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

text:
    Daniel R. WINTERROWD v. The TRAVELERS INDEMNITY COMPANY et al.
    No. 84-C-1308.
    Supreme Court of Louisiana.
    Jan. 24, 1985.
    Rehearing Denied March 7, 1985.

      Frank M. Walker, Jr., Charles W. Salley, Lunn, Irion, Switzer, Johnson & Salley, Shreveport, for applicant.
    Roy Steven Payne, Jerald L. Perlman, Blanchard, Walker, O’Quinn & Roberts, Shreveport, Edward W. Rundell, Gold, Little, Simon, Weems & Brusner, Alexandria, Billy R. Pesnell, Joseph L. Shea, Jr., Har-grove, Guyton, Ramey & Barlow, Alex L. Smith, Jr., Mayer, Smith & Roberts, Shreveport, for respondents.
   DIXON, Chief Justice.

Plaintiff Daniel R. Winterrowd suffered personal injuries when the power press he was operating malfunctioned. He brought suit for damages against his employer, Burl N. Boswell, Boswell’s insurer, The Travelers Indemnity Company, Rheem Manufacturing Company, which had repaired the press, E.W. Bliss Company, the manufacturer of the press, its insurer, Aet-na Casualty and Surety Company, and others. The jury returned a verdict in favor of plaintiff and against defendants Boswell, The Travelers and Rheem Manufacturing Company, awarding damages of $400,000. The jury found in favor of defendants E.W. Bliss, its insurer Aetna, and others, dismissing plaintiff’s demands. Suspensive appeals were taken by Boswell, his insurer The Travelers, and Rheem Manufacturing. A devolutive appeal was filed on behalf of plaintiff. The court of appeal affirmed the jury’s finding of liability on the part of Boswell, The Travelers and Rheem, but reversed the judgment in favor of Bliss and Aetna, holding them solidarity liable with the other defendants. The case was reargued before a five judge panel and the original opinion was reinstated. 452 So.2d 269 (La.App.1984). We have granted the petition of defendants Bliss and Aetna for a writ of certiorari. 457 So.2d 1185 (La.1984). Plaintiff’s application for writ of certiorari was denied. 457 So.2d 1195 (La.1984).

Plaintiff Winterrowd was a twenty-three year old full time firefighter for the Shreveport Fire Department. With the consent of his employer he also undertook part time employment. He had begun to work for Bosman Industries, a small manufacturer of “Cajun Cookers,” on December 23, 1975. On January 8, 1976, the punch press he was operating unexpectedly malfunctioned and made an uninitiated double stroke. Plaintiff, following instructions of his employer, was manually removing the product from the dies at the time. The uninitiated stroke caused the amputation of the thumb, index and middle fingers of plaintiffs left hand, and the thumb of his right hand.

The punch press which caused the injury was manufactured by E.W. Bliss Company in 1907. It was sold the same year to the Michigan Stamping Company. Bliss records indicate that it had supplied parts for the press to Michigan through 1925. Bliss had no specific record of the whereabouts of this press from 1925 until it was notified of this accident in 1976. In 1938 Rheem Manufacturing Company, which owned the press at the time, ordered a new crankshaft from Bliss. Since Rheem did not have the serial number of the press, it sent blueprints with the order. This was sufficient identification for Bliss to be able to send the correct replacement part. Thus Bliss knew the location of its machine in 1938. Rheem did not sell the press until 1974.

According to the testimony of Lewis, a Bliss engineer, Rheem altered the press when it replaced the crankshaft and attached the end cap with a set screw instead of a dowel pin. The evidence showed that this set screw loosened, allowing the end cap to move laterally along the crankshaft, moving the bull gear and resulting in the misalignment of the clutch and latch mechanism. This caused the uninitiated double stroke which amputated plaintiffs fingers.

Defendant manufacturer Bliss and its insurer Aetna contend that the court of appeal erroneously rendered judgment against them based upon its factual conclusion that plaintiff had proven by a preponderance of the evidence that Bliss’ failure to warn was a causal factor in plaintiffs injuries. In brief, defendant argues only that there is substantial evidence upon which the jury could reasonably have concluded that there was no causal connection between its failure to warn and plaintiffs injuries; that an ordinary user should have been aware of the dangers of the machine; and that warnings would not have been effective.

Both plaintiff and defendants requested jury instructions on the duty of a manufacturer to warn of dangers inherent in normal use of its product which would not be obvious to the ordinary user. None were given. Objections to the omission were overruled, without explanation, in spite of the fact that Bliss’ motion for a directed verdict had already been overruled. The jury, therefore, was without guidance from the court on the question of Bliss' duty to warn.

Bliss manufactured this punch press in 1907. At that time it offered the option of purchase of a “single-stroke” mechanism — a construction which would have reduced or eliminated the danger of uninitiated double strokes on its full revolution presses. The press in question was a full revolution press and was not equipped with a “single-stroke” mechanism. The fact that Bliss manufactured such a mechanism in 1907 indicates that Bliss had at least some knowledge of the danger of-uninitiated double strokes and of consequent injury to the hands of operators.

In 1907 industrial accidents were becoming a major problem in this country, claiming 35,000 lives a year and causing 2,000,-000 injuries. L. Friedman, A History of American Law (1973) at 422. In 1910 another manufacturer of power presses, International Harvester, began to warn operators to keep their hands out of the die area. In 1966 Bliss began to affix warnings to the presses it manufactured. Such warnings were affixed to all presses sold by Bliss aftér 1973. Operators were warned never to insert their hands into the die area. In 1967 Bliss began publishing a safety pamphlet for the operation of its power presses. This pamphlet instructed the use of tools so that hands might never be inserted into the die area. It also mentioned the existence of operation guards and safety devices. The press in question was never equipped with any such guards or devices.

The facts of this case are not in dispute. The evidence in the record clearly establishes that there was a causal connection between the failure, to warn and plaintiffs injuries, that an ordinary user would not have been aware of the danger, and that an adequate warning would have been effective in this case.

The law in Louisiana today requires that a manufacturer provide warning of any danger inherent in the normal use of its product which is not within the knowledge of an ordinary user. Chappuis v. Sears, Roebuck & Co., 358 So.2d 926 (La.1978). The duty to warn does not include dangers which are obvious to the ordinary user. The ordinary operator of a punch press would probably realize the danger of placing hands within the die area when the machine was in operation. On the other hand, the operator would have no reason to suspect the danger of an uninitiated double stroke. The operator normally pushed a lever to initiate a stroke. When the lever was not being pushed, the operator would presume that no stroke would occur. The manufacturer, however, did know that the possibility of an uninitiated stroke was always present. Today there is no question that a manufacturer with this knowledge has a duty to warn users of its product of the danger.

The state of the law in 1907 is less specific. Under the Civil Code at that time a person was liable for damage caused by his or her act (C.C. 2315, as amended by Acts 1884, No. 71) or by his or her negligence (C.C. 2316, as in C.C. 1825, art. 2295).

Bliss manufactured the press in New York. The courts of New York had upheld liability on the basis of negligence long before 1907. In 1852 the seller of a bottle of poison had been held to a duty to warn and to liability for failure to place a warning label on the bottle. Thomas v. Winchester, 6 N.Y. 397, 57 Am.Dec. 455 (N.Y.1852). In 1882 the builder of a scaffold was held to a duty to build with care. Devlin v. Smith, 89 N.Y. 470, 42 Am.Rep. 311 (N.Y.1882). The manufacturer of a defective rope was held liable in 1892. Davies v. Pelham Hod Elevating Co., 20 N.Y.S. 523 (N.Y.App.Div.1892). The manufacturer of an elevator was held liable for injuries caused by its defective elevator in 1904. Kahner v. Otis Elevator Co., 96 A.D. 169, 89 N.Y.S. 185 (N.Y.App.Div.1904). In the same period, the manufacturer of a steam coffee urn was held liable for negligent design of its product in 1909. Statler v. Ray Mfg. Co., 195 N.Y. 478, 88 N.E. 1063 (1909). Finally in 1916 Judge Cardozo found the manufacturer of an automobile liable to its users for negligent design, despite the sale of the product through a dealer and the absence of privity of contract. MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (N.Y.1916).

Bliss manufactured a machine which it knew, in 1907, posed the danger of an uninitiated double stroke. This danger existed when the machine was in ordinary use. It was not obvious to the ordinary user. Bliss never issued any warnings to alert owners or operators of the machine which caused injury in this case. Bliss did issue and attach warnings to other similar machines which it manufactured more recently.

Bliss argued that it did not know the whereabouts of this machine and therefore could not warn its owners or operators. Yet Bliss could have published warnings in trade journals, making a reasonable effort to notify owners of power presses of the danger and instructing them to warn their operators. There is no evidence that Bliss made any attempt to notify owners of its older machines of the necessity of warnings. It is well known in the industry that power presses have a long useful working life. Bliss itself was aware of this fact because it had discovered through advertising that a press which it had manufactur-ered in the 1880s was still in use in 1976.

Testimony has shown that if there had been a warning, this plaintiff would have complied with it and his compliance would have prevented his injury.

The court of appeal was correct in holding Bliss solidarily liable for plaintiff’s injuries because Bliss, as manufacturer of the press, had a duty to warn. It did not perform its duty to warn owners of older presses.

Its failure to warn was a causal factor in plaintiffs injury.

The judgment of the court of appeal is affirmed, at defendants’ cost.

LEMMON, J., concurs and assigns reasons.

WATSON, J., dissents.

BLANCHE, J., dissents and will assign reasons.

LEMMON, Justice,

concurring.

One of the essential elements of the plaintiff’s proof in a products liability case is evidence that the product was defective at the time that the manufacturer placed the product in commerce. Inasmuch as the plaintiff in this case proved that the machine was defective at the time of its manufacture (in that there was an unreasonable risk of an uninitiated second stroke), Bliss was liable to the plaintiff for breaching its duty either to remedy the dangerous condition by installing a safety device or to display a warning of the danger. Since either action would have prevented this accident, I concur in affirming that part of the judgment of the court of appeal which held Bliss solidarily liable to plaintiff.

I note, however, that Bliss is entitled to indemnity against the other solidarily liable defendants. Plaintiff proved the defect (the risk of an uninitiated second stroke), and it was not necessary that plaintiff prove the cause of the defect. However, the cause of the defect is relevant to the determination of liability as between defendants.

The evidence established that the double stroke in the present case was caused by the attachment of the end cap with a set screw which eventually became loose and allowed the end cap to move across the crankshaft, causing misalignment of the latch mechanism controlling the stroke. The set screw had been installed on the machine by Rheem in place of the dowel pin originally used by Bliss to attach the end cap. Because the set screw was not part of the machine at the time Bliss placed it in commerce, this particular accident would not have occurred but for Rheem’s alteration of Bliss’ original design. Bliss should be entitled to indemnity against Rheem, the party who actually created the condition that resulted in the double stroke that produced plaintiff’s injury. La.C.C. Art. 2106 (now C.C. Art. 1804); Appalachian v. Brooklyn Cooperage Co., 151 La. 41, 91 So. 539 (1922); Dusenbery v. McMo-Ran Exploration Co., 458 So.2d 102 (La.1984). However, since Bliss apparently did not demand indemnity against Rheem, I concur in the decree.

BLANCHE, Justice

(dissenting).

The press involved in this accident was manufactured in 1907. However, in 1938, Rheem, a subsequent purchaser of the press, submitted a blue print to Bliss for a new crankshaft to be made to the specifications shown in the blue print. The crankshaft was made in strict compliance with the blue prints submitted by Rheem because the registration number of the machine was not submitted. Further evidence showed that the machine was sold in 1974 to Donald Brown, who later sold the press to Bosman Industries. Neither Brown nor Bosman Industries altered the machine in any way.

The repeat stroke of this press which initiated plaintiffs injuries, was caused by the movement of the end cap on the crankshaft, away from the body of the press. The end cap which in accordance with these new specifications had been replaced on the press in a manner different from its original design and manufacture. The end cap was originally secured with a “dowel pin” that extended through the diameter of the crankshaft. At the time of the accident, the end cap was affixed to the crankshaft with a friction type set screw. Over time, the set screw loosened, allowing the end cap to move laterally along the cranks-chaft, resulting in misalignment of the later mechanism that regulated the stroke of the ram.

The court of appeal correctly found that the defective alteration of the machine by Rheem was the cause of this accident. While it was possible that the machine, prior to its modification, could have caused injury to plaintiff, the fact remains that this particular injury was caused solely by the defective alteration made by Rheem. Liability for an injury should not be apportioned on what theoretically, under other facts, could have caused the injury when the precise cause of this particular injury to this plaintiff has already been determined.

      . For a discussion of the effects of the passage of time in products liability cases, see G. Schwartz, New Products, Old Products, Evolving Law, Retroactive Law, 58 N.Y.U.L.Rev. 796 (1983); V. Schwartz, The Post-Sale Duty to Warn: Two Unfortunate Forks in the Road to a Reasonable Doctrine, 58 N.Y.U.L.Rev. 892 (1983).

      . Bliss was held liable for negligent design and failure to warn in a similar case where a full revolution power press had an uninitiated double stroke injuring plaintiffs hand. This press was manufactured in 1951 and caused injury in 1973. Fabian v. E.W. Bliss Co., 582 F.2d 1257 (10th Cir.1978). In the United States Fifth Circuit another manufacturer of a punch press was held liable for its failure to warn of the press’ proclivity to double stroke when such a double stroke amputated four of plaintiffs fingers. Gordon v. Niagara Machine & Tool Works, 574 F.2d 1182 (5th Cir.1978).

      . Because the jury was improperly instructed, the verdict in favor of Bliss is not entitled to any weight. An appellate review of the record, without regard to the jury verdict, establishes that plaintiff proved the essential elements of his case by a preponderance of the evidence.


source: Caselaw Access Project

author: DIXON, C.J.,

license: Public Domain

text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT v. JOHNSON REALTY COMPANY, INC. et al.
    No. 85-CC-0240.
    Supreme Court of Louisiana.
    Feb. 5, 1985.
   IN RE: Transportation & Dev. Dept.; Applying for Supervisory and Remedial Writs and Stay Order; Parish of Jefferson 24th Judicial District Court Div. “F” Number 267-572; to the Court of Appeal, Fifth Circuit, Number 85-C-88.

Writ granted. The trial court is ordered to grant the motion for continuance and reschedule the trial forty-five days or later from this date.

DIXON, C.J.,

dissents from this action. No reasonable grounds for a continuance have been stated, either in the application or the court’s order. The district judge and the court of appeal were correct in denying the continuance.


text:
    STATE of Louisiana ex rel. Tony PETERS v. FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU.
    No. 84-KH-0669.
    Supreme Court of Louisiana.
    Feb. 6, 1985.
   IN RE: Tony Peters applying for Writ of Certiorari from the Fourteenth Judicial District Court, Parish of Calcasieu, No. 2588-72, Division “E”.

Granted. The ruling of the trial court is set aside and the case is remanded to the trial court for reconsideration in light of State ex rel. Becnel v. Blackburn, 410 So.2d 1015 (La.1982).

MARCUS, J., dissents from the order. See my dissent in State ex rel. Becnel v. Blackburn, 410 So.2d 1015 (La.1982).

BLANCHE, J., dissents for reasons assigned in Becnel.

LEMMON, J., dissents for reasons assigned in Becnel.


text:
    STATE ex rel. Norris J. NASH, II v. Wayne McELVEEN, Criminal Sheriff, Parish of Calcasieu.
    No. 84-KH-2082.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Nash, Norris J. II, applying for writ of mandamus; Parish of Calcasieu, 14th Judicial District Court, Div. “B”, No. 12305-79.

Denied.


text:
    Hardy DRODDY v. CLIFF’S DRILLING, INC.
    No. 84-C-2078.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Droddy, Hardy, applying for writ of certiorari and/or review, Court of Appeal, Third Circuit, No. 83-976; Parish of Beauregard, 36th Judicial District Court, Div. “ ”, No. C-456-79.

Prior report: 458 So.2d 627.

Granted.


text:
    ANGELO PAVONE ENTERPRISES, INC., Angelo J. Pavone, Jr. and Barbara Pavone v. SOUTH CENTRAL BELL TELEPHONE COMPANY and American Telephone and Telegraph.
    No. 84-C-2106.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Angelo Pavone Enter. Inc. et al., Pavone, Angelo J. Jr., Pavone, Barbara, applying for writ of certiorari and/or review; to the Court of Appeal, Fourth Circuit, No. CA-1959; Parish of Orleans, Civil District Court, Div. “E”, No. 82-1549.

Prior report: 459 So.2d 1223.

Granted.


text:
    Shirley Weber, Wife of/and William WEBER Individually and on Behalf of Their Minor Daughter, Gaynell Weber v. CHARITY HOSPITAL OF LOUISIANA AT NEW ORLEANS.
    No. 84-C-2110.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Weber, Shirley etc. et vir, Weber, William, applying for writ of certiorari and/or review; to the Court of Appeal, Fourth Circuit, No. CA-1853; Parish of Orleans, Civil District Court, Div. “C”, No. 81-15619.

Prior report: 459 So.2d 705.

Granted.


text:
    STATE of Louisiana ex rel. Wilbert ALLEN v. STATE of Louisiana.
    No. 84-KH-2101.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Allen, Wilbert, applying for writ of certiorari and/or review; Parish of Orleans, Criminal District Court, Div. “D”, No. 264-787.

Granted. The district court is ordered to act on the motion for production of documents submitted in July, 1984, if it has not already done so.


text:
    STATE ex rel. David Hermann EDWARDS v. STATE of Louisiana.
    No. 84-KH-2191.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Edwards, David Herman, applying for writ of certiorari and/or review; Parish of East Baton Rouge, 19th Judicial District Court, Div. “G”, No. 3-80-348.

Granted. The trial court is ordered to grant relator an out of time appeal to the court of appeal.


text:
    PIONEER BANK AND TRUST COMPANY v. George D. OECHSNER, III et al.
    No. 84-CC-1882.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Pioneer Bank and Trust Company, applying for reconsideration of writ granted W/O of November 26, 1984, 460 So.2d 1037, from the Civil District Court, Parish of Orleans, No. 84-4442; Fourth Circuit Court of Appeal, No. C-2156.

Rehearing granted; Case to be docketed.


text:
    STATE ex rel. Cedric ROBINSON v. Ross MAGGIO, Jr., Warden, La. State Penitentiary.
    No. 84-KH-1160.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Cedric Robinson, applying for reconsideration of Denied Writ of December 7, 1984, 461 So.2d 308, from Criminal District Court, Parish of Orleans, Section “F”, No. 277-476.

Denied.


text:
    STATE ex rel., Ray Anthony JACKSON v. Frank C. BLACKBURN, Warden.
    No. 84-KH-2122.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Jackson, Ray Anthony, applying for remedial writs; Parish of St. Mary, 16th Judicial District Court, Div. “F”, No. 111950.

Not considered. The application does not comply with the Court’s Rule X Sec. 5(a), nor the requirements of the Uniform Application for Post Conviction Relief.

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


text:
    STATE of Louisiana, ex rel. Delores DORE v. Hon. C. Thomas BIENVENU, Jr., Judge, Division “A”, 16th Judicial District Court, St. Martin Parish and Court of Appeal, Third Circuit.
    No. 83-KH-2230.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Delores Dore, applying for writ of certiorari or review, 16th Judicial District Court, No. 64295, Parish of St. Martin; Court of Appeal, Third Circuit, No. K-83-745.

Denied.


text:
    STATE ex rel. Curtis DIXON v. Charles C. FOTI, Jr. Sheriff.
    No. 84-KH-1726.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Dixon, Curtis, applying for habeas corpus, Parish of Orleans, Criminal District Court, Div. “H”, Nos. 286-710, 286-727.

Denied. Relator’s complaint relative to good time is currently pending in the district court; his other complaints are without merit.


text:
    STATE of Louisiana v. Ella THOMPSON.
    No. 84-KK-2059.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re State of Louisiana, applying for writ of certiorari and/or review, Court of Appeal, Fourth Circuit, No. K-2956; Parish of Plaquemines, 25th Judicial District Court, Div. “B”, No. 66856.

Denied.

DIXON, C.J., and MARCUS and BLANCHE, JJ., would grant the writ.


text:
    Judith A. HYMEL v. HOTEL DIEU HOSPITAL and The Aetna Casualty and Surety Company.
    No. 84-C-2094.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Hymel, Judith A., applying for writ of certiorari and/or review; to the Court of Appeal, Fourth Circuit, No. CA-1912; Parish of Orleans, Civil District Court, Div. “L”, No. 83-2676.

Denied.


text:
    JEFFERSON DISPOSAL COMPANY, INC. v. PARISH OF JEFFERSON.
    No. 84-C-2099.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Jefferson Disposal Co. Inc., applying for writ of certiorari and/or review; to the Court of Appeal, Fifth Circuit, No. 83-CA-802; Parish of Jefferson, 24th Judicial District Court, Div. “J”, No. 237-304.

Prior report: 459 So.2d 639.

Denied.

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


text:
    Wilmer J. BALTAZOR v. Dorothy B. WALDEN, Albert A. Baltazor, Baltazor, Inc. and Baltazor Fabrics, Inc.
    No. 84-C-2107.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Baltazor, Wilmer J., applying for writ of certiorari and/or review; to the Court of Appeal, Fourth Circuit, No. CA-1945; Parish of Orleans, Civil District Court, Div. “K”, No. 82-19093.

Prior report: 459 So.2d 711.

Denied.


text:
    Mrs. E. Ruth Castle Jones, Wife of James I. JONES v. James I. JONES.
    No. 84-C-2111.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Jones, James L, applying for writ of certiorari and/or review, prohibition and mandamus; to the Court of Appeal, Fifth Circuit, No. 84-CA-69; Parish of Jefferson, 24th Judicial District Court, Div. “M”, No. 266-736.

Prior report: 459 So.2d 1200.

Denied.


text:
    Benjamin B. MATTHEWS v. Vicki Fisk, Wife of Benjamin B. MATTHEWS.
    No. 84-C-2113.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Fisk, Vicki, applying for writ of certiorari and/or review; to the Court of Appeal, Fifth Circuit, No. 88-CA-518; Parish of Jefferson, 24th Judicial District Court, Div. “H”, No. 251-286.

Denied. Result is correct.


text:
    Clarence HEAD v. ERATH GENERAL HOSPITAL, INC. et al.
    No. 84-C-2116.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Erath General Hospital et al., applying for writ of certiorari and/or review; to the Court of Appeal, Third Circuit, No. 83-909; Parish of Vermilion, 15th Judicial District Court, Div. “D”, No. 83-46106.

Prior report: 458 So.2d 579.

Denied.

MARCUS, J., would grant the writ.


text:
    RIVER PARISH SERVICES, INC. v. GOODHOPE REFINERIES, INC., Now GHR Energy Corp.
    No. 84-C-2121.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Bank of LaPlace, applying for writ of certiorari and/or review; to the Court of Appeal, Fifth Circuit, No. 83-CA-423; Parish of St. Charles, 29th Judicial District Court, Div. “C”, No. 24244.

Prior report: 457 So.2d 1290.

Denied.

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


text:
    Mrs. Ann M. WEIR v. Jacqueline GASPER, Allstate Insurance Company, New Orleans Public Service, Inc. and Eldrena Moss.
    84-C-2124.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re New Orleans Public Serv. Inc., applying for writ of certiorari and/or review; to the Court of Appeal, Fourth Circuit, No. CA-1943; Parish of Orleans, Civil District Court, Div. “K”, No. 81-20247.

Prior report: 459 So.2d 655.

Denied.

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


text:
    STATE of Louisiana v. Mike T. PAPPAS, Gary R. Vinet.
    No. 84-KK-2125.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Vinet, Gary R., applying for writ of certiorari and/or review, prohibition and mandamus, Parish of Jefferson, 24th Judicial District Court, Div. “G”, No. 84-254; to the Court of Appeal, Fifth Circuit, No. 84-K-619.

Denied.

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


text:
    David GRAPUSA v. UNITED STATES FIDELITY AND GUARANTY COMPANY and CNA Insurance Company.
    No. 84-CC-2127.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re CNA Insurance Co., Continental Casualty Co., applying for writ of certiorari and/or review, prohibition and mandamus, Parish of Jefferson, 24th Judicial District Court, Div. “J”, No. 276-353; to the Court of Appeal, Fifth Circuit, No. 84-C-489.

Denied. Not final.


text:
    Rita Bouterie BOYLE v. William BOYLE.
    No. 84-C-2129.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Boyle, Rita Bouterie, applying for writ of certiorari and/or review; to the Court of Appeal, Fourth Circuit, No. CA-1897; Parish of Orleans, Civil District Court, Div. “F”, Nos. 80-15448, 78-16580.

Prior report: 459 So.2d 735.

Denied.


text:
    HERO LANDS COMPANY, et al. v. Peter P. BORELLO, Jr., et al.
    No. 84-C-2130.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Borello, Peter P. Jr. et al., applying for writ of certiorari and/or review; to the Court of Appeal, Fourth Circuit, No. CA-1982; Parish of St. Bernard, 34th Judicial District Court, Div. “A”, No. 43-288.

Prior report: 459 So.2d 658.

Denied.

MARCUS, J., would grant the writ on the prescription issue.

DENNIS, J., would grant the writ.


text:
    Mr. and Mrs. Enrique OLIVA v. CAFE MASPERO INC. and the XYZ Insurance Company.
    No. 84-C-2131.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Oliva, Enrique Mr. and Mrs., applying for writ of certiorari and/or review; to the Court of Appeal, Fourth Circuit, No. CA-1960; Parish of Orleans, Civil District Court, Div. “C”, No. 81-19627.

Prior report: 459 So.2d 753.

Denied.

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


text:
    Florence V. JENKINS and Tommy Joe Jenkins v. OUACHITA PARISH SCHOOL BOARD.
    No. 84-C-2132.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Jenkins, Florence V. et al., Jenkins, Tommy Joe, applying for writ of certiorari and/or review, supervisory writ; to the Court of Appeal, Second Circuit, No. 16570-CA; Parish of Ouachita, 4th Judicial District Court, Div. “B”, No. 83-4079,

Prior report: 459 So.2d 143.

Denied.


text:
    STATE of Louisiana v. Bobby Ray YOUNG.
    No. 84-KP-2133.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Young, Bobby Ray, applying for supervisory writs; to the Court of Appeal, Second Circuit, No. 16941-KW; Parish of Caddo, 1st Judicial District Court, Div. “H”, No. 126887.

Denied.


text:
    In the Matter of the SUCCESSION OF Simon ALEXANDER, Jr.
    No. 84-C-2134.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Scott, Dorothy Lee Alexander, applying for writ of certiorari and/or review; to the Court of Appeal, First Circuit, No. CA-83-1190; Parish of East Baton Rouge, 19th Judicial District Court, Div. “L”, No. 42103.

Prior report: 460 So.2d 19.

Denied.


text:
    UNITED TALENT ASSOCIATES, INC., a/k/a Rascals, and Paul Fuller, and Stephen Memory v. PARISH OF JEFFERSON, Through the Honorable Joseph YENNI, and the Zoning Appeals Board for Jefferson Parish, and/or the Safety Department For Jefferson Parish.
    No. 84-C-2135.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Jefferson Par. of et al., Yenni, Joseph Hon., Jefferson Par. Zoning App. Bd., Jefferson Par. Safety Dept., applying for writ of certiorari and/or review; to the Court of Appeal, Fifth Circuit, No. 84-CA-82; Parish of Jefferson, 24th Judicial District Court, Div. “B”, No. 281-790.

Prior report: 457 So.2d 1293.

Denied.


text:
    BANKERS AND SHIPPERS INSURANCE COMPANY OF NEW YORK v. AMERICAN FAMILY HOME INSURANCE COMPANY.
    No. 84-C-2139.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Bankers & Shippers Ins. of N.Y., applying for writ of certiorari and/or review; to the Court of Appeal, First Circuit, No. CA/83/1220; Parish of East Baton Rouge, 19th Judicial District Court, Div. “B”, No. 258675.

Denied.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Gershel Crochet v. Patrick LeBLANC. Sandra Lebouef SCOTT v. Lawrence LeBLANC, Lent Inc., Patrick LeBlanc and Prudential Property and Casualty Insurance Company. Ray Paul LeBOUEF as Head and Master of the Community of Acquets and Gains and Delores Marcel Lebouef v. Lawrence LeBLANC, Lent Inc., Patrick Leblanc and Prudential Property and Casualty Insurance Company.
    No. 84-C-2138.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Superior Oil Company, applying for writ of certiorari and/or review; to the Court of Appeal, First Circuit, No. 83-CA-1214; Parish of Terrebonne, 32nd Judicial District Court, Div. “E”, Nos. 60774, 60801, 60802.

Prior report: 460 So.2d 673.

Denied.

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


text:
    Linda Scogin, Wife of/and Robert M. CARBO, Beulah Scogin, Widow of T.L. Bishop and Lillian Pichon, Widow of Robert L. Scogin v. The Honorable Webb HART, Mayor of/and the City of Slidell.
    No. 84-C-2144.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Scogin, Linda et vir et al.; Carbo, Robert M.; Scogin, Beulah; Pichón, Lillian; applying for writ of certiorari and/or review; to the Court of Appeal, First Circuit, No. 83-CA-0799; Parish of St. Tammany, 22nd Judicial District Court, Div. “A”, No. 65218.

Prior report: 459 So.2d 1228.

Denied.


text:
    Gilbert BURATT v. CAPITAL CITY PRESS.
    No. 84-C-2147.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Capitol City Press Inc., applying for writ of certiorari and/or review; to the Court of Appeal, First Circuit, No. 83-CA-1240; Parish of Ascension, 23rd Judicial District Court, Div. “C”, No. 26374.

Prior report: 459 So.2d 1268.

Denied.

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


text:
    BALEHI MARINE, INC. v. FIREMEN’S INSURANCE CO. OF NEWARK, NEW JERSEY.
    No. 84-C-2151.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Firemen’s Ins. Co. Newark, N.J., applying for writ of certiorari and/or review, prohibition or mandamus; to the Court of Appeal, First Circuit, No. CA/83/1184; Parish of St. Tammany, 22nd Judicial District Court, Div. “E”, No. 64683.

Prior report: 460 So.2d 16.

Denied.


text:
    Steven Wayne HARPER v. The LIGGETT GROUP, et al.
    No. 84-C-2154.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Liggett Group et al., Diversified Products Corp/DE, applying for writ of certiorari and/or review; to the Court of Appeal, First Circuit, No. CA-83-1205; Parish of East Baton Rouge, 19th Judicial District Court, Div. “I”, No. 246652.

Prior report: 459 So.2d 1260.

Denied.

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


text:
    STATE ex rel. William Hale CONGER v. Hon. Marjorie CAMBRE, Clerk, Fourth Circuit Court of Appeal, Hon. Harry F. Connick, District Attorney and Mary M. Lazarite, Asst. District Attorney.
    No. 84-KH-2159.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Conger, William Hale, applying for remedial writs; Parish of Orleans, Criminal District Court, Div. “G”.

Denied.


text:
    STATE ex rel., Joseph R. SIEGEL v. Frank C. BLACKBURN, Warden.
    No. 84-KH-2160.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Siegel, Joseph R., applying for remedial writs; Parish of East Baton Rouge, 19th Judicial District Court, Div. “A”, No. 1-74-8052.

Denied.


text:
    STATE of Louisiana v. Randal J. MURPHY.
    No. 84-KK-2181.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Murphy, Randal J., applying for writ of certiorari and/or review, stay, writ of prohibition and writ of mandamus; Parish of Lafayette, 15th Judicial District Court, Div. “J”, Nos. 49398, 49399; to the Court of Appeal, Third Circuit, No. K84-1016.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE ex rel., James H. DUNN v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 84-KH-2193.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Dunn, James H., applying for writ of certiorari and/or review, writs of habeas corpus, prohibition and mandamus; Parish of West Feliciana, 20th Judicial District Court, Div. “A”, No. 6163.

Denied.


text:
    STATE of Louisiana v. Henry RANKIN.
    No. 84-KH-2199.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Rankin, Henry, applying for writ of certiorari and/or review; to the Court of Appeal, Fourth Circuit, No. KA-0788; Parish of Orleans, Criminal District Court, Div. “B”, No. 288-636.

Prior report: 454 So.2d 880.

Denied.


text:
    STATE ex rel. James TASCO v. Frank J. SAIA, Judge, 19th Judicial District Court, East Baton Rouge.
    No. 85-KH-0014.
    Supreme Court of Louisiana.
    Jan. 15, 1985.
   In re Tasco, James, applying for writ of mandamus; Parish of East Baton Rouge, 19th Judicial District Court, Div. “F”, No. 8-80-149.

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


text:
    David R. WAGLEY v. LOUISIANA STATE BAR ASSOCIATION.
    No. 85-OB-0086.
    Supreme Court of Louisiana.
    Jan. 16, 1985.
   In re Wagley, David R., applying for permission to take Bar Examination.

Granted.


text:
    In re Bonnie Claire PATTERSON.
    No. 85-OB-0094.
    Supreme Court of Louisiana.
    Jan. 16, 1985.
   In re Patterson, Bonnie Claire In re, applying for permission to take the Louisiana State Bar Examination.

Granted. It is ordered that applicant be allowed to take the examination.


text:
    STATE ex rel. Gregory MONROE v. CRIMINAL DISTRICT COURT, Honorable Judge Pat Quinlan.
    No. 85-KH-0109.
    Supreme Court of Louisiana.
    Jan. 22, 1985.
   In re Monroe, Gregory, applying for writ of mandamus; Parish of Orleans, Criminal District Court, Div. “B”.

Granted and transferred to the district court for the purpose of considering and promptly acting on relator’s application.


author: EDWARDS, Judge.

text:
    Michael A. RAGUSA v. Frank M. BURNS, Jr.
    No. 83-CA-0619.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 5, 1984.
    Rehearing Denied Dec. 28, 1984.
    Writ Denied March 15, 1985.
    Ron S. Macaluso, Seale, Macaluso & Ross, Hammond, for plaintiff-appellee Michael A. Ragusa.
    Perrin C. Butler, Metairie, for defendant-appellant Charles E. Reeves, and defendants-appellees Frank M. Bums, Jr., Cathy Gaunt Burns, Burns Enterprises, Inc.

      Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

This case involves a determination of liability under a construction contract and application of the lien provisions of the Private Works Act.

The action arises out of a verbal agreement for construction of an apartment complex entered into between Michael A. Ragu-sa and Frank M. Burns, Jr. The agreement provided that Ragusa was to serve as general contractor for the project, to be built on land owned by Burns in Tangipa-hoa Parish. Ragusa began construction work shortly thereafter, in April of 1978. The chronology of significant events which followed that agreement and resulted in this litigation are as follows:

June 26, 1978 — Burns and Ragusa entered into a written construction contract for the project. At that time, a significant portion of the work had been completed.

August 31, 1978 — Burns conveyed the property to Burns Enterprises, Inc. Burns was the president of that corporation.

September 22, 1978 — The building contract was recorded in the mortgage records of Tangipahoa Parish.

June 30, 1979 — Burns Enterprises, Inc. sold the property to Charles E. Reeves by cash sale with assumption of mortgage.

September 4, 1979 — Burns, in his capacity as president of Burns Enterprises, Inc., signed a certificate of substantial completion for the project.

October 24, 1979 — As a result of Burns’ failure to pay the outstanding balance of the building contract, Ragusa filed a notice of general contractor’s lien in the mortgage records of Tangipahoa Parish.

October 26, 1979 — Ragusa filed suit against Burns.

Ragusa’s original suit sought payment of the outstanding balance on the contract, damages, attorney’s fees and recognition of his lien rights. Ragusa filed a notice of lis pendens in the mortgage records on May 7, 1980. Subsequently, Ragusa filed an amending and supplemental petition naming as additional defendants Burns Enterprises, Inc.; Charles E. Reeves; and Kathy Gaunt Burns, the wife of Frank M. Burns, Jr. The amending and supplemental petition predicated the asserted liability of Burns Enterprises, Inc. and Reeves upon the transfers of the property outlined above.

All of the defendants filed reconventional demands against Ragusa. The reconven-tional demands sought the following damages:

“A. Penalties under Paragraph 6(d) of the building contract for demurrage in the amount of $60.00 per day from January 12, 1979, until the completion of the contract, which has not yet occurred, thereby making the exact calculations of said sums impossible, but said sums are estimated to be $150,000.00
“B. Estimated cost of completion and correction of items not done in workmanlike manner and/or not completed. 100,000.00
“C. Satisfaction of outstanding claims, liens, and/or privileges 30,000.00
“D. Attorney’s fees incurred or to be incurred as a result of the necessity of retaining counsel to enforce the contract in accordance with Paragraph 9 of the building contract. 25,000.00
“E. Loss of revenue from apartments which cannot and could not be rented during remedial repairs and work. 18.000.00
TOTAL DAMAGES. $323,000.00”

Following trial on the merits, judgment was rendered in favor of plaintiff and against all defendants, “jointly, solidarily and in solido” in the total amount of $60,-714.12. The damages awarded represented the balance due on the building contract plus attorney fees. Defendants’ reconven-tional demands were dismissed. Finally, the trial court ordered cancellation of the general contractor’s lien filed by Ragusa.

Charles E. Reeves has suspensively appealed the judgment of the district court. Reeves contends that the trial court erred in the following respects: (1) holding that he was liable to Ragusa on the construction contract; (2) failing to award him damages against Ragusa for improper workmanship; (3) failing to award damages against Ragu-sa for wrongful filing of the general contractor’s lien and lis pendens; and (4) miscalculating the amounts owed to Ragusa under the construction contract.

REEVES’ LIABILITY TO RAGUSA

Reeves was not a party to the contract between Burns and Ragusa. In its written reasons, the trial court concluded that Reeves was nevertheless liable thereunder because the sale from Burns Enterprises, Inc. to Reeves occurred after recor-dation of the building contract. Reeves contends that the trial court erred in holding him personally liable to Ragusa on the building contract. We agree.

The mere fact that Reeves acquired the property after recordation of the building contract does not establish personal liability on his part under the contract. In Glassell, Taylor & Robinson v. John W. Harris Associates, Inc., 209 La. 957, 26 So.2d 1 (1946), the Louisiana Supreme Court rejected a similar contention made by a subcontractor. The court held that the Private Works Act did not operate to make a subsequent purchaser of property personally liable to the subcontractor in the same manner as the original owner who entered into the contract. The following language from the court’s decision illustrates that principle:

“The owner referred to throughout the act is, obviously, the owner at the time the contract is entered into for the construction of the work and not the owner at the time the claim is recorded or the suit is filed.... It therefore follows that the housing corporations in this case are only liable in rem unless in their acquisition of the property they specifically assumed the liability of their vendor.”

26 So.2d at 6, 7.

This principle enunciated in the Glassell decision is also present in Article 2019 of the Louisiana Civil Code, which provides as follows:

“Considered with respect to those who have contracted them, some real obligations are also personal; such are those created by mortgage for the payment of a debt. Others are strictly real, both as to the contracting party and his heirs or other successors. A mortgage given to secure the debt of another, without any obligation of personal responsibility, is an example of this latter kind. But no real obligation is personal, as to a subsequent possessor of the property on which it is created, unless he has made it such by his own act.”

Thus, Reeves has no liability to Ragusa unless he has specifically assumed liability under the building contract.

Ragusa asserts that Reeves’ personal liability is established by three documents: the building contract itself; the cash sale with assumption of mortgage from Burns Enterprises, Inc. to Reeves; and a counter letter agreement executed by Reeves, Burns Enterprises, Inc. and Mr. and Mrs. Burns on the same date as the sale to Reeves. Our examination of these three documents reveals that none of them creates any personal liability on the part of Reeves for the obligations under the building contract.

The contract itself does provide that all the obligations therein “shall inure to the benefit of and be binding upon the heirs, successors and assigns of the respective parties hereto.” However, Reeves was not a party to that contract. A binding contract requires consent of the parties to be bound thereby. La.C.C. art. 1779, 1798. We have also reviewed the act of sale and counter letter and find no indication in either document that Reeves made the obligations of the building contract personal to himself. The only obligation which Reeves assumed in the act of sale was for the payment of the mortgage note. Likewise, the counter letter agreement contains no assumption by Reeves of liability on the building contract. The counter letter agreement is an acknowledgment by Reeves of the retention of a one-half undivided interest in the property by Burns Enterprises, Inc. Reeves assumed no liability therein for the obligations of the building contract; in fact, the agreement specifically provides that only Burns and Burns Enterprises, Inc. will be liable on the contract.

We conclude, therefore, that the trial court erred in assessing personal liability against Reeves on the building contract. Reeves was not a party to the contract. The record is totally devoid of any agreement by Reeves to assume any obligations thereunder. There is absolutely no basis for any liability on the part of Reeves.

FAILURE TO AWARD DAMAGES FOR FAULTY WORKMANSHIP

Reeves contends that the trial court erred in refusing to award him damages against Ragusa for faulty workmanship. All of the defendants sought such damages in their reconventional demands, and the trial court rejected their claims.

In its written reasons for judgment, the trial court concluded that the problems which resulted in the apartment complex were not the fault of Ragusa, but stemmed from Burns’ efforts to have the complex constructed as cheaply as possible. Reeves challenges that factual finding, and relies upon the testimony of his own witnesses. It is sufficient to note that appellate review of such factual findings will not be reversed absent a finding of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Co., 283 So.2d 716 (La.1973). Our review,of the record reveals no such error in the trial court’s finding that the problems with the apartment complex were not the fault of Ragusa’s workmanship, but stemmed from Burns’ efforts to cut corners on the project.

Even if we were to conclude that Ragusa is, liable for damages for faulty workmanship, Reeves is not the proper party to collect such damages. Any such damages would arise as an incident of the construction contract. As noted above, Reeves was not a party to that contract. Nevertheless, Reeves asserts that he is entitled to any damages arising out of the contract because both he and Burns Enterprises, Inc. acquired the property with full warranty and subrogation. However, the counter letter agreement specifically provides that Burns and Burns Enterprises, Inc. retain all rights to pursue any claims against Ra-gusa arising out of construction of the apartment complex. Clearly, even if Ragu-sa were liable in damages for faulty workmanship, there would be no liability to Reeves.

RAGUSA’S LIABILITY FOR FILING INVALID LIEN AND LIS PENDENS

The trial court correctly found that Ragusa was not entitled to a general contractor’s lien because of two violations of the provisions of the Private Works Act. The building contract was recorded after commencement of the work, and was recorded over thirty days after the date of its execution. See former LSA-R.S. 9:4802. Thus, recordation of the contract failed to create a valid contractor’s lien on the property. Gulfco Finance Company of Marrero v. Malone, 230 So.2d 269 (La.App. 4th Cir.1969), cert. denied, 255 La. 341, 230 So.2d 835 (La.1970). The court ordered the lien cancelled from the mortgage records.

Reeves contends that the trial court erred in failing to award him damages for the wrongful filing of the notice of general contractor’s lien and lis pendens by Ragu-sa. He contends that Ragusa knew, at the time he personally filed the notice of lien, that recordation of the building contract was insufficient to create any in rem claim against the property. Reeves asserts that Ragusa’s knowing filing of an invalid lien and lis pendens renders him liable in damages to Reeves.

The trial court did not err in failing to award Reeves damages for wrongful filing of the lien and lis pendens. Our review of Reeves’ reconventional demand, as well as the reconventional demand filed by the other defendants, reveals that they did not allege such wrongful filing by Ragusa or seek any damages therefor. Accordingly, the trial court could not have rendered judgment for any such alleged damages.

DECREE

For the foregoing reasons, that portion of the district court’s judgment which rendered judgment in favor of plaintiff and against defendant, Charles E. Reeves, is reversed and judgment is hereby entered dismissing plaintiff’s claims against Reeves with prejudice; and the judgment is amended to order that the notice of lis pendens filed on behalf of plaintiff, Michael A. Ra-gusa, and recorded on May 7,1980, in MOB 343, page 217, of the records of the Parish of Tangipahoa, State of Louisiana, be and is hereby cancelled. The remaining portions of the district court’s judgment are affirmed. All costs of this appeal are to be borne by plaintiff-appellee, Michael A. Ra-gusa.

REVERSED IN PART, AFFIRMED IN PART, AND AMENDED.

      . No appeals were taken by the remaining defendants. Accordingly, the judgment of the trial court is final as to them.

        . In light of this holding, Reeves’ assignments of error contesting the amount of damages calculated by the trial court will not be addressed.

      . In an apparent oversight, the trial court neglected to order cancellation of the notice of lis pendens. This court will order that cancellation.


author: SHORTESS, Judge.

text:
    STATE of Louisiana v. Russell HALTOM.
    No. 84 KW 0218.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 29, 1984.

      Louis L. Sherman, Jr., Asst. Dist. Atty., Amite, for plaintiff State of La.
    Joseph H. Simpson, Amite, for defendant Russell Haltom.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SHORTESS, Judge.

On January 16, 1984, a Tangipahoa Parish grand jury indicted Russell Haltom, former Parish Road Superintendent and Personnel Manager, for three counts of malfeasance in office in violation of La.R.S. 14:134 by: “(1) authorizing the expenditures of $21,042.50 in police jury funds by contracting out dozer and trucking services for the Areola Landfill without first putting this work out for bids; (2) awarding a contract to T.J. Delaune to do repair work on the Tangipahoa Parish Jail without first putting this project out for bids; and (3) authorizing the expenditure of $7,500.00 in police jury funds for repair of Parish tractors without first putting this repair project out for bids,” all in violation of La.R.S. 38:2212, the public contracts law.

Defendant filed a motion for a bill of particulars seeking to discover which sections of the malfeasance and public bid statutes he was charged with violating, which Police Jury office he held making him responsible for complying with the public bid law, whether the Police Jury had a particular compliance officer or a job description defining his position as that responsible for compliance, or whether the Police Jury, as a whole, bore the collective responsibility for compliance. The District Attorney responded that the defendant had violated Section 1 of the Malfeasance statute and Subsection A(l) of the public bid law in his official positions of Road Superintendent and Personnel Manager, and in his unofficial role as Parish Manager, which duties could be found in the Public Affairs Research Council’s (PAR) Police Jury Manual (not made a part of the record). In addition, the District Attorney replied that “any and all public officers and employees in positions of authority” were responsible for complying with the public bid statute, but, since the Police Jury as a whole had not been indicted, no answer was required about the Jury’s collective responsibility.

Haltom filed two motions to quash the indictments, the first urging that the indictments fail to charge an offense punishable under a valid statute; and the second, that, as attorney for the Tangipahoa Parish Police Jury, the District Attorney’s Office has a conflict of interest. Its attorney-client relationship with the Jury would be violated if the District Attorney or his staff either prosecuted or served as a witness against Haltom, a Jury employee. We granted defendant’s application for writs of certiorari, prohibition and mandamus after his motions to quash were denied.

ISSUES

The issues are:

(1)At the Parish level, who is responsible for compliance with La.R.S. 38:2212?

(2) Can that responsibility for compliance with the public bid statute be delegated? If so, was it in fact delegated to Russell Haltom?

(3) Does La.R.S. 14:134 apply to Russell Haltom?

FACTS

On December 29, 1981, the Tangipahoa Police Jury voted 10 to 1 to appoint Russell Haltom Parish Road Superintendent and Personnel Manager effective January 1, 1982. Although the Police Jury formerly employed a Parish Manager, at that time it did not have one, nor was that title conveyed to Haltom. Haltom was an employee of the Police Jury for almost eight months, until his resignation August 10, 1982. (He had served as temporary Civil Defense Director for over two months.) Examination of the Police Jury minutes for that period (made part of the record) shows that the Police Jury regularly handled personnel matters through its Personnel Committee, with the Personnel Manager’s recommendations occasionally noted. Recommendations about roads and other project expenditures were apparently funneled administratively through the Finance Committee, again with the Road Superintendent’s comments and occasional recommendations noted. These two committees made recommendations which the whole Police Jury voted on, usually in advance of a decision, occasionally in ratification of Haltom’s decisions.

The degree of authority which he was given varied. At a meeting on January 29, 1982, after a previously hired accountant was unable to take the job, the Jury decided to continue accepting applications, but told Haltom if he found a qualified employee to poll every juror before making a final decision to hire, and the Jury would ratify his choice at the next meeting. At that same meeting, when Haltom discussed the possibility of hiring someone to assist with office typing and filing, the Jury took no action. The Police Jury “authorized” him to perform ministerial and some decision-making functions: from asking the District Attorney’s office for legal opinions on maintaining bus turnarounds, to proceeding with an inventory of junk equipment for sale and using his judgment in State surplus auction equipment purchases, to hiring someone to cover the Areola Landfill and make jail repairs. By June 8, the Finance Committee had recommended “that the Purchasing Agent be instructed not to issue any purchase orders over the amount of $25.00 unless approved by the Road Superintendent first, with this to be in effect until the audit of the Police Jury books is completed.”

However, despite mounting critical financial problems, the Police. Jury refused to affirm Haltom’s June 29 termination letter to the Jail Project Coordinator even though the Jury had no funds to pursue building a new court-mandated jail following voter rejection of a jail bond election, and the Coordinator later admitted he was “sitting at home waiting for Mr. Ronnie Bankston, the Jury President, to call him and tell him he needs something done.” The Police Jury was then (August 12) discussing whether to shut down most of its operations until the end of the year to “be in the black.” The July 6 minutes record the reaction of Haltom, “who made known that he has to make day to day decisions all the time, and he does not appreciate it when the Jury does not back his actions.”

I. RESPONSIBILITY FOR COMPLIANCE WITH PUBLIC CONTRACTS LAW

La.R.S. 88:2211 B provides:

B. Unless clearly indicated otherwise, compliance with this Part required of any public entity shall be done by the governing authority of such public entity if it has a governing authority.

La.R.S. 38:2211 A(l) provides the definition of “public entity”:

A(l) “Public entity” means and includes the state of Louisiana, or any agency, board, commission, department or public corporation of the state, created by the constitution or statute or pursuant thereto, or any political subdivision of the state, including but not limited to, any political subdivision as defined in Section 44 of Article VI of the Louisiana Constitution, or any public officer whether or not an officer of a public corporation or political subdivision. “Public entity” shall not include a public body or officer where the particular transaction of the public body or officer is governed by the provisions of the model procurement code.

La.Const. art. VI, § 44, defines “political subdivision” and “governing authority:”

(2) “Political subdivision” means a parish, municipality, and any other unit of local government, including a school board and a special district, authorized by law to perform governmental functions.
(4) “Governing authority” means the body which exercises the legislative functions of the political subdivision.

A. Public Officers and Employees

Although the 1974 Louisiana Constitution refers to both public officers of police juries and their employees as being members of the unclassified civil service, it fails to define what each includes. La. Const, art. X, § 2 B(10). It is well settled that parish police jurors are public officers and state officers. State v. Melerine, 236 La. 881, 109 So.2d 454 (1959). In State v. Smith, 357 So.2d 505, 507 (La.1978), the Louisiana Supreme Court devised four factors to aid in determining whether an entity is a state or public agency or an individual a state or public officer: “(1) the entity was created by the legislature, (2) the powers were specifically defined by the legislature, (3) the property of the entity belonged to the public, and (4) the entity’s functions were exclusively of a public character and performed solely for the public benefit.”

A more recent case devises a test to determine whether an individual is a public official or employee, relying on La.R.S. 42:1 for a partial definition:

As used in this title, the term “public office” means any state, district, parish or municipal office, elective or appointive, or any position as member on a board or commission, elective or appointive, when the office or position is established by the constitution or laws of this state.
“Public officer” is any person holding a public office in this state.

If the individual acts as an agent of the state and exercises a portion of the sovereign power or if his office enjoys a large degree of independence in which he is not under the direct control and supervision of an employer, then he is a public official or officer. Cloud v. State, 420 So.2d 1259 (La.App. 3rd Cir.1982), writs denied, 423 So.2d 1166, 1167 (La.1982).

Looking at La.R.S. 38:2211 B in conjunction with the constitutional and statutory authorities cited, as the governing authority of Tangipahoa Parish, the Police Jury was required to comply with the public bid law. Even reading “public entity” to include a public body or officer, police jurors would be included, but not their employees.

This judicial definition of constitutional and statutory terms appears to coincide with the Tangipahoa Parish Police Jury’s own view of its duties to comply with the Public Contracts Law. Examination of the Police Jury minutes for that almost eight-month period shows that although the body did not always advertise for bids every time it should have, when it did so, it followed a variety of “standard” procedures. Usuallyeither the Finance Committee, the Purchasing Agent or the Parish engineer recommended that the Jury advertise for bids. Typically, the Jury then passed a motion “that the Jury advertise for bids” for a heavy duty dump truck, supplies, etc. Then, the advertisement always read, “Notice is hereby given that sealed bids will be received by the Tangi-pahoa Parish Police Jury_”

Rarely did Russell Haltom serve as the Jury’s agent in the bidding process. Usually the engineers and architects, even on road projects, were the ones who recommended use of the bid process. Russell Haltom’s name is mentioned in the minutes in connection with the bid process only four times: on April 13, the Jury bid notice designated him as its agent to receive bids and he recommended acceptance of the low bid; on June 8, he recommended that the bridge salvage job be bid “as is;” on July 6, he recommended acceptance of the highest bidder for junk it was selling; and on August 10 he read the bids received for a backhoe and trucks. Twice the Jury followed his recommendations on bids; twice it took no action or took the bids under advisement. During that same period, the Jury either discussed bidding or actually advertised for bids approximately 45 times.

Employing the Cloud test, was Russell Haltom a public officer or employee? We hold that he was an employee. The Police Jury derived its power from legislative enactment and exercised a portion of the sovereign power. Haltom derived his job from that legislative delegation of authority to the Jury which enabled it “to appoint all officers necessary to carry into execution the parish regulations, and remove them from office.” La.R.S. 33:1236(10). Haltom was not completely independent, for he was under the control or supervision of the Police Jury. He had an employment contract with them and reported to them, even getting their permission in most policy decisions or following their directives. He was not statutorily required to have the same qualifications as jurors and was subject to removal at their will.

Nor did he fill the position of Parish Manager, established by La.R.S. 33:1236.1, formally or informally, even though he did sometimes perform duties outside those of Personnel Manager or Road Superintendent. In fact, it is clear from the Police Jury minutes of March 29, 1982, that Parish accounts were being audited because of the accounting problems incurred as a result of the prior Parish Manager’s poor business practices. Apparently, the Jury deliberately chose not to appoint another Parish Manager to succeed him.

B. Emergencies

La.R.S. 38 provides several exemptions from compliance with the public bid law procedure. The Legislature realized that emergencies may require quicker solutions than bid law compliance could allow. Therefore, section 2212 D permits emergency exceptions:

D. (1) This Section shall not apply in cases of extreme public emergency where such emergency has been certified to by the public entity and notice of such public emergency shall, within ten days thereof, be published in the official journal of the public entity proposing or declaring such public emergency,

and section 2211 A(6) defines “emergency” as:

(6) An “emergency” means an unforeseen mischance bringing with it destruction or injury of life or property or the imminent threat of such destruction or injury or as the result of an order from any judicial body to take any immediate action which requires construction or repairs absent compliance with the formalities of this Part, where the mischance or court order will not admit of the delay incident to advertising as provided in this Part.

There are no cases defining the terms and procedure of this section, nor is it clear from the minutes whether the Police Jury followed the statutory requirement of publishing public notices about emergencies. The Police Jury used a variety of methods in declaring three emergencies. On March 12 the Courthouse Committee Chairman reported estimates of “$16,183.00 plus tax from The Marley Cooling Tower Co. for tearing out and replacing the existing tower in the Courthouse Building” and “approximately $6,000” from Shepherd Service and Sales to repair the Courthouse chiller. A motion was passed to proceed with both repairs without public bid on an emergency basis “as summer is drawing near and it will take quite a long time to get the work finished.” On April 13, after receiving no bids for a side cutter, the Jury passed a resolution authorizing and directing the “Purchasing Agent and Road Superintendent to purchase a hydraulic side cutter on an emergency basis” because “time is of the essence as it is time now to start cutting grass” and there was no assurance that re-advertising would guarantee any bids. Again, at that same meeting, without the prior formality of advertisement for bids or passing a resolution, the Jury simply voted to purchase a gradeall on an emergency basis, without designating an agent to make the purchase. On May 11, upon Hal-tom’s recommendation, the Jury voted to pay for emergency repairs totaling $2,400.00 for labor (with the Wadesboro Baptist Church providing materials) to repair a church building to be used the following Saturday as a voting precinct.

C. Failure to Follow Bid Procedure

Despite the frequent presence of a legal advisor and the Police Jury’s obvious familiarity with bid procedures, the Jury also authorized work or directed payments for projects or supplies where advertisement for bids was not discussed. Take, for example, the Jury’s discussion of two landfill problems. On February 9 the Jury “advertised” for Parish property owners to offer their land as a landfill for solid waste disposal for ten years. On March 9 Haltom was asked to haul dirt to cover the Rose-land Landfill in Areola. The Sanitation Committee was to check into the future landfill use of holes already dug on Henry Jacobson’s land. There was no mention of submission of bids in either case.

On March 18 Haltom informed the Jury that the last landfill hole was almost filled and, at the same time, presented a rental agreement with Jacobson for $700.00 a month, along with a public notice for the Jury to apply for a temporary eighteen-month operating permit for the landfill. The rental agreement was signed by Cade Williams as Police Jury President and four witnesses, including the Secretary-Treasurer, two other jurors and Haltom. Barring future increases, this agreement could cost the Jury $8,400.00 annually, or potentially $84,000.00 for the total ten-year period sought in the February 9 Public Notice soliciting land owners wishing to lease land for a landfill. The terms of the contract are vague: if either a one- or ten-year lease, it exceeds bid exemption amounts; if a month-to-month lease, it may represent an attempt to circumvent the bid law. The Jury voted to ratify the contract.

On May 27 Police Jury President Cade Williams sought to clarify the intent of the March 9 motion relative to Areola Landfill in Roseland since it “was not clear as to whether or not Mr. Haltom was to have Police Jury crews cover the landfill or hire someone to do the job.” “Motion was made by Mr. Santangelo, seconded by Mr. Noto and carried that Mr. Haltom be authorized to hire someone to get the Areola Landfill covered.” Negotiation of the agreement with Jacobson, or how his land was selected, was not questioned, but Hal-tom was indicted on one count of malfeasance for contracting out dozer and trucking services for the Areola landfill without first advertising for bids.

A special meeting of the Police Jury was called on July 15 to discuss several legal problems, including the report of the Courthouse Committee, with its suggestions for compliance with a July 6 Department of Health and Human Resources inspection report and a federal court consent decree mandating constitutional conditions for Tangipahoa jail prisoners. Haltom was asked by the President to review the violations and recommendations in the report. The minutes reflect:

After some discussion, whereby it was pointed out that making corrections such as these in the jail was a continuous, ongoing process in order to be in compliance with the consent decree, motion was made by Mr. Noto, seconded by Mr. Giar-dina and carried that Mr. Haltom be authorized to proceed with making the necessary corrections in the jail in order to comply with the report of the Department of Health & Human Resources.

Whether the Jury had intended to declare an emergency in order to comply timely with either the inspection report or the consent decree, no emergency was in fact declared, nor was there compliance with the public bid statute. By awarding a contract for jail repair without first advertising for bids, Haltom was indicted on a second count of malfeasance.

On other occasions the Police Jury took the following actions affirming the Finance Committee’s recommendations. The first authorized the Purchasing Agent to issue a purchase order for $17,000.00 worth of repair parts for a wrecked Sanitation Department truck body. The second authorized the purchase from Felix Arnone of two separate orders of culverts, which added together would total $7,000.00. The third authorized and approved “that the Road Superintendent look into the possibility of purchasing a bushhog to fit the tractor located at CD3; and if one is found, that it be paid from Ward 1 Maintenance funds.” There was no mention of advertisement for bids in any of the three actions, nor was there when the Jury tailored a strict ordinance to fit only Acadian Ambulance Service, knowing it eliminated the local ambulance services from possible compliance and could cost the Jury $126,000.00.

II. DELEGATION OF AUTHORITY

A. Police Jury Powers

It is well settled that police juries are creatures and subordinate political subdivisions of the State, possessing only powers conferred upon them by the State’s constitution and statutes. Rollins Environmental Services of Louisiana, Inc. v. Iberville Parish Police Jury, 371 So.2d 1127, 1131 (La.1979). La.R.S. 33:1236 is the primary statute enumerating those powers which the police juries in this State have been granted. Under the authority granted in this statute in Section 1236(2), the police jury may make and repair roads, bridges and highways. Those limited police powers delegated by the Legislature to police juries are executed or enforced by them through passage of local ordinances and resolutions. “In doing so, they exercise only administrative powers.” State v. Melerine, 109 So.2d at 469. Police juries may appoint all officers necessary to carry into execution the Parish regulations. La. R.S. 33:1236(10). However, whether they may further delegate their own powers to those employees is a separate issue.

Related issues are discussed in Lafourche Parish Water District No. 1 v. Carl Heck Engineers, Inc., 346 So.2d 769 (La.App. 1st Cir.1977), writ refused, 349 So.2d 873 (La.1977). This court found that the Legislature empowered the Police Jury to create water districts, delegating to these districts and their Board of Commissioners corporate control of limited water production and distribution. The La-fourche District contracted with an engineer to perform professional services “authorized” by the District, with District retention of review and approval of the engineer’s work. Thus, no further subdelegation of discretionary power was made to the engineer by the Police Jury past the level of its Water District Board. In other words, the Board simply employed experts to carry out its duties. If the Jury was displeased with the Commissioners’ decisions or felt they exceeded their authority, it could remove them. If any subdelegation occurred, the court found that maintenance of the waterworks system through assistance of professionals involved the delegation by the Board of a proprietary, not a governmental, function.

Tangipahoa Police Jury minutes refer, for example, to a “Resolution granting (it's) approval, consent and authority to Consolidated Gravity Drainage District No. 1 ... to conduct an election_” Similar mention of or appointments to other boards and districts are made: the Coastal Zone Board, to be the permit body of the Parish Coastal Zone; the Tangilena Airport Authority, Hospital Service District No. 1; and several Road Districts. In Notices of Special Elections for property taxes for Road Districts, the Jury referred to itself as the Road District’s governing body. Although references are made to commissioners for some boards, there is no indication in the minutes that the Road Districts operate with Boards of Commissioners. Until the Louisiana Supreme Court declared the old ward system illegal, individual police jurors controlled road funds in their own wards. Strahan v. Fussell, 218 La. 682, 50 So.2d 805 (1951). Although individual voters in 1982 still brought road repair complaints to the juror in their districts in Tangipahoa, those problems were typically turned over to the Road Superintendent to check into or were the subject of Police Jury motions authorizing repairs.

Although in this case the Tangipahoa Road Districts may be distinguished from the Lafourche Parish Water Districts in operation, the principle on delegation of authority remains important. The Tangi-pahoa Police Jury served as the Road District’s governing body, using Haltom, an experienced contractor, as its expert employed to carry out its duties, retaining control over review and approval of his work after generally telling him what to do. The minutes use the term “authorize” liberally, whether in directing the Purchasing Agent to pay a small bill or giving the Road Superintendent limited discretion or telling him exactly what to do, so it is difficult to determine whether delegation of authority or simple permission to perform a nondiscretionary task is given. Examination of minutes for the whole period of Haltom’s employment shows that the Jury generally directed his actions, sometimes ratifying them, but not hesitating to disagree with him on important occasions.

The Lafourche Parish Water District case seems to indicate that the Police Jury may delegate authority to quasi-corporations which it is legislatively mandated to create, but not to its employees. Tangipa-hoa’s Police Jury apparently treated its Road Districts differently from other boards and special district. Minutes indicate the Jury directed orders to the Road Districts through the Road Superintendent.

B. Did the Jury Delegate Duties to Hal-tom?

Statutes are clearer in conferring powers upon police juries than they are on the delegation of those powers to policy jury employees. Even La.R.S. 33:1236.1, which grants police juries the power and authority to employ parish managers and assistant managers, provides only minimal legal qualifications for the job (they must be qualified voters in the Parish and may even be members of the Police Jury) but fails to discuss the delegation of authority issue. Using State v. Mays, 446 So.2d 1195 (La.1984), as an analogy, when the Legislature fails to define terms or roles, they may be defined by their exclusion from the act. In other words, if police juries possess only those powers delegated to them by the State Constitution and laws, then, absent specific legislative directive, police juries cannot delegate those duties to their employees. Their employees may, however, be necessary for execution or carrying out Police Jury decisions. Thus, the Jury may “delegate” daily bureaucratic details. Hal-tom’s comments in the July 6 minutes indicating his frustration with the Police Jury’s lack of support express that same viewpoint about his having to make “day to day decisions all the time.”

Examining the factual situations in two of the three counts of malfeasance, the jail repairs and the landfill, it seems clear that the Police Jury directed Haltom to take actions but left the bureaucratic detail to him. This was especially obvious in the case of the Areola landfill in Roseland, where its initial vague directive on March 9 for him to haul dirt to cover the landfill was corrected. On May 27, when Police Jury President Cade Williams offered the Jury a choice of using its own crews or hiring someone to do the job (without advertising for bids), the bid law was ignored when it need not have been. La.R.S. 38:2212 E(2) does not require bids when its own employees are used and 2212 A requires bids when others are hired instead.

Therefore, the bid law had been ignored before Haltom was given the job of carrying out Jury directives, especially in light of the Jury’s past emphasis on its role in advertising for bids on a regular, frequent basis and the fact that it had never delegated that responsibility before.

In the second count of malfeasance, as previously discussed, the Police Jury may have intended to declare an emergency to facilitate jail repairs for timely compliance with both the Department of Health and Human Resources inspection report and the federal court mandate. Its failure to do so, coupled with the additional omission of the bid process, created a legal problem. It is clear from the July 14, 1982, minutes that the jail repairs were considered “continuous, ongoing” maintenance, but the indictment lacks clarity. Does the indictment, which mentions no cost, include both materials and labor? The State’s brief indicates the total cost to be $36,300.00, well over the contract limit in La.R.S. 38:2212 A (see footnote 2) for public works. However, does the jail repair constitute a “public work”? This court has previously held that a “public work” means “a building, physical improvement, or other fixed construction.” Lafourche Parish Water District No. 1, 346 So.2d at 778; Wallace Stevens, Inc. v. Lafourche Parish Hospital District #3, 323 So.2d 794, 796 (La.1975). It is not clear from the minutes or briefs whether the jail repairs encompassed a major renovation or regular maintenance. Replacement of fixtures and repairing leaks does not on the surface seem to be a major renovation. If regular maintenance, the work could fall under the exception in La.R.S. 38:2212 I:

I. This Section shall not apply to labor necessary for the maintenance of public works built and completed.

“The Public Bid Law applies only to the purchase of materials or supplies or the doing of public work.” Lafourche Parish Water District No. 1, 346 So.2d at 780.

Each of these decisions was made by the Police Jury which directed Haltom to take the action it mandated. Of the 57 Louisiana malfeasance cases reviewed in researching the jurisprudence, not one involved a public employee. All of them were against public officials. Recently, where a sheriff instructed another public employee under his authority to withhold arrest and booking information from the District Attorney by removal of names from the booking log, the sheriff was charged as a principal with malfeasance, for the State contended in brief that the Chief Deputy removed the page at defendant’s direction. State v. Coody, 448 So.2d 100, 103 (La.1984) (at note 6). A wildlife agent who instructed two other agents to act outside their authority in a trespass and false imprisonment case was liable for damages to the injured plaintiff, while the other two agents were considered “innocent victims” of his ill feeling toward the plaintiff. Guilbeau v. Tate, 94 So.2d 896 (La.App. 1st Cir.1957). It is well settled in Louisiana that “where a public official acts contrary to express statutory provision, such action is illegal.” Courts have been willing to assess personal liability if the official is in bad faith. Godwin v. East Baton Rouge Parish, 372 So.2d 1060 (La.App. 1st Cir.1979), writ denied, 373 So.2d 527 (La.1979).

The third count of malfeasance, authorizing the expenditure of $7,500.00 for repair of tractors without advertising for bids, is discussed separately since it involves different legal issues. It is difficult to know whether this third count refers to the June 8,1982, Police Jury motion accepting the Finance Committee’s report authorizing and approving that the Road Superintendent look into the possible purchase of a bushhog to fit a tractor, or another transaction. The Police Jury minutes show an inconsistent use of terminology in describing tractors or tractor equipment, sometimes referring to particular brands, sometimes only to particular specifications, and sometimes interchangingly with other similar vehicles or road equipment. For example, the Police Jury authorized payment, repairs, or advertisement for bids for graders, dozers, tractor trucks, tractors, bush-hogs, bushhog tractors, backhoes, lowboys, and in one case, a truck or a tractor. Out of the two dozen references to such equipment, most are either unambiguous or relatively so, but four authorizations could refer to the vague term “tractors” in the indictment.

Since the indictment used the plural of the word, the indictment could involve two or more tractors or transactions. Since most of these actions were taken as Jury votes to either follow Finance Committee recommendations to advertise for bids or approve expenditures by Jury agents, this third count of malfeasance could also involve the same delegation of duty issue as the other two or an additional issue. If the indictment is so vague that the court is unable to pinpoint the exact transactions of defendant which are charged as violations of the law, then how can the defendant know enough to prepare a defense? Some of the transactions referred to in Jury minutes take place at different times in the almost eight-month period Haltom worked for the Police Jury. During that time, the Legislature had put into law two different versions of La.R.S. 38:2212 C. For the first part of 1982 until July 20, the 1978 version of 2212 C was operative. From July 20 until September 10, an amended 2212 C in Act 416 governed this issue.

Although the District Attorney in the Bill of Particulars told the defendant he was charged with violating subsection A(l) of the public bid law, his brief discussed the Act 416 version of section C. This is another violation of the defendant’s rights to due process under La. Const, art. I, § 13 and the Fifth Amendment of the U.S. Constitution. The defendant needs notice of the date(s) of the transaction(s) to know whether he must defend against possible improper cumulation of separate purchases, whether both labor and parts are included in the $7,500.00 total (bidding is required only for repair parts), and which version of the law applies.

La.C.Cr.P. art. 464 provides:

The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

(Footnote ours.)

It is well settled that the essential purpose of the indictment or bill of information is “to inform the court so that evidence may be regulated, to inform the accused so that his defense can be prepared and to support a plea of former jeopardy in the event of another trial.” State v. Glover, 262 La. 495, 263 So.2d 866, 869 (1972); State v. Scheuering, 226 La. 660, 76 So.2d 921, 924 (1954).

C. APPLICATION OF MALFEASANCE LAW TO HALTOM

This is apparently the first time an employee has been charged with malfeasance in office for obeying the collective decision of the Police Jury not to follow bid laws. Thus, this court is faced with a new issue under new versions of both the malfeasance and public bid statutes. In 1980 the Legislature amended La.R.S. 14:134 to include a new paragraph:

Any duty lawfully required of a public officer or public employee when delegated by him to a public officer or public employee shall be deemed to be a lawful duty of such public officer or employee. The delegation of such lawful duty shall not relieve the public officer or employee of his lawful duty.

The additional paragraph gives new meaning to the key phrase in section 1 referring to the failure “to perform any duty lawfully required” of any public officer or public employee. Examination of the jurisprudence before and after this amendment shows very little change in interpretation of the applicability of the act.

To support a conviction under a charge of malfeasance, the Louisiana Supreme Court in State v. Melerine, 236 La. 929, 109 So.2d 471 (1959) (handed down the same day as the first Melerine case cited), said it was necessary to find that the defendants performed “the duties required of them in an unlawful manner.” Thus, “it was necessary that the information describe the alleged conduct of defendants, and, state in what particulars, ... they had conducted themselves, so as to bring them within the statutory expression ‘unlawful manner.’ ” Melerine II, 109 So.2d at 478, 479. Police Jury President Melerine and Vice-President Licciardi, as public officers and members of the Board of Supervisors for Sewerage District No. 2, were found to have abused a mandatory duty to conform to the standards of conduct required in their oath of office. Melerine I, 109 So.2d at 469.

In 1980, the Supreme Court held that although the Real Estate Commission director intentionally issued licenses without valid testing of applicants, where statutes and Commission regulations failed to require of him an affirmative duty to administer fair and accurate testing procedures, his indictment failed to allege a criminal offense punishable under a valid statute. State v. Passman, 391 So.2d 1140 (La.1980); La.R.S. 14:7. Similarly, State v. Mags found no statutory directive to equate the license applications falsified by the defendants with racing license applications, available only to those involved in actual conduct of racing. Although the defendants did falsify their applications, they were not involved in racing and, therefore, not covered by the criminal statute making it a crime to falsify only racing licenses. The Fourth Circuit upheld the Passman requirement that malfeasance presupposes the existence of an affirmative duty, holding as a matter-of law that no duty existed. State v. Perez, 450 So.2d 1324 (La.App. 4th Cir.1984).

CONCLUSIONS

All of the malfeasance cases cited tie the malfeasance charge to other criminal violations. Before amendment in 1979, public bid law violations incurred criminal penalties also. However, after that, only civil penalties can be imposed for violation of the act. Because the malfeasance statute is a general one, it must be used in conjunction with another duty which the defendant is found to violate. In this case, Haltom was indicted for following the orders of the Tangipahoa Parish Police Jury. The Jury, not Haltom, was the entity required to comply with the public bid law. Whether that duty could have been delegated to Haltom is questionable, absent legislative directive, but whether they even attempted to delegate that duty must be answered in the negative. In addition, the third indictment is too vague to meet the due process objectives. Therefore, Haltom’s indictments should have been quashed. In State v. Marshall, 424 So.2d 423, 424 (La.App. 2nd Cir.1984), writ denied, 428 So.2d 475 (La.1983) where insufficient evidence was found to support a statutory violation, there was no failure to perform a duty required of him; therefore, the defendant could not be convicted of malfeasance. For similar reasons, since there was no delegation of the Police Jury’s statutory duty to Haltom and the indictment failed for insufficiency of information, there could be no failure by him to perform a duty and therefore no violation of the malfeasance statute. It is unnecessary for us to discuss the issue Haltom presented in his second motion to quash relative to the attorney-client relationship.

For the foregoing reasons, the judgment of the trial court denying the first motion to quash these three indictments is reversed; that motion to quash is now sustained and defendant is hereby ordered discharged from bail.

REVERSED.

      . La.R.S. 14:134 provides:
      "Malfeasance in office is committed when any public officer or public employee shall:
      (1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; or
      (2) Intentionally perform any such duty in an unlawful manner; or
      (3) Knowingly permit any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him, or to perform any such duty in an unlawful manner.
      Any duty lawfully required of a public officer or public employee when delegated by him to a public officer or public employee shall be deemed to be a lawful duty of such public officer or employee. The delegation of such lawful duty shall not relieve the public officer or employee of his lawful duty.
      Whoever commits the crime of malfeasance in office shall be imprisoned for not more than five years with or without hard labor or shall be fined not more than five thousand dollars or both.”

      . La.R.S. 38:2212 provides in pertinent part:
      “A. (l)(a) All public work exceeding the contract limit as defined herein, including labor, and materials, and all purchases of materials or supplies exceeding the sum of five thousand dollars to be paid out of public funds, to be done by a public entity shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans, and specifications as advertised, and no such public work shall be done and no such purchase shall be made except as provided in this Part.

      (f) The term ‘contract limit’ as used herein, shall be equal to the sum of thirty thousand dollars per project for the calendar year 1982 and, for each succeeding calendar year, shall be increased by a factor equal to three percent per year for each of the next ten calendar years.”

      . La.R.S. 38:2212 H provides:
      "H. Under no circumstances shall there be a division or separation of any public work project into smaller projects which division or separation would have the effect of avoiding the requirement that public work be advertised and let by contract to the lowest responsible bidder as provided in this Section."

      . Black’s Law Dictionary, 1097 (5th ed. 1979), defines proprietary functions as those which government may perform when considered to he for the best interests of its citizens, for the entity’s general betterment and improvement. The term usually applies to municipal corporations acting in a commercial or quasi-private capacity as with the Water District. The term was frequently used in Louisiana jurisprudence until Wex Malone pointed out its uselessness in distinguishing public employers from their employees. "Many employees are hired to discharge purely governmental functions of their public employer, while many of the highest city officials may determine policy for the proprietary activities of the corporation they serve.” Wex S. Malone and H. Alston Johnson, Workers' Compensation Law and Practice, § 98 in 13 Louisiana Civil Law Treatise 220 (1980).

      . La.R.S. 38:2212 E(2) provides:
      "(2) The provisions of this Section shall not prevent municipalities or other public bodies from maintaining municipally owned and operated public utilities and other public properties with their own regular maintenance employees, however, not to include the construction of buildings. (Emphasis added.)

      . Until July 20, 1982, Act 670 of 1978 governed. That version of 2212 C provided:
      "C. Contracts for public works aggregating less than ten thousand dollars, and contracts for materials and supplies aggregating less than two thousand five hundred dollars shall not be advertised unless the public entity deems it advisable.”
      Act 416 of 1982 amended 2212 C to provide:
      "C. (1) Contracts for public works aggregating less than ten thousand dollars shall not be required to be advertised unless the public entity deems it advisable. Purchases of materials and supplies not exceeding five thousand dollars shall be made in accordance with the small purchase procedures and minimum competitive requirements provided for herein.
      "(2) All public entities shall, at a minimum, abide by the following procedures and requirements for purchases of materials and supplies not exceeding five thousand dollars, except that procurement requirements shall not be artificially divided so as to constitute a small purchase:
      "(a) Purchases under five hundred dollars shall require no competitive bidding.
      "(b) Purchases of five hundred dollars or more but less than fifteen hundred dollars shall be made by receiving written price quotations whenever time permits or, if time does not permit, telephone and telegraph quotations may be obtained and purchases made on the basis of the lowest quotation received. A written determination of why time did not permit written quotations shall be required.
      “(c) Purchases of fifteen hundred dollars or more but less than three thousand dollars shall be made by soliciting written quotations from at least five bona fide prospective bidders.
      "(d) Purchases of three thousand dollars or more but less than five thousand dollars shall be made by sending out written invitations for bids to at least five bona fide qualified bidders. Additionally, the public entity may advertise, at its discretion. Written invitations for bids shall contain complete specifications and the quantity required, and shall stipulate that bids will be publicly opened and read at a specific date and time, as well as other pertinent information, such as the delivery point and other information sufficient for a supplier to make an acceptable bid.
      "(e) Purchases of parts and repairs for automobiles, machinery, and equipment shall be obtained either by the use of an authorized dealer for such items, as defined herein, or by obtaining competitive bids, as provided in this Section. An authorized dealer is defined as a dealer certified to perform maintenance and repairs by the manufacturer of a specific brand of equipment.”
      Act 691 was passed one day before Act 416, but the effective date for Act 416 was the date of the Governor’s signature, July 20, while the effective date of Act 691 was omitted, making it effective September 10, with all acts not specifying effective dates. Act 691 contained a conflicting, apparently irreconcilable, version of 2212C from that in Act 416. To confuse matters further, the 1983 Legislature suspended Act 416 for 60 days to allow local governments time to adapt to the complicated small purchase procedure and then passed a greatly simplified version of Section C that same year, repealing both Acts 416 and 691.

      . La.C.Cr.P. art. 464 amended the old version in La.C.Cr.P. art. 227 referred to in State v. Fitzgerald, 248 La. 487, 179 So.2d 906 (1965) and State v. Scheuering, 226 La. 660, 76 So.2d 921 (1954):
      "If the statute is one which defines an offense in general terms (malfeasance), use of the language of the statute is not sufficient, and the indictment must also state the specific acts of the defendant on which the charge is based.” Malfeasance charges in those two cases passed constitutional muster for they specifically described conduct and circumstances upon which the charge was based in far greater detail than the third count against Haltom.
      La.C.Cr.P. art. 227 provided, before amendment:
      "The indictment must state every fact and circumstance necessary to constitute the offense, but it need do no more, and it is immaterial whether the language of the statute creating the offense, or words unequivocally conveying the meaning of the statute, be used.

      . La.R.S. 38:2220 provided:
      "A. Any purchase of materials or supplies or any contract entered into for the construction of public works, contrary to the provisions of this Part shall be null and void.
      B. The district attorney in whose district a violation of this Part occurs, the attorney general or any interested party possessed a right of action to bring suit for appropriate injunctive relief in the district court to nullify a contract entered into in violation of this Part.
      C. Where a judgment of nullity is rendered in any action brought by a district attorney or by the attorney general pursuant to Subsection B of this Section the district court may award a civil penalty not in excess of fifty thousand dollars against each offending member of the governing authority of the public entity who authorized the violation.”
      Repealing La.R.S. 38:2218:
      "Any member of any governing authority violating the provisions of this Part shall be fined not less than fifty dollars nor more than five hundred dollars, or imprisoned for not more than thirty days, or both.


author: REDMANN, Chief Judge.

text:
    STATE of Louisiana v. Harold CHESTNUT.
    No. K 2389.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 4, 1984.

      John F. Rowley, Dist. Atty., Victor J. Dauterive, Jr., Asst. Dist. Atty., Chalmette, for State.
    J. Wayne Mumphrey, Jeffrey Perigoni, Chalmette, for relator.
    Before REDMANN, C.J., and GARRISON and BARRY, JJ.
   REDMANN, Chief Judge.

We granted certiorari to afford to relator appellate review of his conviction and sentence of ten days and $125 fine for operating a motor vehicle while “under the influence of alcoholic beverages,” La.R.S. 14:98.

Relator’s complaint relative to the form reciting his refusal to be tested by photoelectric intoximeter is pretermitted as legally insignificant in our context. Refusal to be tested is irrelevant to the charged offense (although test results might be evidence of intoxication or non-intoxication).

Relator also complains that the evidence was insufficient to establish his guilt beyond a reasonable doubt, citing State v. Raymo, 419 So.2d 858 (La.1982). We conclude that the evidence was sufficient.

The evidence includes testimony of an investigating deputy sheriff (in whom the trial judge evidently placed credibility rather than in defendant’s ex-wife, who drove to the scene to assist defendant) of a “strong” smell of alcohol on defendant’s breath, of defendant’s slurred speech and “staggering.” The deputy also testified of defendant’s “fumbling” on picking up coins and stumbling on turning around in field sobriety tests. Two other witnesses established that defendant was driving an automobile.

That evidence suffices to show both that defendant had been drinking alcoholic beverages and that those beverages had influenced his ability to do such simple tasks as walk, turn around and talk: in short, that defendant was “under the influence of alcoholic beverages” while driving a motor vehicle.

Affirmed.