text:
    STATE of Louisiana v. Gregory Charles LeBEOUF.
    No. 83-KK-1877.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Gregory Charles LeBeouf, applying' for writ of review and certiorari. Nineteenth Judicial District Court. No. 12-73-7789. Parish of East Baton Rouge, Court of Appeal, First Circuit. No. 83-KW-0692.

Writ granted. Case remanded to Court of Appeal for briefing, argument and a written opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Wayne BYRD v. Charles FOTI, Jr.
    No. 83-KH-2156.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
    Reconsideration Denied Dec. 16, 1983.
   In re Wayne Byrd, applying for habeas corpus. Criminal District Court, Parish of Orleans. No. 290-897 Section E. Fourth Circuit Court of Appeal. No. 1395.

Granted. The trial court is ordered to conduct an evidentiary hearing.


text:
    Burnell WILLIAMS v. Michael BUA and State Farm Mutual Automobile Insurance Company.
    No. 83-CC-1911.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Michael Bua and State Farm Mutual Automobile Insurance Company, applying for writ of certiorari and/or review. Fourth Circuit Court of Appeal. No. C-1116. Civil District Court, Parish of Orleans. No. 82-17729 Division “B”.

Not considered. Not timely filed. See Rule 10, § 5(b), La. Supreme Court Rules.


text:
    STATE of Louisiana ex rel. A.B. WILSON v. Frank C. BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 65980.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re A.B. Wilson, applying for writ of mandamus. Eighteenth Judicial District Court, Parish of Pointe Coupee.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Bennie HUDGINS v. 7TH JUDICIAL DISTRICT COURT PARISH OF CATAHOULA.
    No. 81-KH-1200.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Bennie Hudgins, applying for writs of mandamus. Parish of Catahoula. Nos. 80-091 and 80-092.

Denied.


text:
    STATE of Louisiana ex rel. Charles CALDWELL v. Honorable Eugene W. BRYSON, Jr.
    No. 81-KH-1877.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Charles Caldwell, applying for writ of mandamus, and supervisory remedial. Parish of Caddo. No. 111-554.

Denied.


text:
    STATE of Louisiana, ex rel., Jimmie Lee STEWART v. Frank C. BLACKBURN, Warden, et al.; Louisiana State Penitentiary.
    No. 81-KH-1960.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Jimmie Lee Stewart, applying for writs of mandamus. Parish of Orleans. No. 202-968.

Denied. Relator may resubmit application to trial court which has no record of filing.


text:
    STATE of Louisiana ex rel., Wilbert M. DORSEY v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2345.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Wilbert M. Dorsey, applying for writ of mandamus. Parish of Orleans. No. 226-982.

Denied.


text:
    STATE of Louisiana ex rel. Clarence GREEN v. STATE of Louisiana.
    No. 82-KH-0250.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Clarence Green, applying for writ of mandamus. Parish of West Carroll. Number Unknown.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. John SERCOVICH v. Honorable Frank SHEA, Judge.
    No. 82-KH-0338.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re John Sercovich, applying for writ of habeas corpus. Orleans Parish.

Denied.


text:
    STATE of Louisiana, ex rel., Darren D. HAYWOOD v. ORLEANS INDIGENT DEFENDER PROGRAM.
    No. 82-KH-0352.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Darren D. Haywood, applying for remedial writs. Parish of Orleans. No. 281-981.

Denied.


text:
    STATE of Louisiana, ex rel., Edward MAIZE v. STATE of Louisiana.
    No. 82-KH-0353.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Edward Maize, applying for writ of mandamus and motion for trial transcript. Parish of St. Mary. No. 197-325.

Denied.


text:
    STATE of Louisiana ex rel., Gilbert FRANKLIN v. N. Burl CAIN, Warden, Dixon Correctional Institute.
    No. 82-KH-0586.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Gilbert Franklin, applying for writ of mandamus. East Baton Rouge Parish. No. 7-80-102.

Denied. Relator may refile in trial court.


text:
    STATE of Louisiana ex rel. Johnny R. HERMAN v. Nestor L. CURRAULT Judge 24th District Court.
    No. 82-KH-0806.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Johnny R. Herman, applying for writ of mandamus. Parish of Jefferson.

Denied. Relator must refile his petition in the district court.


text:
    STATE of Louisiana ex rel., Danny SERMON v. 14TH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, LAKE CHARLES, Louisiana.
    No. 83-KH-1675.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Danny Sermon, applying for writ of mandamus. Fourteenth Judicial District Court, Parish of Calcasieu. No. 10318-77.

Denied. Moot.


text:
    CITIZENS, ELECTORS AND TAXPAYERS OF TANGIPAHOA PARISH v. Edward LAYRISSON, Sheriff of Tangipahoa Parish and the Tangipahoa Parish Police Jury; Charles "Buddy" Rogers, Joseph Giardina, Joseph Noto, Johnnie Santangelo, Lester Cutrer, Cyril Landry, Bill Fleet, Raymond Darcy Blades, and Ronnie Bankston.
    No. 83-CC-1879.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Citizens, Electors and Taxpayers of Tangipahoa Parish, applying for certiorari or writ of review. Twenty-first Judicial District Court. No. 68644. Court of Appeal, First Circuit. Nos. 83-CW-0894 and 83-CW-0911. Parish of Tangipahoa.

Denied.


text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT v. SUGARLAND VENTURES, INC.
    No. 83-CD-1919.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Frank C. Orlando, Jr. and John V. Orlando, applying for writ of certiorari or review. Sixteenth Judicial District Court, Parish of St. Mary. No. 64882. First Circuit Court of Appeal. No. 82-CA-0713.

Denied.

LEMMON, J., would grant the writ.


text:
    Susan Annette GAINES v. Joseph Allen GAINES, Jr.
    No. 83-C-1922.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Joseph Allen Gaines, Jr., applying for writ of certiorari and/or review. Second Circuit Court of Appeal. No. 15474-CA. Parish of Caddo, First Judicial District Court, No. 282197.

Denied. Result correct.


text:
    Mary R. Ayo, widow of Murphy J. AYO v. CONTROL INSULATION CORPORATION and Their Insurers USF & G Insurance Company.
    No. 83-CC-1930.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Control Insulation Corporation and their Insurers USF & G Insurance Company, applying for supervisory writs of certio-rari, mandamus and review. Civil District Court. No. 83-3452. Court of Appeal, Fourth Circuit. No. C-1139. Parish of Orleans.

Denied.

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


text:
    STATE of Louisiana ex rel., Henry GREEN v. 33RD JUDICIAL DISTRICT COURT PARISH OF ALLEN.
    No. 83-KH-1956.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Henry Green, applying for writ of mandamus. Thirty-third Judicial District Court, Parish of Allen.

Denied.


text:
    Leo J. McSTRAVICK v. STATE of Louisiana, Through the OFFICE OF EMPLOYMENT SECURITY and the Administrator of the Office of Employment Security and State of Louisiana, Department of Revenue and Taxation.
    No. 83-C-1971.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re State of Louisiana, Department of Revenue and Taxation, applying for certio-rari, or writ of review. Court of Appeal, Second Circuit, Parish of Ouachita. No. 15566-CA. Fourth Judicial District Court. No. 128486.

Denied.


text:
    STATE of Louisiana, ex rel. Kirk D. MATTHEWS v. Honorable Benny A. BLAKEMAN, Clerk of Court, et al.
    No. 83-KH-1974.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Kirk D. Matthews, applying for writ of mandamus. Sixteenth Judicial District Court, Parish of St. Mary. No. 108948.

Denied. Moot.


text:
    STATE of Louisiana, ex rel., Ricky J. LOUIS v. STATE of Louisiana, Through, Judge Edward N. ENGOLIO, 18th Judicial District Court, Parish of Iberville, State of Louisiana.
    No. 83-KH-2088.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Ricky J. Louis, applying for writ of mandamus. Parish of Iberville. Nos. 4310-78, 3974-78, 3975-78.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Clarence DORSEY v. HONORABLE JUDGE, SECTION "I", CRIMINAL DISTRICT COURT, ORLEANS PARISH, STATE OF LOUISIANA.
    No. 83-KH-2111.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Clarence Dorsey, applying for writ of mandamus. Criminal District Court, Parish of Orleans. No. 271-900.

Denied. Moot. The trial court denied the motion to correct sentence according to its July 25, 1983 minute entry.


text:
    STATE of Louisiana ex rel. Henry J. BOURG v. 32ND JUDICIAL DISTRICT COURT PARISH OF TERREBONNE HOUMA, LOUISIANA.
    No. 83-KH-2113.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Henry J. Bourg, applying for writ of mandamus. Thirty-second Judicial District Court, Parish of Terrebonne. No. 84265.

Denied. Relator may refile in district court, which has no record of an application filed in September, 1983.


text:
    STATE of Louisiana, ex rel. Jonas DAVIS, Jr. v. Nathan Burl CAIN, Warden, Dixon Correctional Institute.
    No. 83-KH-2149.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Jonas Davis, Jr., applying for writ of mandamus. Twenty-fourth Judicial District Court, Parish of Jefferson. No. 77-1745.

Denied.


text:
    Myrick M. HUTCHINSON v. 14TH JUDICIAL DISTRICT COURT STATE OF LOUISIANA.
    No. 83-KH-2159.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Myrick M. Hutchinson, applying for a remedial writ. Fourteenth Judicial District Court, Parish of Calcasieu. No. 7042-82.

Denied. Moot.


text:
    STATE of Louisiana ex rel Ray T. WOODALL, Jr. v. Honorable Jim McKAY, Judge, Section "H", Criminal Dist. Cts. Orleans Parish.
    No. 83-KH-2234.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Ray T. Woodall, Jr., applying for writ of review. Criminal District Court, Parish of Orleans. No. 259-043.

Denied.


text:
    STATE of Louisiana v. Jimmy RUFFIN.
    No. 83-K-1698.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Jimmy Ruffin, applying for writ of certiorari and/or review. First Circuit Court of Appeal, Parish of East Baton Rouge. Nineteenth Judicial District Court. No. 5-82-198.

Granted.


text:
    Sam V. CATALDIE, Jr., Individually and as Administrator of the Estate of his Minor Child, Amie Cataldie v. LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY.
    No. 83-C-1750.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Louisiana Health Service & Indemnity Company, applying for certiorari, or writ of review. Court of Appeal, Third Circuit, Parish of Rapides. Ninth Judicial District Court. No. 122899.

Granted.


text:
    STATE of Louisiana v. Nolan CAMP, Jr.
    No. 83-K-1938.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Nolan Camp, Jr., applying for cer-tiorari, or writ of review. Court of Appeal, Fourth Circuit. Parish of Orleans, Criminal District Court. No. 283-043.

Granted.


text:
    Elsie Mae JONES v. Calvin (Cal) SOILEAU.
    No. 83-C-1966.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Elsie Mae Jones, applying for cer-tiorari, or writ of review. Court of Appeal, Third Circuit. Thirteenth Judicial District Court. No. 37742-A. Parish of Evangeline.

Granted.


text:
    STATE of Louisiana ex rel. Doyle W. WIGGINS v. STATE of Louisiana.
    No. 82-KH-0365.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Doyle W. Wiggins, applying for remedial writs. Parish of Acadia.

Granted in part and denied in part. The issue raised in this application is moot.

However, this Court has determined that when relator was resentenced by the trial judge on June 2,1983 in precise response to this Court’s ruling in State v. Wiggins, No. 82-KA-0474, May 23, 1983, 432 So.2d 234, the sentence was silent with respect to credit for time served. Relator is indeed entitled to credit for time served. The sentence is therefore set aside and the case is remanded to the district court for resentenc-ing, with credit for time served.


text:
    STATE of Louisiana v. James L. THOMAS.
    No. 83-KH-2250.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re James L. Thomas, applying for writ of prohibition. Criminal District Court, Parish of Orleans. No. 296-549.

Granted for the limited purpose of transferring; this writ is transferred to the district court for action.


text:
    STATE of Louisiana v. Lloyd JONES, Jr.
    No. 83-K-1808.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Lloyd Jones, Jr., applying for writ of certiorari or review. Court of Appeal, Third Circuit. Parish of Calcasieu, Fourteenth Judicial District Court. Nos. 15989-81, 15848-81 and 15850-81.

Granted.


text:
    Jessie Rose PITRE, et al. v. AETNA CASUALTY COMPANY and State of Louisiana, Dept. of Transportation and Development.
    No. 83-C-1771.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Dept. of Transportation and Development, applying for writ of certiorari or review. Court of Appeal, Third Circuit. Parish of St. Landry, Twenty-Seventh Judicial District Court. No. 81931-1.

Granted.


text:
    Thelma Elizabeth FIELDS v. WESTERN PREFERRED CASUALTY COMPANY and Herbert E. Munholland, Jr.
    No. 83-C-1983.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Western Preferred Casualty Company, applying for, certiorari, or writ of review; Court of Appeal, Second Circuit. Fourth Judicial District Court, Parish of Ouachita. No. 82-1072.

Denied.

LEMMON, J., concurs for reasons assigned in No. 83-C-1967.

DENNIS and BLANCHE, JJ., would grant the writ.


text:
    Henry E. YOES, Jr., Hey, Inc. and St. Charles Herald v. JEFFERSON PARISH COUNCIL.
    No. 83-CC-1939.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Henry E. Yoes, Jr. applying for writ of certiorari and review. Twenty-ninth Judicial District Court, Parish of St. Charles. No. 22756. Fifth Circuit Court of Appeal. No. 83-C-0579.

Denied.


text:
    STATE of Louisiana v. Bobby R. LEE.
    No. 83-KH-2184.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Bobby R. Lee, applying for remedial writ. Twenty-fourth Judicial District Court, Parish of Jefferson. No. 79-2150.

Denied.


text:
    STATE of Louisiana ex rel. Jerry COLEMAN v. STATE of Louisiana.
    No. 83-KH-2116.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Jerry Coleman, applying for remedial writs. Fourteenth Judicial District Court, Parish of Calcasieu. No. 16032-82.

Denied.


text:
    STATE of Louisiana ex rel. Wayne A. ADAMS & Bobby Durand v. STATE of Louisiana Honorable Frank Shea.
    No. 83-KH-2163.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Wayne A. Adams & Bobby Durand, applying for writ of mandamus and review. Criminal District, Parish of Orleans. No. 268238.

Denied. Moot.


text:
    STATE of Louisiana, ex rel., Michael P. ZEY v. STATE of Louisiana.
    No. 81-KH-1848.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Michael P. Zey, applying for writ of mandamus. Parish of St. John the Baptist.

Denied.


text:
    STATE of Louisiana ex rel. Sheryl LYNCH v. Johnnie JONES, Warden, Louisiana Correctional Institute for Women.
    No. 82-KH-0414.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Sheryl Lynch, applying for supervisory writs of certiorari and habeas corpus. Parish of Sabine.

Denied. Moot.


text:
    STATE of Louisiana, ex rel., Raymond RICNER v. CRIMINAL DISTRICT COURT, SECTION "A", Judge Presiding (Charles Ward) Parish of Orleans.
    No. 82-KH-0548.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Raymond Ricner, applying for writ of mandamus. Parish of Orleans. No. 261-507.

Denied. Moot.


text:
    Bryan J. SLOANE, Jr. v. Edward Mike DAVIS d/b/a Tiger Oil Company.
    No. 83-C-1793.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Edward Mike Davis Employee Incentive Trust, applying for writ of certiora-ri or review. Court of Appeal, Third Circuit. Thirty-eighth Judicial District Court, Parish of Cameron. No. 6445, Civil Docket.

Denied.

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


text:
    AUTOMATIC COIN ENTERPRISES, INC. v. VEND-TRONICS, INC., George J. Karney, and Gene Chute.
    No. 83-C-1796.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Automatic Coin Enterprises, Inc., applying for certiorari, or writ of review. Court of Appeal, Fifth Circuit, Parish of Jefferson. Twenty-fourth Judicial District Court. No. 234-479 — Division “D”.

Denied.

CALOGERO and LEMMON, JJ., would grant the writ.


text:
    Thelma Raizen, wife of/and Alvin PAILET v. CITY OF NEW ORLEANS, DEPARTMENT OF SAFETY AND PERMITS. CITY PARK MID-CITY IMPROVEMENT ASSOCIATION, INC., Mr. and Mrs. Gary Edwards, Mrs. Lillie L. Pittman, Ms. Marilyn Troyani, and Mrs. Mark Shafer v. Dr. & Mrs. Alvin PAILET.
    No. 83-C-1856.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Thelma Raizen, Wife of/and Alvin Pailet, applying for certiorari, or writ of review. Court of Appeal, Fourth Circuit, Parish of Orleans. Civil District Court. Nos. 82-232 and 81-15435.

Denied.

DENNIS and BLANCHE, JJ., would grant the writ.


text:
    Mary DECLOUET v. NEW ORLEANS PUBLIC SERVICE INC.
    No. 83-C-1865.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re New Orleans Public Service Inc., applying for certiorari, or writ of review. Court of Appeal, Fourth Circuit, Parish of Orleans. Civil District Court. No. 80-6927.

Denied.

BLANCHE, J., would grant the writ.


text:
    John W. DUSSOUY, Jr. v. GULF COAST INVESTMENT CORPORATION and Kirschenheuter, Landry & Shaw.
    No. 83-C-1870.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re John W. Dussouy, Jr., applying for writ of certiorari or review. Court of Appeal, Fourth Circuit. Civil District Court, Parish of Orleans. No. 80-5827.

Denied.


text:
    STATE of Louisiana v. Carolyn M. COBBS.
    No. 83-K-1880.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Carolyn M. Cobbs, applying for writ of certiorari and review. Court of Appeal, First Circuit. Parish of East Baton Rouge, Nineteenth Judicial District Court. No. 7-82-144.

Denied.

MARCUS, J., concurs, as untimely.

LEMMON, J., concurs, as untimely.


text:
    Roosevelt VINCENT v. LAKE CHARLES REFINING COMPANY, et al.
    No. 83-C-1881.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Roosevelt Vincent, applying for writ of certiorari or review. Court of Appeal, Third Circuit. Fourteenth Judicial District Court, Parish of Calcasieu. No. 81-185.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    Jerry L. GEORGE v. MARCANTEL FEED STORES, INC. and Fidelity & Casualty Company of New York.
    No. 83-C-1882.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Marcantel Feed Stores, Inc. and Fidelity & Casualty Company of New York, applying for writ of certiorari or review. Court of Appeal, Third Circuit. Parish of Jefferson Davis, Thirty-First Judicial District Court. No. C-766-80.

Denied.

MARCUS, J., would grant solely on the issue of excessive attorney fees.


text:
    Charles Albert LeBARON v. LOUISIANA PACIFIC CORPORATION.
    No. 83-C-1908.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Louisiana Pacific Corporation, applying for writ of certiorari or review. Court of Appeal, Second Circuit. Eighth Judicial District Court, Parish of Winn. No. 23784.

Denied.


text:
    STATE of Louisiana v. Clovis Wiley HALL.
    No. 83-K-1909.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Clovis Wiley Hall, applying for cer-tiorari, or writ of review. Court of Appeal, Second Circuit. First Judicial District Court. No. 121197. Parish of Caddo.

Denied.


text:
    STATE of Louisiana v. Robert HILL.
    No. 83-K-1910.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Robert Hill, applying for writ of review. Court of Appeal, Second Circuit. First Judicial District Court, Parish of Cad-do. No. 120141-A.

Denied.


text:
    Harold J. SCHACKAI and Priscilla Schackai v. TENNECO OIL COMPANY and The Tracelers Indemnity Company.
    No. 83-C-1912.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Harold J. Schackai, applying for certiorari, or writ of review. Court of Appeal, Fourth Circuit, Parish of Orleans. Thirty-fourth Judicial District Court. No. 38-728.

Denied.


text:
    Joe W. SANDERS, et al v. M.D. WILLIAMS.
    No. 83-C-1913.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re M.D. Williams, applying for certio-rari, or writ of review. Court of Appeal, Third Circuit. Eleventh Judicial District Court. No. 32988. Parish of Sabine.

Denied.


text:
    Sue Ellen Smiley ABERCROMBIE v. Hugh Thomas ABERCROMBIE.
    No. 83-C-1920.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Hugh Thomas Abercrombie applying for writ of certiorari or review. Court of Appeal, Second Circuit. Twenty-sixth Judicial District Court, Parish of Webster. No. 39770.

Denied.


text:
    GULF SOUTH MINERALS, INC. v. TATCO, INC.
    No. 83-C-1923.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Gulf South Minerals, Inc., applying for certiorari, or writ of review. Court of Appeal, Second Circuit. First Judicial District Court. No. 290599. Parish of Caddo.

Denied.


text:
    STATE of Louisiana v. Jimmy Wayne PARRISH.
    No. 83-K-1926.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Jimmy Wayne Parrish, applying for writ of certiorari and review. Court of Appeal, Second Circuit. Parish of Union, Third Judicial District Court. No. 26567.

Denied.


text:
    Adrian J. PERRILLOUX v. GODCHAUX-HENDERSON SUGAR CO., INC.
    No. 83-C-1946.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Adrian J. Perrilloux, applying for certiorari, or writ of review. Court of Appeal, Fifth Circuit. Twenty-ninth Judicial District Court. No. 12614. Parish of St. John the Baptist.

Denied.

DENNIS, J., would grant the writ.


text:
    Lovett D. MIZE v. BEKER INDUSTRIES CORP., The Duriron Company, Inc., Mechanical Services, Inc., Lou Cupler, Ralph Tucker, Percy Colon, Lester Breaux, Jack Dano and Glenn Breau.
    No. 83-C-1929.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Lovett D. Mize, applying for writ of certiorari and/or review. Fifth Circuit Court of Appeal. Parish of St. Charles, Twenty-ninth Judicial District. No. 23189.

Denied.


text:
    Doris SCHIRRMANN v. Hans SCHIRRMANN.
    No. 83-C-1931.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Hans Schirrmann, applying for writ of certiorari and/or review. Fifth Circuit Court of Appeal. Twenty-fourth Judicial District Court, Parish of Jefferson. No. 254-289 Division “L”.

Denied.


text:
    Marzelle Glasgow LEE v. I.E. LEE.
    No. 83-C-1949.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re I.E. Lee, applying for writ of certio-rari or review. Court of Appeal, Second Circuit. Parish of Webster, Twenty-Sixth Judicial District Court. No. 40725.

Denied.

DENNIS, J., would grant the writ.


text:
    Cheryl Isgitt HINTON Individually and as Natural Tutrix v. WESTERN CASUALTY AND SURETY COMPANY, et al. Cheryl Isgitt HINTON v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY.
    No. 83-C-1969.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Tom’s Foods and Liberty Mutual Insurance Co., applying for certiorari, or writ of review. Court of Appeal, Third Circuit, Parish of Natchitoches. Tenth Judicial District Court. Nos. 48781 and 49130.

Denied.


text:
    Dennis L. GARSEE v. WESTERN CASUALTY AND SURETY COMPANY, INC.
    No. 83-C-1970.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Western Casualty and Surety Company, Inc., applying for certiorari, or writ of review. Court of Appeal, Second Circuit. Thirty-seventh Judicial District Court. No. 13111. Caldwell Parish.

Denied.

BLANCHE, J., would grant the writ.


text:
    Marie Shelmire ELSEY v. SHERIFF OF the PARISH OF EAST BATON ROUGE, Parish of East Baton Rouge, and City of Baton Rouge.
    No. 83-C-1973.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Marie Shelmire Elsey, applying for certiorari, or writ of review. Court of Appeal, First Circuit. Nineteenth Judicial District Court. No. 241333. Parish of East Baton Rouge.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    Vickie M. WINGATE, et al v. NATIONAL UNION FIRE INSURANCE COMPANY, American Home Assurance Company, Christopher Alan Edwards, as Co-Executor of the Estate of Nolan J. Edwards, and Larry Dupuis.
    No. 83-C-1977.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Christopher Alan Edwards, as Co-Executor of the Estate of Nolan J. Edwards, Larry C. Dupuis, National Union Fire Insurance Company of Pittsburgh, Pennsylvania and American Home Assurance Company, applying for certiorari, or writ of review. Court of Appeal, Third Circuit. Parish of Acadia, Fifteenth Judicial District Court. No. 49092.

Denied.

MARCUS, DENNIS and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana v. John L. GERONE.
    No. 83-K-1980.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re State of Louisiana, applying for writ of certiorari. First Circuit Court of Appeal. Parish of St. Tammany, Twenty-second Judicial District Court. No. 77305.

Denied.

MARCUS and LEMMON, JJ., would grant the writ.


author: LEMMON, J.,

text:
    STATE of Louisiana v. Jesus RUIZ and Geoffrey Austin Sweeney.
    No. 83-K-1982.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Jesus Ruiz and Geoffrey Austin Sweeney, applying for writ of certiorari and/or review and stay order. Second Circuit Court of Appeal, Parish of Ouachita. Fourth Judicial District Court. Nos. 8200254F and 8200255F.

Denied.

LEMMON, J.,

concurs, not necessarily agreeing that Bruton is inapplicable in bench trials, but finding any error as to the statement in this case to be harmless.


text:
    STATE of Louisiana ex rel. Carl SANGER A/K/A James Wilson v. FIRST JUDICIAL DISTRICT COURT, Case Number 109,527.
    No. 83-KH-2097.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re St ex rel Carl Sanger, et al., applying for writ of habeas corpus. First Judicial District Court, Parish of Caddo. No. 109527.

Denied. Moot.


text:
    The LAITRAM CORPORATION v. John F. HALE and Pantrade S.A.
    No. 83-CC-2130.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re John F. Hale and Pantrade S.A., applying for supervisory and/or remedial writs and motion for extension of time to file supplement to application for writ and stay order. Civil District Court, Parish of Orleans. Number 81-7081, Division “B”. Court of Appeal, Fourth Circuit.

Denied.


text:
    Doris SCHIRRMANN v. Hans SCHIRRMANN.
    No. 83-C-2139.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Doris Schirrmann, applying for writ of certiorari. Court of Appeal, Fifth Circuit. Parish of Jefferson, Twenty-Fourth Judicial District Court. No. 254-289.

Denied.

DENNIS, BLANCHE and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Walter SMITH a/k/a Walter Shelton.
    No. 83-KH-2161.
    Supreme Court of Louisiana.
    Nov. 4, 1983.
   In re Walter Smith a/k/a Walter Shelton, applying for remedial writs. Criminal District Court, Parish of Orleans. No. 287-623.

Writ denied.


text:
    STATE of Louisiana ex rel. Dennis SEARS v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 82-KH-2928.
    Supreme Court of Louisiana.
    Nov. 11, 1983.
   In re Dennis Sears, applying for writ of mandamus on habeas corpus. Parish of Orleans, Criminal District Court. No. 219-807.

Denied. Moot.


text:
    STATE of Louisiana, ex rel., Ray T. WOODALL, Jr. v. Honorable Jim McKAY, III, Judge Sect. "H" Orleans Criminal District Court.
    No. 83-KH-2289.
    Supreme Court of Louisiana.
    Nov. 11, 1983.
   In re Ray T. Woodall, Jr., applying for remedial writs. Parish of Orleans. No. 259-043.

Denied.


text:
    Henry HOLMES, Jr., et al. v. Michael CHRISTOPHER, et al. Carolyn Ann Brown SCHMIDT, et al. v. Henry HOLMES, Jr., et al. Kenneth G. SONIAT, et al. v. Michael CHRISTOPHER, et al.
    No. 83-C-2021.
    Supreme Court of Louisiana.
    Nov. 11, 1983.
   In re Michael Christopher, applying for certiorari, or writ of review. Court of Appeal, Fourth Circuit. Civil District Court, Parish of Orleans. Nos. 597-062, 599-072 and 599-577.

Denied.


author: FRED W. JONES, Jr., Judge. FRED W. JONES, Jr., Judge. HALL, Judge,

text:
    STATE of Louisiana and City of Shreveport, Plaintiffs-Appellees, v. Ronald BOULT, Defendant-Appellant.
    No. 15373-KW.
    Court of Appeal of Louisiana, Second Circuit.
    May 3, 1983.
    On Rehearing Nov. 29, 1983.
    George Ross, Shreveport, for defendanf-appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Barbara B. Rutledge, Asst. Atty. Gen., James Stewart, Catherine B. Estopinal, Asst. Dist. Attys., Shreveport, for plaintiffs-appellees.
    Before HALL, FRED W. JONES, Jr. and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

Ronald Boult was charged in the Shreveport City Court, in separate affidavits, with commission of the following misdemeanors: illegal carrying of a weapon (R.S. 14:95); entering and remaining in a public place after being forbidden (R.S. 14:68.3); interference with medical treatment (R.S. 14:332); and resisting an officer (Shreveport City Ordinance 21-4). Upon motion by the prosecution, the four charges were consolidated for trial purposes and tried before a judge alone.

The defendant was found guilty on each charge. His sentence for conviction of illegal carrying of a weapon was a fine of $500 or 50 days in jail. On each of the other three convictions defendant was sentenced to pay a fine of $50 or serve five days in jail.

Defendant appealed his convictions and sentences, urging insufficiency of evidence to support the convictions. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

We pretermit discussion of this assigned error because of an error patent on the face of the record. La.C.Cr.P. Art. 920(2).

A defendant is entitled to a jury trial in a criminal case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months. 1974 La. Constitution, Art. 1, Section 17.

When two or more charges are joined for trial, the aggregate punishment which may be imposed determines whether the right to trial by jury exists. If the total potential punishment exceeds six months imprisonment, the accused is entitled to a jury trial. State v. Williams, 404 So.2d 954 (La.1981); State v. McCarroll, 337 So.2d 475 (La.1976).

When these charges were consolidated for trial, the total maximum potential imprisonment for the defendant was in excess of one year. Consequently, the defendant had a constitutional right to be tried by jury.

The right to a jury trial may be waived in a noncapital case, but that waiver must be “knowingly and intelligently” made. 1974 La. Constitution, Art. 1, Section 17. We are mandated to “indulge every reasonable presumption against waiver of this fundamental right.” State v. Williams, supra; State v. McCarroll, supra.

There is nothing in this record showing that the defendant, upon consolidation for trial purposes of the charges against him, waived his right to a jury trial. As pointed out in State v. Muller, 351 So.2d 143 (La.1977):

“[tjhere can be no doubt that when an accused purports to waive a fundamental constitutional right, no waiver can be effective unless it is done knowingly and intelligently by an accused who understands the consequences of his action.”

The failure of this record to affirmatively show that the defendant knowingly and intelligently waived his constitutional right to a jury trial is error patent on its face.

For this reason, defendant’s convictions and sentences are reversed and the case is remanded to the Shreveport City Court for further proceedings consistent with this opinion.

Before HALL, MARVIN, JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ.

ON REHEARING

FRED W. JONES, Jr., Judge.

A rehearing was granted in this case to afford the state an opportunity to demonstrate that, contrary to our original holding, the defendant validly waived his constitutional right to a jury trial.

The trial transcript filed in connection with the appeal contained this pertinent statement:

“MR. STEWART [Prosecutor]: Your Honor, the State plans on consolidating all these charges ... (inaudible) waive his rights to a jury trial ... (inaudible).”

After the rehearing was granted, a corrected transcript was filed with this clarification of the above quoted statement:

“MR. STEWART [Prosecutor]: Your Honor, the State plans on consolidating all these charges and asks that the Defendant waive his rights to a Jury Trial.
“MR. ROSS: [Defense Attorney] Yes, we would waive our right to a jury trial and also request that the witnesses be sequestered.”

The right to a jury trial in designated cases, guaranteed by our state and federal constitutions, holds a place of major importance in the panoply of rights afforded a person accused of a crime. State v. Muller, 351 So.2d 143 (La.1977).

There can be no doubt that when an accused purports to waive a fundamental constitutional right, that waiver cannot be effective unless it is done knowingly and intelligently by an accused who understands the consequences of his action. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). This is particularly true of the waiver of a right to jury trial. Art. 1, Sec. 17, La. Constitution of 1974; La.C.Cr.P. Art. 780.

Our state supreme court has refused to adopt an ironclad rule requiring the trial judge to personally inform the accused of his right to a jury trial. State v. Phillips, 365 So.2d 1304 (La.1978). However, the court there added:

“We find no error in the determination of the trial judge here that the present defendant gave his informed consent to the waiver made in his presence by his attorney,, especially in light of the facts that the judge had informed defendant not once, but twice, of his right to choose between a judge trial and a jury trial, and that the defendant was shown to have had prior experience as an accused in the trial of a criminal prosecution.”

Furthermore, Justice Tate commented:

“However, although we have not thus far required the defendant personally to waive his right to a jury trial, the necessity for a post-verdict evidentiary hearing here occasioned may well indicate such to be a preferable practice.” P. 1309, Footnote 6.

Directly addressing this issue in the recent case of State v. Wilson, 437 So.2d 272 (La.1983), our supreme court expressly held:

“As in the ease of other significant rights, however, waiver of trial by jury is valid only if the defendant acted voluntarily and knowingly. In order to protect this valuable right, as well as to prevent postconviction attacks on the waiver, the better practice is for the trial judge to advise the defendant personally on the record of his right to trial by jury and require the defendant to waive the right personally either in writing or by oral statement in open court on the record. 3 Standards for Criminal Justice, § 15-1.-2(b) (2d ed. 1980); see also State v. Kahey, 436 So.2d 475 (La.1983). By this procedure, the trial judge not only insures that an express waiver is recorded, but also assures that the waiver is made voluntarily and knowingly.
“In the present case, defendant personally waived trial by jury by a statement in open court on the record. Although the questioning conducted by defense counsel was intended primarily to establish that the defendant was acting contrary to counsel’s advice, the colloquy made it clear that defendant was aware of his right to trial by jury and that his decision to be tried by the judge was the product of his voluntary and intelligent choice. Perhaps the more favored procedure would have been for the trial judge to conduct an independent inquiry on the record. Nevertheless, the record contains defendant’s acknowledgment that he understood the difference between a jury trial and a bench trial and that counsel had explained the difference in terms that he understood

There is not an iota of evidence in this corrected trial transcript to show that the defendant had been made aware, either by the trial judge or by defense counsel, of his constitutional right to a jury trial in this consolidated trial of several misdemeanor charges. Consequently, we have absolutely no basis upon which to conclude that the defendant knowingly and intelligently waived that valued right.

For these reasons, we reinstate our original opinion, reversing defendant’s convictions and sentences and remanding the case to the Shreveport City Court for further proceedings consistent herewith.

HALL, J., concurs in part and dissents in part and assigns written reasons.

SEXTON, J., concurs in part and dissents in part for the reasons assigned by HALL, J.

HALL, Judge,

concurring in part and dissenting in part.

In this misdemeanor case triable by jury, the express waiver of a jury trial by the defendant’s lawyer in the presence of the defendant who was himself a police officer satisfies the requirement that the record disclose a knowing and intelligent waiver of jury trial by the defendant. Further, it is to be noted that the defendant has made no contention that he did not knowingly and intelligently waive jury trial, the issue having been raised by this court on its own motion. The Louisiana Supreme Court has refused (wisely and purposely it seems to me), to adopt an absolute rule that no jury waiver can be effective unless the record reflects that the accused was personally informed by the judge of his right to a jury trial and the accused personally waived that right. See State v. Phillips, 365 So.2d 1304 (La.1978); State v. Muller, 351 So.2d 143 (La.1977). See also State v. Long, 408 So.2d 1221 (La.1982).

Accordingly, I respectfully dissent from the majority opinion’s reversal of all convictions. I would affirm the conviction for interference with medical treatment. I would, however, reverse the convictions for resisting a police officer, entering and remaining in a public place after being forbidden, and illegal carrying of weapons, because of insufficient evidence of the elements of these charges under the Jackson v. Virginia standard.


author: KLEES, Judge.

text:
    Veronica Bordenave LARSON v. John L. HUSKEY, et al.
    No. CA-0473.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1983.

      Thomas C. Cowan, Christovich & Kear-ney, New Orleans, for appellee, Highlands Ins. Co.
    Ferdinand J. Kleppner, Law Offices of Ferdinand J. Kleppner, Metairie, for plaintiff-appellee Veronica Bordenave Larson.

      Robert E. Leake, Jr., Hammett, Leake & Hammett, New Orleans, for defendants-appellants Drake Concrete, and Sentry Ins. Co.
    Before SCHOTT, BARRY and KLEES, JJ.
   KLEES, Judge.

Defendants, Drake Concrete Company and its insurer, Sentry Insurance Company, appeal a jury verdict awarding damages to plaintiff for injuries sustained by her deceased husband, Lindsay A. Larson, Jr., when he was struck and rolled over by a backing cement truck.

Intervenor, Highlands Insurance Company, the workmen’s compensation carrier for Larson’s employer, answered the appeal arguing that the district court erred in denying interest due on the principal amount owed to intervenor and awarding the interest to plaintiff.

Plaintiff answered the appeal arguing that the trial court erred in failing to increase the monetary sum awarded plaintiff by the jury.

The issues presented on appeal are:

1. Was Drake’s driver negligent?
2. Was there evidence to support a finding that Drake was negligent in the operation of its premises?
3. Was Larson negligent and was the negligence an available defense?
4. Did the District Court err in denying interest due on the principal amount owed intervenor?
5. Did the Trial Court err in failing to increase the monetary sum awarded plaintiff?

FACTS

On February 26,1976, Lindsay A. Larson, Jr. was employed by Bulk Transport Company and was assigned to deliver cement to Drake Concrete at its ready-mix plant in Belle Chasse, Louisiana. At approximately 7:00 o’clock a.m., Larson arrived at Drake’s plant yard, connected his truck to a silo used by Drake as a storage container and loading hopper and began to off-load his cement. Larson stood near his truck during this operation, to observe the top of the silo as he had been instructed not to overflow and discharge cement dust into the surrounding area. At this time, a ready-mix concrete truck driven by Johnny Huskey, an employee of Drake Concrete, backed into the driveway used by the ready-mix trucks to get to the loading hopper. As he attempted to maneuver his truck into the narrow space under the hopper, the back part of his truck struck Larson, knocking him to the ground. The truck then rolled over the lower half of Larson’s body, crushing him.

Larson sued Huskey, Drake Concrete, and its liability insurer, Sentry Insurance Company, and State Farm Mutual Automobile Insurance Company, Larson’s uninsured motorist carrier for the resulting damages. State Farm was dismissed from the suit with prejudice prior to trial.

Highlands Insurance Company as the workmen’s compensation carrier for Bulk Transport, Inc., Larson’s employer, filed a petition of intervention seeking reimbursement of all present and future sums paid on behalf of Larson.

On May 6, 1980, prior to the trial, Larson died and his widow was substituted as plaintiff.

This matter came for trial on January 4, 1982. The amount of $105,407.97 was stipulated to as the amount paid out by Highlands on behalf of Larson pursuant to its policy of insurance with Bulk Transport, Inc.

On January 7, 1982, in answer to interrogatories, the jury found that Huskey was not negligent but that Drake was. The jury awarded total damages to plaintiff in the amount of $250,000.00. The judgment awarded interest to the plaintiff on the total amount of $250,000.00 and awarded Highlands its principal of $105,407.97 to be paid out of funds due plaintiff.

Highlands filed a Motion to Amend that portion of the judgment which awarded plaintiff the interest on the amount due. The motion was denied.

NEGLIGENCE OF HUSKEY

We have concluded that the jury’s finding of no negligence on Huskey’s part was manifestly erroneous. He testified that as he began to back toward the hopper, he saw Larson talking to a Drake mechanic near the hopper, and as he began to back up, he assumed he was still there. It was established that he had full view of everything to the rear of his truck when he started backing at forty-five feet from the hopper, but as he got nearer, at some point there would be a blind spot extending from the middle of the truck’s rear. It was further established that the rear view mirror on the right side of his truck enabled him to see everything, at least to the point of the truck’s right rear fender. At some point Larson stepped from a concrete slab adjacent to the driveway leading to the hopper so that Huskey should have seen him until the point when he stepped off the slab.

If he failed to see him, at least to this point he was negligent. This negligence was compounded by the fact that once Larson got on the driveway, Huskey couldn’t see him. Once he no longer saw Larson, Huskey should have known Larson was behind him and yet he continued to back in his direction. His reliance on the operation of flasher lights and a warning bell to give ' him a license to back up blindly under the circumstances was unjustified. There was present the distinct risk that Larson’s back would be to him so that he would not see the flashers, and the noise in the area made the warning bell ineffective. Huskey’s negligence consisted in his needlessly backing his truck without keeping a proper lookout or ascertaining that his path was clear. Guilbeau v. Liberty Mutual Insurance Company, 338 So.2d 600 (La.1976).

NEGLIGENCE OF DRAKE

As Huskey’s employer, Drake is liable to plaintiff under C.C. art. 2320. As a result of this conclusion it is unnecessary for our purposes to discuss the jury’s findings of Drake’s negligence independent of Hus-key’s, but for the benefit of a reviewing court we do so.

At the time of the accident, Larson was watching the top of the silo for any discharge of cement, as required by Drake. In his deposition, he stated that he felt that in the position he was standing when struck, he was not in the way of any backing concrete trucks. He believed that any truck that wanted to back up to the silo had plenty of room to do so without hitting him. He further testified that he did not hear a warning bell on Huskey’s truck prior to the truck striking him.

Appellants contend that the jury erred in finding Drake Concrete negligent in the operation of its plant, which negligence caused the accident. We find sufficient evidence in the record to support this verdict. There is testimony indicating that it was standard procedure for the bulk drivers to concentrate their attention on the top of the silo while unloading their trucks to assure that there would be no overflow or spillage of cement from the silo. In order for the driver to do this, he must stand adjacent to the area where the ready-mix trucks back up to obtain concrete.

There were no markings, railings or other devices to aid pedestrians in distinguishing between the driveway and a place of safety. Drake did not require a flagman or other person to assist in the backing of the trucks.

Because the drivers could not see directly behind the truck, the jury obviously found that precautions should have been taken by Drake Concrete to avoid any pedestrians being struck. Although the trucks were equipped with warning bells that sounded as they backed up, the record reflects that there was an abundance of noise at the site. The idling of trucks waiting to take on loads, compressors and conveyor belts used to operate the silo that were continuously operating, and the pumping of cement from the bulk driver’s truck all contributed to a high degree of noise. Larson testified in his deposition that he did not in fact hear a bell and other witnesses supported this testimony. All of these factors when considered together constitute an ample basis for the jury to have found Drake negligent in the operation of their plant causing an unreasonable risk to Larson.

Appellants argue that the rule of Baumgartner v. State Farm Mutual Automobile Insurance Company, 356 So.2d 400 (La.1978), denying a defense of plaintiffs negligence in a motorist-pedestrian accident on a public road is not applicable to operations on public property nor to the particular circumstances of this case. We disagree with appellant’s argument.

Appellants cite Meaux v. Alexander, 405 So.2d 680 (La.App. 4th Cir.1981), writ denied, 410 So.2d 764 (La.1982) and Cenac v. Zurich Insurance Company, 397 So.2d 870 (La.App. 4th Cir.1981) to support their argument. Neither case, however, stands for this proposition.

The factual situation in Meaux, supra, is distinguishable from that in the instant case. A trailer, pulled by a tractor, became stuck on a bridge. A crane with a sling and shackles was used to pull the trailer from the “stuck” position. After the tractor-trailer became unstuck, but while the crane was still tied onto it, plaintiff crawled underneath the tractor to unhook the sling and shackles. While doing this, the tractor-trailer moved, causing the tires of the tractor-trailer to roll over Meaux’s lower ex-tremeties. The court found Baumgartner v. State Farm, supra, not applicable, because it did not involve a pedestrian situation, and found the plaintiff contributorily negligent.

Although the factual situation in Cenac, supra, is similar to the case at bar, it does not support appellant’s argument.

The driver of a truck was backing his truck to unload sand at a construction site at the pedestrian worker’s directions. He turned the truck’s cab to the left to back his truck at the place indicated by the worker’s hand signals, and as a result of the turn could no longer see him. The court held that he was not negligent in subsequently striking the worker, as the driver had the right to assume that the worker would anticipate the movement of the truck’s cab during the turn and would move to keep out of the way.

In Oliver v. Capitano, 405 So.2d 1102 (La.App. 4th Cir.1981), writ denied, 407 So.2d 731 (La.1981), Baumgartner, supra, was held applicable to an accident in a vacant lot where a dump truck backed into an insane woman who was kneeling in the lot. The court stated:

“The fundamental duty-risk analysis of Baumgartner, like that of Boyer v. Johnson, La.1978, 360 So.2d 1164, and of Rue v. State Dept. Hwys., La.1979, 372 So.2d 1197, is applicable here. When a duty is imposed upon one person for the purpose of eliminating a risk of injury to a second person from the second person’s own inattention, lack of skill, or negligence, the fact that the second person was inattentive, unskillful, or negligent cannot free the first person from responsibility for breach of the duty to protect against precisely the fault that occurred.”

In Guilbeau v. Liberty Mutual Insurance Company, supra, the court stated at page 604:

“Under Louisiana jurisprudence, an operator of a vehicle or heavy equipment who observes, or who should by the exercise of reasonable care have observed, a pedestrian in a position of peril of which the latter is apparently unaware, is responsible for injuries caused when his vehicle strikes the pedestrian in his path, despite any contributory negligence on the part of the latter; providing that, after the duty to make such observation arose, the operator could reasonably have avoided the accident.”

We have concluded that the defense of contributory negligence was unavailable in the action based on Huskey’s negligence. Much of appellants’ argument is based on the theory that Baumgartner and its progeny have no application to the action based on the independent negligence of Drake, but because of our conclusion as to Hus-key’s negligence we heed not address the issue.

INTEREST

Intervenor argues that the district court erred in denying the interest due on the principal amount owed to intervenor and awarding said interest to plaintiff.

Prior to trial all parties signed a stipulation which stated in pertinent part that:

“Bulk Transport, Inc., and Highlands Insurance Company are subrogated to the rights of Lindsay Larson and are entitled to be paid first out of any judgment or settlement returned in the above numbered and entitled cause in the amount of ONE HUNDRED FIVE THOUSAND FOUR HUNDRED SEVEN AND 97/100 ($105,407.97) DOLLARS.”

The trial court is bound to render judgment in accordance with the stipulations of the parties where the stipulations were not in derogation of the law. General Investments Inc. v. Thomas, 400 So.2d 1081 (La.App. 4th Cir.1981).

Nonetheless, we note that intervenor prayed for legal interest due in their petition of intervention and the judgment itself makes intervenor a judgment creditor.

Intervenor is by law allowed interest; See Breaux v. Roy Young, 397 So.2d 1384 (La.3rd Cir.1981), and, a judgment creditor is due interest on a judgment. LSA-C.C.P. art. 1921.

Thus we conclude that legal interest should be awarded intervenor, Highlands Insurance Co., on the amount of the judgment in their favor. Nonetheless, we note from their brief, that apparently payments made by them for which they were entitled to reimbursement, were made prior and subsequent to judicial demand. As the record does not reveal which amounts were paid when, we cannot calculate when legal interest should apply.

However, under the rationale of Willis v. Stauffee Chemical Co., 349 So.2d 1390 (La.App. 3rd Cir.1977) and cases cited thereunder, rather than remand this case to the trial court, and in the interest of judicial economy, we amend the judgment to award legal interest on all amounts paid as of the date of judicial demand and legal interest on any amounts paid after legal demand, commencing from the date each payment was made until the judgment is paid.

QUANTUM

In the assessment of quantum of damages, much discretion is left to the trier of fact and such awards may be disturbed only if the record clearly reveals abuse of this much discretion. Ashworth v. Smith, 386 So.2d 1016 (La.App. 3rd Cir.1980). Our independent review of the record discloses that Mr. Larson suffered extremely severe injuries including a crushed and fractured pelvis, severance of his urethra, severe abdominal trauma, contusions of the small intestine and colon, subsequent drop foot on the left side, destruction of the hip joint, infection involving the right hip and infection involving the right hip joint. Until he died, Mr. Larson was unable to care for himself in any manner. He was in constant pain for the entire three year period from the date of his accident until his death.

Mr. Larson was never able to transport himself by any means and was thereby deprived of the ability to leave his home to attend church, participate in his carnival club’s activities, which appeared to be one of his primary sources of relaxation, and enjoy the company of others.

Mr. Larson was never able to return to work nor was he ever able to engage in marital relations with his wife.

The trial judge, in awarding plaintiff $250,000, did so based on the jury’s special verdicts of $82,000 for medical expenses, $45,000 for loss of income, and $123,000 for pain and suffering. The compensation carrier was awarded its $105,400 out of plaintiff’s recovery so that her $250,000, when reduced by the $105,400 and the $45,000 for loss of wages, results in an award for general damages of less than $100,000. We conclude that this is so inadequate as to constitute a violation of the much discretion rule.

We apply the standard enunciated in Coco v. Winston Industries, Inc., 341 So.2d 332, p. 335 (La.1976):

“that before a Court of Appeal can disturb an award made by a trial court that record must clearly reveal that the trier of fact abused its discretion in making its award. Anderson v. Welding Testing Laboratory, Inc., [304 So.2d 351 (La.1974) ], supra; Fox v. State Farm Mutual Automobile Ins. Co. [288 So.2d 42 (La.1973)], supra; Walker v. Champion [288 So.2d 44 (La.1973)], supra. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. Bitoun v. Landry [302 So.2d 278 (La.1974)], supra; Spillers v. Montgomery Ward and Company, Inc., [294 So.2d 803 (La.1974) ], supra. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.”

and further delineated in Reck v. Stevens, 373 So.2d 498 (La.1979);

“Only after such determination of abuse has been reached is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case."

This court finds that the lowest amount reasonably within its discretion to award is $250,000 for general damages or a total of $400,000.

For the above and foregoing reasons, the judgment of the trial court dismissing plaintiff’s suit against Johnny L. Huskey is reversed and set aside. The judgment is amended by increasing the total award for all general and special damages to $400,000.

Accordingly, for the reasons expressed herein, IT IS ORDERED, ADJUDGED AND DECREED, that the judgment of the trial court in favor of intervenor, Highlands Insurance Company, against defendants in intervention, is hereby amended to include legal interest. Said interest is to run, a) on all amounts paid as of the date of judicial demand by Highlands from judicial demand until the judgment is paid; b) on all amounts paid subsequent to judicial demand from the date each payment was made until the judgment is paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of the plaintiff, Veronica Bordenave Larson and against the defendants, Johnny L. Huskey, Drake Concrete Company of Belle Chasse, Inc., and Sentry Insurance Company, jointly and in solido, in the sum of FOUR HUNDRED THOUSAND ($400,000) DOLLARS, plus interest from date of judicial demand until paid.

In all other respects the judgment of the trial court is affirmed. Costs of this appeal to be borne by appellants.

REVERSED IN PART AMENDED IN PART AND AFFIRMED.


author: COVINGTON, Judge.

text:
    John VINTURELLA, et al. v. Bruce UNANGST, et al.
    No. 83 CA 0874.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 13, 1983.
    Writ Denied Nov. 4, 1983.

      Frank RePass, III, Slidell, for plaintiffs, appellants.
    James R. Jenkins and Leo Hemelt, II, Covington, Jack J. Mendheim, Folsom, for defendants, appellees.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

On October 18, 1983, plaintiffs, a Parish Council member and a number of registered voters, filed a petition for a declaratory judgment and injunction against the Parish President and the Parish Council of St. Tammany Parish. The suit seeks to have the election of September 11, 1982, either declared invalid because it was not timely called, or ineffective as a repeal of the St. Tammany Parish Home Rule Charter because it was only a “straw vote opinion poll” and not the ratification of an ordinance calling for repeal of the Home Rule Charter.

Trial was held on June 16, 1983, at which time the plaintiffs offered in evidence certified copies of the Home Rule Charter, Ordinance Council Series No. 82-356, Ordinance Calendar (Ord.Cal.) No. 411, Minutes of St. Tammany Parish Council Meetings held March 18, April 15 and April 22, 1982, a copy of the ballot showing the proposition to be voted upon in the September 11,1982 election, and a certified copy of ordinances No. 80-27 and 82-374. Ordinance No. 82-374 was admitted subject to defendant’s objection of relevancy. Objections were made to the introduction of a transcript of the discussion of proposed Ord.Cal. No. 411 at the April 22,1982, meeting, and to Attorney General Opinion Letters dated March 21, 1983, and April 22, 1983. These documents were proffered.

Assigning written reasons for judgment, the trial court rendered judgment which held that the election of September 11, 1982, repealed the Home Rule Charter for St. Tammany Parish. The plaintiffs have appealed. We affirm.

We are not asked to decide whether the people of St. Tammany wisely reverted to its old police jury form of government after a brief exposure to a new councilmanic form. We are asked merely to decide whether the people by their vote on September 11, 1982, did repeal their Charter, thus reverting to the police jury.

The following issues are presented by appellants to this Court:

I. Whether the election of September II, 1982, was untimely held, in violation of LSA-R.S. 33:1388, and the St. Tammany Parish Home Rule Charter, Section 7-04(D).
II. Whether Ordinance No. 82-356, as written, was insufficient to constitute a valid repealing ordinance.

On April 22, 1982, the St. Tammany Parish Council adopted and passed Ordinance 82-356 which states in its title:

An Ordinance to call a referendum of the voters of St. Tammany Parish Charter, to repeal the Home Rule Charter for St. Tammany Parish, Louisiana, the referendum to be held at the next Parish-wide scheduled election to be held on September 11, 1982; to provide for notice and effective date of enactment.

The election was held on Saturday, September 11,1982, pursuant to Ordinance 82-356.

The proposition which appeared on the ballot was:

Proposition to Repeal the Home Rule Charter for St. Tammany Parish
Shall the Home Rule Charter for St. Tammany Parish, La. be repealed?

The result of the election was that 8,548 votes were cast for the repeal of the Home Rule Charter and 8,108 against the repeal.

The plaintiffs in this matter filed a Petition for Declaratory Judgment and Injunction, alleging that Ordinance 82-356 was in violation of the Home Rule Charter for two reasons:

1. The Ordinance called for an opinion poll and did not call for repeal of the Home Rule Charter.
2. The Ordinance, even if properly drafted, was presented to the voters untimely.

Appellants contend that Section 8-02 of the Home Rule Charter required an election to be held to “amend” the Home Rule Charter, and as such the election held on September 13,1980, barred any further election to repeal or amend the charter for a period of two years, because Section 7-04(D) of the Home Rule Charter forbids elections to amend the charter to be held more frequently than every two years. Hence, the election of September 11,1982, was untimely held, having been held within two years of the September 30, 1980 amendment.

The trial court considered this issue, and rejected the plaintiff’s argument as follows:

However, the Court agrees with the defendants that the Home Rule Charter referendum mandated by Section 8-02 of the Charter referring to determination by the electorate of council composition was not a proposal to amend or repeal the Charter as those terms are used in Section 7-04(D). Accordingly, the Court holds that submission to the voters of the proposal to repeal the Home Rule Charter was timely and did not violate the limitation of Section 7-04(D).

Under Article VIII, Section 8-02, entitled “Referendum on Council Composition”, the Home Rule Charter states:

A. The council, at the first parish wide regular or special election held after the date this charter becomes fully effective, shall conduct a referendum on the question of council composition.
B. The ballot form for the referendum shall be:
Do you favor a change from the present parish council composition of fourteen (14) members elected from single-member districts and two (2) members elected at large?
If a change in council composition is favored, do you prefer (A) — a council composed of seven (7) members elected from single-member districts and two (2) members elected at large OR (B) — a council composed of seventeen (17) members elected from single-member districts and two (2) members elected at large?
VOTE FOR ONE
ALTERNATIVE A: For a council composed of seven (7) members elected from single-member districts and two (2) members elected at large ...
C. If a change in council composition is favored by a majority vote of the electors voting on the proposal, the alternative proposition receiving the greatest number of affirmative votes shall prevail. If a change in council composition is not favored, both alternative propositions also shall fail. The referendum results shall be binding and subject to future change only by amendment to this charter.

Pursuant to this mandate, the referendum on council composition was submitted to the people on September 13, 1980, as per Resolution number 80-27 adopted July 10, 1980. Section 7-04(D) of the Home Rule Charter,' entitled “Amending or Repealing the Charter,” states:

D. Proposals to amend or repeal this charter shall not be submitted more frequently than every two (2) years provided, however, that the council, upon the declaration of a public emergency affecting life, health, property or safety and upon the favorable vote of at least two-thirds of the authorized council membership, may propose amendments to this charter whenever necessary. No amendment or repeal shall shorten the term for which any official was elected or reduce the salary of office for that term. (Emphasis added).

In Louisiana Television Broadcasting Corp. v. Total C.A.T.V., 341 So.2d 1183 (La.App. 1st Cir.1977), writ refused 343 So.2d 1076 (La.1977), this Court stated:

Statutory rules of construction of laws are as applicable to municipal and parish ordinances as they are to state statutes. Liller v. Louisiana Board of Alcoholic Beverage Control, 59 So.2d 222 (La.App. Orleans 1952).
When a law is clear and free from ambiguity its letter is not to be disregarded under the pretext of pursuing its spirit. LSA-C.C. Article 13.
The words of a law are generally to be understood in their most usual signification, without attending so much to the niceties of grammar rules as to the general and popular use of the words. LSA-C.C. Article 14.
When a law is clear and free from all ambiguity, it must be given effect as written. Hebbler v. New Orleans Fire Department, 310 So.2d 113 (La.1975).
Every word in a statute must be given meaning, if possible; no word, clause, phrase or sentence of a statute shall be deemed meaningless or surplusage if a construction can be legitimately found which will give force to and preserve every word of the statute. State v. Fontenot, 112 La. 628, 36 So. 630 (1904); State v. Dozier, 258 La. 323, 246 So.2d 187 (1971).
In construing a statute, legislative aim and design may be inquired into by the courts for the purpose of determining legislative intent, only when a statute is ambiguous or subject to two reasonable interpretations. Fire Department, above; State v. McCulloch, 126 So.2d 191 (La.App. 4th Cir.1961).

Applying the Louisiana Television Broadcasting Corp. rationale to the construction of Sections 8-02 and 7-04(D), in order to give meaning to both sections and Ordinance 82-356 mandating- the election of September 11, 1982, we hold that the first election concerning the Charter, held on September 13, 1980, was not a proposal to amend or repeal the Charter, as governed by Section 7-04(D); thus, the submission of the question of repeal of the Charter to the voters was timely.

The second issue to be decided by the Court concerns the effect of the election on the repeal of the Home Rule Charter. The court held that the affirmative vote of the majority of the voting electors operated to automatically repeal the Home Rule Charter for St. Tammany Parish. On this point, the trial judge commented:

This Court recognizes the principle that every duly constituted governmental entity is presumed to act within the scope of the law. Thus the official acts of such entities are clothed with a presumption of legality. While such acts are always subject to judicial review, their effect will not be disturbed without ample cause. When a Home Rule Charter is adopted or amended the prescribed method for adoption or amendment is exclusive, and failure to comply substantially with such methods is fatal. However, it is recognized that the interpretation of our State Constitution is carried out according to liberal and broad rules of construction, and it is equally clear that the purpose of Home Rule is to grant all powers to the local political subdivision which are not expressly reserved by the state. This Court is of the opinion that the question in this ease is not whether the action of the council and the expression of the electorate can be condemned as invalid; rather, this Court is of the opinion that the test to be applied is whether the procedures which were carried out were in substantial compliance with the Constitution and with the law, including the Home Rule Charter. The Court notes at this point that Section 7-04, which deals with amending or repealing of the Charter, may be read in pari materia with Section 8-11. Section 8-11 specifies with the valid form by which the voters were originally presented with the choice of adopting or rejecting the Home Rule Charter. The ballot language was specified in pertinent part as follows: “Shall the Home Rule Charter and plan of government for St. Tammany Parish, prepared and submitted by the duly constituted Charter Commission according to Article 6 Section 5 of the Constitution of Louisiana and other applicable law, be adopted?” In this Court’s mind the language which is presently applicable, that is the language which may be construed in pan materia with Section 7-04 is: “Shall the Home Rule Charter ... be adopted?” This language is the mere opposite of the question which was presented to the voters pursuant to Ordinance No. 82-356, which is: “Shall the Home Rule Charter for St. Tammany Parish, Louisiana be repealed?” Taking the applicable law, rules of construction, and facts of the case under consideration together, this Court holds that the affirmative vote of the majority of the voting electors operated to automatically repeal the Home Rule Charter for St. Tammany Parish. (Article 6, Section 5, Louisiana Constitution 1974).

The trial court correctly noted that Section 8-11, which provided the people with the proposition as to whether a home rule charter submitted on September 13, 1980, should be adopted, was substantially the same as the referendum of September 11, 1982. They provided, respectively:

Shall the home rule charter and plan of government for St. Tammany Parish, prepared and submitted by the duly constituted Charter Commission according to Article VI, Section 5 of the Constitution of Louisiana and other applicable law, be adopted? Shall the home rule charter for St. Tammany Parish, La. be repealed?

A study of Ordinance 82-356 reveals the intent and effect of the ordinance and the election held pursuant to it. The title states it is an Ordinance to repeal the Home Rule Charter for St. Tammany Parish. The ordinance cites Section 7-04(A), regarding proposals to amend or repeal the Charter. Section 7-04(B) is also cited by the Ordinance. Finally, the item to be placed before the voters is spelled out:

PROPOSITION TO REPEAL THE HOME RULE CHARTER FOR ST. TAMMANY PARISH
Shall the Home Rule Charter for St. Tammany Parish, La. be repealed?

There is no merit in appellants’ contention that Ordinance 82-356 (and the election of September 11, 1982) was only to obtain an opinion poll for the governing authorities. Ordinance 82-356 states word for word the requirements of the Home Rule Charter in order to repeal or amend the Charter. There are no words in the Ordinance intimating that the election was to be only an opinion or straw poll.

Article VI, Section 5(C) of the Louisiana Constitution of 1974 states:

A home rule charter shall be adopted, amended, or repealed when approved by a majority of the electors voting thereon at an election voted for that purpose.

The question submitted to the voters on September 11, 1982 was a Proposition to Repeal the Home Rule Charter. A majority of the people at that election voted for the repeal. We hold that the Home Rule Charter was repealed by a vote of the electorate as required by law.

For the reasons assigned, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.

      . LSA-R.S. 33:1388 was repealed by Act. No. 703 of 1980, but was in effect at the time pertinent to this issue.


author: EDWARDS, Judge.

text:
    Hazel Wall McCURLEY v. James Thomas WALL, Estelle Wall Morris, John Lee "Goober" Wall, Hampton "Hamp" Wall, and Benjamin Ray Wall through his children and heirs at law: James Robert Wall and Mrs. Bobbie Wall Graham. SUCCESSION OF Mary Jane Lee WALL, John Thomas (Nin) Wall, Robert Piney Wall, Lonzo Wall and Breed Wall.
    Nos. 15112, 15113.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Rehearing Denied Nov. 22, 1983.
    Writ Denied Dec. 16, 1983.
    Writ Granted Jan. 27, 1984.
    Roy K. Burns, Jr., Covington, for Hazel Wall McCurley.
    Charles B.W. Palmer, Amite, for James Thomas Wall et al.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

On January 19,1977, James Thomas Wall, et al. (defendants), filed a notice of Lis Pendens concerning 124 acres of property owned by their sister, Hazel Wall McCurley, a co-heir. McCurley had bought the property from her parents, J.T. Wall and Mary Jane Wall, who died respectively on May 1, 1965, and September 15, 1976.

McCurley filed suit against the defendants to remove the notice of Lis Pendens, to which defendants answered and filed a re-conventional demand on August 26, 1977. Additionally, defendants opened the succession of Mary Jane Wall, J.T. Wall, Robert Wall, Lonzo Wall and Breed Wall. McCur-ley’s suit and the succession proceedings were subsequently consolidated.

In their reconventional demand, defendants alleged that the sale of the 124 acres from J.T. Wall and Mary Jane Wall to Hazel Wall McCurley was actually a disguised donation. The trial court agreed, finding the disputed sale to be a disguised donation and therefore void.

McCurley appealed, and for the first time urged that under La.Civ.C. art. 3544, the action for collation of the one-half community interest of J.T. Wall had prescribed by the lapse of ten years from decedent’s death on May 1, 1965. The appellate court remanded the case for a hearing on the exception of prescription.

After a hearing, the trial court upheld the peremptory exception of prescription and declared McCurley the owner of J.T. Wall’s one-half interest in the 124 acres. Defendants have taken this present appeal, urging that the trial court erred in applying the 10-year prescription of La.Civ.C. art. 3544 to collation.

PRESCRIPTION OF COLLATION ACTION

Defendants contend that the proper prescription for the action of collation is the 30-year period of La.Civ.C. art. 3548 or 1305. To support their contention, defendants rely on La.Civ.C. art.(s) 1234, 1250, 1252, 1261, 1304, 1266-67, 1273, 1283-88, 1275, and the cases of White v. White, 23 So. 95 (La.1898) and Welch v. Courville, 99 So.2d 487 (La.App. 2nd Cir.1957).

However, the cited code articles offer no support to defendants’ arguments, said articles being either totally irrelevant or misconstrued by counsel. Likewise, the White case does not involve a collation situation and the cited portion of Welch in defendants’ brief is dicta.

As pointed out in appellee’s brief, the cases of Succession of Webre, 247 La. 461, 172 So.2d 285 (1965) and Waguespack v. Waguespack, 359 So.2d 685 (La.App.1st Cir.1978) clearly hold that under La.Civ.C. art. 3544 “the action for collation prescribes in ten years from the death of the person to whose estate collation is sought.” Wagues-pack, supra, at 686. In this case, J.T. Wall died May 1, 1965. The notice of Lis Pen-dens (filed January 19, 1977), reconventional demand and succession of J.T. Wall (filed August 26, 1977) were all filed more than ten years after the death of J.T. Wall. Thus, the trial court was correct in holding that the collation action had prescribed, and in declaring Hazel Wall McCurley the owner of J.T. Wall’s one-half community interest in the 124 acres.

DECREE

For the above assigned reasons, the judgment of the trial court is affirmed at appellants’ cost.

AFFIRMED.


author: ALFORD, Judge.

text:
    Andree PLANCHE, et al. v. Gregory E. URSIN, et al.
    No. 82 CA 1032.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Rehearing Denied Nov. 22, 1983.
    Writ Denied Jan. 27, 1984.

      Jeffrey D. Schoen, Covington, for plaintiffs, appellees.
    Gregory Ursin, in pro. per.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a judgment of the Twenty-Second Judicial District Court, Parish of St. Tammany, recognizing appellees’ possession of a certain parcel of immovable property located in said parish. Additionally, appellant was cast in judgment for $4,284.27 for cutting trees on the land possessed by appellees. In answer to the appeal, appellees seek to have this Court triple the damage award pursuant to LSA R.S. 56:1478.1.

Appellees brought this possessory action alleging that appellant had disturbed their possession of the disputed land by cutting trees on a bluff adjacent to the West Pearl River. Additionally, appellees alleged that appellant widened a trail leading to the bluff so as to facilitate the removal of the cut timber. Appellant reconvened against appellees alleging his possession of the disputed bluff and further alleging that appel-lees disturbed his possession when they brought injunction proceedings against him on December 4, 1980. After trial on the merits, the trial judge maintained appellees’ possession and dismissed appellant’s recon-ventional demands.

In his first specification of error, appellant maintains that the trial judge erred in treating the case as a petitory action, rather than as a possessory action, as evidenced by the reference to title documents in his written reasons for judgment. We disagree. LSA C.C.P. art. 3661, provides:

“In the possessory action, the ownership or title of the parties to the immovable property or real right therein is not at issue.
No evidence of ownership or title to the immovable property or real right therein shall be admitted except to prove:
(1) The possession thereof by a party as owner;
(2) The extent of the possession thereof by a party; or
(3) The length of time in which a party and his ancestors in title have had possession thereof.”

It is apparent to this Court that the trial judge’s admittance of evidence as to title, as well as his reference to the evidence, was in conformity with the provisions of LSA C.C.P. art. 3661.

Appellant additionally complains of the trial court’s factual determination that the West Pearl River, and not an old surveyor’s traverse line, marks the extent of appellees’ possession. As often noted in the jurisprudence, factual determinations of the trial court are afforded much weight, and are not to be disturbed on appeal absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We find no manifest error in this factual finding.

Appellant further maintains that the evidence presented clearly demonstrates that appellees failed to meet their burden of proving possession. Not only do we disagree with this argument, but we further adopt as our own, that portion of the trial judge’s excellent reasons for judgment which disposes of this issue.

“The testimony and all of the evidence indicates that Dr. Felix A. Planche, now deceased father of the plaintiffs, acquired Headright 39 on December '4, 1941, and possessed all the way to the west bank of West Pearl River as owner, C.E. Lane and Jimmy Crisco bought a camp that was situated on the bluff that makes up the disputed area around 1940, and utilized the camp until it burned in 1949 or 1950. During the time the camp existed, Mr. Lane and Mr. Crisco rented the camp site from Dr. Planche. Dr. Planche also used the area in dispute for family recreational purposes, and often took his family to the area to swim, boat and picnic.
In 1963, plaintiffs, along with their mother sold the timber on Headright 39, and in 1974 the plaintiffs again sold the timber situation in Headright 39.
In 1978, plaintiffs appointed William M. Magee to oversee the property, and he also possessed the area in dispute for the plaintiffs, by swimming, fishing, hunting, boating, and picnicing along the bluff area that is in dispute. Mr. Magee owned adjoining property, and from 1978 through the time of Ursin’s disturbance, Mr. Magee knew of no one that questioned the ownership or possession of the plaintiffs to the area in dispute. Dr. Planche and his descendants have paid taxes on the property comprising Head-right 39 since Dr. Planche took possession in 1941. Headright 39 has been used principally by the Planche family for growing timber and for recreational purposes. Although the record is not clear as to whether or not timber was actually cut from the disputed area in 1963 or 1974, the renting of the bluff area for a camp site and the camps occupancy by Crisco and Lane constituted actual corporeal possession that inured to the benefit of Dr. Planche and his descendants. With the type land involved and the circumstances of this case, the Court is also convinced that there has been a continuation of corporeal possession of the disputed area by the Planche family until the defendant’s disturbance on November 30, 1980. The Planche family has used the property for recreational purposes, and placed the area under the auspices of William Magee for him to use and enjoy, as well as keep away trespassers.”

As noted above, appellees have answered this appeal seeking to have this Court triple the damage award pursuant to LSA R.S. 56:1478.1. Appellees maintain that the evidence clearly shows appellant’s bad faith in clearing the disputed bluff of timber and vegetation. We disagree. The pertinent provisions of LSA R.S. 56:1478.1 provide:

“A. It shall be unlawful for any person to cut, fell destroy or remove any trees, or to authorize or direct his agent or employee to cut, fell destroy or remove any trees, growing or lying on the land of another, without the consent of the owner or legal possessor.
B. Whoever willfully and intentionally violates the provisions of Subsection A shall be liable to the owner or legal possessor of the trees for civil damages in the amount of three times the fair market value of the trees cut, felled, destroyed or removed.”

It is the opinion of this Court that appellant did not in fact act in bad faith in that he believed he had a right to the disputed area.

Therefore, for the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are to be borne by appellant.

AFFIRMED.


text:
    Cable J. PREJEAN, d/b/a—Belt Center of Lafayette v. BELT CENTER CORPORATION.
    No. 82 CA 1052.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Rehearing Denied Nov. 22, 1983.
    Carrol L. Spell, Sr., Lafayette, for plaintiff-appellant.
    Phil Breaux, St. Gabriel, for defendant-appellee.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

This is an appeal by Cable J. Prejean, d/b/a Belt Center of Lafayette, from a judgment granting the motion for summary judgment of Belt Center Corporation. We affirm.

Prejean brought this action seeking specific performance of a contract between him and the defendant. Prejean’s petition alleged that he had entered into a master franchise agreement with Belt Center Corporation under the terms of which he was to be granted an exclusive franchise to market the corporation’s belts, but that the Corporation had breached the agreement by failing to provide training for the franchisee, by failing to provide a plan for sales promotion of the belts and by failing to create a system for obtaining and marketing their belts at a below-competition price.

The Corporation responded by seeking certain amounts of money, allegedly owed to it by Prejean.

Thereafter, Belt Center Corporation moved for a summary judgment on the basis that there was no issue as to the indebtedness owed by Prejean to it for the purchase price, service and freight charges of certain belts sold to Prejean.

A hearing was held in due course on the motion for summary judgment, at which time the trial court rendered the judgment complained of on this appeal.

The Corporation presented in its motion for summary judgment, and the attachments thereto, specific facts to support its contention that Cable Prejean owed it the sum of $60,400.37 for the purchase price, service and freight charges due on belts sold on credit to him. In his deposition introduced in evidence, Mr. Prejean admitted to owing the Corporation the amount claimed. In addition, the affidavit of Darlene Delucci, the bookkeeper for Belt Center Corporation, substantiated Prejean’s indebtedness. Prejean filed a counteraffidav-it which did not specifically address the indebtedness, but complained of the non-delivery of merchandise and breaches of the franchise agreement between the parties.

Under the explicit provisions of LSA-C. C.P. arts. 966 and 967, it was proper for the trial court to render judgment in favor of the Belt Center Corporation because there was no genuine issue as to material fact and it was entitled to judgment as a matter of law. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980).

For the reasons stated above, the trial court’s granting of the motion for summary judgment is affirmed at appellant’s costs.

AFFIRMED.


author: WATKINS, Judge:

text:
    DEPARTMENT OF CORRECTIONS, HUNT CORRECTIONAL CENTER v. Annette K. MORGAN.
    No. 82 CA 1063.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Rehearing Denied Nov. 22, 1983.
    Annette R. Seng, Asst. Atty. Gen., Dept, of Justice, Baton Rouge, for appellant.
    Robert E. Kleinpeter, Coxe & Coxe, Baton Rouge, for appellee.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for Herbert L. Sumrall Director of the Dept, of State Civil Service.

      Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge:

Annette K. Morgan, who was employed at Hunt Correctional Center, St. Gabriel, Louisiana, was removed from her position as Correctional Security Officer II. The letter of dismissal held her responsible for the escape of an inmate. She appealed to the Civil Service Commission. The Commission, after reviewing the record and exhibits (including a sound recording of testimony taken before a referee), ordered that Ms. Morgan be reinstated in her position with back pay.

On the night of February 16, 1981, Ms. Morgan was a guard on Tower 13 on the 2:00 p.m. to 10:00 p.m. shift. A roll call count taken that evening at 8:00 p.m. revealed that one inmate was missing. A search was instituted both inside and outside the facility, but the escaped inmate was never found. Footprints were found inside the facility leading to the fence between Tower 12 and Tower 13, and the razor wire at the top of the fence between those towers was found bent down.

Ms. Morgan testified that between 5:30 and 6:30 p.m. she noticed a fog rolling in from the swamp north of the institution. She further testified that she heard noises about 6:30 p.m. and, as she was required to do, sought permission from the control center to use the spotlight; however, such permission was denied. She later testified that it was 7:30 or 7:45 p.m. before she sought permission to use the spotlight. In any event, acting without having obtained permission, Ms. Morgan turned on the spotlight and determined that the noises were coming from a water tank located outside the fence.

Ms. Morgan’s testimony concerning the presence of fog in the area was corroborated by Yvonne Griner (guard at Tower 8) and Pamela Haddan (guard at Tower 14). They testified that a heavy fog rolled in from the north about 6:00 p.m. and prevented a view of the prison fence from their towers or any view from one tower to another. In addition, they testified that the fog disappeared about 9:00 p.m. or 9:30 p.m., just when additional personnel were arriving at the facility because of the escape. It was brought out during the hearing that Ms. Griner is Ms. Morgan’s sister, and that all three of the women rode to work together.

All three women admitted using the telephone quite frequently for purposes other than official duty while in their respective towers. Ms. Morgan admitted that making such calls was a violation of the rules.

The witnesses who testified on behalf of the Department of Corrections were unanimous in denying that there was any fog on the night of the escape. Mary Wells, the control center operator, testified that she received no reports of visibility problems. Robert Delaune, the shift supervisor, testified he observed no fog during the 2:00-10:00 p.m. shift and received no reports of foggy conditions from tower personnel. Ivy, Deville, who was acting captain of Compound 2, the compound in which Ms. Morgan was stationed, testified that he was both inside and outside of Compound 2 on the night of the escape, but he observed no fog. Janice Dickerson, the guard in Tower 1, testified the weather was misty but visibility was not impaired. Mary Wells, the control center operator, further testified that she received no call from the control towers seeking permission to use a spotlight. All prison personnel flatly deny that the guards were required to obtain central control’s permission to use the spotlight.

The opinion of the Civil Service Commission reached from a record made before a referee does not stand on the same footing as the decision of a trial court, as the Civil Service Commission unlike a trial court' considers the cold record and cannot observe the demeanor of witnesses. For that reason, the manifest error rule of Canter v. Koehring Company, 283 So.2d 716 (La.1973), and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) does not apply. In the case sub judice, the hearing was held before a referee, and the Commission reviewed the record. In such instances, the appellate court may make an independent review of the record to determine whether or not the conclusion of the Commission is arbitrary, capricious, or manifestly wrong. Wollerson v. Department of Agriculture, 436 So.2d 1241 (La.App. 1st Cir.1983).

After reviewing the full record, we find the conclusion of the Civil Service Commission that Ms. Morgan was prevented from seeing the escape by fog was the result of an arbitrary and capricious analysis of the record. The opinion of the Commissioner does not discuss certain facts which we deem pertinent. No mention is made of the possible bias of the witnesses who corroborated Ms. Morgan’s testimony. No mention is made of the testimony of the witnesses for the Department of Corrections who all categorically denied the presence of fog. No mention is made of Ms. Morgan’s admission that she violated the rules by making numerous personal telephone calls while on duty. Additionally, the Commission failed to acknowledge that guards were permitted to exercise independent judgment in using the spotlight.

After reviewing the record, we find that the evidence establishes that Ms. Morgan was inattentive to her duties, permitting an inmate to escape. Ms. Morgan was entrusted with the responsibility of protecting society from the possibility that an inmate might escape and do harm. She violated that responsibility. We hold that the finding of the Civil Service Commission reinstating Ms. Morgan was arbitrary, capricious, and clearly wrong. Therefore, we order her dismissal as originally directed in the letter of termination. All costs shall be paid by Annette K. Morgan.

REVERSED AND RENDERED.