text:
    WHEAT INCORPORATED v. Shirley Ann CARUTHERS.
    No. 83-C-1685.
    Supreme Court of Louisiana.
    Oct. 18, 1983.
   On Application for Writs

PER CURIAM.

The writ is granted.

In this case the plaintiff instituted a peti-tory action concerning certain property in St. Tammany Parish, alleging that the defendant, Shirley Ann Caruthers, was in possession. The defendant answered, admitting possession. There was a trial and judgment in favor of the plaintiff.

Defendant appealed. In due course, plaintiff received a judgment and a notice of judgment from the deputy clerk of the court of appeal, as required by Rule 2-17.1 of the Uniform Rules, Courts of Appeal. The deputy clerk certified that the notice had been mailed to counsel for all parties on February 22, 1983.

The date on the court of appeal opinion (certified by the clerk of court to be a true copy) corresponded with the date on the clerk’s certificate. The opinion of the court of appeal affirmed the judgment of the district court, decreeing the plaintiff to be the owner of the property involved.

There was no application for rehearing. Shortly after May 23, 1983 plaintiff received another notice of judgment from the court of appeal, signed by the same deputy clerk, certifying that on May 23, 1983 an opinion and notice of judgment were mailed to all counsel, the trial judge and the clerk of the trial court. The opinion attached to that notice of judgment bears the date of February 22, 1983 and the initials of the three judges. That opinion concluded that the judgment of the district court was reversed and set aside, and the case was remanded for the joinder of Glynn Caruthers as a party, and for further proceedings.

Plaintiff filed an application for rehearing on June 20, 1983. That petition for rehearing argued that the judgment in favor of plaintiff, mailed to the plaintiff on February 22, 1983, had become “final and definitive” because neither party had applied for rehearing nor for writs to the Louisiana Supreme Court. The application for rehearing further argued that if the second judgment was “the true judgment,” then it was in error.

The rehearing was denied by the court of appeal, 439 So.2d 1098, on June 29, 1983, the same day the notice of the denial of the rehearing was mailed to the parties. A per curiam was attached to the rehearing denial. That per curiam did not reply to plaintiff’s complaint that the judgment mailed to it on February 22 had become final.

Within thirty days of the mailing of notice of rendition of judgment by the court of appeal, a party may either apply to the court of appeal for a rehearing or apply to the supreme court for certiorari. If no timely application is filed in either court, the judgment of the court of appeal becomes final and definitive, and acquires the authority of the thing adjudged. C.C.P. 2166. Once the judgment of the court of appeal acquired the authority of the thing adjudged, the court of appeal lost the power and authority to reverse or modify that judgment.

The court of appeal’s judgment of February 22, 1982 (which was not initialed by the judges, as is customary) may have been a preliminary draft, or one of two alternative proposals. Whatever the reason for the conflicting opinions, the judgment attached to the notice mailed by. the clerk constituted a judgment of the court of appeal, as indicated by the clerk’s notice. Furthermore, both parties were apparently satisfied not to seek further review, since neither did so.

Accordingly, the judgment of the court of appeal mailed on May 23, 1983, which appears in the bound volume of 428 So.2d 1037, is of no effect, and the judgment is hereby declared to be null and void.

There is now judgment reinstating the judgment which was mailed out by the court of appeal on February 22, 1983, in which judgment was rendered in favor of the plaintiff, Wheat Incorporated, and against the defendant, Shirley Ann Caruth-ers, affirming the judgment of the district court; further there is judgment in favor of the plaintiff, Wheat Incorporated, decreeing that it is the owner of the following described property:

A CERTAIN PARCEL OF LAND, located in Section 11, Township 10 South, Range 14 East, St. Helena Meridian, Louisiana, more particularly described as follows, to-wit:
Commencing at a point described as being West 158.4 feet, thence South 02 degrees 16 minutes West 416.7 feet, thence South 88 degrees 11 minutes West 140.0 feet thence South 02 degrees 16 minutes West 200 feet from the corner common to Sections 1, 2, 11 and 12, Township 10 South, Range 14 East, thence North 02 degrees 16 minutes East, 74.9 feet to the point of beginning which point is marked point “A” in accordance with the survey prepared by Ned R. Wilson, C.E., dated November 3, 1977, from the point of beginning thence run South 02 degrees .16 minutes West, 74.9 feet, thence South 72 degrees 09 minutes West, 144.5 feet, thence South 46 degrees 18 minutes West, 129.1 feet, thence North 61 degrees 29 minutes West, 35.2 feet, to point “B” in accordance with the survey by Ned R. Wilson, C.E., dated November 3, 1977, thence Northeasterly along the Southern bank of an existing canal to the point of beginning, all in accordance with survey by Ned R. Wilson, C.E., dated November 3, 1977.
Being the same property acquired by the plaintiff from Leisure, Inc., by act dated November 1,1976, before Richard A. Ma-chen, Notary Public, recorded at COB 807, folio 1, and MOB 622, folio 558, in the Conveyance Records and Mortgage Records, respectively, of the Parish of St. Tammany.

The defendant, Shirley Ann Caruthers, is cast with all costs.

      . The amendment of C.C.P. 2166 by Act 451 of 1983 became effective after the events pertinent to this matter.


source: Caselaw Access Project

license: Public Domain

text:
    DELTA AIR LINES, INC., et al. v. CITY OF NEW ORLEANS, et al.
    No. 83-C-1403.
    Supreme Court of Louisiana.
    Sept. 26, 1983.
   In re Delta Air Lines, Inc., et al., applying for writ of certiorari and review. Fourth Circuit Court of Appeal. Civil District Court, Parish of Orleans, Division “I”. No. 585-865. 430 So.2d 1041.

Denied.

MARCUS, J., would grant the writ.


text:
    Thomas W. PIQUE v. Charles J. SAIA, Sr., and Charles J. Saia, Jr.,
    No. 83-C-1475.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Thomas W. Pique, applying for writ of review. Court of Appeal, First Circuit. Parish of East Baton Rouge, Nineteenth Judicial District Court. No. 234103. 432 So.2d 896.

Granted.


text:
    Jimmy A. STELLY and Sylvia M. Stelly v. FIDELITY & CASUALTY COMPANY OF NEW YORK, et al.
    No. 83-CC-1489.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
    Reconsideration Denied Nov. 4, 1983.
   In re Jimmy A. Stelly and Sylvia M. Stelly, applying for certiorari, or writ of review. Court of Appeal, Third Circuit. Parish of St. Landry, Twenty-Seventh Judicial District Court. No. 85,919-1. 434 So.2d 196.

Granted. Ruling of Court of Appeal reversed. Ruling of trial judge granting a new trial reinstated. No abuse of discretion. See L.C.C.R. Art. 1973.

WATSON, J., dissents believing the Court of Appeal to be precisely correct.

LEMMON, J., dissents.


text:
    Clifford E. ASHLINE v. Ronald J. SIMON, United States Fidelity & Guarantee Insurance and the Hertz Rental Corporation.
    No. 83-C-1516.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Clifford E. Ashline, applying for certiorari, or writ of review. Court of Appeal, Fifth Circuit. Jefferson Parish, Twenty-fourth Judicial District Court. No. 248-598. 435 So.2d 1041.

Granted. Judgments of the courts below are reversed. See Allen v. Smith, 390 So.2d 1300 (La.1980). The case is remanded to the district court.


text:
    Peter S. FALLO v. TUBOSCOPE INSPECTION, Intracoastal Pipe Repair & Supply Co. Inc., Intracoastal Terminal, Inc., Intracoastal Pipelines, Inc., and John Doe.
    No. 83-C-1517.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re AMF, A Division of Tuboscope, Inc., applying for certiorari, or writ of review. Court of Appeal, Fifth Circuit, Parish of Jefferson. Twenty-fourth Judicial District Court. No. 230-762. 435 So.2d 1033.

Granted. This case is consolidated with Mayer v. Valentine Sugars, No. 83-C-1388.


text:
    Janet G. FURTADO v. ALTON OCHSNER MEDICAL FOUNDATION, Argonaut Insurance Companies and XYZ Insurance Company.
    No. 83-CC-1542.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
    Reconsideration Denied Oct. 28, 1983.
   In re Janet G. Furtado, applying for writ of certiorari. Twenty-Fourth Judicial District Court. No. 11938. Parish of Jefferson, Fourth Circuit Court of Appeal. 413 So.2d 528.

Granted. The Court of Appeal judge had no authority to amend a judgment which had become final on September 17, 1982 when this Court denied writs. The judgment in effect on that date is reinstated, and the purported judgment of June 13, 1983 signed by Judge Garrison is vacated.


text:
    STATE of Louisiana ex rel., Peter MERCADEL v. Honorable Frank J. SHEA, Criminal District Court, Parish of Orleans, State of Louisiana.
    No. 83-KH-1835.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Peter Mercadel, applying for writ of mandamus. Criminal District Court, Parish of Orleans. No. 252-940, Section “G”.

Granted. Trial judge ordered to rule on relator’s application by October 28, 1983.


text:
    Christopher J. ROY v. Janice R. ROY.
    No. 83-C-1985.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Janice R. Roy, applying for writ of certiorari. Court of Appeal, Third Circuit. Parish of Rapides, Ninth Judicial District Court. No. 111403. 435 So.2d 600.

Not considered. Not timely.


text:
    STATE of Louisiana ex rel., Abraham BONIER, Jr. v. STATE of Louisiana.
    No. 83-KH-0268.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Abraham Bonier, Jr., applying for remedial writ. Parish of Rapides. No. 172-174.

Denied.


text:
    STATE of Louisiana, ex rel., Roderick W. PARKER v. Charles S. BECNEL, Judge Roland Marquette, et al. (Clerk of Court) 23rd Judicial District Court Parish of Assumption State of Louisiana Napoleonville, Louisiana.
    No. 83-KH-0395.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Roderick W. Parker, applying for writ of mandamus and prohibition. Parish of Assumption.

Denied. Moot.


text:
    STATE of Louisiana v. Steve CHAPMAN.
    No. 83-KH-0547.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Steve Chapman, applying for remedial writ. Parish of Orleans. No. 61242.

Denied.


text:
    STATE of Louisiana, ex rel. Calvin DAILEY v. Edwin A. LOMBARD.
    No. 83-KH-0589.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Calvin Dailey, applying for remedial writs. Orleans Parish. No. 261-832.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. David READO v. STATE of Louisiana.
    No. 83-KH-0756.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re David Reado, applying for remedial writ. Parish of Calcasieu.

Denied.


text:
    STATE of Louisiana, ex rel. Gene D. JOHNSTON v. Judge James E. CLARK and Court Reporter For the 1st Judicial District Court.
    No. 83-KH-0771.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Gene D. Johnston, applying for writ of mandamus. Parish of Caddo.

Denied. Moot.


text:
    STATE of Louisiana v. Wandall W. COODY.
    No. 83-KK-1369.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re State of Louisiana, applying for writs of certiorari or review. Ninth Judicial District Court. No. 204228. Parish of Rapides; Court of Appeal, Third Circuit. No. K-82-726.

Granted.


text:
    STATE of Louisiana ex rel., William HOUSTON et al. v. STATE of Louisiana.
    No. 83-KH-1172.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re William Houston, applying for writ of mandamus. Fourth Judicial District Court, Parish of Morehouse. No. 79-973.

Denied.


text:
    Sue G. Cascio, Wife of/and J. Donald CASCIO v. Charles A. SCHOENBRODT, et al.
    No. 83-C-1309.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Sue G. Cascio, Wife of/and J. Donald Cascio, applying for writ of certiorari, or writ of review. Court of Appeal, First Circuit, Parish of Livingston. Twenty-first Judicial District Court. No. 34902. 431 So.2d 32.

Denied.

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


text:
    Gertrude C. Johnson DUTSCH v. Mary Dutsch, Wife of/and Robert E. SNIDER.
    No. 83-C-1323.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Gertrude C. Johnson Dutsch, applying for certiorari, or writ of review. Court of Appeal, First Circuit. St. Tammany Parish, Twenty-second Judicial District Court. No. 59609. 431 So.2d 56.

Denied.

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


text:
    Michael E. PAWLAK, Individually and for the Minor, Michael D. Pawlak; and Patsy C. Pawlak v. Lucien BROWN and His Wife, Mary Brown, Individually and d/b/a Mid-State Honda; Mid-State Honda Company, Inc.; and American Honda Motor Company, Inc.
    No. 83-C-1447.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re American Honda Motor Company, Inc., applying for writs of certiorari or review. Court of Appeal, Third Circuit. Parish of Rapides, Ninth Judicial District Court. No. 96374. 430 So.2d 1346.

Denied.


text:
    Michael E. PAWLAK, Individually and for the Minor, Michael D. Pawlak; and Patsy C. Pawlak v. Lucien BROWN and His Wife, Mary Brown, Individually and d/b/a Mid-State Honda; Mid-State Honda Company, Inc.; and American Honda Motor Company, Inc.
    No. 83-C-1452.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Michael E. Pawlak, et al, applying for writs of certiorari or review. Court of Appeal, Third Circuit. Parish of Rapides, Ninth Judicial District Court. No. 96374. 430 So.2d 1346.

Denied.


text:
    Arthur C. CEARLEY and Builders Center Inc., v. Robert J. FARRIS and Ann N. Farris.
    No. 83-C-1476.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Robert J. Farris, applying for writ of certiorari and review. First Circuit Court of Appeal. Twenty-first Judicial District Court, Parish of Tangipahoa. No. 48862. 432 So.2d 902.

Denied.


text:
    Alvin COULON, Individually and as Representative of the Estate of Keith Coulon v. GAYLORD BROADCASTING, Cosmos Broadcasting Corp., and Loyola University.
    No. 83-C-1485.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Alvin Coulon, applying for writ of certiorari and review. Fourth Circuit Court of Appeal. Civil District Court, Parish of Orleans. No. 80-11298, Division L. 433 So.2d 429.

Denied. The result is correct.


text:
    Horace P. DELATTE v. Kathlyn M. ROOME, et als. Changed to Bernice Roome, et als.
    No. 83-C-1488.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Travelers Insurance Companies, applying for writ of certiorari and review. First Circuit Court of Appeal. Thirty-second Judicial District Court, Parish of Terrebonne. No. 56372 “A”. 432So.2d914.'

Denied.


text:
    JOHN JAY ESTHETIC SALON, INC. v. Frances WOODS & Neubie Culver.
    No. 83-C-1491.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re John Jay Esthetic Salon, Inc., applying for certiorari, or writ of review. Court of Appeal, Fifth Circuit, Parish of Jefferson. Twenty-fourth Judicial District Court. No. 203-458, Division “I”. 435 So.2d 1051.

Denied.

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

LEMMON, J., Recused.


text:
    STATE of Louisiana v. Howard M. HILL.
    No. 83-K-1496.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Howard M. Hill, applying for certio-rari, or writ of review. Court of Appeal, Second Circuit, Parish of Caddo. First Judicial District Court. No. 119,551. 431 So.2d 871.

Denied.


text:
    STATE of Louisiana v. Ronald L. HAMMONDS.
    No. 83-K-1498.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Ronald L. Hammonds, applying for writ of review and certiorari. Court of Appeal, Second Circuit. Parish of Ouachi-ta, Fourth Judicial District Court. No. 40776. 434 So.2d 452.

Denied.


text:
    STATE of Louisiana v. Jeffery Wayne MANN.
    No. 83-K-1520.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Jeffery Wayne Mann, applying for writ of review and/or certiorari. Court of Appeal, Second Circuit. Parish of Ouachi-ta, Fourth Judicial District Court. No. 40686. 431 So.2d 862.

Denied.


text:
    STATE of Louisiana v. Lionel WILLIAMS.
    No. 83-K-1522.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Lionel Williams, applying for writ of certiorari or review. Fifth Circuit Court of Appeal. Parish of St. John the Baptist, Twenty-Ninth Judicial District Court. No. 46-82. 435 So.2d 1047.

Denied.


text:
    Ida B. SLAUGHTER v. EAST BATON ROUGE PARISH SCHOOL BOARD.
    No. 83-C-1525.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Ida B. Slaughter, applying for writ of certiorari and review. Court of Appeal, First Circuit. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 226053. 432 So.2d 905.

Writ denied.


text:
    STATE of Louisiana In the Interest of Dottie Lynn GARDNER.
    No. 83-CK-1527.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Ruby C. Gardner, applying for cer-tiorari, or writ of review. Court of Appeal, First Circuit. City Court of Hammond, Seventh Ward, Parish of Tangipahoa. No. 81-4606J2. 434 So.2d 1253.

Denied.


text:
    Mary ROBINSON v. GULF INSURANCE COMPANY, et al.
    No. 83-C-1528.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Mary Robinson, applying for writ of certiorari and review. Second Circuit Court of Appeal. Twenty-sixth Judicial District Court, Parish of Bossier. No. 56132. 434 So.2d 487.

Denied.


text:
    STATE of Louisiana v. Myrick M. HUTCHINSON.
    No. 83-KH-1541.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Myrick M. Hutchinson, applying for writ of habeas corpus. Fourteenth Judicial District Court, Parish of Calcasieu. No. 7042-82.

Denied.


text:
    RODRIGUEZ-FARR INSURANCE AGENCY, INC. v. James SHARP, Jr.
    No. 83-C-1544.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re James Sharp, applying for certiorari, or writ of review. Court of Appeal, Second Circuit, Parish of Ouachita. Fourth Judicial District Court. No. 24375. 431 So.2d 889.

Denied.


text:
    Virginia Ann Hutchison CLAYTON v. Everette Victor CLAYTON.
    No. 83-C-1546.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Everette Victor Clayton, applying for writ of certiorari or review. Court of Appeal, Second Circuit. Parish of Franklin, Fifth Judicial District Court. No. 21445. 431 So.2d 1082.

Denied.


text:
    STATE of Louisiana v. Arthur C. YOUNG.
    No. 83-K-1547.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Arthur C. Young, applying for cer-tiorari, or writ of review. Court of Appeal, Second Circuit, Parish of Webster. Twenty-sixth Judicial District Court. No. 48746. 431 So.2d 842.

Denied.


text:
    STATE of Louisiana v. Anthony J. SANDERS.
    No. 83-K-1548.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Anthony J. Sanders, applying for writ of certiorari and review. Court of Appeal, Second Circuit. First Judicial District Court, Parish of Caddo. No. 120,157. 431 So.2d 833.

Denied.


text:
    STATE of Louisiana v. Jiles Ray JAMES.
    No. 83-K-1549.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Jiles Ray James, applying for cer-tiorari, or writ of review. Court of Appeal, Second Circuit, Parish of Caddo. First Judicial District Court. No. 117580. 431 So.2d 1075.

Denied.


text:
    Ivan FISK, William Arthur Fisk and Marge Fisk Munro v. Woodrow W. CHAMBLEE.
    No. 83-C-1478.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Ivan Fisk, William Arthur Fisk and Marge Fisk Munro, applying for writ of certiorari and/or review. Third Circuit Court of Appeal. Thirty-eighth Judicial District Court. No. 6879. Parish of Cameron. 430 So.2d 1332.

Denied.

LEMMON, J., would grant the writ.


text:
    Ms. Lyn ANDERSON v NEW ORLEANS PUBLIC SERVICE INC., et al. Louis ROACH v. NEW ORLEANS PUBLIC SERVICE INC., et al.
    No. 83-C-1500.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re New Orleans Public Service, Inc. et al., applying for writ of certiorari and/or review. Fourth Circuit Court of Appeal. Civil District Court. No. 80-1098 Docket A (Lyn Anderson) and No. 80-5983, Division A (Louis Roach, Jr.). Parish of Orleans. 433 So.2d 872.

Denied.


text:
    GUILLORY, SALLIE, ANN v. AVONDALE SHIPYARD, INC. and the Travelers Insurance Company. Merlin PONTIFF v. AVONDALE STEEL SALES, DIVISION, OF AVONDALE SHIPYARDS, INC., et al.
    No. 83-C-1570.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Sallie Ann Guillory, applying for writ of certiorari and/or review. First Circuit Court of Appeal. Parish of Terrebonne, Thirty-second Judicial District Court. Nos. 59157 and 59539. 434 So.2d 563.

Granted.


text:
    STATE of Louisiana v. Lonnie R. WILLIAMS.
    No. 83-KH-1572.
    Supreme Court of Louisiana.
    Sept. 30, 1983.
   In re Lonnie R. Williams, applying for writ of review. Fourteenth Judicial District Court, Parish of Calcasieu.

Denied.


text:
    STATE of Louisiana ex rel., Rene WHITE v. TWENTY-FIFTH JUDICIAL DISTRICT COURT, Clerk of Court Criminal Division “B” Parish of Plaquemines Pointe-A-La-Hache, Louisiana.
    No. 83-KH-1163.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Rene White, applying for writ of habeas corpus. Parish of Plaquemines. No. 70550.

Denied.. Application withdrawn at relator’s request.


text:
    STATE of Louisiana ex rel., Dewitt BROWN v. COURT REPORTER 24TH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON.
    No. 83-KH-1182.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Dewitt Brown, applying for remedial writs. Parish of Jefferson. No. 80-3073.

Denied. Relator must apply first to district court.


text:
    STATE of Louisiana ex rel., Jimmy D. MARICLE v. 19TH JUDICIAL DISTRICT COURT PARISH OF EAST BATON ROUGE, State of Louisiana.
    No. 83-KH-1200.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Jimmy D. Maride, applying for remedial writs, and writ of mandamus. Parish of East Baton Rouge. No. 186492.

Denied. Moot.


text:
    STATE of Louisiana ex rel., Preston H. DAIGRE v. Honorable James F. McKAY, III, Judge Criminal District Court, Section “H” Parish of Orleans.
    No. 83-KH-1219.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Preston H. Daigre, applying for writ of mandamus. Parish of Orleans. No. 239-339.

Denied. Moot.


text:
    STATE of Louisiana ex rel., Michael McCAFFREY v. N. Burl CAIN, Warden Dixon Correctional Institute Jackson, Louisiana, et al.
    No. 83-KH-1222.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
    Reconsideration Denied Jan. 6, 1984.
   In re Michael McCaffrey, applying for writ of habeas corpus. Parish of Livingston, Twenty-first Judicial District Court. No. 3135.

Denied. Relator must apply first to district court.


text:
    STATE of Louisiana ex rel. John SMITH v. CLERK OF COURT, 22ND JUDICIAL DISTRICT COURT PARISH OF WASHINGTON STATE OF LOUISIANA.
    No. 83-KH-1226.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re John Smith applying for writ of mandamus. Parish of Washington, Twenty-second Judicial District Court. No. 37,-563 and 37,369.

Denied. Moot.


text:
    STATE of Louisiana, ex rel., Ernest L. WALLER v. CLERK OF COURT PARISH OF ALLEN 33RD JUDICIAL DISTRICT COURT.
    No. 83-KH-1228.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Ernest L. Waller, applying for writ of mandamus. Parish of Allen. No. CR-2171-81.

Denied. Moot.


text:
    STATE of Louisiana v. Marie COOK.
    No. 83-KH-1518.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Marie Cook, applying for writs of certiorari, review and prohibition. Criminal District Court. No. 293-742. Parish of Orleans, Fourth Circuit Court of Appeal. No. K-1009.

Denied.

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


text:
    STATE of Louisiana In the Interest of Kevin Maurice HOWARD, Terrance Lee Howard, Leonard Howard, Jr., Lionel Howard.
    No. 83-CK-1626.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Department of Health and Human Resources, applying for writ of certiorari and review. Juvenile Court. Section C. Parish of Orleans. No. 198-955.

Denied.

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


text:
    Mark SOULE v. SCANIO PRODUCE COMPANY, INC., State Farm Insurance Company, and Michael Battles.
    No. 83-CC-1661.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Mark Soule, applying for supervisory writs of certiorari, mandamus and review. Civil District Court, Parish of Orleans. No. 83-1523, Div. L. Fourth Circuit Court of Appeal. No. C-1033.

Denied.


text:
    Anthony L. LOMBARD, Alvin T. Donohue, Stanley J. Chotin, Frank J. Orlando, John A. Reese, III, Eugene A. Chappuis, John Smith, Don J. Wolfe, Louis F. Broussard and Cornelius W. Acheson, Jr. v. CITY OF NEW ORLEANS.
    No. 83-CC-1672.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Anthony L. Lombard, Alvin T. Donohue, Stanley J. Chotin, Frank J. Orlando, John A. Reese, III, Eugene A. Chappuis, John Smith, Don J. Wolfe, Louis F. Broussard and Cornelius W. Acheson, Jr., applying for writ of certiorari. Court of Appeal, Fourth Circuit. No. C-1016. Civil District Court, Parish of Orleans. No. 82-5922.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Ronald James MATTHEWS v. CLERK OF COURT, State of Louisiana.
    No. 83-KH-1712.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Ronald James Matthews, applying for remedial writ. Fifteenth Judicial District Court, Parish of Acadia. No. 44215.

Denied.


text:
    STATE of Louisiana ex rel. Donald M. TAYLOR v. Charles C. FOTI, Jr.
    No. 83-KH-1833.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Donald M. Taylor, applying for remedial writs. Criminal District Court, Parish of Orleans. No. 265-799-Section “D”.

Denied.


text:
    Maria M. Lopez, Wife of Antonio LOPEZ v. Gregory WAGUESPACK, George J. Waguespack, Jr., the Trinity Companies and State Farm Mutual Automobile Insurance Company.
    No. 83-CC-1984.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re State Farm Mutual Automobile Insurance Company, applying for supervisory and/or remedial writs. Twenty-fourth Judicial District Court. No. 247-893. Parish of Jefferson, Court of Appeal, Fifth Circuit. No. 83-C-621.

Denied.


text:
    Brian C. QUARTANO d/b/a Creole City Gift Shop a/k/a Limited Editions v. Mrs. Lawrence H. FOX, Secretary of the Department of Culture, Recreation and Tourism; Peg Bolton, President of the Board of Directors of the Louisiana State Museum Board; and George Montgomery, Chairman of the Irby Committee.
    No. 83-CC-2069.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Brian C. Quartano d/b/a Creole City Gift Shop a/k/a Limited Editions, applying for writ of certiorari. Fourth Circuit Court of Appeal. No. C-1186. Civil District Court. No. 83-9761. Parish of Orleans.

Denied.


text:
    STATE of Louisiana, ex rel. David FRANKLIN v. CLERK OF COURT, PARISH OF EAST BATON ROUGE, State of Louisiana.
    No. 83-KH-0930.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re David Franklin, applying for writ of mandamus. Parish of East Baton Rouge. No. 2-80-681. Nineteenth Judicial District Court.

Denied. Moot.


text:
    STATE of Louisiana v. Willie TRIPLET.
    No. 83-K-1695.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Willie Triplet, applying for writ of certiorari and/or review. First Circuit Court of Appeal. No. 83-KA-0076. Nineteenth Judicial District Court. No. 5-80-677.

Denied.


text:
    STATE of Louisiana v. Patricia NICHOLAS.
    No. 83-KK-1619.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Patricia Nicholas, applying for supervisory writs of certiorari, prohibition, mandamus. Nineteenth Judicial District Court. No. 7-8-188. Parish of East Baton Rouge, First Circuit Court of Appeal. No. 83 KW 0734.

Denied. Not considered. Not timely filed. Rule X, Sec. 5(b).


text:
    STATE of Louisiana v. Kerry HOWARD.
    No. 83-KH-2104.
    Supreme Court of Louisiana.
    Oct. 10, 1983.
   In re Kerry Howard, applying for writ of mandamus. Criminal District Court, Parish of Orleans. No. 795-419, Section “F”.

Granted and transferred to Court of Appeal, 4th Circuit.


text:
    In re Johnnie A. JONES.
    No. 83-KK-2112.
    Supreme Court of Louisiana.
    Oct. 11, 1983.
   In re Johnnie A. Jones, applying for writ of mandamus. First Circuit Court of Appeal. No. 83 KW 1141. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 10-83-195.

Denied.


text:
    STATE of Louisiana ex rel., Kevin P. JONES v. COURT REPORTER, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 83-KH-2135.
    Supreme Court of Louisiana.
    Oct. 14, 1983.
   In re Kevin P. Jones applying for writ of mandamus. Criminal District Court, Parish of Orleans.

Denied. Relator must first apply to the district court and allow a reasonable time for action on the application.


text:
    STATE of Louisiana, ex rel. Keith LEWIS v. Mr. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-2922.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Keith Lewis, applying for writ of habeas corpus, mandamus, certiorari, and other remedial writs. Parish of Orleans. No. 256-349.

Denied.


text:
    STATE of Louisiana v. Darrel JACKSON.
    No. 83-KH-0905.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Darrel Jackson, applying for writ of review. Parish of Clacasieu. No. 10736-79.

Denied.


text:
    STATE of Louisiana ex rel., James CLAY v. Miriam G. WALTZER, Judge, Criminal District Court, Section A, Parish of Orleans.
    No. 83-KH-1359.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re James Clay, applying for writ of mandamus. Parish of Orleans, Criminal District Court. No. 284-775.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Benny MITCHELL v. Honorable Alvin V. OSER, Judge, and Charles C. Foti, Jr., Sheriff of Orleans Parish Prison.
    No. 83-KH-1365.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Benny Mitchell, applying for writ of habeas corpus. Criminal District Court, Parish of Orleans. No. 285-731.

Denied. Moot.


text:
    STATE of Louisiana ex rel., Robert PITTMAN v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary and 22nd Judicial District Court Parish of Washington State of Louisiana.
    No. 83-KH-1366.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Robert Pittman, applying for writ of mandamus. Parish of Washington. No. 34824-25.

Denied. Moot.


text:
    STATE of Louisiana ex rel., Clinton Clifford HOWARD, Jr., v. Honorable Frank J. SHEA, Judge.
    No. 83-KH-1384.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Clinton Clifford Howard, Jr., applying for writ of mandamus and remedial writs. Parish of Orleans.

Denied. Moot.


text:
    STATE of Louisiana ex rel., Lonzell GARDNER v. Honorable Douglass J. NEHRBASS, Judge, 15th Judicial District Court, Parish of Lafayette.
    No. 83-KH-1416.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Lonzell Gardner, applying for writ of mandamus. Fifteenth Judicial District Court, Parish of Lafayette. Nos. 45538 and 43137.

Denied.


text:
    STATE of Louisiana v. Bobby James DANIELS.
    No. 83-KH-1432.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Bobby James Daniels, applying for writ of certiorari and mandamus. Criminal District Court, Parish of Orleans. No. 294-274, Section B.

Denied.


text:
    STATE of Louisiana, ex rel., Bruce E. CHOYCE v. Sheriff Charles C. FOTI, Jr.: Chief of the New Orleans Police Dept. Gains; Criminal District Attorney Harry F. Connick.
    No. 83-KH-1460.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Bruce E. Choyce, applying for writ of mandamus. Parish of Orleans. No. 279-940.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Robert P. GILBERT v. William M. JUSTICE, Clerk, 24th Judicial District Court Parish of Jefferson.
    No. 83-KH-1479.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Robert P. Gilbert, applying for writ of mandamus. Twenty-fourth Judicial District Court, Parish of Jefferson. No. 78-1716.

Denied.


text:
    STATE of Louisiana v. Eric PERRON.
    No. 83-KH-1514.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Eric Perron, applying for writ of habeas corpus. Parish of Calcasieu. No. 9061-80.

Denied. Relator must file first in the district court.


text:
    STATE of Louisiana, ex rel. Jimmy Lee RANDALL v. CLERK OF COURT, 7TH JUDICIAL DISTRICT COURT PARISH OF CATAHOULA.
    No. 83-KH-1526.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Jimmy Lee Randall, applying for writ of mandamus. Seventh Judicial District Court, Parish of Catahoula. No. 81— 1775.

Denied. Moot.


text:
    STATE of Louisiana, ex rel., Willie E. CHATMAN v. CLERK OF COURT 1ST JUDICIAL DISTRICT COURT PARISH OF CADDO State of Louisiana.
    No. 83-KH-1533.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Willie E. Chatman, applying for remedial writs. Parish of Caddo. No. 119225.

Denied.


text:
    STATE of Louisiana, ex rel. Roger COLLINS v. Charles C. FOTI, Jr.
    No. 83-KH-1540.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Roger Collins, applying for writ of mandamus, Criminal District Court. Parish of Orleans. No. 278-112, Section “F”.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Frank MOTTON v. Honorable Miriam G. WALTZER, Judge, Section “A”, Criminal District Court, Parish of Orleans.
    No. 83-KH-1585.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Frank Motton, applying for writ of mandamus, Criminal District Court, Parish of Orleans. No. 271-109.

Denied.


text:
    STATE of Louisiana ex rel. Thomas H. MURPHY v. James F. McKAY III, Judge of the Criminal District Court, Section H, Parish of Orleans.
    No. 83-KH-1587.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Thomas H. Murphy, applying for writ of mandamus. Criminal District Court, Parish of Orleans. Section H, No. 225-243.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Alton SPURLOCK v. CLERK OF COURT, DIVISION B, CRIMINAL DISTRICT COURT, PARISH OF PLAQUEMINES.
    No. 83-KH-1588.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Alton Spurlock, applying for writ of mandamus. Twenty-fifth Judicial District Court, Parish of Plaquemines. No. 59942, Division B.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Jessie Lee NIMMERS v. CLERK OF COURT, 4TH DISTRICT COURT, PARISH OF MOREHOUSE.
    No. 83-KH-1590.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Jessie Lee Nimmers, applying for writ of mandamus. Fourth Judicial District Court, Parish of Morehouse. No. 81-1739.

Denied.


text:
    STATE of Louisiana, ex rel. Judy JONES v. Honorable Doug MOREAU.
    No. 83-KH-1596.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Judy Jones, applying for writ of mandamus, Nineteenth Judicial District Court, Parish of East Baton Rouge. Nos. 4-79-179 and 4-79-180.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Marvin Aubrey DEVORE v. John T. KING and Ross Maggio.
    No. 83-KH-1637.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Marvin Aubrey Devore, applying for writ of habeas corpus. Twenty-seventh Judicial District Court, Parish of St. Landry. No. 27521.

Denied.


text:
    STATE of Louisiana v. Jerome POWELL, Jr.
    No. 83-KH-1668.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Jerome Powell, Jr., applying for writs of habeas corpus, certiorari, mandamus, prohibition, supervisory, and remedial. Criminal District Court, Parish of Orleans. Nos. 262-982 and 264-368.

Denied. Relator must apply first to district court.


text:
    STATE of Louisiana ex rel. Glenn COLEMAN v. John M. McGOUGAN, Warden Hunt Correctional Center.
    No. 83-KH-1671.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Glenn Coleman, applying for writ of mandamus on habeas corpus. Criminal District Court, Parish of Orleans. Section G, No. 273-400.

Denied. Moot.


text:
    Merrel Loubat CAIRE v. Harry G. CAIRE.
    No. 83-CC-1715.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Harry G. Caire, applying for supervisory writ. Civil District Court, Parish of Orleans. No. 78-8924, Section “F”. Fourth Circuit Court of Appeal. No. C-1104.

Denied.


text:
    Gary Wayne PARKERSON v. ENTERPRISE GROUP, INC., dba Minden Press-Herald, Inc.
    No. 83-CC-1719.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Gary Wayne Parkerson, applying for writs of certiorari, prohibition and mandamus. Fourth Judicial District Court. No. 83-983. Parish of Ouachita, Second Circuit Court of Appeal. No. 15740-CW.

Denied.


text:
    Elmer BRADING v. AVONDALE SHIPYARDS, INC.
    No. 83-CC-1662.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Avondale Shipyards, Inc., applying for writ of certiorari. Twenty-fourth Judicial District Court, Parish of Jefferson. Division “N” No. 249-101. Fifth Circuit Court of Appeal. No. 83-C-523.

Granted. The trial court is instructed to compel medical examination of plaintiff by a physician of defendant’s choice, to permit the defendant to call witnesses described in the pretrial order, and to allow defendant to introduce the social security records into evidence.


text:
    STATE of Louisiana ex rel., Terry BAYLIS v. The SECOND JUDICIAL DISTRICT COURT PARISH OF BIENVILLE, State of Louisiana.
    No. 83-KH-0720.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Terry Baylis, applying for writ of mandamus. Parish of Bienville. No. 18795.

Granted and transferred to the district court for consideration and action.


text:
    STATE of Louisiana, ex rel., Floyd J. GARRETT v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 82-KH-2781.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Floyd J. Garrett, applying for writs of certiorari and habeas corpus. Twenty-seventh Judicial District Court, Parish of St. Landry. No. 32890.

Denied.


text:
    STATE of Louisiana, ex rel. Frank C. FEEBACK v. Honorable Judge: FARR, Judge, Fourth Judicial District Court.
    No. 83-CD-1728.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Frank C. Feeback, applying for writ of certiorari. Fourth Judicial District Court. No. 39499. Parish of Ouachita.

Denied.


text:
    STATE of Louisiana, ex rel., Terry FLANAGAN v. SUPREME COURT OF LOUISIANA.
    No. 83-KH-1861.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Terry Flanagan, applying for remedial writs. Parish of Bienville. No. 63106.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Kennon C. DOMINGUE v. Honorable John R. MOUTON, Judge 15th Judicial District Court, Parish of Lafayette, Lafayette, Louisiana.
    No. 83-KH-1862.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Kennon C. Domingue, applying for writ of mandamus. Fifteenth Judicial District Court, Parish of Lafayette. No. 43968.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Wayne CHAMPAGNE v. Honorable Ronnie COX, Judge and Hon. Dan Guilliot, Clerk 15th Judicial District Court Parish of Lafayette State of Louisiana.
    No. 83-KH-1864.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Wayne Champagne, applying for writ of mandamus. Fifteenth Judicial District Court, Parish of Lafayette. No. 44375.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Donald Ray WASHINGTON v. J.K. POST, Jr., Clerk 6th Judicial District Court, Parish of Madison.
    No. 83-KH-1866.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Donald Ray Washington, applying for writ of mandamus. Sixth Judicial District Court, Parish of Madison. No. 33230.

Denied. Moot.


text:
    STATE of Louisiana v. Marvin Aubrey DEVORE.
    No. 83-KP-1883.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Marvin Aubrey Devore, applying for writ of certiorari, (review), prohibition, mandamus and stay order. Twenty-Seventh Judicial District Court, St. Landry Parish. No. 27521.

Denied.


text:
    STATE of Louisiana ex rel., Herbert BROWN v. Honorable Frank SHEA, Judge, Criminal District Court, Parish of Orleans.
    No. 83-KH-1892.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Herbert Brown, applying for writ of mandamus. Parish of Orleans, Criminal District Court. No. 239-286.

Denied. Moot.


text:
    STATE of Louisiana ex rel., Leroy RUSSELL v. CLERK OF COURT OF THE 1ST JUDICIAL DISTRICT COURT FOR the PARISH OF CADDO.
    No. 83-KH-1899.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Leroy Russell, applying for writ of mandamus. First Judicial District Court, Parish of Caddo. No. 100-898 and 104-779.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Glenn BRENT v. McKAY, Judge, Criminal District Ct.
    No. 83-KH-1903.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Glenn Brent, applying for remedial writ. Criminal District Court, Parish of Orleans. No. 292-633.

Denied. Relator should again submit his petition to the district court.


text:
    STATE of Louisiana ex rel., Dwight CHRISTOPHER v. 19TH JUDICIAL DISTRICT COURT PARISH OF E. BATON ROUGE.
    No. 83-KH-1916.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Dwight Christopher, applying for writ of mandamus. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 1-77-738.

Denied. Moot.


text:
    STATE of Louisiana v. Darrell JACKSON.
    No. 83-KH-1960.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Darrell Jackson, applying for certio-rari, or writ of review. Fourteenth Judicial District Court. Nos. 10736-79 and 4697-82. Court of Appeal, Third Circuit. No. K83-811. Parish of Calcasieu.

Denied. Relator’s request for appeal must first be presented to the district court.


text:
    STATE of Louisiana v. Michael J. STOMA.
    No. 83-KK-2050.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Michael J. Stoma, applying for supervisory writs. Eighteenth Judicial District Court. No. 71750. First Circuit Court of Appeal. No. 83-KW-1091. Parish of West Baton Rouge.

Denied.


text:
    STATE of Louisiana ex rel. Isaac JONES, Jr. v. COURT REPORTER CRIMINAL DISTRICT COURT PARISH OF ORLEANS.
    No. 83-KH-2148.
    Supreme Court of Louisiana.
    Oct. 18, 1983.
   In re Isaac Jones, applying for writ of mandamus. Criminal District Court, Parish of Orleans. No. 294-610.

Denied. Relator must first file in the district court and wait a reasonable length of time for the court’s ruling before applying for mandamus.


text:
    Robert Wayne WILLIAMS v. John T. KING, Secretary of Department of Corrections and Ross Maggio, Warden, State Prison.
    No. 83-KP-2142.
    Supreme Court of Louisiana.
    Oct. 18, 1983.
   In re Robert Wayne Williams, applying for writ of habeas corpus, stay order. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 1-79-356 Section IV.

Denied.


text:
    STATE of Louisiana v. Perry M. HEBERT.
    No. 83-KH-2170.
    Supreme Court of Louisiana.
    Oct. 21, 1983.
   In re Perry M. Hebert, applying for writ of habeas corpus. Fourteenth Judicial District Court. Parish of Calcasieu, Third Circuit Court of Appeals. No. 15019-82.

Granted for the sole purpose of transferring to the Court of Appeal, Third Circuit.


text:
    LOUISIANA State ex rel. Elden R. JOHNSON v. STATE of Louisiana CRIMINAL DISTRICT COURT.
    No. 83-KH-2183.
    Supreme Court of Louisiana.
    Oct. 24, 1983.
   In re Elden R. Johnson, applying for remedial writ. Criminal District Court, Parish of Orleans. No. 294-924.

Granted for the sole purpose of transferring to the Court of Appeal, 4th Circuit.


author: WATKINS, Judge. SHORTESS, Judge, PER CURIAM.

text:
    James L. MARTIN v. PALA, INC. and Aetna Casualty & Surety Company.
    No. 82 CA 0829.
    Court of Appeal of Louisiana, First Circuit.
    April 6, 1983.
    On Rehearing Sept. 26, 1983.
    Patrick W. Pendley of Freeman & Pend-ley, Ltd., Plaquemine, for plaintiff-appellant, James L. Martin.
    John W. Perry, Jr. of Owen, Richardson, Taylor, Mathews & Atkinson, Baton Rouge, for defendant-appellee, Pala, Inc., and Aet-na Casualty & Surety Co.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

This is an action brought by James L. Martin for workmen’s compensation against Pala, Inc., the employer, and Aetna Casualty & Surety Company, its workmen’s compensation insurer. Mr. Martin’s medical expenses while in the Rhodes J. Spedale Hospital in the sum of $4,882.30, and workmen’s compensation weekly benefits in the sum of $3,108.00 through August 25, 1980, were paid voluntarily by Aetna. The accident causing the alleged disability occurred about March 7, 1980. Mr. Martin brought the present action for additional workmen’s compensation benefits on the basis of total and permanent disability, and additional medical expenses. The trial court rendered judgment for defendants, dismissing plaintiff’s suit. It appears from the briefs of counsel on appeal that Mr. Martin has since died. However, the record does not so indicate. We affirm the decision of the trial court.

Mr. Martin was employed as an electric welder by Pala, Inc. On the date of the accident, he stepped onto a plank of plywood in a ditch to weld a pipe. The plywood shifted, and Mr. Martin, who was 70 years of age, fell, pulling his flank. Mr. Martin experienced pain for several days after he fell but attempted to work. Finally, he consulted Dr. James A. Freeman, a physician and surgeon, believing he had aggravated a preexisting scar resulting from the removal of kidney stones. The scar was found not to have reopened. He was advised to use a heat lamp. The pain became so severe that Mr. Martin was placed in the hospital. On undergoing tests, Mr. Martin was found to have multiple myeloma, which, basically speaking, is a cancerous condition of the blood. It is believed by the physicians who gave medical testimony that this condition hindered the healing process of the flank. The pain persisted and grew worse. After several months, it was discovered that Martin had a massive malignant epidural tumor affecting the T-ll nerve root on the left. Surgery was performed to excise the tumor. The medical testimony agrees that (1) the myeloma and the malignant tumor were unrelated, and (2) neither condition was caused by the fall Martin suffered while at work.

On November 20, 1980, Aetna received a written report from Dr. Derwood Facundus stating that he had examined Martin on October 28, 1980, and that the pain attendant upon the fall had disappeared. The other medical testimony confirms that his favorable result ensued upon removal of the epidural tumor.

Mr. Martin’s condition remained stable for several months and he was without pain. Then back pain developed. The medical testimony attributed the back pain to the combined effect of the myeloma and recurrence of the tumor. At the time of the trial, December 22, 1981, Martin was on the verge of death, if the verbal statement presented by his counsel when the case was submitted is correct. The case was submitted on depositions, affidavits and other documentary evidence. As we have stated, the trial court rendered judgment dismissing plaintiff’s suit.

In Haughton v. Fireman’s Fund Am. Ins. Companies, 355 So.2d 927 (La.1978), plaintiff fell while at work, and broke his thigh bone. It was discovered that the bone was made brittle by multiple myeloma, which was Mr. Martin’s condition in the present case. The plaintiff in Haughton was unable to return to work, although his testimony differed as to whether the fall or the myeloma was the cause of the disability. The court stated:

When there is an accident and a resulting disability without any intervening cause, it is presumed that the accident caused the disability. This simple guide, plainly stated in Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1969), we affirmed in Johnson v. The Travelers Insurance Co., 284 So.2d 888 (La.1973) and reaffirmed in Gradney v. Vancouver Plywood Co., 299 So.2d 347 (La.1974). The presumption is not irre-buttable, but its effect is to shift the burden of proof to the defendant. This burden was not enforced by the courts below, and the defendant has failed to prove that Haughton’s accident did not cause his disability.” (355 So.2d 927, 929)

The judgment of the Court of Appeal, which had affirmed the trial court, was reversed, and compensation benefits were awarded by the Supreme Court.

The Louisiana Supreme Court reversed the Court of Appeal and awarded benefits, on the basis of similar reasoning, in Hammond v. Fidelity & Casualty Company of New York, 419 So.2d 829 (La.1982). In that ease plaintiff seriously bruised his upper left arm while driving a truck on the job. The plaintiff’s condition in Hammond grew steadily worse, and at last a biopsy was performed, which resulted in the physician and pathologist finding a malignant growth in the left upper arm. An operation was subsequently performed to remove the growth, and plaintiff remained disabled because he had lost almost all strength in the arm. The Supreme Court held that workmen’s compensation benefits were due on the basis of total and permanent disability, although medical testimony indicated the tumor was preexisting, but subclinical, and that the accident did not affect the eventual progression of the tumor. The Court stated that as the accident made manifest a condition previously unnoticed, and that as the worker was rendered permanently disabled, he was entitled to workmen’s compensation benefits for total and permanent disability, unless there was an intervening cause. The Court found no intervening cause and, as stated, awarded benefits.

In the present case, the pain in Martin’s flank disappeared after the removal of the epidural tumor. Pain reappeared in another location only after the passage of several months in which he suffered no pain in any part of his body. This worsening of his condition was attributed solely to the mye-loma and the return of the malignancy. We find that the operation, which ended the pain resulting from the work-related accident, broke the chain of causation beginning with that accident, and two different forces, the myeloma and the malignancy, in no way resulting from the accident, caused the subsequent worsening of Martin’s condition. In Haughton and Hammond the chain of causation was straight and unbroken. In the present case the chain of causation was broken by the operation to remove the epidural tumor and the almost immediate disappearance of pain. Thus, the accident did not produce any disability beyond the time of the operation. Any disability after that time was non-work related. It was at the time of the operation, August 25, 1980, that compensation benefits were terminated. The trial court obviously found that the “cut-off” date of August 25, 1980, was proper, and denied further benefits for the reason that disability after that time was not caused by the accident.

As the case was submitted on depositions, if we were to follow the holdings of other circuits, we would be compelled to refrain from applying the manifest error, clearly wrong test (Canter v. Koehring, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978)), and to decide the case as trier of fact, see Abu Ali v. Guillory, 271 So.2d 882 (La.App. 4th Cir.1973), and the cases cited therein; also Farris v. Ducote, 293 So.2d 589 (La.App. 3d Cir.1974), writ refused 295 So.2d 814 (La.1974); and Langford v. Calcasieu Parish Police Jury, 396 So.2d 956 (La.App. 3d Cir.1981). However, in our view the decision of the trial court was not merely free from manifest error, but was founded upon the irrefutable factual conclusion that disability beyond August 25, 1980, did not result from the accident and, thus, was clearly correct. The trial court did not assign written reasons for judgment. However, we hold that Haugh-ton and Hammond (the latter having been decided after the date of the trial court’s judgment) are inopposite because in the present case the chain of causation was broken, unlike Haughton and Hammond. We, therefore, find that the trial court was correct in its apparent decision not to apply Haughton to the factual situation presented to it in the present case. Because disability beyond August 25,1980, was the product of causes independent of the work-related accident, further benefits were properly denied.

The judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.

SHORTESS, J., dissents and assigns reasons.

SHORTESS, Judge,

dissenting.

I respectfully dissent.

The real issue involved herein is whether plaintiff’s problems after his laminectomy were causally related to the accident. Our Supreme Court recently commented in Hammond v. Fidelity & Cas. Co. of New York, 419 So.2d 829 (La.1982):

“A plaintiff-employee’s disability will be presumed to have resulted from an employment accident if before the accident the plaintiff-employee was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves, provided that the evidence shows that there is a reasonable possibility of causal connection between the accident and the disabling condition.” (citations omitted) 419 So.2d at 831 [Emphasis ours]

Prior to this accident, plaintiff was in good health. However, after the accident, plaintiff began to manifest problems in the flank area, where he fell, and also pain in his back and legs. After closer analysis, it was discovered that he had multiple myeloma and an epidural tumor which was surgically removed by a laminectomy performed on August 22, 1980. There is no question that this particular accident “contributed to the plaintiff’s disability by making manifest [these] symptoms previously unnoticed.” Hammond, supra at 838. Plaintiff showed marked improvement immediately following the surgery, and Aetna felt that the problems related to the flank injury were resolved, and thus discontinued benefits after August 25, 1980.

However, plaintiff’s problems were not resolved. The most pertinent information in this record regarding his condition after surgery was the deposition of Dr. Frederic T. Billings, the cancer specialist who continued treating plaintiff for his problems. Dr. Billings stated that plaintiff’s back pain lessened after the operation in August. He stated that after his radiation treatment in September, he was “really symptom free,” and a report in October stated that plaintiff had “rapid and complete relief of his pain following surgery,” which Billings described as incredible. However, his chronology of plaintiff’s condition after August was as follows:

“And I wrote in my office notes on September 9 — September the 8th, says, ‘Appetite is improving. Pain is better but still present. Now he has pain of the right hip.’ On September 26th, ‘Doing better. Back pain better.’ October 15th, ‘Weight increasing, eating well, feeling better. Postnasal drip. Feels good otherwise. Back pain improved.’ October 22nd, ‘Back pain better.’ November 5th, ‘Feels better.’ December 17th, ‘Pain in back radiating to the left flank. Picked up an acetylene bottle.’ January 21st, ‘Some shortness of breath. No fever or cough.’ And I guess that was following his discharge from the hospital.”

On October 22, plaintiff also began chemotherapy for his myeloma. On December 17, plaintiff complained of pain in his back radiating to the left flank, the area injured in the accident. Plaintiff was again hospitalized in January of 1981 for pneumonia, which patients suffering from multiple myeloma are prone to contract. In April of 1981, plaintiff was hospitalized for increasing pain at the upper end of his laminecto-my scar, and from this point his back problems never substantially subsided before the date of his death.

Dr. Billings stated that his “bottom line” was that he did not feel the fall exacerbated the tumor, but that it clouded the diagnosis of plaintiff’s problems. He further admitted that the kidney stones, myeloma, or the tumor could have independently caused the back pain, or a combination of all three, plus the fall; that plaintiff’s back hurt more after the fall; that the fall was more incidental than the diagnosis; that he did not think the fall exacerbated the tumor, but it could have; and that any of plaintiff’s conditions could have been exacerbated by trauma and gone undiagnosed until trauma. Billings stated that he felt the reason for the persistent pain after the surgery was the epidural carcinoma and that the January and April hospital stays were not related to the accident. However, he also commented, “it’s hard to know whether or not he would be where he’d be if only the fall were the problem.”

The Supreme Court stated in Hammond, supra:

“When the doctors speak of cause they are essentially speaking of etiology — the origin of disease; what initially causes a disease. When courts and lawyers speak of cause they are concerned with the question of whether the particular incident in question contributed to the plaintiff’s disability by making manifest symptoms previously unnoticed. ‘Causation is not necessarily and exclusively a medical conclusion. It is usually the ultimate fact to be found by the court, based on all the credible evidence.’ Haughton v. Fireman’s Fund American Insurance Companies, 355 So.2d 927, 928 (La.1978).
“Furthermore, ‘[i]t is immaterial that the disability could have been brought on by causes other than a work-related trauma, if, in fact, trauma on the job which meets the standards of accidental injury is a disabling factor . . .. ’ Parks v. Insurance Company of North America, 340 So.2d 276, 281 (La.1976). See Allor v. Belden Corp., supra [393 So.2d 1233] at 1237 [La.1981]; Bertrand v. Coal Operators Casualty Co., supra.” 419 So.2d at 832-833.

Plaintiff was a relatively healthy individual before this accident. Afterwards, symptoms manifested themselves, which did not sufficiently subside after August 25, 1980, so as to allow a segregation of the causal connection between the accident and these subsequent problems. Plaintiff felt better and then worse, but never completely relieved of symptoms. The facts surrounding plaintiff’s medical history support a finding that the accident was a legal cause of plaintiff’s problems. There was certainly a reasonable possibility of a causal connection between the accident and the disabling condition. Hammond, supra. I would find Aetna responsible for payment of benefits through plaintiff’s death.

Accordingly, I dissent.

ON REHEARING

PER CURIAM.

After a thorough reconsideration of the facts and law of this case, we adhere to our original recitation of facts, as amplified by the dissent, but now find that the analysis and factual conclusions set forth in the dissent are correct. Plaintiff is, therefore, entitled to recovery.

The original opinion of this court is set aside and the judgment of the trial court is reversed, and the cause remanded to determine the period of disability before death.

ORIGINAL OPINION SET ASIDE, JUDGMENT REVERSED, AND CASE REMANDED.


author: PER CURIAM.

text:
    WHEAT v. CARUTHERS.
    No. 82 CA 0382.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1983.
   PER CURIAM.

In its application for a rehearing, the plaintiff, Wheat, Incorporated, contends that Glynn Caruthers is not an indispensable party because in a possessory action entitled “Samuel G. Caruthers versus Darryl J. Cavalier, et al., No. 51,012 on the docket of the Twenty-second Judicial District Court, Parish of St. Tammany, Louisiana,” Mr. Caruthers had dismissed his action with prejudice. Evidence of the suit and its dismissal were not before the Court on the original hearing, 428 So.2d 1037. The record does not reflect that the posses-sory action or its dismissal were ever introduced or filed into evidence in the present action. This Court cannot review evidence that is not in the record, and cannot receive evidence so as to supplement the record. Good v. Louisiana Commission on Governmental Ethics, 370 So.2d 123 (La.1979), writ denied 371 So.2d 836 (La.1979).

Thus, we deny the rehearing.

REHEARING DENIED.


author: CRAIN, Judge.

text:
    STATE of Louisiana v. Carl KORMAN.
    No. 83 KW 0675.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 24, 1983.
    Ossie Brown, Dist. Atty. by Joseph Lot-wick, Asst. Dist. Atty., Baton Rouge, for plaintiff.

      John B. Shea, Beard & Shea, Baton Rouge, for defendant.
    Before PONDER, SAVOIE and CRAIN, JJ.
   CRAIN, Judge.

This case involves a jury conviction of defendant of manslaughter, subsequently overturned by the trial judge when he granted a new trial based on insufficient evidence to support the verdict. The effect of granting the new trial on this basis amounts to an acquittal because of the double jeopardy holding of Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). •

The case points out the difficulties in which we have become mired because of Louisiana’s interpretations and application of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1977). Jackson held that for purposes of federal habeas corpus review, sufficiency of the evidence is a question of law reviewable by the appellate courts. Louisiana’s Constitution, Article V, Sec. 10(B) prohibits appellate court review of facts. Formerly only no evidence was reviewable as a question of law. State v. Youngblood, 321 So.2d 333 (La.1975). In State v. Mathews, 375 So.2d 1165 (La.1979) the Louisiana Supreme Court used Jackson as a springboard to create appellate fact review of sufficiency of the evidence in criminal cases in spite of the Louisiana constitutional provision to the contrary. See, concurring opinion of Judges Covington, Lanier and Alford in State v. Ruple, 426 So.2d 249 (La.App. 1st Cir.1983).

When rules of law established by the people through the constitution and legislative process are judicially changed, the cleaning up process is sometimes quite lengthy. Thus, the effect of our present judicially created review of fact on C.Cr.P. Art. 858 has not been resolved. That article provides that,

“Neither the appellate nor supervisory jurisdiction of the supreme court may be invoked to review the granting or the refusal to grant a new trial, except for error of law.”

The transfer of criminal jurisdiction from the supreme court to the courts of appeal makes C.Cr.P. Art. 858 applicable to the courts of appeal. La. Const. Art. 5, Sec. 10(A).

The trial court has granted a new trial based on insufficient evidence. The jurisprudence holds that C.Cr.P. Art. 851(1), which gives the trial court the right to grant a new trial when the “. . . the verdict is contrary to the law and the evidence ...” also gives the trial court the right to review the legal sufficiency of the evidence. State v. Plummer, 281 So.2d 716 (La.1973). Formerly, the result of this holding would be a new trial. Since Hudson, supra, the result is a verdict of acquittal if the trial court does not think the state has produced sufficient evidence to prove guilt. Because of this result the legislature in 1982 enacted C.Cr.P. Art. 821. That article provides that where the trial court finds the evidence legally insufficient to support the guilty verdict applying the Jackson standard, the appropriate remedy is a judgment of acquittal. This judgment is reviewable by the appellate courts on application of the state, and the appellate courts are likewise to use the Jackson standard.

There is a distinction between legally insufficient evidence and the weight of the evidence, both in substance and in the manner of review. This distinction was recognized by the United States Supreme Court in Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652, (1982), where at 102 S.Ct. pg. 2213 the court stated,

“After examining the policies supporting the double jeopardy clause, we hold that a reversal based on the weight, rather than the sufficiency of the evidence permits the State to initiate a new prosecution.”

It is our view, and we so hold, that only the weight of the evidence can be reviewed by the trial judge in a motion for new trial under C.Cr.P. Art. 851. The trial judge can grant a new trial only if dissatisfied with the weight of the evidence, and in so determining the trial judge makes a factual review as a thirteenth juror rather than under the Jackson standard. If he grants a new trial because of the weight of the evidence, that new trial can proceed without being barred by double jeopardy. Tibbs v. Florida, supra. Such a determination by the trial judge is not subject to review by the appellate courts because of Louisiana Constitution Article 5, Sec. 10(B) and C.Cr.P. Art. 858.

On the other hand, if the trial judge finds the evidence legally insufficient, he must do so under C.Cr.P. Art. 821 which decision is subject to appellate review on application of the state. The trial judge cannot act as a thirteenth juror in reviewing a jury verdict under C.Cr.P. Art. 821, but must review under the much more restrictive Jackson standard.

Post Jackson, supra, insufficient evidence to support the verdict was determined by the trial court under C.Cr.P. Art. 851(1). This now being prohibited the proper article to review weight of the evidence should be C.Cr.P. Art. 851(5). See State v. Hudson, 378 So.2d 1294 (La.1979) concurring opinion by Justice Tate at pg. 1298. This falls in line with the jurisprudence holding a trial court decision under C.Cr.P. 851(5) presents nothing for appellate review. It also insures that only the trial court can ever review the evidence as a thirteenth juror. It also should warn the trial court that new trials based on such motions are not favored by law. See, State v. Vinet, 352 So.2d 684 (La.1977).

In this case the trial judge has held the evidence legally insufficient, but has granted a new trial. This he cannot do. He must either grant a verdict of acquittal under C.Cr.P. Art. 821 so we can review his decision, or he must find that he is dissatisfied with the weight of the evidence and grant a new trial under C.Cr.P. Art. 851(5). Otherwise, he must let the jury verdict stand.

Accordingly, we make the alternative writ peremptory, and order that the ruling of the trial court granting a new trial based on insufficient evidence be voided, the jury verdict reinstated, and the matter proceeded with in accordance with law.

      . The Jackson standard actually provides for very limited review by both the trial and the appellate court. It requires viewing the evidence in the light most favorable to the prosecution, and so viewed asks whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Thus, the Jackson standard “... gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, and to draw reasonable inferences from basic facts to ultimate facts ... ”. Jackson v. Virginia, supra, 99 S.Ct. at pg. 2789.
      Thus, Jackson does not permit trial or appellate courts to act as thirteenth jurors in reviewing jury findings for sufficiency of the evidence.

      . C.Cr.P. Art. 851(5) provides the trial court “... shall grant a new trial whenever:

      (5) The court is of the opinion that the ends of justice would be observed by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.”

      . We specifically note that C.Cr.P. Art. 821 is the latest expression of the legislative will and do not believe the Jackson standard can be extended by R.S. 15:438 to set a different basis for assessing evidence as suggested by the Louisiana Supreme Court in State v. Lenon Williams, 423 So.2d 1048 (La.1982) and State v. Graham, 422 So.2d 123 (La.1982). This results from the distinction between legally insufficient evidence, and the weight of the evidence sufficient to satisfy the trial court. The Louisiana Supreme Court suggested in Williams and Graham that in reviewing sufficiency of the evidence to uphold a conviction based on circumstantial evidence, the appellate court would not defer to the jury’s determination of the sufficiency of the circumstantial evidence but would “. .. follow its own determination of whether there is a reasonable hypothesis of innocence . .. ”. State v. Graham, supra, at pg. 129.
      The legislature has spoken. In cases where the appellate court can review facts at all, which are cases under C.Cr.P. Art. 821, the Jackson standard must be applied. Accordingly, the appellate court must defer to the findings of the jury and cannot sit as a “thirteenth juror.”

      .The comments under C.Cr.P. Art. 851 note with reference to Section 5 that it is a plenary grant of authority to a trial judge to do justice even when the motion is not based on a legal ground for a new trial. This certainly contemplates a weighing of the evidence by the trial judge. However, the weighing of evidence by appellate courts has been specifically prohibited. Recognition of the dual standard and the restrictions on each should restrain the appellate court from masking reversals grounded on the weight of the evidence as reversals based on insufficient evidence. In this respect, see State v. Savoy, 418 So.2d 547 (La.1982).


author: GRISBAUM, Judge.

text:
    James A. RAY v. DEFELICE MARINE CONTRACTORS, INC., Individually and as a Division of Gulf Fleet Marine Operations, Inc.
    No. 83-CA-302.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 13, 1983.
    Rehearing Denied Nov. 17, 1983.
    Writ Denied Jan. 27, 1984.
    T. Peter Breslin, Kenner, for plaintiff-appellant.
    George W. Healy, III, New Orleans, for defendant-appellee.
    Before BOUTALL, KLIEBERT and GRISBAUM, JJ.
   GRISBAUM, Judge.

Appellant, James A. Ray (Ray), filed suit against Defelice Marine Contractors, Inc. individually and as a division of Gulf Fleet Marine Operations, Inc. (Defelice) for $2,100,000 in damages for a maritime injury resulting in the amputation of his left leg and disability of his right leg. Defelice denied liability and pleaded the action was barred by a $115,000 settlement executed by Ray. Trial was limited to the validity of the release. This appeal is from the trial court’s finding the release to be valid.

The issue is whether Ray had a full understanding of his rights when he executed the release. We reverse.

On September 29, 1978, Ray, while employed by Defelice as a seaman, was transferring from a barge to a boat when he was crushed between the vessels and received severe injuries to both of his legs. Ray was treated at Defelice’s expense by physicians of his choice and was paid $100 per week maintenance. Defelice also provided Ray with $3300 to purchase a car. Following his discharge from the hospital, Ray lived with friends in Houma, Louisiana but in December of 1978, Ray moved to Florida to stay with his mother. Dr. Samuel Steiner of Homestead, Florida assumed responsibility as the treating orthopedist and hospitalized Ray in February of 1979 for corrective surgery. During this hospitalization, Dr. Steiner called in a psychiatrist to see Ray because of behavioral difficulties. He was seen by Dr. Bernard Savariego who recommended Ray undergo limited psychotherapy. On May 7, 1979, Dr. Steiner wrote to Defelice’s house counsel, Mr. Joseph McCusker, advising Ray had achieved maximum cure but also stated Ray might require additional surgery. After being discharged as able to return to work, Ray contacted Joseph McCusker and met with him to discuss a settlement. Ray was ultimately offered $115,000 and the promise of a job with Defelice. After accepting these terms, Ray signed a release at the settlement conference.

Within eight months of the settlement, Ray spent most of the settlement money. He remained in Florida taking odd jobs until January of 1981 when he returned to work for Defelice. In November of 1981, due to an infection on the stump of his left leg, Ray required a revised amputation above the knee. Several months later, he quit his job with Defelice and returned to Florida to work.

In addressing the question of whether Ray had a full understanding of his rights Ray asserts the testimony of several psychiatrists shows Ray did not emotionally understand the consequences of his injury. Dr. Savariego, the only psychiatrist who saw Ray prior to the settlement, stated “psychiatric evaluation did not show evidence of psychosis or depression” but stated plaintiff was “mildly grandiose as he described his present situation and future plans.” He explained the term “mildly grandiose” has “no diagnostic significance within it. It’s a descriptive term meaning that Ray had an exaggerated view of himself under the circumstances.” Counsel for Ray and for Defeliee executed a joint stipulation that because Dr. Savariego did not see Ray at the time of the settlement he had no opinion as to whether Ray was or was not in a position to enter into a final settlement for his injuries on May 17, 1979. Dr. Marilyn Skinner, a psychiatrist, was called in by Ray’s second treating orthopedist, Dr. Manale, because Dr. Manale perceived Ray to be having difficulty dealing with his injury. Dr. Skinner saw Ray approximately eight times, commencing November 1981, which was two and one-half years after the settlement. She testified Ray “was depressed” and when asked what was Ray’s psychological state at the time that she first saw him she stated:

[I]t is not abnormal for a person to deny the loss of his leg and say, “You know, I don’t think this is so bad.” For the first day, and then, of course, it kind of settles in and then they begin to experience a depression which is a normal depression and they work through that depression just as one has a normal period of mourning from the loss of a wife or a husband which society and medicine which would think was strange if a person didn’t have a normal period of mourning for a loss and they would consider that a very serious sign that something was suspiciously very wrong, but after a period of time, that loss is appropriately mourned and accepted and worked through — whether a psychological loss of a partner or the physical loss of a leg and/or the emotional loss attached to the physical loss, if that isn’t worked through at some time, then it is not a normal depression — a normal grief reaction — it becomes a clinical depressive illness, per se — a pathological phenomenon.

When asked as to Ray’s ability to understand on the date that he executed the release she stated:

My opinion is that as far as being able to read it, it is rather complicated legal reading for a poor physician but, I think, he is quite capable of understanding intellectually what he is reading — quote, unquote — and I think he is capable of everday acts — signing checks; going to the grocery store; reading; writing; talking to people; saying “yes” or “no” and even capable of making a contract. However, I do not think that he was capable of appreciating the consequences of what he was doing... .

In further elaborating she stated:

[I]t is inconceivable to me that he could have entered into a contract that would have actually taken into account the genuine ramifications which he himself did not take into account in any meaningful emotional way.

In further testifying she stated:

Obviously some one who is suffering from some real injury who at some various level of defensive denial denies the injury, is not in full appreciation of reality as you and I see it and, I think, that, of course, any time that you are excluding some sense of reality even if it is only in a symbolic way you limit your judgment, you limit your data.

Finally, Dr. Skinner frankly stated, “I would certainly say anything I have said about the patient prior to my seeing him should be taken with as many as grains of salt as you may wish to take it with” and that she was speculating as to Ray’s emotional state at the time of the settlement. Dr. Herman Colomb, a psychiatrist, saw Ray once at the request of Defelice’s counsel. His opinion was Ray was an immature, impulsive individual who intellectually knew the probable consequences of his acts. Dr. Colomb further stated, “I don’t think any nineteen year old, especially an immature nineteen year old, can emotionally appreciate such a thing.” He finally stated he did not think Ray was depressed and his destructive behavior had been going on since his teens. Defelice argues there is a difference between a failure to appreciate the consequences of an injury and a mistake of fact as to the existence of an injury. In the former circumstances, the release may not be set aside. Robles v. Trinidad Corporation, 270 F.Supp. 570 (S.D.N.Y.1966). They further argue Ray knew the nature and meaning of the terms of the release at the time of its execution as evidenced by the fact Ray testified he understood the terms and understood once he signed and received the money it was “the end of the ballgame” insofar as any accident or injury which occurred during the course of his employment with Defelice. Also, all of the psychiatrists agreed Ray intellectually understood the terms of the release.

The applicable legal principles which guide this court were described in 1823 by Justice Story, stating:

[Seamen] are emphatically the wards of the admiralty; and though not technically incapable of entering into a valid contract, they are treated in the same manner, as courts of equity are accustomed to treat young heirs, dealing with their expectancies, wards with their guardians, and cestuis que trust with their trustees .... If there is any undue inequality in the terms, any disproportion in the bargain, any sacrifice of rights on one side, which are not compensated by extraordinary benefits on the other, the judicial interpretation of the transaction, is that the bargain is unjust and unreasonable, that advantage has been taken of the situation of the weaker party, and that pro tanto the bargain ought to be set aside as inequitable.. . . And on every occasion the court expects to be satisifed, that the compensation for every material alteration is entirely adequate to the diminution of right or privilege on the part of the seamen. Harden v. Gordon, 11 Fed.Cas. at pages 480, 485, No. 6,047.

Over one hundred years later the Supreme Court in Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed.2d 239 (1942), a seaman’s release case, reaffirmed the validity of the above pronouncements and established the standards by which such bargains were to be judged:

The analogy suggested by Justice Story . .. between seamen’s contracts and those of fiduciaries and beneficiaries remains, under the prevailing rule treating seamen as wards of admiralty, a close one. Whether the transaction under consideration is a contract, sale, or gift between guardian and ward or between trustee and cestui, the burden of proving its validity is on the fiduciary. He must affirmatively show that no advantage has been taken; and his burden is particularly heavy where there has been inadequacy of consideration.
The wardship theory has, as was recognized by the courts below, marked consequence on the treatment given seamen’s releases. Such releases are subject to careful scrutiny.... We hold, therefore, that the burden is upon one who sets up a seaman’s release to show that it was executed freely, without deception or coercion, and that it was made by the seaman with a full understanding of his rights. The adequacy of the consideration and the nature of the medical and legal advice available to the seaman at the time of signing the release are relevant to an appraisal of this understanding.... (Footnotes omitted.)

Recognizing the obligation to carefully scrutinize this seaman’s release and the special relationship a seaman holds as a ward of the court, this court’s interpretation of determining whether Ray had a full understanding of his rights includes not only an intellectual understanding but also an emotional understanding. This case involves a nineteen year old seaman who, from the reports of Dr. Savariego, Dr. Skinner, and Dr. Colomb, was an immature, impulsive and at least grief-stricken young man. Even though Dr. Skinner saw Ray some two and one-half years after the signing of the release, this court was impressed with her “qualified opinion” that it was inconceivable to her that Ray could have entered into a contract taking into account the genuine ramifications of his act in any meaningful emotional way. It was also her opinion Ray had “limited judgment.” This court has also taken into account that in spite of Ray’s mother, father, and friends recommending he obtain his own legal counsel, the fact remains prior to and including the time of the execution of the release, he did not have his own legal counsel. Coupled with these factors is the realization Ray released his rights for a very serious injury which, pending proof of liability and numerous other factors, could be valued at a sum several times more than the settlement.

This case does not present a situation of a medical miscalculation of the consequences of an injury but, rather, an emotional inability to understand the consequences of an injury. This court does not find a failure to disclose any known material medical facts nor fraud, deception, or coercion. However, when considering the totality of the circumstances, this court finds at the time of the execution of the release, Ray did not have a full understanding of his rights. Therefore, the release ought to be set aside as inequitable.

For the reasons assigned, we reverse the judgment of the trial court and assess all costs of this appeal to appellee.

REVERSED.