text:
    Willie HUGHES v. LIVINGSTON PARISH SCHOOL BOARD, et al.
    No. 84-C-2198.
    Supreme Court of Louisiana.
    Jan. 25, 1985.
   In re Livingston Parish School Bd., applying for writ of certiorari and/or review; to the Court of Appeal, First Circuit, No. 83-CA-1024; Parish of Livingston, 21st Judicial District Court, Div. “B”, No. 37298.

Prior report: 459 So.2d 10.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Vernon C. MORGAN.
    No. 84-KK-2202.
    Supreme Court of Louisiana.
    Jan. 25, 1985.
   In re Morgan, Vernon C., applying for writ of certiorari and/or review, and supervisory; Parish of Caddo, 1st Judicial District Court, Div. “G”, No. 127024; to the Court of Appeal, Second Circuit, No. 16904-KW.

Denied.

DIXON, C.J., and CALOGERO and LEM-MON, JJ., would grant the writ.


text:
    LaSALLE PUMP AND SUPPLY CO. INC. v. LOUISIANA MIDLAND RAILROAD CO., INC.
    No. 84-C-2203.
    Supreme Court of Louisiana.
    Jan. 25, 1985.
   In re Louisiana Midland R.R. Co., Inc., applying for writ of certiorari and/or review; to the Court of Appeal, Third Circuit, No. 83-986; Parish of LaSalle, 28th Judicial District Court, Div. ”, No. 15871.

Prior report: 459 So.2d 768.

Denied.


text:
    NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURG, PENNSYLVANIA v. Kevin BENNETT and Gary Copp.
    No. 84-CC-2204.
    Supreme Court of Louisiana.
    Jan. 25, 1985.
   In re Bennett, Kevin et al., Copp, Gary, applying for remedial or supervisory writs; to the Court of Appeal, Fourth Circuit, No. C-3112; Parish of Orleans, Civil District Court, Div. “A”, No. 84-7516.

Denied.

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


text:
    STATE of Louisiana v. Oscar Paul BERTHELOT.
    No. 84-KK-2214.
    Supreme Court of Louisiana.
    Jan. 25, 1985.
   In re Berthelot, Oscar Paul, applying for writ of certiorari and/or review, prohibition and mandamus; Parish of Plaquemines, 25th Judicial District Court, Div. “A”, Nos. 77344, 77345, 77346, 77347, 77348; to the Court of Appeal, Fourth Circuit, No. K-3217.

Denied.


text:
    STATE of Louisiana v. Jack TATE.
    No. 85-KK-0004.
    Supreme Court of Louisiana.
    Jan. 25, 1985.
   In re Tate, Jack, applying for writ of certiorari and/or review; Parish of Aseension, Parish Court, Div. D , No. 74244; to the Court of Appeal, First Circuit, No. KWA-840652.

Denied.


text:
    STATE of Louisiana v. Joseph F. WILSON.
    No. 85-KH-0012.
    Supreme Court of Louisiana.
    Jan. 25, 1985.
   In re Wilson, Joseph F., applying for remedial writs; Parish of Orleans, Criminal District Court, Div. “F”, No. 301-053.

Denied.


text:
    STATE of Louisiana ex rel. Robert Lee JOHNSON v. Frank BLACKBURN, Warden, L.S.P.
    No. 85-KH-0013.
    Supreme Court of Louisiana.
    Jan. 25, 1985.
   In re Johnson, Robert Lee, applying for remedial writ; Parish of Rapides, 9th Judicial District Court, Div. “C”, Nos. 202-538, 202-589, 202-540; to the Court of Appeal, Third Circuit, No. K84-1010.

Denied.


text:
    STATE ex rel. Sammy BERNARD v. James E. CLARK, Judge, and John R. Ballard, Judge, First Judicial District Court, Caddo Parish, Louisiana.
    No. 85-KH-0023.
    Supreme Court of Louisiana.
    Jan. 25, 1985.
   In re Bernard, Sammy, applying for remedial writs; Parish of Caddo, 1st Judicial District Court, Div. “E”, No. 110007.

Denied.


text:
    STATE ex rel. Walter WILSON v. Frank C. BLACKBURN, Warden; et al., Louisiana State Penitentiary.
    No. 85-KH-0026.
    Supreme Court of Louisiana.
    Jan. 25, 1985.
   In re Wilson, Walter, applying for supervisory writs; Parish of East Baton Rouge, 19th Judicial District Court, Div. “C”, No. 6-80-431.

Denied.


text:
    STATE ex rel. James WILLIAMS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 85-KH-0051.
    Supreme Court of Louisiana.
    Jan. 25, 1985.
   In re Williams, James, applying for remedial writs; Parish of Orleans, Criminal District Court, Div. “B”, No. 251470.

Denied.


text:
    STATE ex rel. Felton Wayne SMITH v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 85-KH-0054.
    Supreme Court of Louisiana.
    Jan. 25, 1985.
   In re Smith, Felton Wayne, applying for writ of certiorari and/or review, prohibition and mandamus; Parish of Caddo, 1st Judicial District Court, Div. “B”, No. 107180; 1st Judicial District Court, Div. “C”, No. 105227.

Denied.


text:
    STATE ex rel. Lloyd JAMES v. STATE of Louisiana.
    No. 85-KH-0074.
    Supreme Court of Louisiana.
    Jan. 25, 1985.
   In re James, Lloyd, applying for remedial writs; Parish of Orleans, Criminal District Court, Div. “G”, No. 200-721.

Denied.


text:
    STATE of Louisiana v. Mary M. DAVIS and Alvin R. Thomas.
    No. 84-K-1963.
    Supreme Court of Louisiana.
    Jan. 25, 1985.
   In re Mary M. Davis and Alvin R. Thomas, applying for reconsideration of denied writ dated January 7, 1985, 462 So.2d 206, from Fourth Circuit Court of Appeal, No. KA-1694; Criminal District Court, Parish of Orleans, Division “J”, No. 296-883.

Denied.


text:
    STATE ex rel. Brenda DAVIS v. Hon. Hilliary J. CRAIN, Judge, 22nd Judicial District Court, Parish of St. Tammany.
    No. 8 5-KH-0104.
    Supreme Court of Louisiana.
    Jan. 31, 1985.
   In re Davis, Brenda, applying for writ of mandamus; Parish of St. Tammany, 22nd Judicial District Court, Div. “C”, No. 83915.

Granted. The district court is ordered to act, if it has not already done so, on the post conviction petition submitted for filing on November 26, 1984.


text:
    Robert CAHN v. Dorothea Schlesinger CAHN and Majorie Cahn Friedmann.
    No. 84-C-2115.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Cahn, Dorothea S.; applying for writ of certiorari and/or review; to the Court of Appeal, Fourth Circuit, No. CA-2016; Parish of Orleans, Civil District Court, Div. “B”, No. 82-11538.

Prior report: 459 So.2d 731.

Granted.


text:
    Sidney Rice WALTON v. NORMANDY VILLAGE HOMES ASSOCIATION, INC. et al.
    No. 85-C-0034.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Walton, Sidney Rice, applying for writ of certiorari and/or review; to the Court of Appeal, Second Circuit, No. 16707-CA; Parish of Caddo, 1st Judicial District Court, Div. “B”, No. 282930.

Prior report: 460 So.2d 1166.

Granted.


text:
    Patricia Rodriguez, Wife of/and George RODRIGUEZ and Mitchell Rodriguez v. William R. TRAYLOR, Richard J. Roy, the Continental Insurance Company, Valley Forge Insurance Company and Safeco Insurance Company of America.
    No. 85-C-0044.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Rodriguez, Patricia et vir et al., Rodriguez, Mitchell, applying for writ of certiorari and/or review; to the Court of Appeal, Fourth Circuit, No. CA-2050; Parish of Orleans, Civil District Court, Div. “B”, No. 81-408.

Prior report: 461 So.2d 413.

Granted.


text:
    Dr. Harry B. CAPLAN v. LATTER & BLUM, INC.
    No. 85-C-0046.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Latter & Blum, Inc., applying for writ of certiorari and/or review; to the Court of Appeal, Fifth Circuit, No. 84-CA-96; Parish of Jefferson, 24th Judicial District Court, Div. “C”, No. 269-246.

Prior report: 462 So.2d 229.

Granted.


text:
    STATE of Louisiana v. John L. SULLIVAN.
    No. 84-KH-0254.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re John L. Sullivan, applying for remedial writs from the Criminal District Court, Section “G”, No. 276-394, Parish of Orleans.

Granted. Judge Shea is ordered to rule on the motion for new trial and sentence the defendant within 45 days from date.


text:
    Cheryl SIMMONS v. SOWELA TECHNICAL INSTITUTE, Louisiana Board of Elementary and Secondary Education, and the State of Louisiana.
    No. 84-C-2173.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Simmons, Cheryl, applying for writ of certiorari and/or review; to the Court of Appeal, Third Circuit, No. 83-886; Parish of Calcasieu, 14th Judicial District Court, Div. “H”, No. 80-2431.

Prior report: 458 So.2d 565.

Granted. The plaintiffs petition seeks damages in contract and tort invoking the original jurisdiction of the district court. The parties treated the case as such at trial and the district court’s judgment awards damages for breach of an implied contract, with interest and court costs. Accordingly, the court of appeal erred in viewing plaintiffs petition as calling for judicial review of an administrative adjudication. The judgment of the court of appeal, therefore, is reversed, and the case is remanded to the appeals court for consideration of the appeal on its merits. REVERSED AND REMANDED TO THE COURT OF APPEAL.


text:
    STATE ex rel., Byron JACKSON v. Jack A. STEPHENS, Criminal Sheriff, Parish of St. Bernard, Chalmette, Louisiana.
    No. 84-KH-2213.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Jackson, Byron, applying for writ of mandamus; Parish of St. Bernard, 34th Judicial District Court, Div. “B”.

Granted. The district court is ordered to act, if it has not already done so, on the petition for writ of habeas corpus submitted by relator and filed under No. 54578.


text:
    STATE ex rel. L.J. THOMAS v. CRIMINAL DISTRICT COURT, SECTION “G”, PARISH OF ORLEANS.
    No. 85-KH-0059.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Thomas, L.J., applying for remedial writ; Parish of Orleans, Criminal District Court, Div. “G”, No. 283-992.

Granted. Judge Shea is ordered to act on this matter within 15 days.


text:
    Charles IMBORNONE v. DEPARTMENT OF POLICE, CITY OF NEW ORLEANS.
    No. 85-C-0045.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re New Orleans Police Dept., applying for writ of certiorari and/or review; to the Court of Appeal, Fourth Circuit, No. CA-2072; Civil Service Commission, Div. “ ”, No. 2229.

Prior report: 461 So.2d 1095.

Granted in part. The declaration of unconstitutionality was unnecessary to the decision and is set aside. Otherwise, the judgment of the court of appeal is correct, and the application is denied.


text:
    STATE of Louisiana v. Gerald R. BORNING.
    No. 84-KO-1550.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Gerald R. Borning applying for reconsideration of writ not considered on September 20, 1984, 456 So.2d 1011, from the First Circuit Court of Appeal, No. KA-83-1334; Nineteenth Judicial District Court, No. 12-82-241, Section “J”, East Baton Rouge.

Reconsideration granted. The Judgment of the Court of Appeal affirming the conviction and sentence is set aside. The case is remanded to the Court of Appeal for renewed consideration of defendant’s appeal after appointment of counsel, briefing and argument.


text:
    LOUISIANA STATE BAR ASSOCIATION v. William L. DEHNER.
    No. 85-B-0029.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Dehner, William L., applying for resignation, disbarment on consent.

IT IS ORDERED, ADJUDGED AND DECREED

That William L. Dehner be allowed to surrender his license to practice law; that the name of William L. Dehner be stricken from the Rolls of Attorneys; and that William L. Dehner be and hereby is disbarred on his consent; and that the cost of these proceedings are taxed to William L. Deh-ner.


text:
    STATE of Louisiana ex rel. Jack O. GIBSON v. Ross MAGGIO.
    No. 83-KH-2133.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Jack 0. Gibson, applying for remedial writs, to the Twenty-Sixth Judicial District Court, Parish of Bossier, No. 54268.

Denied.


text:
    STATE of Louisiana ex rel. Daniel BEZAR v. Donald B. GUILLORY, Warden.
    No. 83-KH-2221.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Daniel Bezar, applying for writ of habeas corpus, certiorari, prohibition, mandamus, and other remedial writs to the Twenty-First Judicial District Court, Parish of Livingston.

Denied.


text:
    STATE of Louisiana ex rel., Clifton RICHOUX v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 83-KH-2262.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Clifton Richoux, applying for supervisory writs from the Twenty-ninth Judicial District Court, Parish of St. Charles, No. 81-159.

Denied.


text:
    STATE of Louisiana, ex rel. Michael STRAUGHTER v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-2449.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Michael Straughter, applying for remedial writs of certiorari and habeas corpus, Criminal District Court, Parish of Orleans, No. 279-695.

Denied.


text:
    STATE of Louisiana ex rel. Carl LEWIS v. Ross MAGGIO, Jr., Warden et al., Louisiana State Penitentiary.
    No. 84-KH-0114.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Carl Lewis, applying for supervisory writ to the Criminal District Court, Parish of Orleans, No. 278-476.

Denied.


text:
    STATE of Louisiana ex rel. Albert HOOD, Jr. v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0212.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Albert Hood, Jr., applying for remedial writs from the Seventeenth Judicial District Court, No. 42528, Parish of La-fourche.

Denied.


text:
    STATE of La. ex rel. Billy Ray HOLMES v. D.R. GUILLORY.
    No. 84-KH-0504.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Billy Ray Holmes, applying for writ of certiorari to 3rd Judicial District Court, Union Parish, No. 25430.

Denied.


text:
    STATE of Louisiana ex rel. Curtis B. LYONS v. Honorable, Judge Walter C. PETERS, 31st Judicial District Court, Parish of Jefferson Davis, Jennings, Louisiana.
    No. 84-KH-0644.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Curtis B. Lyons, applying for writs of certiorari, prohibition, mandamus and habeas corpus review to the Thirty-First Judicial District Court, No. CR-766-74, Parish of Jefferson Davis.

Denied.


text:
    STATE of Louisiana ex rel. Otis F. HENRY v. Ross MAGGIO, Jr., Warden.
    No. 84-KH-0763.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Otis F. Henry, applying for writs of habeas corpus and mandamus to the Twenty-Second Judicial District Court, No. 34-126, Parish of Washington.

Denied.


text:
    STATE of Louisiana ex rel. Mark Steven HALL v. Ross MAGGIO, Jr., Warden, et al., Louisiana State Penitentiary.
    No. 84-KH-0825.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Mark Steven Hall, applying for petition for writ of habeas corpus and supervisory writ to the Thirty-Sixth Judicial District Court, No. CR-586-82, Parish of Beauregard.

Denied.


text:
    STATE of Louisiana, ex rel., Leslie F. WALGAMOTTE v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 84-KH-0965.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Leslie F. Walgamotte, applying for writ of mandamus, Parish of Orleans, Criminal District Court, No. 263-730.

Denied.


text:
    STATE of Louisiana ex rel. Joseph MALATESTA v. Hon. Dennis J. WALDRON, Judge, Sec. F, Criminal District Court, Parish of Orleans.
    No. 84-KH-1014.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Joseph Malatesta, applying for writ of review to the Criminal District Court, Parish of Orleans, No. 247-098.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE ex rel. Joseph R. SHEA v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-1232.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Joseph R. Shea, applying for writ of habeas corpus, and/or post-conviction relief to the Third Circuit Court of Appeal, Number K84-423; 38th Judicial District Court, Parish of Cameron, Number 39-591.

Denied.


text:
    STATE ex rel. Ronnie JAMES v. Ross MAGGIO, Warden, La. State Penitentiary.
    No. 84-KH-1299.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Ronnie James, applying for writ of certiorari, prohibition, mandamus or habeas corpus, Jefferson Parish, 24th Judicial District Court, No. 75-2141.

Denied.


text:
    STATE ex rel. Allen PEGUES v. STATE of Louisiana.
    No. 84-KH-1546.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Pegues, Allen, applying for habeas corpus, Parish of Orleans, Criminal District Court, Div. “D”, No. 301-651; to the Court of Appeal, Fourth Circuit, No. K-2645.

Denied.


text:
    STATE ex rel., Silk D. TRAPP v. Frank BLACKBURN, Warden.
    No. 84-KH-1541.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Trapp, Silk D., applying for remedial writs to the Court of Appeal, Fifth Circuit; Parish of Jefferson, 24th Judicial District Court, Div. “M”, No. 80-1898.

Denied.


text:
    STATE ex rel. Edward J. BOURGEOIS v. Hon. John F. MCKAY, III, Judge, Criminal District Court, Sec. “H”, Parish of Orleans, State of Louisiana, New Orleans, Louisiana.
    No. 84-KH-1663.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Bourgeois, Edward J., applying for writ of certiorari, writ of review, Parish of Orleans, Criminal District Court, Div. “H”, No. 262823; to the Court of Appeal, Fourth Circuit, No. K-2799.

Denied.


text:
    STATE ex rel. Joseph Russell SHEA v. Frank C. BLACKBURN, Warden, et al., Louisiana State Penitentiary.
    No. 84-KH-1689.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Shea, Joseph Russell, applying for supervisory writs, Parish of Cameron, 38th Judicial District Court, Div. “ ”, No. 34-183; to the Court of Appeal, Third Circuit, No. K-84-768.

Denied.


text:
    STATE ex rel., Joe FOUNTAIN v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 84-KH-1703.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Fountain, Joe, applying for supervisory writ, Parish of Orleans, Criminal District Court, Div. “F”, No. 238-896.

Denied.


text:
    STATE of Louisiana v. Kenneth Ray Clark RAMSEY a/k/a Kenneth Ray Clark.
    No. 84-K-1794.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Ramsey, Kenneth Ray Clark aka, Clark, Kenneth Ray, applying for writ of mandamus and stay order to the Court of Appeal, Second Circuit, No. 15650-KA; Parish of Madison, 6th Judicial District Court, Div. “B”, No. 33218.

Prior report: 457 So.2d 211.

Denied.


text:
    Charles Bernard WHITAKER v. STATE FARM FIRE & CASUALTY CO. et al.
    No. 84-C-1836.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Whitaker, Charles Bernard, applying for writ of certiorari, writ of review to the Court of Appeal, Second Circuit, No. 16333-CA; Parish of Caddo, 1st Judicial District Court, Div. “D”, No. 293079.

Prior report: 454 So.2d 1251.

Denied.

WATSON, J., would grant the writ.


text:
    STATE of Louisiana v. Daniel M. HART.
    No. 84-K-2042.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re State of Louisiana, applying for writ of certiorari and/or review, Court of Appeal, First Circuit, No. 83-KA-1064; Parish of Terrebonne, 32nd Judicial District Court, Div. “C”, No. 116046.

Prior report: 457 So.2d 791.

Denied.


text:
    STATE of Louisiana v. Quintus D. BOWIE.
    No. 84-K-2069.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Bowie, Quintus D., applying for writ of certiorari and/or review, Court of Appeal, Third Circuit, No. CR-84-58; Parish of LaSalle, 28th Judicial District Court, Div. “ ”, No. 28557.

Prior report: 458 So.2d 1033.

Denied.


text:
    STATE of Louisiana v. Hannon ROY, Jr.
    No. 84-K-2071.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Roy, Hannon Jr., applying for writ of certiorari and/or review, Court of Appeal, Third Circuit, No. CR83-1043; Parish of Avoyelles, 12th Judicial District Court, Div. " ”, No. 52-964.

Prior report: 458 So.2d 1040.

Denied.


text:
    STATE of Louisiana v. Felton LEDET.
    No. 84-K-2075.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Ledet, Felton, applying for writ of certiorari and/or review, supervisory, Court of Appeal, Third Circuit, No. CR-84-31; Parish of Lafayette, 15th Judicial District Court, Div. “B”, No. 83-048119.

Prior report: 458 So.2d 1024.

Denied.


text:
    STATE of Louisiana v. Timothy Trent HUME.
    No. 84-K-2080.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Hume, Timothy Trent, applying for writ of certiorari and/or review, Court of Appeal, Second Circuit, No. 16571-KA; Parish of Caddo, 1st Judicial District Court, Div. “E”, Ño. 125058.

Prior report: 460 So.2d 103.

Denied.


text:
    STATE of Louisiana v. Clarence WILLIS.
    No. 84-K-2088.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Willis, Clarence, applying for writ of certiorari and/or review; to the Court of Appeal, Third Circuit, No. CR-84-405; Parish of Rapides, 9th Judicial District Court, Div. “E”, No. 205833.

Prior report: 459 So.2d 221.

Denied.


text:
    STATE of Louisiana v. Jerry C. MORGAN.
    No. 84-K-2117.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Morgan, Jerry C., applying for writ of certiorari and/or review; to the Court of Appeal, First Circuit, No. 83-KA-1022; Parish of Tangipahoa, 21st Judicial District Court, Div. “C”, No. 45864.

Prior report: 459 So.2d 6.

Denied.


text:
    STATE of Louisiana v. Kenneth R. DALEY.
    No. 84-K-2119.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Daley, Kenneth R., applying for writ of certiorari and/or review; to the Court of Appeal, Second Circuit, No. 16478-KA; Parish of Caddo, 1st Judicial District Court, Div. “I”, No. 16478-KA.

Prior report: 459 So.2d 66.

Denied.


text:
    STATE of Louisiana v. Jerry G. McCUTCHEN.
    No. 84-K-2120.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re McCutchen, Jerry G., applying for writ of certiorari and/or review; to the Court of Appeal, Second Circuit, No. 16640-KA; Parish of Caddo, 1st Judicial District Court, Div. “H”, No. 125183.

Prior report: 459 So.2d 162.

Denied.


text:
    CONFEDERATE WELDING AND SAFETY SUPPLY, INC. v. BANK OF the MID-SOUTH.
    No. 84-C-2206.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Bank of The Mid-South, applying for writ of certiorari and/or review; to the Court of Appeal, Second Circuit, No. 16502-CA; Parish of Bossier, 26th Judicial District Court, Div. “B”, No. 59909.

Prior report: 458 So.2d 1370.

Denied.

DIXON, C.J., and MARCUS and LEM-MON, JJ., would grant the writ.


text:
    STATE of Louisiana In the Interest of Melinda BREEN.
    No. 85-CK-0009.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Louisiana, State of, applying for writ of certiorari and/or review; to the Court of Appeal, Second Circuit, No. 16730-CAJ; Parish of Ouachita, 4th Judicial District Court, Div. “D”, No. 7583.

Denied.

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


text:
    James D. NORRED and Jessie Lee Norred v. The EMPLOYERS FIRE INSURANCE COMPANY.
    No. 85-C-0019.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Employers Fire Ins. Co., applying for writ of certiorari and/or review; to the Court of Appeal, Second Circuit, No. 16650-CA; Parish of Jackson, 2nd Judicial District Court, Div. “B”, No. 19955.

Prior report: 460 So.2d 1147.

Denied.

MARCUS, J., would grant the writ.


text:
    Roosevelt HUGHES v. PUMP MASTER, INC., Mark E. Jones and Commercial Union Insurance Company, In Solido. Roosevelt HUGHES v. QUERBES AND NELSON, INCORPORATED and Insurance Company of North America, In Solido.
    No. 85-C-0021.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Hughes, Roosevelt, applying for writ of certiorari and/or review; to the Court of Appeal, Second Circuit, Nos. 16691-CA, 16692-CA; Parish of Caddo, 1st Judicial District Court, Div. 293360, 294228. “D”, Nos.

Prior report: 460 So.2d 1161.

Denied.


text:
    George HEBERT, Individually and on Behalf of His Minor Son Roger Hebert, and Ada Hebert v. FIRST AMERICAN INSURANCE CO., Rosalie Signorelli, Mary Duncan, and Their Insurer State Farm Mutual Automobile Insurance Co., Pan American Life Insurance Co., et al.
    No. 85-C-0032.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Hebert, George et al., Hebert, Roger, Hebert, Ada, applying for writ of certio-rari and/or review; to the Court of Appeal, Fifth Circuit, No. 83-CA-756; Parish of Jefferson, 24th Judicial District Court, Div. “B,” No. 240-561.

Prior report: 461 So.2d 1141.

Denied.

DENNIS and LEMMON, JJ„ would grant the writ.


text:
    David P. McCART v. SEARS, ROEBUCK & COMPANY.
    No. 85-C-0033.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re McCart, David P., applying for writ of certiorari and/or review; to the Court of Appeal, Second Circuit, No. 16518-CA; Parish of Bossier, 26th Judicial District Court, Div. “B”, No. 60258.

Prior report: 460 So.2d 1104.

Denied.

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


text:
    Ricky Edward FROST v. Charles ALBRIGHT d/b/a Albright Sawmill.
    No. 85-C-0035.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Frost, Ricky Edward, applying for writ of certiorari and/or review; to the Court of Appeal, Second Circuit, No. 16601-CA; Parish of Ouachita, 4th Judicial District Court, Div. “E”, No. 120685.

Prior report: 460 So.2d 1125.

Denied.

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


text:
    Nancy Frederick Henderson, wife of/and Nolden HENDERSON, Jr. v. TODD SHIPYARDS, et al.
    No. 85-C-0039.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Henderson, Nancy F. et vir, Henderson, Nolden Jr., applying for writ of certiorari and/or review; to the Court of Appeal, Fourth Circuit, Nos. CA-2098, CA-2356; Parish of Orleans, Civil District Court, Div. “J”, No. 83-9077.

Prior report: 462 So.2d 242.

Denied.


text:
    Oscar SYLVESTER, Jr. v. The ST. LANDRY PARISH POLICE JURY and Milburn St. Amand.
    No. 85-C-0040.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re St. Amand, Milburn, applying for writ of certiorari and/or review; to the Court of Appeal, Third Circuit, No. 83-1161; Parish of St. Landry, 27th Judicial District Court, Div. “C”, No. 76049.

Prior report: 461 So.2d 533.

Denied.

DENNIS, J., would grant the writ.


text:
    MELBOURNE BROS. CONSTRUCTION COMPANY v. GNOTS-RESERVE, INC. and Mid-Stream Transfer, Inc.
    No. 85-C-0041.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Melbourne Bros. Constr. Co., applying for writ of certiorari and/or review; to the Court of Appeal, Fifth Circuit, No. 83-CA-816; Parish of St. Charles, 29th Judicial District Court, Div. “E”, No. 25460.

Denied.


text:
    Cynthia Leitz wife of/and Vincent SALITO, Jr. v. William WENTZELL, American International Insurance Co. and Julie Maffe.
    No. 85-C-0043.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Leitz, Cynthia et vir, Salito, Vincent Jr., Salito, Cynthia Leitz, applying for writ of certiorari and/or review; to the Court of Appeal, Fifth Circuit, No. 84-CA-100; Parish of Jefferson, 24th Judicial District Court, Div. “G”, No. 228-543.

Prior report: 461 So.2d 473.

Denied.

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


text:
    Virginia BRUMLEY v. The FIRESTONE TIRE & RUBBER COMPANY.
    No. 85-C-0048.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Firestone Tire & Rubber Co., applying for writ of certiorari and/or review; to the Court of Appeal, Third Circuit, No. 83-995; Parish of Calcasieu, 14th Judicial District Court, Div. “B”, No. 82-5833.

Prior report: 459 So.2d 572.

Denied.


text:
    Sarah Goldman, Wife of Allen James LOGUE v. Allen James LOGUE.
    No. 85-C-0049.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Goldman, Sarah, applying for writ of certiorari and/or review; to the Court of Appeal, Fifth Circuit, No. 84-CA-76; Parish of Jefferson, 24th Judicial District Court, Div. “D”, No. 234-778.

Prior report: 461 So.2d 469.

Denied.


text:
    Dorothy J. KYLE v. LOUISIANA STATE CIVIL SERVICE COMMISSION and the Department of State Civil Service, Herbert Sumrall, Director.
    No. 85-OC-0127.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Kyle, Dorothy J., applying for stay, injunctive relief and a declaratory judgment; State Civil Service Commission, Div. “ ”, No. 4847.

Denied.


text:
    STATE ex rel. Lindy E. ROLAND v. Hon. James McKAY, Judge, Criminal District Court, Section “H”, Parish of Orleans.
    No. 85-KH-0060.
    Supreme Court of Louisiana.
    Feb. 4, 1985.
   In re Roland, Lindy E., applying for writ of mandamus; Parish of Orleans, Criminal District Court, Div. “H”, No. 267-141.

Granted. The district court is ordered to rule on the post conviction petition mailed for filing on August 31, 1984.


text:
    STATE of Louisiana v. Bryan K. ARCEMENT.
    No. 84-KH-2072.
    Supreme Court of Louisiana.
    Feb. 5, 1985.
   In re Arcement, Bryan K., applying for writ of mandamus; Parish of Lafayette, 15th Judicial District Court, Div. “E”, No. 42859.

Granted. The district court is ordered to act, if it has not already done so, on the motion to withdraw guilty plea submitted for filing on October 25, 1984.


author: DUFRESNE, Judge.

text:
    ST. JOHN THE BAPTIST PARISH ASSOCIATION OF EDUCATORS, et al. v. Honorable James H. BROWN, Secretary of State, State of Louisiana, et al.
    No. 84-CA-679.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1985.
    Writ Granted Jan. 17, 1985.
    J. Robert Wooley, Baton Rouge, Adrian Dupont, David G. Sanders, La. Dept, of Justice, Baton Rouge, for defendant-appellant.
    Louis P. Robein, Metairie, John L. Dias-selliss, III, LaPlace, for plaintiff-appellee.

      Before CHEHARDY, GAUDIN and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This is an appeal by James H. Brown, the Louisiana Secretary of State, defendant-appellant, from issuance of a Writ of Mandamus ordering him to place on a ballot a School Board referendum in St. John the Baptist Parish. This writ was sought by Wilhemina Armour, plaintiff-appellee.

This litigation grows out of a strike by school teachers and employees in St. John Parish during September and October, 1984. During negotiations between the Board and the strikers, the question of recognition of a bargaining agent was the most serious impediment to resolving the strike. The Board refused to bargain collectively with any agent of the strikers, and the strikers refused to return to work without such bargaining.

This impasse was finally resolved and the strike ended on October 9, 1984, by a written agreement between the Board and each individual striking employee.

That agreement states, inter alia, that the Board:

... guarantees to all its employees:
2. A public referendum to determine recognition of a union representing school employees for collective bargaining to be held on January 15th.

The date of the referendum was subsequently amended by agreement of all parties to January 19. The agreement further provides that the referendum ballot is to state:

Shall the St. John the Baptist Parish School Board recognize and collectively bargain with a union/organization to be chosen in a secret ballot election ratified by a majority of all certified and non-certified employees of the St. John the Baptist Parish School Board.

In compliance with this agreement, the Board duly notified the Secretary of State of this referendum.

Upon receipt of notice, the Secretary informed the attorney for both Wilhemina Armour, an employee of the School Board, and the St. John Association of Educators, the employee organization seeking recognition as bargaining agent, that in his opinion the referendum was not authorized by law, and that he would not place it on the ballot unless so ordered by a court.

Armour thereupon brought suit individually as a Board employee, and also as president of the Association, against the Secretary and the Board. In that suit she sought court resolution of the legality of the referendum, and prayed that a writ of mandamus or in the alternative a mandatory injunction issue to have the matter placed on the ballot.

After trial on the merits the court rendered judgment in favor of Armour, as an individual employee of the Board, and issued a writ of mandamus directing the Secretary to place the referendum on the ballot. In his reasons for judgment he stated that he found the referendum to be one not prohibited by law, and not a “straw vote”. He further ordered that the parties defendant take no further steps to impede the election process.

The Attorney General now appeals on behalf of the Secretary of State and urges three errors on the part of the trial court:

1. The exception of improper venue as to the Secretary of State was improperly denied.
2. The referendum should not have been ordered placed on the ballot because it is not authorized by law and is a “straw vote”.
3. The writ of mandamus was improperly issued.

The first allegation is that venue in St. John Parish was improper as to the Secretary of State under Code Civ.Pro. art. 42(1). We disagree. Under La.R.S. 18:1300(C), venue is proper as to the Secretary in the parish where a referendum has been called, whenever an elector of that parish seeks to enjoin his placing of such a referendum on the ballot. Similarily La. R.S. 18:1404(B) provides that venue in actions contesting the outcome of an election on a local proposition lies in the parish where the authority calling the election is domiciled. Moreover, La.R.S. 18:1402(C) makes the Secretary of State an indispensible party to any action contesting an election for public office where his ministerial duties are involved, thus clearly subjecting him to the venue provisions of Sec. 1404. Finally, we note that venue was proper as to the St. John School Board, a party defendant, and Article 73 of the Code of Civil Procedure subjects joint obligors to any venue which is proper as to any one of them. Construing these venue provisions together we conclude that venue as to the Secretary of State was proper in St. John Parish in this case.

We are aware of the decision of St. Tammany Parish Council v. Brown, 443 So.2d 1 (La.App. 1st Cir.1983), but find that case distinguishable. First, it was not a suit by an elector so as to be within the provisions of La.R.S. 18:1300(C), and second, there was no other party defendant to whom venue was proper so as to establish venue over the Secretary of State under Code Civ.Pro. art. 73 and La.R.S. 18:1402 and 1404.

The next assertion by the Attorney General is that the referendum at issue here cannot be placed on the ballot because 1) it is not authorized by law, and 2) the result would be meaningless because not binding. We disagree.

The first of these propositions relies in part on amended La.R.S. 18:1299 (effective December 4, 1984), which permits only propositions or questions specifically authorized by the State Constitution, state statutes or home rule charters to be placed on the ballot. However, as the agreement between the Board and employees was reached on October 9, 1984, prior to the effective date of the amendment, we hold that Sec. 1299, prior to its amendment is applicable here, La. Civ. Code, art. 8. That prior statute simply stated that:

The provisions of this Chapter provide the procedures to be used in elections at which a proposition or question, except those provided for in Chapter 6-A of this Code [bond and tax elections], shall be submitted to the voters.

We are faced with the question, then, of what constitutes a “proposition or question” which can be placed on the ballot under this statute. No party has cited, and we cannot find, any jurisprudence which has resolved this question in the context of facts similar to those before us. The Attorney General has provided a number of his opinions interpreting the statute, but we do not find them persuasive here.

The language of those opinions suggested two impediments to placing the propositions considered on the ballot: a) they were not authorized by any specific law, and b) they would have been “straw votes”. While we agree with the latter principle, we further determine that the former is not a distinct requirement, but rather an essential element of the “straw vote” concept itself. A “straw vote” is a futile exercise because its result is not legally enforceable. Our review of the two general types of propositions considered in the above opinions reveals that the impossibility of enforcement resulted from the absence of any law or legal mechanism permitting enforcement. In the first type, the result of the referendum would not have been binding on the authority which placed it on the ballot. In the second type, the propositions dealt with matters which the authority could not enact because lying beyond its statutory grant of powers. We conclude then, that the essential inquiry is not whether there is any specific statutory authorization for a proposition under the prior law, but rather whether the result of the referendum is enforceable against the authority in a court of law.

In this case, neither of the above types of problems is presented. First, the Board has bound itself contractually to call this referendum and abide by its result, and the validity of this contract has not been brought into question. The employees thus have available legal means to enforce the result against the Board if necessary. Second, it is not contested that recognition of a bargaining agent lies within the statutory powers of the Board. We therefore agree with the conclusion of the trial court that there is no legal impediment to this proposition, that it is not a “straw vote” and that it may properly be placed on the ballot, and we so hold.

The final argument by the Attorney General is that the use of extraordinary mandamus proceedings was improper because the ministerial duty of the Secretary of State was not clearly defined. With this proposition we agree. However, Armour sought in the alternative a mandatory injunction. Although trial in the matter was held without the ordinary delays permitted in injunctive actions, the Attorney General has made no allegation that his case was prejudiced thereby.

DECREE

Accordingly, for the foregoing reasons we vacate the writ of mandamus, and issue instead a mandatory injunction directing the Secretary of State to place the referendum at issue here on the ballot in accordance with applicable law.

AFFIRMED IN PART, VACATED IN PART, AND RENDERED.


author: BOWES, Judge. KLIEBERT, Judge,

text:
    Olga Marie Stone WATERMEIER v. John Joseph WATERMEIER, III. In re John J. WATERMEIER, III.
    No. 85-C-1.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 11, 1985.

      Darryl J. Carimi, Gretna, for relator.
    Robert C. Lowe, New Orleans, for respondent.
    Before CHEHARDY, KLIEBERT and BOWES, JJ.
   BOWES, Judge.

The issue raised in this application for writs is whether or not, in a custody hearing, the trial judge has the right or discretion to interview in chambers, and without a record being made, over the objection of counsel for one of the parties (in this case the relator/father), a child, aged 5 years 7 months, who has thus far been in the custody of his mother. We hold that he does not, but the child may be interviewed in chambers on the record with both counsel present, as set out hereinafter.

Although we have some guidance from some rather old Louisiana Supreme Court cases and we note that several appellate court cases, including some emanating from this court, have touched upon the subject of children testifying or being interviewed, in none of them has the exact issue before us been squarely presented or assigned as error so as to require a ruling.

The issue before us presents these questions:

1. Can a child of this age be permitted to testify at all?

2. If so, how is his competency to be determined and under what circumstances?

3. Can the interview be conducted in chambers?

4. Should a record be made of the interview?

5. What participation, if any, should counsel for each side be permitted to take?

Since at least 1893, Louisiana Revised Statute 13:3665 and 15:469 (and their predecessors) have been interpreted to stand for the very simple and precise proposition that a -person’s age, alone, is not the test of whether that person shall be allowed to appear and present testimony. Rather, the test is whether that person has “proper understanding.” Whether the minor child has proper understanding, such that he will be allowed to testify, is a matter within the discretion of the trial judge. State v. Sharp, 338 So.2d 654 (La.1976) [emphasis added]. While a child under the age of 12 may not be presumed to have a sufficient understanding, the law fixes no precise age when the witness shall be excluded, and determining the competency of the witness is within the sound discretion of the trial judge. State v. Richie, 28 La.Ann. 327 (La.1876) [child, six years old, found to have capacity to testify] [emphasis added]. Other cases allowing minor children to testify, age six or less, include: State v. Arnaud, 412 So.2d 1013 (La.1982) [four years old]; State v. Skipper, 387 So.2d 592 (La.1980) [five years old]; State v. Nails, 255 La. 1070, 234 So.2d 184, 185 (La.1970); State v. Edwards, 419 So.2d 881 (La.1982); State v. Richie, supra, and State v. Pace, 301 So.2d 323 (La.1974) [six years old]. See also Chavigny v. Hava, 125 La. 710, 51 So. 696 (1910):

“The testimony of a child, while it may be excluded, because of incompetency resulting from his tender years, cannot be excluded, under the rules of evidence, on the sentimental ground that he shall not be permitted to testify against his mother.”

Our Supreme Court, dealing with a domestic relations’ lawsuit, has specifically stated that the admission of the testimony of a six year old child is a matter which addresses itself to the discretion of the trial court, and that under Louisiana Revised Statute 13:3665, age alone is not a bar to a child’s testimony being elicited. Wilson v. Moser, 210 La. 1021, 29 So.2d 49 (1946) [emphasis added].

We, therefore, conclude that the child cannot be precluded from testifying or being interviewed on the basis of age alone.

It also appears obvious to us that the competency of the child must be determined (under the above statutes and the applicable jurisprudence) by the trier of fact — in this case, the trial judge. The test of his competency shall be whether he is “a person of proper understanding”, as required by LRS 13:3665. In order to relieve the child from as much pressure as possible from the “glare of the courtroom” and the possibly intimidating presence of his mother and father, we feel this should be done in chambers. It also appears that the jurisprudence sanctions and encourages such a procedure.

Louisiana Civil Code article 146 not only permits a custody hearing to be held in the judge’s chambers, but also directs the court to consider “the reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference” in deciding what custody arrangement would be in the best interest of the child.

The next questions before us involve whether a record should be made of the interview and the extent of the participation of counsel for each side. We have given this matter grave consideration and, whereas we are impressed by the very plausible argument of counsel for respondent that an interview by the judge alone (without a record being made and without the ominous presence of parents and counsel), would relieve the child of fear and tension so that he would be more inclined to talk freely and truthfully, we cannot agree. To do so would do violence to the basic concepts of our adversary system because the attorneys and parties, as well as the appellate court, would be forced to trust completely and without reservation the discretion of the trial judge as to the propriety of his questions, his assessment of the veracity of the answers, and his entire judgment without ever knowing what was told to him. Such answers could well be the basis of his ruling.

In addition, there would be no way for a party to ever contest, disprove, or argue on appeal about any statement or accusation, no matter how wild or false, that the child may have made (perhaps in his fancy) — unless he knows what the child said to the judge.

Accordingly, we hold that the interview must be conducted in chambers outside of the presence of the parents, but in the presence of their attorneys, with, a record being made by the court reporter. The judge shall first determine his competency as “a person of proper understanding” by interrogating the child with appropriate questions. The attorneys shall be allowed to participate in the competency examination by asking questions and registering appropriate but only necessary objections. If the judge determines that the child is not a competent witness as outlined above, he shall immediately terminate the interview.

However, if the judge determines that the child is competent, he may continue the interview in the presence of the attorneys as observers only. They shall not participate by asking questions, or cross-examining or registering objections, as we deem this would upset, distract and possibly intimidate the child to a degree that would undermine his willingness to give any useful information.

The above procedure is admittedly a compromise, but we deem it to the best interest of the child in the long run. It will protect the basic foundations of the adversary system, allow a record to be available for appeal, and may even save the child from being awarded to the wrong party should he indulge in fantasies that might not be detected by a trial judge, no matter how good his intentions were.

We do not intend or direct that the above procedure is ordained or is mandatory when there is no objection from either side regarding the examination of any child by the judge. In such case, the trial judge may examine any child or witness in chambers, on or off the record, and with or without parents and/or counsel being present — provided all agree on the procedure.

Accordingly, the writ is granted in part and denied in part; and the trial judge is instructed to conduct the interview in a manner consistent with the procedure outlined herein.

GRANTED IN PART AND DENIED IN PART.

KLIEBERT, Judge,

concurring.

I concur in the writer’s conclusions as to the manner in which the examination of the minor of such tender years should be conducted, but not necessarily for the reasons stated.

      . Chavigny v. Hava, 125 La. 710, 51 So. 696 (1910); Wilson v. Moser, 210 La. 1021, 29 So.2d 49 (1946); Legrand v. Legrand, 455 So.2d 705 (La.App. 5th Cir.1984); rehearing denied; Duhe v. Duhe, 451 So.2d 1198 (La.App. 5th Cir.1984); Harper v. Boudreaux, 415 So.2d 648 (La.App. 3rd Cir.1982); Duffie v. Duffie, 387 So.2d 654 (La.App. 1st Cir.1980), writ refused; Vidrine v. Demourelle, 363 So.2d 943 (La.App. 3rd Cir.1978).

      . § 3665. Competency of witnesses
      The competent witness in any civil proceeding in court or before a person having authority to receive evidence shall be a person of proper understanding.

      . § 469. Understanding as test of competency; child under twelve years
      Understanding, and not age, must determine whether any person tendered as a witness shall be sworn; but no child less than twelve years of age shall, over the objection either of the district attorney or of the defendant, be sworn as a witness, until the court is satisfied, after examination, that such child has sufficient understanding to be a witness.


author: BOUTALL, Judge.

text:
    Kirk DUBOIS, et al., v. Benny LOUVIERE, et al.
    No. 84-CA-124.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.
    Rehearing Denied Feb. 20, 1985.
    Writ Denied April 19, 1985.

      James M. Colomb, III, Murphy, Simon & Rees, New Orleans, for plaintiffs-appellees Kirk Dubois and Ann Dubois.
    Gordon Hackman, Boutte, for defendants-appellants Benny Louviere, Joe En-dres and Harris Dufrene.
    Christopher H. Riviere, Porteous, Haink-el, Johnson & Sarpy, Thibodeaux, for defendant-appellant Allstate Ins. Co.
    Before BOUTALL, KLIEBERT and GRISBAUM, JJ.
   BOUTALL, Judge.

This case arises from a nighttime collision on Louisiana Highway 3127 in St. Charles Parish involving injuries to occupants of both vehicles. From a judgment in favor of the plaintiff on the defendant’s reconventional demand, the defendant has appealed. We affirm.

On August 3, 1977, at about 7:00 p.m., a car driven by Ann Dubois collided with a van driven by Benny Louviere. Kirk Du-bois, Ann Dubois’ husband, was a passenger in the Dubois vehicle, while Louviere's co-workers, Harris Dufrene and Joseph En-dres, were passengers in his vehicle. Although the parties’ description of the impact vary as to its cause and its exact location, they agree that Dubois was driving west and that Louviere was driving east; that Louviere swerved into Dubois’ lane then began pulling back into his own; that Dubois moved to the right when she saw the lights from the van approaching, then moved left; and that a collision followed. Louviere alleges the impact took place in his lane, while Dubois insists that the cars collided in her lane. The state trooper who investigated at the scene reported that the vehicles were head to head in the area of the center line. There were no outside witnesses to the crash.

We shall not recite the lengthy chronology of this proceeding. The salient points are these: Ann Dubois and Kirk Dubois filed suit for their injuries on January 19, 1978 against Benny Louviere and Allstate Insurance Company, insurer of his vehicle, and in the alternative Milton Mongrue. Mongrue was named a defendant “in the event that this Honorable Court finds that there were cows on Louisiana Highway 3127 on the evening of the accident and that the actions of Benny B. Louviere were the result of the presence of the cows on the highway, and that Benny B. Louvi-ere was not negligent, then the plaintiffs assert that any cows, which were located on the highway, were owned by Milton Mongrue, and that Milton Mongrue was negligent for allowing the cows to wander onto the highway, at night, and is furthermore held to strict liability under Article 2321 of the Louisiana Civil Code.” Louvi-ere reconvened against the Dubois and later filed an “Amended Answer, Reconven-tional and Third Party Demands,” in which Joe Endres and Harris Dufrene asserted claims against the Dubois. Endres and Dufrene had not made claims against Allstate or the plaintiffs before, and the judge apparently handled their claim as an intervention.

There were many motions and exceptions over the ensuing months, during which time Ann and Kirk Dubois settled their damage claims against Allstate and Milton Mongrue was dismissed from the suit. When the suit finally came to trial on February 23, 1983, the matters before the court were the reconventional demand of Louviere and third party demands of En-dres and Dufrene against the Dubois and their insurer, General Accident Insurance Company, and the Dubois’s third party demand for indemnification against Allstate and Louviere if cast in judgment for the damages of Endres and Dufrene.

The trial judge rendered judgment on August 11, 1983 and held as follows: Ann Dubois was not negligent and all demands against the Dubois and General Accident Insurance Company were dismissed; Benny Louviere was negligent and his negligence was the sole proximate cause of the accident; Allstate was cast for the damages, plus costs and expenses, of Joe En-dres and Harris Dufrene. Upon a motion and amended motion for new trial by Lou-viere, Endres, and Dufrene and a motion for new trial and/or amended judgment by Allstate, the trial judge again rendered judgment on November 15, 1983, denying Louviere, Endres, and Dufrene’s motion, voiding the portion of his original judgment which cast Allstate for damages, and dismissing the demands of Louviere, Endres, and Dufrene. From that judgment Louvi-ere, Endres, and Dufrene have taken a devolutive appeal.

The issues before this court are whether the trial judge correctly applied the law, specifically the “assured clear distance” and “sudden emergency” rules, to the facts at hand; whether he was incorrect in denying the motion for new trial, based on newly discovered evidence; whether Du-bois and Louviere were jointly negligent; and whether the assessment of costs against Louviere, Endres, and Dufrene was proper.

We first consider the issue of the denial of a new trial. La.C.C.P. art. 1972 provides that:

“A new trial shall be granted, upon contradictory motion of any party, in the following cases:
“(1) Where the judgment appears clearly contrary to the law and the evidence;
“(2) Where the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial; or
“(3) In jury cases, as provided in Article 1814.”

Louviere had alleged that he was confronted by a group of cows crossing the road ahead of him, that he swerved into Dubois’ lane briefly to avoid a cow and in fact grazed one with the side of his car. At trial Louviere, Endres, and Dufrene all testified that they saw cows. Eric Durel, a state trooper investigating the accident, testified that he arrived at the scene about an hour after the accident and saw no cattle then. He returned the next day to look for cows and saw none. Ann Dubois and Kirk Dubois both said they saw no cows, as did Remi Vicknair, Ann Dubois’ father, who came to the scene shortly after the accident.

Louviere’s motion for a new trial alleged that newly discovered evidence, previously unavailable, had appeared in the form of one man who arrived on the accident scene soon after the collision and remembered that cows were in the area and another man, a former police officer who assisted in the state trooper’s investigation of the accident, who remembered there were cow hairs on the right side of Louviere’s van. Attached to the motion was an affidavit by Benny Louviere swearing that everything in the motion was true. The trial judge stated in his reasons for judgment in both judgments that he did not believe there were cows on the road.

Although the judge did not so state, the “newly discovered evidence” failed to meet not only the requirement of importance to the case but that of due diligence in seeking evidence. Louviere was defended by Allstate as early as February 14, 1978 and by his own counsel as of March 22, 1978 and trial was not held until February 23, 1983, Louviere had ample opportunity for discovery. See Barker v. Rust Engineering Co., 428 So.2d 391 (La.1983). Accordingly, we find that the trial judge was correct in denying the appellants’ motion for a new trial.

We next consider the issue of the court’s application of the law. The appellants urge that the trial judge’s interpretation of the “assured clear distance” rule is incorrect. In his reasons for judgment in the first judgment the judge explained that even if there were cows, Louviere would have been at fault. He said:

“... Louviere testified he was travel-ling at 55 m/p/h on a dark, straight road when he saw cows on the road some 30 to 40 feet ahead. R.S. 32:321 provides that motor vehicle head lamps must on the uppermost distribution of light reveal persons or vehicles at least 500 feet ahead and must on the lowermost distribution of light reveal persons or vehicles at least 150 feet ahead. Louisiana law says it is the duty of a driver to operate his vehicle in such manner that it can be stopped within range of vision illuminated by the headlights. His failure to maintain a proper look-out and to maintain his vehicle under proper control caused the emergency situation and this emergency placed the Dubois in imminent peril.”

The appellant is correct in pointing out that the “range of vision” or “assured clear distance” rule has been relaxed. In the case of Craker v. Allstate Insurance Company, 250 So.2d 746 (La.1971), the court said, at 749:

“The old rule literally applied is no longer a practical or fair regulation for the nighttime speed of modern drivers of modern cars on our highways. Consequently the rule has been modified to incorporate this realization and to exact a standard of care of the nighttime driver based upon the broad requirement of reasonableness, a formula of negligence where there are few absolute rules and one requiring a careful consideration of all circumstances surrounding each case.”

Regardless of the relaxation of the “assured clear distance” rule, without proof of the presence of cows on the road Louvi-ere’s argument falls. See also Vowell v. Manufacturers Casualty Ins. Co., 229 La. 798, 86 So.2d 909 (1956); Hryhorchuk v. Smith, 379 So.2d 281 (La.App. 3rd Cir.1979), 390 So.2d 497 (La.1980).

The appellant complains further that the judge incorrectly applied the “sudden emergency” rule in favor of Ann Du-bois. The doctrine is stated in Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972), as follows, at 389:

“One who suddenly finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or best means that may be adopted to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence....”

See also Stephens v. State Through Dept. of Transp., 440 So.2d 920, (La.App. 2nd Cir.1983). The appellant argues that the rule should have been applied to exonerate him rather than Ann Dubois, because the cows created a sudden emergency for him first. Louviere argues further that Ann Dubois had a wide shoulder on her side of the road, while there was a ditch next to his side. In the case of Dane v. Canal Insurance Co., 240 La. 1038, 126 So.2d 355 (1960) cited in Hickman v. Southern Pacific Transport Company, supra, a collision resulted when a taxi driver was suddenly confronted by a car that was zigzagging across the highway and swerved to the opposite lane rather than the shoulder of the highway. The court said that the driver was not required to exercise the same judgment as one who had more time. In view of the sudden emergency doctrine, it was immaterial that the driver steered his car across the center lane in attempting to avoid the collision. As noted above, the trial judge in our case disbelieved Louvi-ere’s cow story and found that he had caused the emergency by failing to maintain proper lookout and keep control of his vehicle. Faced with the emergency, Ann Dubois could not be held negligent for failing to make a better choice of ways to avoid the accident.

Louviere, Endres, and Dufrene all testified at trial that the vehicles collided in Louviere’s lane. All three had been interviewed a few days after the accident and the transcripts of the taped interviews were introduced on proffer, subject to the court’s hearing the tapes with all counsel present, which hearing took place after trial on April 28, 1983. On March 16, 1977, four days post accident, when asked whether the impact was in his lane or the opposite lane, Louviere said, “Uh, the only thing I know is what the State Trooper told me that we were both on the center line,” and stated that both vehicles stopped on impact. Louviere testified that he did not recall making the statement. Also on March 16, 1977, Harris Dufrene stated in his interview that they were “just about back in the right-hand lane” and that the impact was near the center of the highway. At trial he did not deny having made the statement but said he did not recall it. On March 14, 1977 Joe Endres said: "... I don’t know who was in who’s lane or what, but the only thing I can remember for a few minutes is that we both hit head on.” He did not recall having made this statement. State Trooper Eric Durel testified that when he arrived' on the scene, all the occupants of the vehicles had been taken to the hospital and he assumed that the vehicles had not been moved. Durel had little independent recollection of the scene but testified from his report. The accident narrative stated, “Both vehicles met head on in the area of the dividing line.” His diagram of the position of the cars indicated that the Louviere van was only partially in the Dubois’s lane and that almost all the Du-bois car was in the Louviere lane. He said that the drawing was a rough approximation of the scene and agreed it could be “a little one way or the other.” Upon questioning by the court, he stated he did not remember looking for oil spills, broken glass, etc. to pinpoint the actual site of the wreck.

Ann Dubois testified that she was in her own lane, along the center line, when the vehicles hit. Kirk Dubois testified that their car moved to the left about two feet on impact, but the accident happened in the west lane. After “taking a pound” the Dubois car landed on the center line with the left front fender across the line, while the van was entirely in the Dubois’ lane. Remi Vicknair, Ann Dubois’ father, testified that the Dubois car was not over the center line and was in the proper lane.

The issue of Ann Dubois’ being negligent or not hinges entirely on an evaluation of the facts. As the trial judge believed the Dubois witnesses rather than Louviere’s and the record supports his belief, we have no reason to overturn his finding. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

As to the issue of costs, the Louvi-ere litigants argue that it is unfair to assess all costs against three individuals alone when there were two insurance companies in the suit and the Dubois had been plaintiffs initially; as each party contributed to dragging out the case, each should contribute to the costs. The appellees contend that Dufrene and Endres chose not to make claim against Louviere’s insurer and forced the matter to be litigated. La.C. C.P. art. 1920 provides that ordinarily costs shall be paid by the party cast but that the court “may render judgment for costs, or any part thereof, against any party, as it may consider equitable.” The statute has been construed as giving much discretion to the trial judge in assessing costs. Stevens v. Allstate Ins. Co., 428 So.2d 834 (La.App. 5th Cir.1983); Bowman v. New Orleans Public Service, Inc., 410 So.2d 270 (La.App. 4th Cir.1982); Green v. Orleans Parish School Bd., 365 So.2d 834 (La.App. 4th Cir.1978), writ denied 367 So.2d 393 (La.1979). We see no abuse of discretion in this case.

For the reasons stated above, the judgment appealed from is affirmed at the cost of appellants.

AFFIRMED.


text:
    STATE of Louisiana v. Robert BUTLER.
    No. 84-KA-173.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.

      John H. Craft, Staff Appellate Counsel, 24th Judicial Dist., Indigent Defender Bd., Gretna, for Robert Butler defendant-appellant.
    William C. Credo, III, Asst. Dist. Atty., Research & Appeals, Gretna, for State of Louisiana, plaintiff-appellee.
    Before BOUTALL, KLIEBERT and BOWES, JJ.
   BOUTALL, Judge.

Appellant Robert Butler was indicted for the first degree murder of David Cruz. Following trial, a jury returned a verdict of guilty as charged and recommended a sentence of life imprisonment without benefit of parole, probation, or suspension of sentence. Butler appeals both his conviction and sentence.

These six assignments of error are raised for our review:

1. The court erred in excusing for cause those potential jurors who expressed an unwillingness to the imposition of the death penalty.
5. The court erred in denying defendant’s motion to quash the indictment.
10.The evidence presented by the State was not sufficient to justify a verdict of guilty of first degree murder.
8. The Court erred in overruling the defense’s objection to the court’s proposed charge to the jury as to the proper standard for consideration of circumstantial evidence.
9. The court erred in denying defendant’s motion for a charge to the jury relative to the law of self-defense.
12. The trial court erred in denying defendant’s motion to suppress the evidence.

FACTS

Deborah Revere was tending the main bar at the Four Palms Lounge in the early morning hours of May 29, 1982. Around 4:00 a.m., when things slowed down, Revere left her station to have a drink with the other bar maid and a customer. Upon returning to her station, she was confronted by a man, later identified as the defendant, who was yelling and cursing at her. The defendant told Revere he was a Jefferson Parish policeman and he .threatened to “bust” her and close the place down for drinking while on duty. Revere refused to serve Butler because of his abusive language, and asked Jim Price, a customer in the bar, to tell the owner about the situation. Before Price could do this, the defendant started yelling at Price again threatening to close down the bar. Mitchell Beard, the owner of the lounge, noticed this and walked over to try to calm the defendant down, and in response to the defendant’s threats, told him “Well whatever you got to do, do it.”

Revere and the rest of the group watched as the defendant left the bar in a hurry, in an agitated state. Beard, Price, and Sal Soleto, a member of the band playing at the lounge that evening, walked outside the front door to see what Butler would do. They saw Butler go to his car, open the trunk and remove a gun and holster from it, then get into his car and begin to back up. Beard and Soleto noticed the license number of Butler’s car, illuminated by the backup and tail lights.

David Cruz, unaware of what was taking place, exited the bar about fifteen seconds behind Butler, intending to get in his car and drive home. Meanwhile Butler pulled forward in his car, passed where he had been parked and said something to Cruz, who took a few steps toward Butler’s car. Beard, Price, and Soleto heard a gun go off. Cruz turned toward the three men and said, “He shot me.” Soleto testified that Cruz did not have anything in his hands before or during the shooting.

At this point, Beard ran to his car and got his gun, as did Jim Price who was inside the lounge during this time. The defendant then pulled out of the parking lot firing three more shots. One of these shots hit Fred Jeffries, an employee of the lounge, in his leg. Beard fired one shot after the fleeing defendant; Price fired five shots into the air in the direction of defendant’s car.

An ambulance and police unit were called and arrived shortly thereafter. Cruz and Jeffries were taken to East Jefferson Hospital. Cruz was pronounced dead shortly after arrival; Jeffries was treated and released.

Police were given a description of Butler, Butler’s car, and his license number. They ran the license number of the car and determined it was registered to Butler. A unit was dispatched to Butler’s address as given on that vehicle registration. The police discovered Butler’s car parked across the street from the duplex where Butler lived. The officers knocked on Butler’s door and when Butler opened it, arrested him without a struggle. Butler was taken back to the crime scene for possible identification. Despite the fact that Butler had apparently shaved his mustache in the interim between the shooting and his arrest, he was identified by Price, Beard, Soleto, and Revere as the man involved in the disturbance at the Four Palms.

ASSIGNMENTS OF ERROR NOS. 1 AND 5

Defendant moved to quash the indictment on the ground that exclusion of jurors because of refusal to impose the death penalty deprived him of an impartial jury. Butler now argues the use of a voir dire in accordance with the principles of Witherspoon v. Illinois, infra, and C.Cr.P. Art. 798(2) creates a guilt-prone jury or, put another way, that it results in the denial of his right to a jury unbiased on the issue of guilt or innocence.

Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) held that where a jury is chosen by excluding jurors for cause because they voice general objections to the death penalty or express conscientious or religious scruples against its infliction, a death sentence recommended by them cannot be constitutionally carried out. Rather, the exclusion of jurors for cause is only proper under Witherspoon where the jurors make it unmistakeably clear that they would automatically vote against the death penalty regardless of the evidence, or that their attitudes toward the death penalty would prevent them from rendering an impartial decision as to the defendant’s guilt.

Our Supreme Court has consistently followed the principles of Witherspoon and permits the use of such a voir dire, which is codified in La.C.Cr.P. art. 798(2). See State v. Webb, 419 So.2d 436 (La.1982) and State v. Mattheson, 407 So.2d 1150 (La.1981) both upholding a similar voir dire; and State v. Monroe, 397 So.2d 1258 (La.1981) and State v. Kelly, 375 So.2d 1344 (La.1979) both upholding the constitutionality of art. 798(2).

More importantly, the court has held that a defendant who does not receive the death penalty has no valid complaint. State v. Edwards, 406 So.2d 1331 (La.1981), State v. Whitt, 404 So.2d 254 (La.1981), and State v. George, 371 So.2d 762 (La.1979). We find this line of cases dis-positive of the instant one. In those three cases, the defendant could have received the death penalty but instead received life imprisonment. This is exactly what happened to Butler: Upon his conviction of first degree murder, he was eligible for the death penalty but was instead sentenced to life imprisonment. Thus, because he received a life sentence, he cannot complain of the impartiality of the jury as to imposition of sentence.

Nevertheless, Witherspoon was decided on a very narrow issue and did not exclude the possibility of a guilt-prone jury. In this regard defendant has referred us to the ease of Grigsby v. Mabry, 569 F.Supp. 1273 (E.D.Ark.1983). There, following an evidentiary hearing on the use of a Wither-spoon voir dire the District Court for the Eastern District of Arkansas concluded "... [A Witherspoon] jur[y] cannot be considered fair and impartial with respect to the issue of the guilt-innocence of defendants in capital cases.” Grigsby, supra, at 1321. The evidence introduced at this hearing by the petitioners consisted of 270 exhibits, including social scientific research on death qualification, articles on jury decision making, and graphic displays of the results of the social science research all of which supported their contentions. Unlike the defendant in Grigsby, however, the defendant herein failed to introduce evidence on this point pretrial or during his trial, and on appeal he merely relies upon Grigsby in support of his argument. We are not persuaded by the Grigsby decision and instead prefer to follow the established jurisprudence in Louisiana on the issue. Accordingly, these assignments lack merit.

ASSIGNMENT NO. 10

Appellant argues that the evidence is insufficient to justify the verdict. On review of the sufficiency of the evidence to support a criminal conviction, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Butler was convicted of first degree murder which is defined in La.R.S. 14:30(3) as the killing of human being when the offender has the specific intent to kill or inflict great bodily harm upon more than one person. Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La.R.S. 14:10(1). Although intent is a question of fact, it need not be proved as a fact, it may be inferred from the circumstances of the transaction. La.R.S. 15:445.

It is undisputed that the first element of the crime, the killing of a human being, was proved. The issue is whether the State proved the defendant specifically intended to kill or inflict great bodily harm upon more than one person.

The evidence shows that the defendant, angry because he was refused service, exited the Four Palms Lounge, went to his car and got his gun out of his trunk. He then got into his car, backed up, then pulled forward close to David Cruz who was about to get into his car. The defendant said something to Cruz, then shot him. Butler pulled out of the parking lot, firing three more times in the direction of the people standing at the entrance to the lounge, hitting one person in the leg.

Viewing this evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have determined that the defendant had the specific intent to kill or inflict great bodily harm upon more than one person. Thus, the evidence supports the verdict.

Appellant also argues that at best, the evidence only supports a verdict of manslaughter. We disagree. The jury obviously felt a reasonable man would not have been so provoked when a bartender refused to sell him a beer that he would lose his self-control, go to his car, get his gun, and begin shooting at people. It must be remembered that the victim, David Cruz, had no part in the argument which occurred immediately before the shooting, when the defendant threatened to close the bar down because the bar maid had been drinking. Cruz was a complete stranger to the defendant. Moreover, evidence is uncontra-dicted that Cruz in no way provoked the defendant. Accordingly, the assignment lacks merit.

ASSIGNMENTS NOS. 8 AND 9

Butler contends the trial judge erred in its charge to the jury concerning circumstantial evidence, and that the trial judge erred in refusing to charge the jury on the law of self-defense. Prior to giving his instructions to the jury, the trial judge, out of the presence of the jury, asked counsel for each party if there were any objections to the charges as drafted. Defense counsel objected to the court’s charge on the law of circumstantial evidence and to the lack of a charge as to self-defense. The court overruled the defense in both instances, and defendant assigns this as error.

a. Circumstantial Evidence Jury Charge

The charge concerning circumstantial evidence defense counsel objected to was read to the jury as follows:

Evidence is either direct or circumstantial. Direct evidence is evidence which, if believed, proves a fact. Circumstantial evidence or indirect evidence is evidence which, if believed, proves a fact and from that fact you may logically and reasonably conclude that another fact exists. You cannot find a defendant guilty solely on circumstantial evidence unless the facts proved by the evidence exclude every reasonable hypothesis of innocence.

Defense counsel’s objection to the charge was as follows:

You [sic], in terms of the direct and circumstantial evidence charge, we object to the wording in that it infers that the standard for circumstantial evidence that that evidence must exclude every reasonable hypothesies [sic] of innocence is being applied to the case in whole as opposed to the separate elements of the charge in the case.

Appellant now argues the above charge directed the jury to apply a stricter standard in considering the entirety of the evidence presented instead of to the separate elements of the crime charged. We disagree. At the outset, it should be noted that the trial judge’s charge on circumstantial evidence is a direct quote of the charge suggested in Louisiana Jury Instructions, Criminal-Civil Section 3.6 wherein the authority for the text of the charge is cited as follows:

The first paragraph attempts to distinguish direct evidence from circumstantial evidence. See Cleary et al., McCormick on Evidence, Section 185 West (2nd Ed. 1972); Wigmore Law of Evidence, Section 25, Little, Brown and Co. (3rd Ed. 1940).
The second paragraph is taken directly from La.R.S. 15:438 and states the rule to be applied when the State’s case depends on circumstantial evidence. See State v. Smith, 339 So.2d 829 (La.1976); State v. Elzie, 343 So.2d 712 (La.1977); State v. Allen, [129 La. 733] 56 So. 655 (La.1911).

Furthermore, the Louisiana Supreme Court has consistently held that a jury charge must be considered as a whole, and particular expressions in a charge must be construed in the context of the entire charge. Thus, it has declined to reverse the conviction on the ground of an erroneous charge unless the disputed portion, when considered in connection with the remainder of the charge, is erroneous and prejudicial. State v. Motton, 395 So.2d 1337 (La.1981); State v. George, 346 So.2d 694 (La.1977).

In the instant case, after charging the jury on circumstantial evidence, the court informed the jury that: “In order to convict the defendant of the offense charged, you must find beyond a reasonable doubt that the State proved every element of first degree murder.”

Reading the charge as a whole, it is clear the trial judge properly instructed the jury on the State’s burden of proof. The charges, when read as a whole, are clear and correctly state the law. Assignment No. 8 lacks merit.

b. Self-defense Jury Charge

Defense counsel advanced the following argument at trial as justification for a charge on the law of self-defense.

The lack of explanation as to all of the parties who were armed and what they were armed with I believe could create an inference, reasonable inferences that the defendant was in fear of life from a multitude of individuals present on the scene who were, in fact, armed.

In denying the defendant’s request for the charge, the trial judge stated:

I think your argument would have more credence if the victim of this murder was perhaps one of those that were shown to have a weapon. The victim in this particular case was a person who had no connection with the lounge and there is no evidence of any kind he participated in any of the discourse between the defendant and the owner or operators of the lounge. The testimony further shows that the incident — as the incident developed that there was no evidence of any threat posed by the victim to the defendant ...

La.C.Cr.P. art. 802 obligates the trial judge to charge the jury as to the law applicable to the case. Under this rule, the trial court is required to charge the jury, when properly requested, as to the law applicable to any theory of defense which the jurors could reasonably infer from the evidence. State v. Telford, 384 So.2d 347 (La.1980), State v. Marse, 365 So.2d 1319 (La.1978).

La.C.Cr.P. art. 807 provides that a requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly pertinent and correct. State v. Johnson, 438 So.2d 1091 (La.1983). However, Telford, supra, clearly states that the requested special charges must be supported by the evidence presented at trial.

In the instant case, the record reveals that all witnesses to the shooting testified that Cruz, unarmed and unaware of what was happening, was stopped by the defendant and then shot and killed as he stood facing the defendant. All of the witnesses testified that Cruz made no overt moves toward the defendant and furthermore that until the defendant shot Cruz, no overt moves were made by anyone toward the defendant. None of the eyewitnesses to the shooting armed themselves until after the defendant shot Cruz.

Not a shred of evidence' supporting a theory of self-defense was introduced by either the prosecution or the defense at trial. Thus, the trial judge properly refused to instruct the jury on the law of self-defense. There was simply no evidence presented to support such a theory and accordingly, Assignment No. 9 lacks merit.

ASSIGNMENT OF ERROR NO. 12

Prior to trial, a hearing was held on the defendant’s motion to suppress the evidence. At the hearing, the police officers who arrested Butler testified to the following: Shortly after Cruz was shot, officers determined from information given them by eyewitnesses of the lounge that Butler was a suspect. The officers ran a registration on the description of Butler’s car and got Butler’s address. The officers went to the address as given by the registration check and knocked on his door. When Butler answered, the officers immediately recognized him as the suspect, advised him he was under arrest, and entered his apartment. Since Butler was wearing pajamas he was allowed to get dressed. Deputy Hymel followed Butler to his clothes closet and watched him closely. Hymel noticed an empty brown holster on the shelf of the closet and thereafter made a brief visual search of the room for a gun which fit the holster. About ten minutes after their arrival, the officers left the apartment to bring Butler back to the crime scene. They took nothing from the apartment at that time. As they walked out of the building they passed a neighbor of Butler’s, who was standing in his doorway watching the events.

Later that morning, Sergeant Mason obtained and executed a search warrant for Butler’s apartment. He found a .38 caliber Smith & Wesson revolver wrapped in a bedspread on the top shelf of the clothes closet, two pairs of dark pants, a blue pullover shirt, a NOPD uniform shirt, a Bic safety razor, and a brown leather holster. Balistics test showed that the revolver fired the shot which killed Cruz.

At the hearing, the defense called as a witness the defendant’s neighbor who testified he was awakened by the officers' knock on Butler’s door. He looked out, observed the confrontation at the door and watched the subsequent events through the open door of the defendant’s apartment. His view however was partially blocked by the officers standing in the room watching as Butler dressed. He corroborated the officers’ testimony that they were in the apartment for only ten minutes but testified that as he saw the officers leaving Butler’s apartment, one of them was carrying a blue polka dot shirt and blue pants bundled up with the butt end of a protruding revolver.

The trial judge, apparently disturbed by the conflicting testimony, weighed it and gave greater credence to the neighbor’s testimony than that of the five police officers. He granted the defendant’s motion, apparently convinced that the revolver was taken from Butler’s apartment before a search warrant was obtained.

The District Attorney immediately applied for a writ of review. Writs were granted and a panel of this court reversed the district court’s decision stating:

Under most circumstances, great weight would be given to the trial court’s determination as he was able to personally observe the witnesses during their testimony. This would place him in an advantageous position to view the demean- or of the witnesses and better evaluate their credibility. It is with great reluctance that the trial court’s determination be overruled, however, a review of the record reveals that the officers apparently acted appropriately in their seizure of. the evidence.

The panel first noted that a search of the apartment would have required more time and activity than that testified to; thus it appeared that only a cursory visual search could have been conducted, primarily as a protective measure by the arresting officers. The panel further noted that as no polka dot shirt was presented by the State in any fashion perhaps Butler’s neighbor, however well intentioned, was disconcerted as he has been awakened from his sleep in the early morning hours.

Finally, the panel noted that under La.C. Cr.P. art. 703(D) the burden of proof was on the defendant to prove the ground of his motion by a preponderance of the evidence. Because he failed to meet this burden, the panel was compelled to overrule the trial court’s determination of credibility.

The defendant sought writs on the appellate court’s decision. The Supreme Court denied writs stating: “Result is correct.”

On appeal, the defendant again alleges this court improperly overruled the district judge’s determination as to the credibility of the witnesses. We find no reason to disturb our ruling. The only way appellant could prevail herein would be if he had presented new evidence showing that this court’s (and the Supreme Court’s) pretrial position on the admissibility was patently erroneous and produced an unjust result. This the defendant failed to do. See State v. Johnson, supra, and State v. Humphrey, 412 So.2d 507 at 523 (La.1982) (on rehearing).

Accordingly, Assignment No. 12 lacks merit.

For the reasons set forth above defendant’s conviction and sentence are affirmed in full.

AFFIRMED.

      . Keith Landry, another patron of the Four Palms Lounge had left the bar soon after Cruz, and had been walking behind Cruz immediately before the shooting. Landry testified he saw Butler's car pull up close to Cruz and Cruz bent over as if he were talking to Butler. As Landry got into his car and reached for his cigarettes, he saw Cruz turn around, as if facing the direction of Beard, Price and Soleto, and say "This guy is going to shoot me.” Landry immediately got out of his car and saw Cruz turn toward the defendant and stoop down again. Landry then heard the shot which killed Cruz.

      . Joseph, Lamonica, and Johnson, Louisiana Jury Instructions, Criminal-Civil (1980).


author: CHEHARDY, Judge.

text:
    Chester BERKEL v. AETNA CASUALTY & SURETY COMPANY.
    No. 84-CA-272.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.

      Robert F. Fadaol, Gretna, for plaintiff-appellee.
    Drury & Tabb, Frederick A. Miller, New Orleans, for defendant-appellant.
    Before CHEHARDY, CURRAULT and DUFRESNE, JJ.
   CHEHARDY, Judge.

In this worker’s compensation case, defendant appeals a judgment awarding the plaintiff 100 weeks of compensation at 66.67% of his average weekly wage (less previously paid compensation), $4,000.00 for “rehabilitative, orthodontic and dental treatment”, penalties of 12% on all sums due and owing for “arbitrary and capricious refusal of payment on plaintiffs claim for compensation,” interest on the compensation due, attorney’s fees in the amount of $2,500.00 plus judicial interest thereon, and all costs, including experts’ fees.

Chester Berkel, plaintiff, was employed by V. Keeler and Company, Inc., when he was injured on the job. On November 17, 1981 an air hose attached to a piece of heavy equipment he was operating broke and struck him in the mouth. He was knocked unconscious and was rushed to the hospital, where he was treated for contusions and lacerations. Subsequently he underwent dental surgery for removal of several teeth. (Apparently four teeth were pulled, but the record does not establish this clearly.)

Mr. Berkel was off work for twenty days while recuperating and returned to work on December 7, 1981. During this time he received one check, in the amount of $272.32, for worker’s compensation benefits for temporary total disability. No further compensation benefits were paid.

Several months later he consulted a dentist and learned he would need extensive rehabilitative dental treatment to repair the damage caused by the accident. His dentist, Dr. Richard Owens, estimated the cost of the treatment at $3,500.00 to $4,000.00. Dr. Owens sent an itemized listing of the work required to Aetna Casualty & Surety Company, compensation insurer of plaintiff’s employer. He advised Aetna that he would require payment in advance of performing the work. Aetna did not disagree with the amount of work required or the fees to be charged, but refused to pay for it before it had been done. Plaintiff could not afford to pay for the dental work himself and therefore he remained in his semi-toothless condition.

Eventually plaintiff sought legal counsel. His attorney made demand on Aetna for payment of further compensation benefits and for payment of Dr. Owens’ fees. Aet-na denied liability for any further compensation, and refused to pay the fees in advance. On December 16, 1982 plaintiff filed suit.

The ease was tried on August 29, 1983; on December 7, 1983 judgment was rendered in fa.vor of the plaintiff. Aetna filed a motion for remittitur, which was granted. On February 7,1984 the judgment was amended to increase (from 98 to 100) the number of weeks for which compensation was to be paid and to correct the average weekly wage upon which it was to be based. Aetna was also given credit for the compensation already paid. In all other respects the judgment remained the same. (Its provisions are noted at the beginning of this opinion.) Aetna has appealed.

On appeal, Aetna contends the trial judge erred in awarding compensation benefits in addition to those already paid, and in assessing penalties for arbitrariness and capriciousness against Aetna.

Although the judge did not assign reasons for judgment, clearly he based his award of benefits on LSA-R.S. 23:1221(4)(p):

“In cases not falling within any of the provisions already made, where the employee is seriously permanently disfigured about the face or head, or where the usefulness of a physical function is seriously permanently impaired, the court may allow such compensation as is reasonable- and in proportion to the compensation hereinabove specifically provided in the cases of specific disability, not to exceed sixty-six and two-thirds per centum of wages during one hundred weeks.”

(The statute was amended, and this paragraph rewritten, by Acts 1983, 1st Ex. Sess., No. 1, Sec. 1, eff. July 1,1983. However, we apply the version of the statute in effect at the time of the events made the basis of this suit.)

Aetna contends that plaintiff failed to prove either that he was seriously disfigured or that the usefulness of a physical function was seriously impaired. Aetna argues that plaintiff lost only two or three teeth and that there is no evidence this will result in a loss of function after he receives proper dental rehabilitation. Aetna also contends that any loss of function is temporary (until he undergoes the dental work) and is principally the result of Berkel’s own delay in seeking treatment.

We find no merit to these arguments. The loss of teeth is by itself a compensable injury under R.S. 23:1221(4)(p), as interpreted by our Supreme Court prior to the 1983 amendment:

“This compensation jurisprudence has consistently allowed disfigurement-impairment awards for loss of natural teeth and, in doing so, has rejected contentions of non-compensability because dentures were claimed to be a cosmetic or functional improvement. Whatever temporary artificial aid dentures might provide, the employee has permanently lost part of his body due to an accident at work. Since without dentures the employee has no teeth, the courts have held that despite dentures, the employee may be considered seriously disfigured and his function of chewing as seriously impaired.
“The employee’s serious loss of function and disfigurement is evaluated and compensable in light of his natural body’s permanent loss of function and disfigurement, even though man-made artifices may at least temporarily alleviate the serious bodily loss and disfigurement. As stated in our early decision in Odom [v. Atlantic Oil Producing Co., 162 La. 556, 110 So. 754 (1926)], where three front teeth were lost: ‘The fact that the teeth may be, and in this instance were, replaced does not wholly remove the disfigurement or the impairment, or the seriousness of either, though it lessens it.’ * * * ”

Jenkins v. Orleans Parish School Board, 310 So.2d 831, 832-833 (La.1975).

In addition, Mr. Berkel and his wife testified that his loss of teeth had impaired his speaking ability and eating ability, and the disfigurement of his toothlessness had caused some problems in their marital relationship as well as subjected him to ridicule by other people.

Accordingly, the trial court was correct in finding plaintiff entitled to the additional compensation.

In the alternative, Aetna argues the amount of compensation awarded was too high. The judge awarded the maximum amount allowed by R.S. 23:1221(4)(p) (as written prior to the 1983 amendment), “sixty-six and two-thirds per centum of wages during one hundred weeks.” In plaintiffs case this amounts to $122.00 per week.

Under the jurisprudence interpreting the pre-1983 version of the statute, “during one hundred weeks” has been construed to require that the award shall be for one hundred weeks, no less and no more. Edwards v. Hartford Ins. Co., 445 So.2d 499, 502 n. 4 (La.App. 2 Cir.1984). An award under R.S. 23:1221(4)(p) is not contingent on the employee’s inability to work. Edwards v. Hartford Ins. Co., supra. The amount of the weekly payment, however, is within the discretion of the trial court.

“Trial courts have much discretion in determining the weekly amount which may be due for the 100 weeks for impairment of a physical function. Any amount between the statutory minimum and maximum may be awarded. * * * ”

Campbell v. Baker, Culpepper & Brunson, 382 So.2d 1046, 1049 (La.App. 2 Cir.1980), writ ref. 385 So.2d 793 (La.1980). We find no abuse of discretion in the amount awarded here.

Finally, Aetna contests the award of penalties and attorney’s fees against it. The judgment awarded the penalties on “all sums due and owing”; thus, they apply not only to the compensation determined to be due, but also to the medical benefits awarded.

Aetna argues it was not arbitrary and capricious in refusing to pay the dentist’s fees in advance because the jurisprudential rule has been that the employer is only responsible for medical expenses as they accrue and as they are actually incurred. See Andersen v. Eagle Asbestos Company, 355 So.2d 1082 (La.App. 4 Cir.1978); Deshotels v. Fidelity and Casualty Co. of New York, 324 So.2d 895 (La.App. 3 Cir.1976), writ ref. 328 So.2d 376 (La.1976); Manuel v. Jennings Lumber Company, 248 So.2d 908 (La.App. 3 Cir.1971).

Relying on this jurisprudence, defendant asserts, “At all times, Mr. Berkel had the opportunity to seek out a dentist who would have performed this rehabilitative treatment and accepted Aetna’s condition [that payment would be made after treatment was undertaken] * *

This argument, however, misinterprets the law because it places on the injured workman the burden of providing his own medical care. LSA-R.S. 23:1203 (in the version in effect at the time) states,

“In every case coming under this Chapter, the employer shall furnish all necessary medical, surgical and hospital services, and medicines, or any nonmedical treatment recognized by the laws of this state as legal.” (Emphasis added.)

The wording of the statute makes clear that the employer is obligated to furnish necessary medical treatment to the injured employee, not simply to pay the costs thereof as incurred. As applied to this case, we find the law placed on Aetna the responsibility either to provide a letter guaranteeing its financial responsibility for the necessary treatment or to refer plaintiff to a dentist who would treat without prepayment.

Dr. Owen testified he would have performed the dental work if Aetna had sent him written confirmation that payment would be rendered. Although Aetna’s representative indicated in telephone conversations to him that Aetna would pay, the dentist never received a letter confirming this. Aetna never referred plaintiff to another dentist or made any other effort to furnish him with the necessary treatment. Although Aetna contends there was a valid dispute as to the number of teeth Berkel lost as a direct result of the accident, Aetna made no effort to obtain a second opinion from a dentist of its own choosing, as it had a right to do under LSA-R.S. 23:1121.

We find this behavior violates the employer’s obligation under R.S. 23:1203 and is arbitrary and capricious. See Hanks v. CRC Holston, Inc., 430 So.2d 1340 (La. App. 3 Cir.1983).

Further, we also find Aetna was arbitrary and capricious in terminating compensation benefits. Aetna clearly knew Mr. Berkel had lost teeth as a result of the accident. As stated above, the jurisprudence has positively established the loss of teeth in itself as sufficient qualification for benefits under R.S. 23:1221(4)(p). The Jenkins case, supra, and the cases preceding it were settled law by the time plaintiffs claim arose. Therefore Aetna’s refusal to pay at least some compensation was arbitrary and capricious. See Fruge v. Hub City Iron Works, Inc., 131 So.2d 593 (La.App. 3 Cir.1961).

Accordingly, we uphold the district court’s award of penalties and attorney’s fees to plaintiff.

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED.