author: CALOGERO, Justice.

text:
    Robert G. CREELY v. LEISURE LIVING, INC. and Jesse Martin Realty Mart, Inc.
    No. 83-C-0358.
    Supreme Court of Louisiana.
    Sept. 2, 1983.

      Paul M. Lapeyre, Kenner, for applicant.
    Jesse S. Guillot, New Orleans, Robert G. Creely, Gretna, for respondents.
   CALOGERO, Justice.

The Court of Appeal denied to a real estate agent a fee, or a commission, in connection with the sale of a house after the district court had awarded $1,500 on quantum merit. We granted writs upon application of the realtor. 430 So.2d 80 (La.1983). Upon review however, we affirm the Court of Appeal judgment.

The attorney-notary who passed the sale, one Robert Creely, initiated this concursus proceeding to determine the rightful claimant to $2,205 (which represents three percent of the sales price of the house), as between the builder/seller Leisure Living, Inc. and the real estate broker Jesse Martin Realty Mart, Inc. After trial on the merits, the district court found that, while no contract existed for the payment of the commission, the realtor was entitled to $1500 in quantum meruit for services rendered. On appeal, the Court of Appeal reversed, finding neither a contractual obligation nor any equitable or other applicable legal reason to support recovery by the realtor. 423 So.2d 1224 (La.App. 5th Cir.1982).

The events which preceded this litigation are as follow:

On July 24, 1979, the builder, Leisure Living Inc., entered into a six month listing agreement with Jesse Martin Realty Mart Inc. pursuant to which the realtor was to attempt to sell five houses which were to be built to specification on Carthage Street in Nottingham subdivision on the west bank of Jefferson Parish. To that end, the realtor was permitted by the builder to have a sign on a corner lot and a temporary sales office on the property. Commission was paid on the five houses built and sold under that listing agreement. No listing agreement was ever entered concerning any additional house or houses, in particular the house discussed in the succeeding paragraphs.

Alfred Gaudet, the buyer in this case, was attracted by the construction underway at the Nottingham subdivision. He and his family visited the site, then talked, initially and several times, to Ronald Bermudez and Gary Ritter, partners in Leisure Living, Inc. During these visits, they were becoming more and more sure of their interest in buying a particular model home. Also, Mr. Gaudet discovered that he used to work with Ritter’s father and was acquainted, as well, with the father of Bermudez. As events would have it happen, the particular model in which the Gaudets were most interested had been sold already. Bermudez and Ritter, however, were willing to build another home to the Gaudets’ specifications on another lot in the same west bank subdivision. For the purpose of concluding the details incident to an agreement to purchase, Ronald Bermudez accompanied Alfred Gaudet to the realtor’s on-site office and introduced him to Delores Thompson, agent with Jesse Martin Realty Mart, Inc.

On October 24, 1979, an agreement to purchase a home to be constructed in Nottingham Subdivision was signed by Ronald Bermudez on behalf of Leisure Living, Inc. and by Mr. and Mrs. Alfred Gaudet, Jr. The contract, bearing the Jesse Martin Realty Mart letterhead, included the condition that financing for the $48,500.00 balance on the selling price of $73,500.00 be obtained within seventy-five days of the contract’s acceptance. (There was a cash down payment of $25,000.00.) Should the loan application not be accepted by the deadline, January 8, 1980, the agreement to purchase would be null and void and the agent would then be authorized to return the purchaser’s deposit in full. It was also specified in the agreement to purchase that the sale of the new Nottingham house was “predicated on sale of purchaser’s home located [at] 763 Avenue G, Westwego, listed for sale with Jesse Martin Realty Mart.” The realtor thereupon undertook to find a buyer for the Gaudet home, did so, and in fact earned a commission, when the act of sale on the Westwego property was passed in March, 1980.

After the signing of the October 24,1979, agreement to purchase, the agent, Delores Thompson, advised the Gaudets on how to go about obtaining the loan, and Gaudet duly applied to Carruth Mortgage Corporation for the stipulated thirty year mortgage loan at a rate of interest not to exceed eleven percent. Loan approval was not obtained by the stipulated deadline, January 8,1980, through no fault of either party to the contract. On that date, the agreement to purchase was no longer enforceable.

A buyer for the Gaudets’ Westwego residence had been obtained by Jesse Martin Realty Mart, Inc. in November of 1979, with the act of sale to take place on or before March 15, 1980. When it became evident that the Gaudets’ loan approval (on the Nottingham house) was not going to be forthcoming by January 8, 1980, and that their new house was not going to be finished by January 30, 1980, the date before which the act of sale was to be passed under the October, 1979, agreement, the builder agreed to extend the date for passing the act of sale to March 15, 1980. Ms. Thompson approached Alfred Gaudet with the proposed extension, but also with the expressed opinion that the house would not be completed by the mid-March deadline. Various alternatives to purchasing that house from Leisure Living, Inc. were discussed. The Gaudets requested time to think over their housing dilemma, during which time Ms. Thompson showed them other already-constructed housing in the vicinity, that might meet their needs. Mr. Gaudet refused to sign the extension of the October, 1979, purchase agreement. A release from the October, 1979, purchase agreement was prepared after Gaudet told the agent that he had decided instead to buy a condominium on the east bank directly through a builder.

What indeed had happened at this point, apparently, was that Alfred Gaudet had become disenchanted with the broker and concerned over the broker’s loyalty to Leisure Living. He reported to Ronald Ber-mudez that he was being shown other houses by Ms. Thompson whom Gaudet had believed to be the exclusive broker for Leisure Living, Inc. Ronald Bermudez testified at trial that when he asked Jesse Martin about the matter, Mr. Martin first appeared not to know of the situation, but then stated that the realty firm had the right to show other houses to the Gaudets since its duty was to protect the purchaser. This response did not sit well with Bermudez.

While these skirmishes were taking place between the realtor, the buyer, and the builder in late January of 1980, Carruth Mortgage forwarded the documents incident to the Gaudets’ loan application to attorney Robert Creely for finalization. In the course of inspecting the papers, Creely discovered the lapsed purchase agreement. The loan could not be finalized with an expired sale-purchase agreement. From Creely’s office, Mr. Gaudet called Jesse Martin Realty Mart about the release for the now invalid October agreement and received verbal assurances that it had indeed been prepared. A copy of a release dated and signed by Gary Ritter (for Leisure Living) on February 2, 1980, and by Alfred P. Gaudet, Jr. on February 4, 1980, was entered into evidence at trial. Likewise Delores Thompson testified that on February 4, 1980, she returned to Alfred Gaudet, Jr. his $1,000 deposit on the Nottingham house. At the time of executing the release, Ms. Thompson apparently still thought that the Gaudets were buying property on the east bank. She testified that it was only on March 12, 1980, that the Gaudets told her they were buying the property from Leisure Living, Inc. after all.

The buyer, Gaudet, and the seller, Leisure Living Inc. as represented by Ronald Ber-mudez, drew up and signed a new purchase agreement dated February 1, 1980, to accompany the pending loan application. That agreement provided that the act of sale was to take place on or before March 15,1980, and did not provide for the seller’s paying any realtor’s commission. On February 11, 1980, Gaudet received his loan approval from Carruth Mortgage Company. The house was apparently completed as contemplated by the February agreement to purchase. On March 14,1980, the act of sale on Gaudet’s former residence took place. On March 18,1980, the act of sale of the Gaudets’ new house in Nottingham subdivision was passed before Creely. At the time of the sale, Creely anticipated that Jesse Martin Realty might claim a commission and so he withheld $2,205 from the proceeds of the sale and instituted this con-cursus proceeding.

The question presented here is whether the broker (agent) earned a fee under the outset contract, under some sort of extension of the listing agreement for the original five houses, or for being the procuring cause of the sale or under some form of equity, such as to prevent the unjust enrichment of the seller (principal).

A realtor is entitled to a commission when he is a third party beneficiary to a valid contract between a seller and a buyer. Eanes v. McKnight, 262 La. 915, 265 So.2d 220 (1972); Grace Realty Co. v. Peytavin Planting Co., 156 La. 93, 100 So. 62 (1924); Sleet v. Gray, 351 So.2d 286 (La.App. 3rd Cir.1977). Jesse Martin Realty Mart, however, is not such a realtor in this instance. The outset agreement to purchase had expired by its own terms and was null and void when the buyer did not obtain an eleven percent thirty year mortgage loan by January 8, 1980. “The explicit terms of the agreement rendered it null and void ... and an offer thereafter to finance could not breathe life back into the document.” Timmerman v. Smith, 413 So.2d 627 at 632 (La.App. 1st Cir.1982). Nor do we find that there was any express or implied extension of the original contract beyond the January expiration date, under which the broker might be entitled to recover a commission from the builder.

This situation is distinctly different from one where, pursuant to a listing agreement, the agent independently solicits buyers on behalf of a seller and eventually finds a willing buyer. Carter v. Hayes, 337 So.2d 295 (La.App. 2d Cir.), writ refused, 339 So.2d 854 (La.1976); Gaspard v. Siggio, 313 So.2d 380 (La.App. 3rd Cir.), writ refused, 318 So.2d 41 (La.1975). In this case, an existing business relationship between the builder and the broker concerning the sale of five other houses and the broker’s maintaining a temporary sales office on the premises, prompted Ronald Bermudez of Leisure Living, the builder, to introduce this prospective buyer to the agent. The purpose of that introduction was for the agent to assist in concluding the sale arrangements. Incident to the prospective purchase agreement, the builder was willing to allow the broker to collect a commission on the sale of this house even though there was no obligation on the part of the builder to allow the broker concerning this house to assist in the sale and/or earn a commission. This harmonious relationship continued, possibly through mid-January, including, and through, the time when the agent (realizing that the house would not be completed by the deadline under the October contract) suggested and obtained from the builder an offer to extend the time for passing the act of sale to mid-March, 1980. Shortly thereafter, however, the builder became aware of the broker’s infidelity, as he perceived it, i.e. Ms. Thompson’s showing the Gaudets alternative housing and Jesse Martin’s assertion that his duty was to the purchaser. Gaudet testified at trial that he noticed some change in the relationship between the builder and the broker during the week ending on January nineteenth, two weeks before the proposed act of sale under the original contract and after the time for obtaining the loan had expired. It was during this same period of time that Ms. Thompson approached Gaudet about looking at some other houses.

The agreement on the part of the builder to extend the time during which the act of sale was to be passed is similar to the original contract in that it represents an expressed willingness on the part of the builder, in keeping with a professional cordiality and perhaps, indirect self-interest, to pay the agent a commission on the sale of the builder’s house, based upon no listing agreement or other legal compulsion. This willingness on the part of the builder changed dramatically upon his becoming aware of the broker’s “infidelity.”

We can infer from the testimony of Gau-det, Bermudez, and Ritter, that by mid-January, 1980, the formerly good business relationship which had existed between the builder and the broker began to sour. The apparent and now-litigated result of this change of heart was that Gaudet refused to sign the proposed extension of the October 24, 1979, agreement to purchase, which effectively ended his relationship with the broker on any sale of the Nottingham house. Since the builder’s unilateral offer to extend the written contract had not been accepted by the buyer, the builder’s contractual relationship with the agent had likewise come to an end. The written contract, to buy and sell, for all effects and purposes, was dead. Thereafter, Leisure Living and the Gaudets came to an agreement for the sale of the house between themselves without intending, nor providing, that any commission be paid to the agency. Accordingly there is no contractual theory by which Jesse Martin Realty can recover a commission under the October 24, 1979, contract nor under any implied extension of that contract. Williams v. Bel, 339 So.2d 748 (La.1976); Guy L. Deano, Inc. v. Michel, 191 La. 233, 185 So. 9 (1938); Boisseau v. Vallon and Jordano, 174 La. 492, 141 So. 38 (1932).

Furthermore, while in some cases oral listing agreements are binding, we agree with the Court of Appeal that there was no proof of the existence of an enforceable oral agreement between the seller and realtor for the payment of a commission, at any time, including the period after expiration of the October 24, 1979, contract. Nor is there any evidence of an extension of the listing agreement on the original five houses to cover commissions on the sale of other unspecified homes. 423 So.2d at 1228.

We have here then a realtor, who is a third party beneficiary of a lapsed contract, seeking to recover under some form of legal entitlement. His entitlement to relief must then depend upon some justifiable theory of recovery to be found in the jurisprudence.

Under our jurisprudence, a realtor can win a commission dispute, if he is the procuring cause of the sale, or if the principal would otherwise enjoy an unjust enrichment at the broker’s expense. Grace Realty Co. v. Peytavin Planting Co., 156 La. 93, 100 So. 62 (1924). Neither situation is presented in the ease before us.

Procuring cause has been defined as
a cause originating or setting in motion a series of events which, without break in their continuity, result in the accomplishment of the prime object of the employment of the broker, which may variously be a sale or exchange of the principal’s property, an ultimate agreement between the principal and a prospective contracting party, or the procurement of a purchaser who is ready, willing and able to buy on the principal’s terms. Sleet v. Harding, 383 So.2d 122 at 124 (La.App. 3rd Cir.1980); Cramer v. Guerico, 331 So.2d 550 at 552 (La.App. 1st Cir.1976); Sleet v. Williams, 291 So.2d 495 at 498 (La.App. 3rd Cir.1974)

We do not have here a situation where the broker was the “cause originating or setting in motion a series of events which, without break in their continuity,” resulted in the accomplishment of the sale of the principal’s property. The broker in this case simply was not the moving cause of the sale. Nor did she diligently see the sale to its appropriate conclusion. The mere fact that the sale may in some way have been advanced by the previous efforts of a broker does not of itself entitle the broker to a commission. Bullis & Thomas v. Cavert, 162 La. 378, 110 So. 621 (1926).

In this case, the builders, perhaps as a professional courtesy, and in an effort to maintain a harmonious business relationship with a broker with whom they had successful and profitable dealings in the past, introduced the buyer to the agent at a time when for all intents and purposes the buyer had already been procured. At the point of introduction, all that was left was the ironing out of details, the working out of particulars and the assembling of data required by the lending institution. As it was, the agent’s attempts to help expedite the buyer’s loan application for acceptance before the purchase agreement’s expiration, proved fruitless.

We conclude then that Jesse Martin Realty Mart was not the procuring cause of the sale.

The trial court, however, did not rely upon any contractual relationship between the broker and the purchaser nor upon any notion of procuring cause. Instead the trial judge awarded $1500 for services performed, “as a result of whatever agreement was reached between the parties ... on a quantum meruit basis.” The Court of Appeal took issue with the quantum meruit award, and also found no unjust enrichment. We agree with this conclusion.

As noted by the Court of Appeal, there is no equitable theory by which Jesse Martin Realty Mart may recover a commission in this case. The intent of the parties is evident and lawful, so La.C.C. art. 1963 bars any resort to equity in that regard. This is not a case involving the transaction of another’s business, nor the payment of a thing not due, the two types of quasi-contracts specifically recognized under La.C.C. art. 2294. Nor does this case fall within the more general principle of unjust enrichment or actio de in rem verso.

The five criteria for an actio de in rem verso as established by our jurisprudence are the following:

(1) there must be an enrichment,
(2) there must be an impoverishment,
(3) there must be a connection between the enrichment and resulting impoverishment,
(4) there must be an absence of justification or cause for the enrichment and impoverishment, and
(5) There must be no other remedy at law available to plaintiff.
Edmonston v. A-Second Mortgage Co., 289 So.2d 166 (La.1974); Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967).

It perhaps can be urged that the builder was enriched (he saved paying a broker’s commission); that there was an impoverishment (the broker failed to earn a commission) and a connection between the enrichment and the impoverishment (the commission the owner did not pay was the same commission the relator did not earn); and that there was no other remedy at law available to the plaintiff (he had no contractual right). However it seems clear that the fourth of the five requirements for ac-tio de in rem verso is missing in this case: that is, “an absence of justification or cause for the enrichment and impoverishment.”

Edmonston v. A. Second Mortgage Co., supra, one of the two leading cases on actio de in rem verso in the jurisprudence of this Court (the other is Minyard c. Curtis Products, supra) suggests the type of case in which can be found the required “absence of justification or cause for the enrichment and impoverishment.” For example, in Ed-monston, there was in effect a windfall to the A-Second Mortgage Company. Under no stretch of law or logic was the A-Second Mortgage Company entitled to benefit from the application of the Edmonston insurance proceeds to retire the first mortgage on the property.

We said in Edmonston at 289 So.2d 122:

“Cause” is not in this instance assigned the meaning commonly associated with contracts, but, rather, it means that the enrichment is justified if it is the result of, or finds its explanation in, the terms of a valid juridical act between the impo-verishee (Mrs. Edmonston) and the enri-chee (A-Second) or between a third party (Standard) and the enrichee. A valid juridical act with the enrichee is essential to a finding of “cause”. Nicholas, Unjustified Enrichment in the Civil Law and Louisiana Law, Part I, 36 Tul.L.Rev. 622 (1962).
* 8⅜ ⅜! 4s
If cause is found, the enrichment is not unjustified and the attempt to invoke the actio de in rem verso must fail. For it is not every unjust enrichment which warrants the resort to equity; only the unjust enrichment for which there is no justification in law or contract allows equity a role in the adjudication.

In this case, we do not find that there was “an absence of justification or cause for the enrichment and impoverishment.” We find, as did the Court of Appeal, that indeed there was cause for the enrichment in this case. It is only in how we perceive that cause for the builder-seller’s enrichment that we differ with our brethren on the appellate court.

It was not just the expiration of the October 24, 1979, agreement to purchase that justified the builder’s “enrichment” on the March sale of property to the Gaudets. His enrichment, if one chooses to call it that, was the result of his investment of skill, time, labor and financing and his good fortune in his finding a buyer. Since, as discussed earlier, the agent had no legal right to the fee either under contract or under our jurisprudence concerning procuring cause, the profit that the builder enjoyed on the sale of his property after expending time, money, and energy to complete construction of the house is not a windfall, nor somehow undeserved. Rather it is a profit to which he is properly entitled. Admittedly this profit is increased slightly by his not paying a commission. But, as discussed before, there was no obligation on his part, by contract or otherwise to pay a commission.

Although the agent and the builder had previously enjoyed a business relationship in negotiations with the Gaudets concerning the Nottingham house, and as party and third party beneficiary to an earlier contract, that relationship had come to an end when the October 24, 1979, agreement to purchase expired on January 8, 1980, and when the builder became aware that the agent was no longer acting on his behalf or in his interest in the sale of the house to Gaudet.

There is no theory, legal or equitable, under which a commission is owed Jesse Martin Realty Mart, Inc.

DECREE

For the foregoing reasons, the judgment of the Court of Appeal is affirmed.

AFFIRMED.

DENNIS, J., concurs.

      . From January 30, 1980, there were only six weeks before March 15, 1980, when the Gau-dets had to move out of their Westwego house. According to the realtor, fourteen weeks were usually “allowed” for new house construction.

      . In addition to the proposed extension of the October 24, 1979, agreement, the Gaudets considered storing their furniture in a garage on the construction site, moving in with their daughter who also lived on the west bank, living and storing furniture with a son on the east bank, renting an apartment temporarily, or buying other already-existing property into which they could move within six weeks’ time.

      . Samuel v. Firestone, 342 So.2d 661 (La.1977); Whatley v. McMillan, 152 La. 978, 94 So. 905 (1922); Olympic Homes, Inc. v. Ory, 207 So.2d 258 (La.App. 1st Cir), writ refused, 252 La. 113, 209 So.2d 41 (1968).

      . Compare, Sleet v. Gray, 351 So.2d 286 (La.App. 3rd Cir.1977) where a broker without a listing agreement was permitted to recover a commission when the broker was the procuring cause and the sale was a direct result of an agreement which the broker negotiated on behalf of the seller. The reason the sale had not taken place within the specified time limit (but only later) was because of the buyer’s recalcitrance.

      . La.C.C. art. 1963 provides:
      When the intent of the parties is evident and lawful, neither equity nor usage can be resorted to, in order to enlarge or restrain that intent, nor can any law operate to that effect, unless it be some prohibition or other provision, which the parties had no right to modify or renounce.

      .La.C.C. art. 2294 provides:
      All acts, from which there results an obligation without any agreement, in the manner expressed in the preceding article, form quasi contracts. But there are two principal kinds which give rise to them, to wit: The transaction of another’s business, and the payment of a thing not due.

      . When the Edmonstons were in financial difficulties, A-Second Mortgage took over the property, cancelling their second mortgage and relieving the Edmonston’s from further financial obligations on the property by assuming the first mortgage. In effect, A-Second Mortgage bought the house and land for an express price, consisting of the outstanding balances on the first and second mortgages. Then, when the insured mortgagee (Mr. Edmonston) died accidentally, and the proceeds of his life insurance contract were paid to the first mortgage creditor to retire the debt on the property (the first mortgage creditor being the loss payee on the insurance policy), A-Second Mortgage enjoyed a windfall debt cancellation in that amount. Mrs. Edmonston’s patrimony was decreased when the insurance proceeds to which she was beneficiary was diverted to retire A-Second Mortgage’s debt obligation rather than paid into her estate.


source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    Bobbie J. HART, et al. v. ALLSTATE INSURANCE COMPANY, et al.
    No. 83-C-0524.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
    Rehearing Denied Oct. 7, 1983.

      Joseph H. Simpson, Charles M. Reid, Am-ite, for applicant.
    E. Kelleher Simon, Murphy & Simon, Covington, Henry A. Mentz, Jr., Hammond, for respondents.
   MARCUS, Justice.

Bobbie J. Hart, individually and as natural tutrix of her minor child, Carolyn Hart, instituted this action against Willie Route and her own insurer, Allstate Insurance Company, to recover damages for bodily injuries sustained by her and her daughter resulting from a two-car accident. Plaintiff also sought penalties and attorney fees from Allstate.

It was alleged that on May 29, 1980, plaintiff and her daughter were passengers in a vehicle owned by plaintiff and driven by Karen D. Hart which collided with a vehicle owned and operated by Willie B. Route. It was further alleged that Route’s negligence was the sole cause of the accident and that Route was uninsured at the time. In addition, it was alleged that Allstate had issued to plaintiff an automobile liability policy which included medical payments and uninsured motorist coverage, and that, despite notice, Allstate had arbitrarily refused to respond to plaintiff’s demand for payment under these provisions. Allstate and Route filed answers denying liability, Route’s uninsured status and asserting that the sole cause of the accident was the negligence of Karen Hart or, alternatively, that she was contribdtorily negligent. Prior to trial, Allstate paid $838 in medical bills which plaintiff’s attorney had submitted to the company.

After trial, the jury returned a special verdict finding that Route was negligent and that plaintiff was entitled to $1,000 and her daughter, $2,500, for injuries sustained by them as a result of the accident. The jury further found that plaintiff was entitled to penalties and attorney fees for Allstate’s failure to timely pay medical expenses and to settle the claim under the uninsured motorist provision of the policy. The trial judge rendered judgment in conformity with the jury’s answers to the special questions and according to applicable law. Attorney fees were fixed at $4,500. The court of appeal affirmed the award of general damages but reversed the granting of penalties and attorney fees. On plaintiff’s application, we granted certiorari to review the correctness of that decision.

The issues presented for our determination are: (1) whether plaintiff is entitled to penalties and attorney fees for failure of Allstate to timely pay medical expenses; (2) whether the statute imposing penalties and attorney fees applies to an uninsured motorist claim and, if so, is plaintiff entitled to recover same under the facts of this case; and (3) whether the jury abused its discretion in the award of general damages.

FACTS

Our review of the record reveals the following facts. On May 29, 1980, plaintiff and her daughter, Carolyn, were passengers in an automobile owned by plaintiff and driven by her sister, Karen D. Hart. The Hart vehicle was proceeding in an easterly direction on East Cherry Street in Amite, Louisiana, when a vehicle, owned and operated by Willie Route proceeding in the opposite direction, began to weave from one lane of traffic to another. Ms. Hart also began to switch lanes to avoid the Route vehicle but was unsuccessful and a collision occurred in the middle of the road. Mr. Route was arrested and a photoelectric in-toximeter test revealed .258% by weight of alcohol in his blood. He was charged with reckless driving and simple drunk.

Carolyn suffered a blow to her mouth which required stitches immediately after the accident. Several days later, she went to a dentist. A root canal was performed and a cap was placed on this tooth. Plaintiff received a bruise on her leg and a back sprain. She was employed at a hospital and the following day she saw her doctor in the hall and complained of a sore leg and back. X-rays were performed which proved to be negative. Further x-rays taken about two and a half months, thirteen months and eighteen months after the accident also proved to be negative. She returned to her doctor in April 1981 (some eleven months after the accident) and complained of tightness in her back but denied having any real pain. Two other doctors who examined plaintiff found no objective findings. Plaintiff did not miss any work.

Allstate had issued an automobile policy to plaintiff covering the vehicle involved in the accident. The policy was in full force and effect at the time. The policy included coverage for medical payments- in the amount of $1,000 for each person and uninsured motorist coverage in the amount of $5,000 for each person, $10,000 for each accident.

On June 3, 1980, Allstate was notified of the accident by plaintiff’s insurance agent. The Allstate’s adjuster’s diary indicates that on June 4, plaintiff was contacted with regard to the accident. The adjuster was told that Mr. Route had crossed over into the Hart’s lane and that Karen had moved into the other lane to avoid the accident and the collision had occurred in the “middle of both lanes.” The diary also indicates that plaintiff had a sore leg and that Carolyn had injured her tooth and mouth. On the same day, medical pay forms were mailed to plaintiff. On June 5, Allstate contacted Willie Route. He informed Allstate that, although he had been ticketed for reckless driving, the Hart vehicle had crossed over into his lane, he had stopped, and was then hit by the Hart vehicle. He was also asked as to the name of his insurer. He stated that he did not know offhand but would cheek his papers and let them know. On the same day, Allstate also contacted the investigating officer. He informed them that Mr. Route had admitted fault at the scene but nothing was said about the ticket, the test results or that Route had been charged with simple drunk. On July 1, Allstate sent another letter asking plaintiff to forward her medical bills and to complete the medical pay “package” so that payment could be made. Allstate did not receive any medical bills from plaintiff until August 25, 1980. On that date, Allstate received a letter from plaintiff’s counsel' demanding payment, together with medical bills. On September 2, Allstate wrote plaintiff’s counsel enclosing medical forms and informing him that the forms had to be completed by plaintiff and her physicians before payment could be made. By letter dated September 4, 1980, plaintiff’s counsel returned a signed medical authorization form to Allstate along with an additional medical bill. On October 3, plaintiff’s attorney wrote Allstate enclosing the medical reports on plaintiff and her daughter. In addition, he informed Allstate for the first time that Mr. Route was uninsured and made demand for the policy limits of $10,-000 ($5,000 for each person) under the uninsured motorist provision of plaintiff’s policy. He also enclosed an additional medical bill of $20 and made further demand for payment of the medical expenses ($838). On October 23, 1980, the instant suit was filed. On November 18, 1980, plaintiff’s medical expenses were paid in full.

PENALTIES AND ATTORNEY FEES FOR FAILURE TO TIMELY PAY MEDICAL EXPENSES

Plaintiff’s claim for penalties and attorney fees is predicated on La.R.S. 22:658, which provides in pertinent part:

All insurers issuing any type of contract other than those specified in R.S. 22:656 [life insurance] and 22:657 [health and accident insurance] shall pay the amount of any claim due any insured ... within sixty days after receipt of satisfactory proofs of loss from the insured, .... Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, ... together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount....

In the instant case, we find that Allstate failed to pay plaintiff’s medical expenses under the medical payments provision of the policy within sixty days after receipt of satisfactory proof of loss and demand therefor. Allstate was in possession of several of plaintiff’s bills on August 25,1980, was informed that these bills were in connection with the accident, and demand was made for payment. On August 29 and September 4, 1980, plaintiff submitted additional bills and furnished Allstate with a medical authorization form. At this time, if Allstate doubted that the medical bills did not arise from the accident, it was encumbent upon Allstate, not plaintiff, to investigate the claim within the sixty-day statutory period beginning September 4, 1980. The bills were not paid nor was an investigation of the claim, of which there had never been any real dispute, conducted by Allstate within the time allowed by law. Accordingly, we find that Allstate’s failure to pay this claim within the prescribed period was arbitrary, capricious and without probable cause. Hence, the court of appeal erred in reversing that part of the judgment of the trial court awarding penalties and attorney fees for the failure of Allstate to timely pay plaintiff’s medical expenses.

PENALTIES AND ATTORNEY FEES FOR FAILURE TO PAY THE UNINSURED MOTORIST CLAIM

La.R.S. 22:658 provides that all insurers issuing “any type” of “contract” other than life insurance and health and accident insurance shall pay the amount of any claim due any insured. Uninsured motorist coverage is a contract whereby the insurer agrees to pay all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured or underinsured motor vehicle because of “bodily injury” sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured or underinsured motor vehicle. Accordingly, La.R.S. 22:658 is applicable to an uninsured motorist claim. However, this statute is penal in nature and, consequently, must be strictly construed. Headrick v. Pennsylvania Millers Mutual Insurance Company, 257 La. 1101, 245 So.2d 324 (1971). Also, one who claims penalties and attorney fees has the burden of proving that the insurer has received “satisfactory proof of loss” as a necessary predicate to a showing that the insurer was arbitrary, capricious or without probable cause. Steadman v. Pearl Assurance Company, 242 La. 84, 134 So.2d 884 (1961).

A “satisfactory proof of loss” within the meaning of La.R.S. 22:658 is that which is sufficient to fully apprise the insurer of the insured’s claim. La.R.S. 22:1406(D)(1)(a) (uninsured motorist statute), which provisions govern the issuance of uninsured motorist coverage in this state, provides in pertinent part:

No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; ... (Emphasis added.)

In our view, the intent and effect of this provision is plain. A person insured under the uninsured motorist provision of a particular policy must establish that he is “legally entitled to recover” damages from the owner or operator of an uninsured or underinsured motor vehicle in order to obtain coverage thereunder. Breaux v. Government Emp. Ins. Co., 369 So.2d 1335 (La.1979). The words “legally entitled to recover” mean simply that the plaintiff must be able to establish fault on the part of the uninsured motorist which gives rise to damages and prove the extent of those damages. Booth v. Fireman’s Fund Insurance Company, 253 La. 521, 218 So.2d 580 (1969). Accordingly, to establish a “satisfactory proof of loss” of an uninsured motorist claim, the insured must establish that the insurer receive sufficient facts which fully apprise the insurer that the owner or operator of the other vehicle involved in the accident was uninsured or underinsured, that he was at fault, that such fault gave rise to damages and establish the extent of those damages.

In the instant case, we do not find that plaintiff carried her burden of proving that the insurer received a “satisfactory proof of loss” of her uninsured motorist claim. First, there was a genuine dispute as to who was at fault in the accident. Allstate’s adjuster was informed by the insured that Karen Hart had switched lanes several times and that the accident occurred in the “middle of both lanes.” On the other hand, Willie Route related a substantially different version of the accident. The fact that Mr. Route admitted fault does not change these facts nor would such an admission be binding on Allstate. In addition, plaintiff and her daughter testified that they knew that Mr. Route had been drinking and plaintiff was in possession of information which indicated that Mr. Route was legally intoxicated at the time of the accident. Yet, this information was not relayed to Allstate so that it could properly evaluate her claim.

Secondly, it was not until October 3,1980, that plaintiff informed Allstate that Mr. Route was uninsured. Mr. Route had previously informed Allstate that he did not know offhand whether he had any insurance but would check his papers and call Allstate back. La.R.S. 22:1406(D)(6)(a-c) provides a method whereby the insured may establish that the owner and operator of the vehicle involved did not have automobile liability insurance in effect on the date of the accident. Plaintiff made no effort to furnish this information to Allstate.

Finally, plaintiff demanded the full policy limits of $5,000 for both herself and her daughter. The jury’s verdict of $1,000 for plaintiff and $2,500 for her daughter established that she was clearly not “legally entitled” to the amounts she demanded.

In sum, we conclude that plaintiff failed to prove that Allstate received a “satisfactory proof of loss” which fully apprised the insurer that she was “legally entitled to recover” from the uninsured motorist. Hence, the court of appeal did not err in reversing that part of the judgment of the trial court awarding penalties and attorney fees for failing to settle plaintiff’s uninsured motorist claim.

Having found that plaintiff is entitled to penalties and attorney fees for the failure of Allstate to timely pay the medical expenses, we must determine what a reasonable attorney fee would be for the prosecution and collection of this claim. Our review of the record reveals that a fee of $500 would be appropriate.

PLAINTIFF’S GENERAL DAMAGES

Before an appellate court can disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its discretion in making its award. La.Civ.Code art. 1934(3); Carollo v. Wilson, 353 So.2d 249 (La.1977); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Anderson v. Welding Testing Laboratory, 304 So.2d 351 (La.1974). Our review of the record reveals that both plaintiff and her daughter received minor injuries. Accordingly, we do not find that the jury abused its “much discretion” in finding that plaintiff was entitled to $1,000.00 and Carolyn $2,500.00 for their injuries. •

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed only insofar as it denied penalties and attorney fees for the failure of Allstate to timely pay the medical expenses; otherwise, it is affirmed. Judgment is rendered in favor of Bobbie J. Hart individually and as natural tutrix of her minor child, Carolyn Hart, and against Allstate Insurance Company for $98.16, which is 12% of $818, as penalties and $500 as attorney fees. All costs of .this appeal are taxed one-half to plaintiff and one-half to Allstate.

WATSON, J., concurs, but would award a larger attorney fee.

LEMMON, J., concurs.

      . 426 So.2d 711 (La.App. 1st Cir.1982).

      . 431 So.2d 2 (La.1983).

      . Allstate argues in brief to this court that the adjuster’s diary indicates that the medical authorization form was not received by Allstate until September 18, 1980. However, no testimony was presented at trial which would support this contention. In any event, payment was not received by plaintiff until November 18, 1980, sixty-one days after receipt of the medical authorization form.

      . As previously indicated, a medical bill for $20.00 was not submitted to Allstate until October 3, 1980. Since the medical bills were paid on November 18, 1980, this bill was timely paid. Hence, a penalty of 12% will be imposed on only $818 of the $838 of medical bills.

      . La.R.S. 22:1406 provides in pertinent part:
      (6) In any action to enforce a claim under the uninsured motorist provisions of an automobile liability policy, the following evidence shall be admissible as prima facie proof that the owner and the operator of the vehicle involved did not have automobile liability insurance in effect on the date of the accident in question:
      (a) The introduction of sworn notarized affidavits from the owner and the operator of the alleged uninsured vehicle attesting to their current addresses and declaring that they did not have automobile liability insur-anee in effect covering the vehicle in question on the date of the accident in question. When the owner and the operator of the vehicle in question are the same person, this 'fact shall be attested to in a single affidavit.
      (b) A sworn notarized affidavit by an official of the Department of Public Safety to the effect that inquiry has been made pursuant to R.S. 32:871 by depositing the inquiry with the United States mail, postage prepaid, to the address of the owner and operator as shown on the accident report, and that neither the owner nor the operator has responded within thirty days of the inquiry, or that the owner or operator, or both, have responded negatively as to the required security. This affidavit shall be served by certified mail upon all parties fifteen days prior to introduction into evidence.
      (c) Any admissible evidence showing that the owner and operator of the alleged uninsured vehicle was a nonresident or not a citizen of Louisiana on the date of the accident in question, together with a sworn notarized affidavit by an official of the Department of Public Safety to the effect that on the date of the accident in question, neither the owner nor the operator had in effect a policy of automobile liability insurance.


author: LEMMON, Justice. CALOGERO, Justice, DENNIS, Justice,

text:
    STATE of Louisiana v. Robert J. RODRIGUE.
    No. 83-KK-0431.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
    Dissenting Opinion Sept. 30, 1983.
    Rehearing Denied Oct. 7, 1983.
    Joseph R. Raggio, Baton Rouge, for relator.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., James L. Alcock, Asst. Dist. Atty., for respondent.
   LEMMON, Justice.

This matter, involving a prosecution for second degree murder, is before the court for the second time on the issue of pretrial suppression of inculpatory statements. On the first occasion, this court ordered the suppression of certain statements made without the presence of counsel, after defendant had invoked that right, and remanded the case for an evidentiary hearing as to earlier statements, which were asserted to be the product of an illegal arrest. 409 So.2d 556. After the hearing, the trial court concluded there was probable cause for defendant’s arrest and denied the motion to suppress as to the statement made prior to the request for counsel. We granted certiorari to review the latest ruling. 430 So.2d 92. Upon reviewing the record, we conclude that there was a sufficient basis for the issuing magistrate’s determination of probable cause to arrest defendant, and we therefore affirm the trial court’s denial of the motion to suppress the statements made prior to defendant’s invoking his right to counsel.

On October 24,1979, the victim, a 51-year old woman, disappeared after dropping her children off at a football game. Although her car and purse were found later that night, her body was not found until ten days later. The cause of death was strangulation.

On November 15, 1979, Mr. and Mrs. Glenn Hutchinson learned of the murder after returning from vacation. They notified the police that they had seen, on the night of the murder in the area where the victim’s blue Chevrolet was found, an unusual incident involving a man in an 18-wheel truck and a woman in a blue car. During the investigation, the Hutchinsons positively identified the victim’s car and tentatively identified defendant’s truck as the ones involved in the incident.

Based on this information and other information possibly linking defendant to two recent kidnappings and rapes involving the use of an 18-wheel truck, the police on November 17, 1979 obtained a warrant to arrest defendant. After the arrest at 5:05 p.m. and before the police vehicle arrived at the station at 5:25 p.m., defendant made the oral statement which is the subject of the present inquiry. The admissibility of the statement turns on whether the police had probable cause to arrest defendant.

At the evidentiary hearing on probable cause, five police officers outlined the following information, which was developed in the investigation following the murder and was ultimately presented to the judge who issued the arrest warrant. On the evening of the murder, Mr. and Mrs. Hutchinson were preparing to leave on a trip and went to H & H Marine on Little Bayou Black to attend to some last minute details. When they arrived, they saw a lady in a fairly new blue Chevrolet in the driveway. The trailerless cab of an 18-wheel truck was parked nearby on the shoulder of the road. Mr. Hutchinson approached the lady, who explained that the truck driver had signaled her over and advised that her car was on fire. She stated that she had started to park the car, but had decided to try to make it home, with the truck driver following her in case there was more trouble. The truck driver got out of the vehicle and walked toward them, but turned around and reentered the cab without talking to the Hutch-insons. The lady then drove off toward the St. Charles Extension, followed by the man in the truck, which the Hutchinsons described as brown and yellow with “lots of chrome”.

The Hutchinsons spent about four minutes at the office and then proceeded on the St. Charles Extension, where they saw the lady’s blue Chevrolet on the side of the road. Not seeing the truck, they assumed that further car trouble had developed and that the truck driver had taken the lady home.

Upon returning from the trip, the Hutch-insons learned of the murder and the discovery of the victim’s car on the St. Charles Extension. The police interviewed the Hutchinsons on November 16 and determined that the witnesses’ description of the lady and the car they had seen at H & H matched the victim and her car, which the police found at the exact spot on St. Charles Extension described by the Hutchinsons.

Armed with the description of the apparent murderer and of the vehicle used to kidnap the victim, the officers returned to headquarters and discussed the matter with other officers. One officer recalled a similar incident on Coteau Road in September, 1979, in which a man in an 18-wheeler cab signaled a woman over to the side of the road and told her that her car was on fire before kidnapping and raping her. The victim’s description of the truck driver in that case (five feet, seven inches tall and stockily built) matched the Hutchinsons’ description of the truck driver in the present case (five feet, eight or nine inches tall, stocky build, mustache and thick black or brown hair). However, the truck used in that case was described as blue.

Another officer remembered investigating a reported rape in the cab of an 18-wheel truck in the parking lot of Gaylord’s shopping center in April, 1979. The officers checked the records of the Gaylord’s incident and determined that defendant was the alleged rapist and that his physical characteristics matched the description of the truck drivers in the Coteau Road rape and the present murder.

The officers prepared a photographic lineup, consisting of pictures of defendant and five other persons. However, while the Hutchinsons found defendant’s photograph to be “similar”, neither could positively identify defendant as the truck driver seen on the night of the murder.

The officers made inquiries of persons in the trucking business and learned that defendant in fact owned a brown and yellow truck, which he kept next door to his home on Marietta Street in Gray. One of the officers then took the Hutchinsons to defendant’s home to view his brown and yellow truck. Upon observing the truck, the Hutchinsons stated that “it looked like the truck”, but that they “couldn’t tell one hundred percent because the cab was down”.

Significantly, the officer who had conducted the photographic lineup and had taken the Hutchinsons to view the truck stated on cross-examination that he had been in the trucking business for four years and had never seen another truck in the area with that color scheme.

The officers obtained a warrant on the basis of this information and arrested defendant.

Probable cause for an arrest exists when the facts and circumstances, of which the police have reasonably reliable information, justify the belief that the person to be arrested has committed a crime. The magistrate may issue an arrest warrant based on the facts and circumstances asserted in the affidavit, as well as those asserted verbally by the officer at the time the warrant is obtained. State v. Haynie, 395 So.2d 669 (La.1981).

The process of determining probable cause for the issuance of search and arrest warrants does not involve certainties or proof beyond a reasonable doubt, or even a prima facie showing, but rather involves probabilities of human behavior, as understood by persons trained in law enforcement and as based on the totality of circumstances. See Illinois v. Gates, - U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The process simply requires that enough information be presented to the issuing magistrate to enable him to determine that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal justice system. Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965).

Furthermore, this case involves the review of a magistrate’s determination of probable cause prior to issuing the warrant. Such a determination is entitled to significant deference by reviewing courts. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). As the Supreme Court stated in Gates, “after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review.” - U.S. at -, 103 S.Ct. at 2331. Additionally, because of “the preference to be accorded to warrants”, marginal cases should be resolved in favor of a finding that the issuing magistrate’s judgment was reasonable. United States v. Ventres-ca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965).

In the present case, the police officers knew that a vicious murder had been committed in November, 1979, after a female motorist had been signaled off the road by a truck driver and told that her car was on fire; that defendant’s physical description matched that of the truck driver, who was the last person seen with the victim just before her disappearance and was the probable murderer; that defendant’s 18-wheel truck cab exactly matched the description of the vehicle observed in the incident just before the victim’s disappearance and was possibly the only truck in Terre-bonne Parish with that unusual color scheme; that defendant had been the subject of a reported kidnapping and rape in the cab of a similar type vehicle in April, 1979, and had admitted having intercourse with the woman who reported the incident; and that a person matching defendant’s physical description had. signaled a woman motorist off the road, under the pretext that her automobile was on fire, before kidnapping and raping her in September, 1979.

While this information was insufficient to establish every element of the crime of second degree murder beyond a reasonable doubt, the totality of the circumstances presented to the judge issuing the warrant established the probability of defendant’s involvement in known criminal activity and provided a substantial basis for the judge to reach a practical and commonsense decision that there was a fair probability that defendant had committed the crime. See Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

For these reasons, the judgment of the district court denying the motion to suppress the pertinent statement is affirmed.

CALOGERO, J., dissents and assigns reasons.

DENNIS, J., dissents with reasons.

CALOGERO, Justice,

dissenting.

I respectfully dissent.

Probable cause to arrest exists when the facts and circumstances within the arresting officer’s knowledge and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in the belief that the person to be arrested has committed a crime. State v. Johnson, 422 So.2d 1125 (La.1982); State v. Hathaway, 411 So.2d 1074 (La.1982). While there need not be sufficient proof to convict, mere suspicion is not enough. State v. Johnson, supra; State v. Thomas, 349 So.2d 270 (La.1977).

The information available to the police officers at the time they obtained the warrant consisted of the following: 1) Witnesses spoke to the victim on the night of the murder and learned that a male truck driver, about five feet, eight or nine inches tall, stocky build, mustache and thick black or brown hair had caused the victim to pull her car off to the side of the road when he told her that the car was on fire. 2) The witnesses stated that the truck driver was driving a brown and yellow truck with a lot of chrome; 3) The defendant in the instant case became a suspect in an incident in which the driver of a blue truck signalled a woman over to the side of the road and told her that her car was on fire before kidnapping and raping her; 4) The defendant was a suspect in an alleged rape for which he was never booked; 5) The witnesses who had seen the victim and a man fitting the defendant’s description together on the night of the murder were unable to identify positively the defendant from a photographic display; 6) The witnesses were taken by the defendant’s house to view his truck. They merely stated that it looked like the truck they had seen on the night of the murder but they could not be 100 percent sure. Additionally, one of the detectives, who had worked previously as a truck dispatcher, observed that he had never seen another truck in the area with that color scheme. The majority opinion attaches significance to this factor. Their reliance on this point, however, is misguided because it assumes that the detective observed or had knowledge of the color scheme of every tractor trailer which might have passed through the area. At the same time the majority finds this factor significant they give little or no weight to the observations of another officer who, without a background in trucking, speculated that there were a number of such trucks in the area fitting the description provided by the witnesses.

Based upon these facts and circumstances I do not feel that there was sufficient information available to justify the issuance of an arrest warrant. Thus, I would require suppression of the statements made minutes after the illegal arrest.

In addition, I feel that footnote five is unnecessary and that the suggested proposition, i.e., that knowledge should be imputed among members of the same investigating team, does not follow as a general rule from the authorities cited. In United States v. Ragsdale, 470 F.2d 24 (5th Cir.1972), two officers had stopped the defendant’s car for speeding. One of the officers observed a pistol on the floorboard. This same officer walked away with the defendant in order to question him and write a ticket. The officer who had not observed the gun in plain view and who was apparently unaware of the other officer’s knowledge searched the passenger compartment of the vehicle where he discovered several guns. Judge Clark, writing for the majority, felt that in the circumstances of that case it would be “hypertechnical” to bifurcate the knowledge of the two officers. The situation in that case is obviously distinguishable from the facts in the present case which did not involve the officers at the scene of the arrest. The Ragsdale decision is simply too narrow to be cited as support for the argument suggested by the majority.

Likewise, I find unhelpful the reference to footnote 7 of State v. Smith, 392 So.2d 454 (La.1980). This footnote states:

In a case, such as presented here, in which police officers are working in a large urban police department, a request (or “wanted”) by one police officer alerting others, that he has probable cause to arrest a suspect can be acted upon by other police officers. The test of the validity of the arrest, for purposes of the exclusionary rule, ultimately rests upon whether the investigating officers had sufficient facts to support probable cause. See United States v. Ragsdale, 470 F.2d 24 (5th Cir.1972).

I fail to see how this supports the argument in footnote five of the instant case since there was no communication between the arresting officers and the officers in Mississippi until after the arrest.

DENNIS, Justice,

dissenting.

I respectfully dissent from the majority’s opinion as I am convinced that the arrest of defendant was made without probable cause.

Probable cause for arrest exists when facts and circumstances within the knowledge of the arresting officer and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Arceneaux, 425 So.2d 740 (La.1983); State v. Johnson, 422 So.2d 1125 (La.1982).

The arresting officer, Detective Elstner, acted not upon a reasonable belief based upon knowledge of facts and circumstances but upon a mere suspicion, albeit a strong one. While the Hutchinsons positively identified the victim’s car, they could only tentatively identify the defendant’s truck as the one involved in the incident, could not identify the defendant in a photographic line-up, and could describe the defendant only in very general terms. Furthermore, the other information possibly linking defendant with earlier crimes involving rapes and the use of an 18-wheel truck, which the sheriffs uncovered following their interview with the Hutchinsons, did not elevate the sheriffs’ suspicions to the level of probable cause.

There is some suggestion in the majority’s opinion that the arresting officer can be said to have had probable cause to make the arrest because members of an “investigating team,” who were somewhere in Mississippi at the time of the arrest in Terre-bonne Parish, had probable cause to make the arrest. While there is authority for a “collective information” theory of probable cause, United States v. Ragsdale, 470 F.2d 24 (5th Cir.1972), the jurisprudence does not support its application in situations, such as the one we review today, where the officer who possessed sufficient knowledge to make an arrest was neither in close time-space proximity to the questioned arrest or search nor communicating with the arresting officer. See United States v. Bernard, 623 F.2d 551 (9th Cir.1980); United States v. Butler, 611 F.2d 1066 (5th Cir.1980); State v. Crowder, 1 Hawaii App. 60, 613 P.2d 909 (1980); Tillman v. State, 271 Ark. 552, 609 S.W.2d 340 (1980); Commonwealth v. Gambit, 274 Pa.Super. 571, 418 A.2d 554 (1980); LaFave, Search and Seizure — A Treatise on the Fourth Amendment § 3.5(c) (1978).

      . The later statement, made at the police station, has already been suppressed, as noted earlier.

      . The officer had investigated a radio report of a rape and found defendant asleep in the truck, which contained a woman’s slip. Defendant admitted intercourse, but contended it was consensual after he had picked up the woman in a bar and taken her for a ride in his 18-wheel unit. The woman eventually decided not to press the matter, because it was her word against his. Defendant was never arrested or booked.

      . Defense counsel also questioned two other officers as to the number of brown and yellow trucks in Terrebonne Parish. One speculated that there were “a bunch of them”, but was not questioned about the basis of this statement. The other disclaimed any knowledge on the subject.

      . The fact that the relevant information was conveyed orally to the issuing judge by the officers, rather than, being included in the affidavit, is not significant. State v. Haynie, above.

      . The victim of the September, 1979, rape on the Coteau Road was contacted in Mississippi by Terrebonne Parish detectives on the day of defendant’s arrest. She identified defendant as the rapist from a photographic array between 5:00 and 5:15 p.m. Although the information on the identification was not relayed to the Terrebonne Parish Sheriffs office until 5:45 p.m., after defendant’s arrest at 5:05 p.m., the identification may have occurred before the statement was actually made in the police car, which arrived at the police station at 5:25 p.m.
      Because we find probable cause was established without the inclusion of this additional information (the positive identification of defendant as the Coteau Road rapist), we need not assess its significance. However, it is arguable that facts known to officers who are engaged in a common enterprise of investigating a known offense should be imputed to all members of the “investigating team”. See United States v. Ragsdale, 470 F.2d 24 (5th Cir.1972). See also State v. Smith, 392 So.2d 454 (La.1980), note 7. It is also arguable that the deterrent purposes of the exclusionary rule are not served by excluding a voluntary statement given after an arrest based on a warrant, when the information developed by the officers at the time they obtained the warrant was slightly deficient of probable cause and when additional information sufficient to establish probable cause would ultimately have been discovered by the officers, not as a result of the arrest itself, but as an inevitable discovery resulting from the ongoing investigation which was in progress at the time of the arrest.
      On the other hand, the fact that a better showing of probable cause could have been made, if the officers seeking the warrant had waited for the development of available information, does not detract from the showing of probable cause that was made.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. David M. WARREN.
    No. 83-KA-0288.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
    Rehearing Denied Oct. 7, 1983.

    For dissenting opinion see 438 So.2d 1110.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., W.C.D. Friederichsen, William C. Credo, III, Asst. Dist. Attys., for plaintiff-appellee.
    Brich P. McDonough, McDonough & McDonough, New Orleans, for defendant-appellant.

       Dennis, J., would grant a rehearing.

   BLANCHE, Justice.

David Warren was charged by bill of information with two counts of forgery in violation of La.R.S. 14:72. Following a trial by jury on March 2, 1982, he was found guilty as charged of both counts. Thereafter, the defendant was sentenced to serve five years imprisonment at hard labor on each count, said sentences to run concurrently. On appeal, defendant relies upon three assignments of error for reversal of his conviction and sentence.

In the summer of 1981, Gumpert, a special investigator for the First Bank Card Center, began checking into reports of the use of stolen credit cards at Vicker’s Oil Station in Jefferson Parish. The investigation initially focused on the employees of Vickers, including one Billy Huffman, a sixteen year old pump attendant. When questioned by Gumpert, Huffman admitted involvement in a scheme with two other men (defendant and a Donald Napoleon) whereby he would funnel them money from cash paying customers in return for credit slips written on stolen credit cards. Huffman, who knew neither of his confederates by name, agreed to cooperate in the investigation. He described to Gumpert two transactions with the defendant: one on August 10, 1981, and the other on August 15, 1981. On both occasions, the defendant reportedly arrived at Vicker’s driving a yellow V.W. van and used the Visa card of a Gary Pal-misano. Huffman furnished Gumpert with the license number of the van and Gumpert traced the vehicle to defendant. Police were then called into the investigation. Huffman identified defendant in a photographic line-up and a search warrant was obtained. On August 20, 1981, police executed the warrant. Seven stolen credit cards, including a Visa card belonging to Gary Palmisano, were recovered from a shaving kit in the defendant’s bedroom.

At trial, the State’s case for the August 10 and 15, 1981 forgeries rested largely on Huffman’s testimony that he witnessed the defendant sign Palmisano’s name to the credit slips. For his part, defendant denied any involvement in the forgeries. Accord-' ing to the defendant, he had found the credit cards after a basketball game with his brother, Robert, and had picked them up, intending to turn them in for a reward. Defendant argued that he could not have driven his van to the Vicker’s station on the dates of the forgeries as he had abandoned the vehicle on the interstate on August 10, 1981, after it had “thrown a rod,” and had not retrieved the vehicle until just moments before police executed the search warrant on August 20, 1981. Robert Warren, the defendant’s brother, confirmed defendant’s accounts of the discovery of the stolen credit cards and of the necessity of towing the disabled van home when the brothers retrieved it on August 20, 1981. However, Trooper Durel, one of the officers who executed the August 20 search warrant, testified that the van arrived at defendant’s residence under its own power and did not have to be towed as defendant claimed. The jury rejected defendant’s alibi defense and convicted him of two counts of forgery.

ASSIGNMENT OF ERROR NO. 1

By this assignment, defendant contends that the trial court erred in denying his motion for a continuance.

During the presentation of its case in chief, defense counsel excused the jury and moved for a continuance for the purpose of producing the testimony of Donald Napoleon. According to Billy Huffman, it was Donald Napoleon who first approached Huffman and initiated the credit card scheme with him. Napoleon then introduced Huffman to the defendant who also became involved in the scheme. On the basis of information supplied by Huffman, Napoleon was arrested, convicted, and sentenced to serve time in parish prison.

In orally moving for a continuance, defense counsel explained that prior to trial he had determined that Napoleon was serving time in the Jefferson Parish Correctional Center on a sentence that would run beyond the trial date of defendant. Defense counsel felt certain that if it became necessary to call Napoleon to testify, all he had to do was ask the court to produce him. However, as counsel explained to the court, it was not until the date of defendant’s trial that counsel learned that because of the application of good time, Napoleon had been released in January, 1981. Counsel requested the continuance in order to locate Napoleon and serve him with a subpoena. He explained that defendant was certain that once located, Napoleon would testify that he had never been in the Vicker’s Station or met with Huffman and the defendant. The trial court denied counsel’s motion without comment.

We note at the outset that the motion for a continuance should have been styled a motion for recess. However, this misnomer does not prevent the court from examining the motion as though it had been properly denominated. State v. White, 389 So.2d 1300 (La.1980). A motion for recess is evaluated by the same standards as a motion for continuance. State v. White, 389 So.2d 1300 (La.1980); State v. Sharp, 321 So.2d 331 (La.1975). Therefore, to be entitled to a recess to secure the presence of a witness, the defendant must state:

(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3) Facts showing due diligence used in an effort to procure attendance of the witness.
La.C.Cr.P. art. 709.

In the present case, defendant has failed to make the showing necessary to entitle him to a recess. In the first place, counsel can scarcely excuse his failure to anticipate Napoleon’s good time credits or at least check with the prison authorities on the witness’ actual release date. In addition, counsel had ample time after Napoleon’s release to prepare for trial and deter-' mine the witness’ whereabouts. Instead, counsel began trial, announcing to the court that he intended to call only one witness (defendant’s brother), and did not even bother to call parish prison to check on Napoleon’s whereabouts before the jury was selected. Under these circumstances, counsel’s failure to subpoena the witness clearly indicated a lack of due diligence. State v. Atkins, 360 So.2d 1341 (La.1978).

Furthermore, counsel did not personally interview Napoleon, but relied solely on the assurances of defendant that the witness’ testimony would be favorable. Counsel therefore could not, and did not, state to the court the “facts” to which the witness was expected to testify with any degree of particularity.

Finally, counsel offered no assurances that he could locate and produce Napoleon in the future, or that the witness would testify with regard to the credit card scheme despite his Fifth Amendment protections.

The decision to grant a recess is placed in the discretion of the trial court. State v. Gordy, 380 So.2d 1347 (La.1980). A decision by the trial court will not be overturned absent an abuse of that discretion. State v. Gordy, 380 So.2d 1347 (La.1980); State v. Charles, 350 So.2d 595 (La.1977). In the instant case, counsel has failed to demonstrate the existence of any of the statutory grounds which would entitle him to a recess. Given this fact, we cannot conclude that the trial court abused its discretion in denying the motion for a continuance.

ASSIGNMENT OF ERROR NO. 2

By this assignment, the defendant maintains that the trial court erred in disqualifying a witness on the grounds that he violated the court’s sequestration order.

At the outset of defendant’s trial, defense counsel asked for and obtained an order requiring sequestration of the witnesses. Later, during the presentation of its case in chief, defense counsel attempted to call William Jackson, the defendant’s uncle, to testify. The State objected to Jackson’s testifying on the grounds that the witness had been present in the courtroom during trial in violation of the court’s sequestration order.

Defense counsel explained that Jackson had not been in the courtroom when the order of sequestration had been issued, that he had no knowledge that Jackson had ever been in the courtroom, and that, at any rate, he had not originally intended to call Jackson as a witness. According to counsel, he did not know that Jackson had relevant information about defendant’s case until sometime during the course of trial when Jackson revealed that he had been present at defendant’s residence when defendant and his brother, Robert, returned to that residence towing the defendant’s disabled van. The defense argued that Jackson’s testimony was important as it would corroborate the testimony of defendant and his brother and prove that the van had been broken down for several weeks, particularly during the time that Billy Huffman testified that the defendant drove the van into Yicker’s Oil Station and used the credit card to obtain cash. The trial court sustained the State’s objection and disqualified Jackson from testifying.

La.C.Cr.P. art. 764 provides the rule for the sequestration of witnesses:

Upon its own motion the court may, and upon the request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice.

The purpose of sequestration is to assure that a witness will testify from his own knowledge of the case without being influenced by the testimony of prior witnesses, and to strengthen the role of cross-examination in developing the facts. State v. Armstead, 432 So.2d 837 (La.1983); State v. Kimble, 407 So.2d 693 (La.1981).

La.C.Cr.P. art. 764 vests discretion in the trial judge to disqualify a witness when a rule of sequestration has been violated. State v. Kimble, 407 So.2d 693 (La.1981); State v. Boutte, 384 So.2d 773 (La.1980). Ordinarily, the trial judge’s ruling will not be disturbed on appeal absent a clear showing of abuse of discretion. State v. Kimble, 407 So.2d 693 (La.1981); State v. Boutte, 384 So.2d 773 (La.1980). However, there are constitutional limitations on the trial judge’s exercise of his discretion. State v. Boutte, 384 So.2d 773 (La.1980); State v. Jones, 354 So.2d 530 (La.1978). When the exclusion is of a defense witness, the defendant’s right to compel the attend-anee of witnesses and to present his defense may be impaired. La. Const, art. 1, § 16; State v. Armstead, 432 So.2d 837 (La.1983); State v. Jones, 354 So.2d 530 (La.1978). In State v. Jones, 354 So.2d 530, 532 (La.1978), this court recognized that:

Although our jurisprudence allowing trial judges to enforce sequestration pursuant to La.C.Cr.P. art. 764 by excluding testimony of disobedient witnesses does reflect a legitimate state interest in preventing testimonial influence that interest is not sufficient to override the defendant's rights to have compulsory process and to present a defense under either the federal or the state constitution.

We then followed Braswell v. Wainwright, 463 F.2d 1148 (5th Cir.1972) and held that exclusion of a witness’ testimony, in the absence of a sequestration violation with the consent connivance, procurement or knowledge of the defendant or his counsel, is constitutionally impermissible. State v. Jones, 354 So.2d 530 (La.1978). See also, State v. Armstead, 432 So.2d 837 (La.1983); State v. Boutte, 384 So.2d 773 (La.1980).

In the instant case, the trial judge excluded the testimony of William Jackson because he had been present during the testimony of Trooper Durel. In oral argument, the defendant’s attorney stated that he was not aware that Jackson had information relevant to his client’s defense or that Jackson had been present in the courtroom during trial. There is nothing in the record to indicate that Jackson’s presence was brought about with the consent, connivance, procurement or knowledge of the defendant or his counsel. Therefore, the trial court clearly erred in excluding the testimony of William Jackson.

However, not every erroneous exclusion of a disobeying witness’ testimony is reversible error. If the testimony was not material and significant to a degree which would render its exclusion prejudicial to substantial rights of the accused, or which would constitute a substantial violation of a constitutional or statutory right, then the defendant has not been prejudiced by the court’s ruling. State v. Boutte, 384 So.2d 773 (La.1980); State v. Jones, 354 So.2d 530 (La.1978).

In the present case, the defendant argues that Jackson’s testimony is both material and significant as it corroborates the testimony of defendant and his brother that defendant’s van had been broken down for several weeks, and casts doubt upon the credibility of Billy Huffman and Trooper Durel.

While Jackson’s testimony may be relevant to the case, it is merely cumulative to the accounts given by defendant and his brother. Furthermore, it is testimony coming from a member of the family, not from an independent witness, who was present in the courtroom during the testimony of the very witness he was being called upon to contradict (Trooper Durel).

In view of the fact that Jackson had been present in the courtroom during trial and that his testimony was merely cumulative and corroborative proof of facts already testified to by a witness for the defendant, it does not appear that the trial judge committed reversible error in refusing to permit William Jackson to testimony.

DECREE

For the reasons assigned, the defendant’s conviction and sentence are affirmed.

      . Assignment of error number three concerns the trial court’s denial of defendant’s motion for a new trial. Because that assignment simply reurges the arguments made in assignments numbers one and two, it will not be considered separately.

      . A continuance is the postponement of a scheduled trial or hearing, and cannot be granted after the hearing is commenced. A recess, on the other hand, is a temporary adjournment of a trial or hearing after it has commenced. La.C.Cr.P. art. 708.


author: DIXON, Chief Justice.

text:
    Lloyd GUILLOT and Karen Sellers Guillot v. FISHERMAN’S PARADISE, INC., Flying Bridge Marina, Inc., Gilbert L. Dozier and Gerald Strickland.
    No. 83-C-0057.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
    Rehearing Denied Oct. 7, 1983.

      Daniel J. McGee, Rozas, Manuel & McGee, Mamou, for applicants.
    Felix R. Weill, Watson, Blanche, Wilson & Posner, Thomas H. Watts, Charles M. Raymond, Mary Thompson, Baton Rouge, for respondents.

       Blanche, J. would grant a rehearing.

   DIXON, Chief Justice.

Mr. and Mrs. Lloyd Guillot sued Fisherman’s Paradise, Inc., Flying Bridge Marina, Inc., Gilbert L. Dozier and Gerald Strickland for the wrongful death of their minor son, Kelin Ray Guillot. Kelin Guillot drowned in a sewerage oxidation pond which was located on property known as the Flying Bridge Marina on Easter Sunday, March 26, 1978. After trial, the court dismissed the Guillots’ claim against the defendant corporations, Flying Bridge Marina, Inc. and Fisherman’s Paradise, Inc. The court of appeal affirmed. Guillot v. Fisherman’s Paradise, Inc., et al., 422 So.2d 1194 (La.App.1982).

The trial court concluded that Fisherman’s Paradise, Inc. and Flying Bridge Marina, Inc. were negligent in failing to enclose the oxidation pond, since it was foreseeable that this kind of accident might occur. The trial judge stated: “Knowing children and their nature, I think it was entirely foreseeable that children would be attracted ... children love to climb hills and mounds and things of that kind, and that there should have been a fence preventing young children from going into that pond.” However, the trial court denied the Guillots recovery, finding that they were contributorially negligent “for allowing a two and one-half year old child to be ridden on a minibike, out of their sight, by an eight and a half or nine year old brother, in an area that was unfamiliar to both parents.” He found that “they failed to provide adequate supervision for the child under the circumstances as they existed at that time.”

Considering the claim under a C.C. 2317 basis, the trial judge stated: “Defendant’s failure to properly fence the pond and to provide sloping sides convinces the Court that the premises had a defect, which defect was a cause of the death of plaintiffs’ child.” He further found that the contributory negligence of the parents constituted “fault of a third party.” He determined that their “conduct being a cause of the accident” precluded them from recovery for the wrongful death of their child.

The court of appeal affirmed the trial court’s findings and judgment. The court of appeal concluded that the Guillots’ recovery was barred under the theory of negligence and under the theory of strict liability because of “their failure to adequately supervise the deceased child.”

We granted writs upon application of the Guillots to review the trial court and the court of appeal judgments as to the defendant corporations, Fisherman’s Paradise, Inc. and Flying Bridge Marina, Inc.

Mr. and Mrs. Guillot and their two children, Kelin Ray, age two and one-half, and Kevin, age eight, had gone to spend the Easter Holiday weekend with Mrs. Guillot’s parents, Mr. and Mrs. Sellers, at the Sellers’ camp on the Toledo Bend Reservoir. Only Kevin had been to the camp previously with his grandfather, Mr. Sellers. On Easter Sunday morning, after breakfast, there was an Easter egg hunt for the children. Following the hunt, Mr. Guillot took the two boys for a paddle boat ride in an inlet of Toledo Bend Lake which bordered the back of the Sellers’ property. The family ate Easter dinner at approximately 1:00 p.m., after which, at about 2:00 or 2:30 p.m., Mr. Guillot, Kevin and Kelin began riding a minibike Mr. Guillot had brought to the camp for Kevin. Mr. Guillot and Kevin took turns giving Kelin a ride on the minibike. Kevin testified that Kelin always rode in front of the driver when being driven on the minibike. The other adults, Mrs. Guillot and Mr. and Mrs. Sellers, were cleaning the Sellers’ yard around a playhouse which was near the driveway gate.

Mr. Guillot ceased riding the minibike and Kevin continued, alternating riding alone and riding his brother. Mr. Guillot joined the other adults cleaning the property. Mrs. Sellers and Kevin testified that when Kevin would let Kelin off of the minibike to ride alone he would put Kelin in the yard and Kelin would go toward the adults until Kevin returned. The driveway gate was left partially open because of the minibike riding.

The ride consisted of a five to eight minute round trip ride on a dirt road which ran from the Sellers’ camp to a blacktop highway. The distance of the ride was approximately three hundred yards. The dirt road dead ended at the camp next to the Sellers’ camp. There was a slight turn in the dirt road which caused the children to be out of sight for a brief period of time during the round trip.

There was testimony by Dennis Smith, a former employee of Flying Bridge Marina, that the two boys rode on another road, partially topped and partially dirt, which ran parallel to the dirt road and led to the Marina. He further testified that he saw them riding on the Marina property past the dock and gas pumps toward the area where the oxidation pond was located. However, Kevin Guillot testified that they only traveled on the dirt road between the Sellers’ camp and the blacktop highway.

Kevin testified that, prior to his last ride alone, he took Kelin for a ride on the minibike and upon returning to the Sellers’ camp let Kelin off inside the open gate and watched him walk toward his grandmother in the direction of the playhouse. Mrs. Guillot testified that- she saw Kelin playing in the sand by the gate eight to ten minutes before it was discovered he was missing.

When Kevin returned from his solo ride, Mrs. Sellers asked him where Kelin was. Kevin and Mrs. Sellers testified that he told her he had let Kelin off inside the gate. A search then began for Kelin, at approximately 3:00 or 3:30 p.m. Forty to sixty minutes later the child’s body was discovered floating face down in the sewerage oxidation pond. Mr. Guillot recovered the child’s body from the pool and attempted to revive him. Upon arrival of the parish officers, Mr. Guillot and one of the officers continued to administer CPR while the child was transported to the hospital in Many, Louisiana. These efforts to save the child’s life were of no avail. The child’s death certificate listed the cause of death as “drowning;” no autopsy was performed.

The Sellers’ camp was completely fenced in on three sides; the fourth side was bordered by the inlet from the lake; the two side fences ran from the front fence along the dirt road into the water. The driveway gate was the only non-water exit and entrance to the Sellers’ camp.

The oxidation pond is approximately one hundred to one hundred twenty yards from the gate of the Sellers’ fenced in property. Between the Sellers’ camp and the oxidation pond lie two roads: the dead end dirt road which leads from the Sellers’ camp to the blacktopped highway and the marina road which paralleled it, then followed the lake bank back to the highway. There was a narrow shallow grassy gully between these two roads. A portion of the three to three and a half foot wire fence which surrounded the marina was down. The marina property facing the Sellers’ lot was not fenced. Debris had been dumped in this area, consisting of some pipes, fifty gallon drums and three or four fallen trees. Some house trailer units rented to fishermen and families were along the road, between the road and the pond, which was fifty to sixty feet from the row of trailers. (The pond actually consisted of two ponds, a smaller one and a larger one, which were separated by a small mound of dirt). The oxidation pond was not visible from the Sellers’ camp; the embankment of the pond, however, was visible from the camp.

The sewerage oxidation pond was completely covered with light green algae approximately one inch thick, trapping trash such as cans and cups. A two and a half to three foot embankment surrounded the pond, but there was no other border surrounding the sewerage oxidation pond. There was a partially completed fence around the pond, but it was only for aesthetic purposes. Mr. Dozier explained: “It was a wooden, crossed fence. Had it been intended to keep children out of the pond or had there been any requirement for that, they’d either have used hog wire or chicken wire, something smaller.” The pond was the same depth from the banks to the middle. Mr. Guillot testified that it was waist deep. The sides of the pond did not slope, but formed a straight drop from the embankment sides into the water.

The record establishes that neither the Guillots nor the Sellers knew of the existence of the sewerage oxidation pond. In fact, the entire marina area, except for the store and the gas pumps in front of the store, was unfamiliar to the Guillots and the Sellers. Kevin testified that he and his grandfather once went to the store to purchase cereal for breakfast at the camp on an occasion prior to the accident. Mr. Sellers had bought gas for the lawnmower the Saturday before Easter from the gas pumps in front of the store.

Mr. Sellers, Mr. Guillot, Mrs. Guillot and Kevin all testified that Kelin had never wandered before and that he was an obedient child. Mr. Guillot, Mr. Sellers and Mrs. Guillot testified that they had warned Kelin about the lake, the only hazard they were aware of, and that he never went to the lake to feed the ducks unless accompanied by an adult.

Actionable negligence results from the creation or maintenance of an unreasonable risk of injury to others. Bass v. Aetna Insurance Co., 370 So.2d 511, 514 (La.1979); Guilbeau v. Liberty Mutual Insurance Co., 338 So.2d 600, 602 (La.1976); Smolinski v. Taulli, 276 So.2d 286, 288 (La.1973). See also Shelton v. Aetna Casualty & Surety Co., 334 So.2d 406 (La.1976); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). In determining whether the risk is unreasonable, not only the seriousness, but also the likelihood of the harm that may be caused is relevant. Bass v. Aetna Insurance Co., supra; Guilbeau v. Liberty Mutual Insurance Co., supra.

“... Further, where small children may be expected to be exposed to the risk, liability for their consequent injury results from conduct or from the maintenance of premise conditions creating an unreasonable risk of injury to them.... ” Smolinski v. Taulli, supra at 288.

Young children are naturally attracted to exposed pools and bodies of water. Exposed bodies of water with no enclosure or barricade present a great risk of drowning to children of tender years. Saxton v. Plum Orchards, Inc., 215 La. 378, 392-93, 40 So.2d 791, 796 (1949); Smith v. City of Baton Rouge, 166 La. 472, 476-77, 117 So. 559, 561 (1928). See also Palermo v. Orleans Ice Manufacturing Co., 130 La. 833, 835-36, 58 So. 589, 590 (1912); Clifford v. Recreation & Park Commission of the Parish of East Baton Rouge, 289 So.2d 373, 376 (La.App.1973), writ denied 293 So.2d 168 (La.1974).

The sewerage oxidation pond was undoubtedly attractive and alluring to children in view of its contents and location. It was covered with a light green grassy algae which contained debris. It was not fenced in or enclosed and was located on a recreation facility near trailers often rented to families on vacation.

The risk of drowning presented by the sewerage oxidation pond could have been easily eliminated by the installation of a fence or other enclosure sufficient to keep children out. Under the circumstances of this case, the installation of a fence or other enclosure was a precaution which a reasonable person would have taken.

Accordingly, as found by the lower courts, the defendants are guilty of negligence and are liable to the decedent’s parents for the wrongful drowning of their minor child under articles 2315 and 2316 of the Louisiana Civil Code.

Nor were the parents barred from recovery by contributory negligence.

The action of the parents in permitting the deceased child to ride on a minibike with his older brother had no causal connection with the child’s drowning in the pond. As noted by Judge Ponder in his dissent: “The child had been dropped off inside the gate within a short distance and within the eyesight of the four adults.” Guillot v. Fisherman’s Paradise, Inc., supra at 1196. Kelin had ceased riding the minibike without adverse results. There was no causal connection between the riding of the minibike and the drowning and, thus, the parents cannot be held contributorily negligent for allowing Kelin to ride the minibike.

Nor was the parental supervision of the child substandard. This court in Smolinski v. Taulli, supra at 290 stated:

“Failure to take every precaution against every foreseeable risk or to use extraordinary skill, caution, and foresight does not constitute negligence or contributory negligence.... A mother of small children is not required to chain them up or to act as their constant jailer in order to absolutely secure them from exposure to hazards negligently created or maintained by a tortfeasor. She is required only to use reasonable precautions, and her conduct in this regard is not negligent if, by a common-sense test, it is in accord with that of reasonably prudent persons faced with similar conditions and circumstances.... ”

See also Smith v. Trahan, 398 So.2d 572 (La.App.1980).

Measured by this standard the parents’ precautions against harm to their child were reasonable and did not fall below the standard of conduct required for such protection. The Guillots and the Sellers had warned Kelin about the lake and had never permitted him to go alone to the lake to feed the ducks; an adult always accompanied him. This was the only water hazard the Guillots and the Sellers were aware of. The inattention of the parents which allowed a child, who had never wandered before, to escape from his parents’ eyesight and attention does not amount to contributory negligence. The child was dropped off by his brother, Kevin, inside the gate and was seen by Kevin going toward his grandmother. Mrs. Guillot saw the child playing in the sand near the gate just minutes before it was discovered that the child was missing. The gate was left partially open for the coming and going of the minibike. The action of leaving the gate partially open in an area where there was much activity and presence of five other persons does not constitute contributory negligence.

Contributory negligence is an affirmative defense. C.C.P. 1005; Bass v. Aetna Insurance Co., supra; McInnis v. Fireman’s Fund Insurance Co., 322 So.2d 155 (La.1975); Smolinski v. Taulli, supra. The defendants have not borne their burden of proving contributory negligence on the part of the parents.

For the reasons assigned, the judgments of the district court and the court of appeal are reversed insofar as they dismiss the demand of the plaintiffs. The case is remanded to the court of appeal to fix the damages to which the plaintiffs, Mr. and Mrs. Guillot, are entitled. All costs are taxed against the corporate defendants, Flying Bridge Marina, Inc. and Fisherman’s Paradise, Inc.

      . The trial court granted a judgment of dismissal as to Gilbert L. Dozier pursuant to C.C.P. 1810, and service was never obtained on Gerald Strickland. On October 7, 1975 Fisherman’s Paradise, Inc. bought all of the outstanding stock and assets of Flying Bridge Marina, Inc. and assumed responsibility for all debts.

      . Mr. Sellers testified that Mrs. Sellers was “right at the gate, if you want to call that outside the fence, where the pump house is, right up against the fence, fooling with a vine, when Kevin came back ...”