author: DOUCET, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Jerry WILLIS, Defendant-Appellant.
    No. CR82-792.
    Court of Appeal of Louisiana, Third Circuit.
    June 29, 1983.

      Adam L. Ortego, Sulphur, for defendant-appellant.
    Leonard K. Knapp, Jr., Dist. Atty., and Robert R. Bryant, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before STOKER, DOUCET and KNOLL, JJ.
   DOUCET, Judge.

The defendant, Jerry Willis, was charged by bill of indictment with the second degree murder (LSA-R.S. 14:30.1) of Thomas Chapman, arising from a shooting incident on July 1, 1981, at a tavern in Calcasieu Parish. Defendant pleaded not guilty, urging that he acted in self-defense, but was found guilty as charged at his subsequent jury trial in September 1982. Pursuant to R.S. 14:30.1, defendant was sentenced to the mandatory penalty of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. On appeal, defense counsel has assigned four assignments of error wherein he alleges that the following reversible errors occurred:

(1)The State’s failure to tender to defendant at his request a transcript of his grand jury testimony and the grand jury testimony of John Roy Mears, Barbara Cornnors and Jean Mazzola;
(2) The State being allowed to cross-examine Earl Cotton about an allegedly inculpatory statement made to him by the defendant, although no notice of the existence of that statement was provided by the State pursuant to its duties under LSA-C.Cr.P. Arts. 716, 768;
(3) The State’s reference to the aforementioned statement in its closing remarks; and
(4) The trial court’s decision to allow defendant’s case to proceed to trial, despite the existence of grounds which would have purportedly justified the granting of a continuance.

Also, defendant has filed in this court a pro se brief assigning the additional assignments of error:

(1) Defendant was given ineffective assistance of counsel by his appointed counsel, Mr. Adam L. Ortego, Jr., who represented him during his trial (and upon this appeal) and conviction on second degree murder charges;
(2) Under the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), defendant should have been allowed to impeach the credibility of one of the State’s chief witnesses, John Roy Mears, by allowing the jury to be made aware of his criminal record;
(3) The prosecuting attorney lied with the rest of the State’s witnesses and disavowed knowledge of the “fat boy,” whose name the defendant is certain was called at the grand jury hearing; and
(4) The evidence, when viewed in the light most favorable to the prosecution, was insufficient to have convinced a rational fact finder beyond a reasonable doubt that defendant did not act in self-defense when he shot the victim twice.

FACTS

Apparently, there were only four eyewitnesses to the shooting which resulted in the death of the forty-year-old male victim, Thomas Chapman. Those witnesses were John Roy Mears, Barbara Cornnors, Jean Mazzola and defendant. Defendant has never denied that he fired twice into the victim’s body, but he alleges that he was acting in self-defense. The only major conflicts in testimony are between the defendant and the other three, who testified as witnesses for the State. A synopsis of each of those witnesses’ testimony is provided below.

On the evening of July 1, 1982, John Roy Mears, age 22, was drinking at Nola’s Lounge in Calcasieu Parish. He observed the defendant making several “passes” at two of the female employees at the lounge, after which the victim (Chapman) intervened requesting the defendant to leave the girls alone. Mears observed no animosity between the defendant and the victim at that time but the defendant left the room to go outside, and then he shortly returned saying to Chapman, “If you want some trouble you son of a bitch, come outside.” The victim finished shooting a game of pool, then walked outside. Mears had stepped outside just before the victim did, and he testified that he saw the victim walk slowly extending his hand toward the defendant, who was pointing, at Chapman’s head, a gun he had pulled from his pants. According to Mears, Chapman said:

Why don’t you put the gun up. [sic] You don’t want to hurt nobody. Why don’t you just give me the gun. [sic] (TR. 1)

During the victim’s approach, the defendant took several steps backwards and then lowered the gun toward Chapman’s stomach and fired twice. The victim told Jean Mazzola that he had been shot and then fell to his knees, whereupon Mears and Ms. Mazzola put him into Mears’ car and rushed him to the hospital. Early the next morning, the victim died from the loss of blood from the gunshot wounds. Mears testified additionally that he did not, immediately prior to the shooting, hear defendant say anything; that he (Mears) did not personally know either the victim or the defendant and that he had not engaged in any dispute with the defendant; that he (Mears) and a “fat guy” had not approached the defendant in a threatening or otherwise manner (the significance of this will become apparent later); that Jean Mazzola followed the victim outside the lounge and saw the actual shooting; and that Mears heard two shots which were followed a short time later by a third, the origin of which was not established. The defendant fled the scene of the shooting, but was arrested approximately six months later in Galveston, Texas.

On the night of the shooting in question, Barbara Ann Cornnors was employed at Nola’s Lounge in a quasi-managerial capacity. She had personally known the victim for approximately six months and had seen the defendant several times (2-3) at the lounge. On two separate occasions the defendant had that evening made overtures to Ms. Cornnors and Ms.' Mazzola — each of which resulted in the victim requesting the defendant to leave the women alone. However, Ms. Cornnors testified that Chapman (the victim) acted without anger and in a non-aggressive manner. Sometime later another woman (Anita Langley) came into the bar and engaged in a shouting argument with the defendant. The victim calmed this female and assured her that the defendant would not harm her. Following this episode, the defendant “stormed out the door”, but he told Chapman in less than genteel words to come outside. A young man, Victor Sarvaunt, who was the grandson of “Nola”, told Ms. Cornnors that the defendant had gone outside for a gun.

When Chapman went outside the bar he was followed by Cornnors and Mazzola, the latter telling Chapman that the defendant had a gun. However, the victim said that he would talk to the defendant and calm him down, as he apparently had already done several times that evening. As Chapman approached the defendant in a slow and calm manner, requesting the defendant to give him the gun, the defendant kept backing up. Ms. Cornnors heard the victim say:

“Jerry, give me the gun. He said, you don’t want to hurt nobody and nobody’s going to hurt you.” (TR. 1)

As the victim approached, the defendant shot him twice, the second coming after the victim had said, “I’ve been shot”, and had turned around. A third shot was also heard (origin unknown). Ms. Cornnors testified, without objection, that the victim was not a violent person and that she had never seen him carry a weapon, nor was he armed at the time of the shooting. She also testified that only the victim was approaching the defendant.

Jean Mazzola, a witness who had been dating the victim, testified that the defendant and the victim had been shooting some games of pool and that the defendant had gotten into several arguments with other patrons, each of which had resulted in the victim acting as a peacemaker, calming the defendant in each instance. The rest of Ms. Mazzola’s testimony was merely cumulative of that previously provided by Mears and Cornnors, with several minor exceptions. This witness stated that Chapman was only one foot from the gun when it was fired. She also did not remember hearing the second shot that struck the victim, although she did hear another shot as the defendant drove away.

Ms. Mazzola testified that she had never known Chapman to carry a gun, nor did he ever threaten the defendant. She stated that all the victim had done was to keep the defendant “out of trouble”, and she had not seen anyone threaten the defendant in any way.

Initially, defendant admitted that he had been previously convicted of three crimes— assault to commit murder, illegal possession of a firearm and possession of marijuana. Regarding the victim’s character, defendant testified that he was “a friendly person” but was also “sort of a bully”, and they had never exchanged cross words. Defendant acknowledged that he had made passes at the two women and that he had been “acting kind of ... kind of a fool... ”. According to defendant, Anita Langley (not present at trial) had previously tried to cheat him out of some money, and when she entered the lounge on that fateful evening, she began screaming that she was going to have the defendant whipped. The defendant stated that he feared for his safety when he saw John Roy Mears and a “big fat boy” walk into the lounge, so he attempted to leave, but upon so doing was followed out the door by the two men. At this time, Chapman was still in the bar.

The defendant testified that he had convinced the two men that Ms. Langley’s situation was not worthy of a struggle and that they had returned to the lounge, when the victim “jumped out the door” followed by the two other men. As Mears and the overweight Mr. X circled, the victim, saying repeatedly, “you got to get you some of it”, slowly advanced to the retreating defendant who begged him not to come any closer and warned him that he was armed. Defendant testified that he tried to frighten Chapman into stopping, but his attempts were futile, so in fear of his well-being, he fired into the victim’s lower body (he had been aiming at his head). After the first shot he stated that Chapman kept coming at him and that Mears threw a beer bottle at his head, so he fired another shot into the victim’s body.

After this exchange Mears fled, and the fat boy grabbed the stricken Chapman, whereupon defendant fled in his car and was fired upon as he departed. He further testified that he fled because he didn’t want to go to jail. Noteworthy is defendant’s testimony that he was armed when he entered Nola’s Lounge on that evening and that he sometimes did arm himself prior to entering a bar. Sarvaunt testified that Cornnors and Mazzola were outside at the time of the shooting, although he was himself still inside the lounge. Sarvaunt further stated that the victim was not a violent person and that he had calmed Ms. Langley down, when the defendant challenged Chapman to go outside. Sarvaunt testified that he warned the victim to stay inside, because the defendant had probably gone to get his gun, but Chapman ignored his warning. He further stated that Mears did have a reputation for fighting in bars and that it “seemed” at the time that the defendant did not want any trouble on that night.

ASSIGNMENT OF ERROR NUMBER 1

Defendant avers in this assignment that irreversible error occurred when the State failed to provide him, as requested, a copy of his grand jury testimony and that of John Roy Mears and Jean Mazzola. On February 19, 1982, the defendant did make a request for his testimony before the grand jury. Notwithstanding the minute entries on May 28, 1982, it is clear that the defendant was never provided with a copy of the requested testimony. This is especially supported by defendant’s motion for a continuance on September 20,1982, wherein a ground listed was the State’s failure to comply with defendant’s discovery demand. Defendant claims he was entitled to a copy of his grand jury testimony citing LSA-C. Cr.P. Art. 716, which provides as follows:

“A. Upon motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph or otherwise reproduce any relevant written or recorded confession or statement of any nature, including recorded testimony before grand jury, or copy thereof, of the defendant in the possession, custody, con-tool, or knowledge of the district attorney.”

Clearly, the district attorney should have complied with the order.

However, noneompliance with discovery procedures will not mandate reversal if the defendant has not been prejudiced by the State’s failure to act. State v. Mitchell, 412 So.2d 1042 (La.1982); State v. Vaccaro, 411 So.2d 415 (La.1982); State v. Roussel, 381 So.2d 796 (La.1980); LSA-C.Cr.P. Art. 921. In the instant case we have not been shown how the State’s failure to provide the defendant with a copy of his grand jury testimony prejudiced him to any degree. With one exception, there were no allusions at trial to that earlier testimony — the exception being defendant’s own statement that his testimony at trial did not differ from that given before the grand jury.

Defendant also argues that he was entitled to the grand jury testimony, or in the alternative to an in camera inspection, of Mears and Mazzola in order to impeach their trial testimony. This precise issue was recently addressed by our Supreme Court which held as follows:

The general rule is that the proceedings of the grand jury are to be kept secret. C.Cr.P. Art. 434(A). State v. Sheppard, 350 So.2d 615 (La., 1977). The transcript generally may not be used at trial even in the conduct of cross-examination. State v. Prestridge, 399 So.2d 564 (La., 1981). The purpose of this rule is to encourage the full disclosure of information about crimes. State v. Prestridge, supra.
The testimony of a witness before the grand jury may not be used in Louisiana for cross-examination, unless the testimony requested falls within one of two exceptions mentioned in Code of Criminal Procedure, Article 434. State v. Martin, 376 So.2d 300 (La., 1979). Cert. den. 449 U.S. 998, 101 S.Ct. 540, 66 L.Ed.2d 297. The exceptions are as follows:
“However, after the indictment, such persons may reveal statutory irregularities in grand jury proceedings to defense counsel, the attorney general, the district attorney, or the court, and may testify concerning them. Such persons may disclose testimony given before the grand jury, at any time when permitted by the court, to show that a witness committed perjury in his testimony before the grand jury. A witness may discuss his testimony given before the grand jury with counsel for a person under investigation or indicted, with the attorney general or the district attorney, or with the court.” C.Cr.Part. 434.
In the case of State v. Peters, La., 406 So.2d 189, this court allowed an inspection in camera, of the grand jury testimony of a state witness who admitted to defense counsel that she had perjured herself before the grand jury. In that case, specific information could be provided to the court of the existence of inconsistent statements. The Court has consistently held that a trial judge is not required to grant an in camera inspection in response to a defendant’s general request for grand jury testimony. State v. Martin, supra. State v. Lewis, 353 So.2d 703, State v. May, 339 So.2d 764 (La., 1976).
In this case there was no showing that the testimony of Ms. Deland fell within the two previously discussed exceptions to disclosure of grand jury testimony. The request by the defendant merely sought to ascertain whether any such inconsistent statements existed. This is not a sufficient showing by the defendant to impinge upon the secrecy of the grand jury. The trial judge did not err in refusing to order the State to produce Ms. Deland’s grand jury testimony and in refusing an in camera inspection of this testimony.

State v. Ates, 418 So.2d 1326, 1329-1330 (La.1982).

Although we find that language both applicable and controlling to defendant’s claims, we pretermit deciding this assignment on the aforementioned grounds (lack of prejudice and State v. Ates).

When an accused has made a request for discovery, which has not been complied with by the State, he must draw this nonproduction to the attention of the trial judge who is able to require the necessary production. A failure to object at trial constitutes a waiver of the objection. State v. Naas, 409 So.2d 535 (La.1981) (On rehearing); State v. Jones, 408 So.2d 1285 (La.1982); LSA-C.Cr.P. Art. 841. Also, see State v. Walker, 432 So.2d 1057 (La.App. 3rd Cir.1983) (Vacated and remanded for other reasons). In the case sub judice defense counsel failed to complain at trial of the State’s failure to honor his discovery request and has thereby waived his right to object to this on appeal. This assignment does not warrant reversal.

ASSIGNMENTS OF ERROR NUMBERS 2 AND 3

By these assignments, defendant contends that a reversible error was committed when the State was allowed to cross-examine one of defendant’s witnesses about an inculpatory statement made by defendant without giving defendant the requisite notice of the statement and without laying a proper foundation for its admissibility. Counsel also contends that a reversible error occurred when the State adverted to this statement in its closing remarks. The statement in question was revealed by the following colloquy between the prosecutor and Earl Cotton:

“Q. How did Jerry tell you that he settled his arguments?
A. Guns.
Q. With what?
A. Guns.
Q. With guns? Didn’t he tell you that he never gets in a fight with anyone, he uses a gun?
A. Yes, sir.”

The statement attributed to defendant (Jerry) was made to defendant’s jail-mate, Cotton, after the death of the victim, Chapman, but prior to defendant’s trial.

Article 768 of the Code of Criminal Procedure, creating the State’s disclosure duty, states as follows:

“Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.”

The distinction between a confession and an inculpatory statement is that the former admits commission of the crime, whereas the latter “admits a fact, circumstances or involvement which tends to establish guilt or from which guilt may be inferred.” State v. Brumfield, 329 So.2d 181, 187 (La.1976). And the term “inculpatory statement” in this article refers to an accused’s out-of-court admission occurring after a crime, which implicates or incriminates the speaker as to the commission of that crime. State v. Brent, 347 So.2d 1112 (La.1977); State v. Brumfield, supra; State v. Wells, 306 So.2d 695 (La.1975).

It cannot be gainsaid that the State failed to notify defendant of its intent to introduce Cotton’s testimony as to defendant’s remarks. In its answer to defendant’s motion for - discovery, the State denied knowledge of any inculpatory oral statements by defendant, but agreed to notify him of the existence of any such statements should they surface. This material is also discoverable (as to its existence) under LSA-C.Cr.P. Art. 716, and the State is under the continuing duty to provide defendant with the requested information, should its existence subsequently be made known. State v. Hammler, 312 So.2d 306 (La.1975); LSA-C.Cr.P. Art. 729.3. (emphasis ours).

Although the State’s failure to comply with a defendant’s appropriate discovery request will not always necessitate a reversal, if the defendant is prejudiced by the State’s noncompliance he is entitled to a reversal. State v. Ray, 423 So.2d 1116 (La.1982); State v. Mitchell, supra. In Mitchell the Supreme Court reversed and remanded the defendant’s conviction for indecent behavior with a juvenile, when the State failed to timely provide the defendant with a copy of an inculpatory statement (written) in its possession. The State argued that it had only received a copy of the statement on the day that it was used during its (the State’s) cross-examination of defendant. However, in rejecting the State’s argument, the court observed that it had received notice of the statement’s existence on the previous day, but had not notified defendant of it until after the State had reopened its case, questioned a witness, closed its case-in-chief and after defendant had testified under direct examination. The court held that this action denied that defendant the substantial right to prepare an adequate defense. Also, see State v. Davis, 399 So.2d 1168 (La.1981). (On Joint Motion for Rehearing/Clarification). The decision in Mitchell was primarily grounded upon fundamental fairness and the following discovery articles of the Code of Criminal Procedure:

LSA-C.Cr.P. art. 729.3 provides:

If, subsequent to compliance with an order issued pursuant to this Chapter and prior to or during trial, a party discovers additional evidence or decides to use additional evidence and such evidence is or may be, subject to discovery or inspection under the order issued, he shall promptly notify the other party and the court of the existence of the additional evidence, so that the court may modify its previous order to allow the other party to make an appropriate motion for additional discovery or inspection:

LSA-C.Cr.P. art. 729.5 provides:

A. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continu-anee, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.
‡ ⅝: ⅜ ⅜ jfc *

It should be noted that, if the State did not know of the inculpatory statement and did not attempt to solicit it from the witness but, rather it was revealed to both the State’s and defendant’s surprise, there is held to be no violation of the State’s duty to provide notice set forth in C.Cr.P. Art. 768. State v. Smith, 327 So.2d 355 (La.1975) (On rehearing). However, it appears from the way the State framed its question, that it was aware of, and did solicit the answer the witness, Cotton, provided — i.e., that the defendant never engaged in a fight (presumably, using his hands) but instead settled his arguments with a gun. As the State has failed to reply to defendant’s allegations, it will be assumed arguendo that the State did know of ' Cotton’s testimony beforehand, rendering State v. Smith inapposite.

However, the question arises as to whether defendant’s statements to Cotton were incriminating, because only if they were will they be inculpatory statements for purposes of Articles 716 and 768. State v. Dimopoullas, 260 La. 874, 257 So.2d 644 (La.1972). In State v. Bodley, 394 So.2d 584 (La.1981), the Supreme Court addressed the question of whether certain statements were inculpatory under article 768. Those statements were given at a known time by the defendant and were to the effect that the victim was alive and well at that time. However, medical testimony at trial established that the victim was, in fact, dead at the time of the defendant’s statements as to her well-being. The court in Bodley found that the statements were not inculpatory and, therefore, the State was not required to provide the defendant with notice of their existence under Article 768. This finding was premised on the following rationale:

“Defendant made no statements of fact which establish any element of the crime of murder of their own force. Rather, the statements were exculpatory in nature. * * * They were not damaging to the defense until coupled with Dr. Samuel’s opinion that the victim was already dead at the time the alleged statements were made.” 394 So.2d at 589.

This being true, the defendant’s only recourse was held to be through the discovery articles, which the State had failed to properly comply with, but this was not fatal as the defendant was found to have suffered no prejudice, due to his earlier constructive knowledge of the statements, precluding any claims of surprise.

It is certainly arguable that the present defendant’s alleged statement was not one which implicated him with the death of the victim or that it created the inference of guilt with that respect to that death. However, the question is made difficult by the defendant’s claim of self-defense. If the defendant did state that he always settled his arguments with a gun and, if the jury chose to believe this statement, then defendant’s self-defense claim would be severely damaged by the newly-released statement. In fact, the trial court in his jury instructions correctly stated that the State had the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense when he shot the victim. See State v. Pittman, 428 So.2d 979 (La.App. 1st Cir.1983); State v. Patterson, 295 So.2d 792 (La.1974).

Assuming, arguendo, that the statement was inculpatory, then defendant was entitled to notice of it under Articles 768, 729.3, and 716 of the Code of Criminal Procedure. The question then becomes whether the State’s failure to provide notice so prejudiced defendant as to require reversal of defendant’s conviction. For, if the defendant had reason to expect Cotton to testify as he did, or if there is overwhelming evidence of defendant’s guilt, any error that occurred may be deemed harmless with no need for a reversal. State v. Perry, 408 So.2d 1358 (La.1982); State v. Smith, 401 So.2d 1179 (La.1981); State v. Bodley, supra.

Although it appears that the overwhelming evidence of defendant’s guilt presented at trial would render harmless any error which may have occurred when the State failed to notify defendant of Cotton’s forthcoming statements, we again choose to reject these assignments because of defense counsel’s failure to timely object at trial. Failing to allow the trial court to correct such errors when they occur, constitutes a waiver of objection on appeal. State v. Naas, supra; State v. Jones, supra; State v. Bonanno, 373 So.2d 1284 (La.1979); LSA-C. Cr.P. Art. 841. In this case defendant again failed to object timely to Cotton’s testimony—either during its rendition or after the State alluded to it in closing. He has, therefore, waived all objections to that testimony upon this appeal. These assignments do not warrant reversal.

ASSIGNMENT OF ERROR NUMBER 4

Defendant alleges that the trial court erred in allowing him to go to trial despite the existence of grounds which should have justified a continuance. On September 20, 1982, the defendant filed a motion for a continuance based on various grounds. The hearing on this motion was held that same afternoon before Judge William Swift, who opined that the inadequacy of the State’s response to defendant’s discovery request would provide adequate grounds to grant defendant a continuance. However, we find that this issue presents nothing for use to review, as the defendant, against his counsel’s advice, chose to waive his right to a hearing on the continuance. The sound discretion of the lower court was not abused by its honoring of defendant’s request to forego a hearing on his continuance motion and to proceed directly to trial. State v. Huizar, 414 So.2d 741 (La.1982).

PRO SE ASSIGNMENT OF ERROR NUMBER 1

Defendant argues that he was not given the assistance of effective counsel at trial. This issue is more properly raised by a writ of habeas corpus, which allows the trial court to order a full evidentiary hearing into the petitioner’s allegations. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Buckenburger, 428 So.2d 966 (La.App. 1st Cir.1983). In the absence of a record sufficiently addressing defendant’s claim, this assignment presents nothing for us to review and is, therefore, without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER 2

Defendant contends that his counsel should have been allowed to impeach the credibility of John Roy Mears through the use of Mears’ “criminal record”. In his pro se brief defendant alleges that Mears perjured himself when he “claimed under oath that he’d never been arrested for a felony.” An examination of the record reveals, however, that Mears was questioned as to any convictions he may have had. To this question, the witness responded negatively.

We, therefore, find that Mears did not perjure himself and that the defendant is merely requesting that he should have been allowed to introduce before the jury the witness’ arrest record of unconvicted and untried charges. This is prohibited by LSA-R.S. 15:495:

Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein.

The jurisprudence has strictly applied the wording of that article. State v. Iiuizar, supra; State v. Elizey, 407 So.2d 1204 (La.1981).

PRO SE ASSIGNMENT OF ERROR NUMBER 3

Defendant alleges that the prosecutor lied when he stated that he did not know of any “fat boy”, whom the defendant contends was one of his attackers. Although defendant avers that this witness’ name was called during the grand jury hearing, the prosecuting attorney denied that he had any information of a “fat boy”. Defendant has not presented the name of this mysterious witness — a name he allegedly heard called during the grand jury proceedings, and this matter presents no reviewable issue on appeal.

PRO SE ASSIGNMENT OF ERROR NUMBER 4

The defendant contends that all of the State’s witnesses and the prosecution were lying and in concert in their attempts to convict him of the victim’s death. This argument is properly considered an appeal to the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and adopted by Louisiana jurisprudence. State v. Byrd, 385 So.2d 248 (La.1980). Due process of law requires that no person be made to suffer the onus of a criminal conviction except upon sufficient factual proof of every essential element of the crime charged. Jackson v. Virginia, supra. In order to sustain the jury’s finding under the Jackson v. Virginia standard, we must determine whether the evidence, viewed in a light most favorable to the prosecution, could have convinced a rational fact finder beyond a reasonable doubt that the defendant did not act in self-defense when he twice fired into the body of Thomas Chapman.

The State’s three eyewitnesses were steadfast in their assertions that the victim was not the aggressor and that he alone approached the defendant in a non-threatening manner, requesting the defendant to give him the gun. The defendant contends that this testimony is nothing more than “a pack of lies”. The credibility of the witnesses and the weight to be attached to the testimony of each is to be determined by the appropriate finder of facts, which in this case was the jury. State v. Wright, 410 So.2d 1092 (La.1982); State v. Klar, 400 So.2d 610 (La.1981). The jurors clearly chose to believe the State’s witnesses, and we find that this decision substantiated a finding under the standard of Jackson v. Virginia that the defendant did not act in self-defense when he shot the victim.

For the reasons assigned hereinabove, defendant’s conviction and sentence for the second degree murder of Thomas Chapman is affirmed.

AFFIRMED.

      . The guilty verdict was by a unanimous jury vote (12-0), following only one hour’s deliberation.

      . Mrs. Cornnors testified at trial that she never appeared before the grand jury and this statement, not being controverted by defendant, makes moot any consideration of her non-existent grand jury testimony.

      . There is a possibility that other persons were present during the shooting but the State failed to produce them,

      . Defendant avers that the “fat boy’s” name was called during grand jury, but the prosecuting attorney disavowed any knowledge of whom defendant was referring.

      . Mears denied that he had thrown a bottle at defendant or that he had even taken a bottle outside with him.

      . There is no direct indication that Mears or Mazzola have ever testified before the grand jury, but it is assumed for purposes of this assignment that they did so testify.

      . Defendant had given a written statement which was ordered suppressed by the trial court on the grounds that defendant’s rights to counsel had been violated.

      . Each of the eyewitnesses testified that the defendant was the aggressor, and they were in agreement as to all of the pertinent facts. Only the defendant disagreed, calling their testimony “a pack of lies”.

      . Counsel for the defendant avers that he did object to Cotton’s testimony but the record does not substantiate this claim. (Brief, p. 6).

      . The ground considered meritorious by Judge Swift was defense counsel's desire to have suppressed certain statements by defendant. Those statements were not directly inculpatory and were, in fact, never presented at trial by the State.

      .Defendant’s proffer of Mears’ criminal record reveals a lengthy arrest record, but there is no indication that he had been convicted of any of the charged crimes. Defense counsel was not unaware of LSA-R.S. 15:495 and its sanctions against the introduction of arrest records, and he apparently attempted to argue (under R.S. 15:492) that Mears was biased in favor of the State in the hope of receiving leniency as to some pending charges against him. The trial court rejected this argument, and counsel did not perfect his objection to this ruling on appeal. LSA-C.Cr.P. Art. 844.


source: Caselaw Access Project

author: AUGUSTINE, Judge.

license: Public Domain

text:
    Danny Ray VERNEUILLE v. Vanessa Seube Verneuille, Wife of Danny Ray VERNEUILLE and Danny Verneuille, Jr. a/k/a Christopher Michael Verneuille.
    No. CA-0366.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1983.
    Rehearing Denied Oct. 27, 1983.
    Writ Denied Dec. 16, 1983.
    Katherine L. Kennedy, Chalmette, for defendant-appellant.
    Before AUGUSTINE, BYRNES and WILLIAMS, JJ.
   AUGUSTINE, Judge.

Plaintiff Danny Ray Verneuille filed this action en desaveu and for nullity of marriage (and, in the alternative, for separation a mensa et thoro). He alleges that at the time of his marriage to Vanessa Seube on October 11, 1980, Miss Seube was pregnant with Christopher Michael Verneuille, who was born on December 26,1980, seventy-six days after the wedding ceremony. Plaintiff avers that since he was neither dating nor having sexual intercourse with Miss Seube during the period in which the child was conceived, he cannot be the father, and further, that he was induced to marry Miss Seube solely because of her false and fraudulent representations that the child she was carrying was his. Mr. Verneuille alleges that he did not learn that the child is not his until December 26, 1980, the day Christopher was born, and that since that time, he has remained away from the matrimonial domicile. Mr. Vemeuille’s original petition also contains a formal motion requesting the trial court to order Mrs. Verneuille, the child Christopher, and the plaintiff to submit to blood tests to determine paternity.

By an amending and supplemental petition, plaintiff asserts that “at the time plaintiff contracted the marriage with the defendant, plaintiff was acting under a mistake and in error as to the entire identity of the defendant, Vanessa Seube Verneuille.”

The defendants filed exceptions of no cause and no right of action in response to each of the plaintiffs allegations. The trial court maintained all of the exceptions and dismissed plaintiff’s case in its entirety, including, of course, plaintiff’s motion to compel blood tests. The plaintiff now brings this appeal.

With respect to the efficacy of the plaintiff’s pleadings in support of his action for disavowal, we begin by noting that:

“The husband of the mother is presumed to be the father of all children born or conceived during the marriage.” La.C.C. Art. 184.

Whether the foregoing Article remains “the strongest presumption in law” is now open to question. Although, historically, the presumption of a husband’s paternity has been rebuttable only in theory, a recent amendment to the Civil Code now provides that the presumption will be overdone “if (the husband) proves by a preponderance of the evidence any facts which reasonably indicate that he is not the father.” La.C.C. Art. 187.

But however diluted the “strongest presumption” may be as a result of Article 187, this much is clear:

“A man who marries a pregnant woman and who knows that she is pregnant at the time of the marriage cannot disavow paternity of such child born of such pregnancy. If another man is presumed to be the father, however, then the provisions of Article 186 apply....” (Emphasis added). La.C.C. Art. 188 (Emphasis added).

The Civil Code recognizes only two instances in which “another man is presumed to be the father”; both of these are found in Article 185:

“A child born less than three hundred days after the dissolution of the marriage is presumed to have been conceived during the marriage. A child born three hundred days or more after the dissolution of the marriage is not presumed to be the child of the husband.”

In the present case, plaintiff cannot and does not avail himself of the presumption of another man’s paternity which arises under the foregoing Code article. It follows that plaintiff cannot maintain this action en de-saveu.

In reaching this conclusion, we have carefully considered plaintiff’s argument that blood tests may provide the only means to rebut the presumption of the husband’s paternity, and we agree that the very purpose of blood test legislation and of recent amendments to the articles governing disavowal is to facilitate rebuttal of the husband’s paternity. But Article 188 is clear and unambiguous; it establishes a conclusive presumption of the plaintiff’s paternity. ' He is among that class of husbands from whom the law will not receive rebuttal evidence, for it cannot be said in this case that “another man is presumed to be the father.” We therefore affirm the trial court’s dismissal of the plaintiff’s action en desaveu.

It follows from what has been said that plaintiff’s action for separation on grounds of cruelty and ill treatment must also be dismissed for failure to state a cause of action. This is so because the essential allegation — that another man is Christopher Michael’s father — cannot be entertained by our courts. Art. 188 prohibits disavowal by a husband in the plaintiff’s circumstances, and we understand that article to mean that whether in the context of an action en desaveu or in a suit for separation, such a plaintiff cannot be heard to allege another man’s paternity of a child who is conclusively presumed to be his own.

Plaintiff’s suit for annulment of the marriage on the ground of duress must also be dismissed, for although it is true that “no marriage is valid to which the parties have not freely consented”, Art. 110, there is no allegation that the marriage was coerced by threats or violence. Art. 91.

With respect to plaintiff’s action for annulment on grounds of fraud, it has been said correctly that:

“. . . Article 91(3) does not speak of fraud. It is obvious, however, that fraud is merely induced mistake and therefore comes within the terms of Article 91(3)... ”. The Grounds for Annulment in Louisiana, 24 Tul.L.Rev. 217 (1949).

The jurisprudence interpreting Article 91(3), however, strictly confines the phrase “mistake respecting the person” to mean “mistake respecting the physical identity of the person.” Delpit v. Young, 25 So. 547 (La.1899). The fraud alleged in this case does not concern the physical identity of Mrs. Verneuille, but rather her deceit in inducing the plaintiff to marry her on his false belief that the child she carried was his. Delpit, therefore, requires dismissal of plaintiff’s suit on grounds of fraud.

Finally, plaintiff’s amending and supplemental petition seeks to bring this case squarely within Art. 91(3), supra, and Delpit by alleging that:

“the marriage between plaintiff and defendant is an absolute nullity in that at the time plaintiff contracted the marriage with the defendant, plaintiff was acting under a mistake and in error as to the entire identity of the defendant, Vanessa Seube Verneuille”. (Emphasis added).

Accepting as true, as we must, the allegation that plaintiff married Vanessa Seube in the mistaken belief that she was someone else, we nevertheless affirm the trial court’s dismissal of the action for nullity on the grounds of mistaken identity. Article 111 states that:

“In the cases embraced by the preceding article, the application to obtain a sentence annulling the marriage, is inadmissible, if the married persons have, freely and without constraint, cohabited together after ... discovering the mistake.” (Emphasis added).

By plaintiffs own admission, he lived with Mrs. Yerneuille as her husband for seventy-three days following the wedding, and did not leave the marital domicile until the child was born on December 26, 1980. Under these circumstances, Art. Ill operates to deny the plaintiff a right of action: “the (plaintiff’s) application to obtain a sentence annulling the marriage, is inadmissible. ..”.

There being no viable case before the bar on any of the grounds alleged, and the plaintiff being barred from asserting his non-paternity in any event, the trial court did not err in denying plaintiff’s motion to compel blood tests under La.R.S. 9:396.

Accordingly, the decision of the trial court is affirmed.

AFFIRMED.

      . The period is alleged to be between March 28, 1980 and April 18, 1980. According to plaintiff’s petition, Christopher was bom two to three weeks prematurely.

      . Feazel v. Feazel, 222 La. 113, 62 So.2d 119, 120 (La.1952).

      .See Tannehill v. Tannehill, 261 La. 933, 261 So.2d 619 (La.1972); Williams v. Williams, 230 La. 1, 87 So.2d 707 (La.1956); Feazel, supra, Succession of Saloy, 10 So. 872 (La.1892); Lewis v. Powell, 178 So.2d 769 (La.App. 2d Cir.1965); Burrell v. Burrell, 154 So.2d 103 (La.App. 1st Cir.1963).

      . La.R.S. 9:396, et seq.

      . Arts. 184, et seq.

      . “Art. 91: No marriage is valid to which the parties have not freely consented. Consent is not free: ... (2) When it is extorted by violence”.

      .Art. 91(3): “Consent is not free ... when there is a mistake respecting the person, who one of the parties intended to marry”.

      . La.R.S. 9:396 provides:
      “Notwithstanding any other provision of law to the contrary, in any civil action in which paternity is a relevant fact, or in an action en desa-veu, the court, upon its own initiative or upon request made by or on behalf of any person whose blood is involved may, or upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to such tests, the court may resolve the question of paternity against such party or enforce its order if the rights of others and the interests of justice so require.” (Emphasis added).


author: MARVIN, Judge.

text:
    BROWNLEE DEVELOPMENT CORPORATION, Plaintiff-Appellant, v. Larry TAYLOR, et al., Defendants-Appellees.
    Nos. 15867-CA, 15802-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 12, 1983.

      Thomas & Burchett by Dewey E. Bur-chett, Jr., Bossier City, for plaintiff-appellant.
    Henry N. Brown, Jr., Dist. Atty., Bossier City, for defendants-appellees.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

This appeal and writ application in a mandamus action presents an apparent conflict between general and special statutes regarding the authority and responsibility of the respective public officials and agencies in Bossier Parish whose approval of a subdivision plat is required before a subdi-vider may legally sell lots in the subdivision.

The issues are:

—whether the Bossier Metropolitan Planning Commission must hold a public hearing before approving a plat,

—whether the Bossier Parish Police Jury may override the approval of a plat by the MPC and direct the parish engineer not to approve the plat, and,

—whether these respective duties are ministerial to some degree.

The general law relating to planning commissions and approval of subdivision plats is LRS 33:101 et seq. The special law under which the Bossier MPC was created is Act 189 of 1954.

FACTS

The subdivider, Brownlee, obviously has developed residential subdivisions in units with the plat of each unit being approved by the proper authorities in Bossier as development of each unit becomes feasible. In 1978 Brownlee gained the approval of its Unit No. 5 from the MPC and from the Bossier engineer and police jury. The lots in the 1978 Unit No. 5 plat were 80 feet in width. Notwithstanding approval of the public agencies and officials, the 1978 Unit No. 5 plat was not recorded on the public records as required by law. The record does not show whether any Unit No. 5 lots were sold according to the 1978 plat.

In 1983, Brownlee replatted Unit No. 5 to reduce the size of the lots to 55 feet and presented this plat for approval by the Bossier MPC as the law requires. The MPC approved the plat and Brownlee then presented the plat to the parish engineer.

Approximately 100 persons, styling themselves as owners of Brownlee Estates residential lots, signed petitions protesting that the reduction in the size of the Unit No. 5 lots would potentially devalue their property. On the instructions of his employer, the Bossier Parish Police Jury, the parish engineer refused to approve the Unit No. 5 plat. Several of the lot owners and their counsel appeared at a police jury meeting to further protest approval of the plat. The jury then formally refused to instruct the engineer to approve the plat.

After that meeting, Brownlee sued the engineer and the police jury in a mandamus action, contending that the engineer’s approval was solely ministerial and not discretionary, that the police jury was without legal authority to override the Bossier MPC, and that the engineer should be ordered to approve the plat where it otherwise conformed with law and the rules of the Bossier MPC and had been approved by the Bossier MPC. The trial court pretermitted these issues and held that the approval by the MPC was invalid because the MPC had not held a public hearing as required by LRS 33:113 before approving the plat.

At this juncture we observe that the general law in LRS 33:113 requires a public hearing in all cases, while the special law requires a public hearing only when the Bossier MPC “disapproves” a plat. Art. 3, § 3, Act 189 of 1954.

After the trial judge in the present action denied Brownlee’s mandamus demand, Brownlee sought our supervisory review, alleging that the delay inherent in an ordinary appeal would cause irreparable injury. We directed the parish officials to respond to the application and file briefs. To protect itself in the event we summarily denied the writ application on the grounds that it had an adequate remedy by appeal, Brown-lee perfected an appeal. We lodged the record in that appeal and have now consolidated the appeal and the application for writs in the interest of judicial economy and shall address the issues presented.

The statutory design relating to the subdividing and development of land has been explained in several cases. See e.g., Christopher Estates v. Parish, etc., 413 So.2d 1336 (La.App. 1st Cir.1982). Minimum standards for the platting of subdivisions are set forth in LRS 33:5051. Greater standards may be imposed directly by municipalities and parishes or through planning commissions created under statutory authority. See LRS 33:102, 112, 131, 140, 401 A.(15), and Art. 3, § 5 of Act 189 of 1954.

The rules of the Bossier MPC require that a subdivision plat be approved by the MPC and by the parish engineer when the property platted is outside the municipal limits of Bossier City. LRS 33:5051 also requires that the parish engineer approve or “certify” that the plat conforms to state and local law. Both the general law (§ 114) and the special law of 1954 (Art. 3, § 5) impose a civil penalty upon a subdivider who sells lots in a subdivision which has not been approved by the MPC.

Neither the special law nor any other statute or regulation which has been called to our attention provides under what circumstances the parish engineer may refuse to approve a subdivision plat which has been approved by the Bossier MPC and which otherwise conforms to legal standards. Similarly, we are not referred to any law or regulation that provides that the police jury may override or overrule the platting authority of a MPC.

We also note that LRS 33:117 gives a planning commission exclusive authority over subdivision plats where the commission has adopted a major street and road plan in accord with law.

The general law provides that a planning commission shall approve a plat within 60 days after the plat is submitted for approval and that no action can be taken without a hearing. LRS 33:113. The special law under which the Bossier MPC was created provides that a plat shall be approved or disapproved within 45 days after submission and that no plat shall be disapproved without affording a public hearing. Art. 3, § 3. The special law neither requires nor forbids a hearing before a plat can be approved.

The subdivider argues that the special should prevail over the general and that the Bossier MPC has never held a public hearing when the submitted plat was going to be approved.

The trial court correctly stated the critical issue as whether the Bossier MPC is required to hold a hearing before approving a subdivision plat. The purpose of such a hearing is due process oriented and is to afford some notice and opportunity to the public to present issues of public health, safety, or general welfare to the platting authority insofar as those issues might be affected by the proposed subdivision plat.

The protest of neighboring property owners that a decrease in the size of lots would affect the esthetic and economic value of their lots does not, of itself, bear any real relation to the health, safety, or general welfare of the public. Christopher Estates, 413 So.2d at p. 1340. That case does not, however, answer the critical issue.

The special statute in question leaves much to be desired in failing to either require or negate a public hearing when a plat is to be approved by the Bossier MPC. We believe, however, that the special law and the general law can be considered as not in conflict. The special law itself affords some guidance and support for our interpretation. In Art. 1, § 3, of the law it is expressly provided that where other laws provide for other and additional duties, such other laws shall be applicable insofar as they do not conflict with the special law. If the public interest is served under LRS 33:113 by requiring a planning commission to hold a public hearing before approving a subdivision plat, that same public interest should be served by recognizing that the Bossier MPC has the other and additional duty and responsibility to the public to require and advertise a public hearing before approving a subdivision plat.

We have noted that LRS 33:117 grants exclusive authority over subdivision plats to a planning commission where the commission has adopted a major street and road plan in accord with law. The litigants argue as if the Bossier MPC has adopted such a plan. We presume as much. The grant of exclusive platting authority under § 117 can also be considered as an other and additional authority granted to the Bossier MPC as contemplated by Art. 1, § 3 of the 1954 special act and not in conflict with the special act. This construction would negate any review or overriding of the platting authority of the Bossier MPC by the police jury because neither the special statute nor the general statute provides for such review.

A trial court may mandamus a planning commission to hold a public hearing before approving a subdivision plat. Old Jefferson Civic Ass’n v. Planning Com’n, 364 So.2d 193 (La.App. 1st Cir.1978). The approval of the plat by the Bossier MPC is the foundation of the subdivider’s action for mandamus and the invalidity of that approval, as urged by appellees, is the issue before this court. The interest of the Bossier MPC, however, is so directly affected by the judgment that a complete and equitable adjudication cannot be made without joinder of the Bossier MPC. CCP Art. 641. Certainly, where venue is proper as it is here, a public body whose official act is questioned should be deemed to be an indispensable party to an action which seeks to negate that official act. We shall then require the defendant police jury and parish engineer to join the Bossier MPC as a third party defendant in any further proceedings which question the validity of the approval of any subdivision plat by the Bossier MPC.

To avoid negating the validity of other subdivision plats which have been approved by both the Bossier MPC (presumably without a public hearing as Brownlee suggests) and by the parish engineer, our holding in this appeal shall be only of prospective effect from the date this opinion becomes final. See Succession of Clivens, 426 So.2d 585 (La.1982).

SUMMARY

In conclusion, we hold that the Bossier MPC is required by law to hold a public hearing before exercising its authority to approve or to disapprove a subdivision plat. That authority is exclusive, however, and neither the parish engineer nor the police jury may negate or override the approval of a plat by the Bossier MPC which is otherwise in conformity with law and which approval has been made after a public hearing held in accord with law.

While we approve of the result dismissing the subdivider’s demands for mandamus, we must set aside that judgment because of the failure of the defendants to join an indispensable party, the Bossier MPC. We shall remand this action to allow the subdi-vider to dismiss the action as of non-suit and without prejudice and to begin anew its efforts to gain approval of its subdivision plat from the Bossier MPC after a public hearing.

The writ application may be deemed granted and the judgment complained of is set aside and the action is remanded for further proceedings consistent with this opinion. Costs thus far, including the cost of this appeal, are assessed one-half to each litigant.


author: BARRY, Judge.

text:
    Mrs. Doris Jackson HOLMES, Individually and as Succession Representative of the Estate of Lem Holmes and as Tutrix of the Minor Children, Kathryn, Sherrie, Lem, Jr., Suzette, Brian, Cedric and Sarita Holmes v. J. POTTHARST, Jr., His Heirs and Estate, Mrs. Titine M. Pottharst, Alfred Baham, ABC Insurance Company and XYZ Manufacturing and Sales Company.
    No. CA-0656.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 13, 1983.
    Rehearing Denied Oct. 27, 1983.

      Sidney L. Shushan, Guste, Barnett & Shushan, New Orleans, for plaintiff-appellant.
    Esmond Phelps, II, John P. Manard, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for defendant-appellee.
    Before BARRY and WARD, JJ., and CHIASSON, Judge Pro Tempore.
   BARRY, Judge.

In this executive officer action, a co-defendant, Alfred Baham, filed for summary judgment asserting prescription of an alleged survival action and no cause of action as to the wrongful death claim. Summary judgment was granted with prejudice (without reasons) and plaintiff was allowed leave to file an amended petition to allege an intentional tort by Mr. Baham . Plaintiff’s brief addresses only the wrongful death action, but we will resolve both claims since “the judgment” was appealed.

Mrs. Doris Holmes, as surviving spouse and on behalf of her seven minor children, filed suit February 6,1981 asserting wrongful death and survival actions as a result of the death of her husband, Lem Holmes. Defendants are several executive officers, including Alfred Baham, of Mechanical Equipment Company, Inc. (MECO). The petition alleges during Holmes’ employment as a sandblaster at MECO from 1966 to 1970 he contracted silicosis, ultimately causing his death on February 11, 1980. Mrs. Holmes further states her husband was unaware of his condition until March, 1978 when he was diagnosed upon admission to Charity Hospital.

Although the survival action and wrongful death claim arise from an alleged common tort, each is a separate and distinct cause of action. The claims arise at different times and each concerns damages for different losses and injuries. The survival action arises simultaneously with the commission of the tort and survives the death of the injured party. It transmits to certain survivors (beneficiaries) the right to recover damages which the victim was entitled to recover from the time of injury to death. When the damage is not immediately apparent, prescription begins when the proverbial “reasonable person” should be aware of both the tort and the damages. Guidry v. Theriot, 377 So.2d 319 (La.1979). See also Stone, Louisiana Civil Law Treatise-Tort Doctrine § 120 (1977).

Holmes did not file a tort suit within one year of the diagnosis in March, 1978 and the survival action was subject to a plea of prescription. Guidry, supra. See also Johnson, Death on the Calíais Coach: The Mystery of Louisiana Wrongful Death and Survival Actions, 37 La.L.Rev. 1, 32-33 (1976).

Plaintiff contends the Trial Judge erred in interpreting Act 147 of 1976 to prohibit a wrongful death claim where the unintentional act occurred before October 1, 1976 and the death after October 1, 1976. She argues Smith v. Hurd, 408 So.2d 357 (La.App. 1st Cir.1981), relied on by defendant, is an aberration, not in line with the Louisiana appellate decisions nor with the legislative intent of the act. Plaintiff claims where the wrongful conduct occurs before October 1, 1976 and the damages (including a death) occur after that date, the Act does not bar recovery. Green v. Liberty Mutual Insurance Co., 352 So.2d 366 (La.App. 4th Cir.1977), writ refused 354 So.2d 210 (La., 1978), Talluto v. Patchen, 370 So.2d 618 (La.App. 4th Cir.1979) and Williams v. Aetna Casualty and Surety Co., 362 So.2d 1150 (La.App. 2d Cir.1978).

In Green and Talluto suit was filed by the injured workmen for injuries that occurred before October 1, 1976. The Green and Talluto plaintiffs’ causes of action arose prior to the effective date of the amendment and the cases correctly held that the Act could not be applied retroactively to extinguish those vested property rights. Williams was a wrongful death action but does not relate the date of the injured worker’s death. The facts as reported do not preclude the possibility that the decedent died before the effective date of the Act. If the death date was before October 1, 1976, a suit for wrongful death was not barred by the Amendment, hence Williams is not persuasive nor authority for plaintiff’s position.

The wrongful death action in C.C. Art. 2315 gives beneficiaries the right to recover from the tortfeasor such damages as the beneficiaries have suffered as a result of the victim’s wrongful death. Obviously, the action cannot arise until the victim dies and is intended to compensate the beneficiaries for damages they suffer from the moment of death and thereafter.

[Although the wrongful death action arises from a common tort, it is a separate and distinct action from the survival action. It never existed or arose in favor of the victim. (Our emphasis). Guidry, supra, at 326.

Plaintiff’s cause of action for the wrongful death of her husband did not arise until his death on February 11, 1980. On that date executive officer suits were prohibited by the 1976 Amendment to LSA-R.S. 23:1032. Therefore, plaintiff had no cause of action for the wrongful death of her husband due to an unintentional act by an executive officer. Smith v. Hurd, supra.

“... The right to tort damages for wrongful death did not exist at common law or in Louisiana until it was conferred by statute. Since it is a creature of the legislature, it is subject to legislative repeal.” W.S. Malone and H.A. Johnson, III, Louisiana Civil Law Treatise, Vol. 14, Workers’ Compensation Law and Practice, § 366, p. 167.

See also Colorado v. Johnson Iron Works, Ltd., 146 La. 68, 83 So. 381 (La.1919).

Plaintiff asserts:

If the District Court is correct,' the results are indeed irrational and unjust. If Smith v. Hurd is correct, the worker or his family can sue later for wrongful conduct of the executive officer who causes a quick death before October 1, 1976. If the wrongful conduct before October 1, 1976, leads to disability after October 1, 1976, the executive officer is liable in damages. But if the wrongful conduct causes disability before and a lingering death after the act, then according to Smith v. Hurd there is no liability. [Citations omitted]

Sympathy will not rectify the apparent inequity and harsh effect of dismissing plaintiff’s action. However, our law and jurisprudence are clear and in accord with the specific legislative intent in the 1976 Amendment: “to broaden the class of defendants to be granted immunity from suits by injured employees in tort or delict.” Bazley v. Tortorich, 397 So.2d 475, 479 (La.1981).

The judgment of the trial court is affirmed at plaintiff’s costs.

AFFIRMED.

      . A second summary judgment motion was stayed pending this appeal.

      . LSA-C.C. Art. 2315 provides in pertinent part:
      The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children;

      The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased.

      .Act 147 of 1976, effective October 1, 1976, amended LSA-R.S. 23:1032 to limit civil suits against executive officers to injuries arising from “intentional” acts.


text:
    George N. TAQUINO v. SEARS, ROEBUCK AND COMPANY.
    No. CA-0693.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 13, 1983.
    Rehearing Denied Oct. 27, 1983.
    Writ Denied Dec. 16, 1983.
    Joel P. Loeffelholz, New Orleans, for plaintiff-appellee.
    James A. Babst, Chaffee, McCall, Phillips, Toler & Sarpy, New Orleans, for defendant-appellee.
    Before BARRY and WARD, JJ., and REMY CHIASSON, Judge Pro Tempore.
   BARRY, Judge.

Plaintiff appeals a no cause of action judgment which dismissed his compensation suit based on a nervous breakdown.

George Taquino was a salesman for Sears, Roebuck and Company from 1948 to 1961 and from 1963 until the alleged breakdown in 1978. Taquino claims his mental condition is due to being transferred from one store to another, a reduction in commissions and base pay, and “inordinate amount of pressure” from his superiors.

We find no Louisiana case granting compensation benefits based solely on a mental disorder caused by job conditions. Whether plaintiff’s petition is factually sufficient is of no moment unless there is a legal basis for recovery.

Workmen’s compensation is premised on the traditional concept of “personal injury by accident arising out of and in the course of ... employment.” LSA-R.S. 23:1031. “Accident” is “an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.” LSA-R.S. 23:1021(1). “Injury” and “personal injuries” mean “injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom,” but “shall in no case be construed to include any other form of disease or derangement, howsoever caused or contracted.” LSA-R.S. 23:1021(6).

Twenty years ago our Supreme Court said a stroke caused by grief was not an “accident” and also eliminated emotional problems as compensable under LSA — R.S. 23:1021(6). Danziger v. Employer’s Mutual Insurance Company, 245 La. 33, 156 So.2d 468 (1963). But the reasoning in Danziger prevailed only nine years until compensation was allowed for a cerebral hemorrhage which followed emotional excitement in Ferguson v. HDE, Inc., 264 La. 204, 270 So.2d 867 (1972). The plaintiff in Fergu son had been on the job only two weeks when he argued over his first paycheck and suffered a partial paralysis. Justice Dixon, writing for a 4r-3 majority, held the paralysis to be an “injury” within plaintiff’s employment and cited Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1969): “Extraordinary physical stress and strain is not essential to the definition of disabling accident: when the performance of the usual and customary duties of a workman cause[s] or contribute[s] to a physical breakdown, the statutory requirements for an accidental injury are present.”

Significantly, Ferguson expressly overruled Danziger “[T]o the extent that the Danziger case held that there can be no ‘accident’ and no ‘injury’ when the disability results solely from extraordinary mental or emotional causes.” at p. 870. Our high court pointed out the English statutory scheme for workmen’s compensation was the origin for ours and adopted the British interpretation of “accident” which necessarily involves an examination of whether there was an accidential result, rather than whether the disability had an accidential cause. The holding concluded that a sudden and unexpected injury is compensable without physical stress or exertion.

Pre-dating Ferguson the court granted benefits because of angina pectoris (or a slight occlusion), a holding that recognized a grandually developing disability which changed the claimant’s “total physical being and capacity.” Bertrand v. Coal Operators Casualty Co., supra. Three years after Ferguson a heart attack was held to be a compensable accident. Roussel v. Colonial Sugars Company, 318 So.2d 37 (La.1975). A recent case involving angina (as in Bertrand) specified: “It makes no difference that the claimant in Bertrand fell to his knees with pain. Both the plaintiff in Bertrand and plaintiff in the present case experienced an episode of angina pectoris with outward manifestations observable to those nearby.” Adams v. New Orleans Public Service Inc., 418 So.2d 485 (La.1982).

A number of pre-Ferguson cases considered mental instability and automatically denied benefits due to Danziger. The Third Circuit denied a nervous breakdown claim caused by work pressures and fatigue over a period of months. Johnson v. Hartford Accident & Indemnity Company, 196 So.2d 635 (La.App. 3d Cir.1967). A few months later the First Circuit said: “It is now settled law that nervous or mental breakdown produced solely by stress of one’s employment does not contribute an acciden-tial injury within the meaning of the terms as appears in LSA-R.S. 23:1021.” Samson v. Southern Bell Telephone & Telegraph Company, 205 So.2d 496 (La.App. 1st Cir.1967). However, Johnson, Samson, and others no longer apply after Ferguson.

Recently a worker seeking benefits for a psychological disability was dismissed for failure to state a cause of action. Franklin v. Complete Auto Transit Company, 397 So.2d 60 (La.App.2d Cir.1981). Following two serious vehicular accidents involving a death, Franklin (a truck driver) underwent psychiatric treatment and produced expert testimony which connected his disability to the accidents. Franklin escaped bodily injury but was denied recovery for his resultant neurosis because he did not show “injury by violence to the physical structure of the body, a necessity within the statutory meaning of injury — personal injury. The mental disease or derangement must naturally result from and be causally related to injury by violence to the physical structure of the body, and not from other cause.” Franklin at p. 62.

We disagree with Franklin. The truck driver experienced two job-related serious accidents and his neurosis was causally related to the accidents and certainly did violence to the physical structure of the body. Franklin’s mental disability was as real as a broken bone or soft tissue injury. He was healthy before the accidents and mentally crippled as a result thereafter. “... an injured worker is still entitled to compensation even though the work accident would not have been disabling to the average healthy employee .... ” Allor v. Belden Corp., 393 So.2d 1233, 1236 (La.1981). If the truck driver had suffered a heart attack after either accident he would have been entitled to compensation.

We feel it is realistic to provide indemnification based upon a worker’s inability to perform as a result of disability which arises out of employment, not because of the type of injury. Our “accident” definition does not distinguish between organic and psychological injuries. To exclude nervous disorders is to create an artificial barrier between other work-related injuries. How a worker’s body reacts to a given situation can result in different types of injuries. What may cause one worker to suffer a heart attack (a compensable injury) may cause another worker to break down emotionally (a non-compensable injury.) A majority of jurisdictions support payment of compensation in “nervous” injury cases, while the contra view prevails in a number of jurisdictions. See Larson, § 42.23, pp. 7-624 through 7-630.

A noteworthy 1955 Texas decision, Bailey v. American Gen. Ins. Co., 154 Tex. 430, 279 S.W.2d 315 (1955), involved a “nervous” injury due to a sudden stimulus. Texas had the same restrictive definition of “injury” as Louisiana (requiring harm to the physical structure of the body), but its court answered affirmatively and found the mentally deranged body no longer functioned properly and therefore suffered harm to its physical structure. The Texas court reasoned the physical structure is not just bones and tissue as mechanical objects; rather, it is the entire interrelated, living, functioning organism.

Ferguson eliminates the automatic denial of benefits for emotional stress and places Louisiana with the majority of jurisdictions which do not require a physical blow as a prerequisite to recovery. “There is nothing talismanic about physical impact.” Wolfe v. Sibley, Lindsay & Curr Co., 36 N.Y.2d 505, 369 N.Y.S.2d 637, 330 N.E.2d 603 (1975). An “accident” of the “emotional” variety must be proven as any other claim and be causally related to the claimant’s employment, i.e., the disability must arise out of and within the course of employment. “If an otherwise healthy worker suffers an accident at work and is thereafter disabled, it is presumed that there is a causal connection between the two, so long as the medical evidence established a reasonable possibility of such a connection .... This presumption is not conclusive, but it forces the defendant to come forward with sufficient contrary evidence to rebut it.” Allor v. Belden Corp., supra, at p. 1236, cited in Adams v. New Orleans Public Service, Inc., supra.

We assume the lower court’s no cause of action judgment (without reasons) was based on the rejection of any alleged emotional injury claim (absent physical injury) for workmen’s compensation, but that finding is erroneous for the reasons expressed herein. However, plaintiff’s bare bones petition is vague and this matter is remanded to allow plaintiff fifteen days to amend his petition to specify, if he can, a factual basis to support his mental disability.

REVERSED AND REMANDED.

      . An early case, Johnson v. Zurich General Accident & Liability Insurance Co., 161 So. 667, 668 (La.App.2d Cir.1935), granted compensation to the widow of a nightwatchman who died of heart failure from fright by a practical joke. The court found death was due to an accident “as if actual force had been used.” Since the case involved both physical contact and emotional stress, Louisiana law on emotional stress was unclear until Danziger and Ferguson.

      . Gradually developing physical infirmities are now a fact of life. See Gales v. Great Atlantic & Pacific Tea Company, 342 So.2d 241 (La. App. 4th Cir.1977), writ refused 343 So.2d 1077 (La.1977); Scanlan v. Bernard Lumber Co., Inc., 365 So.2d 39 (La.App. 4th Cir.1978).

      . “It seems unthinkable that, if hypertension may be aggravated either by physical or mental and emotional exertion, courts should be willing to accept the physical as causative, but reject, as not accidental, a disability proximately resulting from mental and emotional exertion.” Insurance Department v. Dinsmore, 233 Miss. 569, 102 So.2d 691, 694, affirmed on rehearing, 233 Miss. 569, 104 So.2d 296.

      . An early example of a mental claim — mental neurosis — is the worker who could not keep up with his assembly line job. He had a dread of job loss, developed a disabling psychosis, and was found disabled. Carter v. General Motors Corporation, 361 Mich. 577, 106 N.W.2d 105 (1960).


author: WARD, Judge. REDMANN, Chief Judge,

text:
    Henry LANDRY, Sr. v. AETNA INSURANCE COMPANY, et al. Lonnie LANDRY v. AETNA INSURANCE COMPANY, et al.
    Nos. 12593, 12594.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 14, 1983.
    Rehearing Denied Oct. 27, 1983.
    Paul B. Deal, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendants-appellees, The Asplundh Companies and The Aetna Cas. and Sur. Co.
    Wayne C. Giordano, Belle Chasse, for appellant.
    Michael E. Wanek, New Orleans, for ap-pellee.
    Before REDMANN, C.J., and WARD and BARRY, JJ.
   WARD, Judge.

This case arose from an intersectional collision that occurred on the afternoon of March 9,1977, at the intersection of Elmira and Eliza Streets in the Algiers section of the City of New Orleans. Two lawsuits were filed and consolidated for trial: Lonnie Landry, the driver of one of the vehicles, sued the driver of the other vehicle, Williams, Williams’ employer, Asplundh, Aetna, Asplundh’s insurer, The City of New Orleans, and Lonnie Landry’s insurer, Automobile Club Insurance Company (ACIC) (for his medical expenses only). Henry Landry, Sr., the father of Lonnie Landry and guest passenger of Lonnie Landry at the time of the accident, filed suit against Esplundh, Williams, Aetna, The City of New Orleans, and ACIC. ACIC also brought a lawsuit as subrogee of Lonnie Landry for property damage to his car against Williams, Asplundh, and The City of New Orleans.

The collision occurred when Lonnie Landry was driving his automobile in a northerly direction on Elmira Street. His father, Henry Landry, Sr., was a guest passenger in Lonnie’s automobile. Ernest Williams was operating a stake body truck owned by his employer, Asplundh. Williams was travelling in an easterly direction on Eliza Street. Elmira was the favored street, having the right of way over side streets for a distance spanning several miles on either side of Eliza Street. Ordinarily, stop signs controlled vehicles crossing or entering El-mira from Eliza. On the date of the accident, however, the stop sign governing eastbound traffic on Eliza was missing. Williams was travelling approximately 35 m.p.h. and reached the intersection slightly before Landry, who was travelling approximately 20 m.p.h. Williams proceeded across Elmira without braking or slowing down. The right side of Williams’ truck was struck by Lonnie Landry’s left front fender. Lonnie Landry and Henry Landry, Sr. sustained injuries in the collision and filed suit to recover in two consolidated suits against Williams, Asplundh, Aetna, and the City of New Orleans. Additionally, Henry Landry, Sr. named Lonnie Landry as a defendant and alleged Lonnie Landry’s negligence as a cause of the accident.

The Trial Court found Williams to have been negligent and Lonnie Landry to have been contributorily negligent. All claims and third party claims were dismissed except that of Henry Landry, Sr., who was awarded a judgment for $10,000.00 against all defendants in solido. There were no written reasons for judgment.

. Henry Landry appealed, arguing that the award was inadequate. Lonnie Landry also appealed, arguing that he should not have been held liable as a defendant and should have recovered as a plaintiff; that he was not contributorily negligent. Asplundh, Williams and Aetna answered the appeal, submitting that they should not have been held liable to Henry Landry, and alternatively, they argue that they should have recovered a judgment of contribution on their third party claim against Lonnie Landry and his insurer, ACIC. ACIC also answered the plaintiff’s appeal, asserting that it should not have been held liable to Henry Landry, Sr.; that Lonnie Landry was not negligent.

This Court affirmed the Trial Court’s finding that Lonnie Landry was contributo-rily negligent and held that, “Although the Landry vehicle had the right of way, in light of the absence of the stop sign, the driver was nonetheless charged with the burden of exercising due vigilence and reasonable care.” 422 So.2d 1287, 1289. The panel upheld the Trial Court’s finding that the City of New Orleans was not negligent. The $10,000.00 award to Henry Landry was found to be so low as to constitute a clear abuse of discretion, and that award was increased to the sum of $20,249.06. Judgment was entered in favor of Henry Landry, Sr., against all defendants in solido, except for the City of New Orleans. The suit against the City of New Orleans by Henry Landry was dismissed, the subrogation claim of ACIC was dismissed, and the third party demands of the City of New Orleans were dismissed. Lonnie Landry’s suit (No. 12594) was also dismissed due to the Court’s finding that Landry was con-tributorily negligent. 422 So.2d 1287, 1291.

Henry and Lonnie Landry filed an application for writ of certiorari to the Louisiana Supreme Court. Lonnie Landry alleged error in the Fourth Circuit Court of Appeal’s determination that he was negligent, and Henry Landry sought a further increase in his damage award. The Supreme Court remanded Lonnie Landry’s case to the Fourth Circuit in a mandate which reads in its entirety:

Granted in part, denied in part and remanded. Judgment of Court of Appeal is reversed insofar as it dismissed case no. 12594 entitled Lonnie Landry v. Aetna Insurance Company, et al, and the case is remanded to the Court of Appeal to reconsider before a different panel the right of Lonnie Landry (driver of the vehicle) to recover. Otherwise, the application is denied.” 429 So.2d 150.

In response to that mandate we now consider the alleged contributory negligence of Lonnie Landry. The driver of an automobile has the duty to “look and observe, which never ceases; that which they can see, they must see and in legal contemplation, they do see. Failure to see what they could have seen by the exercise of due diligence does not absolve them from liability.” Simmons v. Baumgartner, 393 So.2d 904 (La.App. 4th Cir.1981), citing McCandless v. Southern Bell Telephone and Telegraph Company, 239 La. 983, 120 So.2d 501 (1960) and Smith v. Borchers, 243 La. 746, 146 So.2d 793 (La.1962). A motorist who has the right of way is not relieved of the duty to look in the direction from which others may be expected to come. Simmons v. Baumgartner, supra, citing Martin v. Adams, 88 So.2d 476 (La.App. 2nd Cir.1956) and Smith v. Borchers, supra. When a driver who has the right of way has seen, or should have seen, that a vehicle approaching an intersection will continue its approach and fail to yield the right of way, the driver with the right of way must take every available and reasonable precaution to avoid a collision. Schmidt v. Schwall, 265 So.2d 357, 359 (La.App. 4th Cir.1972).

The record reveals that Elmira is a narrow two-way street, and at the time of the accident, cars were parked on both sides of the street. All of the side streets entering or crossing Elmira are controlled by stop signs for a distance spanning several miles on either side of the intersection of Elmira and Eliza. Several witnesses estimated Lonnie Landry’s vehicle to have been travelling at 15-20 m.p.h. Landry’s view of oncoming traffic from Eliza Street was hampered by the cars parked on the side of Elmira Street as well as a two-story commercial structure located on the comer of Eliza and Elmira. Landry was four to five yards from the intersection when the truck became visible. The truck was travelling 30-35 m.p.h. when it crossed the intersection. The truck driver admitted that he did not attempt to brake until he realized the-collision had occurred. Landry’s car was dragged to the right in the collision. His car left skid marks which swerved to the right and measured approximately five feet.

Lonnie Landry now argues that these facts prove that he took every available and reasonable precaution to avoid a collision. It is the defendants’ contention on remand, however, that the judgment in the case of Henry Landry, Sr. (no. 12593) is now final because writs were denied in that case and that the holding therein that Lonnie Landry was negligent is now the law of the case. The defendant acknowledges, however, that the Supreme Court has directed the Fourth Circuit to reconsider the negligence of Lonnie Landry. Defendants suggest that we resolve what they term as the “self-contradictory remand” from the Supreme Court by affirming the previous holding and law of the case that Lonnie Landry was negligent. Even though the facts may lead us to a different conclusion, defendant argues that such a result would be in violation of the concept of the law of the case. Lonnie Landry argues on remand that the issue of his negligence is reopened by the remand order, and he suggests to this court that “Henry Landry, Sr.’s judgment against Lonnie Landry ... [should] be dismissed.”

We find merit in defendant’s argument that the holding that Lonnie Landry is con-tributorily negligent is now the rule of the case because we note that Lonnie Landry is cast in judgment in solido along with the other defendants sued by Henry Landry, and we are procedurally powerless to “dismiss” this judgment. Code of Civil Procedure Article 2166 provides that “If an application for certiorari to the supreme court is timely filed, a judgment of the court of appeal becomes final and definitive when the supreme court denies the application for certiorari.” Under the foregoing article, when the Supreme Court denied a writ of certiorari in Henry Landry’s case (No. 12793), the Court of Appeal’s judgment in that case became final and executory. The holding that Lonnie Landry was contributo-rily negligent became the law of these consolidated cases. Although contradictory interpretations of the remand order were submitted to this court, Henry Landry’s judgment is final.

For the above reasons, we enter judgment consistent with the prior opinion of this court which found Lonnie Landry to be contributorily negligent. All costs of this appeal are to be borne by appellee.

AFFIRMED.

REDMANN, C.J., dissents with written reasons.

REDMANN, Chief Judge,

dissenting.

In reversing this court’s judgment “insofar as it dismissed” Lonnie Landry’s claim and ordering reconsideration by a different panel, the supreme court can hardly have meant that this court could merely reinstate the earlier judgment of the disbenched panel. The supreme court judgment obliges us to take one of two positions:

(1) the earlier judgment’s casting of Lonnie Landry among several persons liable in solido to his guest passenger Henry Landry might be deemed reversed by the supreme court “insofar as” it equates to or obliges a dismissal of Lonnie’s claim; or
(2) that judgment’s casting of Lonnie in favor of his guest passenger might be deemed not to exclude, as impossibly inconsistent, a judgment in Lonnie’s favor against the other driver and entities responsible for him: whatever the “law of the case” in Henry versus Lonnie, Lonnie versus the other driver is a different case.

Although Henry versus Lonnie is not before us, it may be that Lonnie owed Henry a duty of care for whose breach he was liable to Henry; and that he owed to himself the same duty of care: but that he did not owe that duty to the driver on the non-favored street, while, to the contrary, that driver did owe a duty to Lonnie, and that driver’s duty to Lonnie included within the risks it sought to protect against the possibility that Lonnie might be less than perfectly observant of his duty to himself to maintain a careful lookout or the like.


author: WARD, Judge.

text:
    CITY STORES COMPANY v. NEI CORPORATION, et al.
    No. CA-0401.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 14, 1983.
    Rehearing Denied Oct. 27, 1983.

      Daniel Lund, Montgomery, Barnett, Brown & Read, New Orleans, for NEI Properties, Inc,, and The Plaza In Lake Forest, Inc., appellees-cross-appellants.
    Sidney L. Shushan, Guste, Barnett & Shushan, New Orleans, for City Stores Co., plaintiff-appellant.
    Before WARD, SCHOTT and KLEES, JJ.

       Schott, J, is of the opinion the rehearing should be granted.

   WARD, Judge.

City Stores filed this suit and claimed damages for past due rent, interest, and attorney’s fees, alleging that NEI had defaulted in the obligations which it had undertaken by an agreement titled “Assignment and Modification of Lease”. NEI filed a reconventional demand and claimed damages from City Stores, alleging that City Stores had wrongfully evicted NEI from the leased premises.

The Trial Court rejected both demands and denied both claims for damages. We agree and affirm the judgment of the Trial Court.

The background of this action is set out in detail in an earlier, related case, City Stores Company v. NEI Corporation, 357 So.2d 1364 (La.App. 4th Cir.1978), where the Court of Appeal remanded the action for the determination of whether there is an “indebtedness owed to plaintiff by reason of the corporate defendants’ default on the lease.” The action came to trial in December of 1981.

City Stores argues that it is entitled to damages because of NEI’s default in payment of rent, and that judicial eviction of NEI was unnecessary because NEI had abandoned the leased premises. NEI contends that it had not abandoned the premises and, therefore, it is entitled to damages because of being wrongfully evicted by City Stores’ re-taking of the leased premises without first obtaining a judgment and order of eviction.

Much evidence is undisputed. NEI made no further payments of rent after August, 1975, and during that August, representatives of each party met in New York City and reviewed matters pertaining to the lease. NEI was clearly in financial trouble; the trouble was so severe that there was a possibility of imminent bankruptcy proceedings. Although NEI had defaulted in the payment of rent, City Stores did not bring an action for judicial eviction of NEI, but instead, in October of 1975, Counsel for City Stores sent NEI a letter stating that City’s Stores had been “forced to re-enter the Gentilly Woods premises.” It is also undisputed that the lease agreement between the parties provided that NEI would not physically occupy the leased premises, but that NEI would function as an agent or broker to sub-lease the premises to a suitable tenant. Finally, it is undisputed that NEI had been involved in lease negotiations with Gaylord’s Department Store (although the extent of those negotiations is in dispute) before the August meeting of the City Stores and NEI representatives and that following the August meeting, City Stores undertook lease negotiations directly with Gaylord’s, and NEI withdrew from those negotiations.

The rule is long established that “a lessor has no right to take possession or in any way disturb the possession of the lessee without first resorting to judicial process.” An exception to this requirement for judicial intervention arises “when the lessee has voluntarily abandoned the premises.” Bunel of New Orleans, Inc. v. Cigali, 348 So.2d 993 (La.App. 4th Cir.1977) writ denied, 350 So.2d 1210 (La.1977). Therefore, in order for City Stores as lessor to prevail in its claim for damages where it did not sue to evict the tenant, the tenant, NEI, must have abandoned the premises.

In his Reasons for Judgment, the Trial Judge noted that NEI had continued to pay for electricity, water, and ADT protection on the leased premises and that NEI had provided insurance protection up until April, 1977, and he concluded that these incidents of possession were sufficient to support a finding that NEI had not abandoned the premises. Since the parties had agreed by the terms of the lease that NEI would not physically occupy the building, it is questionable what facts would constitute proof of its abandonment. We nonetheless conclude that the Trial Judge did not err in his finding that NEI had not abandoned the leased premises, and therefore, City Stores has failed to show that it had a right based on abandonment to take possession of the premises without first resorting to judicial process, and its claim for damages must fail.

We also agree with the Trial Judge that NEI’s reconventional demand for damages based on wrongful eviction must fail because we agree with his factual findings about the agreement of the parties after their meeting in August, 1975.

At that time, NEI was unable to continue paying rent, and City Stores was aware that NEI was contemplating bankruptcy. City Stores decided not to undertake a suit for judicial eviction, which may have become entangled in bankruptcy proceedings, and decided to take over NEI’s role as agent or broker in completing lease negotiations with Gaylord’s and other potential tenants. NEI was agreeable to that plan. Having failed in its obligations under the lease, NEI does not now have a claim for damages for wrongful eviction after agreeing that City Stores would retake the premises.

We affirm the Trial Court and deny the claims both of City Stores and NEI, and we assess costs of the appeal to City Stores.

Affirmed.


text:
    Wanda SINGLETON v. Rose Marie SIMMS.
    No. CA-0640.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 14, 1983.
    Rehearing Denied Oct. 27, 1983.
    Writ Denied Jan. 6, 1984.

      Pierre F. Gaudin, Gretna, for Wanda Singleton.
    O’Dowd & O’Dowd, Kim M. O’Dowd, New Orleans, for Rose Marie Sims.
    Before WARD and BARRY, JJ., and CHIASSON, J. Pro Tern.
   WARD, Judge.

Mrs. Singleton brought suit against her lessor, Mrs. Sims, to recover damages which she allegedly sustained when the roof collapsed on the house that Mrs. Singleton was renting from Mrs. Sims. The Trial Judge dismissed Mrs. Singleton’s suit when he granted Mrs. Sims’s peremptory exception of prescription, applying the one year prescriptive period to actions tortious in nature and grounded on Article 2315 of the Louisiana Civil Code. Mrs. Singleton filed a Motion, which the Trial Judge denied, for a new trial and/or hearing. Mrs. Singleton has appealed the denial of that motion.

The issue before this court is whether the prescriptive period of one year bars the prosecution of this lawsuit. We affirm the Trial Judge’s holding that it does.

The facts giving rise to this action are brief. The roof of the house which Mrs. Singleton was renting from Mrs. Sims collapsed in February, 1981. In July of 1982, more than one year after the accident, Mrs. Singleton filed her lawsuit. In her petition, she itemized these damages:

A. Loss of furniture and personal belongings_ $5,000.00
B. Mental anguish, aggravation and inconvenience_ $5,000.00
C. Other expenses pertaining to finding other living quarters, baby sitting expenses, food, motel expenses, etc_ $5.000.00
TOTAL__$15,000.00

and she asked for legal 'interest from the date of judicial demand.

After her suit was dismissed on the peremptory exception of prescription, Mrs. Singleton argued in her motion for a new trial and/or hearing, as she argues in this appeal, that her action for damages arose from the breach of a contract of lease between the lessor and lessee, and, therefore, the action has a prescriptive period of ten years under La.C.C. Art. 3544. On the other hand, Mrs. Sims argues that the claim for any damages which are occasioned from the “vice and defects of the thing” leased is an action ex delicto and prescribes after one year under La.C.C. Art. 3536.

The rules for the granting of a new trial are set out in Arts. 1971 — 1979 of the La.C. G.P., and Art. 1972 states:

A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) Where the judgment appears clearly contrary to the law and the evidence;
* * * * * *

Mrs. Singleton would clearly be entitled to a new trial if her suit were one in contract. Mrs. Singleton primarily relies on McCrory Corp. v. Latter, 331 So.2d 577 (La.App. 1st Cir.1976) writ denied, 334 So.2d 229 (La.1976) to support her claim. In McCrory, the plaintiff-lessee sued for damages that were caused by the flow of water into the leased premises by a broken water pipe. In that case, the First Circuit Court held that the ten year prescription period applied because the damage was from a breach of the lessor’s obligation under a specific lease provision to keep the basement waterproof. The court distinguished that particular contractual obligation of the lessor from both the covenant to repair and the statutory duty of the lessor to guarantee the lessee against all the vices and defects of the thing leased, La.C.C. Art. 2695.

In this case, there is no claim of a specific lease provision, and the jurisprudence has clearly held that an “action by a lessee against a lessor for damages caused by defects in the leased premises” is an action ex delicto and has a prescription period of one year. Aiola v. DiMartino, 136 So.2d 151 (La.App. 4th Cir.1962).

Additionally, in the original petition, Mrs. Singleton itemized personal injury and property damage, and made a demand for interest under La.R.S. 13:4203, all reflecting an action in tort to which the Trial Judge properly applied the one-year prescriptive period in La.C.C. Art. 3536.

For these reasons, we affirm the judgment of the Trial Judge and assess all costs to Mrs. Singleton.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Fletcher WILSON, Defendant-Appellant.
    No. 15248-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.
    Stephen A. Glassell, Shreveport, for defendant-appellant.
    Dale G. Cox, Asst. Dist. Atty., Shreveport, for plaintiff-appellee.
    Before HALL, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

After being indicted for second degree murder, defendant bargained to plead guilty to manslaughter when the court agreed that the sentence to be imposed would not exceed 10 years. He now appeals the 10-year sentence as constitutionally excessive.

The sentence was pronounced after a sentence hearing at which it was shown that defendant had been involved in another incident involving dangerous weapons while free on bail following his guilty plea. Defendant did not have a prior felony arrest or conviction and was honorably discharged from military service. At the hearing, defendant acknowledged that he understood that the trial court had authority to sentence him to 10 years and made no objection to the sentence. Defendant bargained to plead guilty notwithstanding his continued assertion that he was acting in self defense when he repeatedly stabbed his girlfriend. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), authorizes the acceptance of such a plea.

The sentence is not excessive. Compare State v. Romero, 369 So.2d 1342 (La.1979), 14 years; State v. McMahon, 391 So.2d 1120 (La.1980), 15 years; State v. Stegall, 377 So.2d 103 (La.1979), 20 years; and State v. Allen, 416 So.2d 553 (La.1982) 12 years. It is supported by the record and by the trial court’s articulation of the sentencing factors of CCrP Art. 894.1.

Even if defendant, by protesting his innocence, did not “agree” to 10 years, he received no greater punishment than was contemplated under the plea bargain. Compare situations where a defendant, by “agreeing” in a plea bargain to a range of sentence, may be precluded from complaining of excessiveness of a sentence within that range. State v. Hicks, 403 So.2d 676 (La.1981); State v. Curry, 400 So.2d 614 (La.1981).

AFFIRMED.