author: LEMMON, Justice. WATSON, J., DIXON, Chief Justice.

text:
    LAFAYETTE PARISH SCHOOL BOARD v. MARKET LEASING CO., INC.
    No. 82-C-0306.
    Supreme Court of Louisiana.
    Feb. 4, 1983.
    On Rehearing Oct. 17, 1983.
    Rehearing Denied Nov. 18, 1983.
    H. Purvis Carmouche, Jr., Mouton, Roy, Carmouche, Bivins, Judice & Henke, Lafayette, for applicant.
    Nan M. Landry, Alfred Smith Landry, Landry, Watkins & Bonin, New Iberia, Riley J. Boudreaux, Bobby S. Gilliam, Arthur R. Carmody, Wilkinson & Carmody, Shreveport, for respondents.
   LEMMON, Justice.

This is an action to collect a “sales tax” allegedly due by defendant on the long-term lease of vehicles to lessees who are domiciled in Lafayette Parish. The primary issues are (1) whether any additional tax is due to the Lafayette Parish School Board on leases of vehicles, when the Iberia Parish lessor had purchased specific vehicles for already negotiated long-term leases with Lafayette Parish domiciliarles and had paid a sales tax as purchaser on the sales of the vehicles, and (2) whether the lease transactions in this case are leases within Lafayette Parish so as to be subject to tax under the parish ordinance.

I.

Defendant, a corporation domiciled in Iberia Parish, is in the business of renting automobiles on long-term leases. When a new lease is obtained, defendant purchases an automobile for the specific lease and obtains a title as owner of the vehicle, remitting the total (state and parish) sales tax to the Collector of Revenue. All lease transactions take place in Iberia Parish, and defendant does not have an office or any salesmen operating in Lafayette Parish. The registration license issued to defendant by the state contains the name and address of the lessee. Although there was a Lafayette Parish ordinance requiring lessors to collect a tax on leases “within this Parish”, defendant did not collect from the lessee or remit to the Lafayette Parish School Board any taxes on payments on leases to domicili-arles of Lafayette Parish.

When the Lafayette Parish School Board attempted to collect a tax from defendant on the monthly payments under leases of vehicles rented to Lafayette domiciliaries, defendant resisted on several grounds. The Board then filed this action, asserting that defendant should have collected and remitted the taxes. After trial on the merits, the trial court dismissed the suit, finding that the local tax collected on the sale was incorrectly remitted to the Board by the Collector of Revenue and that the Board is “entitled to no more”. The court noted that a decision in favor of the Board “would result in taxing both the sale and the leasing of the vehicle”.

The court of appeal affirmed, holding that defendant had paid the Board a tax not due and that defendant’s debt to the Board was extinguished by confusion. 407 So.2d 23. We granted certiorari. 412 So.2d 87.

II.

In recent years, both state and local governments have enacted sales taxes which basically impose a tax not only on (1) the sale at retail of tangible personal property, but also on (2) the use or consumption, the distribution, and the storage for use or consumption of such property, (8) the lease or rental of such property, and (4) the sale of services.

Under present state law, La.R.S. 47:302 A imposes a tax on the sale or the use of each item of tangible personal property sold at retail or used in the state; Section 302 B imposes a tax on the lease or rental of each item of tangible personal property within the state; and Section 302 C imposes a tax on sale of services within the state.

At the local level in Lafayette Parish, Ordinance No. 1, adopted in 1965 by the Lafayette Parish School Board pursuant to La.R.S. 33:2737, imposes a tax upon the lease or rental of tangible personal property within the parish at the rate of 1% of the monthly lease or rental payments made or agreed to be made by the lessee. Section 2.01(4). The ordinance, substantially tracking the state statute, also imposes a tax on the sale at retail and the use of tangible personal property, as well as on sales of services.

The Legislature, apparently realizing that the imposition of a tax on several different transactions involving the same property may result in some unintended duplication, has enacted many exclusions and exemptions from state taxes as to specific items. Pertinent to the tax on leases, La.R.S. 47:305.23 A exempts lessors or lessees of automobiles and trucks from the payment of tax on the rental or lease payments, when the lease term is six months or more and a tax has been paid to the state on the sales price of the vehicle. However, the exemption expressly does not apply to taxes on lease or rental payments which have been imposed by school boards or other local taxing authorities. La.R.S. 47:305.23 B. Thus, as to the tax on lease or rental payments imposed by the ordinance enacted by the Lafayette Parish School Board, there is no exemption for long-term leases of vehicles on which taxes have already been paid on the sale or use of the vehicle, and there is no provision for deduction of previously paid taxes on the sale or use of the vehicle as a credit on the tax due the Board on the lease of the vehicle.

As to collection of the tax, La.R.S. 47:303 provides that the tax shall be collectible from the dealer, as defined in Section 301, except the tax imposed by Section 302 A (sales or use tax) on vehicles, which the vehicle commissioner collects at the time of the application for registration license or certificate of title. The dealer in turn is authorized to collect the tax from the purchaser or consumer (except for sales or use tax on motor vehicles) as an amount added to the sales price or charge, and the dealer who fails, neglects or refuses to collect the tax is himself liable to the state for the tax. The Lafayette ordinance contains similar provisions. See Sections 2.03, 4.01 and 4.06.

Thus, both the state and local laws contemplate that there are two taxable transactions when a party purchases a vehicle and then enters into a long-term lease of that vehicle. Moreover, the two taxes are imposed on two different parties. In the first transaction (the sale) the tax is imposed on the purchaser (who ultimately becomes the lessor), while in the second transaction (the lease) the tax is imposed upon the lessee. Finally, the sales tax is a onetime levy on the amount of the sale, whereas the lease tax is a recurring levy on the amount of each monthly rental installment paid or agreed to be paid by the lessee. See La.R.S. 47:302 B(2) and Ordinance No. 1, Section 2.01(4). Of course, the amount of the tax on the lease is considerably different from that on the sale, depending on the amount of monthly rental installments and the term of the lease.

On the basis of all these considerations, we conclude that the lower courts erred in holding that the Board could not collect a tax from defendant on leases of vehicles merely because defendant had already paid a tax on the retail sale of the vehicle.

Nevertheless, for reasons different from those expressed by the lower courts, we conclude that the Board is not entitled to collect the tax on the lease payments. We hold that this is not a lease within Lafayette Parish and that a parish or city school board, in the absence of express authorization from the Legislature, cannot impose a tax on an out-of-parish lease.

The Board argues, however, that the location of the leased property determines where the act of leasing takes place. On this point the Board cites Central Marine Service, Inc. v. Collector of Revenue, 162 So.2d 81 (La.1964). In the Central Marine case, the Collector sought to collect a tax on leases of barges, but only insofar as the barges were used by plaintiff’s customer on waterways within the state. The court held that the tax was not upon the right to use the waterways or upon the use of the barges, but was upon the act of leasing in combination with the possession or use by the lessee within the state.

The Central Marine decision (which involved lessors who were Louisiana domicili-aries and leases which were confected within the state) did not purport to answer the question presented in this case, in which the Board is attempting to collect a lease tax from an out-of-parish lessor solely because the lessee is domiciled in Lafayette Parish.

The leases of the vehicles in this litigation were confected in Iberia Parish, where the lessor is domiciled. The lease installments were paid to the Iberia Parish domiciliary, who enjoyed any profits on the transaction. The lessor had no office and no salesmen or agents operating in Lafayette Parish. Although each lessee was domiciled in Lafayette Parish, the vehicles could be used anywhere, in any parish in the state or outside the state.

Furthermore, a lease tax (like a sales tax) is a tax on the transaction and is not a tax on the possession or use of the property. Therefore, the determination of the location of the act of leasing for lease tax purposes should be based on considerations similar to the determination of the location of the act of selling for sales tax purposes. In the sales tax situation, the local tax on the sale of tangible personal property (except for vehicles), while imposed on the buyer, must be collected by the seller who is in the business of making retail sales within that parish. For sales tax purposes, the location of each sale is the parish in which the transaction takes place, regardless of the domicile of the buyer. Similarly, the local tax on the lease of tangible personal property, while imposed on the lessee, must be collected by the lessor who is in the business of making leases within that parish. For lease tax purposes, the location of each lease is the parish in which the transaction takes place, regardless of the domicile of the lessee. We accordingly hold that the leases at issue were not leases “within this Parish”, as contemplated by the Lafayette ordinance, and that defendant does not owe any taxes on the lease payments.

For these reasons, the judgments of the lower courts are affirmed.

WATSON, J.,

dissents, being of the opinion that the lease is “in the Parish” within the contemplation of the Lafayette Parish ordinance.

ON REHEARING

DIXON, Chief Justice.

The plaintiff, Lafayette Parish School Board, initiated this action to collect from the defendant, Market Leasing Company, Inc., a lessor of automobiles, domiciled and doing business in Iberia Parish, a tax on the proceeds from automobile leases whenever the lessee is a resident of Lafayette Parish. The lessees of the automobiles were not made defendants.

On October 14, 1980 Lafayette Parish filed a rule to show cause why Market Leasing should not be ordered to cease doing business until such time as it has paid delinquent lease taxes, interest, penalties and costs. After trial on the merits the court denied the school board’s demands, finding that the board had received the full 2% in taxes that it was demanding in this lawsuit.

The court of appeal affirmed the judgment of the district court. We granted writs on application of the school board. Lafayette Parish School Board v. Market Leasing Co., Inc., 412 So.2d 87 (La.1982). Our original opinion was rendered on February 4,1983 and this rehearing was granted on March 24, 1983.

Market Leasing engages in the business of renting automobiles on long-term leases. It purchases automobiles only after it has a leasing arrangement with a customer, and when registering title to the vehicle, it identifies the lessee on the certificate of registration. It then pays to the vehicle commissioner a sales tax at a rate equal to the total of the state and local sales taxes. Market Leasing has not paid any taxes on its leases.

The school board audited the files of Market Leasing and determined that $2,352.68 in back taxes was due for the period April, 1977 through April, 1980. The lower courts found that the school board had received sales or use taxes from the defendant and was entitled to no more.

In our original opinion we correctly held that “the lower courts erred in holding that the Board could not collect a tax from defendant on leases of vehicles merely because defendant had already paid a tax on the retail sale of the vehicle.4 ” Footnote 4 in that opinion reads:

“Upon purchasing each vehicle, defendant correctly paid state and local taxes on the retail sale to the Collector of Revenue [vehicle commissioner as agent for the Collector of Revenue]. However, the question of whether or not the Collector remitted the local tax portions to authorities of the proper parish is not at issue in this action to collect a tax on a separate and distinct transaction involving the lease of the vehicle.”

We continue to subscribe to that holding and to its reasoning that:

“... both the state and local laws contemplate that there are two taxable transactions when a party purchases a vehicle and then enters into a long-term lease of that vehicle. Moreover, the taxes are imposed on two different parties. In the first transaction (the sale) the tax is imposed on the purchaser (who ultimately becomes the lessor), while in the second transaction (the lease) the tax is imposed upon the lessee. Finally, the sales tax is a one-time levy on the amount of the sale, whereas the lease tax is a recurring levy 'on the amount of each monthly rental installment paid or agreed to be paid by the lessee. See La.R.S. 47:302B(2) and Ordinance No. 1, Section 2.01(4). Of course, the amount of the tax on the lease is considerably different from that on the sale, depending on the amount of monthly rental installments and the term of the lease.”

The lower courts were perhaps confused by the legislation governing state taxation at that time. The state tax was levied upon either the sale of vehicles or their lease, but not both, if the lease is for a period longer than six months.

Under the state taxing law:

“Lessors or lessees of automobiles or trucks shall be exempt from the payment of a sales or use tax on the rental or lease payments on such vehicles provided that the term of the lease is for a period of six months or more and further provided that the sale and use tax imposed on the sales price or cost price of such vehicle has been paid to the state of Louisiana at the time such vehicle was titled and/or transferred into the state of Louisiana. ...” R.S. 47:305.23 A (repealed by Acts 1982, No. 415 § 3 and replaced' by R.S. 47:305.36, Acts 1982, No. 415 § 1 which taxes the lease but not the sale).

However, that law continued:

“The exemption from the payment of a sales or use tax on the rental or lease payments on such vehicles does not apply to such taxes authorized and imposed by any school board, municipality, or other local taxing authority, notwithstanding any other provisions of law to the contrary, ...” R.S. 47:305.23 B (repealed by Acts 1982, No. 415 § 3).

While the state will tax the purchase and lease transactions only once, the local taxing authorities may tax the transactions separately. This “double taxation” is expressly authorized by law.

The school board’s entitlement to tax revenue from the sale is not at issue in this case, despite the lower courts’ consideration of that question. However, even if the school board were not entitled to the sales tax, its demand would not be extinguished by confusion. The extinction by confusion contemplates the unity of the qualities of debtor and creditor with respect to the same debt. Ranson v. Voiron, 176 La. 718, 146 So. 681, (1933); Waldauer v. Harris, 161 La. 10, 108 So. 107, (1926). Two very separate debts are discussed by the lower courts. One debt is a tax on the proceeds of leases; the other is a tax on the sale price of the vehicle.

R.S. 33:2737 authorizes “... any parish or city school board in the state ... to levy and collect a sales tax not in excess of one per cent ... upon the sale at retail, the use, the lease or rental, the consumption and storage for use or consumption of tangible personal property and on sales of services in the parish or city ...” Pursuant to this authorization, the Lafayette Parish School Board promulgated an ordinance imposing the sales tax.

Section 4.02 of that ordinance requires “[e]very dealer outside the Parish making sales of tangible personal property for distribution, storage, use or other consumption in this Parish ... [to] at the time of making sales, collect the tax imposed by this ordinance from the purchaser.” The ordinance defines sales to include “any transfer of title or possession, or both, exchange, barter, lease, or rental, conditional or otherwise, in any manner or by any means, whatsoever, of tangible personal property for a consideration.” Sales and Tax Ordinance, Section 1.17.

The taxable incident is not the isolated act of signing the lease agreement, but is the act of the lessor sending his property into Lafayette Parish and collecting monthly rentals for the use of his property by Lafayette Parish residents. This transfer of possession for a consideration is taxable by the Lafayette Parish School Board.

The act of leasing includes the possession by the lessee, and continued contact between lessor and lessee to ensure that the automobile is “properly maintained and protected against waste; that it is kept in an acceptable state of repair; that it is covered by insurance sufficient to protect the interest of the owner; ... that the rents ... are paid by the lessee as they periodically accrue under the terms of the lease.” Kirk v. Western Contracting Co., 216 So.2d 503, 507 (Fla.Dist.Ct.App. 1st Dist.1968), cert. den. 225 So.2d 535 (Fla.1969).

The lessor has no office and no salesmen or agents operating in Lafayette Parish, but it does have personal property in the parish. To protect its property interests, the lessor could avail itself of “all the protections and privileges accorded ... domici-liarles — police and fire protection, access to ... courts, etc.” Collector of Revenue v. Wells Fargo Leasing Corp., 393 So.2d 1244, 1245 (La.1981).

This court has, in the past, upheld state taxation on proceeds from lease agreements signed outside of the state when the leased property was used inside Louisiana. McNamara v. U.O.P., Inc., 389 So.2d 741 (La.App.1980), writ den. 396 So.2d 898 (La.1981); Saenger Realty Corp. v. Grosjean, 194 La. 470, 193 So. 710 (1940).

In our earlier opinion, we recognized that the leased vehicles “could be used anywhere, in any parish in the state or outside the state.” To avoid multiple taxation, it is necessary to identify one situs for the act of leasing. The “act of leasing” takes place where the vehicle is kept; that is, where the lessee can be located if lease payments are missed or if the leased property is damaged. The parish declared by the lessee as his domicile, residence or business address, the place where he can be found, is entitled to receive the tax on the proceeds from the lease. See Central Marine Service, Inc. v. Collector of Revenue, 162 So.2d 81 (La.App.1964), writ refused 246 La. 355, 164 So.2d 353 (1964).

Market Leasing has objected to the school board’s attempt “to extend its taxing authority beyond the parish boundaries.” We have determined that Market Leasing owns property in Lafayette Parish, establishing a sufficient nexus to constitutionally support the imposition of the duty to collect and pay taxes to Lafayette Parish. National Geographic Society v. California Board of Equalization, 430 U.S. 551, 558-9, 97 S.Ct. 1386, 1391, 51 L.Ed.2d 631 (1977).

By engaging in a business that allows its property to be transported into other jurisdictions, and by availing itself of the services provided by those jurisdictions, Market Leasing subjects itself to their taxing authority. National Geographic Society v. California Board of Equalization, supra at 559, 97 S.Ct. at 1391. The school board may require Market Leasing to collect the tax on the lease proceeds from the act of leasing vehicles located in Lafayette Parish. Market Leasing becomes liable for the tax only if it fails or refuses to collect the tax from the lessee. It then has recourse against the lessee for the tax paid.

Market Leasing contends that the lease tax sought to be imposed by the school board is unconstitutional because, when enacted by Acts 1964, Extra Session, No. 29, the title of the act did not include a reference to a tax on the lease or rental of property. Article 3, § 15(A) of the Louisiana Constitution requires that every bill “be confined to one object ... and contain a brief title indicative of its object.”

“The purpose of the title-body clause is to give the members of the legislature and the public fair notice of the scope of the proposed legislation, and to prevent the joining in one act of incongruous and unrelated matters.... ” Louisiana Independent Auto Dealers Assn. v. State of Louisiana, 295 So.2d 796, 802 (La.1974).

“A legislator should not have to consider the validity of two unrelated objects in deciding how to vote on a bill.” State v. Cooper, 382 So.2d 963, 965 (La.1980).

“ ‘If all the parts of a statute have a natural connection and reasonably relate, directly or indirectly, to one general and legitimate subject of legislation, the statute is not considered as being open to the objection of plurality....’” State v. Cooper, supra at 965.

“It is not the purpose of this article [La. Const, art. 3, § 15(A) ] to require that the title be an index to the contents of the act ...” Southern Hide Co. v. Best, 176 La. 347, 352, 145 So. 682, 683 (1932).

We find the title of the act to be sufficient to give notice of the scope of the proposed legislation. The title indicates that the act’s purpose is to “authorize parish or city school boards ... to levy and collect a sales and use tax ...” Acts of Extra Session 1964, No. 29. Section 2737 of Louisiana Revised Statutes Title 33, so enacted, reads in subsection B: “The sales tax so levied ... shall be levied upon the sale at retail, the use, the lease or rental, the consumption and storage for use or consumption ...” R.S. 33:2737 B. This is not a lease tax separate from the sales tax, but a sales tax on both sales and leases.

By contrast, Acts 1948, No. 9, enacting the state tax, creates a tax on the sale and use of property in its § 2(a) and creates a tax on the lease or rental of property in its § 2(b). It is not inconsistent that the title of that act refer to both the sales tax and the separate lease tax.

Market Leasing has argued that the school board lacks interest to sue for a 2% tax on the leases. It claims that the authorization, if valid, only allows the school board to collect a 1% tax. The school board claims to be the sales and use tax collecting authority for all of the political subdivisions within the Parish of Lafayette.

Other political subdivisions are authorized by Title 33 of the Louisiana Revised Statutes to collect sales taxes.

There is unrefuted trial testimony that the school board has entered into joint service agreements with these other political subdivisions to enforce the sales tax ordinances of those jurisdictions. Neither party in this litigation presented evidence authorizing or prohibiting this agreement. This court is without a factual basis for invalidating this collection procedure in place in Lafayette Parish since 1975.

There remains some controversy over the exact amount of the tax debt. At the trial, the audit conducted by the school board was challenged by Market Leasing. No determination of its accuracy was made by the trial court because of the reasons for judgment given by the trial court.

For these reasons, the judgments of the district court and the court of appeal are set aside, and there is now judgment in favor of the Lafayette Parish School Board and against the defendant Market Leasing Company, Inc. for a 2% tax on leases as provided by the ordinance and the joint service agreements; the case is remanded to the trial court for a determination of the amounts due; the defendant is cast for all costs.

      . Section 2737 A authorizes a parish school board to levy a tax not in excess of 1% within the parish. Section 2737 B provides that the tax “shall be levied upon ... the lease or rental ... of tangible personal property ... in the parish”.

      . La.R.S. 47:302 A(2), levying a use tax as a complement to the sales tax levied by Section 302 A(l), expressly provides that “there shall be no duplication of the tax”.

      . La.R.S. 47:302 D provides, for example, that sales or use tax which is paid to the state on certain new motor trucks, tractors, trailers and semi-trailers may be deducted as a credit against tax due on the rental of each such item, until the amount paid as sales or use tax has been exceeded. Section 2.02 of the Lafayette ordinance contains a similar credit provision.

      . Upon purchasing each vehicle, defendant correctly paid state and local taxes on the retail sale to the Collector of Revenue. However, the question of whether or not the Collector remitted the local tax portions to authorities of the proper parish is not at issue in this action to collect a tax on a separate and distinct transaction involving the lease of the vehicle.

      . La.R.S. 33:2737 authorizes a tax to be “levied upon the ... lease or rental ... of tangible personal property ... in the parish”. Section 2.01 of the Lafayette ordinance only purported to impose a tax on “the lease or rental ... of tangible personal property ... within this Parish”.

      . Of course, most sellers at retail have a fixed business location within the particular parish, and most retail sales occur at that location.

      . Because we conclude that the Board is attempting to collect a tax on transactions beyond those authorized by the enabling statute and by the local ordinance, it is unnecessary to address the issue of whether the Board has legislative jurisdiction to enact an ordinance which requires an out-of-parish lessor to collect a tax on leases to parish domiciliaries. For a recent discussion of the constitutional requirements of a state law which requires an out-of-state seller to collect a use tax on sales to residents of the taxing state, see National Geographic Soc. v. California Bd. of Equalization, 430 U.S. 551, 97 S.Ct. 1386, 51 L.Ed.2d 631 (1977).

      . Section 4.09 of the Lafayette Parish School Board Sales and Use Tax Ordinance requires the purchaser [lessee] to pay the tax due directly to the taxing authority should the dealer [lessor] fail to collect the tax. Market Leasing might then be subrogated to the parish’s right to collect the tax from the lessee.


source: Caselaw Access Project

author: WATSON, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Marilyn Jean DYKES and James Douglas Smith.
    No. 82-KA-1656.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Abbott Reeves, Asst. Dist. Atty., for plaintiff-appellee.
    Ted Brett Brunson, Lowther & Boone, for defendants-appellants.
   WATSON, Justice.

Defendants, Marilyn Jean Dykes and James Douglas Smith, were tried jointly for cruelty to juveniles in violation of LSA-R.S. 14:9s. Defendants were convicted of the charge by a unanimous six person jury and both were sentenced to four years at hard labor. Defendants have appealed their convictions and sentences.

FACTS

Christopher Dykes, age three at the time of trial on February 16 and 17, 1982, is in the legal custody of his father. Christopher was born March 28,1978, and had his fourth birthday the month after trial.

Between June 1 and June 14 of 1981, Christopher was staying with his mother, Marilyn Dykes. At that time, Marilyn was living with James Douglas Smith. Christopher’s father, Dale Dykes, picked up his son on June 14 and described him as dirty and unwashed, with his clothes “full of diarrhea” (Tr. 115). According to the father, Christopher complained about some sores. While having his bath, the child said “James” had burned him with a cigarette lighter (Tr. 116). On the following morning, a Monday, Dale Dykes’ mother and sister-in-law took the child to Dr. Sandifer.

Dr. Don L. Sandifer, a physician in family practice, testified that he had seen Christopher on December 18 and 19, 1979, and again on June 15, 1981. The child’s complaints on the last visit were diarrhea and skin lesions on the body. Dr. Sandifer did not recall any complaint of child abuse. His records describe the child as having diarrhea and infected skin lesions of unknown etiology, which could have resulted from impetigo, insect bites, bums, ringworm, abrasions or dermatitis. In his practice, Dr. Sandifer sees a lot of accidental burns.

On June 16, Christopher was taken to the DeSoto General Hospital emergency room, where the physician on duty noted that the lesions appeared to be “a few days old”. (S-5) Christopher’s family physician is shown on the report as Dr. Buey.

Subsequently, Dr. Roy S. Buey saw Christopher on June 17. Dr. Buey testified that he is a general surgeon trained in burn therapy. When he saw Christopher, the boy was accompanied by his father and a deputy sheriff. There was a perfectly circular lesion on each leg, one on the right knee and one on the left thigh. They could have been inflicted with a cigarette or car type lighter but might have resulted from other causes. Dr. Buey believed another circular lesion in the inguinal or groin area (S-2) was definitely a burn, a second degree injury. The injuries were a week to ten days old. The lesion on the groin was not as well healed as the others. Dr. Sandifer said he would not disagree with Dr. Bucy’s diagnosis of the lesion in the groin area as a second degree burn.

During the period from June 1 to June 14, Dale Dykes had had his wife and her paramour under observation in order to obtain grounds for a divorce. He admitted that he had never known his wife to physically harm their son. There has been no visitation between Christopher and his mother since June of 1981.

After an examination in chambers, which is unavailable for review, the trial court concluded that Christopher was a competent witness. LSA-R.S. 15:469.

At trial, Christopher indicated he knew the difference between the truth and a lie and was telling the truth, but did not explain the difference.

Christopher testified that “James burned me” (Tr. 132). Although Christopher initially refused to point out James Smith in the courtroom, he later did so. He testified contradictorily when asked if anyone was with James when the burn was inflicted, saying yes, and then no.0 Christopher said he had been burned by a cigarette lighter and identified a Bic lighter as being like the one that was used. According to the child, the knee sore resulted from a fall off a tricycle. “James” was pushing him on the tricycle when he fell and injured his knee. (Tr. 135). Asked to identify James, Christopher again pointed to James Smith. Christopher indicated that James had burned him on the leg, the toe and both hands. Christopher had had mosquito bites while he stayed with his mother which he had scratched until they turned into sores.

According to Christopher, his father had told him that James burned him. Christopher indicated that he had been told what to say at trial by the prosecuting assistant district attorney and his daddy.

A neighbor of Marilyn Dykes," Linda Price, testified that she saw Christopher every day during the two weeks he stayed with his mother because Christopher and her five year old daughter were inseparable; played together from morning until bedtime; and often spent the night together. She has four children; one, an eighteen year old, does not live with her. According to Ms. Price, Christopher was well cared for and bathed daily. Christopher did have some insect bites and also a concrete burn where he had scraped his knee when he fell off a tricycle. Her daughter Amy was with him at the time and also got a scrape. She identified exhibits S-l and S-3 as showing the infected insect bites and S-4 the knee sore. Marilyn had treated the bites with Calomine lotion. Ms. Price was unfamiliar with the lesion in the groin area, but said that Christopher was a happy child and had not complained to her during the two weeks that he was a constant companion of her daughter. Ms. Price had never seen Marilyn do anything to harm Christopher and had never seen James Smith mistreat the child. Her own children all loved James Smith.

Linda Price’s son, James Crawford, said that he saw Christopher every day during the two weeks the boy was with his mother. James Crawford does not live with his mother and was visiting her and his sisters during the summer. He was pushing Christopher on a tricycle one day when Christopher skinned his right knee and elbow. The only complaints Christopher ever made were about the scrapes he received in the tricycle fall. James Crawford rode in the van with Marilyn Dykes when she returned Christopher to his father. Marilyn changed Christopher’s clothes just before they met his father. Christopher cried about having to leave his mother and initially refused to get in the car with his father. Dale Dykes was quoted as telling Marilyn that she was not going to see the child any more before he and Christopher drove off. Crawford confirmed that Christopher had had diarrhea during the visit with his mother.

Mark A. Campbell, who knows Marilyn Dykes only slightly, saw her meet her former husband to transfer Christopher; the child seemed happy; and his mother changed his clothes in the van just before the father arrived.

Benita Smith, the reconciled wife of James Smith, testified that the couple has four children, ranging in age from five years to nine months. To her knowledge, James has never mistreated his children or any others. James was with her visiting the children when the warrant for his arrest was served. According to Benita Smith, Dale Dykes drove up shortly afterward and said: “he had told him he would get even with him.” (Tr. 169)

Marilyn Dykes testified that she had never seen the sore in the groin area depicted in Exhibit 2, and Christopher did not have a sore that large during his stay with her. She had seen the sore on the child’s knee and testified that the child had had mosquito bites. She had treated his diarrhea with a doctor’s prescription. According to Marilyn, James only stayed at her apartment a few weeks. During that time, he treated Christopher well and the two had a good relationship. When her husband picked up Christopher he said, “I will see to it that you never see the baby again.” (Tr. 176) She confirmed that Christopher cried about leaving her.

James C. Smith testified that he has been working for the same employer for three years. He had a felony conviction for burglary in 1975, pled guilty, served his probationary period successfully, and was pardoned. He works six days a week at his job and was at Marilyn’s house during the day only on Sundays. He denied having burned or hurt Christopher and testified that he had never seen the sore on the groin,

mS- Qarla Gaston testified in rebuttal Giat Christopher was not closely supervised mother.

ISSUE

The question is whether the testimony of three year old Christopher Dykes and the other circumstances were sufficient to prove defendant’s guilt.

CONCLUSION

Since Dr. Buey said that the second degree burn on the groin was at least a week old, the injury apparently occurred while Christopher was in the care of his mother. However, the only other evidence linking these defendants to that injury is that of Christopher Dykes.

At the time of the alleged offense, Christopher Dykes was approximately three years, two and a half months old. At the time of trial he was three years, ten and a half months old. The youngest child ever found competent to testify in Louisiana was four years old. State v. Arnaud, 412 So.2d 1013 (La., 1982). In Arnaud, the child’s testimony is much more positive and convincing than that elicited from Christopher Dykes. “[NJature does not always impart the same maturity ... at the same age.” LSA-C.C. art. 34. The child’s testimony was not the sole evidence in Arnaud. In State v. Noble, 342 So.2d 170 (La., 1977), a four year old victim testified at the age of five about her rape. However, the child’s responses in that case “demonstrated understanding and intelligence”. 342 So.2d at 172. The child’s physical condition and the circumstantial evidence strongly corroborated her testimony.

Courts are lenient in allowing the testimony of very young witnesses in child abuse cases because, quite often, no other evidence is available. However, children of three years or less are not generally competent witnesses. See Oliva v. Baum, 194 So.2d 319 (Dist.Ct.App.Fla., 1967); Moser v. Moser, 82 S.D. 149, 143 N.W.2d 369 (1966); People v. Willson, 401 Ill. 68, 81 N.E.2d 485 (1948). In Love v. State, 64 Wis.2d 432, 219 N.W.2d 294 (1974), a three year old testified, but there was no contemporaneous objection. The court stated that the child’s testimony alone would not have sustained a conviction. In Kelluem v. State, 396 A.2d 166 (Del., 1978), a three year old child who was molested by a babysitter testified at trial when he was four years, five months old. Defendant was convicted of attempted sodomy in a bench trial solely on the basis of that testimony. In Kelluem, there was expert testimony about the child’s capacity, and his own testimony established that he understood the meaning and necessity of telling the truth. The time interval between the crime and the trial was only five months.

There are some cases of testimony by four year old children. See Miller v. State, 391 So.2d 1102 (Ala.Cr.App.1980); People v. Edgar, 113 Mich.App. 528, 317 N.W.2d 675 (1982); Fields v. State, 500 S.W.2d 500 (Tex.Cr.App.1973); State v. Thrasher, 233 Kan. 1016, 666 P.2d 722 (1983); State v. Tuffree, 35 Wash.App. 243, 666 P.2d 912 (1983); Hill v. Skinner, 81 Ohio App. 375, 79 N.E.2d 787 (1947); Jackson v. State, 239 Ala. 38, 193 So. 417 (1940); In re Lewis, 88 A.2d 582 (D.C., 1952); State in Interest of R.R., 398 A.2d 76, 79 N.J. 97 (1979); State v. Olson, 113 Wis.2d 249, 335 N.W.2d 433 (1983); State v. Beeks, 311 N.W.2d 496 (Minn., 1981). In Olson and Beeks there was no objection to the competency of the child witnesses. “[A]t the age of 5 the utmost limit would be ordinarily reached, unless extraordinary development of the mental and religious faculties should be shown, to take the case out of the ordinary course of nature.” State v. Michael, 37 W.Va. 565, 16 S.E. 803 (1893). See State v. Jones, 360 Mo. 723, 230 S.W.2d 678 (1950).

The colloquy here between the trial judge and Christopher Dykes, which determined his competency as a witness, is not available. This transcript concerns the crucial issue at trial, the credibility and competency of Christopher as a witness. While the conclusion of our esteemed colleague of the trial court commands our respect, his decision must be reviewed on appeal, and due to the lack of a transcript of the examination in Chambers, Christopher’s competence must be considered only on the basis of his trial testimony.

The transcript does not establish that Christopher understood the meaning and importance of telling the truth. Christopher identified defendant James Smith as the one who had pushed him on the tricycle when he hurt his knee, but this testimony was directly contradicted by the testimony of James Crawford. Crawford saw Christopher only during a summer visit with his mother, and appears to be a completely credible and disinterested witness.

Christopher was extremely reluctant to identify James Smith in the courtroom. It is entirely possible that James Smith and James Crawford were confused in the child’s mind. During his stay with his mother, he saw more of James Crawford, who was there daily, than he did James Smith, who worked every day except Sunday.

Christopher identified the assistant district attorney and his father as the people who had told him what to say at trial. The state made no attempt to rehabilitate Christopher as a witness. Very young children “repeat with phonographic precision the things that have been told them to say, be they true or false. Neither reason nor authority justifies the admission of such witnesses .... ” State v. Michael, supra, 16 S.E. at 804.

Although Christopher probably received a second degree burn while staying with his mother and her paramour, it is clear from the evidence that he was continuously with his five year old playmate, her sisters, and her older brother. The injury could have occurred accidentally. The child’s testimony alone cannot support the convictions. Love v. State, supra. On the record presented, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could not have found beyond a reasonable doubt that defendants were guilty of the crime of cruelty to juveniles. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Every reasonable hypothesis of innocence was not excluded. LSA-R.S. 15:438.

For the foregoing reasons, the convictions and sentences of defendants are reversed and vacated. It is ordered that defendants be discharged.

REVERSED; SENTENCES VACATED; DEFENDANTS DISCHARGED.

       Bailes, J. sitting for Justice Marcus.

      . LSA-R.S. 14:93 provides:
      “Cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect, by anyone over the age of seventeen, of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child. Lack of knowledge of the child’s age shall not be a defense.
      “Whoever commits the crime of cruelty to juveniles shall be fined not more than one thousand dollars, or imprisoned for not more than ten years, with or without hard labor, or both.”

      . “I can only assume that, through error, this tape was erased upon completion of the transcript of the trial. * * * Joann S. Wright, Court Reporter.”

      . LSA-R.S. 15:469 provides:
      “Understanding, and not age, must determine whether any person tendered as a witness shall be sworn; but no child less than twelve years of age shall, over the objection either of the district attorney or of the defendant, be sworn as a witness, until the court is satisfied, after examination, that such child has sufficient understanding to be a witness.”

      . “Q. Chris?
      “A. What.
      “Q. You know what you are here for, you are going to tell the truth, aren’t you?
      “A. Yes.” (Tr. 130)

      “Q. Chris, do you know the difference between the truth and a lie?
      “A. Uh huh. (Yes)
      “Q. Are you telling the truth today?
      “A. Uh huh. (Yes)
      “Q. Are you telling the truth when you say that James burned you?
      “A. Uh huh. (Yes)
      “Q. Is it bad to tell a lie?
      “A. Uh huh. (Yes)
      “Q. Do you get in trouble when you tell lies?
      “A. Uh huh. (Yes)” (Tr. 137-138)

      . Such a lighter would probably not have produced a perfectly circular lesion.

      . There were no sores on the toe or hands.

      . “Q. Chris, tell me something, did anybody tell you what to say?
      “A. Uh huh. (Yes)
      “Q. Who?
      “A. (Pointed to Mr. Herman Lawson)
      “Q. When did he tell you what to say, it wasn’t when I was with you yesterday day, (sic) was it?
      “A. (Looking at the widow and didn’t answer)
      “Q. Are they still there?
      “A. Uh huh. (Yes)
      “Q. Turn around here now. Did your Daddy tell you what to say?
      “A. Uh huh. (Yes)
      “Q. He did?
      “A. Uh huh. (Yes)
      “Q. Did he tell you that James burned you?
      “A. Uh huh. (Yes)
      “Q. Did he tell you that a long time ago?
      “A. Uh huh. (Yes)
      “Q. Did he tell you that today too?
      “A. Uh huh. (Yes)” (Tr. 136-137)

      . Dykes testified that this was because she was living with James Smith.

      . James Crawford is apparently much older than Christopher and his little sister. He carried Christopher up to his mother after the tricycle accident. He may be the eighteen year old referred to in his mother’s testimony.

      . Dykes denied going to the Smith home and conversing with Benita Smith.

      . Assignment of Error Number One. The other assignments are pretermitted.

      . The emergency room report indicates, to the contrary, that the injury was only a few days old.

      . Footnote 2 of the opinion; 412 So.2d 1018.

      . LSA-C.C. art. 34 provides:
      “Age forms a distinction between those who have, and those who have not sufficient reason and experience to govern themselves and to be masters of their own conduct. But as nature does not always impart the same maturity and strength of judgment at the same age, the law determines the period at which persons are sufficiently advanced in life to be capable of contracting marriage, and forming other engagements.”

      . Here, the time interval was slightly over eight months.

      . The Louisiana Constitution requires a “complete record of all the evidence upon which the judgment is based”, LSA-Const. 1974 Art. 1, § 19-

      . LSA-R.S. 15:438 provides:
      “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”


author:
LEMMON, Justice.
     BLANCHE, Justice

text:
    Raymond D. LOUVIERE v. SHELL OIL CO., et al. Charles J. MARTINEZ v. SHELL OIL CO., et al.
    No. 83-CQ-1093.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
    Dissenting Opinion Oct. 19, 1983.

      Thomas Robert Shelton, Aubrey E. Den-ton, Shelton & Legendre, Clement Story, III, Lafayette, for plaintiffs-appellants.
    Patrick T. Caffery, David R. Dugas, Caf-fery, Oubre & Dugas, New Iberia, W.K. Christovich, Michael M. Christovich, Chris-tovich & Kearney, John O. Charrier, Jr., Robert T. Lemon, II, Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, New Orleans, for defendant-appellee.
   LEMMON, Justice.

The United States Court of Appeals, 703 F.2d 846, Fifth Circuit, certified a question of state law to this court pursuant to Rule 12, Rules of the Supreme Court of Louisiana (1973). We agreed to answer the certified question, which involves the effect of the filing of suit as an interruption of prescription in a tort action. 434 So.2d 411 (La.1983).

The basic litigation involves injuries caused by the May 6, 1970 explosion of a heater on an offshore drilling platform owned by Shell Oil Company. Plaintiffs Raymond Louviere and Charles Martinez, employees of Teledyne Movible Offshore, were injured in the explosion. Argonaut Insurance Company, Teledyne’s compensation insurer, paid federal compensation benefits to plaintiffs and other similarly injured Teledyne employees.

During the year following the explosion, several persons filed personal injury actions to recover damages incurred in the explosion. On May 5, 1971, Argonaut filed a suit in federal court which asserted that plaintiffs and other Teledyne employees had been injured in the explosion, that Argonaut had paid compensation benefits to these injured employees, and that Shell and other defendants were liable for the accident and were therefore obligated to reimburse Argonaut for the benefits paid to the injured employees.

In 1973 and 1976, while the Argonaut suit was still pending, plaintiffs Louviere and Martinez filed the instant actions, demanding damages for personal injuries incurred in the explosion, against several defendants, including those named in the Argonaut suit. The federal district court dismissed both suits. Although acknowledging that the Argonaut suit interrupted prescription on behalf of these plaintiffs whose cause of action arose out of the same facts, the court concluded that prescription had been interrupted only momentarily by the filing of the Argonaut suit and had immediately begun to run anew, so that plaintiffs’ suits, filed more than one year after the filing of the Argonaut suit, were untimely. On appeal, the Fifth Circuit noted that the Supreme Court of Louisiana had not squarely answered the question of the effect of interruption of prescription under these circumstances and therefore certified the following questions:

“Assuming that the filing of suit by a compensation carrier interrupts prescription of claims subsequently filed by injured workers that arise from the same events as the compensation carrier’s lawsuit, is the effect of the interruption that the prescriptive period for the workers’ claims begins to run anew from the date the compensation carrier files suit? Or is prescription interrupted or suspended throughout the pendency of the compensation carrier’s suit?
“With the understanding that the Louisiana Supreme Court is not restricted to our articulation of the question, Martinez v. Rodriquez, 394 F.2d 156, 159 n. 6 (5th Cir.1968), we seek its assistance and guidance.
“QUESTIONS CERTIFIED.” 703 F.2d 846 (5th Cir.1983).

While the Fifth Circuit’s questions are based on the assumption that the filing of suit by an employer’s compensation insurer interrupts prescription on claims by injured employees of the employer, the reason for the interruption must be considered in determining the effect of the interruption.

The filing by one party of a suit to recover his damages usually does not affect the running of prescription against other parties who sustained separate damages in the same accident. However, a timely petition by an employer’s workmen’s compensation insurer, seeking recovery of compensation benefits paid to an injured employee against a tortfeasor who caused the injury to the employee, interrupts prescription, thereby permitting the employee to file an action for his own damages after the anniversary date of the accident. The reason is that there is only one principal cause of action, and the compensation insurer is asserting part of the employee’s cause of action, because the insurer has paid part of the employee’s damages and is entitled to recover to the extent of those payments as partial subrogee.

A cause of action consists of the material facts which form the basis of the right claimed by the party bringing the action. Trahan v. Liberty Mut. Ins. Co., 314 So.2d 350 (La.1975); Baker v. Payne and Keller of La., 390 So.2d 1272 (La.1980). The claims of both the employee and the compensation insurer in the present cases are based on the cause of action consisting of the material facts which are the basis of the employee’s right to recover damages, and suit by either the employee or the employer’s compensation insurer interrupts prescription for both as to this single cause of action. National Sur. Corp. v. Standard Accident Ins. Co., 247 La. 905, 175 So.2d 263 (1965); Allstate Ins. Co. v. Theriot, 376 So.2d 950 (La.1979).

This reasoning is supported by reference to La.R.S. 9:5801, which at the time of the accident provided that “[a]ll prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants ...' by the commencement of a civil action in a court of competent jurisdiction and in the proper venue”. Thus, while the running of prescription without the filing of a suit would operate to release a defendant from an obligation to several parties who share a particular cause of action, all prescriptions affecting that cause of action are interrupted when a proper party judicially asserts the cause of action.

Accordingly, when several parties share a single cause of action (as through partial subrogation), suit by one interrupts prescription as to all. However, when a suit by a second party states a different cause of action than the suit by the first party, although each cause of action is based in part on common facts, the first suit does not interrupt prescription as to the subsequent cause of action. See Guidry v. Theriot, 377 So.2d 319 (La.1979), in which this court held that because the wrongful death and survival actions are based on two separate and distinct causes of action, a timely survival action does not interrupt prescription as to the wrongful death claim.

We turn now to the effect of the interruption of prescription by the filing of a suit.

Once a suit interrupts prescription, that interruption continues during the pendency of the suit. La.C.C. Art. 3463, enacted in 1982, clearly states this proposition, and Official Revision Comment (a) notes that there is no change in that law. Some intermediate decisions have spoken of the filing and pendency of a suit as interrupting and suspending prescription. However, the correct characterization is continuous interruption, rather than interruption and suspension of prescription. See Dainow, Prescription, The Work of the Louisiana Appellate Courts for the 1967-1968 Term, 29 La.L.Rev. 230 (1969).

This court applied the theory of continuous interruption during the pendency of a suit in Allstate Ins. Co. v. Theriot, above. The injury to the employee occurred on March 6, 1974, and Allstate, the employer’s compensation insurer, timely filed suit on January 22, 1975. The employee’s suit, filed August 17, 1976, would not have been timely save for the 20-month interruption of prescription afforded him by the penden-cy of Allstate’s suit.

Defendants argue, however, that almost every previous decision involving continuous interruption of tort prescription has involved an interruption by the filing of one suit and a subsequent suit (timely only because of the continuous interruption) filed by the original plaintiff. Defendants point out that the National Surety, Nini and Allstate cases are the only decisions of this court which have involved two separate claimants and that the second claimant’s suit in two of those cases (National Surety and Nini) was filed within one year of the filing of the first claimant’s suit. Thus, according to defendants, the Allstate case stands alone among this court’s decisions in allowing a suit by a second claimant more than one year after the first claimant’s suit interrupted prescription, and the Allstate decision was later undermined by certain language in the opinion in Guidry v. Theri-ot, above.

The language in the Guidry case referred to by defendants was pure dicta. Since the court held that the wife’s filing of the original tort suit (in which the husband substituted himself as party plaintiff after the wife’s death) did not interrupt prescription on the husband’s and children’s wrongful death claim, any comment on the prescriptive period after an interruption was not necessary to the holding. Furthermore, the cause of action for wrongful death did not even accrue until almost five months after the first suit was filed. Nevertheless, we now expressly repudiate the language in the Guidry case relating to the effect of interruption.

In effect, defendants are asking us to hold that (in one-year prescription cases) continuous interruption only operates on behalf of the party who filed suit and that any other party sharing the cause of action receives the benefit of interruption for only one year. Perhaps it would be equitable to require a party, who depends upon an interruption caused by another party’s filing of suit, to file suit within one year of the filing of the first suit. However, the reason prescription is interrupted at all is because there is only one principal cause of action, and all prescriptions affecting that cause of action are interrupted by the suit and remain continuously interrupted as long as the suit is pending. The corollary is that all prescriptions begin to run anew only from the last day of interruption. See La.C.C. Art. 3466. This is the consistent theme of the statutes and codal articles and the jurisprudence interpreting them.

Accordingly, we answer the certified questions as follows:

When an employer’s compensation insurer files suit to recover compensation benefits paid to an injured employee and thereby interrupts prescription on the employee’s claim arising from the same cause of action, prescription is continuously interrupted during the pendency of the insurer’s suit.

Pursuant to Rule 12, Section 8, Rules of the Supreme Court of Louisiana (1973), the judgment rendered by this court upon the questions certified shall be sent by the clerk of this court under its seal to the United States Court of Appeals, Fifth Circuit, and to the parties.

BLANCHE, J., dissents and assigns reasons.

BLANCHE, Justice

(dissenting).

Assuming that prescription was interrupted as to plaintiff/employees by the filing of suit by the compensation insurer, it is far from certain that prescription remained interrupted as to the employees during the lengthy pendency of the insurer’s suit. The majority opinion recites La.C.C. art. 3463 for the proposition that once prescription is interrupted by the filing of suit, that interruption continues through the course of the litigation.

Unquestionably, that proposition is true as regards the interruption of prescription with respect to the party filing suit. The instant case presents a different situation — a jurisprudentially created interruption of prescription to benefit parties bringing separate suits on the same purported cause of action. National Surety Corporation v. Standard Accident Ins. Co., 247 La. 905, 175 So.2d 263 (1965). Ostensibly, a party’s right to sue on the same cause of action after his claim would have prescribed is justified under the theory that the timely filing party has given defendant notice of suit under the single cause of action. However, it is reasonable to allow a plaintiff who did not file timely to begin with an almost unlimited amount of time to file suit where the litigation, as in the instant case, has gone on for three to six years? Moreover, is it fair to allow one prospective plaintiff several years to bring his claim, simply because his employer’s compensation insurer filed suit timely, while other plaintiffs injured in the same accident are limited to one year in which to bring their claim?

The more reasonable view would be to allow plaintiffs suing on the same cause of action as a timely filed claim one year from the date of the interruption/filing in which to bring their own claims. This approach would comport with the notice principle of National Surety, and in consonance with the social interest which prescription laws seek to protect.

For these reasons, I respectfully dissent.

       Bailes, J. sitting for Marcus, Justice.

      . One such suit was Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1978), on certification from the Fifth Circuit.

      . Actually, the federal district court dismissed Louviere’s suit as prescribed shortly after the filing, but the Fifth Circuit reversed, holding that Argonaut’s suit interrupted prescription on Louviere’s claim against the same defendants.
        Louviere v. Shell Oil Co., 509 F.2d 278 (5th Cir.1975). On remand, the Louviere suit was consolidated in the district court with the Martinez suit.

      . For example, plaintiffs do not contend that Olsen’s suit (cited in footnote 1) to recover his damages resulting from the heater explosion interrupted prescription on plaintiffs’ cause of action to recover their damages resulting from the same accident.

      . The National Surety decision held that a timely suit by an employer’s compensation insurer under La.R.S. 23:1101-1103 interrupts prescription for the injured employee as well, because the statute gives only one cause of action based on the single tort which caused injury to the employee. The insurer’s right to recover is based on the basic right of the employee to recover damages from the particular defendants.
      The Allstate Ins. Co. decision held that the employer’s compensation insurer’s timely suit interrupted prescription as to any claim for the employee’s damages, whether the claims are by the employee himself or by the insurer. The court further held that dismissal of the insurer’s main demand on an exception of no cause of action did not affect the employee’s incidental demand (filed more than one year after the accident, but before judicial dismissal of the main demand), because the main demand had interrupted prescription in favor of the interve-nor when the intervention was filed. The court further observed that the first suit gave defendant notice that he may be held liable on a cause of action arising from a particular factual occurrence, and the subsequent filing of suit by another plaintiff on the same cause of action, based on the same facts, was not prejudicial to him. However, the court noted that when the “subsequent claimant is a different person than the original plaintiff, then to interrupt prescription the first suit must not only be based upon the same factual occurrence as the subsequent claim ... [but] the subsequent claimant must also be closely connected in relationship and identity of interest with the original plaintiff.” 376 So.2d at 954.
      See also Nini v. Sanford Bros., Inc., 276 So.2d 262 (La.1973), a workmen’s compensation case in which suit was filed within one year of the last compensation payment. However, the client had died before the attorney filed suit, and the widow was substituted as party plaintiff more than a year after the last compensation payment. The court held that the suit, authorized by and filed on behalf of the client, interrupted prescription, noting that the essence of interruption of prescription by suit was notice to the defendant of legal proceedings based on the claim involved.

      . La.R.S. 9:5801 was repealed in 1982, but the substance of the statute was included in La.C.C. Art. 3462, enacted by Act 187 of 1982, which provides:
      “Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.”

      . The reasoning is further emphasized by La.C.C. Art. 3528, which provides:
      “The prescription which operates a release from debts, discharges the debtor by the mere silence of the creditor during the time fixed by law, from all actions, real or personal, which might be brought against him.”

      . See Hebert v. Cournoyer Oldsmobile-Cadillac-GMC, Inc., 405 So.2d 359, 361 (La.App. 4th Cir.1981), in which the court stated that an earlier lawsuit by plaintiff had “interrupted and suspended prescription”. See also Marshall v. Southern Farm Bureau Casualty Co., 204 So.2d 665, 667 (La.App. 3rd Cir.1967), wherein the court stated that the pendency of plaintiffs’ wrongful death suit in federal court “suspended the prescriptive or peremptive period”.

      . The basic difference between interruption and suspension of prescription is the length of the prescriptive period when prescription begins to run anew. When prescription is interrupted, the prescriptive period starts over in its entirety upon cessation of the interruption. Thus, when a one-year prescriptive period is interrupted at any time during the year by the filing of suit and the suit is subsequently dismissed without prejudice, the plaintiff has another full year in which to bring another suit, and that second one-year period begins to run from the last day of interruption. See La.C.C. Art. 3466. On the other hand, if a one-year prescriptive period is suspended for any reason, the “clock” merely stops during the suspension and starts again at the cessation of the suspension, so that the obligee has only so much of the one year as was remaining when the suspension began. Only the period of suspension is not counted toward the accrual of prescription. See La.C.C. Art. 3472.

      . For example, in Levy v. Stelly, 277 So.2d 194 (La.App. 4th Cir.1973), cert. denied, 279 So.2d 203 (La.1973), the plaintiff filed a tort suit within the year in state court and after the year in federal court. When the state court suit was dismissed without prejudice and subsequently refiled, the court held that the second state suit was timely since prescription had been continuously interrupted by either the first state suit or the federal suit.

      .The precise language in the Guidry case, which is relied upon by defendants in this case, is:
      “Assuming prescription was interrupted by the filing of the initial action by the tort victim and the father of these beneficiaries, it was incumbent upon them to bring their wrongful death action within one year of the interruption which they did not do. We expressly hold that regardless of whether an action is brought for damages sustained by the tort victim, before or after the victim expires, the prescriptive period of bringing the wrongful death action is one year after date of the demise or within one year of interruption of the prescriptive period if an interruption is shown.” (Emphasis supplied)


author: LEMMON, Justice.

text:
    STATE of Louisiana v. Anthony Wayne MORROW.
    No. 82-K-2081.
    Supreme Court of Louisiana.
    Oct. 17, 1983.

      John Wilson Reed, Glass & Reed, New Orleans, for relator.
    Marion B. Farmer, Dist. Atty., Margaret Coon, Asst. Dist. Atty., for respondent.
   LEMMON, Justice.

We granted certiorari to review the trial court’s. denial of relator’s application for postconviction relief. 421 So.2d 239. The application challenged relator’s aggravated kidnapping and forcible rape convictions on two principal bases, one of which was that his retained lawyer’s joint representation of both him and his codefendant, Michael Burge, created a conflict of interest which denied him effective assistance of counsel. After reviewing the records of the original trial and of the postconviction hearing, we conclude that relator did not receive effective assistance of counsel on the aggravated kidnapping charge, because the trial attorney’s joint representation of the code-fendant, undertaken for an additional fee without full disclosure to relator of the potential disadvantages, prevented that attorney from presenting evidence, cross-examining witnesses and making arguments to the jury on the state’s failure to prove relator’s participation in the initial abduction of the victim and on his undisputed lesser culpability in the entire sequence of events.

Facts

On July 28,1976, the victim, a 48-year old practical nurse, stopped to purchase groceries after an evening class. As she entered her car in the parking lot after shopping, a young man (later identified as Michael Burge) rapidly approached her and held a sharp object to her neck, telling her “[djon’t say a word and you won’t get hurt”. He forced her to move over, got into the driver’s seat, drove a short distance, and stopped very briefly. Relator quickly entered the car, as Burge warned the victim that the other passenger would “blow her head off” if she did not cooperate, implying that relator was armed with a pistol which was trained on her. Burge then sped onto the highway.

As Burge drove recklessly around the streets of Slidell, he demanded that the victim give him her money. When she could produce only five or six dollars, Burge became furious and told her to “think real good, old bitch” about where she could find more money. Although the victim could not see relator in the rear seat, she heard what she referred to as an “echo” by a young voice as relator repeated Burge’s threats and abusive language. At one point Burge told relator “don’t fool with that gun ... [because] we don’t want to kill anyone if we don’t have to”.

Burge eventually drove out of town and along a rural road, where he unzipped his pants and ordered the victim to place her mouth on his penis. She begged to be spared this indignity, but Burge grabbed her head and forced it down upon his penis. When the victim bit him, Burge stopped the car, ordered her to undress, tore her blouse, took what appeared to be a knife and tried to cut away her brassiere. He forced her to submit to an act of intercourse in the front seat of her automobile. Burge then asked relator if he wanted to have intercourse and ordered the victim to get into the backseat with relator. When she refused, he slapped her and caused her to cry. Relator then climbed into the front seat and had intercourse with the victim.

When Burge resumed driving, relator said he wanted to have intercourse again. The victim objected, and Burge slapped her again and continued driving to the river, where he threw away the victim’s purse. He drove back to the highway and ordered her to get out, warning her not to look back or tell anyone about the incident. She began running and came to a lighted house, where she reported the incident.

The police were already searching for the victim’s car, having been alerted by a person who had seen the incident in the parking lot. The victim was interviewed by the police and then examined by a gynecologist, who discovered immotile sperm in her vaginal tract and found signs of trauma, indicative of forcible intercourse.

Utilizing an excellent description of Burge provided by the victim, police apprehended both Burge and relator the next day. The victim identified Burge as the driver. Burge and relator, who were 17 and 16 years old respectively, separately admitted to the arresting officers that they had abducted and raped the victim.

After being indicted for aggravated rape and aggravated kidnapping, relator retained an attorney and entered a combined plea of not guilty and not guilty by reason of insanity. Later, the same attorney additionally undertook to represent Burge, who also entered the same combined plea. Although relator did not object to the joint representation, the attorney did not explain to relator or his family the potential advantages and disadvantages. However, the attorney agreed that he would withdraw from Burge’s representation if relator felt it was appropriate.

At trial, defense counsel did not endeavor to contest the victim’s version of the incident or the role played by each defendant in - the sequence of events. Instead, counsel focused on developing evidence that Burge and relator were so highly intoxicated from consuming beer and Seconal that they were incapable of forming the specific intent required for aggravated kidnapping or of distinguishing right from wrong. The prosecutor challenged the defense theory in closing argument, pointing out that the defense did not establish the amount of drugs and alcohol taken by the two young men and that the victim’s description of the men’s behavior indicated that they were simply not in the “drugged” state that the defense attempted to portray.

The jury found both defendants guilty of aggravated kidnapping. The jury also found Burge guilty of aggravated rape as charged, but only convicted relator of forcible rape.

At the penalty trial conducted on the aggravated kidnapping conviction, the prosecutor presented no additional evidence or argument. However, both Burge and relator testified and begged for their lives, stating simply that they were so much under the influence of drugs and alcohol at the time that they were “unaware” of their actions. The prosecutor did not cross-examine either and did not argue in favor of the death penalty. In fact, he made no closing argument, but simply submitted the case to the jury, telling the jurors that the question of penalty was in their hands.

The jury recommended life imprisonment without parole for both. The trial court sentenced Burge to consecutive life sentences and sentenced relator to 20 years imprisonment for forcible rape, to run concurrently with the life sentence without parole for aggravated kidnapping. On appeal, relator’s conviction and sentence were affirmed. State v. Burge and Morrow, 362 So.2d 1371 (La.1978).

Effective Assistance of Counsel

At the hearing on the postconviction application, relator testified that he and Burge had gone to the store to buy beer, but were unable to cash a check; that Burge left him outside the store and went to seek a ride home with his mother’s friend that he had seen in the parking lot; that he thought the car Burge was driving belonged to his mother’s friend; and that he did not realize the lady had been kidnapped until he heard the demand for money. He further testified that he told this story to his lawyer in the first interview. The trial attorney was called as a witness for the state, but was not asked to confirm or deny that relator had described this version to him.

Relator’s present counsel argues that his initial lack of guilty knowledge was a complete defense to an indictment charging “a forcible seizing and carrying” of the victim from one place to another, since relator did not knowingly participate in the “seizing”, but only in “the carrying”. La.R.S. 14:44(1). Counsel further argues that relator was denied effective assistance of counsel when his former attorney was confronted with an actual conflict of interest in that he was unable to present this plausible defense on relator’s behalf without focusing guilt on Burge.

Effective representation includes the requirement of undivided loyalty. When codefendants retain the same attorney in order to present a common defense, the risk exists that a conflict of interest may develop.

Since the conflict of interest issue is raised in the present case in a postconviction context, the decision in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), governs the analysis. The Sullivan decision reaffirmed that multiple representation does not in itself deprive an accused of effective assistance of counsel and held that an accused who did not object to multiple representation before conviction must show, in order to establish a Sixth Amendment violation, that “an actual conflict of interest adversely affected his lawyer’s performance”. See State v. Edwards, 430 So.2d 60 (La.1983); State v. Kahey, 436 So.2d 475 (La.1983). Such a showing requires more than the existence of a theory of defense which, in the clear light of hindsight, appears to have been better than the defense theory used unsuccessfully at trial.

When an ineffective assistance complaint is based on the trial attorney’s failure to develop a completely different strategy, a reviewing court is understandably hesitant to speculate on the merits of the defense which was not presented because of a conflict of interest. However, the critical inquiry is not whether the un-raised defense would have been successful, but whether the defense was plausible. When multiple representation forecloses the use of a plausible defense that might have benefitted one defendant, but would have prejudiced the jointly represented codefend-ant, the conviction must be overturned, unless there has been an express and knowl-edgable waiver of the right to conflict-free counsel. Foxworth v. Wainwright, 516 F.2d 1072 (5th Cir.1975). The conflict of interest occurs not in the attorney’s choice of defenses, but in the attorney’s inability to make a free choice. Moreover, the fact that the attorney chose a defense which was as equally plausible as the unraised defense (or perhaps even stronger) is of no moment, as long as counsel’s failure to raise the plausible defense because of the conflict prejudiced his client.

In the present case, relator’s defense of noninvolvement in the initial abduction of the victim was at least a plausible defense to the aggravated kidnapping charge. Admittedly, the jury’s verdict was not susceptible of a claim of insufficient evidence. However, the state’s own evidence offered relator a plausible theory of innocence or of culpability only for a lesser offense, and relator was entitled to have a jury determine his verdict on the basis of evidence and argument that was not curtailed or limited because of his attorney’s divided loyalty.

We accordingly proceed to examine the evidence and arguments which relator’s attorney could not present on relator’s behalf without casting the mantle of guilt on Burge.

At the postconviction hearing, relator testified without contradiction that he told his trial counsel he was waiting for a ride home and did not initially know of the kidnapping. Yet the trial attorney did not present evidence or argument on this point even in the penalty phase, presumably because he could not do so without emphasizing Burge’s guilt.

The victim and the witness to the incident in the parking lot clearly testified that Burge alone performed the initial abduction. Nevertheless, relator’s trial counsel failed to emphasize to the jury, through cross-examination and argument, that relator did not participate in the initial abduction. More importantly, counsel never emphasized relator’s lesser overall culpability, not even during the penalty phase when the jury was considering the death penalty for both defendants. The state argues that the facts establishing relator’s lesser culpability were before the jury, but tht argument underplays the role of advocacy. The importance of emphasizing relator’s lesser role is best illustrated by the fact that this court on original appeal mistakenly stated, in reciting the undisputed facts, that “defendants placed a sharp object at the throat of a female shopper as she returned to her car” and “[t]he two then forced the woman into the passenger side of the vehicle and drove her to a deserted area, where she was beaten and raped”. (Emphasis supplied)

Trial counsel also did not follow up on Cantrell’s statement at the original trial that relator told him he was waiting “around the side of the building wanting to go home” after they couldn’t cash the check. See note 5, above. Neither did the attorney argue that point to the jury. Moreover, Cantrell later testified at the postconviction hearing that Burge told him “not to get mad at [relator] for anything that had happened, because [Burge] had forced [relator] to go with him”. Cantrell further testified that he had told relator’s attorney that Burge had pulled a knife on relator and forced him to go to the store, but the attorney instructed Cantrell not to mention this. The trial attorney was not asked to confirm or deny the testimony, which therefore stands uncontradicted.

Relator’s sister testified at the postcon-viction hearing that Burge, who had just gotten out of jail, had pulled a knife on relator shortly before they left for the store, but that relator’s attorney instructed her not to say this in court. The district attorney also did not question the trial attorney on this point.

Additionally, since relator had no prior record and was clearly the less culpable of the two defendants, there was no compelling reason for him not to testify, except that his testimony would have drawn the jury’s attention, directly or indirectly, to Burge’s greater culpability. Yet relator’s trial counsel never advised him nor discussed with him the potential advantages of taking the stand, presumably because of the difficulty in “serving two masters”.

Finally, relator’s attorney presented no argument to the jury, even in the penalty phase, which pointed out that relator may have been innocent or at least guilty only of simple kidnapping. Clearly, the conflict of interest deprived relator of a meaningful chance to have the jury consider his lesser culpability as to the aggravated kidnapping charges. The fact that the jury on its own recognized a difference in culpability between a defendant who used a knife to commit rape and one who simply followed the aggressive leader suggests that the jury may have recognized a difference in culpability for the kidnapping, if the pertinent facts had been argued by an attorney solely interested in relator’s welfare.

The representation as to the intoxication defense was vigorous and well presented. Nevertheless, there was another plausible defense that could not be presented because of an actual conflict of interest. Significantly, the two defenses were not inconsistent, but were supplemental, since a conflict-free attorney could have argued that relator was so intoxicated that he could not form the specific intent required for aggravated kidnapping (or could not discern right from wrong as to either offense), or alternatively that relator did not plan the kidnapping and did not realize in his dazed condition that a kidnapping had occurred until Burge had already seized the victim and carried her away.

We conclude that the evidence and argument, which relator’s attorney was precluded from presenting because of a conflict of interest, might have influenced twelve reasonable jurors, under the overall circumstances of this case, to return a different verdict (such as simple kidnapping, with a five-year maximum sentence). At the very least, relator was entitled to have a jury (rather than an appellate court) make this determination on the basis of evidence and argument forcefully presented by an advocate solely interested in his welfare.

A Louisiana lawyer should not accept separate fees for joint representation of two codefendants in a criminal case and then fail to present on behalf of one code-fendant a plausible defense consistent with the common defense simply because of the potential devastating effect on the second codefendant (at least without the knowl-edgable consent of the affected codefendant after full disclosure). A Louisiana trial court should not allow multiple representation without inquiry into such potential conflicts of interest. But when this has happened, as proved by relator in this case, a Louisiana appellate court cannot allow a conviction obtained under such circumstances to stand, when the actual conflict of interest adversely affected the trial attorney’s performance.

We therefore hold that relator has proved an actual conflict of interest which adversely affected his attorney’s performance and accordingly is entitled to a new trial on the charge of aggravated kidnapping.

For these reasons, relator’s conviction of aggravated kidnapping is set aside, and the matter is remanded to the district court for a new trial on that charge.

DIXON, C.J., and WATSON and MARCUS, JJ., dissent.

      . In addition to the victim’s testimony, the medical evidence, and the inculpatory statements, the state presented other witnesses who saw Burge and relator in the area of the kidnapping or who were told by them of the kidnapping and rape.

      . Defense counsel attempted to establish the degree of defendants’ intoxication through cross-examination of the state’s witnesses and presentation of other witnesses who had seen defendants that night. Counsel also presented two psychiatrists, who opined that the combined effects of alcohol and barbiturates could create a state of mind incapable of forming a specific intent and that such consumption could impair a person’s thinking process to the extent that the person could not distinguish right from wrong.

      . Over defense counsel’s objection, the trial court conducted a bifurcated penalty hearing under La.C.Cr.P. Art. 905 et seq., although the crime had been committed before that capital sentencing hearing procedure was enacted by the Legislature.
      The second contention of relator’s postcon-viction application complained of the trial court’s decision to try the aggravated kidnapping charge as a capital case, a decision which permitted the state to exercise 57 challenges for cause under La.C.Cr.P. Art. 798(2) on the basis of the prospective juror’s conscientious scruples against the death penalty.

      . Burge’s sentence for aggravated rape was set aside on appeal for reasons not applicable to relator’s sentence for forcible rape.

      . Relator’s postconviction hearing testimony was corroborated to some extent by Lloyd Cantrell, a witness called by the state, who testified at the original trial that “[t]hey told me that they had went to the Sunflower to cash’ a check and couldn’t cash it, and Tony was around the side of the building wanting to go home, and that Mark had come around with a car with a lady in it and picked him up, then they took off and raped her.” (Emphasis supplied)

      . La.R.S. 14:44 provides in part:
      “Aggravated kidnapping is the doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a release of the person under the offender’s actual or apparent control:
      “(1) The forcible seizing and carrying of any person from one place to another; or
      “(2) The enticing or persuading of any person to go from one place to another; or
      “(3) The imprisoning or forcible secreting of any person.”
      Relator’s counsel argues that the portion of statute proscribing the “imprisoning” of the victim could not have been relied on by the state, because the indictment and closing argument only referred to Subsection (1) of the aggravated kidnapping statute. Moreover, the trial judge instructed the jury only on Subsection (1).
      However, in this case we need not decide the merits of defendant’s present theory of substantive criminal law. Whether an “initially innocent” person is guilty of “seizing and carrying” if he joins another who has already “seized” the victim and aids the other in forcibly and unlawfully holding and transporting the victim is not at issue, because the question here is not simply whether the defense would have been successful, but whether defendant’s trial counsel provided ineffective assistance because a conflict of interest prevented his raising and arguing this plausible defense.

      . Trial courts and defense attorneys can effectively avoid problems of multiple representation by preventative measures. In every case of multiple representation, the trial court should inquire into potential conflicts and inform the accused on the record of the possible dangers. ABA Standards for Criminal Justice, The Function of the Trial Judge § 3.4(b) (1st ed. 1974, deleted in 2d ed.); see also Fed.R. Crim.P. 44(c), adopted in 1980, which requires the court to inquire into joint representation and to advise each defendant of his right to the effective assistance of counsel, including separate representation. And defense attorneys should ordinarily decline for ethical reasons to represent more than one of several codefend-ants, unless a careful investigation reveals there is no likely conflict and the codefendants have consented, on the record after full disclosure, to the multiple representation. ABA Standards for Criminal Justice, The Defense Function § 4-3.5(fe) (2d ed. 1980); Code of Professional Responsibility, DR5-105(A), (C).

      . As noted in United States v. Benavidez, 664 F.2d 1255 (5th Cir.1982), an untested theory always looks better than an unsuccessful one.

      . Of course, the client can make an informed choice to forego a plausible defense and to adhere to a common defense with the code-fendant, thereby waiving his right to conflict-free counsel. However, such a choice must be knowingly made after full disclosure by the attorney, which indisputably did not occur here.

      . If relator had raised the “innocent passenger” theory in the context of an insufficiency of evidence claim for postconviction relief (a claim which, if successful, would bar retrial), he would have been destined to failure, in the light of the strong circumstantial evidence that the two young men plotted the kidnapping and robbery together. Certainly, a rational juror could have concluded from the evidence, viewed in the light most favorable to the prosecution, that relator was guilty beyond a reasonable doubt as a principal of every element of the crime of aggravated kidnapping.

      . Of course, relator’s taking the stand would have left him open for cross-examination on the rape charge. However, relator has never contested the evidence of rape. In fact, he testified at the postconviction hearing that there were a “lot of things I can’t remember about the whole thing”, including “actually raping this woman”.

      . Clearly, the two defendants should not have received the same sentence. The trial judge implicitly recognized this by imposing concurrent sentences on relator. The jury very well may have declined to return a verdict requiring mandatory life sentences for both defendants.

      . Relator does not challenge the effectiveness of counsel’s representation of him on the aggravated rape count. There is no allegation that any plausible defense on that count was not raised due to the joint representation. The jury returned a lesser verdict of forcible rape on that count.