against that corporation for any amount he may be cast in this proceeding. However, no evidence was presented on trial in support of this third party demand nor has it been urged in this court. The demand is therefore rejected.

Each of the defendants should be cast for only the amount received by him. Since we cannot determine from the record before us the exact amount received by each defendant of the sum paid by plaintiff, it is necessary for us to remand the case to the City Court for the taking of additional evidence as necessary to determine the amount for which each defendant should be cast in judgment to plaintiff.

For the foregoing reasons, the judgment appealed is reversed and the case is remanded to the City Court of Shreveport for a determination of the amount received by each of the defendants and for rendition of judgment in such amount against each defendant. Costs of these proceedings including this appeal, are taxed equally against the defendants.

REVERSED AND REMANDED.

PRICE, Judge.

We granted a rehearing in this matter on defendant’s application which pointed out that the original trial court judgment was based on the granting of a motion for a directed verdict in defendant’s favor and that defendant has not had the opportunity to put on their evidence. Although we continue to adhere to the views expressed in our original opinion insofar as it found the sustaining of the motion for directed verdict was improper on the record now before us, we find defendant’s position that it should be allowed to present its evidence on a remand to be well taken. See La.C. C.P. Art. 1810.

Therefore, the judgment of our original opinion is amended to provide that the judgment appealed is reversed, the motion for directed verdict is overruled, and the case is remanded to the trial court for presentation of defendant’s evidence and further proceedings consistent with this opinion and as provided by law.

REVERSED AND REMANDED.


author: CHEHARDY, Judge.

text:
    Frank J. FORTIER, III v. Thomas SESSUM.
    No. 83-CA-397.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.
    Rehearing Denied Dec. 19, 1983.

      Stassi & Rausch, Lucas J. Giordano, New Orleans, for Frank J. Fortier, III, plaintiff, defendant-in-reconvention, third-party plaintiff-appellant.
    Schaff & Currier, John M. Currier, New Orleans, for Thomas Sessum, defendant, plaintiff-in-reconvention appellee.
    Satterlee, Mestayer & Freeman, Henry F. Mestayer, and O’Keefe, O’Keefe & Berri-gan, Wayne T. McGaw, New Orleans, for Dixie Bldg. Material Co., Inc., third-party defendant-appellee.
    Before BOUTALL, CHEHARDY and GAUDIN, JJ.
   CHEHARDY, Judge.

Plaintiff, Frank J. Fortier, III, filed this suit against defendant, Thomas Sessum, for $2,604.59, the amount allegedly due under an oral agreement for concrete work performed at defendant’s home, and $86 to file a workmen’s lien.

Defendant answered claiming the bill was unpaid because it exceeded the price agreed upon, and the work was performed in a careless and negligent manner. He reconvened for $23,600 in damages.

Plaintiff then filed a third party demand against Dixie Building Material Co., Inc., the corporation which supplied the concrete, in the event judgment was rendered against him in the reconventional demand. He also sought judgment against Dixie if the court should dismiss his claim against defendant on the main demand.

Following trial on the merits judgment was rendered dismissing plaintiff’s suit on the main demand. There was judgment in the reconventional demand in favor of defendant in reconvention in the sum of $13,-955.91 plus expert fees of $465, and judgment in the third party demand in favor of Dixie, dismissing the claim against it.

Plaintiff has appealed.

The record reflects the following facts:

Mr. and Mrs. Sessum were contemplating buying a hot tub and went to “Nature Spa” to view the merchandise. Fortier is the owner of that business. Sessum explained that before he could purchase the tub he would need some concrete work done. Plaintiff indicated he was also a contractor and qualified to do that work.

That evening Fortier went to the Sessum home to determine the work involved. The original plan was to top the patio area and a shed row in the rear of the property where defendant was keeping some horses, and create a walkway between the property and the shed row.

Defendant was having a drainage problem and plaintiff was to correct this; however, there is a dispute as to whether or not plaintiff guaranteed he could correct it. Defendant says plaintiff did, but plaintiff claims he only promised to do the best he could and that he could make no guarantee about the drainage.

Both parties agree the original price quoted was $1,601, but at some time prior to the date the work was to begin defendant decided to include topping the driveway area. According to defendant, plaintiff quoted an additional cost of $400, to which he agreed; according to plaintiff all of the work was to be done at cost, which amounted to $2,604.59, the sum for which he billed defendant.

The work was done in one day on May 20, 1980 by plaintiff and six workmen, with concrete supplied by Dixie. The concrete ordered was to have a load-bearing capacity of 3,000 pounds.

The following day defendant called plaintiff to complain the work was unsatisfactory. Fortier went to inspect the job. It was clear that the finish was unsatisfactory. He saw it several times the following week and attempted to correct it with mu-ratic acid, but this was unsuccessful. Some months later it looked much worse.

Plaintiff admits it is steadily deteriorating. Rain and moisture accumulate in puddles in some areas and the water is not draining properly onto the street. The aggregate on the patio and the driveway contains loose pebbles, and there is evidence of chipping and heavy pitting in the shed row.

Everyone agrees that the results are deplorable, including plaintiff, defendant and all of the experts. Quite clearly the work is defective. Therefore, we are called upon to determine who is responsible for the damage and the amount of an award.

It is plaintiff’s position that the damages result from defective concrete. It is admitted by all parties that the concrete ordered was to have a load-bearing capacity of 3,000 pounds psi. Dixie claims the concrete supplied fulfilled that requirement at the time of delivery.

The trial court found the concrete supplied was of high quality and there was no fault on the part of the supplier. In arriving at that determination it was aided by the testimony of various experts.

Plaintiff’s experts were Dr. Saad Mousta-fa, an engineer and concrete expert on the faculty at the University of New Orleans, and Donald Maine, president of Delta Testing & Inspection Company.

Maine took four core samples some months after the pour to determine the load-bearing capacity. • The concrete tested at 2,200 pounds psi. Moustafa felt the concrete was not as durable or strong as it should have been, and although part of the problem was due to poor workmanship, he concluded the deficiency in strength was responsible for the concrete’s later deterioration.

We note here that defendant was not complaining about the load-bearing capacity but only about the cosmetic appearance. The consensus of all of the experts is that there is no correlation between the load-bearing capacity, which is the strength of the finished product, and the cosmetics of the finish.

Edmond Schrenk, an engineer and consultant to the construction industry, and Joseph Scheyd, president of Hammond Construction Co., testified as defendant’s experts, and Charles Kuhn, director of quality control for Dixie, testified on its behalf. Arthur Brown, a concrete finisher, and Dr. Eduardo Guevera also testified as experts for Dixie.

Kuhn described for the court the manner in which concrete is made. He explained it is a perishable mixture of four basic ingredients: cement, sand, gravel and water. Everything is weighed and dropped into a truck in specific sequence. The delivery truck’s tank which holds the mixture runs very slowly at two to three revolutions per minute so the concrete does not set.

The concrete is batched at the plant by-computer. If the mixture goes bad, a tolerance acceptance switch is activated which stops the machine. It will not accept whatever is below or above the tolerance set.

Guevera confirmed that he had examined the batch tickets on defendant’s delivery and the formula shown on the tickets would achieve 3,000 pounds psi mix. In his opinion the finisher let the concrete stay in the truck too long. The final result depends on many factors before, during and after the pour.

The experts agree that the material is perishable and must be handled properly by the concrete finisher to maintain the potential. It is up to the finisher to pour it, treat it and cure it to achieve that potential for which it was designed when it arrives at the job site.

Mr. McPherson, the plaintiff’s concrete finisher, did not testify. Plaintiff himself stated he was present when the concrete arrived but he was not present during the entire finishing period. He claims to have seen his finisher spray the concrete with a hose, using a fine water mist, after it was poured. However, defendant and his wife stated the finisher used a hose with a brass nozzle and the water was coming through full force.

According to most of the experts, the gouges in the concrete were caused by a high power hose which resulted in the pebbles continuing to become dislodged and created the ugly cosmetic finish.

The trial court was impressed with the testimony of Mr. Brown, the independent paving contractor. Brown stated the job was absolutely horrible, that it was laid down wrong and should have been handled by at least eight to ten men, if done properly, and should have taken more than one day. He concluded the work had been performed by an inexperienced finisher and that too much water had been left to sit on top, thus causing the deteriorating surface.

The failure of plaintiff to call his concrete finisher, Mr. McPhearson, or explain his absence, raises the presumption that his testimony would have been unfavorable. Judice Armature Works, Inc. v. Bd. of Com’rs, Etc., 410 So.2d 368 (La.App. 4th Cir.1982).

The trial court found the problem arose when this quality product (i.e. the Dixie concrete) was turned over to plaintiff’s concrete finisher who caused the problem. That finding is amply supported by the record.

Having concluded the plaintiff was at fault, the trial court dismissed his suit against defendant in the main demand and granted judgment in the reconventional demand to defendant in reconvention in the sum of $13,955.91. In reasons for judgment he itemized that award as follows:

1. The cost to test the defective concrete $ 447.37
2. The cost of the engineer to examine the job 58.39
3. The current cost to repair the job 12,900.00
4. Cost to repair broken water pipes 85.15
5. Cost of consulting engineer (expert) to testify 240.00
6. Cost of testing engineer (expert) to testify 150.00
7. Cost of contractor (expert) to testify 75.00
TOTAL $13,955.91

Appellant contests all of the awards, particularly the $12,900 cost of repair, and the separate award of experts’ fees in addition to those itemized above.

We agree the in globo award already includes $465 for experts’ fees. Consequently the separate award of $465 for experts’ fees in addition thereto is a duplication and the judgment should be reversed in that respect.

We also agree with the award of $447.37 to test the defective concrete, and that of the engineer to examine the job ($58.39). These services were necessary to determine whether or not the concrete was indeed defective, and if so, in what respect. See Wappler v. Braucht, 209 So.2d 603 (La.App. 2d Cir.1968).

The evidence further supports the award of $85.15 to repair the broken water pipes. The damage was caused by trucks which plaintiff had been warned to keep away from that area due to the location of the pipes.

Appellant’s principal complaint concerns the award of $12,900 for the current cost to repair the job. This award was based principally upon the testimony of Mr. Scheyd.

Scheyd conceded the most economical way to repair the job would be to top it with rich additional concrete. However, he gave no estimate of this cost because it would not alleviate the drainage problem.

To correct the drainage problem Scheyd proposed to tear up all of the existing concrete paving, including that already in place prior to the work done under the contract in suit, and start from scratch.

His cost was based upon the estimate of April 28, 1981:

“Re: Replacement of existing concrete paving at 4808 Taft Parkway — Metair-ie, La.
Gentlemen:
We are pleased to quote you a lump sum price of Twelve Thousand Nine Hundred Dollars ($12,900.00) to furnish all labor, materials, equipment, supervision, taxes, and insurances to perform the work listed below as shown on the enclosed sketch.
1. Breakout and remove approximately 1900 square feet of existing concrete paving.
2. Pill and compact with sand fill under the new paving area.
3. Install approximately 1900 square feet of new 4 inch thick concrete paving reinforced with' 6X6 10/10 mesh and all associated formwork and expansion joints.
4. Install approximately 1523 square feet of exposed aggregate topping ¾ inches thick.
5. Install fill and grade perimeter areas of new concrete paving. This price excludes grass seeding or sodding of any disturbed areas.”

In analyzing the lump sum proposal Scheyd allocated $2,900 to the cost of breaking up and removing all of the existing concrete, including that pre-existing this contract. (Estimate, Item No. 1)

Five Hundred Dollars of the estimate covered the cost of sand fill and compacting that fill after the removal of the existing concrete and prior to pouring the new concrete. (Item No. 2)

We are unable to determine from Scheyd’s testimony the cost of labor and materials to install the 1900 square feet of new concrete paving. (Item No. 3)

He testified that the cost of installing the 1,523 square feet of topping would be $1,200 (Item No. 4). This includes a different finish than that installed by appellant and is much more expensive. The new topping would be like that of a driveway across the street which appellee admires.

Finally, Scheyd would fill in areas surrounding the new concrete with sand at a cost of $198. (Item No. 5)

It is implicit in every building contract that the work of the builder is to be performed in a good workmanlike manner, free from defects in either materials or workmanship. An owner seeking to recover from the contractor has the burden of proving both the existence and nature of the defects, that the defects were due to faulty materials or workmanship and the cost of repairing the same. LSA-C.C. art. 2769; Trahan v. Broussard, 399 So.2d 782 (La.App. 3d Cir.1981); Nichols Ford Company, Inc. v. Hughes, 292 So.2d 345 (La.App. 2d Cir.1974).

Where the contractor fails to do the work he has contracted to do, or does not execute it in a manner agreed to he is liable in damages for losses that may ensue from his noncompliance with the contract. C.C. art. 2769.

In awarding plaintiff the $12,900 the trial court was attempting to place appellee in the position he would have occupied had appellant properly performed under the contract.

It is appellant’s position that the award of damages in the full amount of the estimate is manifestly erroneous since it includes work clearly in excess of that contemplated by the contract.

We agree with that contention.

However, where the defects are such that they cannot be corrected except by removing and replacing the construction, the owner may require the contractor to remove the object from his land and restore the premises to their prior condition. Trahan v. Broussard, supra; Martin v. AAA Brick Co., Inc., 386 So.2d 987 (La.App. 3d Cir.1980); Neel v. O’Quinn, 313 So.2d 286 (La.App. 3d Cir.1975).

It will be necessary to remove all of the existing concrete, including the concrete on the property before the performance of the contract, because the experts concede that this would be cheaper than to attempt to remove only the new concrete or aggregate. It also appears that any attempt to refinish the existing concrete with more rich concrete would compound the current drainage problems, which are even worse than those existing prior to the contract.

For these reasons we approve of the $2,900 award in Item No. 1.

It will then be necessary to fill with sand and compact prior to pouring new concrete, so we would also affirm the $500 award for this item.

Appellant is then entitled to have replaced the amount of concrete which was in existence prior to his contract with appellant.

Because there is insufficient evidence in the record for us to determine the amount of concrete in place before the contract and the cost of replacing that amount, equity requires that we remand the case to the district court for the limited purpose of taking evidence on this point alone.

Appellant is not entitled to replacement of any other concrete other than that which existed prior to this contract. To do so would exceed restoring his property to its prior condition, and constitute unjust enrichment.

We also disallow the awards for the topping (Item No. 4) and for the additional sand (Item No. 5) for the same reasons.

We reject appellant’s claim to be paid for the work performed, because his work was so defective as to be practically useless. Ilgenfritz v. Radalec, Inc., 226 La. 59, 74 So.2d 903 (1954).

For the reasons assigned we remand this case to the district court for the purpose of taking limited additional evidence, as indicated, and for awarding judgment not inconsistent with the views expressed.

REMANDED.


author: PONDER, Judge. LOTTINGER, Judge,

text:
    Ronald J. SPILLMAN, et al. v. The CITY OF BATON ROUGE.
    No. 14528.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Rehearing Denied Dec. 22, 1983.

      Floyd J. Falcon, Jr., John L. Avant, Baton Rouge, for plaintiff-appellant Ronald J. Spillman, et al.
    Victor A. Sachse, III; Gordon A. Pugh; Claude F. Reynaud, Jr. of Breazeale, Sachse and Wilson and Lynn E. Williams, Parish Atty. and Charles M. Raymond, Asst. Parish Attorney.
    Before COVINGTON, LOTTINGER, PONDER, COLE, WATKINS, SHORTESS, CARTER, SAVOIE, LANIER, CRAIN and ALFORD, JJ.
   PONDER, Judge.

Certain firemen and former firemen in Baton Rouge brought this class action seeking recalculation of accrued longevity, overtime and holiday pay and payment of the amounts allegedly due.

The issue was whether LaFleur v. City of Baton Rouge, 124 So.2d 374 (La.App. 1st Cir.1960), which held that R.S. 33:1992, et seq., did not apply to the City of Baton Rouge because of the City’s Home Rule Charter with constitutional status, was still viable after the adoption of the new Constitution. Because of possible conflict with the decision of a panel of this court and the importance of the issue, this court considered the case en banc. We affirmed the lower court’s decision that the class action was appropriate and that estoppel by laches did not bar collection of that part of the extra pay against which prescription had not run. We further held that rights granted under R.S. 33:1992, 1994 and 1999 were not automatically bestowed by the adoption of the Constitution of 1974 without some additional action on the part of the legislature. We reached this conclusion on the basis of Art. 14, § 26 of the Constitution of 1974 which reads as follows:

“Except as otherwise specifically provided in this constitution, this constitution shall not be retroactive and shall not create any right or liability which did not exist under the Constitution of 1921 based upon actions or matters occurring prior to the effective date of this constitution.”

The effect of our decision in the instant case was that R.S. 33:1992, et seq. still did not apply because the legislature had taken no action thereon after the adoption of the Constitution of 1974. Spillman v. City of Baton Rouge, 417 So.2d 1212 (La.App. 1st Cir.1982). We reversed the lower court despite Art. 6, § 14 of the 1974 Louisiana Constitution which reads as follows:

“No law requiring increased expenditures for wages, hours, working conditions, pension and retirement benefits, vacation, or sick leave benefits of political subdivision employees, except a law providing for civil service, minimum wages, working conditions, and retirement benefits for firemen and municipal policemen, shall become effective until approved by ordinance enacted by the governing authority of the affected political subdivision or until the legislature appropriates funds for the purpose to the affected political subdivision and only to the extent and amount that such funds are provided. This Section shall not apply to a school board.” (Emphasis added.)

The Supreme Court granted a writ of review and remanded the case “to reconsider in light of New Orleans Firefighters Association v. Civil Service Commission, 82-C-0025,” decided after our decision. Spillman v. City of Baton Rouge, 430 So.2d 92 (La.1983).

In New Orleans Firefighters Association v. Civil Service Commission of the City of New Orleans, 422 So.2d 402 (La.1982), the Supreme Court decided that the provisions of Art. 6, Sec. 14, underlined above, removed the obstacle to the application of the provisions of the firemen’s minimum wage law to the City of New Orleans despite the declaration of unconstitutionality as applied to the City of New Orleans in Barnett v. Develle, 289 So.2d 129 (La.1974). They further said, “We perceive, therefore, no adequate grounds for adjudging that a reenactment of the statute was required before it could have the effect within the city which it had always had throughout the state.” An ungrudging application of that decision to the issues of this case leads, we believe, to the reversal of our prior decision as to the necessity of legislative action.

The question as to the possible conflict of Art. 6, § 14, with §§ 4, 5 and 6, we believe, was disposed of by the New Orleans Firefighters Association case, also. The court specifically said:

“There is nothing in the wording of Art. 6, § 14 that restricts the power of the legislature to enact minimum wage and working condition laws for firemen. On the contrary, this power is expressly reserved to the legislature as an exception to the provision’s restraint upon laws increasing the financial burden of political subdivisions.”
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“We conclude that the fire and police minimum wage provision of Art. 6, § 14 is not only an exception to the home-rule financial autonomy created by the remainder of the section, but also is a positive reaffirmance of the plenary power of the legislature to guarantee adequate fire and police protection for all citizens of Louisiana.”

It is true that the court was considering the effect of Art. 6, § 14 and of Art. 10, § 10 on each other. However, we can see no different result if the issue is one of the effect of Art. 6, §§ 14 and 4, 5 and 6 with each other. The Constitution grants to. the legislature plenary power over the minimum wage and law standards of firemen and policemen. See Ruby v. City of Shreveport, 421 So.2d 1267 (La.App. 2d Cir.1983), writ denied, 433 So.2d 154 (La.1983).

It is urged that because the court in New Orleans Firefighters Association v. Civil Service Commission of the City of New Orleans, supra, did not refer to Art. 14, §§ 18, 23 and 26 of the 1974 Louisiana Constitution, the decision therein is not controlling.

The conclusion that Art. 14, § 26 does not control follows from the mandate that we reconsider despite the fact that our prior decision was very specifically grounded on that provision. Sec. 18(A) of Art. 14 would not give more sanctity to LaFleur v. City of Baton Rouge, supra, than the court allowed to Barnett v. Develle, supra. The distinction between universal unconstitutionality and the unconstitutional application to a particular agency would be just as applicable here. Furthermore, examination of the briefs shows that Art. 14, § 18(A) was urged upon the court in the New Orleans Firefighters Association case. The failure to mention was at least a tacit rejection.

Art. 14, § 23 seems to be of less applicability than either § 18 or § 26. Certainly it could not have meant that the Constitution could not have any effect on the legal principle of the LaFleur case, and of any other case that had ever been decided.

For these reasons, the decision of the lower court is affirmed. The defendant is cast with all costs.

AFFIRMED.

LOTTINGER, J., dissents and assigns reasons.

COVINGTON, C.J., and CARTER, J., dissent for reasons assigned by LOTTINGER, J.

LOTTINGER, Judge,

dissenting.

I respectfully disagree with the reasoning and conclusion reached by the majority, and therefore dissent.

The fallacy of the majority’s opinion is based on the conclusion that inasmuch as the original opinion of this court was founded on the applicability of La. Const, art. XIV, § 26, and that despite that fact the Supreme Court ordered this court to reconsider its original opinion in light of New Orleans Firefighters Association v. Civil Service Commission of the City of New Orleans, 422 So.2d 402 (La.1982), the Supreme Court was telling this court by the mere remand that La. Const, art. XIV, § 26 did not apply. If for the sake of argument the Supreme Court was of the opinion that Art. XIV, § 26 was not applicable, it could have merely reversed the decision of this court with a notation to see Firefighters, supra. But this it did not do. Instead it ordered a reconsideration, in essence telling this court to reanalyze its conclusion and at the same time consider the decision in Firefighters, supra. Stated another way, the Supreme Court was telling this court to handle this case as if for the first time, but with the benefit of Firefighters, supra. Thus, I disagree that the inapplicability of Art. XIV, § 26 is mandated by the remand for reconsideration.

In Firefighters, the Supreme Court concluded that though a legislative act had been previously ruled unconstitutional as applied to the City of New Orleans, though applicable elsewhere within the state under the Louisiana Constitution of 1921, Barnett v. Develle, 289 So.2d 129 (La.1974), it could perceive of no adequate grounds for requiring a reenactment of the statute under the Louisiana Constitution of 1974 before it could have effect within the City of New Orleans which it always had throughout the state, citing Wilkerson v. Rahrer, 140 U.S. 545, 11 S.Ct. 865, 35 L.Ed. 572 (1890).

Obviously missing from the Supreme Court’s decision in Firefighters, supra, is any mention or reference to La. Const, art. XIV, §§ 18, 23 and 26. Similar restrictive provisions are not found in the United States Constitution, thus, the conclusion that Wilkerson v. Rahrer, supra, is inappo-site. The original opinion of this court, 417 So.2d 1212, was based on Art. XIY, § 26, the non-retroactive application section.

Additionally, I fail to see any distinction between the non-applicability of an act of the legislature because of its unconstitutionality in its entirety and its unconstitutionality as it is attempted to be applied to a particular segment or section of society. It either is or it is not constitutional. La. Const, art. XIV, § 18 provides that laws which were in force on the effective date of the 1974 Constitution, constitutional when enacted and not in conflict with the present constitution shall remain in effect. This court in LaFleur v. City of Baton Rouge, 124 So.2d 374 (La.App. 1st Cir.1960) held that under the Constitution of 1921 the provisions of La.R.S. 33:1992 were not applicable to the City of Baton Rouge. Thus, prior to the 1974 Constitution, La.R.S. 33:1992 had already been declared unconstitutional insofar as it applied to the City of Baton Rouge.

Lastly, Art. XIV, § 23, provides that all judgments existing on the effective date of the 1974 Constitution shall continue unaffected. LaFleur, supra, was a judgment of this court which “shall continue unaffected.”

Inasmuch as the Supreme Court in Firefighters, supra, did not consider these constitutional provisions, I am not convinced that it is controlling of the issues in this case. Therefore, I would affirm our original decision, and thus dissent.

      . La.R.S. 33:1992:
      The minimum monthly salaries of firemen in municipalities having a population of thirteen thousand or more and of all parish and fire protection district paid firemen, including the avails of any special tax provided by the Constitution of Louisiana for increasing the pay of firemen, shall be in accordance with the following schedule:
      (1) A salary of $300.00 a month, which said monthly salary shall be paid semi-monthly not later than the fifth day and the twentieth day of each calendar month.
      (2) Engineers shall be paid a salary of not less than ten percent above the minimum salary of a fireman.
      (3) Lieutenants shall be paid a salary of not less than fifteen percent above that of a fireman.
      (4) Captains shall be paid a salary of not less than twenty-five percent above that of a fireman.
      (5) Assistant Chiefs, Battalion Chiefs, and District Chiefs shall be paid a salary of not less than forty percent above that of a fireman.
      (6) Mechanic or Assistant Mechanic, or any other person doing this type of work for the Fire Department shall be paid a salary of not less than twenty-five percent above that of a fireman.
      (7) Superintendent of Fire Alarm System, or any other person doing this type of work for the Fire Department, shall be paid a salary of not less than forty percent above that of a fireman.
      (8) Fire Inspector, or any other person doing this type of work for the Fire Department, shall be paid a salary of not less than twenty-five percent above that of a fireman.
      (9) Fire Instructor shall be paid a salary of not less than twenty-five percent above that of a fireman.
      From and after the first day of August, A.D., 1962, each member of the Fire Department who has had three years continuous service shall receive an increase in salary of two percent and shall, thereafter, receive an increase in salary of two percent for each years additional service up to and including twenty years. As amended Acts 1956, No. 219, § 1; Acts 1962, No. 132, § 1.
      La.R.S. 33:1994:
      A. The maximum hours of work required of firemen covered by this Sub-part in cities having a population of thirteen thousand or more and that of all parish and fire protection district paid firemen in any calendar week shall be sixty hours. However, in case of emergencies, they may be required to work in excess of the maximum hours. For each hour so worked in excess of sixty hours in any calendar week a fireman shall be paid at the rate of one and one-half times his usual salary, to be determined by reducing his average monthly salary to an hourly scale.
      B. The maximum hours of work required by persons employed or engaged full time by municipalities or municipal fire departments or by parish or parish fire departments or fire protection districts as operators of fire alarm systems in any one calendar week shall be forty-two hours. As amended Acts 1950, No. 239, § 1; Acts 1952, No. 242, § 1; Acts 1962, No. 132, § 1.
      La.R.S. 33:1999:
      Firemen in municipalities, parishes and fire protection districts who are required to work on any or all of certain legal holidays, namely Christmas, New Year’s Day, July 4, Labor Day, Thanksgiving Day, and National Memorial Day, shall receive in addition to the compensation to which such employee would be under laws and pay plans now in effect, compensation at the rate of one times his usual salary, to be determined by reducing his average monthly salary to an hourly scale; provided that in lieu of additional compensation, governing authorities, at their option, may grant fire department employees time off from work for which such additional compensation would be due and payable to said employees.

      . La. Const. Art. 6, §§ 4, 5 and 6:
      § 4. Every home rule charter or plan of government existing or adopted when this constitution is adopted shall remain in effect and may be amended, modified, or repealed as provided therein. Except as inconsistent with this constitution, each local governmental subdivision which has adopted such a home rule charter or plan of government shall retain the powers, functions, and duties in effect when this constitution is adopted. If its charter permits, each of them also shall have the right to powers and functions granted to other local governmental subdivisions.
      § 5. (A) Authority to Adopt; Commission. Subject to and not inconsistent with this constitution, any local governmental subdivision may draft, adopt, or amend a home rule charter in accordance with this Section. The governing authority of a local governmental subdivision may appoint a commission to prepare and propose a charter or an alternate charter, or it may call an election to elect such a commission.
      (B) Petition to Elect Commission. The governing authority shall call an election to elect such a commission when presented with a petition signed by not less than ten percent of the electors or ten thousand electors, whichever is fewer, who live within the boundaries of the affected subdivision, as certified by the registrar of voters.
      (C) Adoption; Amendment; Repeal. A home rule charter shall be adopted, amended, or repealed when approved by a majority of the electors voting thereon at an election held for that purpose.
      (D) Adoption by Two or More Local Governmental Subdivisions. Two or more local governmental subdivisions within the boundaries of one parish may adopt a home rule charter under this Section if approved by a majority of the electors in each affected local governmental subdivision voting thereon in an election held for that purpose. The legislature shall provide by law the method of appointment or election of a commission to prepare and propose a charter consistent with Paragraph (A) of this Section and the method by which the electors may petition for an election consistent with Paragraph (B) of this Section. However, at least one member of the commission shall be elected or appointed from each affected local governmental subdivision.
      (E) Structure and Organization; Powers; Functions. A home rule charter adopted under this Section shall provide the structure and organization, powers, and functions of the government of the local governmental subdivision, which may include the exercise of any power and performance of any function necessary, requisite, or proper for the management of its affairs, not denied by general law or inconsistent with this constitution.
      (F) Additional Powers and Functions. Except as prohibited by its charter, a local governmental subdivision adopting a home rule charter under this Section shall have the additional powers and functions granted to local governmental subdivisions by other provisions of this constitution.
      (G) Parish Officials and School Boards Not Affected. No home rule charter or plan of government shall contain any provision affecting a school board or the offices of district attorney, sheriff, assessor, clerk of a district court, or coroner, which is inconsistent with this constitution or law.
      § 6. The legislature shall enact no law the effect of which changes or affects the structure and organization or the particular distribution and redistribution of the powers and functions of any local governmental subdivision which operates under a home rule charter.

      . La. Const. Art. 14, §§ 18, 23 and 26:
      § 18(A). Laws in force on the effective date of this constitution, which were constitutional when enacted and are not in conflict with this constitution, shall remain in effect until altered or repealed or until they expire by their own limitation.
      (B) Laws which are in conflict with this constitution shall cease upon its effective date.
      § 23. All writs, actions, suits, proceedings, civil or criminal liabilities, prosecutions, judgments, sentences, orders, decrees, appeals, rights or causes of action, contracts, obligations, claims, demands, titles, and rights existing on the effective date of this constitution shall continue unaffected. All sentences as punishment for crime shall be executed according to their terms.
      § 26. Except as otherwise specifically provided in this constitution, this constitution shall not be retroactive and shall not create any right or liability which did not exist under the Constitution of 1921 based upon actions or matters occurring prior to the effective date of this constitution.


author: WATKINS, Judge.

text:
    Francis PIZZOLATO, Francis A. Pizzolato and Pizzolato Ford-Lincoln-Mercury, Inc. v. Elmer FIELD, Jr., et ux.
    No. 82-CA-0990.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    William C. Shockey, .Baton Rouge, for plaintiffs-appellants Francis Pizzolato, et al.
    J. Huntington Odom, John L. Dardenne, Jr., Baton Rouge, for defendant-appellee Elmer Field, Jr., et al.

      Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

Plaintiffs, Francis Pizzolato, Francis A. Pizzolato and Pizzolato Ford-Lincoln-Mercury, Inc., appeal the granting of defendants’ motion for a partial summary judgment. Plaintiffs instituted this action against Elmer Field, Jr. and Barbara Waters Field. The original petition alleged that defendants sold to plaintiffs, by cash sale, the entire capital stock of D’Spain-Field Ford, Inc. Plaintiffs alleged that defendants had breached a purchase agreement entered into prior to the sale by making certain misrepresentations and omissions and in taking certain actions. Plaintiffs sought a reduction in the purchase price along with damages.

Subsequently, plaintiffs amended their petition on two occasions. After amendment, the petition alleged that plaintiffs were entitled to rescission of the sale, return of the purchase price, expenses, attorney fees, interest and costs. Plaintiffs’ claims were based upon three legal theories:

1 — Violations of 15 U.S.C. sec. 78j (section 10 of the Securities Exchange Act of 1984) and 17 CFR sec. 240.10b-5 (Rule 10b-5);
2 — Violations of LSA-R.S. 51:715A(3) (Louisiana Blue Sky Law); and
3 — Breach of the contract of sale and the warranties of sale by intentional, reckless and/or negligent material misrepresentations and omissions.

Defendants moved for partial summary judgment on the federal and state securities law claims. In support of their motion, defendants contended that the transaction in question was exempt from coverage under the Louisiana Blue Sky Law by virtue of LSA-R.S. 51:705(3). They also contended that federal securities law was inapplicable under the “Sale of Business” doctrine.

The trial court granted defendants’ motion and rendered judgment dismissing plaintiffs’ claims under the Louisiana Blue Sky Law and federal securities law. Plaintiffs have appealed the judgment of the district court. We reverse and remand for further proceedings.

The motion for summary judgment filed by the defendants was lacking in procedural efficacy for the reason that it did not place at issue the relief prayed for by plaintiffs or defendants,- but rather simply placed at issue two of plaintiffs’ theories of the case.

Under LSA-C.C.P. art. 966 a defendant may seek a summary judgment granting all or part of the relief for which he has prayed. Here, defendants prayed for a dismissal of plaintiffs’ suit. A similar prayer by defendant was involved in our affirming the granting of a partial summary judgment in Beard v. Assumption Parish Police Jury, 413 So.2d 923 (La.App. 1st Cir.1982), in which plaintiff asserted two separate causes of action involving different forms of relief, one in workmen’s compensation and the other in tort. Here, plaintiffs assert three distinct theories of the case, involving (1) the Federal Securities Law, (2) Louisiana’s Blue Sky Law, and (3) breach of warranty, but as well as we can determine from reading plaintiffs’ initial and two amended petitions, plaintiffs seek but one basic form of relief. Thus, the summary judgment granted by the trial court does not affect the relief prayed for by either plaintiffs or defendants, but, rather, merely strikes down two of plaintiffs’ theories of the case. A summary judgment cannot merely strike down á theory of the case; it must consider the ultimate relief prayed for. See Smith v. Hanover Insurance Co., 363 So.2d 719 (La.App. 2d Cir.1978), to which the Louisiana Supreme Court applied its stamp of approval in Dryades Savings and Loan Association v. Lassiter, 400 So.2d 894 (La.1981). As both Smith and Dryades correctly state, the granting of a summary judgment determining a matter other than the relief sought would result in piecemeal litigation and piecemeal appeal, to the detriment of the ultimate cause of justice.

Because we hold that the motion for summary judgment was an improper vehicle for the questioning of plaintiffs’ theories of the case, no issue as to ultimate relief having been conclusively determined, we find it unnecessary to consider the applicability of the Federal Securities Law and Louisiana’s Blue Sky Law.

For the foregoing reasons, the judgment of the district court, granting defendants’ motion for partial summary judgment, is reversed and the case is remanded for further proceedings. All costs of this appeal are assessed against defendants-appellees.

REVERSED AND REMANDED.


author: PONDER, Judge.

text:
    Andrea Clesi FERTITTA and Jack Gathian Fertitta v. ALLSTATE INSURANCE COMPANY, et al.
    No. 82 CA 1101.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Writ Granted Jan. 16, 1984.
    Stephen E. Broyles, Baton Rouge, for plaintiff-appellee Andrea Clesi Fertitta and Jack Gathian Fertitta.
    Ben F. Day, Baton Rouge, for third party plaintiff-appellee Paula McCarron.
    Ben Louis Day, Baton Rouge, for third party defendant-appellee State Farm Mut. Auto. Ins. Co.
    Donald R. Smith, Baton Rouge, for defendant-appellant Allstate Ins. Co. and Paul McCarron.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Plaintiff, Andrea Clesi Fertitta, filed a motion to dismiss the appeal of Paula McCarron, defendant, on the ground that no bond was posted in her behalf and that she had failed to allege or brief any error relating to the judgment rendered against her in favor of Fertitta. We deny the motion.

Through oversight, the decision on the merits was handed down without addressing the issues raised by this motion. Fertitta v. Allstate Insurance Company, et al, 439 So.2d 531 (La.App. 1st Cir.1983). We feel that the decision in that case implicitly disposed of the motion and rendered the issues raised moot. However, to clarify the situation, we make the following findings:

We find because the motion for the appeal was made on behalf of McCarron and Allstate, the bond was set at $71,000.00 and the appeal bond identified the judgment as being against both defendants that the bond did cover McCarron’s appeal. The fact that only Allstate was listed as principal later in the bond, does not render the appeal invalid. Furthermore, even if the bond does not cover the appeal, McCarron would still have a valid devolutive appeal.

McCarron’s appellate brief, answer to Allstate’s appeal and opposition to plaintiff’s motion to dismiss are strong evidence of an intent not to abandon her appeal. While McCarron’s appellate brief did not raise a specification of error regarding the award to Fertitta, the issue of credit to her because of settlement with the uninsured motorist carrier was adverted to, even though somewhat tangentially.

MOTION DENIED.