author: LEMMON, Justice. BLANCHE, Justice MARCUS, Justice DIXON, Chief Justice

text:
    Andrea Clesi FERTITTA and Jack Gathian Fertitta v. ALLSTATE INSURANCE COMPANY, et al.
    Ños. 83-C-2294, 83-C-2616.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
    Rehearing Denied March 21, 1985.

      Donald R. Smith, Ellison & Smith, Baton Rouge, for applicant in No. 83-C-2294 and for respondents in No. 83-C-2616.
    Stephen E. Broyles, Glusman, Moore, Wilkinson, Arbour, Broyles & Glusman, Baton Rouge, for respondents in No. 83-C-2294 and for applicant in No. 83-C-2616.
    Ben F. Day, Olds & Day, Baton Rouge, for respondents in both cases.
   LEMMON, Justice.

This case presents the issue of whether the tort victim’s judgment against the tort-feasor for the full amount of the victim’s damages should be reduced by the amount of the victim’s pretrial settlement with his underinsured motorist carrier, when the latter as part of the settlement has waived any right of reimbursement or subrogation.

Plaintiff, Andrea Fertitta, while riding as a passenger in the family automobile driven by her husband, was injured in an accident caused by the negligence of Paula McCarron. In her suit against McCarron and McCarron’s liability insurer, Allstate Insurance Company, plaintiff also joined State Farm Mutual Automobile Insurance Company as the uninsured motorist insurer of her vehicle. McCarron in turn filed a third-party demand against her liability insurer, Allstate, seeking recovery over against Allstate for any judgment in excess of the policy limits on the basis that Allstate did not act fairly and in good faith in settlement negotiations.

On the morning of trial, plaintiff compromised her claim against her uninsured motorist carrier for $32,000 under a policy that had $50,000 limits of coverage. As part of the settlement, State Farm waived any right to subrogation or other reimbursement in the event plaintiff recovered by judgment or settlement against other parties liable for her damages.

After trial on the merits, the trial court fixed plaintiff’s damages in the amount of $48,701.11 ($40,000 in general damages and $8,701.11 in special damages). The court (1) granted plaintiff judgment against McCarron in that amount and decreed Allstate solidarily liable with McCarron to plaintiff up to the $10,000 limits of its policy, and (2) granted McCarron judgment on her third-party demand against Allstate for the amount awarded to plaintiff in ex-' cess of the policy limits. The court further ruled that the $32,000 settlement by plaintiff with her uninsured motorist carrier had no effect on the amount of the judgment against McCarron and Allstate, since uninsured motorist coverage was designed to benefit the tort victim and not the tort-feasor.

On appeal, McCarron and Allstate contended, among other things, that the judgment of $48,701.11, representing plaintiff’s total damages, should be reduced by $32,-000, the amount plaintiff received from her uninsured motorist carrier as partial payment of her total damages. The court of appeal rejected this contention, reasoning that “Allstate’s liability was extended to all amounts over its policy limits because of its improper handling of the claim” and that there was “no solidary obligation between Allstate and State Farm since State Farm’s obligation does not come into effect until Allstate’s obligations have been fulfilled”. 439 So.2d 531. We granted certiorari. 442 So.2d 475.

Citing La.C.C. Art. 2091 and Hoefly v. Government Employees Insurance Co., 418 So.2d 575 (La.1982), McCarron and Allstate argue that the victim’s uninsured motorist carrier is solidarily liable with the tortfeasor and that partial payment of the debt by one solidary obligor exonerates the other to that extent toward the creditor.

In Hoefly, this court held that the uninsured motorist carrier is solidarily liable with the tortfeasor because both obligors are obliged to the same thing so that each obligor may be compelled for the whole. See La.C.C. Art. 2091. This court stated:

“When payment is made by either the tortfeasor or the uninsured motorist carrier, the other is exonerated toward the creditor as to the solidary obligation. This is a direct consequence of each debtor being obliged to the same thing so that each may be compelled for the whole, as if he were the sole debtor. Moreover, the underlying purpose of both delictual responsibility and uninsured motorist coverage is to- promote and effectuate complete reparation, no more and no less. Accordingly, as to the debt to which the tortfeasor and uninsured motorist carrier are solidarily obliged, payment of it by one exonerates the other toward the creditor.” 418 So.2d at 579. (Emphasis supplied, citations omitted.)

A solidary obligation between the tortfeasor and the victim’s uninsured motorist carrier may arise either when the tortfeasor is uninsured or when the tort-feasor’s liability coverage is less than the amount of damages sustained by the tort victim. The present case involves damages caused by an underinsured tortfeasor. Thus, both State Farm (the uninsured motorist carrier) and McCarron (the tort-feasor) were legally bound by separate provisions of law to repair plaintiff’s damages in the amount that those damages exceeded the $10,000 limits of McCarron’s liability policy, or $38,701.11. McCarron and Allstate therefore contend that since the obligation between State Farm and McCarron was solidary, the payment of $32,000 by State Farm to plaintiff should have exonerated McCarron toward the plaintiff to that extent.

The court of appeal reasoned that Allstate’s improper handling of the claim extended its liability beyond its policy limits to the entire amount of the judgment and thus had the effect of destroying solidarity, since the uninsured motorist carrier’s obligation does not begin until the tort-feasor’s liability insurer’s obligation is exhausted. We disagree. Although the judgment against Allstate did extend its liability to its insured beyond the $10,000 policy limits, the judgment did not increase Allstate’s liability to plaintiff. Allstate was liable to plaintiff, by virtue of the insurance policy, only for $10,000 (although Allstate was liable to McCarron, by virtue of the judgment on McCarron’s third party demand, for the amount of the judgment on the principal demand in excess of the policy limits). Because of its mishandling the claim, Allstate was liable to the insured tortfeasor for the excess $38,701.11, but was not liable to plaintiff on that basis,

We therefore conclude that the court of appeal erred in rejecting solidary liability on the basis of that reasoning.

Plaintiff argues, however, that Hoefly should be reconsidered or, even if Hoefly is followed, that the purpose of uninsured motorist coverage is not served by reducing the obligation of the tortfeasor who has no rights of contribution or indemnity against the uninsured motorist carrier and who rightfully should bear the entire loss caused by her negligence.

We reaffirm Hoefly. An obligor who, because of some provision of law, is liable to repair the damages caused by the tortfeasor is solidarily liable with the tort-feasor, despite the independent sources of liability and despite statutory and policy conditions limiting liability to some extent. Both are obliged to the same thing, because that which each is bound to do — to repair the tort damage — is essentially one and the same thing. This is the essential requirement for a determination of solidarity.

Because the two debtors are soli-darily bound, the creditor can demand performance of the entire obligation from either obligor as if he were the sole debtor. Moreover, payment (or partial payment) to the creditor by one debtor exonerates the other debtor from having to make that payment to the creditor (although the debt- or who pays may have resulting rights against the other debtor). Stated otherwise, when the liability is solidary, the creditor cannot collect more than the full amount of the debt for the single or combined payments of the debtors. Therefore, solidarity is not inconsistent with the purpose of providing full recovery to the tort victim.

If State Farm had paid $32,000 to plaintiff without executing the waiver, undoubtedly State Farm could recover that amount from the proceeds of the judgment against McCarron. La.R.S. 22:1406D(4). See also La.C.C. Art. 2106. Under those circumstances, plaintiff clearly would only be enti-tied to the proceeds of the judgment in excess of $32,000.

However, the uninsured motorist carrier in this case waived reimbursement and subrogation (presumably because the offer to save part of the policy limits was attractive and the prospect of recovery from the uninsured motorist was not). As a result, either plaintiff will recover more than her judicially determined damages or the tortfeasor will reap the benefits of the uninsured motorist carrier’s having paid a substantial portion of the plaintiff’s damages in excess of the tortfeasor’s insurance coverage. Inasmuch as the plaintiff paid premiums for her underinsured motorist coverage, arguably she should receive any “windfall” in preference to the tortfeasor. Nevertheless, the Civil Code expressly provides that payment by one solidary obligor exonerates the other toward the creditor to the extent of that payment, and the soli-dary obligor who makes the payment cannot by agreement with the creditor affect the right of the other solidary obligor to exoneration to the extent of the payment.

We therefore conclude that the $32,000 payment on the solidary obligation by State Farm must be imputed to the debt owed by McCarron, the other solidary obli-gor.

This conclusion prevails, even if we accept plaintiff’s argument that the uninsured motorist carrier should be regarded merely as a surety, because of La.C.C. Art. 2206, which at the time of this litigation provided:

“What the creditor has received from one of the sureties, in discharge of his suretyship, must be imputed to the debt, and goes towards the discharge of the principal debtor and the other sureties.”

Thus, if two debtors are solidarily bound for a debt and “the affair for which the debt has been contracted in solido con-cernís] only one of the eoobligors”, that obligor [as between the two] is liable for the whole debt and the other is considered only as his surety. La.C.C. Art. 2106. Nevertheless, even if the law of suretyship is applied, La.C.C. Art. 2206 requires that a payment to the creditor by a surety must be imputed to the debt.

Accordingly, the judgment of the trial court is amended so that the amount of the judgment against Paula McCarron, after all credits, is $6,071.11. As amended, the judgment in No. 83-C-2294 is affirmed. The judgment of the court of appeal in No. 83-C-2616, denying a motion to dismiss Paula McCarron’s appeal, is also affirmed.

MARCUS and BLANCHE, JJ., concur and assign reasons.

DIXON, C.J., dissents with reasons.

WATSON, J., dissents for the reasons assigned by DIXON, C.J.

BLANCHE, Justice

(concurring).

See my dissent in Hoefly v. Government Employees Ins. Co., 418 So.2d 575 (La.1982), and my concurrence in Carona v. State Farm Ins. Co., 458 So.2d 1275 (La.1984). Nonetheless I would have reached the same result as the majority because plaintiffs claim against the tortfeasor for damages would have been reduced by the amount he had previously recovered from his U/M carrier.

MARCUS, Justice

(concurring).

I do not consider that a tortfeasor and a U/M carrier are “obliged to the same thing” and thus are solidary obligors. (See my dissent in Hoefly v. Government Employees Insurance Co., 418 So.2d 575 (La.1982), and my concurrent in Carona v. State Farm Insurance Co., 458 So.2d 1275 (La.1984)). I therefore disagree with the reasoning of the majority. However, since La.Civ.Code art. 2315 limits a plaintiff’s recovery to repair of the tort damage incurred, plaintiffs award should be reduced by the amount received in settlement with her U/M carrier. Accordingly, I concur in the result reached by the majority.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

Contrary to C.C. 2094, the majority has granted the defendants’ plea of division. C.C. 2094 prohibits this.

“The creditor of an obligation contracted in solido may apply to any one of the debtors he pleases, without the debtors’ having a right to plead the benefit of division.” C.C. 2094.

See Hoefly v. Government Employees Insurance Co., 418 So.2d 575, 578 (La.1982).

C.C. 2206 does not apply to these soli-dary obligors. C.C. 2206 applies only to sureties.

“What the creditor has received from one of the sureties, in discharge of his sure-tyship, must be imputed to the debt, and goes towards the discharge of the principal debtor and the other sureties.” C.C. 2206.

These defendants were not sureties in any sense, but were solidary obligors. See Louisiana Bank & Trust Co. v. Boutte, 309 So.2d 274 (La.1975).

The court of appeal was correct.

Nobody benefits from this decision except the guilty driver and the negligent insurer, all at the expense of the innocent victim.

WATSON, J., concurs.

      . The contract of compromise included the following provisions:
      “Notwithstanding anything herein or in the policy of insurance issued by State Farm Mutual Automobile Insurance Company to the contrary, appearer [plaintiff] specifically reserves all rights necessary to proceed against any and all other persons on causes of action arising from the accident aforementioned and recover the full amount of any judgment or settlement without any reimbursement or payment to State Farm Mutual Automobile Insurance Company out of the proceeds of any recovery.
      "Furthermore, it is agreed that the provisions of PART IV — PROTECTION AGAINST UNINSURED MOTORISTS, ‘Trust Agreement’, shall not apply to this payment and that, notwithstanding any provisions of the policy or the law of Louisiana to the contrary, no sub-rogation or other rights, legal or conventional, are granted to State Farm Mutual Automobile Insurance Company by appearer in connection herewith.”

      . The grant was limited to the issue of credit to the tortfeasor on account of partial payment of tort damages by the uninsured motorist carrier.

      . La.R.S. 22:1406D(l)(a) requires liability insurers to provide uninsured and underinsured motorist coverage. The insurer who pays its insured under such coverage is entitled to be reimbursed from the proceeds of any settlement or judgment obtained by its insured against the tortfeasor. La.R.S. 22:1406D(4).

      .McCarron and Allstate were solidarily liable for the first $10,000, as properly adjudicated by the trial court.

      . Perhaps the most difficult problem in solidarity cases is separating conceptually the requirements of solidarity from the consequences of solidarity. Articles 2082 and 2091 set forth the requirement of solidarity that the debtors are obliged to the same thing in that each is separately bound to perform the whole of the obligation. As a consequence, each may be compelled for the whole, but payment by one exonerates the other as to the creditor, who cannot collect more than the whole amount of the debt. (Other consequences, of course, are involved as to the rights of the debtors among themselves.)
      In cases in which solidarity results from a contract between the parties, as in a promissory note, the determination of solidarity is relatively simple because the intention to be bound soli-darily must be express. When two parties bind themselves in solido for the same debt in the same instrument, the requirements of solidarity are fulfilled, and the consequences are (1) that each may be compelled to pay the whole debt and (2) that payment by one debtor exonerates the other toward the creditor, who cannot collect the entire debt from each. The difficult cases are those in which solidarity is imposed by law on two parties with different sources of liability, and there is a tendency to determine the existence of solidarity by inquiring whether the consequences of solidarity should flow from the relationship between the parties. For example, one might inquire if the relationship among the creditor and the various debtors is such that the creditor ought not be allowed to collect the entire debt from each of the debtors and then reason from that inquiry that the debt is or is not solidary. While this may be a legitimate inquiry into whether the Legislature intended the consequences of solidarity, discussion of the consequences as part of the determination of the existence of solidarity has been confusing in judicial decisions.

      . La.R.S. 22:1406D(4) provides:
      "D. The following provisions shall govern the issuance of uninsured motorist coverage in this state.
      ******
      "(4) In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including ■ the proceeds recoverable from the assets of the insolvent insurer.”

      . This is the collateral source argument submitted by plaintiff. We differentiate, however, between uninsured motorist coverage and other types of first party coverage. Louisiana law requires motorists to carry liability insurance, and the uninsured motorist law requires liability insurers to include uninsured motorist coverage (unless expressly rejected by the insured).
      Because liability for the damages caused by the tortfeasor is imposed by law on the uninsured motorist carrier, that insurer is solidarily liable with the tortfeasor to repair those damages. In the case of medical payments or collision coverage, because only the contract (and not the law) imposes the obligation on the insurer to repair some of the damages caused by the tortfeasor, there arguably is no solidary liability. (Moreover, the insured must specifically request that coverage, and medical payment and collision insurers are contractually liable for any medical expenses or collision damages, not just those expenses and damages caused by the tortfeasor.) Therefore, while the collateral source rule perhaps would apply to payments under medical payments or collision coverage (in the absence of a subrogation agreement), the rule does not apply to payments under uninsured motorist coverage. Compare Wheelahan v. Eller, 446 So.2d 442 (La.App. 4th Cir.1984), cert. den., 447 So.2d 1073.

      . Plaintiff argues that La.R.S. 22:1406D(4) (quoted in footnote 6), under Niemann v. Travelers Ins. Co., 368 So.2d 1003 (La.1979), provides something less than subrogation for the uninsured motorist carrier who pays part of the tort victim’s damages caused by the tortfeasor and accordingly that Section 1406D(4) overrides the provisions of La.C.C. Art. 2106, which accord the right of full indemnity to one solidary codebtor who pays the debt which is solely the affair of the other solidary codebtor. See Dusenbery v. McMoran Exploration Co., 441 So.2d 213 (La.1983). However, the Niemann decision merely held that when the tort victim settles with the under insured tortfeasor and his liability insurer, the consent-to-settle provision in the insurance contract is not enforceable to deprive the tort victim of the full recovery contemplated by the uninsured motorist law. This holding was further explained in Bond v. Commercial Union Assur. Co., 407 So.2d 401 (La.1981), which held that the uninsured motorist carrier who pays part of the victim’s damages receives a partial, subordinate subrogation under La.C.C. Art. 2162, so that the victim has a preference over the insurer to collect the remainder of his damages and the insurer collects from the tort-feasor only after the victim has been fully compensated. The victim, of course, cannot receive more than full recovery.

      . Plaintiff points out that the 1984 amendment to Article 2206 permits the obligee and the surety to agree that the remission of the surety’s debt in return for an advantage will not be imputed to the debt. However, plaintiff cannot avail herself of this change in the law which did not become effective until January 1, 1985.

      . Allstate deposited $10,000 into the registry of court early in the proceedings, and Allstate and McCarron are entitled to credit on the judgment for this payment. As to the remaining $6,071.11, McCarron is entitled to judgment over against Allstate on her third party demand.

      . In No. 83-C-2616, granted after 83-C-2294 and consolidated for argument, plaintiff sought to dismiss McCarron's appeal in the intermediate court on the basis that the judgment rendered by the trial court against McCarron became definitive when she failed to furnish security timely for her suspensive appeal. As the court of appeal noted, her timely suspensive appeal without timely security was effective as a devolutive appeal. 441 So.2d 1250. As to plaintiffs contention that McCarron abandoned her devolutive appeal by failing to brief the issue of the $32,000 credit, we decline to take such a technical approach. After McCarron timely perfected a devolutive appeal, her counsel actively participated in the appellate proceedings, in which her codefendant raised and argued the pertinent issue of common interest. We accordingly affirm the intermediate court’s denial of the motion to dismiss the appeal.


source: Caselaw Access Project

author: DENNIS, Justice. WATSON, Justice, DIXON, Chief Justice MARCUS, Justice BLANCHE, Justice

license: Public Domain

text:
    Sam BELL v. JET WHEEL BLAST, DIVISION OF ERVIN INDUSTRIES.
    No. 83-CQ-2158.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
    Rehearing Denied Feb. 21, 1985.

      Orlando G. Bendana, Wayne H. Carlton, Jr., Bendana & Carlton, New Orleans, for plaintiff-appellee.
    Kirstyne H. McCullough, Donald 0. Collins, Jones, Walker, Waechter, Poitevent, Carrier & Denegre, New Orleans, for defendant-appellant.
    Harriet R. Campbell Young, New Orleans, for intervenor-appellee.
   DENNIS, Justice.

We are called upon to decide whether contributory negligence or comparative fault applies in strict products liability cases. This question of law was certified to us by the United' States Court of Appeals for the Fifth Circuit, 717 F.2d 181 (1983), granting rehearing 709 F.2d 6 (1983), pursuant to La.R.S. 13:72.1 (1972) and Rule 12, Rules of the Supreme Court of Louisiana (1973). We accepted certification, 448 So.2d 109 (La.1984). After considering the oral and written arguments of the parties, we hold that contributory negligence does not apply in strict products liability cases, and that the principle of comparative fault may be applied in some products cases according to precepts formulated by analogy from the principle of Civil Code article 2323 and former article 2323, and other relevant social values, ethical principles and empirical data.

The court of appeals’ statement of the facts of the case is as follows:

Sam Bell, the appellee, brought suit to recover injuries occasioned while employed at Vulcan Foundry. He was injured while working on a large shot blast machine used to clear large metal casings. This machine was manufactured and installed by appellant Jet Wheel Blast. Bell’s injury occurred when his hand got caught in the chain and sprocket drive of the conveyor system of the machine.
The case was submitted to the jury on separate theories of strict liability and negligence on the part of appellant manufacturer-installer, Jet Wheel Blast. In response to interrogatories, the jury found that the product, the shot blast machine, was defective, that the defect was a proximate cause of the injury, and that Bell did not assume the risk of the injury. Under the negligence theory the jury found that Jet Wheel Blast was negligent, that the negligence was a proximate cause of the injury, but that Bell was guilty of contributory negligence.
Jet Wheel Blast contended that the finding of contributory negligence exonerated it from liability because the finding constituted “victim-fault” under Louisiana law. The district court, however, awarded the full $150,000 damages to Bell on the strict liability claim. This panel in its original decision on appeal affirmed the judgment of the district court. 709 F.2d 6 (5th Cir.1983).

717 F.2d at 182 (5th Cir.1983).

The court of appeals vacated its original decision and certified this question:

“Does the Louisiana Civil Code permit the defense known as contributory negligence to be advanced to defeat or mitigate a claim of strict liability based upon a defective product, the theory of liability commonly known as ‘product liability? ’ ”

I. Strict Products Liability Under Civil Code Article 2315

Articles 2315-24 of the Louisiana Civil Code comprise the code’s entire chapter of legal principles regulating offenses and quasi-offenses.

The underlying principle is provided by Article 2315: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. * * * ” The remaining articles describe some of the circumstances under which a person may be held liable for his act or that of a person or thing for which he is responsible. DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26 (La.1981); Loescher v. Parr, 324 So.2d 441 (La.1975). For the most part, however, because of the difficulty in finding fault for all times and purposes, the Code has left the function of defining fault in the hands of the courts. DeBattista v. Argonaut-Southwest Ins. Co., supra; Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971); See 2 Colin et Capitant, Cours elementaire de droit civil francois (8c Ed.1935) § 190.

In Weber v. Fidelity & Casualty Insurance Company of New York, 259 La. 599, 250 So.2d 754 (1971) this court recognized a form of fault giving rise to a cause of action under Civil Code article 2315 based on strict products liability. In defining fault for this purpose we held:

A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i.e., unreasonably dangerous to normal use, and that the plaintiffs injuries were caused by reason of the defect.
* ⅜5 ⅜ * * #
If the product is proven defective by reason of its hazard to normal use, the plaintiff need not prove any particular negligence by the maker in its manufacture or processing; for the manufacturer is presumed to know the vices in the things he makes, whether or not he has actual knowledge of them. Id. 250 So.2d at 755-756.

Under the terms of this strict products liability theory, in order to recover from a manufacturer or supplier the plaintiff must prove (1) that the injury or damage resulted from the condition of the product; (2) that the condition made the product unreasonably dangerous to normal use; and (3) that the condition existed at the time the product left the control of the manufacturer or supplier. Hebert v. Brazzel, 403 So.2d 1242 (La.1981); DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26 (La.1981); Hunt v. City Stores, 387 So.2d 585 (La.1980); Chappuis v. Sears, Roebuck & Co., 358 So.2d 926 (La.1978); Weber v. Fidelity & Casualty Ins. Co. of New York, 259 La. 599, 250 So.2d 754 (1971).

Although a strict products liability action was recognized over thirteen years ago by this court, the question of whether contributory negligence or comparative fault is applicable in such a case has not been definitively answered by us. In the absence of any guidance from this court, our intermediate courts and panels of the federal court of appeals have reached varying conclusions. See Lovell v. Earl Grissmer Co., 422 So.2d 1344, 1352 (La.App. 1st Cir.1982), writ denied, 427 So.2d 871, (La.1983) (contributory negligence bars recovery in strict product liability cases); Tri-State Ins. Co. v. Fidelity & Casualty Ins. Co., 364 So.2d 657, 661 (La.App. 2d Cir.1978), writ denied, 365 So.2d 248 (La.1978) (victim fault, measured by elements of assumption of risk, bars recovery in a products liability case); Lewis v. Timco, Inc., 716 F.2d 1425 (5th Cir.1983) (on rehearing en banc) (recognition of comparative fault in maritime products liability will not “frustrate” a dedicated state policy); see also Lewis v. Timco, Inc., 697 F.2d 1252 (5th Cir.1983) and 736 F.2d 163 (5th Cir.1984); LeBouef v. Goodyear Tire & Rubber Co., 623 F.2d 985, 991 (5th Cir.1980) (contributory negligence is not a defense to a strict products liability claim under Louisiana law); Khoder v. AMF, Inc., 539 F.2d 1078, 1079-81 (5th Cir.1976) (a jury charge which included contributory negligence as a defense to product liability was improper under Louisiana law).

II. Statutes Pertaining to Contributory and Comparative Negligence

Article 2303 of the Civil of Code of 1825 was one of the first mandates in legal history establishing for general use what is now known as the doctrine of comparative negligence. Malone, Comparative Negligence — Louisiana’s Forgotten Heritage, 6 La.L.Rev. 125, 129 (1945). It had no counterpart in the Code Napoleon or in the earlier Louisiana Civil Code of 1808. It read as follows:

“The damage caused is not always estimated at the exact value of the thing destroyed or injured; it may be reduced according to circumstances, if the owner of the thing has exposed it imprudently.”

The provision was readopted as article 2323 of the present Civil Code of 1870 and persisted unmodified until its amendment by Act No. 431 of 1979.

Paradoxically, this court ignored the provision and let it fall into oblivion, while relying in negligence cases on common law precedents to apply the doctrine of contributory negligence, for which there was no codal authority. Fleytas v. Pontchartrain Railroad Co., 18 La. 339 (1841); Malone, supra; Comment, 11 Tul.L.Rev. 112 (1935). Professor Malone has noted many of the factors which probably were responsible for these developments: The first decision that clearly committed this court to contributory negligence was decided in 1841. Fleytas, supra. At that time there was no organized body of civilian doctrine on the issue of comparative fault. It was not until much later that comparative fault became openly acknowledged as the universal attitude in civil law jurisdictions. Since article 2323 had no counterpart in the Code Napoleon, it was not expounded by the French commentators. Moreover, because the article was elliptically couched in terms of damages rather than substantive principle, a sharp and arresting focus was not brought to bear upon it. In contrast to the absence of definitive French authority to uphold comparative fault, there was a comprehensive body of Anglo-American cases and texts supporting contributory negligence doctrine. Contributory negligence was perpetuated because it made the judging process seem simpler and more impersonal and at one time afforded a ready means for control of juries. At the same time it enabled the courts to assume the role of conservative policymakers without betraying even to themselves their role of judicial lawmaking. Malone, supra p. 133-140.

In 1979 the legislature reintroduced the concept of comparative negligence by rewriting article 2323 in clear, unmistakable terms of substantive principle, as follows:

“When contributory negligence is applicable to a claim for damages, its effects shall be as follows: If a person suffers injury, death or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the claim for damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death or loss.” (Amended by Acts 1979, No. 431 § 1, eff. Aug. 1, 1980).

Consequently, a plaintiffs claim for damages no longer can be barred totally because of his negligence. At most his claim may be reduced in proportion to his fault. Thus, the net effect of article 2323, as amended, is to prevent the courts from applying any defense more injurious to a damage claim than comparative negligence. The article does not, however, state when the courts shall permit a defense of contributory or comparative negligence to affect a plaintiff’s recovery, nor does it prohibit the courts from applying comparative negligence to a claim previously insusceptible to the bar of contributory negligence.

Accordingly, we conclude that neither the statutes nor the previous decisions of this court precisely and expressly determine whether a defense of contributory negligence or comparative fault is applicable to a strict products liability claim. It is necessary, therefore, that we proceed with a search for the rule that will provide an answer to the question.

III. Whether Contributory Negligence or Comparative Fault Applies in a Strict Products Liability Case

When new or doubtful cases arise, a court in a code system performs an extensive examination and interpretation of the code provisions to see if there is a precise rule intended by the legislator to govern the case. If there is such a rule, it is binding on the court. When a court is unable to find in the legislator’s intention a precise rule to govern the case, it must conduct an objective search for a rule. These instances of objective search for a rule may involve looking for an analogy among codal rules, principles, concepts or statutory doctrines; and it may entail a broader inquiry extending beyond the legal system to include also relevant empirical data, ethical principles and social values. The court’s purpose in an objective search is to discover a rule which will'satisfy, as well as possible, justice and social usefulness in the case at hand and in similar cases. Even if the legislature has tacitly authorized the courts to update the statute by including as one of its elements a dynamic concept, such as “fault” or “public policy”, the search for a subsidiary rule more specifically defining the dynamic concept must be objective. The court must eliminate any personal influence or influence related to the specific case and base its decision on objective elements; it should take into account all of the social, moral, economic and other considerations that an objective rulemaker would consider in forming a rule to govern the case. Geny, Metkode d’ Interpretation Et Sources En Droit Prive’ Positif §§ 155, 156 (Trans. Louisiana State Law Institute 1954); Cardozo, The Nature of the Judicial Process (1921); Cueto-Rua, Judicial Methods of Interpretation of the Law, 80-81 (footnotes omitted), copyright by the Paul M. Hebert Law Center Publications Institute (1981); Entrevia v. Hood, 427 So.2d 1146 (La.1983); Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971).

Because the Civil Code contains no precise rule intended by the legislature to govern modern products injury cases, our rule defining fault for purposes of strict products liability was formulated pursuant to such an objective search. The rule imposes liability for fault which does not encompass negligence, in a manner analogous to Civil Code articles 666, 667, 668, 670 and 2322 and articles 2318-2322. Without requiring negligence by him who is to respond in damages, some of these articles impose liability for constructions, others for activities, still others by reason of relationships. See Langlois v. Allied Chemical Corporation, supra 258 La. at p. 1083, 249 So.2d 133. Our products liability rule is consistent with the Code’s underlying reasons for imposing a legal obligation when a quasi-offense causes damage to another: there is always, either in the person of the creditor or in his patrimony, a circumstance which renders such creation necessary, and such circumstance is nothing other than the unjust injury which must be avoided, if it has not yet occurred, or to repair it, if it has already happened. See 2 Planiol nos. 806, 807.

As were most American courts, we were influenced in our objective search for a products liability rule by the doctrine that culminated in the adoption of Section 402A of the Restatement Second of the Law of Torts, which has received a wide national acceptance. The basic goals of the strict products liability doctrine appear to be: (a) the reduction of the incidence of injuries by providing an incentive for manufacturers to produce safer products; (b) the placing of the burden of accidental injuries caused by defective products on those who market them, to be treated as a cost of production against which liability insurance can be obtained. See Prosser, The Assault on the Citadel, 69 Yale L.J. 1099, 1119-22 (1960); Restatement Second of Torts § 402A, comment C (1965). Recognizing that these goals are similar to the underlying reasons for delictual responsibility imposed by the Civil Code, and relying on a search among empirical, ethical and legal considerations, which confirmed the need for a strict products liability rule in our state, this court formulated a rule similar to Restatement Section 402A for resolving products liability disputes that is designed to be conducive to justice and social utility, consistent with Civil Code principles, and analogous to other definitions of fault formulated pursuant to Civil Code article 2315.

Using the same approach to formulate rules for defenses to strict products liability, we conclude that the defense of contributory negligence as a complete bar to recovery should be rejected entirely, and that comparative fault may be applied in certain categories of cases to reduce the plaintiffs recovery.

Contributory negligence as a complete bar to recovery does not apply in products liability cases because it is incompatible with that doctrine. The contributory negligence defense would permit the manufacturer to breach his duty to manufacture a reasonably safe product and escape liability simply because the fault of the user of the defective product contributed to the accident. Thus, in many instances the manufacturer would have no incentive to make and market a safer product, and the user who is usually less able to distribute the loss would be forced to absorb even the portion of the damages attributable to the unreasonably dangerous condition of the manufacturer’s product. Contributory negligence has never been part of our legislated law and is now expressly prohibited by statute. Civil Code article 2323 (as amended by 1979 La.Acts, No. 431, § 1). The vast majority of the other state courts which have adopted the strict products liability doctrine do not permit the defense of ordinary contributory negligence to bar recovery. Union Supply Co. v. Pust, 196 Colo. 162, 583 P.2d 276 (1978); Shields v. Morton Chem. Co., 95 Idaho 674, 518 P.2d 857 (1974); Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex.1974); Findlay v. Copeland Lumber Co., 265 Or. 300, 509 P.2d 28 (1973); Devaney v. Sarno, 125 N.J.Super. 414, 311 A.2d 208 (1973); Luque v. McLean, 8 Cal.3d 136, 104 Cal.Rptr. 443, 501 P.2d 1163 (1972); Williams v. Ford Motor Co., 454 S.W.2d 611 (Mo.App.1970); Williams v. Brown Mfg. Co., 45 Ill.2d 418, 261 N.E.2d 305 (1970); O.S. Stapley Co. v. Miller, 103 Ariz. 556, 447 P.2d 248 (1968). Contra, Hoelter v. Mohawk Service, Inc., 170 Conn. 495, 365 A.2d 1064 (1976); Cepeda v. Cumberland Engineering Co., Inc., 76 N.J. 152, 386 A.2d 816 (1978) overruled by Suter v. San Angelo Foundry and Machine Company, 81 N.J. 150, 406 A.2d 140 (1979).

On the other hand, pure comparative fault principles would seem to coincide with and further the goals of products liability doctrine in some cases. Where the threat of a reduction in recovery will provide consumers with an incentive to use a product carefully, without exacting an inordinate sacrifice of other interests, comparative principles should be applied for the sake of accident prevention. The recovery of a plaintiff who has been injured by a defective product should not be reduced, however, in those types of cases in which it does not serve realistically to promote careful product use or where it drastically reduces the manufacturer’s incentive to make a safer product.

Comparative fault may not be applied to reduce a claim for damages in a case such as the present one giving rise to the certified question. The plaintiff was injured while performing a repetitive operation with a defective industrial machine as required by his employer. His hand got caught in the chain and sprocket drive of the conveyor system of the machine because of the lack of an adequate guard at the particular place on the drive that the injury occurred. His ordinary contributory negligence in combination with the machine’s defect caused the accident and injury. Under these circumstances, the application of comparative fault would not serve to provide any greater incentive to an employee to guard against momentary neglect or inattention so as to prevent his hand from being mangled by machinery. Reduction of the plaintiff’s award in this type of case would only tend to defeat the basic goals of strict products liability doctrine by reducing economic incentive for product quality control and by forcing the injured individual to underwrite a loss himself which could be more efficiently distributed by the manufacturer through insurance and price adjustments. Cf. Suter v. San Angelo Foundry and Machine Co., 81 N.J. 150, 406 A.2d 140 (1979) (“The imposition of a duty on the manufacturer to make the machine safe to operate whether by installing a guard or ... by making it inoperable without a guard, means that the law does not accept the employee’s ability to take care of himself as an adequate safeguard of interests which society seeks to protect.” 406 A.2d at 148); Bexiga v. Havir Manufacturing Corp., 60 N.J. 402, 290 A.2d 281 (1972) (“The asserted negligence of plaintiff ... was the very eventuality the safety devices were designed to guard against.” 290 A.2d at 286).

In those types of cases in which comparative fault principles may be applied, the principles of article 2323 and its predecessors should be applied by analogy so that the claim for damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death or loss. Thus, the “pure” form of comparative negligence shall apply in those strict products liability cases in which the plaintiff’s award may be reduced. Furthermore, the adoption of a system of comparative fault should, where it applies, entail the merger of the defenses of misuse and assumption of risk into the general scheme of assessment of liability in proportion to fault.

Our decision is intended as an answer to the certified question and as a first step in the formulation of a just and socially useful rule, not as an answer to all questions that may be expected to arise. For example, the question of whether other classes of cases fall within the category to which comparative fault may apply must be decided on a case-by-case basis. Pending future judicial or legislative developments, we are content for the present to assume the position taken by the California court which scrupulously abstained from issuing a detailed guidebook to the new area of comparative negligence, preferring to adopt the view “ ‘that ... the trial judges of this State are capable of applying [a] comparative negligence rule without our setting guidelines in anticipation of expected problems. The problems are more appropriately resolved at the trial level in a practical manner instead of a theoretical solution at appellate level. The trial judges are granted broad discretion in adopting such procedure as may accomplish the objectives and purposes expressed in this opinion.’ ” Daly v. General Motors Corp., 20 Cal.3d 725, 144 Cal.Rptr. 380, 390, 575 P.2d 1162, 1172 (1978).

Conclusion

Contributory negligence does not apply in strict products liability cases. The principle of comparative fault may be applied in some products cases according to precepts formulated by analogy to the principle of Civil Code article 2323. The principle does not apply, however, and the plaintiffs recovery cannot be diminished in a case such as the present one involving an industrial accident resulting in injury to an employee’s hand due to defective machinery and the employee’s ordinary contributory negligence. Under these circumstances the application of comparative fault would tend to defeat the basic goals of strict products liability without providing any additional incentive for careful product use. CERTIFIED QUESTION ANSWERED.

WATSON, J., concurs and assigns reasons.

DIXON, C.J., subscribes to the opinion and concurs in part.

MARCUS and BLANCHE, JJ., dissent and assign reasons.

WATSON, Justice,

concurring.

The majority slightly misstates the issue by observing that “we are called upon to decide whether contributory negligence or comparative fault applies in strict products liability cases.”

The exact question certified is as follows: “Does the Louisiana Civil Code permit the defense known as contributory negligence to be advanced to defeat or mitigate a claim of strict liability based upon a defective product, the theory of liability commonly known as ‘product liability?’ ”

The answer to this question is probably best stated as “yes, no, sometimes, and maybe.” The question certified is, with due respect to our federal brothers, somewhat ambiguous. Contributory negligence has always been regarded as a finding which defeats the claim of a plaintiff. On the other hand, comparative negligence (and not contributory negligence) is used to mitigate a claim. At the time of the injury in question, it appears that the doctrine of contributory negligence and not comparative negligence was in effect in Louisiana.

Therefore, the proper question from the federal circuit would be whether contributory negligence could defeat the products liability claim under the described circumstances. Like the majority, I would respond in the negative relying on such cases as Chaney v. Brupbacher, 242 So.2d 627 (La.App. 4 Cir.1970); and O’Keefe v. Warner, 288 So.2d 911 (La.App. 1 Cir.1973). An employee who is at his proper post of employment using machinery furnished by the employer is not ordinarily guilty of contributory negligence because he has no choice other than to work or quit, the latter an unrealistic possibility in the current economy. Since an employee who is required to work daily with defective machinery will often sustain an injury, a manufacturer who invites such an injury by failure to provide a basic safety device is responsible. An employee’s one act of carelessness will not defeat his recovery, because the employee has not been guilty of fault or blameworthiness which would equate with contributory negligence. See Lewis v. Timco, Inc., after remand, 736 F.2d 163 (5th Cir.1984).

The other facet of the certified question seems to be whether comparative negligence applies generally to product liability cases. The majority has taken the position that the answer may vary from case-to-case. An approach which has merit would be to allow victim fault to be advanced as a defense in any case considered under the regime of comparative negligence with appropriate instruction to the jury or appropriate application of certain legal principles in a bench trial. Why not allow the trier of fact to consider the possibility of victim fault to mitigate damages in all tort cases?

To say that each case must be decided on a case-by-case basis as to whether comparative negligence is even possible fails to give guidance to litigants, attorneys or the other courts of the state.

Therefore, with these reservations I respectfully concur.

DIXON, Chief Justice

(concurring).

I respectfully concur, holding reservations about Part II of the majority opinion; otherwise, I subscribe to the opinion. C.C. 2323 was probably what it appeared to be before the 1979 amendment — an explanation of the “damage” for which an owner of a building may be liable under C.C. 2322, and related to the assessment of damages for offenses and quasi offenses mentioned in C.C. 1934.

C.C. 2323 (before its amendment) is available for use by analogy to comparative negligence, but hardly more.

MARCUS, Justice

(dissenting).

I disagree with the majority that the defense of contributory negligence does not apply in strict products liability cases. The majority disregards the language in Weber v. Fidelity & Casualty Insurance Co. of New York, 259 La. 599, 250 So.2d 754 (1971), which states that “[a] manufacturer of a product which involves a risk of injury to the user is liable to every person ... who without fault on his part, sustains an injury caused by a defect in de-sign_” (Emphasis added.)

I decline to depart from the well-established jurisprudence of this state that has recognized the doctrine of contributory negligence, and further disagree with the majority’s contention that comparative fault existed in Louisiana prior to the amendment to La. Civ. Code art. 2323 which did not become effective until August 1, 1980. Because the accident in this case occurred before that date, a finding that plaintiff was contributorily negligent bars his recovery. Moreover, even if this accident had occurred after comparative negligence came into effect, plaintiffs recovery would be reduced to the extent of his fault, since the proportionate fault of both plaintiff and defendant is to be assessed in all tort cases arising under comparative negligence.

Accordingly, I respectfully dissent.

BLANCHE, Justice

(dissenting).

It would be a simple matter to apply comparative negligence in all cases where the fault of both parties contributes the injury, whether under Civil Code Article 2315 or Article 2317 or any other conceivable theory of liability. Instead, the majority complicates the legislative effort to do justice between litigants by deciding in a products liability case that comparative negligence will be applied where “the threat of a reduction in recovery will provide consumers with an incentive to use a product carefully without exacting an inordinate sacrifice of other interests” and never “where it drastically reduces the manufacturer’s incentive to make a safer product.”

In the present case, where a man was injured while working with his hands on a defective machine for another’s profit, it would be an easier task for this writer, considering these facts and circumstances together with the employee’s simple inad-vertedness to assess the manufacturer with anywhere from 95 to 99% of the fault and the injured worker with the remainder. This small reduction would require the plaintiff to be responsible for his fault while the manufacturer would also be penalized sufficiently to force him to produce a safer product. Thus, it is this writer’s opinion that the bench and bar would be better served if the doctrine of comparative negligence would be applied uniformly.

Finally, I would not have overruled 150 years of jurisprudence with this lame duck certification case and agree with Justice Marcus that comparative fault did not exist in Louisiana until the amendment to Civil Code Article 2323 which took effect August 1, 1980.

       Of course, the exception outlined above does not include an employee who deliberately injures himself.
      There may be other instances where the ordinary contributory negligence of the plaintiff will not result in a reduction of his recovery. For example, Florida and Illinois apply comparative negligence principles to strict product liability, but neither state allows a plaintiffs failure to discover or guard against a defect to be compared as a damage-reducing factor. West v. Caterpillar Tractor Co., Inc., 336 So.2d 80, 90 (Fla.1976); Coney v. J.L.G. Industries, Inc., 97 Ill.2d 104, 73 Ill.Dec. 337, 344, 454 N.E.2d 197, 204 (1983).


author: LEMMON, Justice: WATSON, Justice,

text:
    Robert TUTTLE v. Ruth Walker TUTTLE.
    No. 83-C-1153.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
    Rehearing Denied March 7, 1985.
    Robert J. Stamps, Metairie, for defendant-applicant.
    George H. Jones, New Orleans, Harry A. Burglass, Metairie, for plaintiff-respondent.
   LEMMON, Justice:

We granted certiorari to decide whether a judicial sale, held pursuant to a judgment ordering partition of community property by licitation, is invalid because the sale was conducted without a minimum bid, although neither party to the partition proceeding requested such a protective condition.

Mr. and Mrs. Tuttle were separated by judgment. rendered in 1978. Mr. Tuttle thereafter filed a “petition for settlement of community property”, requesting that the court order the sale of the property to effect a partition. A notary appointed by the trial court filed an inventory which listed two pieces of immovable property, valued at approximately $56,000 and $48,-000 respectively, and a.$9,000 certificate of deposit as the only community assets. On October 2, 1981, the trial court rendered a judgment ordering a partition by licitation to effectuate the partition of the community property. Neither party appealed from this judgment nor requested any special conditions of the sale.

On February 3,1982, the sheriff conducted a judicial sale at which Mrs. Pauline Kavanaugh was the last and highest bidder with an offer of $14,000 for the two pieces of property. The properties were thereafter transferred to Mrs. Kavanaugh by the sheriff’s proces verbal.

On March 31, 1982, Mrs. Tuttle (represented by new counsel) filed the present action, seeking to annul the judicial sale on several grounds. Shortly thereafter, Mr. Tuttle filed a separate petition to annul the judicial sale.

After a trial on the merits, the trial judge set aside the judicial sale, concluding that he had erred by failing to fix a minimum price in the judgment ordering the judicial sale of the community property. The court of appeal reversed, concluding that there is no statutory requirement of a minimum bid for judicial sales in partition proceedings. 430 So.2d 269. We granted certiorari. 438 So.2d 569.

La.C.C.P. Art. 4601 et seq. provide the procedural requirements for partitions between coowners. Regarding partitions by licitation, Article 4607 provides:

“When a partition is to be made by licitation, the sale shall be conducted at public auction and after the advertisements required for judicial sales under execution. At any time prior to the sale, the parties may agree upon a nonjudicial partition.”

None of the other requirements for judicial sales under execution, such as appraisal and minimum bid, are expressly made applicable to judicial sales in partition proceedings, although Article 4604 permits the judge to order an inventory and Article 4605 accords the judge discretion “to direct the manner and conditions of effecting the partition, so that it will be most advantageous and convenient to the parties”.

There is no mention of minimum bids in La.C.C.P. Art. 4601 et seq., or in La.C.C. Art. 1322 et seq. (dealing with judicial partitions between coheirs in successions), La. C.C. Art. 2601 et seq. (dealing with public sales generally), La.R.S. 9:3001 et seq. (dealing with judicial sales generally), or La.R.S. 13:4341 et seq. (dealing with the procedure for judicial sales). However, La. R.S. 9:2801, enacted in 1982 relative to partitions of community property, now provides that “[t]he court may fix the minimum bids and other terms and conditions upon which the property is offered at public sale”. La.R.S. 9:2801(4)(e).

The courts have previously addressed the issue of whether minimum bids, although not statutorily required, are necessary in judicial sales in partition proceedings. In the late 1800s and early 1900s, this court held that minimum bids are not necessary. Life Assoc. of America, 33 La.Ann. 49 (1881); Buddecke v. Buddecke, 31 La.Ann. 572 (1879); Shaffet v. Jackson, 14 La.Ann. 154 (1859). See also other cases cited in Comment — Necessity of Realizing Two-Thirds of Appraisement in Property Sold to Effect a Partition, 11 Loy.L.Jour. 102 (1930).

Several cases have approved judicial sales in partition proceedings after requests for minimum bids had either been granted or denied. See Ballard v. Ballard, 367 So.2d 1223 (La.App. 2nd Cir.1979); Tri-State Concrete Co. v. Stephens, 406 So.2d 205 (La.1981); Blanchard v. Fontana, 434 So.2d 1150 (La.App. 1st Cir.1983). The usual basis for the discretionary ordering of a minimum bid has been the fact of unequal bargaining power between the parties or the likelihood of little or no competitive bidding.

In Sibley v. Pierson, 125 La. 478, 51 So. 502 (1910), and Giglio v. Giglio, 159 La. 46, 105 So. 95 (1925), this court required a minimum bid, but those cases involved an appeal from a judgment ordering partition by licitation, while the present case seeks to annul a judicial sale ordered by an unap-pealed judgment. Thus, those cases, despite language in dicta, may be viewed as turning on the abuse of the trial judge’s discretionary power to order a minimum bid. No case has been found which annulled a judicial sale ordered to partition coowned property.

As to the applicability of La.C.C.P. Art. 2331 et seq., which govern judicial sales in execution of money judgments, those articles have been carefully formulated to govern relationships and rights among the debtor, the foreclosing creditor, and the superior and inferior creditors, as well as to provide a method for delivering the seized property to the purchaser at the judicial sale free of the claims of inferior creditors. Many of the considerations pertinent to such sales are simply not applicable to judicial sales in partition proceedings. Moreover, the Legislature, by expressly including in La.C.C.P. Art. 4607 the advertisement provisions of judicial sales under execution, impliedly rejected the other requirements of such sales.

While there is a great deal of attractiveness to the proposition that minimum bids should be required in all judicial sales in partition proceedings, this is essentially a question addressed to the Legislature. The courts have long recognized that the ordering of minimum bids is within the judge’s discretion, and the Legislature recently affirmed (in enacting La.R.S. 9:2801[4][e]) that this is a discretionary matter. It would therefore be contrary to and inconsistent with this recent legislative pronouncement for this court to now hold that a minimum bid is essential to the sale, saying in effect that the judge has no discretion in the matter.

Accordingly, the judgment of the court of appeal is affirmed.

WATSON, J., concurs and will assign reasons.

DENNIS, J., dissents.

WATSON, Justice,

concurring.

The resolutory issue is whether the sale of property pursuant to an order for partition by licitation may be voided for failure to require a two-thirds minimum bid.

The answer to the question is quickly found by a reference to the Code of Civil Procedure articles dealing with partition of property between co-owners. See LSA-C. C.P. art. 4601. Counsel for Ruth Walker Tuttle strenuously argues that the articles concerning judicial sale under writ of fieri facias, LSA-C.C.P. art. 2331, et seq., require the two-thirds bid. There is no authority in the statutes or the jurisprudence for this position.

The Court of Appeal accurately summarized the applicable law:

“The only remedy remaining to the Tut-tles, then, was to have the judicial sale itself annulled, for failure to comply with the formalities required by law. They sought to do so through their allegations of lesion and of failure to reach the minimum bid required by C.C.P. art. 2331. “As stated above, however, C.C.P. art. 2331 applies only to sales under executo-ry process [meaning under execution of judgment.] It is well-settled that in partition sales the validity of the adjudication (that is, the sale) does not depend upon a proportion to the appraisement. The property can be legally adjudicated regardless of the value placed on it, even when minors are co-owners. [Citations omitted.] The law requires only that the property be sold to the last and highest bidder. LSA-C.C. arts. 2601, 2607; LSA-R.S. 5:17. The judge who orders the judicial sale may place conditions on that sale (such as a minimum bid price), but it is not mandatory he do so. Had the Tuttles desired the judge to place a minimum price on the sale offering, they should have requested it by motion for new trial or by suspensive appeal of the judgment ordering the public sale. “Further, it is clear the sale cannot be attacked on the basis of lesion. LSA-C.C. arts. 1869 and 2594 expressly state that lesion and lesion beyond moiety are not applicable to judicial sales.” 430 So.2d 269 at 273.

Ms. Tuttle cites as authority for her contention that a minimum bid of two-thirds of the appraised value is required, the cases of Wetherbee v. Lodwich Lumber Company, 194 La. 352, 193 So. 671 (1940); Ballard v. Ballard, 367 So.2d 1223 (La.App. 2 Cir.1979); and Tri-State Concrete Company, Inc. v. Stephens, 406 So.2d 205 (La., 1981). Unfortunately, none of these cases stand for the proposition argued. The oldest case, Wetherbee, does not mention the two-thirds requirement although a partition by licitation was effected in that case. Ballard, an opinion of the Court of Appeal, Second Circuit, makes two holdings: (1) that the trial court was not in error in declining to fix minimum bid amounts for the properties to be sold when it had not been presented with evidence as to the value of the properties; and (2) that under the circumstances of the case certain corporate stock in dispute should be divided in kind rather than by licitation. Finally, TriState holds, as pertinent to the matter before the court, that the court has discretion to direct the manner and conditions of effecting a partition by licitation so that it will be most advantageous to the parties and that the Court of Appeal did not err in setting, prior to sale, a minimum price that a tract of land must bring at public sale, the failure of which would result in a second offering without a minimum. These cases relate largely to the authority of the courts to make requirements in connection with partition by licitation; all seem to concede that such could have been done in the Tuttle sale, but it was not. The cases do not support the contention that the Tut-tle sale was void for failure to require a two-thirds bid.

There is no cause of action in Louisiana to void a partition sale between co-owners for the Sheriffs failure to require a two-thirds bid; the exceptions of no cause of action should have been sustained. In any event, a correct resolution of the case was reached by the Court of Appeal.

I respectfully concur.

      . The properties were encumbered by a mortgage of approximately $ 10,500. Thus, the bid was sufficient to pay the outstanding mortgages and the costs of the sale, although the balance of the sale proceeds was insufficient to cover the fees of the notary and appraisers for the inventory.

      . La.R.S. 9:2801 adopted the "aggregate theory” of partition in kind, in which the court may allocate assets which are indivisible in kind, as well as liabilities, between the spouses. In cases in which neither spouse has a more meritorious claim to a particular item, the court may order the parties to draw lots for the asset or may order a private sale. Partition in licitation is the method of last resort. See Developments in the Law, 1981-1982 — Matrimonial Regimes, 43 La.L.Rev. 513 (1982).
      The aggregate method of partition would have been particularly useful in the present case, which involved two assets, each indivisible in kind but of relatively equal value, and an asset divisible in kind. See also La.C.C. Art. 2369.1, adopted in 1981.

      . In the Tri-State case, the court of appeal ordered a minimum bid in the sale of a large tract of land, although no request had been made, but did not order a minimum bid in the sale of a smaller tract. This court approved on the basis that there was likely to be sufficient competitive bidding for the smaller tract to protect the interests of all parties.

      . If either party had appealed the judgment ordering partition by licitation, the appellate court arguably could have applied La.R.S. 9:2801 and ordered partition in kind by judicial allotment of the assets and liabilities to the spouses. See Simon v. Simon, 421 So.2d 931 (La.App. 4th Cir.1982).


author: CALOGERO, Justice. LEMMON, Justice,

text:
    LOUISIANA STATE BAR ASSOCIATION v. Robert F. PITARD.
    No. 80-B-2753.
    Supreme Court of Louisiana.
    Jan. 14, 1985.

      Thomas 0. Collins, Jr., Wood Brown, III, New Orleans, Robert J. Boudreau, Lake Charles, Sam J. D’Amico, Baton Rouge, Carrick R. Inabnett, Monroe, Harold J. Lamy, New Orleans, Alfred S. Landry, New Iberia, Philippi P. St. Peé, Metairie, Roland J. Achee, Shreveport, Gerald F. Thomas, Natchetoches, for applicant.
    Robert F. Pitard, New Orleans, for respondent.
    Walter R. Fitzpatrick, Jr., New Orleans, Com’r.
   CALOGERO, Justice.

The Louisiana State Bar Association, through its Committee on Professional Responsibility, instituted this disciplinary proceeding against Robert F. Pitard, a member of the bar of this State. The Committee’s petition relies upon the authority of Section 8 of Article 15 of the Articles of Incorporation of the Louisiana State Bar Association and respondent’s final convictions, after a bench trial in the Criminal District Court for the Parish of Orleans, of public bribery in violation of La.R.S. 14:118 and conspiracy to commit public bribery in violation of La.R.S. 14:26.

Harry DeKay, Jr. was the subject of a criminal investigation regarding alleged crimes against nature with three juveniles on different dates. With the threat of an impending grand jury indictment in one or more of the three cases, DeKay contacted a retired New Orleans police officer who solicited Pitard to handle a legal matter for DeKay. Without first contacting DeKay’s retained criminal attorney, Mr. Irvin Dy-mond, Pitard became involved in a plan in which the family of each victim was to receive $5,000.00 in exchange for the exoneration of DeKay. Pitard, with the assistance of two women, contacted the families of the boys involved and offered to “settle the case.” On November 5, 1978 Mrs. D., the mother of a victim accepted a $5,000.00 check from Pitard in return for which she signed an affidavit which provided:

“I, T.D., acting individually and through my parent, C.D., court appointed Tutrix, hdreby release Harry B. DeKay, Jr. and Prytania Private School from any responsibility or liability concerning any alleged actions of impropriety that were alleged to have happened during the year 1978. I also admit that any statements that I may have made regarding actions of impropriety by Harry B. DeKay, Jr. were false and misleading, and that Harry B. DeKay, Jr. is guilty of no wrongdoing to me whatsoever. This release is made for the sum of Five Thousand ($5,000.00) Dollars.”

On November 29,1978 Pitard and DeKay were charged with public bribery and conspiracy to commit public bribery in that they offered to give, and did give, the sum of $5,000.00 to C. and T.D., persons about to be called as witnesses, with the intent to influence their conduct as witnesses in criminal proceedings before the Orleans Parish Grand Jury and at the trial of De-Kay.

Following a bench trial and conviction of both defendants on both offenses, respondent Pitard, as well as DeKay, were sentenced to serve two years at hard labor for each offense, the sentences to run concurrently. The defendants were also fined $1,000.00 on the public bribery charge. The court suspended the jail term and placed defendants on five years active probation. This Court affirmed the conviction. State v. Harry DeKay, Jr. and Robert Pitard, 387 So.2d 570 (La.1980).

On November 26, 1980, the Committee filed a petition in this Court seeking disciplinary action against respondent under Article 15, Section 8 of the Articles of Incorporation of the Louisiana State Bar Association. This Court, by its order of January 16, 1981 suspended Pitard from the practice of law, upon a finding that the crimes of which he had been convicted constituted “serious crimes”, the necessary elements of which reflect upon his moral fitness to practice law.

After respondent’s conviction became final, a Commissioner was appointed by this Court. On April 4, 1984, following a hearing on the matter, the Commissioner filed his report with this court. The Commissioner found that respondent’s “grasp of the situation, as evidenced by his actions throughout, was so tenuous and uncertain, that he did not have the necessary appreciation of the gravity of what he was doing to have formed an intent to commit an immoral act.” Accordingly, the Commissioner did not find Pitard’s actions rendered him morally unfit to practice law.

The Commissioner found that his actions were so grossly negligent and careless that they reflected adversely upon his fitness to practice and that some disciplinary action was warranted. The Commissioner recommended that respondent not be disbarred, but that he be suspended from the practice of law for a period to be fixed by this court.

The Committee filed its “concurrence and opposition” to the Commissioner’s report. The Committee concurred with the Commissioner’s finding that respondent was convicted of serious crimes, felonies, which convictions became final when they were affirmed by this court. The Committee also concurred with the Commissioner’s finding that respondent acted incompetently, but they contend that this does not vitiate criminal intent. The Committee opposed the finding of the Commissioner that respondent was morally fit to practice; that respondent did not intend to commit an immoral act; and that respondent’s lack of competency excused his actions.

The Committee contends that respondent’s conviction of publicly bribing a potential witness adversely reflects upon his moral fitness to practice law. Further, they contend an aggravating circumstance is that the conduct constituting the crimes was directly connected with the practice of law. Thus, the Committee feels the appropriate discipline is disbarment, retroactive to January 16, 1981, the date of respondent’s suspension.

The first question to be confronted is what evidence is to be considered by this Court.

In this regard, article 15, section 8, paragraph 7(d) of the Articles of Incorporation of the Louisiana State Bar Association provides as follows:

“At the hearing based upon the respondent’s conviction of a crime the sole issue to be determined shall be whether the crime warrants discipline, and if so, the extent thereof. At the hearing the respondent may offer evidence only of mitigating circumstances not inconsistent with the essential elements of the crime for which he was convicted as determined by the statute defining the crime.” (Emphasis added)

In addition, article 15, section 8, paragraph 7(e) states that “the certificate of the conviction of the respondent shall be conclusive evidence of his guilt of the crime for which he has been convicted.”

This Court, in Louisiana State Bar Association v. Loridans, 338 So.2d 1338 (La. 1976), interpreting the above provisions, said that they “were clearly designed to put an end to an examination of respondent’s guilt or innocence of the crime of which he has already been convicted and to permit only the introduction of mitigating circumstances that are not inconsistent with that guilt.”

Respondent, testifying at the hearing, and in his brief arguing the merit of the Commissioner’s findings, contends that his belief that he was settling a case, not bribing or conspiring to bribe, negates his intent to commit a crime. He claims that his brother in law, an assistant district attorney, advised him that paying, or offering restitution to, a victim was not a crime, whereas paying or offering to pay a witness was. He maintains that his seeking such advice, securing it, and relying on it obviates proof of intent to bribe. This same argument was presented to the trial judge who convicted respondent.

One of the essential elements of public bribery as set forth in La.R.S. 14:118 is a conscious knowing intent to influence a person’s conduct. State v. Duncan, 390 So.2d 859 (La.1980). In addition, one of the essential elements of the crime of conspiracy to violate a criminal law is specific intent. The issue of respondent’s intent was addressed by this Court in affirming his conviction. This Court said, “although Pitard may not have thought his actions were criminal, both he and DeKay clearly intended to influence the conduct of potential witnesses.” State v. DeKay, supra at 573.

To permit respondent to offer evidence tending to show his lack of knowledge and/or intent would be to admit evidence “inconsistent with the essential elements of the crime for which he was convicted” in direct contravention of the terms of Article 15, Section 8, paragraph 7(d) of the Articles of Incorporation of the Louisiana State Bar Association. Therefore, the testimony, insofar as it seeks to negate any knowledge or intent on the part of respondent must be disregarded.

The foregoing does not preclude inquiry into the facts surrounding the commission of the crime. But, such inquiry is only to the extent the facts reflect upon the character or quality of the criminal conduct, or a respondent’s degree of complicity therein. See Louisiana State Bar Association v. Edwards, 322 So.2d 123 (La.1975). The reference to “mitigating circumstances” in the Articles of Incorporation relates solely to circumstances which appropriately bear upon whether the crime warrants discipline, and, if so, the extent thereof. See Louisiana State Bar Association v. Loridans, 388 So.2d at 1345. This is the sole issue to be determined by this Court in a disciplinary action.

While respondent cannot introduce evidence inconsistent with the essential elements of the crime, he is allowed to show that the crime did not involve such misconduct or moral turpitude that he should be disbarred. No such showing has been made by respondent. Of the various persons involved in the conspiracy to commit public bribery, Pitard’s involvement was perhaps of the shortest duration. However that fact does not serve as any significant mitigation considering the gravity of the offense of which he was convicted. While Pitard might have rationalized the propriety of the matter by accepting, without analysis or application to the case at hand, the advice of his brother-in-law, there was damning evidence presented at trial which indicated at the least that Pitard developed serious misgivings at some point in time. The essentially uncontradicted testimony of the arresting officer was that following Pitard’s arrest and Pitard’s reading of the public bribery statute in the officer’s presence, Pitard admitted “I’m guilty; you got me; I want to get out of this mess.” Later, when asked by the officer why a practicing attorney with eleven years of experience would be involved in such a thing, respondent answered that it was a chance to make easy money.

The conduct on which respondent’s conviction was based is not only seriously criminal but also relates directly to his conduct as an attorney in the practice of law. Thus, we conclude that respondent has been convicted of a serious crime which reflects on his moral fitness to practice law and find that under the circumstances of this case disbarment is the appropriate disciplinary action. We concur with the Bar Association’s recommendation of disbarment retroactive to the date of respondent’s suspension.

Decree

For the reasons assigned, it is ordered, adjudged and decreed that Robert F. Pitard be and he is hereby disbarred from the practice of law on and after the date of his suspension by this Court. Respondent to-bear all costs.

RESPONDENT DISBARRED; COSTS TO BE BORNE BY RESPONDENT.

MARCUS, J., dissents for reasons assigned by Justice Lemmon.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

Respondent’s evidence of inexperience in criminal matters and of consulting an assistant district attorney before proceeding with the crime, although insufficient in the criminal case to defeat the guilty knowledge element of the crime of which he was convicted, established mitigating circumstances which bear on the question of penalty, especially when respondent’s offense is compared to other cases of public bribery. Accordingly, I would impose the lesser penalty of suspension.

      . La.R.S. 14:118 defines the crime of public bribery as follows:
      Public bribery is the giving or offering to give, directly or indirectly, anything of apparent present or prospective value to any of the following persons, with the intent to influence his conduct in relation to his position, employment, or duty:
      (4) Witness, or person about to be called as a witness, upon a trial or other proceeding before any court, board, or officer authorized to hear evidence or to take testimony.

      . Article 15, Section 8 of the Articles of Incorporation of the Louisiana State Bar Association set forth the rules to be applied when respondent has been convicted of a crime.

      . The thrust of the state’s case in the bribery charge rested on the testimony of the assistant district attorney that Mrs. D., the recipient of the bribe and mother of one of the victims of the alleged crimes against nature was to be called as a witness in a case involving a different child to establish DeKay's knowledge, system and intent.

      . He was introduced to DeKay on November 2, 1978 and was arrested on November 5, 1978 after giving the $5,000.00 check to Mrs. D.

      . These incriminating admissions were recited in testimony by the arresting officer. Pitard testified that he did not make those statements. Pitard gave a different interpretation about his reaction and statements to the officer upon his reading the statutes. He alleges he responded, "Well, you might be right. According to the statute, it looks like everything is there.” Pitard also testified that, prior to his arrest and his reading of the public bribery statute, he did not know what "bribe” meant nor that the crime of public bribery existed. Originally Pitard even agreed to sign a confession because he "thought a confession was a statement of facts that happened." Later however, upon the advice of his attorney, he refused to sign the statement.

      . The comparative circumstances of this crime probably motivated the sentencing judge to suspend respondent's sentence, since the public bribery of a witness in a criminal proceeding would usually warrant a period of confinement, even for the first offense.


author: PER CURIAM.

text:
    STATE of Louisiana v. Isaac WELCH, Jr.
    No. 84-KA-1530.
    Supreme Court of Louisiana.
    Jan. 18, 1985.
    Rehearing Denied March 21,1985.

    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Douglas H. Greenburg, Dist. Atty., for plaintiff-appel-lee.
    Warren Daigel, Jr., Jackie M. Marve, Indigent Defender Program, Houma, for defendant-appellant.

       DIXON, C.J., concurs in the denial. Defendant raises a "Sandstrom" error. Even defendant’s own testimony showed he intended to shoot the victim. This record does not show that the erroneous "Sandstrom" instruction undermines confidence in the reliability if the verdict.

   PER CURIAM.

Defendant’s conviction for second-degree murder in violation of La.R.S. 14:30.1 is affirmed. We agree with counsel, however, that the penalty imposed by the trial court of life imprisonment at hard'labor without benefit of “parole, probation, commutation or dimunition of sentence for a period of 40 years” is illegal and must be set aside. Cf, La.C.Cr.P. art. 882. This Court has consistently held under both La. Const. 1921, Art. V, § 10 and La. Const. 1974, Art. IV, § 5 that “[gubernatorial pardon or commutation, constitutionally permitted, may not be precluded by the terms of an imposed sentence.” State v. Williams, 338 So.2d 672, 678 (La.1976); State v. Lewis, 343 So.2d 732 (La.1977); State v. Spotville, 308 So.2d 763 (La.1975); State v. Varice, 292 So.2d 703 (La.1974).

Defendant’s sentence is therefore amended; the words “commutation or diminution of sentence” are removed. In all other respects, the sentence imposed by the trial judge is affirmed.

CONVICTION AFFIRMED; SENTENCE AMENDED AND AS AMENDED AFFIRMED.


author: DIXON, C.J.,

text:
    STATE of Louisiana v. Kevin BUTLER.
    No. 84-KK-2185.
    Supreme Court of Louisiana.
    Jan. 25, 1985.
   Denied. The State of Louisiana in the person of the prosecutor was party to this case when concurrent sentences were imposed. The prosecutor has not objected to the imposition of the concurrent sentences and has not sought to have that condition of defendant’s sentences set aside. The custodian of the defendant is obligated to see that only the sentence imposed is the sentence served. Accordingly DOC is to run Butler’s time concurrently as ordered by Judge Waltzer. See State ex rel. Almore v. Criminal District Court, 433 So.2d 712 (1983).

DIXON, C.J.,

concurs in the denial. The Department of Corrections has no standing to appeal a sentence.

MARCUS, J., concurs in the denial.


text:
    STATE of Louisiana ex rel. Johnny LAWRENCE v. SEVENTH JUDICIAL DISTRICT COURT PARISH OF CONCORDIA.
    No. 84-KH-1954.
    Supreme Court of Louisiana.
    Jan. 25, 1985.
   ORDER

Acting under the authority of Article V, Section 5(A), Constitution of 1974 and considering that the judges of the Seventh Judicial District Court are recused in the matter entitled “State of Louisiana Ex Rel, Johnny Lawrence vs. Seventh Judicial District Court, Parish of Concordia”, No. 84-KH-1954, on the docket of this court, and further considering their petition that either the recusation be lifted or that the matter be assigned to another judge, and further considering the willingness of Retired Judge Richard P. Boyd to accept such assignment,

IT IS ORDERED THAT:

The Honorable Richard P. Boyd, Retired, be and he is hereby assigned as a judge ad hoc of the Seventh Judicial District Court for the Parish of Concordia for the purpose of acting on the post-conviction petition filed in the matter entitled “State of Louisiana Ex Rel, Johnny Lawrence, vs. Seventh Judicial District Court, Parish of Concordia”, on the docket of said court.

This order shall not deprive the judges of the Seventh Judicial District Court for the Parishes of Catahoula and Concordia of their offices as judges of the Seventh Judicial District Court or of their offices as judges of any other court to which they may have been assigned by previous order of this court, nor shall it deprive Retired Judge Richard P. Boyd of his office as judge of any other court to which he may have been assigned by previous order of this court.


author: LEMMON, J.,

text:
    In re Jacqueline CARR.
    No. 85-OB-0131.
    Supreme Court of Louisiana.
    Jan. 24, 1985.
   In re Jacqueline Carr, applying for Motion to Quash Subpoena;

Denied.

LEMMON, J.,

concurs. The application was filed after time for appearance. However, applicant may be entitled to reraise the question if the subpoena is used as the basis for a contempt proceeding, and I expressly refrain from denying the application on the merits.


author: BLANCHE, J.,

text:
    MISSOURI PACIFIC RAILROAD COMPANY v. Jerry K. NICHOLSON, Elizabeth Nicholson Fischer and James W. Smither, III, as Trustees of the Leonard K. Nicholson Trust, El Tres Petroleum Corporation, and Nick H. Bruckerhoff.
    No. 84-C-2152.
    Supreme Court of Louisiana.
    Jan. 25, 1985.
   In Re Nicholson, Jerry K. et al, Nicholson, Leonard K., Applying for Writ of Cer-tiorari and/or Review; to the Court of Appeal, First Circuit, Number 83-CA-1060, 83-CA-1449; Parish of Pointe Coupee 18th Judicial District Court Div. “B” Number 17,299.

Prior Report: 460 So.2d 615

Denied.

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

BLANCHE, J.,

would grant on the issue of granting the railroad only a servitude after paying $2,474,988 for 301 acres on which they will construct $75,000,000 in improvements.


text:
    MISSOURI PACIFIC RAILROAD COMPANY v. Jerry K. NICHOLSON, Elizabeth Nicholson Fischer and James W. Smither, III, as Trustees of the Leonard K. Nicholson Trust, El Tres Petroleum Corporation, and Nick H. Bruckerhoff.
    No. 84-C-2163.
    Supreme Court of Louisiana.
    Jan. 25, 1985.
   In re Missouri Pacific RR Co., Applying for Writ of Certiorari and/or Review; to the Court of Appeal, First Circuit, Number 83-CA-1060, 83-CA-1449; Parish of Pointe Coupee 18th Judicial District Court Div. “B” Number 17,299.

Prior Report: 460 So.2d 615.

Denied.

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

BLANCHE, J.,

would grant on the issue of granting the railroad only a servitude after paying $2,474,988 for 301 acres on which they will construct $75,000,000 in improvements.


author: CALOGERO, J., MARCUS, WATSON and LEMMON, JJ.,

text:
    Anne WONG v. Steve STANLEY, D.L. Schwenneker, J.W. Gibbons, J.R. Matthews and Delta Air Lines, Inc.
    No. 84-CC-2165.
    Supreme Court of Louisiana.
    Jan. 25, 1985.
   In re Delta Airlines Inc., Applying for Writ of Certiorari and/or Review, Writ of Mandamus; Parish of Orleans Civil District Court Div. “K” Number 83-19903; to the Court of Appeal, Fourth Circuit, Number C 3129.

Denied.

CALOGERO, J.,

concurs. The trial judge has not yet ruled on the motion for summary judgment and in the district court defendant may supplement his motion for summary judgment with affidavit in support.

MARCUS, WATSON and LEMMON, JJ.,

would grant and remand to [the] Court of Appeal for a ruling on the issue of summary judgment.


text:
    Wayne BUTLER v. JEFFERSON DISPOSAL COMPANY, INC. et al.
    No. 84-C-1945.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Butler, Wayne, applying for writ of certiorari, writ of review, and mandamus to the Court of Appeal, Fifth Circuit, No. 84-CA-137; Parish of Jefferson, 24th Judicial District Court, Div. “M”, No. 267-292.

Prior report: 460 So.2d 1062.

Denied.

DIXON, C.J., and CALOGERO, J., vote to grant the writ.


text:
    ANADARCO PRODUCTION COMPANY v. CADDO PARISH SCHOOL BOARD and Margaret Smith Bryan.
    No. 84-C-1829.
    Supreme Court of Louisiana.
    Dec. 7, 1984.
   In re Caddo Parish School Board, applying for reconsideration of denied writ of November 16, 1984, 460 So.2d 610, from Second Circuit Court of Appeal, No. 16332-CA; First Judicial District Court, Parish of Caddo, No. 294507.

Denied. The judgment is final. CCP 2167(D).


text:
    ORLEANS PARISH SCHOOL BOARD v. Alvena Florence Smith, Wife of/and Thomas J. LUPO.
    No. 84-CC-2093.
    Supreme Court of Louisiana.
    Dec. 12, 1984.
   In re W.F. Wandell Developments, Inc., applying for writ of review to the Civil District Court, Parish of Orleans, No. 84-10812, Div. E, Court of Appeal, Fourth Circuit, No. C 3167.

Denied.


text:
    STATE of Louisiana ex rel. Byron PATTERSON v. CLERK OF COURT, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 84-KH-0840.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Byron Patterson, applying for remedial writs to the Criminal District Court, No. 256-326, Section “B”, Parish of Orleans.

Granted. It is ordered that relator be given a copy of his Boykin examination.


text:
    STATE ex rel. Elwood COMBS v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 84-KH-1646.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Combs, Elwood, applying for writ of mandamus, Parish of Orleans, Criminal District Court, Div. “A”, No. 283-810.

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


text:
    STATE ex rel. Troy M. OATSVALL v. Frank BLACKBURN Warden, Louisiana State Penitentiary.
    No. 84-KH-2033.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Oatsvall, Troy M., applying for writ of habeas corpus; Parish of St. Tammany, 22nd Judicial District Court, Div. “C”, No. 85752.

Granted. Evidentiary hearing ordered.


text:
    STATE ex rel. John FULFORD v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-2053.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Fulford, John, applying for motion for default judgment; Parish of Orleans, Criminal District Court, Div. “G”, No. ; 15th Judicial District Court, Div. “H”, No. 35423.

Granted. It is ordered that this case be considered by the 15th Judicial District Court.


text:
    STATE ex rel. Charles REDDICK v. Hon. Shirley G. WIMBERLY, Jr., Judge, Criminal District Court, Section “I”, Parish of Orleans, New Orleans, Louisiana.
    No. 84-KH-1807.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Reddick, Charles, applying for writ of certiorari, writ of review, Parish of Orleans, Criminal District Court, Div. “I”, No. 290048.

Granted. Application transferred to the Court of Appeal, Fourth Circuit, for its consideration.


text:
    STATE of Louisiana ex rel. Henry Leon LEE v. N. Burl CAIN, Warden.
    No. 83-KH-2214.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Henry Leon Lee, applying for writ of mandamus, to the Criminal District Court, Parish of Orleans, Nos. 287-629, 267-496.

Denied. Moot.


text:
    STATE ex rel. Cleveland PATE v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-1230.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Cleveland Pate, applying for writs of certiorari, mandamus, habeas corpus, remedial writs to the Criminal District Court, Parish of Orleans, Nos. 267-141 and 267-158.

Denied.


text:
    STATE ex rel. Saul WHITTAKER v. STATE of Louisiana, ex rel. Sheriff C. FOTI, Jr. and Sec. Paul C. Phelps of Dept. of Corrections.
    No. 84-KH-1667.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Whittaker, Saul, applying for supervisory writs, Parish of Orleans, Criminal District Court, Div. “A”, No. 293843.

Denied. Relator must first seek relief in the district court.


text:
    STATE of Louisiana v. Earl J. DAVIS, Jr.
    No. 84-KH-1730.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Davis, Earl J. Jr., applying for remedial writ to the Court of Appeal, Third Circuit, No. K84-846; Parish of Avoyelles, 12th Judicial District Court, Div. “ ”.

Denied.


text:
    STATE of Louisiana v. Robert A. GARLEPIED.
    No. 84-K-1883.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Garlepied, Robert A., applying for writ of certiorari to the Court of Appeal, Fourth Circuit, No. KA-1612; Parish of Orleans, Criminal District Court, Div. “H”, No. 293-977.

Prior report: 454 So.2d 1147.

Denied.


text:
    STATE of Louisiana v. Thomas Lee WARD.
    No. 84-KH-1895.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Ward, Thomas Lee, applying for remedial writs, Parish of Orleans, Criminal District Court, Div. “I”, No. 297-030.

Denied. Appeal not yet lodged in this Court.


text:
    STATE ex rel. Jimmy GRADY v. Edwin A. LOMBARD, Clerk of Court, Criminal District Court.
    No. 84-KH-1896.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Grady, Jimmy, applying for writ of certiorari, Parish of Orleans, Criminal District Court, Div. “D”, No. 299-347; to the Court of Appeal, Fourth Circuit, No. K-2948.

Denied. Moot.


text:
    STATE of Louisiana v. Harry Lee ALEXANDER.
    No. 84-K-1932.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Alexander, Harry Lee, applying for writ of certiorari, writ of review to the Court of Appeal, Third Circuit, Nos. 82-845, 82-845; Parish of Lafayette, 15th Judicial District Court, Div. “I”, No. 46982.

Prior report: 457 So.2d 867.

Denied.


text:
    STATE of Louisiana v. Clifford NOLAN.
    No. 84-K-1938.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Nolan, Clifford, applying for writ of certiorari, writ of review to the Court of Appeal, First Circuit, No. KA-84-0190; Parish of East Baton Rouge, 19th Judicial District Court, Div. “E”, No. 7-83-336.

Prior report: 457 So.2d 1246.

Denied.


text:
    STATE of Louisiana v. William SCHULER.
    No. 84-K-1939.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Schuler, William, applying for writ of certiorari, writ of review to the Court of Appeal, First Circuit, No. KA-84-0160; Parish of East Baton Rouge, 19th Judicial District Court, Div. “G”, No. 5-82-695.

Prior report: 457 So.2d 1240.

Denied.


text:
    STATE of Louisiana v. Oliver Ray MAYBERRY.
    No. 84-K-1940.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Mayberry, Oliver Ray, applying for writ of certiorari to the Court of Appeal, Third Circuit, No. CR83-1081; Parish of St. Landry, 27th Judicial District Court, Div. “B”, No. 37095.

Prior report: 457 So.2d 880.

Denied.


text:
    STATE of Louisiana v. Daniel Ray DIXON.
    No. 84-K-1941.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Dixon, Daniel Ray, applying for writ of review to the Court of Appeal, First Circuit, No. KA-84-0299; Parish of East Baton Rouge, 19th Judicial District Court, Div. “G”, No. 9-82-107.

Prior report: 457 So.2d 854.

Denied.


author: DIXON, C.J., and CALOGERO, J.,

text:
    STATE of Louisiana v. James FLEMING.
    No. 84-K-1950.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Fleming, James, applying for writ of review to the Court of Appeal, First Circuit, No. KA 84-0078; Parish of East Baton Rouge, 19th Judicial District Court, Div. “A”, No. 3-83-167.

Prior report: 457 So.2d 1232.

Denied.

DIXON, C.J., and CALOGERO, J.,

would grant and order argument in the Court of Appeal.


text:
    STATE of Louisiana v. Winfredo CABELLO.
    No. 84-KK-1957.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Cabello, Winfredo, applying for writ of certiorari, Parish of St. Bernard, 34th Judicial District Court, Div. “A”, No. 81-039; to the Court of Appeal, Fourth Circuit, No. K-1791.

Denied.


text:
    Charles HOPSON v. GARNER BROTHERS MASONRY CONTRACTORS, INC.
    No. 84-C-1967.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Hopson, Charles, applying for writ of certiorari and/or review to the Court of Appeal, Third Circuit, No. 83-1038; Parish of LaSalle, 28th Judicial District Court, Div. “ ”, No. 19132.

Prior report: 459 So.2d 577.

Denied.


text:
    Joyce ANDERSON v. Wilmer HINRICHS, Sophia P. Gerard and Norton Adrian Gerard.
    No. 84-C-1981.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Anderson, Joyce, applying for writ of certiorari and/or review, supervisory writs to the Court of Appeal, Fourth Circuit, No. CA-1648; Parish of Orleans, Civil District Court, Div. “C”, No. 80-11818.

Prior report: 457 So.2d 225.

Denied.


text:
    STATE ex rel. Raymond DEBOUE v. Hon. Sidney A. ORDOYNE, Judge, 17th Judicial District Court, State of Louisiana, Parish of Lafourche.
    No. 84-KH-1985.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re DeBoue, Raymond, applying for writ of certiorari and/or review, Parish of Lafourche, 17th Judicial District Court, Div. “A”, Nos. 140481, 145620; to the Court of Appeal, First Circuit, No. KW-84-

Denied.


text:
    STATE of Louisiana v. Steven J. TISZA.
    No. 84-K-1990.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Tisza, Steven J., applying for writ of certiorari and/or review to the Court of Appeal, Second Circuit, No. 16409-KA; Parish of Caddo, 1st Judicial District Court, Div. “E”, No. 123436.

Prior report: 457 So.2d 326.

Denied.


text:
    STATE of Louisiana v. Ray Wayne DANIELS.
    No. 84-K-1991.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Daniels, Ray Wayne, applying for writ of certiorari and/or review to the Court of Appeal, Second Circuit, No. 16390-KA; Parish of Caddo, 1st Judicial District Court, Div. “A”, No. 123830.

Prior report: 457 So.2d 114.

Denied.


text:
    Harold FRITH v. Nellie Sue FRITH.
    No. 84-C-1993.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Frith, Harold, applying for writ of certiorari and/or review to the Court of Appeal, Second Circuit, No. 16523-CA; Parish of Ouachita, 4th Judicial District Court, Div. “A”, No. 83-2185.

Prior report: 460 So.2d 103.

Denied.

MARCUS, J., would grant the writ.


text:
    STATE ex rel. Ken MOSLEY v. STATE of Louisiana, Sheriff Charles C. Foti (Custodian).
    No. 84-KH-2005.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Mosley, Ken, applying for writ of habeas corpus, Parish of Orleans, Criminal District Court, Div. “G”, No. 303-776.

Denied.


text:
    AURORA COMMUNITY ASSOCIATION, INC., et al. v. SOUTHWOOD PATIO HOMES, et al.
    No. 84-C-2008.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Morial, Ernest N. Mayor, New Orleans City Counsel, Gorman, Harold, Safety & Permits Director of, applying for writ of certiorari and/or review to the Court of Appeal, Fourth Circuit, No. CA-1760; Parish of Orleans, Civil District Court, Div. “E”, No. 82-14191.

Prior report: 457 So.2d 86.

Denied.

BLANCHE, J., would grant the writ.


text:
    Mrs. Harriet Thomas Prejean wife of/and Early PREJEAN v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., d/b/a A & P Food Stores.
    No. 84-C-2018.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Great Atlantic & Pacif. Tea dba, A & P Food Stores, applying for writ of cer-tiorari and/or review, Court of Appeal, Fourth Circuit, No. CA-1125; Parish of Orleans, Civil District Court, Div. “E”, No. 80-5454.

Prior report: 457 So.2d 60.

Denied.

MARCUS, J., would grant the writ.


text:
    STATE ex rel. Allen CROSBY v. Frank C. BLACKBURN, Warden et al., Louisiana State Penitentiary.
    No. 84-KH-2021.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Crosby, Allen, applying for supervisory writs, Parish of Orleans, Criminal District Court, Div. “F”, No. 271-972.

Denied.


text:
    Richard O. ALBA and Dyna Sea, Inc. v. Roland RIVIERE, Individually and d/b/a Rolands New Orleans Skin Diving School and/or New Orleans Scuba Diving School and/or Roland’s Underwater Sports of New Orleans Skin Diving School, Ltd., Mary Baird, National Association of Scuba Diving Schools, Inc. Sos Torino (Italy), Scubapro, Barakuda, Werft, P & P International Sub Aquatic Systems, Pyramid Island Resort, and Taca International Airlines, S.A.
    No. 84-CC-2022.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
    Reconsideration Denied Jan. 14, 1985.
   In re Alba, Richard et al., Dyna Sea Inc., applying for writ of certiorari and/or review to the Court of Appeal, Fourth Circuit, Nos. C-1582, C-1615, C-1657; Parish of Orleans, Civil District Court, Div. “C”, No. 82-10241.

Prior report: 457 So.2d 33.

DENIED.

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