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+ "{\"id\": \"10026308\", \"name\": \"LEWIS v. LIBERTY INDUSTRIAL LIFE INS. CO.\", \"name_abbreviation\": \"Lewis v. Liberty Industrial Life Ins. Co.\", \"decision_date\": \"1936-02-24\", \"docket_number\": \"No. 16216\", \"first_page\": \"143\", \"last_page\": \"146\", \"citations\": \"166 So. 143\", \"volume\": \"166\", \"reporter\": \"Southern Reporter\", \"court\": \"Louisiana Court of Appeal\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T17:42:23.333188+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"LEWIS v. LIBERTY INDUSTRIAL LIFE INS. CO.\", \"head_matter\": \"LEWIS v. LIBERTY INDUSTRIAL LIFE INS. CO.\\nNo. 16216.\\nCourt of Appeal of Louisiana. Orleans.\\nFeb. 24, 1936.\\nLewis R. Graham and H'arry R. Cabral, both of New Orleans, for appellant.\\nLoys Charbonnet and E. B. Charbonnet, Jr., both of New Orleans, for appellee.\\nRehearing denied March 23, 1936. Writ of error granted April 27, 1936.\", \"word_count\": \"2361\", \"char_count\": \"14077\", \"text\": \"McCALEB, Judge.\\nOn July 3, 1922, the defendant, Liberty Industrial Life Insurance Company, insured one. Lillian Fisher against disability from sickness or accident, subject to certain conditions expressed in the policy contract.\\nDuring the year 1931, while the insurance policy was in force and effect, Lillian Fisher became insane. On May 27, 1931, she was committed to the East Louisiana hospital at Jackson, La., at which institution she has been continuously confined as a patient therein.\\nIn the proceedings entitled. \\\"Interdiction of Lillian Fisher,\\\" No. 206,079 of the civil district court, the insured was interdicted and the plaintiff herein, Alma-Lewis, was appointed and qualified as curatrix.\\nPlaintiff, in her representative capacity, filed this suit against the insurer, claiming health benefits under the policy for the years 1931, 1932, 1933, and 1934, together with double indemnity and attorney's fees.\\nThe insurer, among other things, based its chief defense upon two premises:\\nPrimarily, that insanity is a disability of the mind and not of the body, and therefore such affliction, although causing permanent, total disability, was neither contemplated by the parties nor covered by the terms of the policy.\\nSecondarily, that Lillian Fisher, though insane, was not ill physically, and that the policy only covers illness in case the insured is \\\"necessarily confined to bed.\\\"\\nThe district judge found for the defendant insurer, being of the opinion that the policy \\\"was never intended to cover a permanent disability of the mind, causing insured to become insane, without physical disability.\\\"\\nThe facts are not in dispute. The medical evidence shows that the insured is suffering from dementia prsecox, hyper-phrenic type. This is described to be a mental disturbance subjecting the afflicted person to hallucinations. Because of the malady affecting her mind, the insured is unable to engage in pursuits of any sort and is totally incapacitated. There are no pathological changes in the brain in persons suffering- with this type of insanity.\\nNotwithstanding the insured's mental derangement, she is physically in good health- and has never been confined to bed by reason of her apathy.\\nThe policy in this case insures \\\"against disability from sickness and accident.\\\" Insanity is not excluded.\\nBouvier's law dictionary defines sickness as follows: \\\"By sickness is understood any affection of the body which deprives it temporarily of the power to fulfil its usual functions. It has been held to include insanity. L.R. [1872-3] .8 Q.B. 295.\\\"\\nBallentine's law dictionary says: \\\"Insanity has always been considered a disease and comes strictly.within the meaning of the word sickness\\\" \\u2014 citing Robillard v. Societe St. Jean Baptiste de Centreville, 21 R.I. 348, 43 A. 635, 45 L.R.A. 559, 79 Am.St.Rep. 806.\\nRuling Case Law, vol. 14, p. 1249, reads: \\\"Insanity is 'sickness or other disability' within a health policy, \\\" \\u2014 citing McCullough v. Expressman's Mut. Ben. Ass'n, 133 Pa. 142, 19 A. 355, 7 L.R.A. 210.\\nWe hold that insanity is a \\\"sickness\\\" included in that term as used in the policy contract now before us. See Donlen v. Fidelity & Casualty Co., 117 Misc. 414, 192 N.Y.S. 513; American Nat. Ins. Co. v. Denman (Tex.Civ.App.) 260 S.W. 226.\\nHaving found that the disease suffered by the insured is a sickness within the terms of the policy, does the fact that the insured is not confined to bed bar her recovery ?\\nThe policy provides \\\"weekly benefits for sickness will only be paid for each period of 7 consecutive days that the insured is, by reason of illness, necessarily confined to bed and that he shall remain under the professional care of a duly licensed and practicing physician.\\\" (Italics ours.)\\nThe above-quoted provision is clear and unambiguous. It can mean only just what it says. The insured may, under this condition, suffer many known ailments, but liability of the insurer will only attach in the event the insured is necessarily confined to bed.\\nCounsel for plaintiff asserts that our Supreme Court has held, in the case of Newton v. National Life Ins. Co., 161 La. 357, 108 So. 769, 770, that the test of liability in health policies is disability from sickness rather than actual confinement to bed.\\nPrior to a discussion of the Newton Case, supra, it is helpful to briefly review some of the holdings by other courts in respect to the causes and extent of the liability of the insurer in health insurance contracts.\\nCorpus Juris, vol. 29, p. 280, informs: \\\"With reference to sickness indemnity policies, there may be said to be three degrees of sickness, namely: (1) Where the patient is confined to his bed. (2) Where he is not confined to his bed, but is confined to his house. (3) Where he is too sick to work, but is not confined to his house.\\\"\\nHence the parties to the contract may stipulate for protection against any one or all of the three kinds of sickness. It follows that a contract for payment of benefits in case of sickness disability from work would broadly cover all known sicknesses preventing one from engaging in his usual business. Again, the policy may also be narrow in its terms, protecting only for illness which is house-confining. And, again, the contract may be of a more limited scope, as here; where liability ensues only in case the sickness is necessarily bed confining.\\nThese three classes of health policies have been given a liberal, rather than a literal, interpretation by a vast majority of the courts.\\nThe cases are numerous, particularly so with reference to policies which provide for coverage only in the event the sickness is such that it confines the insured continuously within the house. The great weight of authority in actions falling under this class is that the words \\\"continuously confined to the house\\\" mean that the insured must be substantially confined, and the fact that he makes occasional visits to his physician's office, or takes a trip for his health, or is taken out in the air, all on his physician's advice, will not defeat recovery. See Garvin v. Union Mut. Cas. Co., 207 Iowa, 977, 222 N.W. 25, 61 A.L.R. 633; Interstate Business Men's Acc. Ass'n v. Sanderson, 144 Ark. 271, 222 S.W. 51; Great Eastern Cas. Co. v. Robins, 111 Ark. 607, 164 S.W. 750; Jennings v. Brotherhood Accident Co., 44 Colo. 68, 96 P. 982, 18 L.R.A.(N.S.) 109, 130 Am.St.Rep. 109; Metropolitan Plate Glass & Cas. Ins. Co. v. Hawes' Ex'x, 150 Ky. 52, 149 S.W. 1110, 42 L.R.A.(N.S.) 700; Columbian Relief Fund Ass'n v. Gross, 25 Ind.App. 215, 57 N.E. 145; Van Dusen v. Interstate Business Men's Ass'n, 237 Mich. 294, 211 N.W. 991; Jentz v. National Casualty Co., 52 N.D. 688, 204 N.W. 344; Mutual Benefit Ass'n v. Nancarrow, 18 Colo.App. 274, 71 P. 423; Ramsey v. General Accident, Fire & Life Ins. Co., 160 Mo.App. 236, 142 S.W. 763; American Life & Accident Ins. Co. v. Nirdlinger, 113 Miss. 74, 73 So. 875, 4 A.L.R. 871; Breil v. Claus Groth Plattoutschen Vereen, 84 Neb. 155, 120 N.W. 905, 23 L.R.A.(N.S.) 359, 18 Ann.Cas. 1110; Olinger v. Massachusetts Protective Ass'n, 221 Mo.App. 405, 278 S.W. 86; Musser v. Great Northern Life Ins. Co., 218 Mo.App. 640, 266 S.W. 325; \\u00c6tna Life Ins. Co. v. Willetts (C.C.A. 3) 282 F. 26.\\nThe same view of liberal construction holds true in cases where the policy condition, similar to the instant case, is that sickness must necessarily confine the insured to bed.\\nRuling Case Law, vol. 14, p. 1318, reads: \\\"A requirement that the insured be confined to his bed also means that the insured must be substantially bed-ridden.\\\"\\nThus it was held in Nelson v. Washington Fidelity Nat. Ins. Co., 135 Cal.App. 731, 27 P.(2d) 779, that an insured rendered completely helpless by a paralytic stroke was \\\"necessarily, totally, and continuously confined to\\\" bed within health policy, though occasionally lifted out of bed and placed in wheel chair to be taken into the sun, or to his physician's office for treatment. See, also, Home Protective Ass'n v. Williams, 151 Ky. 146, 151 S.W. 361, Ann.Cas.1915A, 260, Bradshaw v. American Benev. Ass'n, 112 Mo.App. 435, 87 S.W. 46, Dodge v. Knapp, 112 Mo.App. 513, 87 S.W. 47, and Hays v. General Assembly American Benev. Ass'n, 127 Mo.App. 195, 104 S.W. 1141, holding that the phrase \\\"necessarily confined to bed\\\" means that the insured must be substantially bedridden.\\nA summary of this jurisprudence reveals that each case, respecting recovery, must be governed by the particular facts involved, giving the conditions of the policy a liberal interpretation with a view of arriving at a fair conclusion disclosing the just intentions of the parties.\\nIn the instant case the insured has at no time been confined to her bed as a result of her affliction. We conceive that allowing her recovery under these circumstances would result in the destruction of the agreement between the parties and substitute therefor a different contract in its place.\\nBut it is insisted that our Supreme Court did just that in the Newton Case, supra.\\nAn examination of the opinion written by Mr. Justice Brunot discloses the following:\\nNewton had a health policy which contained a condition that: \\\"Weekly benefits at the rate specified in the schedule will be paid each seven days (a) for each day that the insured is by reason of illness under the care of a physician and necessarily confined to bed, except that, where the insured is a male whose place of employment is away from his residence, confinement within the house and medical attention therein, if preceded by at least one week's confinement to bed, shall be sufficient.\\\"\\nWhile the policy was in force, he was afflicted with a serious illness. The insurer paid him weekly disability for 7 weeks, and then stopped further payments on the ground that he was not confined in the manner provided for in the policy. The insured then brought suit for 104 weeks' additional benefits.\\nThe court, in affirming the judgment in favor of plaintiff, said:\\n\\\"The district judge found as a fact that plaintiff's illness incapacitated him from work of any kind, and while the plaintiff frequently visited the office of his attending physician for treatment, he construed the word 'confined' as used in the policy to mean inability to do work rather than physical inability to leave the house. We think.this interpretation was correct, especially as plaintiff was totally incapacitated for 7 weeks, and was paid by the defendant $70 or $10 per zueek for those 7 weeks, and because condition No. 2 of the policy reads:\\n\\\" 'That where the insured is a male whose place of employment is away from his residence, confinement within the house and medical attention therein, if preceded by at least one week's confinement to bed, shall be sufficient.' \\\" (Italics ours.)\\nOur reaction to the court's holding is that there was no occasion for an interpretation of the clause \\\"necessarily confined to bed,\\\" inasmuch as the insurer admitted, by paying the insured for 7 weeks, that he was confined to bed for the first week. Insured, having been confined to bed for one week, had the right to claim benefits for all other weeks upon a showing that he was sick and confined to the house. In allowing him recovery the court merely applied the rule of liberal construction most favorable to the insured, holding that the fact that he frequently visited the office of his attending physician did not bar recovery, because there was a substantial confinement within the house.\\nThe decision in that case is clearly distinguishable and not controlling here, as the nature of the illness and the conditions in the policy contract are diverse.\\nCourts can only interpret and construe contracts. Where language is plain and unambiguous, sound interpretation requires that it be given its ordinary meaning, having always in view the intention of the parties.\\nThe defendant insurer has raised other defenses respecting notice and .proof of claiih. In view of our holding, it is unnecessary to pass upon these questions.\\nFor the reasons assigned, the judgment appealed from is affirmed.\\nAffirmed.\"}"
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+ "{\"id\": \"10027152\", \"name\": \"HARLOW v. OWNERS' AUTOMOBILE INS. CO. OF NEW ORLEANS et al.\", \"name_abbreviation\": \"Harlow v. Owners' Automobile Ins.\", \"decision_date\": \"1935-04-01\", \"docket_number\": \"No. 5012\", \"first_page\": \"169\", \"last_page\": \"172\", \"citations\": \"160 So. 169\", \"volume\": \"160\", \"reporter\": \"Southern Reporter\", \"court\": \"Louisiana Court of Appeal\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T21:29:13.768293+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HARLOW v. OWNERS\\u2019 AUTOMOBILE INS. CO. OF NEW ORLEANS et al.\", \"head_matter\": \"HARLOW v. OWNERS\\u2019 AUTOMOBILE INS. CO. OF NEW ORLEANS et al.\\nNo. 5012.\\nCourt of Appeal of Louisiana. Second Circuit.\\nApril 1, 1935.\\nHugh M. Wilkinson' and A. Miles Coe, both, of New Orleans, and Chas. L. Mayer, of Shreveport, for appellants.\\nHarry Y. Booth, of Shreveport, for appel-lee.\\nRehearing denied May 2, 1935.\", \"word_count\": \"2516\", \"char_count\": \"14246\", \"text\": \"TALIAFERRO, Judge.\\nWe find in the record before us written reasons of the trial court for the judgment rendered for plaintiff, wherein the issues, facts, and legal principles involved in the case are clearly stated. After a careful study of the case, we have reached the same conclusions on the issues involved as did the learned trial judge, and have decided to adopt the reasons assigned by him for judgment as our own, adding thereto such further comments as we deem pertinent.\\n\\\"Mrs. Mattie H. Harlow brings this suit against the Service Cab Company and its insurer, the Owners' Automobile Insurance Company of New Orle&js, for damages for personal injuries resulting from an automobile accident which occurred on or about December SO, 1933, near the intersection of Petzer avenue and Portland avenue, in the city of Shreveport.\\n\\\"Portions of 'the testimony were conflicting, but the court glean's the following facts from the record:\\n\\\"The . day was a rainy Saturday morning, and the time about 11 o'clock, when Mrs. Harlow, whose.home is on Mabel street, not far from the intersection in question, having purchased a feiv groceries at- th'e Piggly-Wiggly store on Portland avenue, came to the curb in the vicinity of where the 'white lines' now are marking the path for pedestrians across Petzer avenue, and, raising her .parasol, looked up and down the street, and seeing no approaching' car, started across. Upon reaching a point near the opposite side of tbe street, she found mud and water, which she made an effort to avoid by turning east in Petzer avenue and by walking several steps in that, direction, when she was struck from behind and precipitated to the street.\\n\\\"J. H. Maness, the driver of the taxicab for the Service Cab Company, had entered Petzer avenue at- a point west of Portland avenue, and was traveling in an easterly direction. The intersection of Portland with' Petzer at the point where the accident occurred is some distance from the intersection of that portion of Portland avenue which goes from Petzer in a northerly direction; that being an intersection where the street car lines come into Petzer avenue. At this point the cab stopped, awaiting a street car, and then proceeded on its way at a reasonable rate of speed. As it passed the pharmacy a few doors west of the grocery store, whence Mrs. Harlow had just come,' some one hailed the driver of the cab, diverting his attention for a moment, and one of the passengers, seeing Mrs. Harlow in the street, gave warning to the driver, who immediately gave his attention to the space in front of him and applied his brakes. His wheels skidded on the wet pavement, and the cab came to a stop almost the instant it struck Mrs. Harlow. The driver offered to take Mrs. Harlow to the hospital, but she asked to be taken home instead, and this was done.\\n\\\"She later suffered a 'procidentia' as a result of the blow, for which she was operated upon, and has never regained the same hardy strength which she had before, nor her former weight,. though the operation was a success.\\n\\\"There are two points of fact in which there is serious dispute. The first is as to a person on the sidewalk diverting the attention of the driver just before the accident. The driver of the cab testified that he did not remember such diversion of his attention, but, on the, contrary, stated that he kept a lookout and proceeded to stop as soon as h$- saw Mrs. Harlow. Some' of the witnesses for the defendant, however, testified to the fact that some one whistled or called to him from the sidewalk,, and that a passenger, warned him of the danger to Mrs. Harlow, and we find such to be a fact. An objection was made that this testimony came out in- rebuttal and should have been brought out in chief. However that may be, the circumstances of the entire case convinced the court that at least the driver was not maintaining the lookout, which duty the law would impose upon him. . .\\n\\\"The other point of fact that has a bearing on the case, but which is in dispute, is the question of whether or not Mrs. Harlow was proceeding across Petzer avenue in the usual path of .pedestrians, or- whether she was crossing.the street at an angle and at-a distance, from the usual path of pedestrians.\\n\\\"We believe that the preponderance of the testimony shows that at least she com menced her path across the street at approximately th& usual point that pedestrians would cross, though at that time the path was not marked hy white lines. As a matter of law, this imposes upon the driver of the cab the obligation to maintain a very careful lookout, and to .exercise great care with reference to pedestrians.\\n\\\"After Mrs. Harlow turned and proceeded east down the street, it appears to us that, normally, this would change the legal obligation of the parties and place a greater burden on her and a less burden on the driver of the taxicab. However, in this instance, the necessity of making the turn and proceeding down the street arose after she had crossed the greater part of the street, for it was only then that she was confronted with the obstacle of mud and water in her path. The fact that it seems certain that after making this turn she proceeded a number of steps before the accident, convinces the court that the driver of the 'taxicab should have seen her, not only because she had crossed the street, but had gone a number of steps in a perpendicular direction and in a direction the same as that in which the taxicab was traveling. If the driver of the taxicab had been keeping the proper lookout, he had ample opportunity to see her and to avoid the accident.\\n\\\"The only theory of the defendant, upon which this argument is based, is that the accident could have been avoided, and would have been avoided if she had not suddenly stepped from behind parked automobiles. The evidence is also conflicting as to whether ears were parked on the street; but, in view of the other circumstances, we do not find it necessary to determine that fact.\\n\\\"The plaintiff bases her case on a theory of the doctrine of last clear chance, which,, of course, presupposes both the negligence of the defendant and negligence on the part of the plaintiff. The negligence of the defendant was in not keeping a proper lo&k-out, and the negligence of the plaintiff was in her proceeding down the street in front of the approaching taxicab, without looking for the approaching automobile.\\n\\\"It seems undoubtedly true from the tes-, timony that, had she not turned to go east, in the street, but had proceeded across the street, she would not have been struck, be-, cause the several steps that she took east would have taken her to the curb. Therefore her only negligence could have been in turning her back to the approaching car to' proceed in the easterly direction, without looking west when she turned.\\n\\\"The theory of the defendant as to the doctrine of 'last clear chance' is that its applicability is destroyed by the continuing negligence of the plaintiff up to the time of the accident\\n\\\"The cases which defendant has cited undoubtedly establish the legal principle that, if the negligence of the plaintiff continued up to the time of the accident, and that negligence is the proximate cause of the accident, or a proximate cause of the accident, the doctrine does not apply, and plaintiff could not recover.\\n\\\"We. are, however, of the opinion that the theory does not apply to cases of pedestrians in the street being run down by automobiles, even in the instance of a pedestrian placing himself in danger by crossing at an unusual place in the street and when the driver has the last clear chance or the opportunity to avoid the accident.\\n\\\"The case of Bass v. Means, 12 La. App. 260, 124 So. 553, in which a pedestrian was barred from recovery, differs from the case at bar in that the negligent act of stepping in front of the car was almost simultaneous with the negligent act of the defendant, and that under those circumstances the defendant did not have the opportunity of avoiding the accident Therefore the doctrine of last clear chance did not apply.\\n\\\"The case of Robichaux v. Dorion, 17 La. App. 159, 134 So. 784, and the case of Loe-wenberg v. Fidelity Union Casualty Company (La. App.) 147 So. 81, 87, are pedestrian eases where the pedestrian had placed himself in danger, but where the defendant had an opportunity of avoiding the accident, of which he did not avail himself, and we believe these cases are applicable to the case at bar.\\n\\\"In other words, the fact that Mrs. Harlow h\\u00e1d proceeded some distance across the street, and had' then turned and walked down the street a number of steps and then had been struck from behind by the taxicab, the approach of which she was not aware, and her back being to the cab, could not well have been aware, convinces the court that the taxicab driver should have seen her in the street and should have realized her- danger, and he did have the last opportunity to avoid the accident It was his negligence that was the proximate cause of the accident\\n\\\"As to the quantum of damages, we find that Mrs. Harlow is- a woman of 59 years of age, who has had children, which had thereby made her susceptible to the 'proci-dentia' which the accident precipitated. We find that she suffered the usual pain attendant upon a major operation, and that she does not have the same robust strength that she had prior to the occurrence.\\n\\\"Taking into account her age and'the fact that the operation was a success, we feel that an allowance of $1,000 for pain and suffering is proper, and that her hospital and doStors bills should likewise be paid; and we also find that she proved the damage to her earning capacity in the sum alleged in the amended petition, which was $25.\\n\\\"Judgment is therefore rendered in favor of the plaintiff in the total sum of $1278.95.\\n\\\"Cecil Morgan,\\n\\\"District Judge.\\\"\\nPlaintiff was negligent in walking down the street without keeping a lookout for cars behind her which had the right to travel on the same side of the street she was on and in same direction, but her negligence in this respect was in a sense passive, and certainly was not the, or a, proximate cause of her being run down and injured. She was in plain view of all vehicles approaching her from both directions.\\nDefendant's driver states that, when he first saw plaintiff, his ear was 15 feet from her. He was going 15 miles per hour, or 22 feet per second. The brakes were applied, the car skidded on the slippery pavement, and stopped with its impact against plaintiff. It did not. pass over her body to any extent. It therefore follows that, had this driver, discovered plaintiff's presence ahead of him one-half second before he did, the car would have stopped before striking her. The testimony is convincing that he applied the brakes only after his attention was called by one of his passengers to plaintiff's presence ahead of him, and that this passenger saw plaintiff before the driver did and hol-loed at him at the time he was giving attention to the person on the sidewalk who had whistled or-called to him. Undoubtedly an appreciable lapse of time was consumed by the driver while he had his head turned to his rear, or at angles to his left, in the effort to locate and answer the person who had signalled him from the sidewalk. This inattention to duty, the failure for a moment or two to keep a close watch ahead, constituted the proximate cause of the accident, and renders the employer and its insurer responsible for the damages resulting therefrom. It is true plaintiff's negligence continued to the moment of the accident, but it was not a proximate cause of it. The case of Shields v. Succ'n of Hodge, 13 La. App. 546, 128 So. 530, is in point.\\nWe think, as did the lower court, that the doctrine of the last clear chance finds peculiar application to the facts of the case. It is true the driver did not observe plaintiff in the street in time to avert running into her, \\u2022but, had he been the alert driver he should have been, he would have seen' her in time to have avoided the accident. It was his duty to have seen her in time to avoid hitting her. It is no defense to the case that he acted promptly and did everything in his pbwer to prevent hitting her as soon as his attention was directed to her presence before him. The last clear chance doctrine was recognized and applied in the Loewen-berg Case, cited in the lower court's opinion. That ease is decisive of the present case. We there said: \\\"Defendant contends that, in applying the doctrine of last clear chance, we should require plaintiff, in order to recover, to prove that Sanders Fowler, Jr., after seeing the danger, could have avoided the injury. This seems to be the accepted rule in some jurisdictions, but the rule in Louisiana is that, if defendant did not see the danger, but by the exercise of ordinary care could have seen the danger in time to avoid the injury, the doctrine of last clear chance will apply.\\\"\\nThis holding is abundantly supported by the numerous cases therein cited.\\nPlaintiff suffered considerable pain from the accident, and was finally forced to spend several days in a sanitarium, after undergoing operation for the \\\"procidentia.\\\" To accomplish this operation, she was placed under the influence of total anaesthetic. Before the injury she was robust, strong, and vigorous for one of her years. No doctor had attended her for over a quarter of a century. Her weight decreased about twenty pounds, and at time of trial the surgeon who performed the operation on her was of the opinion it would be several months before recovery from the ill effects of the accident and operation. In view of these facts and conditions; we think the award of damages to her inadequate. It should be increased by $500.\\nFor the reasons assigned, the judgment appealed from is increased to $1,778.95, and, as thus amended, it is affirmed, with costs.\"}"
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+ "{\"id\": \"10045736\", \"name\": \"HAGAMAN et ux. v. BANKERS INDEMNITY INS. CO.\", \"name_abbreviation\": \"Hagaman v. Bankers Indemnity Ins.\", \"decision_date\": \"1942-04-13\", \"docket_number\": \"No. 17626\", \"first_page\": \"390\", \"last_page\": \"393\", \"citations\": \"7 So. 2d 390\", \"volume\": \"7\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Louisiana Court of Appeal\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T22:45:40.672924+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HAGAMAN et ux. v. BANKERS INDEMNITY INS. CO.\", \"head_matter\": \"HAGAMAN et ux. v. BANKERS INDEMNITY INS. CO.\\nNo. 17626.\\nCourt of Appeal of Louisiana. Orleans.\\nApril 13, 1942.\\nCurtis, Hall & Foster, of New Orleans, for appellant.\\nLeslie P. Beard, of New Orleans, for appellees.\", \"word_count\": \"1889\", \"char_count\": \"10976\", \"text\": \"SIMON, Judge.\\nThis case arises out of an accident occurring on Pontchartrain Boulevard, between Carrollton Avenue and Metairie Road, at about 10:15 a.m. on July 25, 1940, wherein a truck owned by Gonzales Motor Company and insured by the defendant, Bankers Indemnity Insurance Company, collided with the automobile of the plaintiff, Fred P. Hagaman. The truck of the Gonzales Motor Company was being driven at the time by its employee, Harold Rollins. The automobile of the plaintiff was driven by his wife, Mrs. Fred P. Hagaman, a coplaintiff herein. Fred P. Hagaman sues for property damage in the amount of $411.50 and Mrs. Hagaman seeks recovery for personal injuries in the amount of $1,250, as a consequence of the accident.\\nThere is no real dispute as to the material facts involved.\\nPontchartrain Boulevard is an avenue running from Carrollton Avenue to Lake Pontchartrain along the upper or eastern bank of the New Basin Canal. That section of the boulevard between Carrollton Avenue and Metairie Road consists of two roadways divided by a neutral ground, the lower roadway, that adjacent to the canal, being reserved for traffic proceeding toward the lake and the upper roadway being reserved for traffic proceeding in the opposite direction. The neutral ground is raised above the street surface, bordered by a concrete curb and ornamented with shrubbery and small trees. In this neutral ground are thirty foot-wide openings, at intervals of about 300 feet, or one square apart, so as to permit traffic to cross from one roadway to the other. The boulevard and canal, at a point approximately three blocks from Carrollton Avenue toward the direction of Lake Pontchartrain, are crossed by the overpass of the new Airline Highway.\\nOn the morning of the accident, that portion of the lower or canal side roadway of the boulevard, under and in the immediate vicinity of the overpass, was being resurfaced. As a consequence of this construction, the lower or canal side roadway, at a point some 180 feet from the Carrollton Avenue side of the overpass, was barricaded to detour outbound or lake-bound traffic over to the other, or upper roadway. Barricades had also been placed in the first gap or opening in the neutral ground on the lake side of the overpass, thus preventing motorists from regaining their proper side of the road until they reached the second gap or opening\\u2014 a distance of about 400 feet beyond the lake side of the overpass. These barricades, about 4 feet in height, were in the form of wooden carpenter's horses. It is shown, also, 'that there were no signs of any kind at any point on the lake side of the overpass so placed that they might serve to warn traffic approaching from the direction of the lake that the lower roadway trafile was being detoured to'the upper roadway.\\nMrs. Hagaman entered Pontchartrain Boulevard at Carrollton Avenue, traveling towards the lake, and from this point proceeded out on the lower or canal side roadway. Upon reaching the gap or opening in the neutral ground nearest the Carroll-ton Avenue side of the overpass, the barricades across the canal roadway forced her to detour to the roadway reserved for incoming traffic. Accordingly, she turned to her left, through the neutral ground opening, and proceeded along the upper roadway to the point where the accident occurred, this being shown to be approximately two squares from the point where she had entered the upper roadway. She was traveling at the moderate rate of about 20 to 25 miles per hour, and, while proceeding along the upper roadway, she held to her right, or to the neutral ground side of that roadway, as by law she was required to do. She could not, in fact, have done otherwise, because the remainder of the roadway\\u2014to her left\\u2014was being used by incoming traffic, or that approaching from the direction of the lake.\\nAt the time Mrs. Hagaman detoured from the lower to the upper roadway, the truck of the Gonzales Motor- Company was approaching along said upper roadway from the opposite direction. This truck was also holding to the neutral ground side of said upper roadway, proceeding at a speed of from 30 to 35 miles per hour. From this resulted the head-on collision.\\nThe specific acts of negligence charged to the' truck's operator and alleged to be the sole causes of the collision are that he failed to keep to the right, failed to observe the approach of plaintiff's automobile, and, if he did observe it, he failed to return to his right side of the traffic lane, a course which would have prevented the collision.\\nDefendant denied all allegations of negligence directed against the operator of the truck and affirmatively pleaded the negligence of Mrs. Hagaman as the sole and only cause of the accident. In the alternative, the contributory negligence of Mrs. Hagaman is urged in bar of recovery.\\nAfter a trial of the case on its merits, there was judgment in favor of Fred P. Hagaman in the sum of $249.50, subject to a credit of $25, and in favor of Mrs. Haga-man in the sum of $250. Defendant has appealed.\\nFrom the facts and circumstances disclosed by the record, the palpable gross negligence of the truck driver cannot be seriously disputed. - It is shown that he was driving his truck at a speed of 30 to 35 miles per hour, holding to his left, or the neutral ground side of the roadway, in the face of approaching traffic, without once discovering the impending danger he was creating until it was much too late to avoid the crash. The truck driver testified that he did not see the approaching Hag-aman car, being entirely 'oblivious of the grave realities of the situation until he had reached a distance of about 50 feet away, a distance much too short within which to avert the collision. Under such circumstances he failed to exercise that degree of vigilance and alertness required of operators of motor vehicles. His indifference and apparent lack of attention was most unreasonable considering the time, the place and use then being made of the roadway. By the exercise of ordinary care and observation, the truck driver could immediately have realized that the upper roadway was being used by vehicles proceeding in opposite directions, sanctioned by the necessities of the moment, and could have easily and seasonably regained the lane of traffic proceeding in the direction in which he was moving, thus leaving the other half of the roadway in use at the time for the passage of the oncoming Hagaman car. In this manner the collision could have been avoided.\\nIt is not negligence per se for one to drive in the center, or on the wrong side of the road, but it is negligence for one who is on the wrong side of the road to fail to pull over to the right on meeting another vehicle. Elliott on \\\"Roads & Streets\\\", 3d Ed., Sections 1079-1082.\\nCounsel for defendant, in their brief and argument, very frankly concede the negligence of the truck driver. They contend, however, that Mrs. Hagaman was guilty of negligence contributory to the accident of such a character as to bar her recovery and that of her husband. The trial court answered that contention in the negative, and we think this disposition of the matter manifestly correct.\\nThe record discloses that Mrs. Hagaman was driving at the moderate rate of 20 to 25 miles per hour; that on entering the upper roadway, because of the barricade on the lower side, she proceeded along her right, or the neutral ground side, the place where traffic regulations required her to be; that traffic was approaching and passing her to her left, coming from the direc tion opposite to that in which she was moving, thereby forcing her to drive to her right and as close to. the neutral ground! side as possible. It is further shown that she observed the truck of the Gonzales Motor Company being driven towards her in her lane of the traveled roadway, instead' of in the lane being used by other approaching vehicles. The space in which this observation was made is not shown, though it appears to have been about a distance of three squares. She testified that she proceeded along her right side t>f the roadway, at all times expecting that the driver of the approaching truck would regain the lane or traveled portion of the roadway where he was required to be, thereby yielding to her one-half of the roadway. Acting on this assumption, she stated that the danger which confronted her brought about a feeling of helplessness. She explains this helplessness by stating that she was unable to turn to her right because of the raised neutral ground concrete curb, and could not turn to her left because of the vehicles approaching and passing in the opposite direction.\\nIt is well-recognized that a motorist has the right to assume that the driver of a vehicle coming from the opposite direction will obey the law and to act upon such-assumption in determining his ow*n manner of using the road. As stated in 2 Blash-field's Cyclopedia of Automobile Law and Practice, Perm.Ed., \\u00a7 919: \\\"A driver, therefore, proceeding on the right side of the traveled way, may assume that the driver of a vehicle approaching on the same side, or on his left hand side, will do all that a reasonably prudent person, under all circumstances, would do to avoid a collision, which ordinarily would, be to yield half the way or to turn out in time to avoid a collision, and that such driver will not force him, in violation of the statute or ordinance, or the law of the-road, to turn from the part of the road on which he is lawfully driving.\\\"\\nLearned counsel for defendant contend, however, that Mrs. Hagaman should have, in the face of the approaching truck bearing down upon her, either stopped or sounded her horn. We are not certain, however, that either or both of such acts would have awakened the oblivious truck driver and thus have afforded him an opportunity to extricate himself from the, dangerous position of. his own creation.\\nSuffice it to say that, acting under the assumption which the law affords and recognizes, when she was confronted with this sudden peril she was not called upon to exercise the same degree of care required had she had time for- reflection. When brought face to face with unexpected danger brought about by the gross fault of another, one cannot be held contribut'orily negligent upon the failure to use the best judgment. Willis v. Standard Oil Company, 17 La.App. 217, 135 So. 777; Lacy v. Lucky et al., 19 La.App. 743, 140 So. 857; Jacob v. Edwards et al., La.App., 171 So. 165.\\n. The reasonableness of the amounts awarded the plaintiffs is not questioned and' we conclude that the damages allowed ar.e in accordance with the proof submitted. '\\nFor the reasons assigned, the judgment appealed from is affirmed, with costs.\\nAffirmed.\"}"
la/10047767.json ADDED
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1
+ "{\"id\": \"10047767\", \"name\": \"DAVIES et ux. v. CONSOLIDATED UNDERWRITERS\", \"name_abbreviation\": \"Davies v. Consolidated Underwriters\", \"decision_date\": \"1940-11-29\", \"docket_number\": \"No. 6131\", \"first_page\": \"347\", \"last_page\": \"351\", \"citations\": \"6 So. 2d 347\", \"volume\": \"6\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Louisiana Court of Appeal\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T18:53:17.404447+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"DAVIES et ux. v. CONSOLIDATED UNDERWRITERS.\", \"head_matter\": \"DAVIES et ux. v. CONSOLIDATED UNDERWRITERS.\\nNo. 6131.\\nCourt of Appeal of Louisiana. Second Circuit.\\nNov. 29, 1940.\\nOn Rehearing June 18, 1941.\\nWrit of Review Granted July 18, 1941.\\nSee 6 So.2d 351.\\nHarry V. Booth and L. L. Lockard, both of Shreveport, for appellants.\\nJohn B. Files, of Shreveport, for appel-lee.\", \"word_count\": \"2862\", \"char_count\": \"17000\", \"text\": \"DREW, Judge.\\nThis is a suit by the mother and father of Billie Sue Davies who are seeking damages for the injuries received by her when she was run over by an automobile driven by Welby Stahl and owned by P. J. Mabry. The suit is brought against the insurer of the owner of the car and neither the owner thereof nor the person driving the automobile at the time are made parties defendants.\\nThe lower court determined the case on the ground that the insurer was not liable under the policy provisions, in the following opinion:\\n\\\"Plaintiffs, as the father and mother of Billie Sue Davies, sue the defendant, Consolidated Underwriters, an insurance company, for damages sustained by Billie Sue Davies in being injured by being run over by an automobile belonging to P. J. Mabry and being driven at the time by Welby Stahl, a nephew of P. J. Mabry.\\n\\\"Plaintiffs allege that the automobile was being driven by Welby Stahl with the knowledge and consent of P. J. Mabry; that the Consolidated Underwriters, through its agent, T. H. Mast\\u00edn & Company, had insured P. J. Mabry against loss by reason of the negligent operation of said automobile and, in addition to P. J. Mabry, the owner of said automobile, it is alleged that said contract of insurance also insured 'any member of his family and anyone driving said car with his knowledge and consent.'\\n\\\"By supplemental petition, plaintiffs attached a photostatic copy of the policy of insurance and alleged that P. J. Mabry a few moments after the accident verbally notified the local agent of defendant of the accident and the details of same; that on the same day he notified the defendant in writing of the accident and the connection of the said Welby Stahl therewith. Further, that defendant sent a representative to Shreveport to make an investigation of the accident which representative told P. J. Mabry that the defendant Company would assume all liability as existed against him and Welby Stahl up to the limits of the policy.\\n\\\"The defendant answered by denying, for lack of information, the acts of negligence on the part of Stahl and then denied all other allegations of plaintiff's petition and affirmatively alleged that the policy of insurance did not cover Welby Stahl for the reason that P. J. Mabry, the insured, had not directed in writing that the coverage in the policy be extended to Stahl.\\n\\\"Welby Stahl is a nephew of P. J. Mabry, residing near the said Mabry, hut does not live with him and neither was he a member of the family. Stahl was not an employee of P. J. Mabry but worked for the General Motors Acceptance Corporation. On the day of the accident, Stahl had returned from work to his home and decided to visit his brother in another part of the city and went over and took possession of the automobile belonging to Mabry, covered by the contract of insurance, and proceeded on his way until the accident occurred. Mabry had no knowledge at the time that Stahl was driving the automobile but, according to his testimony, Stahl used the car whenever he desired and had he asked for it on the day of the accident, permission would have been granted by Mabry to so use it. This was implied permission granted by Mabry and, insofar as 'consent' is concerned, we are of the opinion that at the time of the accident, Stahl was driving the automobile with the consent (although only implied) of P. J. Mabry.\\n\\\"Plaintiffs contend that the policy of insurance contains a provision that any person driving the automobile with the consent of the insured is covered by the policy, while defendant contends that the policy does not contain the so-called 'omnibus clause'.\\n\\\"The first page of the contract of insurance insured P. J. Mabry 'against loss by reason of the liability imposed by law upon the subscriber for damages on account of bodily injuries inflicted upon any person, ,' and since it is not contended that P. J. Mabry was in any wise liable, the first page of the contract of insurance has no bearing on the issue here. On the second page of the contract are two provisions, ,A and B, which are made conditions of the policy. Clause B provides for automatic insurance on any other car which is obtained to replace the automobile described in the policy and has no effect in this suit.\\n\\\"Clause A is entitled 'Optional Coverage' and reads as follows:\\n\\\" 'Any person using the automobile described herein with the permission of the named subscriber may, if the subscriber shall in writing so direct within 30 days after the presentation of a claim, be entitled to indemnity in the same manner and under the same conditions as the subscriber, but the underwriter's liability shall not thereby be increased .'\\n\\\"The foregoing provision of the policy is the only one that is applicable to the issue here involved. Counsel for plaintiffs in brief argue that while the clause is carried under the heading of 'optional coverage', it has all of the general characteristics of similar provisions in other policies which have been denominated by the text-writers as 'omnibus clauses'. We do not think so. The writer has before him his own automobile liability policy, issued by the New Amsterdam Casualty Company, in defining the word 'insured' states that whenever that word is unqualifiedly used in the policy\\u2014 'includes not only the named insured but also any person while using the automobiles provided that the actual use is with the permission of the named insured.' The last quoted provision in a policy of insurance is the so-called 'omnibus clause' and covers every person using the automobile described in the policy with the consent of the insured, without further action on the part of the insured. But not so with the provision of the policy sued on in this case. The insured called the 'subscriber' is protected if the subscriber is legally liable for the accident, whether he is the driver of the automobile or whether his employee or another for whom he is responsible, is the driver of the automobile. But does the 'optional coverage' extend to any other person automatically? The provisions say that 'any person' 'may' 'if the subscriber shall direct in writing' be entitled to indemnity, and the subscriber could have secured this omnibus coverage at the time of taking the policy; or if desired, the subscriber could direct that any driver of the automobile with his consent be covered, provided the subscriber so directed in writing within thirty days after the presentation of a claim. If the subscriber did not so direct, then such person would not be entitled to indemnity. This is what makes the quoted clause in the policy under consideration 'optional coverage'. We think that the clause means what it says; that it was optional with the assured whether Welby Stahl, under the circumstances of this case, should be indemnified under the policy. If he so desired, did the assured so direct in writing? We have searched the record in vain for evidence to that effect. The entire testimony on the point is to the effect that Mr. Mabry gave 'notice' to the company of the accident. The evidence is that Mabry notified the Company's local agent who testified that he gave the Company notice of the accident, as that was his business to do so, and on being pressed as to whether Mr. Mabry directed him to give the notice, he would not say, because it was his business to do so. The question of 'notice' is not involved in the optional coverage clause above, but has some significance under another provision of the policy, where the company may otherwise be liable and was not given notice, as provided therein, but the giving of notice of an accident is not, in our opinion, equivalent to a direction in writing to extend the insurance written to some third party.\\n\\\"Counsel cites the case and annotation in 72 A.L.R. 1375 [Stovall v. New York Indemnity Co., 157 Tenn, 301, 8 S.W.2d 473], all of which shows that the policies under consideration contained the so-called omnibus clause, as secondly quoted above, the same as the case of Monroe v. Heard [La.App.], 168 So. [519], 520, where the clause referred to as 'extended insurance' reads as follows: 'The company agrees that in addition to the Assured named in this policy, such insurance shall be available in the same manner and under the same conditions and to the same extent as it is available to the Assured named herein to any person or persons ; but only while it is being used for the purpose [named] and with the consent of the Assured named * ' .'\\n\\\"None of the cited cases show that the policies carried the 'extended insurance' or 'omnibus clauses' with a proviso that in order to be effective, the assured 'must direct it in writing' as is required in the policy under consideration. All of the policies referred to, according to the decisions, extended the insurance to third persons who were driving the automobile 'with the consent of the assured', which policies protected such third persons as effectively as if they had been named in the policy, subject only to the provision that they were driving the automobile with the consent of the assured.\\n\\\"We do not think that notice, as required in Clause C, which the Company received, is equivalent to the requirement in Clause A, which required Mabry to direct in writing' that the Company extend the insurance to cover Stahl. If so, there would have been no necessity for placing such a requirement in Clause A. We have looked in vain for a case wherein the extended coverage was dependent upon a 'direction in writing by the assured within a designated time after the presentation of a claim', and have been unable to find one which authorizes an injured person to sue on the policy of insurance and hold the company liable where no such direction in writing had been made by the assured. In fact, we have found no case where the policy under consideration had a provision therein similar to the one under discussion. We are of the opinion that in order for the defendant Company to he liable for the accidents of Welby Stahl under the policy sued on herein, it was necessary that the assured, Mr. Mabry, should have directed the defendant to indemnify Stahl, within thirty days after the accident. The evidence failing to establish that any such direction was given, the plaintiffs cannot recover on the policy.\\n\\\"The evidence fails to show that any claim has ever been made against either Mabry or Stahl for the accident and injuries by plaintiffs and they have not been made parties to this suit.\\n\\\"Having reached the conclusion that the plaintiffs cannot recover under the policy of insurance sued on, it is unnecessary to consider any of the other issues involved in this case.\\n\\\"For the reasons assigned, there should be judgment rejecting plaintiffs' demands at their cost.\\\"\\nWe have searched in vain for a case involving a similar policy provision as does the policy involved here and we have failed to find any case which throws any light on the issues involved, and when we give effect to the plain, unambiguous language of the policy, as did the lower court, we are forced to the conclusion that the judgment of the lower court is correct and it is therefore affirmed with costs.\"}"
la/10058141.json ADDED
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1
+ "{\"id\": \"10058141\", \"name\": \"WADDELL v. LANGLOIS et al., and three other cases\", \"name_abbreviation\": \"Waddell v. Langlois\", \"decision_date\": \"1935-01-21\", \"docket_number\": \"No. 1405\", \"first_page\": \"665\", \"last_page\": \"672\", \"citations\": \"158 So. 665\", \"volume\": \"158\", \"reporter\": \"Southern Reporter\", \"court\": \"Louisiana Court of Appeal\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T22:51:52.523226+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WADDELL v. LANGLOIS et al., and three other cases.\", \"head_matter\": \"WADDELL v. LANGLOIS et al., and three other cases.\\nNo. 1405.\\nCourt of Appeal of Louisiana. First Circuit.\\nJan. 21, 1935.\\nJ. T. Sanders, Jr., and Ben R. Miller, both of Baton Rouge, for appellants.\\nChas. A. Holcombe, of Baton Rouge, for appellees.\", \"word_count\": \"5544\", \"char_count\": \"30863\", \"text\": \"ELLIOTT, Judge.\\nFrederick F. Waddell, plaintiff in suit No. 7169, alleges the death of his daughter Julia Waddell in an automobile collision on May 8, 1931, while riding in a motortruck as the guest of Wilmer Langlois. He alleges that the automobile in which she was riding was being driven by said Langlois, and that the collision was due to the fault and negligence of said Langlois in driving said truck; that said Langlois was a minor at the time, living with Joseph Aubin Langlois, his father. The liability of the son and of the father for the acts of his son is claimed on that account. .He further alleges that his daughter was unmarried; that she was the child of his first wife, who had departed this life years before. Damages are claimed of the father and son in solido in the amount of \\u00a710,000.\\nSuit No. 7170 is by Ernest Davis. He alleges that he was riding as a guest of Wilmer Danglois in the above-referred to.truck at the same time and was greatly injured in the collision ; that the collision was due to the fault and negligence of Wilmer Langlois in driving, and claims damages of father and son in solid\\u00f3 in the sum of \\u00a79,882.90 on said account.\\nSuit No. 7503 is by Frederick F. Waddell against Istrouma Water Company, Inc., and Employers' Liability Assurance Corporation of London, England. He alleges in this suit that the truck which Wilmer Langlois was driving was the property of the Istrouma Water Company, Inc. That Wilmer Langlois was the employee of Istrouma Water Co., Inc., and was driving said 'truck as its employee at the time in the performance of the functions in which he was employed. That Employers' Liability Assurance Corporation, Limited, of London, England, carried the liability insurance of Istrouma Water Company, Inc., at the time. He therefore claims of the Istrouma Water Company, Inc., and of the Employers' Liability Assurance Corporation, Limited, in.solido, damages to the extent of' \\u00a710,000 on account of his daughter's death.\\nErnest Davis, plaintiff in suit No. 7518, claims damages of Istrouma Water Company, Inc., and Employers' Liability Assurance Corporation, Limited, in solido, on the same ground of fault and negligence alleged by Frederick F. Waddell in the sum of \\u00a79,832.90 on account of his injuries.\\nThe defendants, Wilmer Langlois, Joseph Aubin Langlois, Istrouma Water Company, Inc., and Employers' Liability Assurance Corporation, Limited, filed separate answers setting out their defense in detail and deny liability in each case. They all deny the fault and negligence on which their liability is claimed by the plaintiff, but allege in the alternative contributory negligence on the part of Davis and Julia Waddell leading to the collision and contributing to bring it about. They each pray that plaintiff's demand be rejected.\\nThere was judgment with written reasons rejecting the demand of the plaintiffs in each of the suits.\\nThe plaintiffs Ernest Davis and Frederick F. Waddell each have appealed.\\nThe four suits were consolidated and tried together in the lower court and acted on in one opinion. We will follow the same course in acting on the appeals.\\nPages 70-77 and 78 of the note of testimony are missing, and the transcript is not certified to as being complete. There is no certificate on the part of the clerk of court that it contains all the testimony. The three missing pages and lack of certification have either been overlooked, else are regarded by the parties as not important. There being no complaint, we take it that the record is complete; that all the important testimony adduced on the trial bearing on the issues in the case is before us. We will during the course of the opinion refer to Istrouma Water Company, Incorporated, as the water company, and to the Employers' Liability Assurance Corporation, Limited, as the assurance corporation.\\nThe petitions aver and the evidence shows that Wilmer Langlois was 20 years of age at the time of the collision, and resided with Joseph Aubin Langlois, his father; that Julia Waddell was unmarried, and that Wilmer Langlois was employed by the water company. His work consisted in going to and from the premises of customers for the purpose of making repairs of equipment, turning on and off water, earing for and removing meters, assisting in making collections, etc., and to facilitate his work, he was furnished with a motortruck. Joseph Aubin Langlois, his father, was also in the employment of the water company and had the right to use the truck in connection with his work. The truck was kept at night on the premises of Joseph Aubin Langlois, and when the day's work was over, and if Wilmer was using the truck, it was his duty to drive it home and put it in the garage. Wilmer's work was from 7 o'clock a. m. to 5 o'clock p. m., but he was also required to do emergency work at night. For instance, if a fire occurred or other emergency happened, his employment required him to go to the place and assist in doing whatever was necessary in behalf of the water company.\\nDuring the evening of May 8, 1931, presumably after his day's work was over, he drove the truck home but did not put it in the garage. He got out of it when he reached home and changed his clothes in order to attend a weinie roast on the Oomite river about 9 miles north of Baton Rouge. To change clothes he no doubt went in the house. Just how long he was thus engaged does not appear, but after doing so he returned to the truck, got in it, and drove to the picnic. It was on his return from the picnic that the collision occurred. The occurrence took place at about 10:30 p. m. while he was driving Miss Waddell from the weinie roast to the place where she worked in the General Hospital at Baton Rouge. The entire trip was made after work hours, and was not connected in the slightest way with emergency or night work in behalf of his employer. Plaintiffs argue in their brief that the truck was being driven home at the time of the occurrence, that is, to the premises of Joseph Aubin Langlois, where it was kept at night, but argument cannot create an issue and situation of that kind when the uneontradieted evidence is, that at the time Miss Waddell was killed and Davis received the injuries on account of which suits are brought, Miss Waddell was being driven to the General Hospital in the city of Baton Rouge. Plaintiffs' argument about the responsibility of the owner of an automobile, as the result of fault and negligence of his employee in driving the truck home, when such is his duty after the work of the day is over, is therefore not entered into. To enter into such a discussion would be taking up a question, not supported by evidence, and contrary to the evidence as to the destination of the truck at the time of the collision. According to the evidence, Wilmer Langlois in returning from the picnic or weinie roast was not driving in the service and employment of the water company, nor with its authority, knowledge, or permission, but, contrary to his duty, because his employer had forbidden him to drive the truck except when in the use and service of the water company. The Civil Code, art. 2320, provides that masters and employers \\\"are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.\\\" As such was not the situation with Wilmer at the time in question, the water company is not answerable for his fault and neglect in driving at the time of the collision.\\nPlaintiffs contend that as the truck was intrusted to the keeping of Wilmer and Joseph Aubin Langlois day and night, that is, all the time, for use in connection with their work, the master and owner is liable in damages, even though it was not being driven, at the time of inflicting an injury, in the specific service and employment of the master and owner.\\nThey take the position that where the employee has possession all the time, the possession of the employee is the possession of the employer, and that although the employer may drive off his road and out of his way on business of his own or for pleasure, his driving is within the scope of his employment, and if injury is sustained while doing so, due to his fault and negligence, the owner and master is liable. It is true Wilmer Langlois had possession of the truck all the time, but his possession was not exclusive; his father had, so far as we can see, a like right and authority to use the truck at any time in .connection with his work. As to who had the superior right, the evidence does not show; so we take it that both had a like right, but neither had the right to drive it except when \\\"in the exercise of the functions in which they are employed.\\\" Therefore, the truck, in going to the picnic and in returning therefrom to the General Hospital in Baton Rouge, was not being driven in the exercise of the functions in which the driver was employed. The truck had been driven home at the termination of the day's work. When Wilmer got into it again, after going home, for the purpose of driving to the picnic, it. was not a continuation of the drive home, but the commencement of a new journey; a new drive, which, from its commencement at the home, until its termination at the place of collision, was not in the exercise of the functions in which he was employed, but in pursuit of his own private'business and pleasure. In so far as concerns the water company, it was wrongful, illegal, and unauthorized from start to finish.\\nFrom.Huddy on Automobiles we quote as follows: \\\"It may be stated as a general rule that when the chauffeur or employee of the owner of a motor vehicle, or a third person not in his employ uses the same without the consent of such owner, the owner is not liable for the negligent conduct of the driver, unless such vehicle is being used in his business. Particularly is this so when the use of the> car is contrary to the express instructions of the owner and for the pleasure or business of the chauffeur. And in such a case it is not of controlling importance that the driver was in the general employ of the owner and had the authority to use the car at certain times for certain purposes.\\\" Cyclopedia of Automobile Law, by Huddy, vol. 7 & 8 (9th Ed.) \\u00a7 93, pp. 245, 246, 247, 248. Language in sections 91, 92, 94, 95, could be cited from the same author with numerous authorities under the sections explaining differences and distinctions ; some from this state. But the language of section 93 is appropriate to the situ ation in the present case. The jurisprudence of this state, based on article 2320 of our Civil Code, is substantially as stated by liuddy. The case Valley v. Clay, 151 La. 710, 92 So. 308, is, we think, a sufficient reference as to the law of this state on that subject, but we also have in mind the decision of the Supreme Court in James et al. v. J. S. Williams & Son, Inc., 177 La. 1033, 150 So. 9, and for the reason given by the court in the cases just cited we think the water company not liable in the present case.\\nThe plaintiff contends that Employers' Liability Corporation, Limited, of London, England, is liable, even though the water company is not.\\nThis liability is claimed to result from a clause in the policy of' insurance which the water company carries in the insurance company mentioned, which reads as follows: \\\"This policy shall cover the assured named in the policy and any person while riding in or legally operating any of the automobiles described herein, and the protection granted by this policy is so extended as to be available in the'same manner and under the same condition as it is available to the named assured, to any person, firm or corporation legally responsible for the operation of said automobiles, provided such use or operation is with the permission of the named assured; or if the named assured is an individual, with the permission of an adult member of the assured's household, other than a chauffeur or a domestic servant.\\\"\\nHaving found that driving the truck by Wilmer Langlois from his home to the picnic, and on the return trip, in taking Davis and Miss Waddell to her destination in Baton Rouge, was not driving it with the permission and consent, express or implied, of the named assured, it follows that the demand of the plaintiffs Davis and of Frederick F. Wad-dell, against Employers' Liability Assurance Corporation, Limited, was properly rejected ' on that account.\\nThe plaintiffs Waddell and Davis claim damages of Wilmer Langlois and Joseph A. Langlois on the ground that the fault and negligent driving of Wilmer Langlois resulted in the injury of Davis and the death of Miss Waddell. It is established that they were riding in the truck as the guests of Wilmer Langlois. The liability of the owner and driver of an automobile for injury to his guests while riding was considered at length by the Supreme Court in Jacobs v. Jacobs, 141 La. 272, 74 So. 992, L. R. A. 1917F, 253. The authority of that case has been generally followed since then, and we have it in mind as our guide at the present time.\\nThe collision took place at about 10 :30 p. m. Miss Waddell's employment required her to be at the hospital at 11 o'clock p. m. that night. The evidence does not indicate unusual darkness or other unusual atmospheric condition at the time, so we take it that the party driving and his guests, all seated on the front seat, could see ahead as far as he could ordinarily see.\\nAs the accident occurred in 1931, the Act No. 296 of 1928 furnishes the legal regulations for driving on highways at that time.\\nThe return trip after leaving the picnic was along the highway from Bayou Sara to Baton Rouge, and took place about a mile and half or two miles from the city limits. This highway crosses the. Hammond & Eastern Railroad at a grade crossing, and is intersected at a, distance which we estimate at between 50 and 100 feet before it reaches the crossing by another road known as the Choctaw road. The Choctaw road, under the definition of highway as contained in section 2, subsec. (n) of the act mentioned, must be deemed a highway. The Baton Rouge and Bayou Sara road is one of the main highways of the state; but the Choctaw road is not. The Bayou Sara road leads north and south; the Choctaw road east and west, and parallels the Baton Rouge, Hammond & Eastern Railroad along the north side of the same. The distance from the place where the Choctaw road intersects the Bayou Sara road, to the place where the Bayou Sara road crosses the Baton Rouge, Hammond & Eastern Railroad is not clear. A picture of the scene brought up in the record indicates that the intersection is within 30 or 40 or perhaps 50 feet of the railway crossing. But one of the witnesses in the case speaking of the distance between the' place where the Choctaw road intersects the Bayou- Sara road, and the place where the Bayou Sara road crosses the railroad, estimates it at about 10 feet; while another estimates it at about 100 feet, so we take it that the distance is likely as already stated, about 50 feet.\\nThe evidence shows that when Wilmer Langlois started from the picnic toward Baton Rouge he had six people in the truck. He stopped at what is known as the Fuller place, about one mile north of the intersection, and there three got out, leaving remaining in the car, Wilmer Langlois, Miss Wad-dell, and Ernest Davis, the plaintiff, all seated on the front seat, with Miss Waddell in between the young men. After starting up from Fuller's place the evidence is to the effect that the truck was being driven at the rate of 40 or 45 miles an hour. From the Fuller place to the intersection, the highway is straight and paved, and there are no obstructions to the view along the Bayou Sara road going south preventing anybody from seeing an automobile in the Choctaw intersection, except that it was at night and about as dark as usual. The evidence does not show, what kind of headlights the truck carried, but we assume that it complied with the requirements of the law. Section 50 of the act just mentioned requires headlights with power to clearly show a person on the road 200 feet ahead.\\nPresuming, in the absence of anything to the contrary, that the truck had headlights of this kind, an automobile stopped at the intersection of the Choctaw road was an object that should have been seen by Wilmer Lang-lois, Ernest Davis, and Miss Waddell far enough ahead to enable Wilmer to slow down or even stop if necessary, and Ernest Davis and Miss Waddell must and should have seen it, had they been looking ahead, in time to have warned Wilmer to slow down or stop before entering it, in ease he did not timely do so without warning.\\nWilmer Langlois testifies that as he came within about 100 feet of the place where the Choctaw road intersects the Bayou Sara road he saw an automobile pull up on the east side of the crossing and stop at the intersection; that when he saw the automobile stop he took it to mean that it yielded him the right of way because he was in the main highway, and that he then came on without checking his speed. The implication from what he says is that, if it had not stopped, he could and would have slowed down so as to let it pass ahead of him; that when he got within 10 or 12 feet of the intersection the stopped automobile suddenly started up and struck him as he went through the intersection, the blow striking his truck toward the rear on the left-hand side as he passed,.causing it to swerve to the right as it crossed the nearby railroad and strike against an iron pillar on the right side of the road. It was this blow against the iron pillar that wrecked his truck and brought about the casualty that occurred.\\nThe evidence shows that the automobile that had stopped at the intersection was in possession of and being driven by an unknown negro who had stolen it from a party who lived in the neighborhood. Act No. 12 of 1924 is not referred to by the parties, and it has no bearing because for a checking of speed or a slowing down to have been effective in preventing a collision, the checking and slowing down must have commenced a proper distance from the intersection and further from the railroad than the act requires.\\nThere is a contention that the negro driving the automobile in the Choctaw road entered the intersection first and pre-empted it, and that Wilmer should have heeded the pre-emption and stopped or slowed down so that the negro could pass ahead of him. Wilmer testifies that the negro stopped at the intersection, and he is corroborated and supported by the witness McQueen, apparently disinterested, who says he was close by looking at the negro and is positive that he stopped at the intersection. There is controversy as to what the witness McQueen says on the subject. We quote a part of his testimony:\\n\\\"Q. Which way did he come from? A. From the east, going toward the west.\\n\\\"Q. He came from a street that comes toward the Bayou Sara Road from the east? A. Tes.\\n\\\"Q. And you say he stopped? A. He drove up there and stopped and then he pulled on ahead. He pulled in the road right ahead of this car coming down the road.\\n\\\"Q. Did he pull out into the Bayou Sara Road? A. Tes. He looked like, the best I can \\u2022remember, he was about half way the road when he stopped.\\n'.'Q. How far back into the intersection was he when he stopped? A. I don't know exactly.\\n\\\"Q. Had he gotton up to the point where the front wheels of his car would touch the pavement on the Bayou Sara Road? A. Not when he stopped the first time.\\n\\\"Q. As I understand it he stopped at a point east of the Bayou Sara Road and at a place where the front wheels of his car did not touch the pavement; is that right? A. No, Sir. He must have been 20 feet or more from the pavement when he suddenly came out of the road.\\n\\\"Q. Tou said a while ago he came out. When he came out of this intersecting street, approximately how far away was the car of Langlois which I understand was travelling in a southernly direction? A. I could not tell just how far, but he was right close to him, he just drove out ahead of him.\\n\\\"Q. Who drove ahead of the other one? A. I took it the negro done it. He drove right out across the highway.\\n\\\"Q. How far into tile highway did he get? A. The other car was about a little past the center of the highway.\\\"\\nIn another place he said that he was standing within 20 feet of the pavement; that the negro drove up opposite him and stopped, then he pulled on across. In another place, speaking of the distance the Langlois car was at the time the negro started up, he says: \\\"He could not have been, according to my judgment, more than 50 or 100 feet when the fellow ran out in-front of him.\\\"\\nThe witness McQueen also says the negro' was halfway across the road when he struck the Langlois car. The fact that the negro did stop his car right at the intersection is testified to by another witness. We therefore feel that there is no doubt that the negro with the stolen car did drive close to the intersection of the Choctaw road with the main highway and stop, within sight of Wilmer Lang-lois and Davis and Miss Waddell then probably about 100 feet distant north, coming toward the intersection at about 40 or 45 miles an hour; therefore, giving credit to what the witness McQueen says, if the negro had not stopped he would have crossed the Bayou Sara road ahead of the Langlois truck and there would have been no collision. We think by stopping at the threshold of the intersection, within sight of Langlois who was coming on fast, the claim of Wilmer, that he was thereby deceived into not .checking his speed, at a time when it could have been done, seems reasonable and we think his claim is supported, to the extent that it should be accepted as true.\\nThe district judge says in his reasons for judgment: \\\"It appears that the accident was due to the action of this negro, and was'not due to any negligence on the part of Lang-lois.\\\" We agree with the lower court that the collision was due solely to the act of the negro in suddenly starting up his ear and entering the intersection after he had stopped as if he were going to wait. If the negro had not acted as he did, there would have been no collision. Plaintiffs strongly contend, however, that Wilmer Langlois was also at fault, and that his contributory fault brought about the collision. It is claimed that he was driving at the time on the east or left side of the road, and that if he had not been violating the law of the road in that respect there would have been , no impact and no injury.\\nDavis testified as a- witness: \\\"Q. Was the truck you were in on the right side or the left side on the middle of the road? A. We were kind of in the middle and on the left side of the highway.\\\"\\nBut in a statement made by Davis on May 19, 1931, which was some 10 days after the occurrence, he said: \\\"I imagine we were on the righthand side of the road, because just before the accident we were on the righthand side of the road.\\\"\\nAlton E. Carpenter appears to be a disinterested and credible witness'. Mr\\u00a1 Carpenter says that there were a series of crashes, and th\\u00e1t he arrived at the scene of the collision very quickly after it occurred; that there were culverts near the place on both sides of the road, and that one of them, on the east side, appeared to have been struck by something; that there appeared marks on the cement where something had skidded. There is no evidence indicating when it was done and it might have been done on some previous occasion. If done at the time of the present collision, for all we know, the automobile driven by the negro might have done it. Mr. Hanks came to the place right after the accident. He testifies that there were a series of crashes and that there was a car track and marks made in the gravel on the right-hand side of the highway going south. We take the witness to say that the marks to .which he referred were off the cement on the right-hand side of the road. Wilmer Lang-lois testified that he was driving on the right-hand side of the road when struck. The weight of the evidence does not support plaintiff's contention on the subject. \\u2022\\nThe rule which gives the right of way to the party who enters first is a recognized rule, but we cannot apply it in favor of plaintiffs in the present case because the driver in the Choctaw road was not the first to enter the intersection. By stopping at the threshold of the intersection as the evidence shows that' the negro did, his act was calculated to lead a party coming and nearby on the main highway, seeing him stop, to suppose that he yielded the right of way and to come ahead. The lower court held that the negro was the sole party at fault, and rejected plaintiffs' demands on the above grounds.\\nWe agree with the lower court, but as Wilmer Langlois was driving, say 40 or 45 miles an hour, without checking his speed to cross the intersection, the provisions of Act No. 296, \\u00a7 5 (a), and paragraph 3 under (b), must be taken into account. We therefore take his speed to be excessive and negligent in driving faster than 15 miles an hour in making this intersection at night. In taking this position we must act on defendants' plea of contributory negligence. Considering the case from that standpoint, we have stated that the road was straight and unobstructed and the view of the intersection ahead good, except that it was night. That Wilmer Lang-lois, Ernest Davis, and Miss Waddell were all seated on the front seat. That the headlights of his truck presumably had power in acc.ordance with the statute to show an automobile ahead stopped in the Choctaw road at its center intersection with the Bayou Sara road as they approached it for a sufficient distance ahead to enable Wilmer, had he been looking ahead, to slow down, check his speed, and even stop if necessary in order to avoid impact with it, and to enable his guests had they been looking ahead to warn him and protest his driving,in case he otherwise did not heed the situation.\\nThe death of Miss Waddell leaves only , Davis as the' other guest. He excuses his failure to see ahead by admitting that he was not looking.\\nIn a statement, obtained by a representative of the Employers' Liability Corporation, Limited, about, 10 days after the collision, while he was in the hospital on account of his injuries, he says: \\\"I must have been talking to Miss Waddell and not paying attention to the driving or other cars that we passed.\\\" His injuries were very severe and opiates had been administered to him, but the effect of these opiates must have passed away by the time he made the statement\\nPlaintiffs criticize defendant's act in obtaining a statement from Davis while he was suffering from his injuries, for the purpose of defending the damage suit which he might bring against it on account of his injuries sustained in the collision. We have considered statements obtained in this way in many instances. Some have received but little effect, others have received more. The situation existing at the time the statement is obtained and the method used in obtaining are taken into account. Eor the purpose of analogy we refer to Revised Statutes of Louisiana of 1870, \\u00a7 615, speaking of the duties of the officer. It is therein provided: \\\"And thereupon said clerk shall proceed to take the testimony of such witnesses in writing, either by himself or some other - disinterested person.\\\"\\nThere is a wide difference between a deposition such as section 615 provides for and the statement obtained from Davis. The party obtaining this statement was not disinterested ; he was in the service of' the Employers' Liability Assurance , Corporation. The language quoted from section 615 was commented on by the Supreme Court in Succession of Segura, 134 La. 84, 63 So. 640. A number of earlier cases are cited and others have been found, in all of which the requirement that the deposition be written by a disinterested person has been enforced. At the time of signing this statement, Davis was on a bed in the hospital and had to be lifted up in order to enable him to sign. Statements of the kind obtained from Davis should be obtained by some officer or other-disinterested person; but the statement made by Davis in this case is corroborated. It is our conclusion that he was not paying attention to the speed of the automobile nor to the intersection ahead, just as he admits, and it is our conclusion that Miss Waddell was also not paying attention, otherwise they would have seen and realized all that they should have seen and understood, had they been looking and taking proper care as they went forward to the intersection. If they had been noting the speed and looking attentively ahead, they could and would have timely seen any danger that Wilmer saw or should have seen, and in time to warn him and protest against whatever he was doing or failing to do, that he should have done. The evidence shows that no protest was made; consequently they shared the responsibility with Wilmer Langlois for .the collision that took place and the result of the same.\\nIn Lorance v. Smith, 173 La. 884, 138 So. 871, 876, the Supreme Court, acting on a case in which they found facts somewhat similar to the present situation, approvingly quoted from 42 C. .7. 1170, \\u00a7 948: \\\"A guest or a gratuitous passenger in a motor vehicle cannot recover for injuries due to the negligence of his host if he is aware of and acquiesces in the negligence. He cannot 'abandon the exercise of his own faculties and intrust his safety absolutely to the driver, regardless of- the imminence of danger, or the visible lack of ordinary care on the part of the driver to avoid all harm. If he fails Louse ordinary care, including the exercise of his own senses of sight, hearing and perception, to protect himself under such circumstances, he is guilty of contributory negligence.' \\\"\\nThe case Provosty v. Christy (La. App.) 152 So. 784, 785, has also received our consideration. In that case the guest did not have opportunity to speak and protest against the act of the driver; therefore, the case is not appropriate to the present situation.\\nIt is our conclusion that if Wilmer ,Lang-lois, defendant, was at fault and negligent the plaintiff Davis and Bliss Waddell shared his fault and negligence, and that their faults and negligence served, with that of Wilmer Langlois, to bring about the collision, the death of Bliss Waddell, and the injury of Davis.\\nFor these reasons, the judgment appealed from will be affirmed.\\nJudgment affirmed;' plaintiff-appellant to pay the cost in both courts.\"}"
la/10061587.json ADDED
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1
+ "{\"id\": \"10061587\", \"name\": \"J. R. QUAID, Inc. v. CYCLONE FENCE COMPANY (United States Steel Corporation)\", \"name_abbreviation\": \"J. R. Quaid, Inc. v. Cyclone Fence Co.\", \"decision_date\": \"1954-11-08\", \"docket_number\": \"No. 41885\", \"first_page\": \"409\", \"last_page\": \"412\", \"citations\": \"76 So. 2d 409\", \"volume\": \"76\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T17:50:26.834119+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. R. QUAID, Inc. v. CYCLONE FENCE COMPANY (United States Steel Corporation).\", \"head_matter\": \"226 La. 398\\nJ. R. QUAID, Inc. v. CYCLONE FENCE COMPANY (United States Steel Corporation).\\nNo. 41885.\\nSupreme Court of Louisiana.\\nNov. 8, 1954.\\nMichel Provosty, Michel O. Provosty, New Orleans, for plaintiff-appellant in opposition to motion to dismiss appeal.\\nChaffe, McCall, Toler & Phillips and Leon Sarpyj New Orleans, for defendant and appellee (and appellant) in support of its motion to dismiss appeal.\", \"word_count\": \"1088\", \"char_count\": \"6566\", \"text\": \"HAWTHORNE, Justice.\\nPlaintiff instituted this suit for an accounting against the defendant Cyclone Fence Company (now United States Steel Corporation), alleging that under a contract of distributorship which existed between it and the defendant there was due to it, among other things, commissions which had not been paid, and that the defendant had failed to give it proper credit for materials which were defective, inferior, and unsuitable. After answering the defendant reconvened praying for judgment against the plaintiff in the sum of $14,250.66 for goods which it alleged it had sold and delivered to the plaintiff under the contract of distributorship and for which it had not been paid. After trial on the merits the district court rendered judgment in favor of the plaintiff J. R. Quaid, Inc., for $42,223.85. There was also judgment in favor of the defendant United States Steel Corporation on its reconventional demand for $13,496.06. Both parties appealed suspensively to this court.\\nDefendant has filed in this court a motion to dismiss'the appeal taken by plaintiff, contending that the judgment for $13,496.06 in defendant's favor rendered on its reconven-tional demand has been confessed by plaintiff, and that accordingly the appeal of plaintiff should be dismissed under Article 567 of the Louisiana Code of Practice. That article provides:'\\n\\\"The party against whom judgment has been rendered can not appeal:\\n\\\"1. If such judgment have been confessed by him\\nDuring the trial of the case in the lower court the attorney for plaintiff dictated into the record the following statement:\\n\\\"I would like to dictate an admission by me in the record, or admission on the part of J. R. Quaid, Inc., with the reservation immediately hereinafter stated: J. R. Quaid, Inc. admits that the following amounts which appear on the statement attached to defendant's answer are correct. The amounts are: March 31, 1949, $1,032.- 57, March 31, 1949, $3,257.10\\u2014with regard to the item of April 14, 1949 in the sum. of $127.86 Quaid does not admit the correctness of that item, but finds that the accounting in regard to that item is too complicated and therefore, in 'the interest of saving time, will admit the amount of $127.86; July 19, 1949, $102.03, July 19, 1949, $3,413.-02, July 19, 1949, $3,724.87, July 1-9, 1949, $1,136.52, July 27, 1949, $306.36, September 15,1949, $914.75.\\n\\\"Plaintiff-Quaid also admits that it is entitled to a credit of $519.02 as shown by the credit memorandum of date September 27, 1949.\\n\\\"Quaid does not admit the correctness of the first item on the account, namely the item of February 9, 1948 in the sum of $754.60.\\n\\\"By -this admission plaintiff-Quaid does not want to be construed as admitting that shipments were not delayed; that some of the materials covered by these items were not defective; that some of the material did not fit and therefore could not be made into an entire composite fence; that the material was unsuitable [suitable] for the construction of fences, and other and similar circumstances. In other words, we admit the amount but we think the material was defective and that it is too difficult at this time to allocate this amount to this and we do that for the purpos\\u00e9 of saving time.\\\"\\nThe total of the amounts admitted by plaintiff to be correct corresponds with the amount 'of the judgment rendered in 'the defendant's favor, and it is the contention of the defendant United States Steel Corporation that this admission on the part of plaintiff's counsel amounts to a confession of judgment which precludes appeal under the provisions of Article 567 of the Code of Practice. .\\nUnder the jurisprudence of this court there is no particular form required for the confession mentioned in that article. The admission or confession, how? ever, must be such that it leaves no issue to be tried, and for this court to dismiss the appeal the confession must be actually or substantially ' unconditional. Skinner v. Dameron, 5 Rob. 447; Stewart v. Betzer, 20 La.Ann. 137; Sample v. Whel\\u00e9ss, 159 La. 844, 106 So. 325; State ex rel. Le Conte v. Judge Fourth District Court, 1 McGloin 11.\\nAlthough plaintiff's counsel in the instant case admitted that the amounts which appeared on the statement attached to defendant's answer were correct, this admission was made with the clear reservation that the plaintiff did not concede that the materials covered by these items were not defective or unsuitable. This reservation was in line with the allegation in plaintiff's petition that it was entitled to credits for certain materials which were unsuitable or defective. Even though the amounts shown in the statement were admitted to be correct, plaintiff did not concede or even intimate that it was not entitled to the credits claimed. Because , this admission was made with a reservation and for . the sole purpose of admitting that the amounts shown on the statement were correct, it cannot be said that it leaves no issue to be tried or that it is actually or substantially unconditional.\\nTo us there is no doubt that the statement of plaintiff's counsel is not a confession of judgment which would bar its appeal. But, if there were any doubt, that doubt should be resolved in favor of the plaintiff-appellant. An appeal is a remedy that is favored in law and is an important right which should never be denied unless its forfeiture or abandonment is conclusively shown. Thus in case of doubt' an appeal should always be allowed rather than denied. Jackson v. Michie, 33 La.Ann. 723; Texas Creosoting Co. v. Midland Const. Co., 177 La. 18, 147 So. 366.\\nIn .support of its, motion to dismiss plaintiff's appeal defendant cites and relies on the cases of Succession of Mausberg, 37 La. Ann. 126; Sample v. Wheless, supra, and Hewitt, Heran & Co. v. Stewart's Ex'r, 11 La.Ann. 100. In each of them the alleged confession of judgment left no issue to be tried and was actually or substantially unconditional. They are thus easily differem tiated from the case presently under consideration.\\nFor the reasons assigned the motion to dismiss is denied; costs of this proceeding are to be paid by the defendant.\"}"
la/10067410.json ADDED
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1
+ "{\"id\": \"10067410\", \"name\": \"STATE ex rel. PORTERIE et al. v. H. L. HUNT, Inc.\", \"name_abbreviation\": \"State ex rel. Porterie v. H. L. Hunt, Inc.\", \"decision_date\": \"1935-07-01\", \"docket_number\": \"No. 33450\", \"first_page\": \"777\", \"last_page\": \"783\", \"citations\": \"162 So. 777\", \"volume\": \"162\", \"reporter\": \"Southern Reporter\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-11T01:11:32.813023+00:00\", \"provenance\": \"CAP\", \"judges\": \"ODOM, J., dissents.\", \"parties\": \"STATE ex rel. PORTERIE et al. v. H. L. HUNT, Inc.\", \"head_matter\": \"182 La. 1073\\nSTATE ex rel. PORTERIE et al. v. H. L. HUNT, Inc.\\nNo. 33450.\\nSupreme Court of Louisiana.\\nJuly 1, 1935.\\nGaston L. Porterie, Atty. Gen., and Justiri C. Daspit, Fred. A. Blanche, and E. L. Richardson, Sp. Asst. Attys. Gen., for appellant.\\nP. S. Gaharan, Jr., of Jena, for appellee.\", \"word_count\": \"4530\", \"char_count\": \"25590\", \"text\": \"ROGERS, Justice.\\nThis suit involves the constitutionality of Act No. 6 of 1932, levying an excise, license, or privilege tax on the business of manufacturing or generating, selling, or using electricity for heat, light, or power. The district court held that the statute was unconstitutional and rejected plaintiff's demand. Plaintiff appealed.\\nThe defendant, H. L. Hunt, Incorporated, an Arkansas corporation, was engaged in business in the parish of La Salle, La., from August 1, 1932, up to and including July 31, 1934. Defendant's business consisted of operating and pumping oil. wells and transporting and handling oil in said parish and state. In the conduct of its business during the fiscal years ending July 1, 1933, and July 31, 1934, the defendant corporation used electrical and mechanical power of more than 10 horsepower, and, in the creation of the power, the defendant corporation operated machines or apparatus known as \\\"prime movers,\\\" of a total capacity of 1,050 horsepower.\\nIgnoring the provisions of Act No. 6 of 1932, the defendant failed to make a return to the supervisor of public accounts showing the total horsepower of the machines or apparatus operated by it during the fiscal year ending July 31, 1933. Defendant filed a return for the fiscal year ending July 31, 1934, and attached to the return a check covering one-half of the amount of the tax due, in the belief, evidently, that the amendment to section 3, Act No. 6 of 1932 (Act No. 32 of 1934, \\u00a7 1), reducing the tax from $1 to 50 cents per horsepower, became effective during the fiscal year for which the return was made. The supervisor of public accounts made a demand on defendant for the balance due on the tax for the year ending July 31, 1934, and also for a report showing the total horsepower of the machinery or apparatus operated by defendant during the fiscal year ending July 31, 1933. Defendant refused to comply with the demands, and the supervisor of public accounts executed under oath a statement of the taxes due by defendant. This statement was filed in the mortgage records of the parish of La Salle to operate as a lien against defendant's property.\\nThe state of Louisiana, through its Attorney General and its supervisor of public accounts, then filed this suit to collect $1,575, as the amount of the tax due, with penalties, interest, and attorney's fees. The suit is predicated on section 3 of Act No. 6 of 1932.\\nSection 1 of Act No. 6 of 1932 levies an annual excise, license, or privilege tax on the business of manufacturing or generating electricity for heat, light, or power. Section 2 levies the tax on the business of selling electricity for the purposes stated. Section 3 levies the tax on any business in which electrical or mechanical power of more than 10 horsepower is used. The taxes levied under sections 1 and 2 are fixed at 2 per cent, per annum of the gross receipts of the sales. Under section 3 the rate of taxation is fixed at $1 per annum for each horsepower of capacity of the machinery or apparatus known as the \\\"prime mover\\\" or \\\"prime movers\\\" operated by the taxpayer. The taxes authorized by the statute are in addition to all other taxes now imposed by law.\\nThe defendant attacks the constitutionality of Act No. 6 of 1932 on five grounds, viz.:\\n(1) That the tax -levied under section 3 is a property tax levied on property which has borne the maximum amount of taxation permitted under article 10, \\u00a7 3, of the State Constitution.\\n(2) That the tax, so far as it applies to defendant, is violative of section 21 of article 10 of the State Constitution, prohibiting the levying of any tax other than a severance tax on oil and gas rights.\\n(3) That the tax is violative of section 8 of article 10 of the State Constitution, in that the tax is arbitrarily fixed and is neither classified, graduated, nor progressive.\\n(4) That the statute is violative of section 1 of article 10 of the State Constitution (as amended, see Act No. 162 of 1926), requiring that taxation shall be uniform, and of the Fourteenth Amendment of the Federal Constitution, in that it denies defendant the equal protection of the law.\\n(5) That the statute is violative of section 2 of article 1 of the State Constitution and of. the Fourteenth Amendment to the Federal Constitution, in that it deprives defendant of its property without due process of law.\\nWe shall discuss and dispose of defendant's contentions in the order of their statement.\\n1. Under this ground of attack on the statute, defendant complains that the tax in dispute is a' property tax, not an excise or privilege tax,-and that as a property tax it exceeds the limit of 5\\u00be mills, fixed by section 3 of article 10 of the State Constitution, viz.: \\\"The rate of State taxation on property for all purposes shall not exceed, in any one year, five and one-quarter mills on the dollar of its assessed value.\\\"\\nDefendant argues that, notwithstanding the declaration in the statute that the tax is levied on any business or occupation in which mechanical or electrical machines of more than 10 horsepower are used, the tax in realty is not upon the business or occupation of the user of the machines, but is a direct tax upon the only thing of value in the machines, which is their use; that, if it were not for the use to which they are put, the machines would be without any pecuniary value; that it is the value resulting from such use that determines their assessment value for the purpose of property taxation.\\nThe answer to defendant's complaint and argument is that the constitutional limit of taxation to 5\\u00bc mills on' the dollar applies only to the ad valorem tax that is collected annually on all taxable property according to its assessed value. The tax is levied on the right of ownership. Gulf Refining Co. v. McFarland, 154 La. 251, 97 So. 433; Lionel's Cigar Store v. McFarland, 162 La. 956, 111 So. 341. The tax is levied each year based on the assessed value of the property, irrespective of whether the property is used or not.\\nThe tax levied under Act No. 6 of 1932 is not based on the ownership and the assessed value of the machines or apparatus described in the act. It is based on their use in the user's business, whether he is the owner or riot, and irrespective of their assessed value. Under the statute, no tax is due by the owner of the machines or apparatus described therein unless they are used, in the conduct of his business. But the owner's nonuse of the machines or apparatus does not exempt him from the payment of an ad valorem or property tax thereon.\\nAct No. 6 of 1932 designates the tax levied under its provisions as an excise, license, or privilege tax. What characterizes the tax in dispute as a license or privilege tax is that it is collectible only from those who in the conduct of their businesses or occupations use electrical or mechanical power of more than -10 horsepower. ' The measure of the tax is the horsepower capacity, exceeding 10, of the machines or a.p-paratus used in generating the electrical or mechanical power used in the taxpayer's business. Ownership .is immaterial. The tax is not based on ownership. It-'is not levied or collectible from the owner of the property unless he uses it in the conduct of his business and then only in proportion to the horsepower capacity of the property.\\nThe distinction between a property tax and an excise tax is set forth in Cooley on Taxation (4th Ed.) vol. 1, p. 131, \\u00a7 45, as follows, viz.:\\n\\\"Generally the answer to the question whether a particular tax is a property tax or an excise tax is so apparent that there is no room for argument; but in many phases the question has been the subject of much litigation, especially in regard to whether a tax on a corporation is an excise tax or a property tax. If the tax is directly on property itself, the tax is a property tax; but a tax is an excise tax rather than a property tax where it is not a tax on property as such, but upon certain kinds of property, having reference to their origin and their intended use. Another thing to be noted, it has been said, is that the obligation to pay an excise tax is based upon the voluntary action of the person taxed in performing the act, enjoying the privilege, or engaging in the occupation which is the subject of the excise, and the element of absolute and unavoidable demand, as in the case of a property tax, is lacking.\\\"\\nIn the same volume and section of his work, the learned author gives as some examples of taxes which have been construed as excise taxes rather than as property taxes, inheritance taxes, taxes upon transfers of stock, taxes on the privilege of recording mortgages, taxes on the sale of gasoline, taxes on the use of vehicles.\\nThe plaintiff cites three cases in our jurisprudence which seem to be particularly appropriate to the issue involved in this case. The cited cases are: Merriam v. City of New Orleans, 14 La. Ann. 318; Hodgson v. City of New Orleans, 21 La. Ann. 301, and State v. Heymann, 178 La. 479, 151 So. 901.\\nIn the Merriam Case the plaintiff attacked as unconstitutional a municipal ordinance levying a license tax on every keeper of a billiard table; the amount of the tax being measured by the number of tables. Plaintiff contended that the tax was a property tax on the tables and not a license or privilege tax for the use of the tables in the taxpayer's business. But the court held the contention was untenable; that the intention of the municipality was to impose a license tax upon the particular calling or business of keeping a billiard table, and riot a property tax upon the -table itself.\\nIn the Hodgson Case, in which the Merriam Case was cited and quoted with approval, the municipal ordinance which was attacked as unconstitutional levied a tax on \\\"every keeper of a warehouse where produce, goods, wares or merchandise are received on storage, one hundred dollars for each and every warehouse.\\\" The court held that the tax was a license tax imposed upon the particular calling or business or keeping a warehouse and not a tax upon the warehouse itself.\\nThe Heymann Case involved section 37 of Act No. 190 of 1932, which levied a license tax on the business of operating an office building. The court held that the tax was not within the limitation of section 3 of article 10 of the State Constitution; that the tax was not a direct tax upon the property but a license tax upon the business in which the property was used or employed.\\nIn the Merriam, Hodgson, and Heymann Cases it was the use of the property in the taxpayer's business that fixed his tax liability for the privilege of so using the property. The case at bar cannot be distinguished in principle from those cases. In this case also it is the use of the property in his business that fixes the user's tax liability for the privilege of conducting the business.\\nThe defendant cites the cases of Dawson, Attorney General, v. Kentucky Distilleries & Warehouse Co., 255 U. S. 288, 41 S. Ct. 272, 65 L. Ed. 638, and Thompson, Auditor, v. McLeod, 112 Miss. 383, 73 So. 193, L. R. A. 1918C, 893, Ann. Cas. 1918A, 674. The cases were also cited and distinguished from the case presented in Lionel's Cigar Store v. McFarland, supra.\\nWe think the nature and character of the tax in dispute here easily distinguishes it from the whisky tax which was held to be a property tax in the Kentucky Distilleries & Warehouse Company Case. Moreover, the Supreme Court of the United States declared in that case that the question of whether a tax is an occupation tax or a property tax is one of local law so that a decision of it by the highest court of a state will be .accepted as conclusive. Dawson v. Kentucky Distilleries & Warehouse Co., 255 U. S. 288, page 291, 41 S. Ct. 272, 65 L. Ed. page 645.\\nIn the Thompson v. McLeod Case the Supreme Court of Mississippi, by a divided court with a strong.dissenting opinion filed by one of the dissenting justices, went rather far in holding that a tax of one-fourth of one cent each year for each cup or box levied on the business of extracting turpentine from standing trees was a property tax and not'an excise tax. But the decision apparently was based on the finding of the court that the alleged tax debtor in taking the crude gum from his trees was not directly engaged in any kind of mercantile business, but was upon his own property pursuing a natural right; that the privilege taxed was not that of selling the gum of the tree, but the privilege or right of the owner or lessee to extract turpentine from standing trees.\\nOn the other hand, it has been held in Texas that the tax on a certain percentage of the market value of the gross products of oil wells was a tax, \\\"not upon the gross products of the oil wells, but upon the occupation of owning, controlling, or managing oil wells producing oil; and the amount of the tax is measured by a percentage of the market value of the gross products.\\\" Producers' Oil Co. v. Stephens, 44 Tex Civ. App. 327, 99 S. W. 157, 158. And in Alabama it has been held that an additional tax of 3 cents per barrel laid upon all oysters canned, packed, shipped, or sold in and from the state, and on all oysters caught and taken from the public reefs and private bedding grounds for packing, canning, shipping, or for sale was not a property tax, but a charge or imposition upon the business or act of marketing oysters. State v. Parker, 5 Ala. App. 231, 59 So. 741.\\nWe think the Thompson v. McLeod Case is distinguishable from the present case. But, if we are wrong in this, we must nevertheless decline to follow it. The decision was by a divided court, and apparently is contrary to the jurisprudence of this state.\\nOur conclusion is that the tax levied under Act No. 6 of 1932 is an excise, license, or privilege tax and not a property tax, and that the tax is not within the limitation placed upon the Legislature-by section 3 of article 10 of the State Constitution.\\n2. Defendant's next complaint is that the tax in dispute is violative of section 21 of article 10 of the State Constitution. The constitutional provision which defendant invokes reads in part as follows, viz.: \\\"Taxes may be levied on natural resources severed from the soil or water, to be paid proportionately by the owners thereof at the time of severance. Such natural resources may be classified for the purpose of taxation and such taxes predicated upon either the quantity or value of the product at the time and place where it is severed. No severance tax shall be levied by any parish or other local subdivision of the state.\\n\\\"No further or additional tax or license shall be levied or imposed upon pil or gas leases or rights, nor shall any additional-value be added to the assessment of land, by reason of the presence of oil or gas therein or their production therefrom.\\\"\\nDefendant argues that under the constitutional provision the tax in dispute cannot be levied on those who, like defendant, are engaged in the business of severing natural resources from the soil. The record shows that defendant is engaged in the business of operating and pumping oil wells and in transporting and 'handling oil in this state.\\nSection 21 of article 10 of the State Constitution authorizes the Legislature to levy a license tax on the privilege of severing natural resources from the soil or water. And the Legislature has levied the tax authorized by the constitutional 'provision. See Act No. 140 of 1922, as amended and superseded by Act No. 24 of the Second Extraordinary Session for the year 1935. This court has held that the tax levied by Act No. 140 of 1922 was a tax levied on the privilege of severing natural resources from the soil, Gulf Refining Co. v. McFarland, 154 La. 251, 97 So. 433.\\nThe constitutional provision authorizing the Legislature to levy a severance tax prohibits the levying of any further license or tax upon oil or gas leases or rights. No attempt is made in Act No. 6 of 1932 to levy an additional license or tax upon oil or gas leases or rights. All that the statute does is to levy a tax on the privilege of doing business in the state and to fix the measure or quantum of the tax according to the horsepower capacity of the machinery or apparatus used in the conduct of the business.\\n3. Defendant also complains that the tax in dispute is violative of section 8 of article 10 of the State Constitution, which provides that \\\"license taxes may be classified, graduated or progressive.\\\"\\nThe defendant's argument is that the tax is neither classified, graduated, nor progressive, because it is based on the original horsepower rating of the machines and apparatus described in the statute, without any allowance for depreciation.\\nAssuming that the constitutional provision means that license taxes must be classified, graduated, or progressive, any reasonable method of graduation will suffice. State v. Heymann, 178 La. 479, 151 So. 901. Section 3 of Act No. 6 of 1932 designates- or classifies those who are amenable to the tax. The statute levies the tax only on those who in the conduct of their business or occupation at any time use electrical or mechanical power of more than ten horsepower. The statute also graduates the amount of the tax levied. The measure or quantum of the tax is determined by the total horsepower capacity of the machinery or apparatus used in the conduct of the business. The greater the horsepower capacity of the property used, the greater the tax. The possible depreciation in the property used cannot in any manner affect the legality of the tax.\\n4. Defendant further complains that section 3 of Act No. 6 of 1932 violates section 1 of article 10 of the State Constitution requiring that taxation shall be uniform on the same class of property throughout the territorial limits of the authority levying the tax, and that it denies the equal protection of the law guaranteed by the Fourteenth Amendment of the Federal Constitution, in that it fails to exempt from taxation the \\\"stand-by\\\" engines used by those generating their own power while exempting the \\\"stand-by\\\" engines of those who purchase their power from the persons, firms, corporations, or associations subject to the tax imposed by sections 1 and 2 of the statute.\\nThe pertinent portion of section 3 of Act No. 6 of 1932 reads as follows, viz.: \\\"Provided that any user of power securing all or any part of the power required in the conduct of the business or occupation of such user from a person, firm, corporation or association of persons subject to the tax imposed by Section 1 or Section 2 of this act, shall not be liable for the tax imposed by this Section 3, or for a greater tax under this Section 3, as the case may be, because of the employment of stand-by power facilities by such user during periods of failure of the supply of purchased pow- \\u00bb\\nThe requirement of section 1 of article 10 of the State Constitution that all taxes shall be uniform applies only to property taxes and not to license taxes levied by the Legislature under the authority of section 8 of article .10 of the Constitution. State v. American Ry. Express Co., 159 La. 1001, 106 So. 544.\\nHowever, we fail to see wherein the statutory provision hereinabove quoted violates either section 1 of article 10 of the State Constitution or the .Fourteenth Amend-to the Federal .Constitution. If a machine is not used in the owner's business, vsrhether it be a stand-by machine or not, it is not subject to the tax. Under the provisions of the statute, all taxpayers occupying the-same status or falling into the same class are treated alike. The statute appears to separate the taxpayers into three distinct classes, namely: Those engaged in the business of manufacturing or generating electricity'for heat, light, and power. Section 1. Those who are engaged in the business of selling electricity not manufactured or gefterated by them, for heat, light, or power. Section 2. And those who produce the electrical or mechanical power which they use in the conduct of their own businesses or occupations. Section 3. No tax appears to 1?e directly levied on those who use in their business the electricity manufactured or sold by those subject to the tax levied under sections 1 and 2.\\nThe placing of all those who generate their own power in a separate class is not arbitrary or unreasonable, and we think it was within the sound discretion of the Legislature to make such a classification. The failure to permit the employment of standby facilities free of taxation by such users, while providing that a different class of persons not directly taxed under the statute (section 3) \\\"shall not be liable for the tax imposed by this Section 3, or for a greater tax under this Section 3, as the case may bej\\\" because of the employment of stand-by power facilities by such persons during periods of failure of the supply of purchased power, does not arbitrarily discriminate against or deny the equal protection of the l\\u00e1w to the distinct class of taxpayers created by section 3 of the statute.\\n5. Defendant's remaining complaint is that Act No. 6 of 1932 violates the due process clauses of both Federal and State Constitutions. Defendant contends that all phases of the statute relative to the levy, determin\\u00e1jipn of the amount and collection of the tax considered together constitute a denial of due process of law. We do not think the complaint is well founded.\\nThe tax in dispute is levied in addition to all other taxes. It is levied as an excise, license, or- privilege tax on all businesses where, in the conduct of the business, electrical or mechanical power of more than 10 horsepower is generated. The tax is measured by the horsepower capacity of the machinery or apparatus used in generating the power. The rate is $1 per horsepower.\\nSection 6 of the statute requires those coming under the provisions of the statute to file a return with the supervisor of public accounts at the end of each fiscal year, showing the amount of horsepower capacity of the machinery and apparatus used during the year. Under the statute the fiscal year ends July 31st of each year, and the taxpayer is allowed until September 1st,- or a period of thirty days, within which to file his return. This return must contain. the taxpayer's own calculation as to the horsepower capacity of the machinery or apparatus used by him in the conduct of his business.\\nThe statute specifically designates the date on which the fiscal year ends, prescribes the period within which the taxpayer must file his return, and permits him to fix the measure of the tax by directing him to set forth in his return the horsepower capacity of the machinery or apparatus-used by him during the year. The taxpayer is thus given an opportunity to be heard, and, if he fails to avail 'himself of the opportunity, he is considered as having waived it. Pullman Co. v. Knott, 235 U. S. 23, 35 S. Ct. 2, 59 L. Ed. 105. If the return is not made, the supervisor of public-accounts is to make a return or cause it to be made, upon such information as the supervisor may be able to obtain, assess the tax due thereon, and add a penalty of 25 per cent, to the amount of the tax for the failure of the taxpayer to make the return. If the taxpayer does as required, there is nothing to be heard about. The tax being based on a fixed rate per horsepower, there is nothing the taxpayer can do which can affect the amount of the tax. He reports .the total capacity of horsepower used in his business, and the statute establishes the amount of the tax to be collected from him. The provision in the statute imposing- a penalty for the failure of a taxpayer to report is for his failure to do his duty. In that event, his-chances to be heard have gone by. Pullman Co. v. Knott, supra.\\nOur conclusion is that Act No. 6 of 1932 provides a well-established and constitutional method of levying the tax, arriving at the amount due and for collecting it from the taxpayer.\\nFor the reasons assigned, the judgment appealed from is annulled, and it is now ordered that there be judgment in favor of plaintiff the state of Louisiana, and against defendant, H. L. Hunt, Incorporated, in the sum of $1,050, with 25 per cent, thereon as penalty, 10 per cent, on the amount of said principal and penalty as attorney's fees, and 5 per cent, per annum interest on the total amount from judicial demand until paid. It is further ordered that the said plaintiff have judgment against the said defendant in the further sum of IR-OSO, less a credit of $525, with 25 per cent, thereon as penalty, 10 per cent, on the principal amount, plus the penalty as attorney's fees, together with 5 per cent, per annum interest on the total amount from judicial demand until paid. All costs of suit to be paid by the defendant.\\nIt is further ordered that the lien filed in the mortgage records of the parish of La Salle in Book 15, folio 233, to secure plaintiff's claim, be recognized and maintained, and that the sheriff of the parish of La Salle be authorized and directed to sell the property and assets of the defendant situated in the parish of La Salle according to law, and that the proceeds thereof be used to pay the amount of plaintiff's judgment over and above all other creditors of defendant.\\nODOM, J., dissents.\"}"
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+ "{\"id\": \"10067908\", \"name\": \"MAROUN et al. v. MARRS (TOLEDO SCALE CO., et al., Interveners)\", \"name_abbreviation\": \"Maroun v. Marrs\", \"decision_date\": \"1938-01-28\", \"docket_number\": \"No. 5575\", \"first_page\": \"723\", \"last_page\": \"726\", \"citations\": \"178 So. 723\", \"volume\": \"178\", \"reporter\": \"Southern Reporter\", \"court\": \"Louisiana Court of Appeal\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-11T01:55:09.226095+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MAROUN et al. v. MARRS (TOLEDO SCALE CO., et al., Interveners).\", \"head_matter\": \"MAROUN et al. v. MARRS (TOLEDO SCALE CO., et al., Interveners).\\nNo. 5575.\\nCourt of Appeal of Louisiana. Second Circuit.\\nJan. 28, 1938.\\nJ. B. Crow, of Shreveport, for appellants.\\nWilkinson, Lewis & Wilkinson, of Shreveport, for appellees.\", \"word_count\": \"1831\", \"char_count\": \"11442\", \"text\": \"HAMITER, Judge.\\nThe defendant herein, W. G. Marrs, rented from the plaintiffs under a written contract the premises located at the southeast corner of Spring and Texas streets in the city of Shreveport, La., more specifically designated as municipal No. 129 Texas street. When the lessee defaulted in the payment of the agreed rent, the lessors instituted this suit, seeking recovery under the provisions of the lease agreement. In connection therewith, a writ of provisional seizure issued, and thereunder the sheriff seized the furniture, fixtures, merchandise, and other property located in the premises.\\nSubsequently the Allied Store Utilities Company filed a petition of intervention and 'third opposition alleging that it sold to defendant under date of September 29, 1936, certain equipment seized by plaintiffs, and that in payment therefor defendant executed in its favor on said date a promissory note, together with an act of chattel mortgage on the purchased articles. A further allegation is that the mortgage was by notarial act and was duly recorded in the chattel mortgage records of Caddo parish,. La., before the said property was placed in or on the leased premises. Another averment is that it has a prior lien and privilege on said property and is entitled to its release or to be paid out of the proceeds of the sheriff's sale by priority and preference over plaintiffs and all other creditors of defendant. Appropriate judgment is prayed for against plaintiffs and defendant.\\nAlso filing a petition of intervention and third opposition in the proceeding was the Toledo Scale Company, a creditor of defendant. It alleges the ownership of, or, in the alternative, that it has a vendor's lien and privilege on other certain described property seized by plaintiffs, under and by reason of a written contract entered into with defendant. This third opponent avers its right to immediate possession of said property, or, alternatively, that it is entitled to be recognized as having a vendor's lien and privilege thereon superior to all other persons. Judgment in accordance with the named allegations is asked for against plaintiffs and defendant.\\nPlaintiffs' answer to the opposition of the Allied Store Utilities Company asserts that the latter's alleged act of chattel mortgage was not recorded, as required by law, before the property covered thereby was placed in the leased premises. Alternatively, it alleges that the act of chattel mortgage is a nullity.\\n. In answering the opposition of the Toledo Scale Company, plaintiffs allege the superiority of their lessor's lien and privilege, regardless of the consttuction to be placed on the contract executed by and between said third opponent and defendant.\\nNo appearance was made by defendant Marrs, and preliminary defaults were regularly entered against him by plaintiffs and by both third opponents.\\nAfter a trial of the merits, there was judgment in favor of plaintiffs and against defendant* for the amount of the rent claim asserted, and decreeing the maintenance of the provisional seizure, with recognition and enforcement of the lessor's lien and privilege, on all of the property in the leased premises, except one used meat cooler. Third opponents were granted judgments against Marrs for the amounts of their respective claims, but their demands to be paid by preference to plaintiffs' claim were rejected, with the exception that the chattel mortgage of the Allied Store Utilities Company was held superior to plaintiffs' lessor's lien and privilege in so far as the aforementioned used meat cooler is concerned.\\nOrders of suspensive and devolutive appeal were requested by and granted to both of the third opponents. The Allied Store Utilities Company perfected its appeal, but the Toledo Scale Company failed in this regard. The latter filed no bond. Defendant Marrs did not appeal.\\nIn this court plaintiffs have filed a motion to dismiss the appeal sought to be taken by the Toledo Scale Company for the reason that the required appeal bond has not been filed by it. In our opinion the motion must be sustained. An appellate court is not permitted to review the proceedings and judgment of the trial\\\"court when the orders of appeal are not accompanied by an appropriate bond. Durrett Hardware & Furniture Company v. Howze, La.App., 174 So. 205, and cases therein cited.\\nIn answering the perfected appeal, plaintiffs pray for an amendment of the trial court's judgment by ordering recognition of their lessor's lien and privilege on the used meat cooler as being superior to the claim of the Allied Store Utilities Company.\\nIn view of the faot that no valid appeal was pro'se.cuted by either the defendant or the Toledo Scale Company, we are concerned only with the controversy existing between plaintiffs and the Allied Store Utilities Company. For convenience, the latter will hereinafter be designated as appellant.\\nIt is urged by plaintiffs in this court that the chattel mortgage granted-by Marrs to appellant is illegal, null, and void for the reason that (1) the property sought to be mortgaged is not described as required by law, and (2) the act does not specify and set forth the location of the property.\\nThe instrument stipulating the herein-discussed chattel mortgage recites, in part, the following:\\n\\\"Ship to... W. G. Marrs\\n\\\"Street No_ Corner Texas St. & Spring St.,\\n\\\"City... Shreveport... Parish Caddo... State Louisiana\\n\\\"State of Louisiana \\\\\\n\\\"Parish of Caddo /\\n\\\"Be it known, that on this 29th day of September, 1936, before ike, J. B. Crow, a Notary Public, duly commissioned and qualified within and for the Parish of Caddo, State of Louisiana, and in the presence of the witnesses hereinafter named and undersigned, personally came and appeared Allied Store Utilities Co., a corporation, vendor, and herein represented by \\u00c1. B. Wynn, whose authority to act herein is acknowledged, which company hereby sells, transfers and conveys to W. G. Marrs, a resident of the Parish of Caddo, State of Louisiana, who also appears, is here present, accepting and purchasing for himself, his heirs and assigns, the following described property:\\nQuantity Model No. Fixture Finish Price FOB 1\\\" actor;\\nOne DX610 Hussman-Ligonier Refrigerator counter(s) 10 ft. long Regular Store Serial #36-1003\\nX86 Cooler coil for used cooler t\\nValve for X86 coil s\\n\\\" 100MS Hussman-Ligonier Condensing Unit(s), l'H. P. Current .AC, Electrical Volts, 220, Specification Cycles, 60 Phase 1\\n\\\" Grocer Refrigerator (s)\\n\\\" Used Meat Cooler (s), 8 ft. front, 6 ft. Depth 10.\\\"\\nWith reference to the describing of movable property to be mortgaged, section 2 of Act No. 198 of 1918, as amended by Act No. 178 of 1936 (the Louisiana chattel mortgage statute), provides that,\\n\\\"Every such mortgage of property mentioned in Section 1 shall be in writing, setting out a full description of such property to be mortgaged, so that the same may be identified.\\\"\\nThe chattel mortgage held by appellant\\\" is in writing, and the description of the property therein contained, which is above given, is in our opinion sufficiently definite and complete so as to permit identification thereof. Particularly is this true, when the stated shipping destination of the articles is considered in connection therewith.\\nThe contention is made by plaintiffs' counsel that pursuant to the provisions of section 6 of the chattel mortgage statute, Act No. 198 of 1918, the mortgage act must recite the location of the property affected; otherwise, there is no valid encumbrance as against third persons. The referred to section reads:\\n\\\"Section 6. Be it further enacted, etc., that for the purpose of this Act, it shall be sufficient for the Recorder of each Parish to keep a book to be known as the Chattel Mortgage Book,, which shall' be ruled off into columns, with headings as follows:\\n\\\" 'Time of Filing for Recordation'; 'Name of Mortgagor'; 'Name of Mortgagee'; 'Date of Instrument'; 'Amount Secured'; 'When Due'; 'Property Mortgaged' ; 'Remarks.'\\n\\\"Under the head of 'Property Mortgaged,' it shall be sufficient to enter a general description of the property and the particular place where located.\\\"\\nAssuming, arguendo, and for that purpose only, that the provision just 'quoted sustains counsel's contention, we are of the opinion that the act of chattel mortgage under consideration satisfies the mentioned requirement. As is noted from the hereinabove copied extract, the mortgaged property was shipped to \\\"W. G. Marrs, corner of Texas & Spring streets, Shreveport, Caddo Parish, Louisiana.\\\" Certainly, this sufficiently designates and names the location of the encumbered movables.\\nHaving determined that appellants' chattel mortgage is valid, we now give consideration to the other contention of plaintiffs that the encumbrance sought to be enforced by appellant is inferior in rank to their lessor's lien, and privilege for the reason that the affected articles were placed in the leased premises before the re-cordation of the chattel mortgage act.\\nThe settled jurisprudence of the state relative to this issue is that the privilege resulting from the execution and recordation of a chattel mortgage takes precedence over and primes a lessor's lien and privilege arising subsequently thereto; and, conversely, a prior lessor's lien is superior to a subsequently recorded chattel mortgage. Youree et al. v. Limerick, Papas, Intervenor, 157 La. 39, 101 So. 864, 37 A.L.R. 394; Union Building Corporation v. Burmeister, 186 La. 1027, 173 So. 752.\\nThe only chattel mortgage asserted and alleged on by appellant in this cause is of date September 29, 1936. On direct examination, a district representative and witness of appellant testified that such mortgage was filed for record and recorded before the property covered thereby was placed in the rented premises. However, under cross-examination, he stated that the only article purchased by defendant under the September 29, 1936, transaction was the used meat cooler. There is also evidence in the record that the refrigerator counter, described in the above-mentioned act of mortgage, was affected by another chattel mortgage executed by defendant in appellants' favor under date of June 22, 1936, which is not involved in this suit, and was placed in the rented premises after the recordation of the last-mentioned instrument. From all of this proof, it must be concluded that the mortgaged property, except the used meat cooler, was purchased and placed in the leased premises in connection with the chattel mortgage of date June 22, 1936, and was there located when the act of September 29, 1936, was executed and recorded. Appellant's pleadings contain no allegations regarding the mortgage act of June 22, 1936, and because of this, its introduction in evidence was properly denied after timely objection had been made by plaintiffs' counsel.\\nAccordingly, we hold, as did the trial court, that appellant's chattel mortgage is superior in rank to the lessor's lien and privilege of plaintiffs in so far as the used meat cooler is concerned, but with reference to the remaining seized property it is inferior thereto.\\nThe judgment appealed from is affirmed. Appellant shall pay the cost of the appeal.\"}"
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+ "{\"id\": \"10081936\", \"name\": \"THOMAS v. MARYLAND CASUALTY CO.\", \"name_abbreviation\": \"Thomas v. Maryland Casualty Co.\", \"decision_date\": \"1947-11-21\", \"docket_number\": \"No. 2955\", \"first_page\": \"472\", \"last_page\": \"478\", \"citations\": \"32 So. 2d 472\", \"volume\": \"32\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Louisiana Court of Appeal\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T23:03:14.698503+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THOMAS v. MARYLAND CASUALTY CO.\", \"head_matter\": \"THOMAS v. MARYLAND CASUALTY CO.\\nNo. 2955.\\nCourt of Appeal of Louisiana. First Circuit.\\nNov. 21, 1947.\\nRehearing Denied Dec. 30,1947.\\nWrit of Certiorari Denied Feb. 16,1948.\\nSamuel M. Robertson, of Baton Rouge, for appellant.\\nTaylor, Porter, Brooks & Fuller, of Baton Rouge, for appellee.\", \"word_count\": \"4606\", \"char_count\": \"26753\", \"text\": \"DORE, Judge.\\nThis is a compensation suit brought by the plaintiff against the defendant Maryland Casualty Co., the compensation insurer of Armco Drainage and Metal Products Company, plaintiff's employer.\\nPlaintiff alleges that on Saturday, March 16, 1946, while in the employ of Armco Drainage and Metal Products Company, he was engaged with other employees in digging a pit in which to install a concrete slab and, while so doing, he slipped and fell into the pit, fracturing his left hip bone and straining both sacro-iliac joints and causing or aggravating a hypertrophic arthritis in the lumbar spine, all of which injuries are painful and causing stiffness in his back, which disabilities are permanent; that he has not been paid any compensation; that his rate of pay was in excess of $30 a week.\\nHe prays for judgment decreeing him to be totally and permanently disabled and for compensation at the rate of $20 per week for a period not exceeding 400 weeks, beginning March 16, 1946, together with interest on all unpaid past due instalments and for $500 medical expenses.\\nDefendant, for answer, denies all of plaintiff's allegations, save that it admits that it has not paid plaintiff any compensation.\\nThe trial of the case resulted in a judgment in favor of defendant dismissing plaintiff's suit, the trial judge holding, with written reasons, that plaintiff had failed to prove his case by a preponderance of the evidence. Plaintiff has appealed.\\nIn this court there are only two questions presented: First, since it is now admitted by the defendant that the plaintiff suffered an accident in the course and scope of his employment, the principal question is whether or not the plaintiff was disabled and has been disabled ever since from performing hard manual labor. It is the contention of the defendant that the accident was slight and did not result in any disabling injury to the plaintiff. Second, if compensation is due, the weekly wage of plaintiff is in contest. These questions will be discussed in their respective order.\\nThe record discloses that plaintiff was engaged in leveling a pit of 12 by 14 feet and four or five inches deep which was to be filled with a concrete slab. A slow drizzle rain was falling and the ground was slick and just soft \\\"enough to mess you up.\\\" The plaintiff's feet slipped from beneath him and plaintiff fell backward in a split to the ground on his bottom and left hip; his body from the waist down came in contact with the ground. The accident happened on Saturday afternoon at about 2:30, March 26, 1946. The plaintiff completed the remainder of the work day, did not work on Sunday, reported to and did work on Monday, Tuesday, Friday, Saturday and Sunday, and was paid therefor. On Monday, April 4, he was referred to Dr. Godfrey, the company and the insurer physician. He reported to Dr. Godfrey on April 5.\\nAccording to plaintiff, he \\\"got up limping in his left side,\\\" and continued to work in pain for the remainder of the day. He attempted to continue working in pain until he could not \\\"make it no further.\\\" He then reported his condition to the superintendent, who sent him to Doctor Godfrey. He went to Doctor Godfrey's office and Doctor Godfrey treated him once. Dr. Godfrey gave him a slip to go to Doctor Williams' office to have his back X-rayed. He did not report to Dr. Williams. He has not worked or attempted to work because he was suffering with so much pain.\\nThe record discloses, according to Dr. Godfrey's report, that plaintiff was examined by Dr. Butler, a colored doctor, on April 4, 1946. We have no report or testimony as to the findings of this doctor. Thereafter, plaintiff was examined by Dr. Godfrey, defendant's doctor, on April 5, 1946. Comment will be made further in this opinion as to Dr. Godfrey's testimony and findings.\\nPlaintiff was next examined by Dr. Kuehnle on April 8, 1946. Dr. Kuehnle testified that \\\"on the first examination the pertinent physical findings were as follows : There was tenderness over both sacroiliacs and a moderate amount of spasm to the paravertebral muscles. While lying on his back he was unable to raise actively the extended left leg higher than about ten inches, and even with this he complained of considerable pain in the left side of the back.\\\" At that time, the doctor made a tentative diagnosis of sacroiliac sprain. He requested X-rays, which were made on April 9, 1946, by the office of Dr. Williams.\\nThe X-ray examination of plaintiff was made by Dr. Arthur S. Alexander, an associate of Dr. Williams, on April 9, 1946. The report of that examination is as follows: \\\"Examination of the entire pelvis including both hip joints and a localized projection of the left hip reveals a questionable cortical fracture 4 mms. in projected length involving the most superior margin of the greater trochanter. If this short area of translucency represents a fracture line, the fragments are in perfect position and alignment.\\\"\\nOn the basis of this X-ray report and his physical examination of plaintiff, on April 9, 1946, Dr. Kuehnle's diagnosis was \\\"Sacroiliac sprain and possible incomplete fracture of the cortex of the greater tro-chanter of the left femur.\\\" Following this, plaintiff was given sixteen diathermy treatments, the first on April 9, 1946, and the last on May 1, 1946.\\nAccording to Dr. Kuehnle's testimony and report, the plaintiff had made good progress towards recovery on May 2, 1946; and was able to resume light work on May 13, 1946, the plaintiff being able to walk with almost normal posture, although he did give the impression of a slight splinting of the lower back. With regard to the fracture of the greater trochanter of the left hip, he stated that the prognosis was good. As of date of May 12, the doctor said that \\\"the injury appears to have recovered.\\\"\\nThe plaintiff was again referred to Dr. ICuehnle on December 5, 1946. The result of that examination, according to the doctor's testimony, \\\"revealed pain in the sacroiliac on extreme flexion of the extended leg. Test for sciatic nerve injury was negative. That was about the extent of the positive findings at that examination.\\\" In a letter to plaintiff's attorney, of date of December 10, 1946, relative to the examination of December 5, 1946, the doctor wrote: \\\"The patient complains of continuous pain in the lower back, radiating down the back of the legs and pain in the left hip. X-ray examination on repeated occasions have revealed no evidence of bone or joint injury. Patient complains of tenderness over the lower back, however, no muscle spasm could be detected. On pinching the skin the patient complained of more severe pain than when pressure was applied to the muscles of the back. Straight leg raising test produced pain only on extreme flexion . It is my opinion that although this man may have pain in the lower back as a result of this accident, the symptoms are far in excess of the amount of pain indicated as a result of these tests. I think that this man is exaggerating his symptoms and that he is actually able to return to work.\\\"\\nI-Ie was shown an X-ray report of May 21, 1946, and was questioned as to any hypertrophic arthritis in the lumbar spine of plaintiff. He read, \\\"except for minimal hypertrophic osteoarthrosis of the lumbar spine, the vertebrae are normal in size, contour and texture.\\\" He would not venture an opinion as to whether the fall caused plaintiff's arthritic condition nor whether it aggravated a previous existing arthritis in the back, merely stating that it was possible and that the present complaints of plaintiff fit in with the picture-of an aggravated arthritis.\\nRegardless of his previous reports and' testimony, the witness, on the date of trial,, expressed the opinion that the plaintiff was-still suffering pain and had not entirely recovered. This opinion is based solely upon a test conducted in open court by the witness and Dr. Cosby, which test is shown as the \\\"Robertson's Sign.\\\" With reference to this test, the witness stated that was the only objective evidence of pain he found on the day of trial. We shall further comment on this test later on in this opinion.\\nUpon being interrogated as to plaintiff's ability to do the work he was accustomed to do prior to the accident, the witness would not commit himself further than that he had recommended to plaintiff that he attempt to work and that it all depends whether plaintiff is willing to try to work. He added that \\\"with the psychological factor he has there, I do not know if he will ever admit that he is not hurting as bad as he says he is.\\\" The witness further expressed the opinion that a compensation settlement would greatly benefit plaintiff's back. However, the doctor would not classify plaintiff as a malingerer.\\nThe plaintiff next offered the testimony of Dr. J. A. Thom, a general practitioner of medicine, of Baton Rouge. He testified as follows: . i\\n\\\"I saw him first on May 3, 1946. At that time there was rigidity of the lower spinal muscles, both on the right side and the left, but more definitely on the left, and he complained of an area of tenderness most noticeable over the left sacroiliac region. It was not well defined, but it extended up the lumbar spine and over into the right side. , . .,\\n\\\"In testing out these leg tests to determine where the trouble was, when you extended the leg on that straight leg test, the leg on the left side, when it was flexed up at right angles, extended slightly beyond, it threw the left lower lumbar muscle into a spasm. The same was not true on the right side, at least was not as noticeable on the right side. I detected no sciatic pain.\\n\\\"On several different occasions I made those tests on him to see how he was progressing. The treatment I used was to immobilize him with Zeo plaster. As we went along, I made several tests on him, and this rigidity of the spinal muscles became less. The last time I checked him over was today. On palpation of the back there was no definite rigidity of those back muscles, although there was more tone to the left dorsal muscle, lower spinal muscle, more tone to it, and it appeared a little larger. On flexing the leg on the leg test, these spinal muscles on the left side were not thrown into a spasm when the leg was over-flexed, not a definite spasm. It caused some rigidity of it, but not a definite spasm.\\\" Further in his testimony, he considers the X-ray findings of arthritis as fitting into the picture of the back pathology he, the witness, developed. He expressed the opinion that the plaintiff's injury had incapacited .him from heavy work, but had urged him to try to do light work. \\\"He (plaintiff) said that he knew he was not able to do a day's work for a man and that nobody would hire him.\\\" He, witness, was not of the opinion that plaintiff was a malingerer, but he considered \\\"like we have to consider all these cases, that they (claimants) make the most they can out of the ailments they have.\\\" He had seen the plaintiff professionally at least 12 or 15 times, maybe more, the first time being on May 3 and the last time in September.\\nOn being questioned by the Court to state in plain English what was his diagnosis, the doctor states: \\\"I think he has a minimum of arthritis. I would have made that diagnosis without the X-ray verifying it. I felt that he had strained his back and had a minimum degree of arthritis, and I also felt that the tendons around there were involved in it, that the tendons were strained.\\\" He was of the opinion that probably the minimum of arthritis was existing prior to the injury, but that the injury aggravated the arthritic condition of his back.\\nIt appears that Dr. Thom had plaintiff X-rayed in May, 1946, and in September, 1946, by the associate of or by Dr. Lester J. Williams.\\nThe report of Dr. Alexander, on May 21, 1946, is as follows:\\n\\\"Examination of the lumbo sacral spine including the entire pelvis and both hip joints reveals no disalignment. Except for minimal hypertrophis osteoarthrosis of the lumbar spine, the vertebrae are normal in size, contour and texture. The inter-vertebral discs are of normal height. The lumbo-sacral and sacro-iliac articulations reveals no changes.\\n\\\"The pelvis is symmetrical. Both hip joints are of equal and normal width and their articular corticies are smooth and regular.\\n\\\"A detail projection on re-examination of the left hip reveals practically complete healing of the suspected fracture at the tip of the greater trochanter. The fragments are in perfect position and alignment.\\\"\\nThe report of Dr. Williams of date of September 30, 1946, is as follows:\\n\\\"X-ray examination of the left pelvis including the hip joint and the proximal half of the left femur is negative for any present evidence of fracture, nor is there any evidence of unabsorbed callus near the superior margin of the greater trochanter.\\\"\\nThe report of Dr. Williams of date of September 30, 1946, is as follows:\\n\\\"X-ray examination of the lumbar spine and pelvis by means of antero-posterior and lateral projections is negative for present fracture or dislocation. There is no evidence of unabsorved callus near the superior margin of the greater trochanter of the left femur. The lumbar spine is normal in size, contour and texture. There is a slight hypertrophic arthritis of the entire lumbar spine. There has been no increase in the amount of hypertrophic arthritis shown since 5/14/46, as shown by a careful comparison of the films at that date and the present. The intervertebral discs are of normal height. The lumbo-sacral and sacro-iliac articulations exhibit no pathology.\\\"\\nThe defendant offered the testimony of Mr. M. E. Hughes, the timekeeper of plaintiff's employer. According to this witness, the witness was about two feet from the plaintiff when plaintiff fell. Plaintiff got up, kind of smiled and looked around to see if anyone was looking at him. Plaintiff did not complain of being hurt. Plaintiff continued to work the rest of the day. The following day, plaintiff did not work. The following morning, plaintiff reported for work and complained of hurting. He, the witness, told him if he, plaintiff, didn't get any. better, he should go to a doctor. Plaintiff kept on working for five days; he kept on complaining, and finally the witness gave him an order to the doctor. After he gave him the order, that was the last he saw of plaintiff. He denies that at any time after the accident plaintiff limped.\\nDr. J. R. Godfrey, called by the defendant, testified that he first saw plaintiff on April 5, 1946,' and that plaintiff at that time gave him a history of having slipped and fallen backwards on March 26, 1946, and that the pain resulting from the fall increased in the days that followed, and on April 4th he consulted a colored physician and received some treatments; that the plaintiff complained of pain over the general area of the lumbo-sacral joint, all the way around the left to the inguinal region. The doctor testified further that he found no objective symptoms as a result of physical examination of the plaintiff, and that he diagnosed his condition as muscle sprain of the lower back, \\\"giving him the benefit of all doubt.\\\" Dr. Godfrey states that the attitude of plaintiff was that of a malingerer in that he grossly exaggerated his symptoms, and even stated that he knew his condition was hopeless and that no amount of treatment would do him any good. He was re-examined by Dr. Godfrey on December 10, 1946, at which time he again exaggerated his symptoms, stating that he had been in extreme pain since the accident and had been unable to work, and on this particular visit the doctor states: \\\"Plaintiff hobbled on a cane carried in his right hand, when, as a matter of fact, his pain was supposed to be on his left side.\\\" The sum and substance of Dr. Godfrey's testimony is to the effect that plaintiff suffered some minor strain on March 26, 1946, but that he was not seriously or permanently injured, and is now capable of returning to his former work of performing manual labor.\\nThe defendant offered the testimony of Dr. Frank Brostrom, an orthopedic specialist, of New Orleans; the doctor examined the plaintiff, on request of defendant, on October 23, 1946. His testimony was taken out of court. After thoroughly going into plaintiff's complaints, and after making a thorough examination of plaintiff, lasting about two hours, to determine his physical condition, the witness, in his report, states r\\n\\\"I do not doubt that the claimant sustained a strain of the lower back from the fall on March 26, 1946, for which he received treatment. The continued complaint of pain over the crest of the left ilium that radiates over the front of the abdomen into the right hip and into the back is too absurd for the examiner to put much faith in the claimant's statements. A minor cortical fracture of the greater trochanter that has healed so perfectly, could not give rise to symptoms seven months after the accident. The range of motion of the lumbar spine, considering the man's age and obesity is in my opinion within normal limits and in view of the negative clinical findings, I see no reason why the claimant should not resume his former occupation.\\\"\\nIn his examination and report on the plaintiff, Dr. Brostrum was questioned about X-rays taken by Dr. Teitelbaum, in charge of the Department of Radiology at Touro Infirmary, and referred to the report of this doctor. Dr. Teitelbaum's report is as follows:\\n\\\"Examination of the lumbar spine reveals no disalignment. The vertebrae are of average size, contour and texture and except for minor osteoarthrosis, exhibit no evidence of injury. The inter-vertebral discs are of normal height. The lumbo-sacral and sacro-iliac articulations shows no changes. An antero-posterior projection of the entire pelvis including both hips and the proximal femurs and a supplementary lateral film of the left hip show the component bones to be normal in contour, texture and density. The hip joint spaces are of equal arid average width and the articular cortex is smooth. - No evidence of disease or injury is demonstrated.\\\"\\nDr. Teitelbaum, in his examination, states that such minor degenerative changes as shown by the X-rays are commensurate with a patient of middle age; but there was no evidence of injury or disease other than these. Plaintiff was 42 years of age when the X-rays were taken by him.\\nAt the beginning of the trial, the plaintiff offered the joint testimony of Dr. Kuehnle and Dr. O. W. Cosby, an eye specialist. Dr. Kuehnle read from a book written by Dr. Otto Steinbrocker the definition' of \\\"Robertson's Sign\\\" as \\\"Dilation of pupils produced by pressure upon any painful area resulting from an organic lesion. In the malingerer or neurasthenic, when an alleged pain is complained of, pressure over the area fails to produce reaction.\\\" Dr. Cosby testified that the \\\"Robertson's Sign\\\" is the same as found in Volume I., Textbook of Ophthalmology, by Duke-Elder, an outstanding book in ophthalmology. He read from this book, under the heading of \\\"The Phycho-Sensory Reflex\\\": \\\"The stimulation of any sensory nerve results in a dilation of the pupils. The dilation does not depend directly upon the physical intensity of the stimulus, but is a function also of the state of receptivity of the higher centers or after ablation of the cerebral entex. The stimulation of any sensory.\\\" The doctor states that, in short, it \\\"simply means that if a painful stimulus occurs there is a resultant dilation of the pupil. Dr. Cosby and Dr. Kuehnle applied the test to plaintiff and to Mr. Middleton, associate counsel for defendant. Dr. Cosby testified that there were dilation of the plaintiff's pupil when Dr. Kuehnle applied pressure upon the left sacro-iliac, the lum-brosacral area of the back, and the right sacral iliac and the anterosuperior area spine of plaintiff and there were no dilation of the pupil when pressure was applied at these areas of Mr. Middleton. There was a dilation of Mr. Middleton's pupil when a painful stimulus was produced by flexion of a finger. He has only applied this test on three occasions, first in the Trimble case, second in this case, and third upon himself. He states that any stimulus to the sensory nervous system will cause dilation of the-pupil, such as fear, excitement, possible extremes of temperature or emotional disturbances.\\nDr. J. S. Anderson, an eye, ear, nose and throat specialist, was offered by the defendant. This doctor testified that he had no information about the \\\"Robertson's Sign\\\"; that prior to three or four days to the trial of the case. As to the Duke-Elder book, he states that any stimulation, either mind or the body, be it psychic or physical stimulation, will cause a dilation of the pupil. He states that the test is not an accurate test of whether a man is suffering pain. In that he is corroborated by Dr. Godfrey.-\\nAnent the \\\"Robertson's Sign\\\" test conducted in open Court and the testimony offered pro and con, relative to proof of pain by the dilation of the pupils of the eye, the preponderance of the evidence shows that the doctors do not think much of this test in that it is-shown that fear or other emotions will cause the pupils to, dilate and that there is no way to tell the degree of pain by the dilation of the pupils. We do not attach any probative value to the test in the determination of this case.\\nA,s to the lay testimony, we have only the testimony of plaintiff's wife, of Mr. J. L. Winfree and of plaintiff.\\nHis wife testified that although plaintiff was a hard working man supporting himself and her, since the accident plaintiff has been unable to work; plaintiff does not rest at night; sometimes she has to get up during the night and rub plaintiff with alcohol; he sleeps on a hard matress, on boards. On account of the plaintiff's condition she had to seek work and that they live on her earnings and help from her employer. Plaintiff never leaves the home and has not earned any money since the accident.\\nMr. Winfree, an employee of the Gulf Refining Co., testified that plaintiff's wife is in his employ as a domestic servant and occasionally keeps the children at night for him and his wife. He knows nothing of plaintiff's ailments; he frequently takes plaintiff's wife home and on these occasions, he, during the afternoon, invariably found plaintiff sitting on the porch complaining .of pain and with apparent difficulty in walking from the porch to the car; plaintiff would walk with a limp and with a cane. At night, plaintiff would be up and would open the door to let his wife in. He would not see plaintiff. Witness' wife would give food and clothes to plaintiff's wife.\\nPlaintiff has testified that ever since he quit his employment with the Armco Drainage and Metal Work, he has not worked and cannot work on account of pain. He is corroborated by the doctors who testified in the case in that his hands are those of one who appears not to have worked. He states that none of the treatment he has received had done any good, save to give him temporary relief.\\nIt is indeed hard to understand this case. All the doctors, save Dr. Godfrey, will not classify the plaintiff as a malingerer. However, Dr. Kuehnle was of the opinion that plaintiff was able to return to work on December 5, 1946. Dr. Thom was of the opinion that in September, 1946, plaintiff should try to work, and Dr. Brostrum was of the opinion that plaintiff could return to work in October, 1946. The only reason we can see for plaintiff not returning to work is his status of mind. He has a slight case of arthritis, and which is common for his age. We believe that he has and is exaggerating his condition. We are therefore of the opinion that the preponderance of the medical testimony shows that plaintiff was fully able to return to work by December 5, 1946, and compensation will be granted unto him beginning from April 4, 1946, to December 5, 1946.\\nDuring the trial of the case, plaintiff sought to introduce reports of Dr. Moss M. Brannerman's, an orthopedic surgeon of Baton Rouge, he having examined plaintiff at plaintiff's own request. The offerings were promptly objected to by defendant unless Dr. Brannerman was ottered as a witness and would identify the reports. Plaintiff refused to call the doctor as a witness. The objection was sustained. In this court, plaintiff complains of the ruling of the lower court. We find no error in the lower court's ruling. These reports are ex-parte reports of Dr. Branner-man and not properly identified. Defendant was entitled to have Dr. Brannerman in court and be cross-examined, if it desired,\\nAfter the case was closed defendant then filed a motion to have the case reopened for the purpose of taking Dr. Bran-nerman's testimony. Plaintiff objected and stated that he would object to having Dr. Brannerman give testimony for the reason that Dr. Brannerman was his own doctor and therefore his findings would be privileged. For that reason, the district judge denied defendant's motion. Dr. Branner-man did not testify. The testimony of Dr. Brannerman must-then be presumed to have .been adverse to plaintiff's case. However, the presumption does not alter our conclusion.\\nAnent plaintiff's wages, we find that the evidence clearly establishes that plaintiff was employed and was receiving at the time of the accident, pay at the rate of 55\\u00a1\\u00e9 per hour, eight-hour day, for five days a week, making his weekly wage $22, 65% of which is $14.30.\\nThe following medical expenses have been proven: Dr. J. A. Thom, $35; Dr. Lester J. Williams, $30; Dr. Moss M. Bran-nerman, $25; totalling $90, and which will be allowed.\\nFor these reasons assigned, the judgment appealed from is hereby annulled, reversed and set aside. It is now ordered, adjudged and decreed that there be judgment in favor of the plaintiff and against the defendant granting compensation to plaintiff in the full sum of $14.30 per week commencing April 4, 1946, and ending December 5, 1946, with legal interest on the said weekly instalments from the date each was due until paid.\\nIt is further ordered that plaintiff do have and recover judgment against the defendant in the sum of $90, with legal interest from judicial demand until paid.\\nIt is further ordered that the expert medical fees of Doctors O. W. Cosby and J. A. Thom be fixed at $25 each and that of Dr. G. R. Kuehnle be fixed at $50.\\nThe defendant is ordered to pay all costs.\"}"
la/11079133.json ADDED
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+ "{\"id\": \"11079133\", \"name\": \"STATE of Louisiana v. Bobby HOLMES\", \"name_abbreviation\": \"State v. Holmes\", \"decision_date\": \"2000-12-08\", \"docket_number\": \"No. 2000-KP-1374\", \"first_page\": \"458\", \"last_page\": \"458\", \"citations\": \"776 So. 2d 458\", \"volume\": \"776\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T20:26:43.663808+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Louisiana v. Bobby HOLMES.\", \"head_matter\": \"STATE of Louisiana v. Bobby HOLMES.\\nNo. 2000-KP-1374.\\nSupreme Court of Louisiana.\\nDec. 8, 2000.\", \"word_count\": \"46\", \"char_count\": \"307\", \"text\": \"In re Holmes, Bobby; \\u2014 Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 320-251; to the Court of Appeal, Fourth Circuit, No. 2000-K-0157.\\nDenied.\"}"
la/11111019.json ADDED
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1
+ "{\"id\": \"11111019\", \"name\": \"STATE of Louisiana v. James WOODS\", \"name_abbreviation\": \"State v. Woods\", \"decision_date\": \"2001-05-11\", \"docket_number\": \"No. 2000 KA 2147\", \"first_page\": \"1083\", \"last_page\": \"1097\", \"citations\": \"787 So. 2d 1083\", \"volume\": \"787\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Louisiana Court of Appeal\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T23:14:29.939395+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: GONZALES, PETTIGREW, SEXTON, JJ.\", \"parties\": \"STATE of Louisiana v. James WOODS.\", \"head_matter\": \"STATE of Louisiana v. James WOODS.\\nNo. 2000 KA 2147.\\nCourt of Appeal of Louisiana, First Circuit.\\nMay 11, 2001.\\nDoug Moreau, District Attorney, Aaron D. Brooks, Creighton B. Abadie, Assistant District Attorneys, Baton Rouge, for Plaintiff, State of Louisiana.\\nJ. Rodney Messina, Johnny Wellons, Baton Rouge, for Defendant, James Woods.\\nBefore: GONZALES, PETTIGREW, SEXTON, JJ.\\n. The Honorable Fred C. Sexton, Jr., Judge (retired), Second Circuit Court of Appeal, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.\", \"word_count\": \"6929\", \"char_count\": \"41061\", \"text\": \"JgFRED C. SEXTON, Judge.\\nThe defendant, James Woods, was charged by bill of information with attempted second degree murder, a violation of LSA-R.S. 14:27 and 30.1, and possession with the intent to distribute cocaine, a violation of LSA-R.S. 40:967(A). The defendant pled not guilty and, after trial by jury, was found guilty as charged. He subsequently was sentenced to twelve years at hard labor without benefit of parole, probation, or suspension of sentence for his conviction of attempted second degree murder. For his conviction of possession with the intent to distribute cocaine, he was sentenced to eight years at hard labor with the first five years to be served without benefit of parole, probation, or suspension of sentence. The sentences were ordered to be served concurrently. The defendant has appealed, urging five assignments of error.\\nFACTS\\nOn July 15, 1997, Gregory Labranch, Reginald Williams, and Kenneth Brown traveled to Baton Rouge from LaPlace, Louisiana, to buy drugs. Upon arriving in Baton Rouge, they encountered a man called Slim, who told them that they could buy drugs at the defendant's home. Slim then took the men to the defendant's home. Labranch had approximately $850.00 with which he planned to buy drugs. Slim, Brown, and Williams went into the defendant's home where Brown observed crack cocaine packaged in a sandwich bag. After negotiating over the price of the cocaine, the defendant began to weigh the cocaine. A discussion ensued between the men about the fairness of weighing the cocaine while it was still inside the plastic |3bag. Labranch then entered the house and a fight broke out between the men. Brown hit the defendant on the head with a gun and he, Labranch, and Williams left the house and jumped into their vehicle. Slim, who was armed, stayed inside the house. Shots were fired from the house at the vehicle occupied by Brown, Williams, and La-branch. Bullets entered the vehicle and one of the bullets struck Labranch in the leg. Brown tried to fire his gun but it did not work. Brown, Williams, and Labranch attempted to leave the scene in their vehicle, but the vehicle stalled. The men exited the car and ran to a nearby dry cleaners from which police were called to the scene.\\nPolice later took Brown and Williams to the scene of the shooting where, according to police testimony at trial, they identified the defendant as the shooter. Subsequently, 23.3 grams of cocaine inside a plastic bag were found in the Labranch's vehicle. According to Brown, there was no cocaine in Labranch's car before they went to the defendant's home to buy drugs. However, Brown was not sure how the cocaine ended up in Labranch's car.\\nPROCEDURE\\nWe find reversible error raised by defendant's first and second assignments of error. The defendant also argues in his third, fourth, and fifth assignments of error that the evidence is insufficient. When issues are raised on appeal, both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused is entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proved beyond a reasonable doubt. When the entirety of the evidence is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion by the court of the trial error issues as to that crime would be pure dicta |4since those issues are moot.\\nOn the other hand, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial. If the reviewing court determines there has been trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support the conviction, then the accused must receive a new trial, but is not entitled to an acquittal even though the admissible evidence, considered alone, was insufficient. Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988); State v. Hearold, 603 So.2d 731, 734 (La.1992).\\nAccordingly, we proceed first to determine whether the entirety of the evidence was sufficient to support the defendant's convictions for possession with the intent to distribute cocaine and attempted second degree murder.\\nSUFFICIENCY OF THE EVIDENCE (Assignments of Error Numbers 3, 4, and 5)\\nIn his third assignment of error, the defendant contends that the trial court erred in sustaining a guilty verdict based upon insufficient evidence. In his fourth assignment of error, the defendant contends that the trial court erred in denying the defense's Motion for a Verdict of Acquittal. In his fifth assignment of error, the defendant contends that the trial court erred in denying the defense's Motion for a New Trial. Each of these assignments of error questions the sufficiency of the evidence used to convict the defendant.\\nIn his brief to this court, the defendant contends that with regard to his conviction of possession with the intent to distribute, there was no credible evidence presented that the defendant had drugs on his person or in his home. He claims that the only cocaine found was in the victim's car and he was not connected in any manner to that cocaine. The defendant also asserts that no drug paraphernalia was found in his home. With respect to his conviction for attempted second degree | smurder, the defendant contends that none of the witnesses to the crime positively identified him as the shooter.\\nThe standard of review for the sufficiency of evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the state proved the essential elements of the crime and the defendant's identity beyond a reasonable doubt. LSA-C.Cr.P. art. 821; State v. King, 563 So.2d 449, 456 (La.App. 1st Cir.1990), writ denied, 567 So.2d 610 (La.1990); State v. Johnson, 461 So.2d 673, 674 (La.App. 1st Cir.1984). The Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), standard of review incorporated in Article 821 is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that the fact finder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. McLean, 525 So.2d 1251, 1255 (La.App. 1st Cir.1988), writ denied, 532 So.2d 130 (La.1988). Where the key issue raised by the defense is the defendant's identity as the perpetrator, the state is required to negate any reasonable probability of misidentifieation. State v. Richardson, 459 So.2d 31, 38 (La.App. 1st Cir.1984).\\nThe testimony of the victim alone is sufficient to prove the elements of the offense. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Johnson, 529 So.2d 466, 473 (La.App. 1st Cir.1988), writ denied, 536 So.2d 1233 (La.1989). This court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. State v. Polkey, 529 So.2d 474, 476 (La.App. 1st Cir.1988), writ denied, 536 So.2d 1233 (La.1989).\\nIn the instant case, Kenneth Brown testified that on July 15, 1997, he was with [ sGreg Labranch and Reginald Williams in Labranch's Cadillac. They decided to drive to Baton Rouge so Labranch could buy drugs. According to Brown, La-branch had $850.00, which he was going to use to buy drugs. While driving around Baton Rouge, the three men encountered a man called Slim that Brown's \\\"podnuh\\\" knew. Slim got into the car with them, they talked, and he took them to the defendant's home. Slim told them that the defendant had drugs at his home. After arriving at the defendant's home, Slim went inside the defendant's house for ten to fifteen minutes. Slim then returned to the car and Brown and \\\"another guy\\\" went inside the house. Brown indicated that the other person was Williams. Brown admitted that he was carrying a .45 gun and Slim was armed with a .38. Labranch kept the money while the others went inside the house. According to Brown, the defendant and the defendant's younger brother were inside the house when he entered. Brown identified the defendant in court as being the person whose house they entered.\\nBrown also saw drugs inside the defendant's home. He described the drugs as being \\\"little rocks\\\" that were packaged in a sandwich bag. Brown stated that no one brought cocaine into the house; the cocaine was already there. According to Brown, there was some negotiation over the price of the drugs and someone told the defendant that they had $850.00. The defendant was measuring out $850.00 worth of cocaine on a digital scale, when there was a discussion about weighing the cocaine while it was still inside the plastic bag. Labranch subsequently entered the defendant's home. The men then argued about the cocaine and Brown hit the defendant on his head with his gun. He thought the clip may have fallen out of his gun. Brown, Labranch, and Williams then ran out of the defendant's home and got into Labranch's car. Slim stayed inside the defendant's house. Someone then fired shots at Labranch's vehicle using an \\\"AK-type . machine gun type weapon.\\\" Brown denied seeing the defendant or Slim fire the weapon. However, Brown later admitted that Slim could have fired the gun. According to Brown, bullets entered the Cadillac and one hit Labranch in the leg. The defendant admitted that after the other men left the house and shots were fired, he tried to shoot his gun, but it did not fire. |7Labranch started the car and moved it,- but the car stalled. La-branch, Williams, and Brown exited the car and ran to a nearby dry cleaners.\\nBrown was aware that cocaine was found inside the Cadillac, but he did not know who put the cocaine there. However, he testified the drugs found in the Cadillac were from the defendant's home. According to Brown, he, Williams, and La-branch went to the defendant's house with the intent to buy drugs but the deal did not take place. Brown admitted to seeing five rocks of cocaine in the house. He was not sure how the drugs got into the car but he conceded that his \\\"podnuh\\\" might have grabbed them from the defendant's house. According to Brown, the defendant's younger brother left from the rear of the house after they arrived. Brown admitted that he had been convicted of illegal use of a weapon stemming from the instant incident. He claimed to have no other convictions except for possibly a drug conviction as a juvenile.\\nGreg Labranch testified that on July 15, 1997, he drove his Cadillac to Baton Rouge with Brown and Williams to buy drugs. He had about $850.00 with him, which he was going to use to buy drugs. While in Baton Rouge, they met a man named Slim who told them that he could help them buy drugs and took them to a house on McKinley Street. At one point in his testimony, Labranch claimed not to know the name of the person they met. Labranch was not sure who lived at the house and he claimed that he did not know the defendant or see him at the house. He claimed that he did not remember much because he was intoxicated. Upon arriving at the house on McKinley Street, Labranch waited in the car while the others went inside the house. According to Labranch, Brown was armed when he went inside the house, Williams was not, and he did not know if Slim was armed. Approximately thirty minutes after the others entered the house, La-branch went inside the house and saw everyone fighting. Labranch saw Slim pull a gun on Brown. After they ran out of the house, someone shot at them. La-branch did not know who was the shooter. Labranch was shot in the leg, but he did not know the caliber of the bullet as it was still in his leg. According to Labranch, he was in the car [\\u00bfwhen he was shot. The bullet went through the driver's side door. He denied previously saying that the gun that shot him was an AK-47. After he was shot and the car stalled, he jumped out of the car and ran to a nearby dry cleaners. Labranch agreed that Slim was armed with a .38.\\nLabranch reiterated that he did not know who shot him. He claimed that Slim told him that he lived at the house on McKinley Street. He claimed that he did not have any money, and that the money belonged to Brown. Labranch denied seeing the defendant before and indicated that the defendant never did anything to him. Labranch denied seeing any cocaine inside the house or picking up any cocaine from the house. He did not know who took the cocaine from the house. According to Labranch, there was not any cocaine inside his car before he went to the house on McKinley Street and he did not know if there was any cocaine inside his car after they left the house. Labranch claimed that Brown had the money to buy the cocaine with him. Labranch pled guilty to illegal use of a weapon in connection with the events of July 15,1997.\\nPete Bahlinger, Jr., testified that on July 15, 1997, at about 4:00 p.m., he was driving down McKinley Street when he saw a Cadillac stopped in the middle of the street. As Bahlinger approached the Cadillac, he stopped. He saw a person to his left and heard gunfire and some \\\"shells\\\" hit the street. At that point, three individuals ran out of a house and jumped into the Cadillac and the Cadillac moved. The shooter appeared to go inside the house, but after Bahlinger passed, he looked into his rearview mirror and observed the shooter \\\"in the middle of the street doing this again.\\\" Bahlinger was not sure if he was firing again because he was too far away. Bahlinger decided that he needed to get out of the area because he was in the line of fire. He passed by the Cadillac, which was stopped with the driver's door open. Bahlinger saw three holes in the Cadillac. He then proceeded to the police station. According to Bahlinger, the shooter was firing a weapon that was on an AK-47 frame. In court, Bahlinger identified the person doing the shooting. He stated that he remembered his gait when he saw him walk through the hallway of the | ncourthouse. When asked if he saw the person who fired the AK-47 type weapon in the courtroom, Bahlinger responded, 'Tes, sir. I believe it's that fellow right over there by the defendant.\\\" On cross-examination, defense counsel asked Bahlinger if he saw \\\"this man\\\" fire any gun at anyone. Bahlinger responded that he saw him fire three or four rounds at the Cadillac and he heard the shell casings hit the ground near his track. Bahlinger did not know if the man hit any of the men at whom he was shooting. Bahlinger admitted he had no knowledge about someone named Slim at that house being in possession of a .38. On redirect examination, Bahlinger indicated that the only person he saw shooting was the defendant. He did not hear the shooter say anything.\\nDetective Dave Mays was the first detective to arrive at the crime scene. Mays spoke with the defendant who told him that three black males went to his house and asked for a drink of water. After giving them some water, one of the men produced a weapon and told him to \\\"give it up.\\\" A struggle ensued and the defendant was struck on the head with a gun. The men then fled and he went outside and attempted to fire some shots at them but his weapon jammed. According to Mays, the defendant had a laceration to his head and he was bloody. Mays identified the defendant in court as being the person he spoke to at the crime scene.\\nSergeant Bart Thompson responded to a call from the dry cleaners on the date in question. Upon arriving at the cleaners, he spoke to Labranch, Brown, and Williams. Thompson observed that Brown had a laceration to his head, which was apparently caused by a bullet graze, and Labranch had been shot one time in the leg. Labranch was transported to the hospital and Thompson took Williams and Brown to the crime scene where Brown identified the defendant as being the per son who shot them. According to Brown and Williams, the defendant used some sort of assault rifle. The defendant was taken into custody, the house was secured, and the car was seized.\\nAccording to Thompson, he was approached by witnesses at the scene who Imtold him that just prior to the arrival of the police at the scene, a car left the residence in question. Thompson admitted that he did not see any cocaine at the defendant's residence. Thompson testified that he was made aware that cocaine was found in the victim's car. Statements were taken from Brown and Williams and they both told him that they went to the house in question to buy cocaine. Brown and Williams told him that the cocaine came from the defendant's house. La-branch refused to give a statement regarding the incident.\\nSergeant Richard Cochran of the Baton Rouge Police Department testified that on July 15, 1997, he was working in the crime scene division and was summoned to the instant crime scene. He photographed the house and collected evidence. Cochran collected a live \\\".45 auto cartridge\\\" from the porch near the front door and a spent Winchester 7.62 shell casing from the front yard. According to Cochran, the spent shell casing would have been fired by a rifle. From inside the house, Cochran collected a bloody gun clip that contained three live cartridges. Cochran admitted that he did not find any cocaine or drug paraphernalia inside the defendant's home. He did not find a .38 casing or a .38 bullet.\\nSergeant Ron Cowart of the Baton Rouge Police Department testified that he helped secure the scene until the crime scene unit arrived. Cowart looked in the victim's car and found a bag of suspected cocaine in the driver's seat where the seat and the back of the seat meet. Labranch told Cowart that he went to the defendant's house to get a drink of water and \\\"all hell broke loose.\\\"\\nBaton Rouge Police Lieutenant Edward McCants testified that he was summoned to the crime scene to take care of the victim's car. Upon looking in the car, he found a pistol with no magazine and a \\\"baggy\\\" of drugs. The weapon seized from the vehicle did not have a magazine in it, but it did have one bullet in the chamber. He did not find any spent casings.\\nThe unanimous guilty verdict returned in this case indicates that, after considering the credibility of the witnesses and weighing the evidence, the jury accepted the testimony of the state's witnesses. This court will not assess the Incredibility of the witnesses or reweigh the evidence.\\nAfter reviewing the record, we are convinced that the evidence supports the jury's determination. Brown and La-branch testified that they went to the defendant's home to buy drugs. Brown saw cocaine inside the defendant's home, negotiated a price for the cocaine with the defendant, and observed the defendant measure the cocaine on a scale. After the instant incident, cocaine was found in La-branch's Cadillac and both Brown and La-branch indicated that there was no cocaine in Labranch's car before they went to the defendant's home. Neither Brown nor La-branch were sure how the cocaine ended up in Labranch's car; however, Brown did admit that the drugs found in the car were from the defendant's home and that his \\\"podnuh\\\" might have grabbed the drugs. Although cocaine was not found in the defendant's home, Sergeant Thompson testified that Brown and Williams told him that they went to the house in question to buy cocaine and that the cocaine in question came from the defendant's home. Cocaine was found in Labranch's car.\\nAlthough Labranch and Brown were unable to identify the defendant as the shooter in the instant incident, Brown admitted someone fired at them using an \\\"AK-type\\\" weapon and that Slim had been armed with a .38. According to La-branch, the bullet that hit him in the leg went through his car door. Bahlinger testified that he saw the shooter firing a weapon on an AK-47 type frame. Bah-linger identified the shooter in court, indicated that he remembered his gait when he walked through the courtroom, and indicated that the only person he saw shooting was the defendant. When asked to identify the shooter in court, Bahlinger stated he believed it was \\\"that fellow right over there by the defendant.\\\" It is obvious from the lack of clarification by the prosecutor that Bahlinger indeed was indicating that the defendant was the shooter. In all likelihood, no one but the defendant and defense counsel would have been sitting together at the defense table as the defendant was the only person on trial. Additionally, Sergeant Thompson testified that Williams and Brown were returned to the crime scene where they identified the defendant as being the person |1%who shot at them using some type of assault rifle. The defendant spoke to Detective Mays and placed himself at the scene of the crime.\\nA rational trier of fact, viewing all the evidence, both admissible and inadmissible, as favorable to the prosecution as any rational fact finder can, could have concluded that the state proved beyond a reasonable doubt the elements of possession with the intent to distribute cocaine and attempted second degree murder and the defendant's identity as perpetrator of that offense. These assignments of error are without merit.\\nOPENING STATEMENT\\n(Assignment of Error Number 1)\\nIn his first assignment of error, the defendant contends that the trial court erred in ordering defense counsel to tell the jury during opening arguments about the defendant's prior arrests. In his brief to this court, the defendant argues that the judge, the prosecutor, and the court reporter were wrong about what was originally stated by defense counsel. He contends that forcing defense counsel to introduce evidence of his arrests, particularly without any type of Prieur hearing, was impermissible. The defendant claims forcing defense counsel to report this information to the jury was highly prejudicial as it was highly likely that the jury believed he had gotten away with crimes in the past and that he would not get away this time. He contends that he was deprived of his right to a fair trial, particularly since from the beginning of his trial, the jury was made aware that the instant arrest for possession with intent to distribute was the defendant's third drug related arrest.\\nInitially, we note that the state contends that because defense counsel failed to make a contemporaneous objection to the trial court's decision, he is barred from raising this issue on appeal. It is well settled in our law that an objection need not be raised by incantation. It is sufficient that a party, at the time the ruling or order of court is made or sought, makes known to the court the action that he desires the court to take, or his objections to the action of the court, and the grounds therefor. | iaThe contemporaneous objection rule has two purposes: 1) to put the trial judge on notice of the alleged irregularity so that he may cure the problem, and 2) to prevent a defendant from gambling for a favorable verdict and then resorting to appeal on errors that might easily have been corrected by objection. City of Baton Rouge v. Schmieder, 582 So.2d 1266, 1270 (La.1991). In the instant case, it is evident that defense counsel preserved this issue for appeal by making arguments to the court and prosecutor regarding the wording used in his opening statement. Thus, this issue is properly before this court.\\nLouisiana Code of Evidence Article 404(B)(1) provides:\\nExcept as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.\\nLouisiana Code of Evidence Article 609.1 provides, in pertinent part:\\nA. General criminal rule. In a criminal case, every witness by testifying subjects himself to examination relative to his criminal convictions, subject to limitations set forth below.\\nB. Convictions. Generally, only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an acquittal.\\nThe general rule of Article 609.1 gives way when a witness has pending charges against him and the cross-examiner seeks to show the fact-finder that these pending charges may bias or influence the testimony of the witness. State v. Johnson, 32,910, p. 8 (La.App. 2d Cir.1/26/00), 750 So.2d 398, 405, writ denied, 2000-0911 (La.11/3/00), 773 So.2d 140.\\nDuring his opening statement, defense counsel stated:\\nMr. Robert Woods \\u2014 I talked to this young man \\u2014 he was 14. He [was] over at his brother's house all the time. He said nobody has ever been over to buy any drugs from them. He [sic] never been arrested for no | Udrugs, Mr. Robert Woods. Mr. Woods has never been convicted of anything. This man here, twenty something years old, he [has] never been convicted of anything.\\nAt the conclusion of defense counsel's opening statement, the prosecutor. asked to approach the bench and a side bar conference was held. The prosecutor complained that defense counsel stated that the defendant had never been arrested for drugs. Defense counsel argued that he said \\\"convicted.\\\" The prosecutor countered that defense counsel used both terms and defense counsel denied doing so. The prosecutor and defense counsel continued to argue until the court stated that it was going to review the transcript. The court then asked the court reporter to review what was said by defense counsel. The court told defense counsel that if he said the defendant had never been arrested, then he would have to correct his statement. At this point, defense counsel stated, \\\"I might have said that.\\\" Subsequently, the court stated that the court reporter checked the transcript and that defense counsel did state that the defendant had never been arrested or convicted. The court told defense .counsel that he needed to correct his statement because he was incorrect for saying that the defendant had never been arrested. Defense counsel then inquired as to what he was to tell the jury and the court indicated that he was to tell the jury that defendant had been arrested on drug charges.\\nDefense counsel then addressed the jury and stated:\\nLadies and Gentlemen of the jury, I want to always stay straight forward, and I talked to Mr. Brooks [the prosecutor] and when we talked \\u2014 I talk fast sometimes and my mind go [sic] forward sometimes. Mr. \\u2014 Mr. Woods has been my client for a while, and I made a statement that Mr. Woods has never been arrested for a drug charge nor convicted. And I want to restate this to the jury. In my opening statement that Mr. Woods has been arrested once. I don't know \\u2014 on a drug charge \\u2014 he has been arrested on a drug charge, but that charge he was never convicted for that charge. Okay? Therefore\\u2014\\nShortly thereafter, the court asked to speak to defense counsel. A bench conference was held wherein the court and the prosecutor pointed out to defense counsel that the defendant had been arrested two times and defense counsel said he was arrested only once. The prosecutor asked defense counsel to correct the mistake. Defense counsel then told the jury:\\n| ^Ladies and Gentlemen, I'm going to come back here and we are going to definitely go forward with the trial now. Mr. Brooks has a record on Mr. Woods. Mr. Woods has been arrested in '92 and '96, but he never [sic] been convicted for anything. He has a right to carry a gun. He has a right to vote, and that is why you come to court to prove or disprove or vindicate \\u2014 -therefore, he's just like us as citizens with all legal rights. Do I make myself clear? So any of us can get arrested, and I think some folks on the jury were arrested but until you are convicted of something\\u2014 okay. Now I am going to sit down before I mess up something.\\nIn the instant case, the trial court erred in ordering defense counsel to inform the jury of the defendant's prior arrests. Defense counsel did not open the door regarding the defendant's arrests as he stated that it was the defendant's brother, Robert Woods, who had never been arrested and the defendant, James Woods, who had not been convicted. The court relied on the court reporter's erroneous review of the transcript. Additionally, the information regarding the defendant's previous arrests was not presented to the jury to show the defendant's motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, nor was it an integral part of the present proceeding. Furthermore, the exception to the rule set forth in LSA-C.E. art. 609.1, which states that only convictions are admissible, did not apply herein as there was no evidence presented that these charges were pending charges against the defendant and the issue of these arrests was not raised on cross-examination of the defendant to show bias or influence. This information was wrongly given to the jury only because of a mistake and not for any specific purpose.\\nMoreover, we are unable to find this error to be harmless. The erroneous admission of other-crimes evidence is a trial error subject to harmless-error analysis on appeal. State v. Johnson, 94-1379, p. 15 (La.11/27/95), 664 So.2d 94, 101. The test for determining whether an error is harmless is whether the verdict actually rendered in this case \\\"was surely unattributable to the error.\\\" Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); State v. Morris, 99-3075, pp. 6-7 (La.App. 1st Cir.11/3/00), 770 So.2d 908, 915.\\nEvidence of other crimes is generally inadmissible in the guilt phase of a | ^criminal trial unless the probative value of the evidence outweighs its prejudicial effect and unless other safeguards are met. This general rule ensures that a defendant who has committed other crimes will not be convicted of a present offense simply because he is perceived as a \\\"bad person,\\\" irrespective of the evidence of his guilt or innocence. A conviction should be based on guilt and not on character. State v. Johnson, 94-1379 at p. 10, 664 So.2d at 99.\\nIn arguing for a harmless error application in this case, the state points out the strength of its case and that the defendant failed to prove that he suffered any prejudice. While the state may have proved the elements of the charged crimes, we cannot say that the evidence of the defendant's guilt was overwhelming. The state's case depended on credibility determinations. No drugs were found on the defendant or in the defendant's house and only one witness saw drugs inside the defendant's home and saw the defendant weigh the drugs. Additionally, only one witness identified the defendant in court as being the shooter and his identification was confusing. The prejudice to the defendant's credibility created by this erroneous indication of two previous arrests on drug-related crimes cannot be measured. It certainly cannot be ruled out that the jury decided that he was a bad man who had been arrested for other drug offenses. Finally, we note that the defendant did not testify, but had he testified, it is unlikely that the state could have used these arrests to impeach him.\\nConsidering all of the circumstances, we cannot conclude that the guilty verdicts actually rendered in this trial were surely unattributable to this error. Accordingly, we find that a harmless error analysis leads us to conclude the error was not harmless beyond a reasonable doubt and, therefore, these convictions must be reversed and the case remanded to the trial court for a new trial. This assignment of error has merit.\\nJURY INSTRUCTIONS\\n(Assignment of Error Number 2)\\nIn his second assignment of error, the defendant contends that the trial court |17erred in including the element of specific intent to commit great bodily harm in the definition of attempted second degree murder in its instructions given to the jury. In his brief to this court, the defendant argues that the court's instructions were not harmless error as there was insufficient evidence to show that the defendant had a gun or even shot at the victim.\\nWhile a conviction for second degree murder can be obtained by showing that the defendant had either the specific intent to kill or the specific intent to inflict great bodily harm, a conviction for attempted second degree murder can be obtained only by showing that the defendant had the specific intent to kill and committed an act tending to accomplish that purpose. Intent to inflict great bodily harm will not support a conviction of attempted second degree murder. State v. Hongo, 96-2060, p. 2 (La.12/02/97), 706 So.2d 419, 420; State v. Butler, 322 So.2d 189, 192-93 (La.1975).\\nIn the instant case, the trial court, when instructing the jury as to the elements of the crime, simply read from the definition of second degree murder, LSA-R.S. 14:30.1(A)(1), followed by a definition of specific intent and attempt. The court then stated that in order to find the defendant guilty of attempted second degree murder, the jury must find that the defendant had the specific intent to commit the crime of second degree murder and did an act for the purpose of and tending directly toward the commission of the crime of second degree murder. Consequently, the court included the intent to inflict great bodily harm in the definition of second degree murder. Thus, the court issued erroneous instructions to the jury by including the \\\"intent to inflict great bodily harm\\\" element along with the proper and required \\\"intent to kill\\\" element.\\nPrior to the supreme court's opinion in State v. Hongo, there was a conflict among the courts of appeal, with some circuits holding State v. Butler mandated reversal and remand for retrial where the trial court erroneously instructed the jury that \\\"intent to inflict great bodily harm\\\" was an element of attempted murder. State v. Pyke, 93-1506, p. 8 (La.App. 3rd Cir.5/4/94), 640 So.2d 460, 465; State v.\\nHolmes, 620 So.2d 436, 437 (La.App. 3rd Cir.1993), writ denied, 626 So.2d 1166 (La.1993); State v. Guin, 444 So.2d 625, 635 (La.App. 3rd Cir.1983). Other circuits applied a harmless error test, upholding verdicts where there was overwhelming evidence to support the conviction and the erroneous instruction was not found prejudicial. State v. Brunet, 95-0340, p. 7 (La.App. 1st Cir.4/30/96), 674 So.2d 344, 348, writ denied, 96-1406 (La.11/1/96), 681 So.2d 1258; State v. Harris, 26,269, p. 9 (La.App. 2d Cir.9/21/94), 643 So.2d 779, 784, writ denied, 94-2607 (La.2/17/95), 650 So.2d 251; State v. Lyles, 483 So.2d 1174, 1177 (La.App. 4th Cir.1986), writ denied, 488 So.2d 198 (La.1986); State v. Snyder, 97-226, p. 8 (La.App. 5th Cir.9/30/97), 700 So.2d 1082, 1087; State v. Jynes, 94-745, p. 15 (La.App. 5th Cir.3/1/95), 652 So.2d 91, 98; State v. Scott, 490 So.2d 396, 403 (La.App. 5th Cir.1986).\\nThe State v. Hongo decision settled the issue, in holding:\\nBecause the erroneous instruction at issue may be an irrelevancy and because a reviewing court can make this determination, the error is not structural such as that in Sullivan, but rather a trial error which may or may not have prejudiced defendant and thus is subject to harmless error analysis, or in the case of an ineffective assistance claim, an analysis of whether defendant was prejudiced by the error. [Footnote omitted.]\\nState v. Hongo, 96-2060 at p. 5, 706 So.2d at 422. Thus, the erroneous jury instruction does not require an automatic remand, and an appellate court must apply a harmless error analysis.\\nHowever, according to the record before us, the defendant's trial counsel did not object to the erroneous instructions given by the trial court. Thus, the defendant ordinarily is precluded from raising such an alleged error for appellate review. LSA-C.Cr.P. arts. 801 and 841. Nevertheless, exceptions to this rule have been made in individual cases where there have been fundamentally erroneous misstatements of the essential elements of the charged offense. In such cases, the Louisiana |19Supreme Court has adopted the view that such fundamentally incorrect jury instructions so affect the fairness of the proceedings and the accuracy of the fact-finding process that due process of law requires reversal, even in the absence of compliance with legislative procedural mandates. See State v. Williamson, 389 So.2d 1328, 1331 (La.1980); State v. Johnson, 98-1407, p. 10 (La.App. 1st Cir.4/1/99), 734 So.2d 800, 807, writ denied, 99-1386 (La.10/1/99), 748 So.2d 439.\\nWhether an appellate court can continue to make a State v. Williamson analysis and review such a matter on direct appeal is now in doubt, in light of the supreme court's statement in State v. Hongo:\\nAlthough this case is before us via post-conviction proceedings because of trial counsel's failure to object, we note that because we find that the instant error is not structural, it necessarily is not of such significance as to violate fundamental requirements of due process, See State v. Williamson, 389 So.2d 1328 (La.1980), and thus a defendant must make a contemporaneous objection in order to preserve the error for direct review. State v. Thomas, 427 So.2d 428, 435 (La.1982) (on rehearing) (limiting Williamson as it \\\"should not be construed as authorizing appellate review of every alleged constitutional violation and erroneous jury instruction urged first on appeal without timely objection.\\\")\\nState v. Hongo, 706 So.2d at 422, n. 3. Nevertheless, we find it unnecessary to resolve the issue in the case now before the court, having found reversible error on another basis. Consequently, we preter-mit this assignment of error.\\nCONVICTIONS AND SENTENCES REVERSED; REMANDED FOR NEW TRIAL.\\n. Under the authority of LSA-C.Cr.P. art. 920(2), this court routinely reviews appellate records for patent error. After reviewing the record, we have discovered a patent sentencing error. For his conviction of possession with the intent to distribute cocaine, the defendant was sentenced to eight years at hard labor with the first five years of the sentence to be served without benefit of parole, probation, or suspension of sentence. However, at the time the defendant committed the instant crime, LSA-R.S. 40:967(B) (prior to its amendment by 1997 La. Acts No. 1284, \\u00a7 1) did not provide for the first five years of the defendant's sentence to be served without benefit of parole, probation, or suspension of sentence. Thus, the defendant's sentence on that conviction is considered illegal. However, because we have found merit in the defendant's appeal and are reversing his convictions and sentences on those grounds, it is not necessary to vacate the sentence on this particular conviction and remand to the trial court for resentencing on this error.\\n. Although the Third Circuit later adopted the harmless error approach to the issue, in State v. Taylor, 96-320, p. 15 (La.App. 3rd Cir.11/6/96), 683 So.2d 1309, 1318, writ denied, 96-2828 (La.6/20/97), 695 So.2d 1348, the court could not de .ermine that the erroneous instruction had been harmless error, in that case, and remanded the matter for a new trial.\"}"
la/11171748.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"11171748\", \"name\": \"In re APPEAL OF DECISION OF DISCIPLINARY BOARD, No. 99-PDB-097\", \"name_abbreviation\": \"in Re Appeal of Decision of Disciplinary Bd.\", \"decision_date\": \"2000-11-18\", \"docket_number\": \"No. 2000-OB-2575\", \"first_page\": \"155\", \"last_page\": \"155\", \"citations\": \"773 So. 2d 155\", \"volume\": \"773\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T22:35:20.635218+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In re APPEAL OF DECISION OF DISCIPLINARY BOARD, No. 99-PDB-097.\", \"head_matter\": \"In re APPEAL OF DECISION OF DISCIPLINARY BOARD, No. 99-PDB-097.\\nNo. 2000-OB-2575.\\nSupreme Court of Louisiana.\\nNov. 18, 2000.\", \"word_count\": \"44\", \"char_count\": \"289\", \"text\": \"In re Moore, Eugene; \\u2014 Plaintiff; Applying for Appeal of Decision of Disciplinary Board Office Of The Disciplinary Board No. 99-PDB-097.\\nLeave to appeal is denied.\"}"
la/11382412.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"11382412\", \"name\": \"STATE of Louisiana v. Thomas H. PINKERTON\", \"name_abbreviation\": \"State v. Pinkerton\", \"decision_date\": \"2002-11-08\", \"docket_number\": \"No. 2002-K-0890\", \"first_page\": \"1108\", \"last_page\": \"1108\", \"citations\": \"828 So. 2d 1108\", \"volume\": \"828\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T17:30:43.980400+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Louisiana v. Thomas H. PINKERTON.\", \"head_matter\": \"STATE of Louisiana v. Thomas H. PINKERTON.\\nNo. 2002-K-0890.\\nSupreme Court of Louisiana.\\nNov. 8, 2002.\", \"word_count\": \"51\", \"char_count\": \"328\", \"text\": \"In re Pinkerton, Thomas H.; \\u2014 Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 299124B; to the Court of Appeal, First Circuit, No. 2000-KA-2827.\\nDenied.\"}"
la/11520055.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"11520055\", \"name\": \"STATE ex rel. Claude BROWN v. STATE of Louisiana\", \"name_abbreviation\": \"State ex rel. Brown v. State\", \"decision_date\": \"2000-03-17\", \"docket_number\": \"No. 1999-KH-2593\", \"first_page\": \"320\", \"last_page\": \"320\", \"citations\": \"756 So. 2d 320\", \"volume\": \"756\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T21:01:59.872156+00:00\", \"provenance\": \"CAP\", \"judges\": \"VICTORY, J., not on panel.\", \"parties\": \"STATE ex rel. Claude BROWN v. STATE of Louisiana.\", \"head_matter\": \"STATE ex rel. Claude BROWN v. STATE of Louisiana.\\nNo. 1999-KH-2593.\\nSupreme Court of Louisiana.\\nMarch 17, 2000.\", \"word_count\": \"60\", \"char_count\": \"390\", \"text\": \"In re Brown, Claude; \\u2014 Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. B, Nos. 28624;\\nDenied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.\\nVICTORY, J., not on panel.\"}"
la/11545498.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"11545498\", \"name\": \"In re INTERDICTION OF James \\\"Jackie\\\" J. GALMICHE\", \"name_abbreviation\": \"In re Interdiction of Galmiche\", \"decision_date\": \"2000-02-11\", \"docket_number\": \"No. 1999-CC-3538\", \"first_page\": \"943\", \"last_page\": \"943\", \"citations\": \"754 So. 2d 943\", \"volume\": \"754\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T18:46:09.482754+00:00\", \"provenance\": \"CAP\", \"judges\": \"CALOGERO, C.J., not on panel.\", \"parties\": \"In re INTERDICTION OF James \\u201cJackie\\u201d J. GALMICHE.\", \"head_matter\": \"In re INTERDICTION OF James \\u201cJackie\\u201d J. GALMICHE.\\nNo. 1999-CC-3538.\\nSupreme Court of Louisiana.\\nFeb. 11, 2000.\", \"word_count\": \"56\", \"char_count\": \"364\", \"text\": \"In re Hattier, Craig, J.; \\u2014 Third Party; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, Nos. 465-100; to the Court of Appeal, Fifth Circuit, No. 99-C-1145.\\nDenied.\\nCALOGERO, C.J., not on panel.\"}"
la/11566480.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"11566480\", \"name\": \"Randall S. BASCO v. DOROTHY R. RACINE TRUCKING, INCORPORATED, International Indemnity, David J. Levron and ABC Insurance Company\", \"name_abbreviation\": \"Basco v. Dorothy R. Racine Trucking, Inc.\", \"decision_date\": \"1999-03-19\", \"docket_number\": \"No. 99-OC-0263\", \"first_page\": \"119\", \"last_page\": \"119\", \"citations\": \"740 So. 2d 119\", \"volume\": \"740\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T23:09:21.987853+00:00\", \"provenance\": \"CAP\", \"judges\": \"LEMMON, J. not on panel.\", \"parties\": \"Randall S. BASCO v. DOROTHY R. RACINE TRUCKING, INCORPORATED, International Indemnity, David J. Levron and ABC Insurance Company.\", \"head_matter\": \"Randall S. BASCO v. DOROTHY R. RACINE TRUCKING, INCORPORATED, International Indemnity, David J. Levron and ABC Insurance Company.\\nNo. 99-OC-0263.\\nSupreme Court of Louisiana.\\nMarch 19, 1999.\", \"word_count\": \"67\", \"char_count\": \"445\", \"text\": \"IN RE: Basco, Randall S.; \\u2014 Plaintiff(s); Applying for Supervisory and/or Remedial Writs; to the Court of Appeal, First Circuit, Number CA97 2740; Parish of Terre-bonne 32nd Judicial District Court Div. \\\"E\\\" Number 110776.\\nDenied.\\nLEMMON, J. not on panel.\"}"
la/11684774.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"11684774\", \"name\": \"EXECUTIVE CHIROPRACTIC SERVICES WEST (Re: Wayne Mouchon) v. COASTAL SEAFOOD (Louisiana Workers' Compensation Corporation)\", \"name_abbreviation\": \"Executive Chiropractic Services West v. Coastal Seafood\", \"decision_date\": \"1998-06-19\", \"docket_number\": \"No. 98-CD-1553\", \"first_page\": \"471\", \"last_page\": \"471\", \"citations\": \"719 So. 2d 471\", \"volume\": \"719\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T22:37:00.998561+00:00\", \"provenance\": \"CAP\", \"judges\": \"LEMMON, J., not on panel.\", \"parties\": \"EXECUTIVE CHIROPRACTIC SERVICES WEST (Re: Wayne Mouchon) v. COASTAL SEAFOOD (Louisiana Workers\\u2019 Compensation Corporation).\", \"head_matter\": \"EXECUTIVE CHIROPRACTIC SERVICES WEST (Re: Wayne Mouchon) v. COASTAL SEAFOOD (Louisiana Workers\\u2019 Compensation Corporation).\\nNo. 98-CD-1553.\\nSupreme Court of Louisiana.\\nJune 19, 1998.\", \"word_count\": \"57\", \"char_count\": \"425\", \"text\": \"In re Coastal Seafood; Louisiana Workers' Comp. Corp.; \\u2014 Defendant(s); applying for supervisory and/or remedial writs; Office of Workers' Compensation, District 8, No. 95-07095.\\nContinuance granted. See R.S. 13:4163.\\nLEMMON, J., not on panel.\"}"
la/11911200.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"11911200\", \"name\": \"Tammy SMITH, Plaintiff-Appellee, v. MARTIN MILLS, INC., Defendant-Appellant\", \"name_abbreviation\": \"Smith v. Martin Mills, Inc.\", \"decision_date\": \"1997-05-21\", \"docket_number\": \"No. 97-11\", \"first_page\": \"680\", \"last_page\": \"684\", \"citations\": \"701 So. 2d 680\", \"volume\": \"701\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Louisiana Court of Appeal\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T22:36:50.894889+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before THIBODEAUX and DECUIR, JJ\\u201e and BABINEAUX , J. Pro Tem.\", \"parties\": \"Tammy SMITH, Plaintiff-Appellee, v. MARTIN MILLS, INC., Defendant-Appellant.\", \"head_matter\": \"Tammy SMITH, Plaintiff-Appellee, v. MARTIN MILLS, INC., Defendant-Appellant.\\nNo. 97-11.\\nCourt of Appeal of Louisiana, Third Circuit.\\nMay 21, 1997.\\nWrit Denied Oct. 3, 1997.\\nRussell Karl Zaunbrecher, Crowley, for Tammy Smith.\\nSamuel Robert Aueoin, Lafayette, for Martin Mills, Inc.\\nBefore THIBODEAUX and DECUIR, JJ\\u201e and BABINEAUX , J. Pro Tem.\\nHonorable Allen M. Babineaux, Retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.\", \"word_count\": \"2258\", \"char_count\": \"14110\", \"text\": \"11THIBODEAUX, Judge.\\nTammy Smith filed a claim with the Office of Workers' Compensation after her employer, Martin Mills, Inc., denied her benefits. The hearing officer found that Ms. Smith sustained a work-related carpal tunnel syndrome and, as a result, has been totally and temporarily disabled. The hearing officer further held that Ms. Smith is entitled to all medical treatment prescribed by her physicians, and that Martin Mills, Ri\\u00f1e, acted arbitrarily and capriciously in refusing to accept claimant's claim as compensable. Martin Mills, Inc. appeals the judgment of the Office of Workers' Compensation.\\nWe affirm the claimant's entitlement to medical benefits for the treatment of her carpal tunnel syndrome, and we reverse the judgment granting her disability benefits and penalties and attorney's fees.\\nI.\\nISSUES\\nThe issues presented for review in this appeal are whether the hearing officer was manifestly erroneous in finding (1) that Ms. Smith proved the existence of a work-related carpal tunnel syndrome; (2) that Ms. Smith was totally and temporarily disabled; (3) that Ms. Smith is entitled to medical expenses; and (4) that Martin Mills, Inc. acted arbitrarily and capriciously in refusing to accept the claimant's claim as compensable.\\nII.\\nFACTS\\nOn April 22, 1995, Tammy Smith, an employee of Martin Mills, Inc. (Martin), felt a pull in her neck as she lifted a bundle of material to be sewn. She did not report the incident that day, nor did she mention it to her co-workers. Ms. Smith continued to work until the end of her shift. Later that day, she told her husband and mother that she was experiencing pain in the left side of her chest and pain and numbness in her left arm. Ms. Smith first saw a doctor about the pain the morning of April 24,1995.\\nDr. Ronald Menard was the first of several doctors Ms. Smith consulted after the April 22, 1995 incident. Dr. Menard, a general practitioner and claimant's | \\u00a1family physician, saw Ms. Smith on four separate occasions for her complaints. The date of her first visit was April 24, 1995. After the fourth visit, Dr. Menard determined that Ms. Smith had no objective physical problems and further stated he had no additional treatment to offer her.\\nMs. Smith next saw Dr. John Sabatier, a general internist, on May 2,1995. It was his opinion that Ms. Smith was not suffering from any abnormal objective symptoms. Based on Ms. Smith's subjective complaints, Dr. Sabatier diagnosed her with muscle strain secondary to nerve root irritation.\\nDr. Menard referred Ms. Smith to Dr. John Budden, an orthopedic surgeon, whom she saw on May 10, 1995. At that visit, Ms. Smith complained of pain in the left side of her neck and upper extremity as well as pain and numbness in her left hand. Her CT scan and MRI tests did not show any objective signs of injury. During his deposition, Dr. Budden stated that in spite of the normal test results, it was his opinion that Ms. Smith suffered from carpal tunnel syndrome affecting the left upper extremity; this conclusion was based largely on Ms. Smith's subjective complaints of numbness and upper extremity pain. Moreover, he testified that her work as a seamstress was the underlying cause of the carpal tunnel syndrome, with the lifting incident of April 22, 1995 being the final blow. He did not indicate, however, that Ms. Smith was totally disabled.\\nAt the request of Martin, Ms. Smith saw Dr. Clifton Shepherd, an orthopedist. In his report, he stated that he could not find anything wrong with Ms. Smith after reviewing her X-rays and CT scan. He recommended termination of treatment and a return to unrestricted activities. Furthermore, he indicated that Ms. Smith's complaints were not job-related.\\nOn September 15,1995, Ms. Smith saw Dr. Robert Franklin, a physiatrist, on a referral from Dr. Budden. The diagnostic studies he conducted on Ms. | \\u00bfSmith produced normal results. Nevertheless, it is his opinion that Ms. Smith suffers from carpal tunnel syndrome. Pursuant to his diagnosis of her condition, Dr. Franklin disabled Ms. Smith from her job as a seamstress stating that the repetitive nature of her job could aggravate the symptoms. He found, however, that Ms. Smith was able to perform other job-related duties.\\nOn November 28,1995, Ms. Smith saw Dr. Clark Gunderson, an orthopedic surgeon. After examining the claimant, Dr. Gunderson concluded that she did not suffer from carpal tunnel syndrome. Dr. Gunderson recommended that Dr. James Domingue perform some testing on Ms. Smith. The results of the tests were normal, i.e., no signs of carpal tunnel syndrome.\\nAfter a hearing before the Office of Workers' Compensation, the hearing officer found that Ms. Smith suffered from carpal tunnel syndrome and that she is entitled to temporary total disability benefits of $213.00 per week until she has reached maximum medical improvement as determined by Dr. Bud-den. The hearing officer assessed a 12% penalty on the unpaid indemnity benefits and attorney's fees of $3,500.00. Additionally, defendants were ordered to pay all of Ms. Smith's medical expenses related to the April 22,1995 work accident.\\nIII.\\nLAW AND ARGUMENT\\nAppellant argues that the hearing officer's findings and conclusions are manifestly erroneous and urges this court to accordingly reverse the judgment. We will review this appeal abiding by the routinely applied manifest error standard of review. Addressing this standard of review, our supreme court in Rosell v. ESCO, 549 So.2d 840, 844 (La.1989), stated,\\na court of appeal may not set aside a trial court's or a jury's finding in the absence of \\\"manifest error\\\" or unless it is \\\"clearly wrong,\\\" |5and where there is conflict in the testimony,.reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. (citations omitted).\\nUnless we find the hearing officer's judgment unsupported by the record, we shall affirm.\\nThe burden of proving by a preponderance of the evidence that a work-related accident occurred rests with the claimant-employee. Frelow v. Mills, 94-799 (La.App. 3 Cir. 12/7/94); 647 So.2d 475, writ denied, 95-0065 (La.3/10/95); 650 So.2d 1180. Martin first argues that the hearing officer erred in finding that Ms. Smith met the burden of proving by a preponderance that a work-related incident caused her carpal tunnel syndrome. The primary factor for the hearing officer's finding that Ms. Smith had been injured on the job was the abundance of lay and medical testimony that the claimant was in good health before April 22, 1995. It is well-settled that,\\n[a] claimant's disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.\\nLucas v. Ins. Co. of North America, 342 So.2d 591 (La.1977). (citation omitted). In addition to Ms. Smith's good health prior to April 22, 1995, the hearing officer seemingly relied heavily on the opinions of Ms. Smith's two treating physicians, Drs. Budden and Franklin.\\nBoth Dr. Budden and Dr. Franklin indicated that the carpal tunnel syndrome was work-related. Martin suggests that the hearing officer was erroneous in giving such weight to these doctors' opinions when no other doctors found anything wrong with Ms. Smith. We find that the hearing officer acted well within the bounds of her discretion in deciding this issue. A hearing officer is afforded much discretion | ein evaluating expert testimony and where the testimony of experts differ, it is his or her responsibility to determine which evidence is more credible. Lirette v. State Farm Ins. Co., 563 So.2d 850 (La.1990). Moreover, we note that the opinion/diagnosis of a treating physician is given more weight than that of a physician consulted for the purpose of litigation only. Hall v. McDonald Insulation, 537 So.2d 328 (La. App. 1 Cir.1988). Based on the facts and testimonies in this case, we find that the hearing officer's conclusion that Ms. Smith suffered a work-related injury is supported by the record and not manifestly erroneous.\\nAppellant next argues that claimant did not prove by clear and convincing evidence that she was temporarily and totally disabled as required by La.R.S. 23:1221(l)(c). That statute states in pertinent part,\\n[w]henever the employee is not engaged in any employment or self-employment . compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment. .\\nThe hearing officer based her finding that Ms. Smith reached this burden and is therefore entitled to receive temporary total disability benefits on the deposition testimonies of Drs. Budden and Franklin. Our review of these depositions leads to a different conclusion, however.\\nWhen asked whether he believed Ms. Smith had been totally disabled from performing any type of work since the onset of her problems, Dr. Budden clearly stated that he did not. Although Dr. Franklin disabled Ms. Smith from her seamstress duties, he did not express the opinion that she was unable to perform certain other duties. He replied the following when asked to opine on Ms. Smith's movement capabilities: \\\"[t]his lady is functional. This is not to say this lady could not perform some light to sedentary-type duty position.\\\" In light of the professional medical ^opinions of Drs. Budden and Franklin regarding Ms. Smith's ability to perform certain tasks, as well as the similar opinions of the numerous other doctors Ms. Smith saw, we conclude that the hearing officer was manifestly erroneous in finding that Ms. Smith proved that she was temporarily totally disabled by clear and convincing evidence.\\nAppellant further asserts that the hearing officer erred in finding Ms. Smith entitled to medical benefits. In support of its argument, Martin selectively interprets Lastrapes v. Martin Mills/Farley Industries, 94-1394 (La.App. 3 Cir. 5/3/95); 657 So.2d 185 to mean that absent objective evidence of the injury for which compensation is sought, a claim for medical treatment compensation cannot stand. Actually, Lastrapes does not stand for this proposition. Read in its entirety, that case sets forth that the threshold requirement for entitlement to medical benefits is a showing that \\\"they are related to the work accident to a reasonable certainty and by a preponderance of the evidence.\\\" Id. at 186. Martin also refers to Fusilier v. Slick Const. Co., 94-11 (La.App. 3 Cir. 6/1/94); 640 So.2d 788. In Fusilier, this court denied medical benefits because the injury suffered by claimant was neither work-related nor disabling. Id. The lack of objective evidence merely strengthened our position; it was not the decisive factor for the denial.\\nIn this case, it was the opinions of Dr. Budden, Dr. Gunderson, and Dr. Sabatier that the source of Ms. Smith's pain was the repetitive movements required by her work. In spite of no objective signs of carpal tunnel syndrome, Dr. Budden and Dr. Franklin specifically stated that Ms. Smith suffers from the condition and prescribed treatment pursuant to their diagnoses. Both doctors testified that tests for carpal tunnel syndrome will not reflect objective signs of carpal tunnel syndrome in four to six percent of the people tested, although those people can in fact suffer from the condition. In light of these testimonies, we find that the hearing officer reasonably concluded that Ms. Smith is owed medical expenses for the treatment of her work-[reIatedg carpal tunnel syndrome. A claim for medical benefits stands independently of a claim for workers' compensation benefits. Young v. Hercules, Inc., 451 So.2d 109 (La.App. 3 Cir.1984). Thus, although Ms. Smith is not entitled to disability benefits, she is entitled to receive medical compensation as she has proven by a preponderance that she suffered a work-related injury.\\nFinally, appellant urges that the hearing officer's finding that it was arbitrary and capricious in handling Ms. Smith's claim is manifestly erroneous. In her written reasons for judgment, the hearing officer stated that Martin was wrong to deny benefits to Ms. Smith when it had been presented with the opinions of Drs. Budden and Franklin. She further referred to Ms. Smith's complaints of pain. As discussed supra, Drs. Budden and Franklin did not definitively and totally disable Ms. Smith. Moreover, Dr. Budden did not reach the conclusion that Ms. Smith suffered from carpal tunnel syndrome until the day of his deposition, February 14, 1996. It is well-settled that when a reasonable basis for denial of benefits exists, the employer cannot be arbitrary and capricious. Terro v. WMCO, Inc., 619 So.2d 639 (La.App. 3 Cir.1993). Martin was not unreasonable in denying benefits to Ms. Smith since, according to the information presented to it, there was no viable workers' compensation claim.\\nIV.\\nCONCLUSION\\nFor the foregoing reasons, the judgment of the Office of Workers' Compensation granting medical benefits for the treatment of carpal tunnel syndrome is affirmed. In all other respects, it is reversed.\\nAll costs shall be shared equally by each party.\\nAFFIRMED IN PART AND REVERSED IN PART AND RENDERED.\"}"
la/11917397.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"11917397\", \"name\": \"Nathan Greg LEITL, Plaintiff, v. CITGO PETROLEUM CORPORATION, et al., Defendant/Third Party Plaintiff-Appellee, Yeargin, Inc. (Formerly Known as Project Construction Corporation) and Continental Casualty Company, Third Party Defendants-Appellants\", \"name_abbreviation\": \"Leitl v. Citgo Petroleum Corp.\", \"decision_date\": \"1997-02-19\", \"docket_number\": \"No. 95-1585\", \"first_page\": \"182\", \"last_page\": \"183\", \"citations\": \"690 So. 2d 182\", \"volume\": \"690\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Louisiana Court of Appeal\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T17:50:28.885386+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before WOODARD, PETERS and SULLIVAN, JJ.\", \"parties\": \"Nathan Greg LEITL, Plaintiff, v. CITGO PETROLEUM CORPORATION, et al., Defendant/Third Party Plaintiff\\u2014Appellee, Yeargin, Inc. (Formerly Known as Project Construction Corporation) and Continental Casualty Company, Third Party Defendants\\u2014Appellants.\", \"head_matter\": \"Nathan Greg LEITL, Plaintiff, v. CITGO PETROLEUM CORPORATION, et al., Defendant/Third Party Plaintiff\\u2014Appellee, Yeargin, Inc. (Formerly Known as Project Construction Corporation) and Continental Casualty Company, Third Party Defendants\\u2014Appellants.\\nNo. 95-1585.\\nCourt of Appeal of Louisiana, Third Circuit.\\nFeb. 19, 1997.\\nOrder .Clarifying Decision on Limited Grant of Rehearing April 9,1997.\\nWilliam M. Nolen, William Brock Swift, Robert Joseph Tete, Lake Charles, for Citgo Petroleum Corporation, et al.\\nEdmund M. Kneisel, Atlanta, GA, Keith Michael Borne, Lafayette, John A. Stewart, Jr., New Orleans, for Yeargin, Inc., etc.\\nChristopher M. Trahan, Lake Charles, for St. Paul Fire and Marine Insurance Company.\\nBefore WOODARD, PETERS and SULLIVAN, JJ.\", \"word_count\": \"314\", \"char_count\": \"2071\", \"text\": \"SULLIVAN, Judge.\\nFor the reasons assigned in the case of Citgo Petroleum, Corp. v. Yeargin, Inc. and Continental Casualty Company, 95-1574 (La.App. 3 Cir. 2/19/97); 690 So.2d 154, which was consolidated with this case, the trial court's judgment is affirmed in part, reversed in part, amended in part and rendered.\\nCosts of this appeal are assessed to Citgo Petroleum Corporation.\\nAFFIRMED IN PART; REVERSED IN PART; AMENDED IN PART; AND RENDERED.\"}"
la/12364328.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"12364328\", \"name\": \"SUCCESSION OF Milton YOUNGER\", \"name_abbreviation\": \"Succession of Younger\", \"decision_date\": \"2017-01-25\", \"docket_number\": \"NO. 2016-C-2202\", \"first_page\": \"685\", \"last_page\": \"685\", \"citations\": \"215 So. 3d 685\", \"volume\": \"215\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T21:20:08.204559+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SUCCESSION OF Milton YOUNGER\", \"head_matter\": \"SUCCESSION OF Milton YOUNGER\\nNO. 2016-C-2202\\nSupreme Court of Louisiana.\\nJanuary 25, 2017\", \"word_count\": \"43\", \"char_count\": \"269\", \"text\": \"Applying For Writ of Certiorari and/or Review, Parish of Lincoln, 3rd Judicial District Court Div. B, No. 12,604; to the Court of Appeal, Second Circuit, No. 50,-876-CA\\nL Denied.\"}"
la/12367047.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"12367047\", \"name\": \"Danielle LARSON v. XYZ INSURANCE COMPANY, et al.\", \"name_abbreviation\": \"Larson v. XYZ Insurance Co.\", \"decision_date\": \"2017-05-03\", \"docket_number\": \"No. 2016-C-0745\", \"first_page\": \"412\", \"last_page\": \"419\", \"citations\": \"226 So. 3d 412\", \"volume\": \"226\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-11T02:16:03.455573+00:00\", \"provenance\": \"CAP\", \"judges\": \"CRICHTON, J., concurs for thq reasons assigned by Guidry, J.\", \"parties\": \"Danielle LARSON v. XYZ INSURANCE COMPANY, et al.\", \"head_matter\": \"Danielle LARSON v. XYZ INSURANCE COMPANY, et al.\\nNo. 2016-C-0745\\nSupreme Court of Louisiana.\\n05/03/2017\\nRehearing Denied June 29, 2017\\nMUSGRAVE, MCLACHLAN. & PENN, LLC, Richard Todd Musgrave, Theresa S. Anderson; PALOWSKY LAW, LLC, Stacy Renee Palowsky; for Applicant.\\nPRISCHHERTZ, POULLIARD, FRISHHERTZ & IMPASTATO, LL, Dominick P. Impastato, III, Marc Lloyd Frischhertz; for Respondent.\", \"word_count\": \"3657\", \"char_count\": \"21788\", \"text\": \"HUGHES, J.\\n_JjWe granted the writ application in this case to review the applicability \\\"of La. R.S. 9:2795.3, the Equine Immunity Statute. The trial court granted a motion for sura-mary judgment filed by Equest Farm, LLC, finding that the immunity statute applied because plaintiff Danielle Larson was a participant engaged in equine activity at the time the Equest Farm pony bit her. The court of appeal reversed, holding that Larson was not a \\\"participant\\\" under the immunity statute, and that summary judgment was inappropriate because there were genuine issues of material fact as to whether another provision in the immunity statute .might apply. We hold that there are genuine issues of material fact on the issue of whether the immunity statute applies. Accordingly, we affirm the court of appeal and remand to the trial court.\\nFacts\\nThis suit concerns a horse bite injury sustained in 2013 by Danielle Larson, who visited Equest Farm for the purpose of visiting and feeding horses owned by that facility. Equest Farm is located in City Park in New Orleans, and it boards horses as well as offers camps, lessons, field trips, and birthday parties with horses.\\nLLarson, an Illinois resident, frequently came to the New Orleans area to visit her boyfriend. Larson testified that she has never owned a horse but that she had been riding horses since childhood- and she rode horses at a stable in Illinois. Larson testified that she had previously been shown how to feed a horse: with a flat hand, fingers together so that they are angled down and not sticking up. Larson testified that in the past she had fed horses com mon treats such as carrots, apples, and sugar cubes.\\nLarson testified in her deposition that she had been visiting Equest Farm since 2011 or 2012 to \\\"talk to them\\\" and \\\"give them love and affection.\\\" Larson testified that prior to the incident she had visited Equest Farm at least six times and that she tried to go every time she visited New Orleans. Larson testified that each time she went to Equest Farm for a visit she would first check in with someone from the equestrian center front office before heading into the stables. Larson testified that during a previous visit, a man who appeared to work for Equest Farm gave her mints to feed the horses. Approximately five days before the date of the accident, Larson dropped by Equest Farm to ask if in the coming days she could visit with the school horses, which are horses owned by facility used for lessons. She also wanted to return with treats and was seeking advice on what the horses liked. Larson said she spoke with someone who worked in the office, named Kaley or Kiley, who told her she could return with certain treats, including carrots, and feed and visit with the school horses.\\nWhen Larson returned with carrots on Monday, September 23, 2013, the Equest Farm office was closed in accordance with its regular schedule, and Larson proceeded to the stalls where the school horses were kept. On her way, she encountered two riders who boarded horses at Equest Farm, Joanna Deal and RSusan Gegen-heimer. Larson told them that she was going to feed the school horses carrots. Ms. Deal and Ms. Gegenheimer told Larson to be careful because they heard one of the school ponies had bitten a child.\\nAs Larson was visiting with the school horses, she arrived at a stall where a pony, Wesley, was standing at the gate. Larson placed a carrot in her hand and held it out, but the carrot was knocked from her hand by the horse, causing the carrot to fall to the ground. As Larson squatted down to pick up the carrot, Wesley also reached for the carrot. Instead of biting the carrot, however, Wesley bit off Larson's thumb.\\nLarson required substantial medical care. Doctors attached her injured hand to her groin for four weeks to keep what remained of her hand viable. Larson will have to be fitted for a prosthetic thumb or transfer a toe to her hand.\\nThere is a dispute about the signage that was posted on the day of the incident. Larson testified that she did not see any signs at Equest Farm prohibiting visitors from feeding the horses. Ms. Deal also testified that on the day of the accident she did not recall any such signs, but that she did not go into the school horse barn often. Ms. Gegenheimer also testified that at the time of the accident she was not aware of any rules that would prevent visitors from feeding the horses. Ms. Ge-genheimer further testified that she did not see any signage specifically warning others about a prior nipping incident involving Wesley. Equest Farm LLC, member Leslie Kramer averred by affidavit that there have been signs posted since 2011 that feeding treats or petting horses is not allowed. She averred that the signs stated visitors could \\\"look but not touch\\\" the horses.\\nAs for Wesley, he appears to have a good reputation at Equest Farm, although it is not without blemish. Ms. Deal testified that she saw small children [4ride on Wesley. Ms. Gegenheimer testified he was a \\\"great lesson horse.\\\" Ms. Kramer averred that Wesley \\\"is considered to be one of Equest Farm's best school ponies.\\\" Ms. Kramer also averred that the only other time Wesley has bitten anyone was when a child who had been riding him was holding his ears and muzzle trying to get him to kiss her. Wesley nipped her and bruised her cheek, however, the student continued to take lessons riding Wesley, and no lawsuit was filed.\\nProcedural History\\nLarson filed a Petition for Damages alleging that Equest Farm and its insurer were liable for her injuries under theories of negligence and strict liability. Equest Farm filed a Motion for Summary Judgment, which argued that Larson's suit should be dismissed due to the applicability of the Equine Immunity Statute, La. R.\\u00a3j. 9:2795.3. Equest Farm asserted that Larson was a \\\"participant\\\" who was injured as a result of inherent risks of equine activity, and under the Equine Immunity Statute, the facts of her case preclude her from recovery against Equest Farm.\\nThe trial court granted Equest Farm's Motion for Summary Judgment, dismissing Larson's suit. In reasons given from the bench, the trial court found:\\nI believe that when you went and touched\\u2014when you touched that horse, when you went to feed that horse it was equine activity. You're not a spectator and it could be\\u2014somebody could say that it's inspecting. I don't know. Evaluating, I don't know. But I don't know what that means. I do know horses and I know that you feed a horse, like this (Indicating), and I know if you drop that carrot a horse takes his tongue and he felt the finger and feels like a carrot, and he bites it.\\nNow, again, you're saying maybe that's comparative fault, whatever. That's not a dangerous animal. I mean, that's not\\u2014he didn't do anything negligent. He did what a horse does. That's all you get .\\nAnd just the way he looks, his eyes are way up here, his mouth is way down here. I mean, we own horses. And it's ugly. That picture that was submitted to us is absolutely ugly .\\n|BI think the Fourth Circuit needs to look at it. The [Fjourth Circuit needs to tell me it was equine activity. I do. I think they need to tell me that. Because I do think she took herself out of a spectator position. Had she stayed behind and the horse came over and bit her, I'm with you. But when you go and put yourself in the middle of it, and you knew horses\\u2014what your client says, she loves horses, she knows them, she does that. I just don't know. I think the definition\\u2014you know maybe you're right but somebody might say that's inspecting, that's evaluating. I don't know; But I think you need to let the Fourth Circuit tell you that I'm wrong. So I'm granting your Summary Judgment.\\nLarson appealed. The court of appeal reversed the summary judgment, finding that Larson was not a participant engaged in equine activity, and thus Equest Farm was not afforded immunity under the statute. Larson v. XYZ Ins., 2015-0704 (La. App. 4 Cir. 3/23/16), 192 So.3d 181. The appeal court concluded that the definition of \\\"engages in equine activity\\\" found in subsection .(A)(1) of the statute, which must be strictly construed, does not include \\\"a visitor to a stable who feeds treats to a horse.\\\" Id. at p.10, 187. The court noted that the definitions of \\\"equine activity\\\"' listed in subsection (A)(3) are to be considered in determining whether someone is a participant. Id. at p. 12, 189. However, the court of appeal determined that Larson was not \\\"inspecting\\\" or \\\"evaluating\\\" under subsection (A)(3)(d). Id. Larson's visit to see the horses and give them \\\"love and affection\\\" does not meet the dictionary definitions of inspect or evaluate, and dictionary definitions are to be used because the statute does not define these terms. Id. Thus, the court of appeal concluded that-Larson was not a participant under the Equine Immunity Statute.\\nThe majority also opined that even if Larson was a \\\"spectator\\\" pursuant to Subsection (A)(1), the statute could'still provide Equest Farm with immunity -if Larson, as a spectator, placed herself in an unauthorized area. Id. at p. 13, 189. The | f,court of appeal -found that there were genuine issues of material fact on this issue that-bar summary judgment. Specifically, Larson and the two riders testified that they could not recall- seeing signs that prohibited touching or feeding the horses. Id. at pp. 14-15, 190. But according to an affidavit of Ms. Kramer , such signs were posted. Id. at p. 15, 190. The court of appeal stated that whether Equest Farm is entitled to immunity under La. R.S. 9:2795.3 at this juncture should be decided by a trier of fact. Id. The court of appeal thus reversed the grant of summary judgment and remanded to the trial court for further proceedings. Id. .\\nEquest Farm filed an application for certiorari, which this court granted. Larson v. XYZ Ins. Co., 2016-0745 (La. 6/28/16), 192 So.3d 782.\\nLav and Analysis\\nAppellate courts review summary\\\" judgments de novo-under the same criteria that govern a distrfct court's consideration of whether summary judgment is appropriate. Greemon v. City of Bossier City, 2010-2828 (La. 7/1/11), 65 So.3d 1263, 1267; Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So.2d 880, 882; Allen v. State ex rel. Ernest N. Morial-New Orleans Exhibition Hall Authority, 2002-1072 (La. 4/9/03), 842 So.2d 373, 377. In ruling on a motion for summary -judgment, the judge's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party's favor. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876 So.2d 764, 765. A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one [ 7conclusion, there is no need for a trial on that issue and summary judgment is appropriate. Id. at 765-66.\\nOn motion for summary judgment, the burden of proof remains with the mov-ant. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one\\\" or more elements essential to the adverse party's claim, action, or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted. See La. G.C.P. art. 966(D)(1); see also Schultz v. Guoth, 2010-0343 (La. 1/19/11), 57 So.3d 1002, 1006.\\nWhen a motion for summary judgment is made and supported as provided in La. C.C.P. art. 967, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in La. C.C.P. art. 967, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967(B); see also Dejoie v. Medley, 2008-2223 (La. 5/5/09), 9 So.3d 826, 832. Whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Richard v. Hall, 2003-1488 (La. 4/23/04), 874 So.2d 131, 137.\\nWe agree with the court of appeal that there are contested issues of material fact that make summary judgment inappropriate. Issues of the applicability of the immunity statute and potential comparative negligence of the parties remain.\\nDecree\\n|sThe ruling of the court of appeal is affirmed. The matter is remanded to the trial court for further proceedings.\\nAFFIRMED and REMANDED\\n. Knoll, J., retired, participated in this decision, which was argued prior to her retirement.\\n. While the concurrence mentions the possible applicability of La. R.S. 9:2795.3(A)(3)(e), it was not addressed by the majority opinion.\\n. Ms. Kramer provided two affidavits in support of Equest Farm's Motion for Summary Judgment. ' Attached to' her second affidavit were photos of the posted signs that instructed visitors not to touch or feed the horses.\"}"
la/2456863.json ADDED
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1
+ "{\"id\": \"2456863\", \"name\": \"The State of Louisiana vs. John Mahner et als.\", \"name_abbreviation\": \"State v. Mahner\", \"decision_date\": \"1891-04\", \"docket_number\": \"No. 10,730\", \"first_page\": \"496\", \"last_page\": \"500\", \"citations\": \"43 La. Ann. 496\", \"volume\": \"43\", \"reporter\": \"Louisiana Annual Reports\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T20:07:15.905110+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Louisiana vs. John Mahner et als.\", \"head_matter\": \"No. 10,730.\\nThe State of Louisiana vs. John Mahner et als.\\nAn ordinance of a municipal corporation which violates any of the recognized principles of legal and equal rights is necessarily void so far as it does so.\\nAn ordinance which prohibits dairies within certain designated limits and gives the City Council the authority to grant permission to carry them on within the prohibited limits is not general in its operations among the class it is intended to affect, and is therefore null and void.\\nAPPEAL from the Third Recorder\\u2019s Court of New Orleans. Landry, J.\\nHenry Renshaw, Assistant Oity Attorney, and Carleton Hunt, City Attorney, for Plaintiff and Appellee:\\nUnless ordinance shows no action for penalty was intended without prior demand, unnecessary to aver one. Unnecessary to aver notice of ordinance, this being conclusively presumed as to all on whom it is binding. Dillon Mun. Cor. See. 41G, ICd. of 1S90.\\nAll on whom ordinances are binding are bound to take notice of them. Dillon Mun. Cor. Sec. 306, Ud. of 1890.\\nThe notice referred to in Ordinance 3175 O. S. has no reference to the fine imposed in this ease.\\nThe designation of an official is sufficient, if. by reference to the Oity Charter, the official intended may easily be ascertained.\\nThe enforcement of clause of ordinance under which defendant is prosecuted not subject to the discretion of any official.\\n\\u2022Ordinance 3175 O. S. within the power of Oity to enact under Charter of 1856; Ordinance 3414 C. S. authorized by Act 20 of 1882, Sec. 7.\\nNo unlawful discrimination by Ordinance. State vs. Schlemmer, 42 An. \\u2014; 8 Southern Reporter, 308, 309; 3 An. 689.\\nThe question of the validity of a judgment is distinct from the question of the manner of its enforcement.\\n\\u2022Courts will not interfere with discretion of municipal corporation unless the corporation has manifestly abused its powers. 42 An. 487.\\nA. D. Henriques and Branch K. Miller for Defendants and Appellants :\\nWhere an Ordinance provides a penalty for failure to obey a notice, the notice given must conform strictly to the Ordinance. 36 An. .903.\\nThe operation of an Ordinance can not be left to the discretion of an executive officer. 15 A. and E. Oorp. Cases, 356.\\nThe power to prevent the following of a lawful occupation, save in certain localities, is not inherent in a municipal corporation.\\nAn Ordinance void for want of power in the Council which passed it, can not be valid against an amendment of a subsequent Council having power to pass the original Ordinance. Hun, Pol. Ord. 138, 162.\\nOrdinances must be general in their operation. 1 Dillon Hun. Corp. Sec. 322; 118 IT. S. 551.\\nPower to imprison in default of payment of fine must be expressed. Dillon Hun. Corp. Secs. 336, 353, 3804.\\nAn Ordinance can not make one continuous act a number of offences. 1 Dillon Hun. Corp. 342; 88 111. 274; 12 Johns, (X. Y.)122; 9Wenclell, (X. Y.) 591; 3 An, 688; 36 An. 247\", \"word_count\": \"1606\", \"char_count\": \"9567\", \"text\": \"The opinion of the court was delivered by\\nMcEnery, J.\\nThe defendants were prosecuted for violating or - dinanee No. 3414 of the City of New Orleans, convicted and fined.\\nThis ordinance, and amended ordinance No. 3175, extended the limits within-which the dairies were prohibited.\\nThe defendants ask that the ordinance be declared null and void, because it is not general in its operation, is unconstitutional and oppressive.\\nThe objectionable feature of the ordinance is contained in the first section.\\nThis section prescribes the limits within which dairies may be conducted by permission of the City Oouncil, and it is made unlawful to keep more than two cows without a permit from the City Oouncil. The defendants are within the prohibited limits, and keep more than two cows.\\nThe ordinance is not general in its operation. It does not affect all citizens alike who follow the same occupation which it attempts to regulate. It is only those persons who keep more than two cows within the prohibited limits without the permission of the Oity Council who are subject to the penalties in the ordinance. The discretion vested by the ordinance in the City Oouncil is in no way regulated or controlled. There are no conditions prescribed upon which the permit may be granted. It is within the power of the-City Council to grant the privilege to some, to deny it to others.\\nThe discretion vested in the Council is purely arbitrary. It may be exercised in the interest of a favored few. It may be controlled, by partisan considerations and race prejudices, or by personal-animosities. It lays down no rules by which its impartial execution-can be secured, or partiality and oppression prevented. Yick Wo vs. Hopkins, 118 U. S. 856; Horr & Bemis, M. P. Ordinances, paragraphs 135, 136.\\nIt was the evident intention of the Council in amending ordinance SITS to prohibit dairies in other places than within the prescribed limits.\\nThe amended ordinance, Section S, grants twelve months' time to the proprietors or owners of all dairies now in existence in violation of the amended ordinance to move their dairies. But as the amendment to the ordinance only extends the limits within which dairies-are prohibited, those who have them in pursuance of the permission from the mayor are exempt from its operations.\\nSection 4 of ordinance 3414 is open to the objections above stated. It is as follows:\\n\\\"That henceforth no new dairies keeping more than two cows shall be established within the limits above named, under the same penalties as are now in force under existing ordinances.\\\"\\nThis section establishes an inequality, granting to some persons, following the same occupation, privileges that are not extended to others.\\nThe ordinances do not regulate dairies in the interest of the public-health. One dairy may be a nuisance because the City Council has refused to give the required permission for its establishment; another may be perfectly harmless and in no -way detrimental to-public health because it exists by permission of the Council. They may exist along side of each other, both unobjectionable in their-police regulations, and one a nuisuance and the other a lawful establishment.\\nBoth the original and amended ordinance violate equal rights, among the class they are designed to affect, and are therefore necessarily void so far as they do so.\\nThis opinion in no way conflicts with the views expressed in the-case of the State vs. Gisch, 31 An. 544. In that ease the ordinance regulated private markets in pursuance of express legislative enactment, by imposing a license upon them when they were conducted in certain localities. The ordinance affected all persons alike who were engaged in the same occupation, and was free from the objections in the ordinance under consideration. Nor does this opinion conflict with the opinion and decree in the case of Bozant vs. Cambell, 9 R. 411, in which the court was called on to deal with a municipal ordinance prohibiting the establishment of private hospitals within certain limits. The court held that, as the Council had a right to repeal the ordinance, it could do so partially and modify it so as to permit in exceptional cases the erection of private hospitals within the prohibited limits.\\nThe instant case does not present the same features. In the exercise of its power in the interest of the public health, the court said the council of the municipality had prudently exercised it.\\nIt is therefore adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and the suit of the City against the defendants be dismissed with costs of both courts.\"}"
la/2493439.json ADDED
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1
+ "{\"id\": \"2493439\", \"name\": \"Railroad Commission of Louisiana vs. The Kansas City Southern Railway Company\", \"name_abbreviation\": \"Railroad Commission v. Kansas City Southern Railway Co.\", \"decision_date\": \"1901-11\", \"docket_number\": \"No. 14,189\", \"first_page\": \"450\", \"last_page\": \"451\", \"citations\": \"107 La. 450\", \"volume\": \"107\", \"reporter\": \"Louisiana Reports\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T17:47:41.611048+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Railroad Commission of Louisiana vs. The Kansas City Southern Railway Company.\", \"head_matter\": \"No. 14,189.\\nRailroad Commission of Louisiana vs. The Kansas City Southern Railway Company.\\nSyllabus.\\nThe provision of Article 285 of the Constitution, conferring upon this court jurisdiction of suits brought against the Railroad Commission to test the validity of whatever rule, regulation, etc., it may have adopted, cannot be made to apply to suits brought by the Railroad Commission to recover the amount of fines imposed by itself for violations of its ordinances. A suit of the latter hind is an ordinary suit falling within the general rule as to jurisdiction.\\nAPPEAL from the Twelfth Judicial District, Parish of DeSoto.\\u2014 Lee, J.\\nWalter Gui\\u00f3n, Attorney General, (H. T. Liverman .and Lewis Gui\\u00f3n, of Counsel), 'for Plaintiffs, Appellants.\\nAlexander & Wilkinson, for Defendant, Appellee.\", \"word_count\": \"769\", \"char_count\": \"4586\", \"text\": \"The opinion of the court was delivered by\\nProvosty, J.\\nIn this suit the Railroad Commission of Louisiana seeks to enforce payment of a fine of $1000.00 imposed by itself upon the defendant Railway Company, and a motion is made to dismiss the appeal on the ground of want of jurisdiction rations materiae.\\nAs containing a grant of jurisdiction to this court in cases of this character the Attorney General refers to the following Article of the Constitution:\\n\\\"Art. 285. If any railroad, express, telephone, telegraph, steamboat and other water craft, or sleeping car company, or other party in interest, be dissatisfied with the decision or fixing of any rate, classification, rule, charge, order, act or regulation, adopted by the Commission, such party may file a petition setting forth the cause of objection to such decision, act, rule, rate, charge, classification or order, or to either or to all of them, in a court of competent jurisdiction, at the domicil of the Commission, against said Commission as defendant, and either party to said .action may appeal the case to the Supreme Court of the State, without regard to the amount involved, and all such cases, both in the trial and appellate courts, shall be tried sum marily, and by preference .over all other eases. Such cases may be tried in the court of the first instance, either in chambers or at term time; provided, all such appeals, shall be returned to the Supreme Court within ten days after the decision of the lower court; and where the Commission appeals, no bond shall be required. No bond shall be required of said Commission in any case, nor shall advance costs, or security for costs, be required of the Commission.\\\"\\nThat Article, in express terms, has reference exclusively to suits brought against the Commission, for the purpose of testing the validity of some action it -may have taken; but the Attorney General argues that the provision of this Article on the subject of the appeal, must be read into Article 286 under which the present suit has been brought, the two Articles being laws in pari materiae, and having therefore to be construed together.\\nThe canon of construction here invoked is sound; but assuming for argument's sake that Article 285 is in pari materiae, the argument loses sight of the fact that there are other Articles in the Constitution which are also laws in pari materiae, and in connection with which also Article 286 must be construed; these are the Articles inserted in the Constitution for the special purpose of regulating the jurisdiction of this court, which impliedly prohibits this court from entertaining jurisdiction of cases involving a mere monied demand where the amount is less than $2000.00,\\nWe can readily understand why suits brought co test the validity of any rule, regulation, etc., that the Commission may have made, should go to the highest court, which alone is competent to give a decision that shall be authoritative in other cases besides the one in which it is rendered; but after the validity of these rules, regulations, etc., have been established, either by decision or by failure to contest, we can think of no special reason why suits brought to collect fines imposed under these rules and regulations, should come to this court, any more than should any other suits brought by the State, or by any of the State agencies, for the recovery of mere money, and involving no governmental regulation.\\nWe have no jurisdiction of the appeal, and have to sustain the motion to dismiss; but in doing so we will add that the case, being the first of its kind, is one in which we should entertain an application for a writ of review on the petition of either party; so that no permanent injury to either party can result from our present action.\\nAppeal dismissed.\"}"
la/2562942.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"2562942\", \"name\": \"The State of Louisiana vs. James Green\", \"name_abbreviation\": \"State v. Green\", \"decision_date\": \"1896-12-14\", \"docket_number\": \"No. 12,326\", \"first_page\": \"60\", \"last_page\": \"65\", \"citations\": \"49 La. Ann. 60\", \"volume\": \"49\", \"reporter\": \"Louisiana Annual Reports\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T19:11:29.731210+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Louisiana vs. James Green.\", \"head_matter\": \"No. 12,326.\\nThe State of Louisiana vs. James Green.\\n\\u2018To quash a venire on the ground of irregularity in the proceedings of the jury commissioners, in drawing a jury panel, the defendant must make his point \\u2018dear and certain. It will not do to make it probable merely.\\nThe refusal of a trial judge to grant a new trial on tlie ground of newly discovered testimony will be sustained when it appears that it was only cumulative.\\nAPPEAL from the Twentieth Judicial District-Court for the Parish of Ascension. Gui\\u00f3n, J.\\nM, J. Cunningham, Attorney General, and G. A. Gondran, District Attorney, for Plaintiff, Appellee.\\nE. N. Pugh, for Defendant, Appellant.\\nSubmitted on briefs December 5, 1896.\\nOpinion handed down December 14, 1896.\\nRehearing refused January 4, 1897.\", \"word_count\": \"1790\", \"char_count\": \"10162\", \"text\": \"The opinion of the court was delivered by\\nWatkins, J.\\nThe defendant is charged with murder, was convicted of manslaughter and sentenced to imprisonment at hard labor in the penitentiary for a term of six months; and from the verdict and sentence he prosecutes this appeal, relying upon one bill of exceptions, in which his counsel assigns as error of the trial judge, his refusal to quash the general venire on account of alleged irregularities in the manner of drawing the same, and other bills to be found in the transcript.\\nThe motion to quash and set aside the venire of jurors is to the effect \\\" that said venire was not drawn in accordance with law, and that a trial by (jurors drawn from) said venire will be a fraud, and cause your mover herein great and irreparable injury;\\\" and it charges, that the \\\" drawing of said venire was illegal and contrary to law on its face (in) that only four members of the (jury) commission were present, and there is nothing to show that the members of said commission were notified in accordance with Sec. 8 of Act 99 of 1896. That, on its face, the three hundred names required by See. 4 of said act were not drawn as required and laid down in said section of the act, which was violated in every respect.\\\"\\nOn the trial of this motion, counsel for the defendant introduced and filed in evidence the proees verbal of the drawing of the venire and the record of the proceedings of the jury commission, and rested. The District Attorney offered no evidence. The trial judge, in overruling the motion, assigned no reasons, and none are appended to the bill of exceptions reserved to his ruling by defendant's counsel.\\nWe have extracted from the brief of defendant's counsel and reproduce the proees verbal of the jury commission, so as to show clearly the contention upon which defendant's counsel places reliance.\\nIt is as follows, to-wit:\\n\\\"We transcribe in full the entire record connected with the drawing of this jury.\\n\\\"General Venire List.\\n. \\\" August 19, 1896.\\n(Here follow three hundred names.)\\n\\\"State oe Louisiana,)\\n\\\"Parish of Ascension. /\\n\\\"Be it remembered that on ihis 19th day of August, 1896, we the undersigned jury commissioners of the parish of Ascension, duly appointed by the judge of the Twentieth Judicial District Court, evidence of which appointment being duly entered upon the minutes of said court and duly sworn evidence of which being filed and of record, did meet at the office of the clerk of said court; and Christian Kline, one of the commissioners, in the presence of the \\u2022other commissioners and two disinterested witnesses, proceeded to draw from the 'general venire box,' one at a time, the number of names of persons required for service at the ensuing term of the Twentieth Judicial District Court for this parish, to be holden on Monday, October 12, 1896. And therefrom fifty names were drawn to compose the grand and petit jurors for the first week of said term of court, to-wit: (Fifty names.)\\n\\\" And it being the judgment of the jury commissioners that a jury may be required for the second week of said court at said term, thirty additional names, to serve as petit jurors for the second week of said court, were in the same manner and at the same time drawn from said 'general venire box,' and were as follows, to-wit: (Thirty names.)\\n\\\" And it being the judgment of the jury commissioners that a jury may be required for the third week of said court at said term, thirty additional names, to serve as petit jurors for the third week of said court, were in the same manner and at the same time drawn from said 'general venire box,' and were as follows, to-wit: (Thirty names.)\\n\\\" And the said commissioners did thereupon place the ballots which were so drawn for each week in separate envelopes, under seal, and endorsed thereon the week for which they were respectively drawn, and the whole being placed in a box provided for that purpose, said box was sealed and placed in the custody of the clerk -of the court for use at the next term of the District Oourt of this parish.\\n\\\" In faith whereof we have signed the present proees verbal in the presence of one another on the day, month and year first above written.\\n\\\" (Original signed) C. Kline\\nC. A. Bullion.\\nJ. E. Landry.\\nJohn F. Landry.\\nFred. Landry,\\nClerk.\\n\\\"Witnesses: J. F. Fernandez.\\nJ. T. Blouin.\\n\\\" A. true copy:\\n(Seal) Fred. Landry,\\nClerk of Court.\\\"\\nIn order to obtain an accurate idea of the points of objection taken by defendants's council, the statute under which the jury was drawn must be examined and analyzed.\\nThe third section provides, that the District Judge of a country district shall select and appoint five discreet citizens, who, with the clerk of the court, who shall be ex officio a member thereof, shall constitute a jury commission for each parish within his district.\\nIt further provides that the evidence of such appointments shall be the written order of the judge, which shall be entered upon the minutes of the court.\\nIt further provides that \\\"three members of said commission, together with the clerk of the District Court, shall be a sufficient number to perform the duties imposed by this act, provided all the members shall have been duly notified by the clerk of the District Court -of the time and place designated by him for the meeting of said commission, which notification shall appear from the certificate of the clerk in case of the absence of any member thereof.\\\"\\nThe fourth section provides that said commission shall, within thirty days after their appointment, select, according to the provisions thereof, the names of three hundred persons, a list of whom shall be made by the clerk under the supervision of the commission- and supplemented thereafter from time to time as therein directed.\\nThat each of their names shall be written by the clerk on a separate slip of paper, which shall be deposited in a box denominated the general venire box. That within not less than thirty days prior to the meeting of a jury term of court the jury commission shall meet and rectify and revise the aforesaid list and the general venire box. That it shall be the duty of the clerk of court to make a prooes verbal of the acts of the commission and record same in a book to be provided and kept for that purpose, and that it shall be signed by the clerk, the members of the commission and the witnesses.\\nThe fifth section provides that within thirty days of the meeting of a jury term of court the commission shall meet and \\\" draw from the general venire box,\\\" one at a time, the number of persons required for service at the ensuing term of court, and the first fifty names so drawn shall compose the grand and petit jurors for the first week of the court.\\\"\\nThat the \\\" clerk shall keep a record of the drawing with a list of all names in the order they are drawn and showing the weeks for which they have to serve; and, when the drawing and the proees verbal is complete, shall deliver a copy of same to the sheriff,\\\" etc. (Act. 99 of 1896).\\n1. Comparing the prooes verbal which is in evidence with the law it will be seen that there was not only a majority of three of the jury commissioners out of the five appointed, present and participating in the drawing of the jury, but there were four of them present in addition to the clerk of the court.\\nCounsel's insistence is that the proees verbal shows that one of the commissioners was absent, but fails to show that all the members of the commission had been duly notified by the clerk of the time and place at which the commission was to assemble. Counsel has misapprehended the direction of the statute in this particular, which says this \\\" notification shall appear from the certificate of the clerk in case of the absence of any member thereof.\\\"\\nNon constat that, if the proper source of information had been examined and resorted to, the proof could not have been supplied.\\n2. With r\\u00e9gard to the other part of counsel's argument we deem it a sufficient answer to say that it is the fourth section of the act which directs the manner in which the jury commission shall form and prepare the general venire box and the list of three hundred names composing same, and the fifth section indicates the modus operandi of drawing a jury from the general venire box for service at a term of court.\\nThe proceedings of the commission are entirely distinct. Consequently it will not do to argue that no general venire box had been formed at all, because the proees verbal of the acts of the jury commissioners in drawing a jury did not go into the details of its formation. But the prooes verbal does state that the commission \\\" proceeded to draw from the general venire box\\\" certain names, and the list of the names of the three hundred persons composing the general venire box is annexed to and forms a part of the proees verbal itself.\\nHad that question been explored by proof we feel satisfied that this presumption of the existence of a general venire box would have been confirmed. We are of opinion that the motion to quash was properly overruled. State vs. Saintes, 46 An. 547.\\nWith reference to the refusal of the judge to grant a new trial on the ground of newly discovered witnesses we think he conformed to precedents firmly established, as the testimony proffered was cumulative merely. State vs. Jones, 46 An. 545. We ffnd no reviewable error on the record.\\nJudgment affirmed.\"}"
la/2599213.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"2599213\", \"name\": \"The State ex rel. Raymond Terence vs. H. L. Lazarus, Judge\", \"name_abbreviation\": \"State ex rel. Terence v. Lazarus\", \"decision_date\": \"1885-04\", \"docket_number\": \"No. 9431\", \"first_page\": \"314\", \"last_page\": \"316\", \"citations\": \"37 La. Ann. 314\", \"volume\": \"37\", \"reporter\": \"Louisiana Annual Reports\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T17:26:16.670791+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State ex rel. Raymond Terence vs. H. L. Lazarus, Judge.\", \"head_matter\": \"No. 9431.\\nThe State ex rel. Raymond Terence vs. H. L. Lazarus, Judge.\\nCourts have inherent power to pnnisli for contempt and our Code of Practice has expressly conferred ifc, but a judge cannot assume or decide that a witness has sworn untruthfully and punish him for the perjury as a contempt.\\nRefusing to answer a question that a witness is bound to answer is contumacy and is punishable as a contempt. Answering such question untruthfully is perjury, the punishment of which is remitted to the regular action of the criminal law.\\n^PPLICATION for Certiorari.\\nJoseph 1\\u2018. Jlornor and Brands W. Baker for the Relator.\\nRespondent in propria persona.\", \"word_count\": \"1131\", \"char_count\": \"6534\", \"text\": \"The opinion of the Court was delivered by\\nManning, J.\\nRaymond Terence was a witness in a cause on trial before the respondent Judge, and was committed for contempt in this, \\\" that lie refused to testify truthfully to the questions propounded to him by counsel and by the court and this without leading him to accuse himself of a crime.\\\" He was sentenced to imprisonment for thirty days and to pay a line of twenty-live dollars Ho has obtained from us a writ of certiorari under which the proceedings are now before ns for review.\\nThat this writ may be used for the purpose for which it is now invoked was settled in the De Buys case, 32 Ann. 1256, which has since been adhered to and has now passed beyond dispute.\\nThe judge bases his action on art. 136 of the Code of Practice wherein it is provided, if a witness refuse to answer any question put to him except such as might lead him to accuse himself of a crime, the court may line and imprison him.\\nIt is not charged or pretended that this witness refused to answer any question of any kind. On the contrary it is expressly alleged that he did answer the questions put to him by the counsel and the court, but that ho did not answer them truthfully.\\nRefusing to answer a question that a witness is bound to answer is contumacy and is punishable as a contempt. Answering such question untruthfully is perjury, the punishment of which is remitted to the regular action of the criminal law through the established forms of criminal proceedings, i. e. by indictment or information followed by a trial. An act may be at once a contempt of court and a violation of the criminal law, for example an assault and battery committed in open court would be punishable as a contempt and also by prosecution.. The overt physical visible act distinguishes it from perjury.\\nThe law gives to every judge the power to punish for contempt-. It is necessary for the orderly police of the court, but to decide that the-testimony of a witness is false and to inflict summary punishment upon him without atrial is repugnant to the orderly administration of justice and subversive of our ideas of right.\\nWhere flagrant perjury has been committed, a nisi prius judge has not infrequently directed the attention of the prosecuting officer to the man and his offence and has even ordered his committal until the criminal machinery could be set' in motion for his trial. But the respondent' dispensed with any form of trial, determined the guilt of the offendeiwithout accuser or witness, and summarily punished him without an opportunity of defense.\\nIt is therefore ordered and decreed that the order complained of by tlie relator is annulled and vacated.\"}"
la/3128984.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"3128984\", \"name\": \"CLARK v. LIFE INS. CO. OF VIRGINIA\", \"name_abbreviation\": \"Clark v. Life Ins.\", \"decision_date\": \"1935-11-04\", \"docket_number\": \"No. 33479\", \"first_page\": \"565\", \"last_page\": \"569\", \"citations\": \"183 La. 566\", \"volume\": \"183\", \"reporter\": \"Louisiana Reports\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T19:21:11.147691+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CLARK v. LIFE INS. CO. OF VIRGINIA.\", \"head_matter\": \"164 So. 417\\nCLARK v. LIFE INS. CO. OF VIRGINIA.\\nNo. 33479.\\nNov. 4, 1935.\\nRehearing Denied Dec. 2, 1935.\\nCharles J. Mundy, of New Orleans, for relatrix Ellen Harris Clark.\\nEugene J. McGivney and Solomon S. Goldman, both of New Orleans, for respondent Life Ins. Co. of Virginia.\", \"word_count\": \"848\", \"char_count\": \"4884\", \"text\": \"ODOM, Justice.\\nThe defendant Life Insurance Company issued to Chris Harris an industrial life insurance policy for $150 on .October 31, 1898; the premium being 15 cents per week, payable in advance. Harris paid the premiums regularly until March 12, 1923. None were paid thereafter, and admittedly the policy lapsed on March 19, 1923, for nonpayment of premiums. The insured died on August 4, 1933, 10 years, 4 months, and 15 days after the lapse.\\nThe policy contained the following stipulation : \\\"If, after the payment of the weekly premium hereon for five or more years, this Policy shall become void by reason of default in the payment of premiums, the Company agrees to issue a non-participating Paid-up Policy for an amount computed according to the first table below, the said Paid-up Policy to be continued in force for the full expectation of life of the Insured, at the date of issue of the Paid-up Policy, according to the second table below, provided that this policy shall be legally surrendered to the Company and application for said Paid-up Policy made in writing on tlje blank obtainable from the Company for that purpose within eight weeks after said default.\\\"\\nIt is clear that the insured could have surrendered this policy within 8 weeks from the date on which it lapsed, and in lieu thereof received a paid-up policy for an amount computed in a table written into the original policy, which paid-up policy would have continued in force during the life expectancy of the insured. But he failed to surrender the policy within that time or thereafter, and died more than 10 years after the lapse without having taken any steps whatever to secure for himself such benefits as might have inured to him under the terms of the policy.\\nPlaintiff, who is a daughter and heir of the deceased, brought this suit after his death, alleging that even though the policy by its terms lapsed on March 19, 1923, more than 10 years prior to the death of the insured, and was not surrendered within 8 weeks and a paid-up policy issued in lieu thereof, the original policy is still in force because the stipulations providing for its lapse and the loss of all benefits thereunder were against public policy, null, and void. She prayed for judgment against the company for $150, the face of the policy, and in the alternative for an amount for which a paid-up policy would have been issued had the original been surrendered within the time prescribed.\\nThe trial court sustained an exception of no cause of action, and dismissed plaintiff's suit. That judgment was affirmed by the Court of Appeal. 160 So. 461. The case was ordered up on application of plaintiff for writs, and in this court the insurance company has pleaded the prescription of 10 years in bar of plaintiff's action. As this plea is good, we express no opinion as to the merits of the exception which was sustained by both the trial court and the Court of Appeal.\\nArticle 3544 of the Civil Code, which is found under the general heading \\\"of prescription,\\\" reads as follows: \\\"Ten years. In general, all personal actions, except those before enumerated, are prescribed by ten years.\\\"\\nIf, as plaintiff alleged in her petition and now contends, the stipulation in the policy to the effect that under certain conditions the policy would lapse and the insured lose all benefits thereunder, were against public policy and void, the insured himself had an action against the company to have said stipulation decreed void and to obtain for himself such benefits under the policy as the plaintiff now seeks. But that was a personal action, and under article 3544 of the Code prescribed in 10 years. As .the insured lived for more than 10 years after the policy admittedly lapsed under its terms, without bringing any action against the insurer, the plea of prescription tendered by the defendant is good, and must be sustained.\\nIn Watson v. Mutual Life Ins. Co. of New York, 139 La. 737, 72 So. 189, the same plea was presented under facts similar, if not identical, with those here, and this court held that the action was barred by the prescription of 10 years under article 3544 of the Code. In that case the defendant also pleaded the prescription of two years under Act No. 68 of 1906, which the court said was good. But as that prescription is not pleaded in this case, we do not rest our opinion upon it, but upon the 10-year prescription as prescribed by the Code.\\nFor the reasons assigned, the plea of prescription filed by defendant in this court is sustained, and it is ordered that plaintiff's suit be dismissed at her costs in all courts.\"}"
la/3277490.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"3277490\", \"name\": \"STATE of Louisiana v. Rallie C. EDWINS\", \"name_abbreviation\": \"State v. Edwins\", \"decision_date\": \"1972-02-29\", \"docket_number\": \"No. 52174\", \"first_page\": \"1065\", \"last_page\": \"1065\", \"citations\": \"260 La. 1065\", \"volume\": \"260\", \"reporter\": \"Louisiana Reports\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-11T02:29:26.690023+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Louisiana v. Rallie C. EDWINS.\", \"head_matter\": \"258 So.2d 87\\nSTATE of Louisiana v. Rallie C. EDWINS.\\nNo. 52174.\\nFeb. 29, 1972.\", \"word_count\": \"45\", \"char_count\": \"270\", \"text\": \"In re: State of Louisiana applying for writ? of certiorari, prohibition and mandamus.\\nWrit refused. Under the particular facts and circumstances of this case, we find no abuse of discretion.\"}"
la/331806.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"331806\", \"name\": \"Succession of Benjamin A. Steele\", \"name_abbreviation\": \"Succession of Steele\", \"decision_date\": \"1852-03\", \"docket_number\": \"\", \"first_page\": \"111\", \"last_page\": \"113\", \"citations\": \"7 La. Ann. 111\", \"volume\": \"7\", \"reporter\": \"Louisiana Annual Reports\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T23:29:32.272833+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Succession of Benjamin A. Steele.\", \"head_matter\": \"Succession of Benjamin A. Steele.\\nWhere the plea o\\u00ed yes judicata has been made, and the judgment relied upon in support of the plea is obscure, it is competent for either party to explain it by parol or other evidence, to show that it either does, or does not, support the plea.\\nAPPEAL from the District Court of Madison, J. N. T. Richardson, J.\\nStockton and Steele, for appellees.\\nA. Snyder and Bemiss, for appellant.\", \"word_count\": \"885\", \"char_count\": \"5150\", \"text\": \"The judgment of the court was pronounced by\\nPreston, J.\\nGeorge D. Shadburne, curator of the succession of Benjamin A. Steele, has rendered his account; David Stanbrough opposes it, and claims to be a creditor to the amount of one thousand and fifty-three dollars, with interest at the rate of five per cent from the 22d day of April, 1848. Price and Watson, the only heirs of the deceased, resist his claim, on the ground, that it was a matter adjudged in his settlement of his account as tutor of the deceased. Stanbrough, as tutor of the deceased, rendered the final account of his tutorship on the 14th of April, 1849, and the judgment homologating his account, is that which is plead as adjudging this claim against him. He credited himself in the account with a sum of thirteen hundred and thirty-four dollars and seventy cents, as having paid the same to M. Wallace, Esq., the attorney of Pnce and Watson, in two suits prosecuted against him. Price and Watson opposed this credit \\\" as clearly unjust, except for a sum of sixty-four dollars and seventy cents, the remaining sum of twelve hundred and seventy dollars having been paid to satisfy a judgment against D. Stanbrough, as curator of a different succession.\\\" (Suit 1215.)\\nThe decree of homologation in relation to this credit, is as follows: \\\" and it is further ordered, by consent of parties, that the items number IS and 16, amounting to the credit of $1334 70, be withdrawn from said account, and in place thereof, the said tutor be credited with eight hundred and seventy-one dollars, being the price of the slaves, Harriet, Lucy, and their children, purchased by said minor, the 8th of December, 1843, and the,., interest accrued thereon to the death of the minor.\\\"\\nThe money for which Stanbrough was accounting, was twenty-seven hundred dollars, proceeds of a tract of land which he had caused to be sold as tutor, believing it to belong exclusively to the minor. Price and Watson brought suit against him, and established, that one-third of the tract beloifged to them, and recovered judgment for nine hundred dollars, with interest. It appears he paid them the judgment, amounting to one thousand and fifty-three dollars, and he says, with the credit which he consented to withdraw from his account as tutor of the minor. He offered to prove by the attorneys who entered the consent judgment, that in withdrawing the credit, he did not consent to its extinguishment, but reserved it as a claim against the estate of the minor, who was then deceased ; but the evidence was rejected.\\nPrice and Walson contends, that eight hundred and seventy-one dollars, the price paid by Stanbrough for slaves of his ward, was substituted in place of the credit of $1334 70, claimed by the tutor, and that the credit was extinguished by the substitution of the other credit and judgment of homologation.\\nFor two reasons, we think the evidence offered should have been received : First. The judgment is obscure, and we are unable to say which of the parties are right in their views of it. Second. When the plea of rei judicatce is offered, it is legal and proper to establish, by parol evidence or otherwise, the identity of the thing adjudged, and of course, to show in the same manner the contrary, that the thing has not been adjudged, when the obscurity in the judgment itself renders it necessary. But it is not necessary to remand the cause for this evidence. The records and accounts show precisely what Stanbrough received for Price and Watson, as heirs of their father, and also of his ward, their deceased half brother, and what he has paid to them and their creditors. He has .paid three thousand seven hundred and fifty-three dollars, and received twenty-seven hundred dollars, leaving Price and Watson, as the only heirs of his deceased ward, indebted to him one thousand and fifty-three dollars, with interest, as claimed.\\nObjection is made by Price and Watson to several bills for counsel fees, chai'ged by the curator of the succession. We do not see that they have taken an appeal, or brought the curator properly before us, so as to enable us to examine these claims. However, the amounts are not disputed, but it is urged, that the estate of their deceased half brother should not be charged with them. The record shows the services, and we think they were rendered on account of him and his succession, and ate proper charges against it.\\nThe judgment against the opponent, David, Stanbrough, is reversed ; and it is decreed, that he recover from the succession of Benjamin Steele, one thousand and fifty-three dollars, with interest from 22d of April, 1848, and that the succession pay the costs of this appeal. In other respects, the judgment is affirmed.\"}"
la/331962.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"331962\", \"name\": \"T. Phelps et al. v. Grorge S. Sawyer, Administrator; George S. Sawyer v. Sureties of Stone\", \"name_abbreviation\": \"Phelps v. Sawyer\", \"decision_date\": \"1852-10\", \"docket_number\": \"\", \"first_page\": \"551\", \"last_page\": \"552\", \"citations\": \"7 La. Ann. 551\", \"volume\": \"7\", \"reporter\": \"Louisiana Annual Reports\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T23:29:32.272833+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"T. Phelps et al. v. Grorge S. Sawyer, Administrator. George S. Sawyer v. Sureties of Stone.\", \"head_matter\": \"T. Phelps et al. v. Grorge S. Sawyer, Administrator. George S. Sawyer v. Sureties of Stone.\\nA judgment rendered against an absent defendant, unrepresented by a curator ad hoc, or by a properly constituted agent, will be annulled and set aside.\\nA suit against the sureties upon an administrator\\u2019s bond will be dismissed unless there be a judgment against the administrator, or he be made a party defendant.\\nAPPEAL from the District Court of the Parish of Catahoula, Barry, J.\\nSawyer, for plaintiff.\\nCurry and Hendry, for defendant.\", \"word_count\": \"388\", \"char_count\": \"2370\", \"text\": \"By the court:\\nRost, J.\\nSamuel P. Stone, the administrator of the succession of Elias Carter, deceased, having absconded without settling his accounts, the plaintiff was appointed in his place, and brought suit to compel him to account. The petition was answered and an account of Stone's administration, filed by Elias Carter, Jr., who pretended tobe the agent of .Stone. Judgment was rendered in favor of the plaintiff, in that suit, for $1031. Execution having been issued on that judgment, and return, \\\" no property found,\\\" the administrator brought suit against the sureties of Stone on his bond.\\nThe defendants in that suit alleged as one of the grounds of their defence, that the judgment against Stone had been obtained by fraud and collusion, and brought a separate action against the administrator to annul it. There were other grounds of defence, which it is unnecessary to notice.\\nThe suit of the administrator against the sureties, and that brought by the sureties to annul the judgment against Stone, were consolidated and tried together. The district court annulled the judgment and dismissed the action against the sureties as in case of non-suit. The administrator has appealed.\\nThe power of attorney under which Elias Carter, Jr., represented Stone in the first suit, is in evidence. It is essentially a special power, and conferred no authority on Carter to defend that suit. The plaintiff had asked for the appointment of a curator ad hoc, but no appointment was made ; and as the defendant was unrepresented in the proceedings, the judgment rendered against him was properly annulled and set aside.\\nThere being no judgment against the principal debtor, and he not being made a party defendant in the suit against the sureties, that action was also properly dismissed.\\nThe judgments in both cases are therefore af\\u00f1rme\\u00e1.\"}"
la/334682.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"334682\", \"name\": \"Scott v. Niblett\", \"name_abbreviation\": \"Scott v. Niblett\", \"decision_date\": \"1847-03\", \"docket_number\": \"\", \"first_page\": \"270\", \"last_page\": \"271\", \"citations\": \"2 La. Ann. 270\", \"volume\": \"2\", \"reporter\": \"Louisiana Annual Reports\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T22:56:38.162911+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Scott v. Niblett.\", \"head_matter\": \"Scott v. Niblett.\\nDecision in Spenser v. Knowland, ante p. 222, affirmed.\\nAppeal from the District Court ef Madison, Selby, J.\\nThomas and Snyder, for the plaintiff,\\ncited Spencer V. Knowland, ante p. 222, as decisive of this case.\\nGarland and Pepper, for the appellant.\", \"word_count\": \"307\", \"char_count\": \"1791\", \"text\": \"The judgment of the court was pronounced by\\nSlidell, J.\\nAn order of seizure and sale was obtained upon a judgment in favor of Niblett against Scott in the United States Court, in the State of Mississippi. The judgment did not express on its face that it bore interest, but the plaintiff, in the executory proceeding, exhibited with the record an authenticated copy of a statute of Mississippi, passsed several years before the rendition of the judgment, which allowed interest on judgments at eight per cent. This rate was accordingly allowed by the order of seizure and sale.\\nWe think the order of seizure improperly issued in this respect. See the case of Spencer v. Knowland, ante p. 222. If the creditor had asked us to maintain the order of seizure and sale as to the capital sum, abandoning the interest, it might then have become necessary to examine the points made as to the char acter of the judgment, and the authentication of the transcript. There being no such application, we confirm the judgment of the court below rendering the injunction perpetual.\\nAs some doubt might arise from the phraseology of the injunction thus rendered perpetual and the proceedings in the cause, as to the force and effect of the judgment appealed from, we think proper to say, in affirming it,.that we consider it simply as determining that the order of seizure and sale in question illegally issued, and that it does not form res judicata as to the force and effect of the judgment rendered in Mississippi. Judgment affirmed.\"}"
la/573194.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"573194\", \"name\": \"T. M. Anderson v. R. B. Stille, Tutor\", \"name_abbreviation\": \"Anderson v. Stille\", \"decision_date\": \"1856-08\", \"docket_number\": \"\", \"first_page\": \"669\", \"last_page\": \"671\", \"citations\": \"12 La. Ann. 669\", \"volume\": \"12\", \"reporter\": \"Louisiana Annual Reports\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T23:04:27.405442+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"T. M. Anderson v. R. B. Stille, Tutor.\", \"head_matter\": \"T. M. Anderson v. R. B. Stille, Tutor.\\nUle District Judge of the Parish in which the slaves ave situated, lias jurisdiction to try an action for their partition.\\nPlaintiff need not, in order to sustain a sequestration, swear that he fears defendant will conceal, part with, or dispose of, the property sequestered. It will be sufficient if he make oath of his interest in the property sequestered, and that he fears that defendant will send it out of the jurisdiction of the co-irt during the pending of the suit.\\nk \\u00fcPPEAL from the District Court of St. Landry, Dupr\\u00e9, J.\\nJ. L. King, for plaintiff and appellant.\\nSwcmjze & Moore, for defendant.\", \"word_count\": \"816\", \"char_count\": \"4804\", \"text\": \"Meeeick, C. J.\\nThe plaintiff being the owner of the one undivided sixth part of the slaves in controversy, by the judgment of the District Court of St. Landry, brought the present action to effect a partition.\\nThe slaves were in the possession of the defendant, in the Parish of St. Landry, and about being removed to the Parish of Sabine, where the defendant resides.\\nThe plaintiff also sued out a writ of sequestration, to prevent the slaves from being removed beyond the jurisdiction of the court.\\nThe defendant excepted to the plaintiff's action, which, being dismissed, plaintiff appealed.\\nIt is contended, 1st. That the defendant's domicil being in the Parish of Sabine, this action ought to be instituted there; 2d. That no sufficient ground for the resort to the harsh remedy of a writ of sequestration, has been shown by the plaintiff in his affidavit.\\nOn the first question, it is urged that the term \\\"real property,\\\" used in Art. No. 105, No. 11 Code of Practice, is intended to embrace land; that the suit for a partition of slaves, is governed by the general rule, that one must be sued before the Judge having jurisdiction over the place where the defendant has his domicil. O. P. 162.\\nA judicial construction was put by our predecessor upon the term, real property, as used in the Article 162, O. P., in the case of Scott v. Bowles, 3 Ann. 637, and it was there held, that \\\"slaves being immovable by operation of law, plaintiffs had their election to institute an action for their recovery, either in the parish where the property was situated, or at the domicil of the defendant.\\\"\\nWe see no reason why a different construction should be put upon the same words occurring inthearticle under consideration, which provides, that in matters relative to the partition of real estate between co-proprietors, the suit must be brought before the court of the place whore such property is situated, though the co-proprietors may reside in different parishes.\\nWe have not overlooked the language of the French text, d'un bien-foncls, but wo think the English text, which is in accordance with Article 1304 of the Civil Code, should govern. The article last cited from the Civil Code, is under the head of partition of successions, and is in these words: \\\"All the rules\\nestablished in the present section, with the exception of what relates to collections, are applicable to partitions between co-proprietors of the same thing, where, among the co-proprietors, any are absent, minors, or interdicted, or where the co-proprietors of age, present, cannot agree on the partition and on the manner of making it.\\nBut in these hinds of partitions, the action must be brought before the Judge of the place where the property to be divided, is situated, wherever the parties interested may be domiciliated.\\nThe District Judge for the Fifteenth Judicial District, for Parish of St. Landry, had jurisdiction of the action of partition.\\nIt is further contended, that the affidavit for the sequestration, is insufficient, and that it does assert that plaintiff feared that defendant would conceal, part with, or dispose of the slaves.\\nIt was not necessary in this action, that the affidavit should show such apprehension. It was sufficient, under the 2d paragraph of Article 275, of the Code of Practice, that the plaintiff should make oath of his interest in the property, and that he feared that the defendant would send the slaves out of the jurisdiction of the court, during the pendency of the suit.\\nNo person can be compelled to hold property in common with others. O, O. 1215. The plaintiff had the right to institute his suit at any moment he saw fit, and having brought his action whilst the property of which he was a co-proprietor, was in the Parish of St. Landry, the jurisdiction of the District must be maintained.\\nIt is, therefore, ordered, adjudged and decreed, that the judgment of the District Court he avoided and reversed; that the defendant's exception be overruled; that the sequestration be maintained, and that this cause be remanded for further proceedings according to law, and that the defendant and appellee pay the 'costs of the appeal.\"}"
la/609017.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"609017\", \"name\": \"BROWN et al. v. AMERICAN FIRE INS. CO. OF NEW JERSEY (AMERICAN CENT. FIRE INS. CO. OF NEW JERSEY, Intervener)\", \"name_abbreviation\": \"Brown v. American Fire Ins.\", \"decision_date\": \"1918-12-02\", \"docket_number\": \"No. 21614\", \"first_page\": \"519\", \"last_page\": \"519\", \"citations\": \"144 La. 519\", \"volume\": \"144\", \"reporter\": \"Louisiana Reports\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T18:52:12.029784+00:00\", \"provenance\": \"CAP\", \"judges\": \"O\\u2019NIELL, J., being recused, takes no part.\", \"parties\": \"BROWN et al. v. AMERICAN FIRE INS. CO. OF NEW JERSEY (AMERICAN CENT. FIRE INS. CO. OF NEW JERSEY, Intervener).\", \"head_matter\": \"(80 South. 680)\\nNo. 21614.\\nBROWN et al. v. AMERICAN FIRE INS. CO. OF NEW JERSEY (AMERICAN CENT. FIRE INS. CO. OF NEW JERSEY, Intervener).\\n(Dec. 2, 1918.\\nRehearing Denied Feb. 3,1919.)\\nAppeal from Twenty-Third Judicial District Court, Parish of St. Mary; Thomas M. Milling, Judge.\\nSuit by Robert L. Brown and Oscar Zenor, coreceivers of the Mrs. E. D. Burguieres Planting Co., Limited, against the American Fire Insurance Company of New Jersey, in which the American Central Fire Insurance Company of New Jersey intervened. Judgment for plaintiffs, and intervener and defendant appeal.\\nReversed, and suit dismissed.\\nHowe, Fenner, Spencer & Cocke, of New Orleans, for appellant defendant.\\nJohn W. Lewis, of Opelousas, and Emmett Alpha, of Franklin, for appellant intervener.\\nPaul Kramer, and Foster, Milling, Saal & Milling, all of Franklin, for appellees.\", \"word_count\": \"233\", \"char_count\": \"1489\", \"text\": \".SOMMERVILLE, J-\\nThis case presents similar matters and points of law considered and disposed of this day in case numbered 21613, entitled \\\"Robert L. Brown and Oscar Zenor, Coreceivers of the Mrs. E. D. Burguieres Planting Company, Limited, v. North River Insurance Co. of New York (American Central Fire Insurance Co. of New Jersey, Intervener), 80 South. 674 ; and, for the reasons given therein,\\nIt is ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that there be judgment dismissing plaintiffs'' suit, at their costs.\\nO'NIELL, J., being recused, takes no part.\\nAnte, p. 504.\"}"
la/6683342.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"6683342\", \"name\": \"DUBREUIL vs. DUBREUIL\", \"name_abbreviation\": \"Dubreuil v. Dubreuil\", \"decision_date\": \"1817-07\", \"docket_number\": \"\", \"first_page\": \"81\", \"last_page\": \"82\", \"citations\": \"5 Mart. (o.s.) 81\", \"volume\": \"5\", \"reporter\": \"Martin (Louisiana Term Reports)\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-11T00:27:53.880205+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"DUBREUIL vs. DUBREUIL.\", \"head_matter\": \"DUBREUIL vs. DUBREUIL.\\nAPPEAL from the court of the first district.\\nThe appellant must in all cases give security for costs.\\nA statement of facts must be signed by both. parties, or persons authorized by them.\", \"word_count\": \"325\", \"char_count\": \"1868\", \"text\": \"Derbigny, J.\\ndelivered the opinion of the court. In this case the appellee objects to the appeal as irregularly brought-1. Because no security for the costs was given by the appellant-2. Because the statement of facts, which purports to be agreed upon between the parties, was not assented to by him.\\nIn all cases of appeals, whether execution be stayed or not, the law makes it the duty of the appellant to furnish security to answer the costs. This is a condition without which he has no right to call his adverse party before the appellate court. If he does, the uppeal is irre- gularly brought, and ought not to be heard.\\nEast'n District.\\nJuly 1817.\\nCarleton for the appellant. Seghers for the appellee.\\nBut, independently of that circumstance, there is one feature in this record, which must decide the court to dismiss this appeal. The statement of facts is not signed by the appellee, nor for aught that appears, by any person for him. The conusel appointed ex officio to the absent heirs of John Dubrenil. part of whose estate dis- puted by the appellee as his brother, has signed that statement : but nothing shews that he signed or had any right to sign in air other capacity.\\nof attorney was received, this present attorney in fact signed, himself the petition, which he presented in his name to the court of probates, thereby evincing the intenition of prosecuting his claim in person. It does not appear that he employed any attor ney in the probate court. The statement of facts ought certainly to have been communicated to him, and is a nullity without his assent.\\nIt is, therefore, ordered,adjudged and decreed, that the appeal be dismissed.\"}"
la/6840017.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"6840017\", \"name\": \"STATE of Louisiana v. Glen FORD\", \"name_abbreviation\": \"State v. Ford\", \"decision_date\": \"2015-09-11\", \"docket_number\": \"No. 2015-KK-1063\", \"first_page\": \"412\", \"last_page\": \"412\", \"citations\": \"176 So. 3d 412\", \"volume\": \"176\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-11T02:08:12.607850+00:00\", \"provenance\": \"CAP\", \"judges\": \"WEIMER and GUIDRY, JJ., would grant.\", \"parties\": \"STATE of Louisiana v. Glen FORD.\", \"head_matter\": \"STATE of Louisiana v. Glen FORD.\\nNo. 2015-KK-1063.\\nSupreme Court of Louisiana.\\nSept. 11, 2015.\", \"word_count\": \"58\", \"char_count\": \"377\", \"text\": \"In re State of Louisiana; \\u2014 Petitioner; Applying for Rehearing of this Court's action dated June 30,2015, Parish of Orleans, Criminal District Court Div. K, No. 518-962; to the Court of Appeal, Fourth Circuit, No. 2015-K-0079.\\nRehearing denied.\\nWEIMER and GUIDRY, JJ., would grant.\"}"
la/6860204.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"6860204\", \"name\": \"F.G. SULLIVAN, Jr., Contractor v. CITY OF BATON ROUGE and Parish of East Baton Rouge\", \"name_abbreviation\": \"Sullivan v. City of Baton Rouge\", \"decision_date\": \"2015-01-27\", \"docket_number\": \"No. 2014 CA 0964\", \"first_page\": \"186\", \"last_page\": \"209\", \"citations\": \"170 So. 3d 186\", \"volume\": \"170\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Louisiana Court of Appeal\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T17:40:39.025861+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before McDONALD, CRAIN, AND HOLDRIDGE, JJ.\", \"parties\": \"F.G. SULLIVAN, Jr., Contractor v. CITY OF BATON ROUGE and Parish of East Baton Rouge.\", \"head_matter\": \"F.G. SULLIVAN, Jr., Contractor v. CITY OF BATON ROUGE and Parish of East Baton Rouge.\\nNo. 2014 CA 0964.\\nCourt of Appeal of Louisiana, First Circuit.\\nJan. 27, 2015.\\nRehearing Denied Feb. 19, 2015.\\n\\u2022 Eric A. Kracht, Scott E. Frazier, John M. Madison, III, Baton Rouge, LA, for Plaintiff/Appellee/Cross-Appellant, F.G. Sullivan, Jr., Contractor.\\nMary Roper, Randy B. Ligh, Ashley W. Beck, Baton Rouge, LA, for Defendants/Appellants/Cross-Appellees, City of Baton Rouge and Parish of East Baton Rouge.\\nMichael D. Fisse, Ryan M. Bourgeois, Covington, LA, for Defendant, Louisiana Department of Transportation and Development.\\nBefore McDONALD, CRAIN, AND HOLDRIDGE, JJ.\\n. The Honorable Guy Holdridge is serving as Supernumerary Judge pro tempore by special appointment of the Louisiana Supreme Court.\", \"word_count\": \"10480\", \"char_count\": \"64912\", \"text\": \"CRAIN, J.\\n|2In this suit to enforce a construction contract, the defendant appeals the trial court's denial of a motion to continue the trial, the sustaining of an objection to the use of a deposition at the trial, and the quantum of damages awarded; while the plaintiff appeals the denial of its claim for certain costs incurred by its subcontractor. We affirm the rulings on the motion to continue the trial and the objection to the use of the deposition, amend the award of damages, and affirm the denial of the claim for the subcontractor's costs.\\nFACTS AND PROCEDURAL HISTORY\\nAt the conclusion of a public bid process, F.G. Sullivan, Jr., Contractor, and the City of Baton Rouge/Parish of East Baton Rouge (City) entered a contract in March of 2001 for a roadway improvement project on Tiger Bend Road in East Baton Rouge Parish for the sum of $3,997,384.20. The project involved the expansion of approximately one mile of the road from two to four lanes and the installation of an underground storm drainage system, a component of the project that Sullivan subcontracted to RCS Contractors, Inc. Sullivan's construction schedule estimated that the project would require a total of 260 work days to complete. The project would begin with the installation of the drainage system by RCS, followed by Sullivan's construction of the two new lanes (Phase 1) and the removal and replacement of the two previously existing lanes (Phase 2).\\nPrior to advertising the project for bids, the City had the right of way cleared and began the process of securing the removal or relocation of utility lines that might interfere with the project, particularly with the installation of the drainage system. It was mutually understood by all parties that the utility lines would be removed or relocated prior to the commencement of work by Sullivan and RCS, and the City's construction plans and specifications indicated no utilities in the construction area. The City advised Sullivan and RCS that the removal and | ^relocation of all utilities would be completed by April 1, 2001, and the City thereafter confirmed that construction on the project could commence on April 2, 2001.\\nRCS began work on the drainage system but soon encountered utility lines that were still located in the right of way. While both parties agree that the removal or relocation of the utilities caused delays in the construction, the date and duration of those delays are the primary points of contention in this litigation. The project was ultimately completed in August of 2003.\\nThe City paid Sullivan the principal contract price, but it refused Sullivan's request for reimbursement of equipment \\\"idle time\\\" for the days when equipment dedicated to the project could not be used because of the delays resulting from the utilities conflicts. For purposes of this appeal, the parties do not dispute that the contract documents provide for reimbursement to Sullivan of a sum, determined by a formula, for such \\\"standby equipment.\\\" After the City refused Sullivan's request for idle-time reimbursement, Sullivan filed this suit seeking recovery of those sums along with additional overhead expense resulting from the utilities delays. Sullivan also sought to recover a \\\"claim\\\" by RCS for the subcontractor's \\\"increased costs and damages\\\" associated with the delays. The City denied any liability and asserted a third-party demand against the State of Louisiana, through the Department of Transportation and Development (DOTD), which was later dismissed on an exception of no cause of action.\\nSullivan's claims against the City proceeded to a three-day bench trial. After taking the matter under advisement, the trial court awarded Sullivan $957,736.37 in damages, which was itemized as $889,045.97 in idle equipment costs and $62,690.40 in overhead, and denied Sullivan's claim for RCS's additional costs. A judgment setting forth the trial court's rulings was signed on November 27, 2013. A subsequent motion for new trial was granted only to make |4a minor change of two cents in the judgment amount, amending the award to $957,736.39, as reflected in an amended judgment signed on March 5,-2014. The City appealed the judgment and asserts that the trial court erred (1) in denying its motion to continue the trial, (2) by sustaining Sullivan's objection to the use of a deposition at trial, (3) by finding a construction delay of 303 days due to utilities conflicts, and (4) in computing damages using the calculation prepared by Sullivan's expert. Sullivan also appealed and asserts that the trial court erred in failing to award, as an item of damages to Sullivan, the additional costs incurred by RCS as a result of alleged errors in the City's contract documents.\\nDISCUSSION\\nDenial of Motion to Continue\\nIn its first assignment of error, the City contends that the trial court erred in denying its motion to continue the trial. After two prior continuances at the joint request of the parties and a third continuance at the request of Sullivan, the claims were scheduled for trial beginning on September 3, 2013. On August 27, 2013, about one week prior to trial, the City filed a motion to continue asserting that its expert on the calculation of damages, Michael Daigle, was unavailable due to health reasons and that the City needed additional time to hire another expert. The City did not request the issuance of a witness subpoena for Daigle and offered no docu mentation in support of its motion to continue. The trial court denied the motion.\\nAt the beginning of trial, the City renewed its motion to continue, stating on the record that Daigle informed the City's counsel about three weeks prior to trial that he was no longer testifying or handling any litigation on the advice of his | gcardiologist. The City had no documentation from the physician confirming this information. The trial court again denied the motion, explaining:\\nSo the court has nothing in writing from a cardiologist or any medical records of Mr. Daigle. The court does not know who the cardiologist is, and for what purpose the cardiologist has told Mr. Daigle he cannot testify. And Mr. Daigle was able to communicate that to defense counsel effectively. As I stated, there is no\\u2014I find no reason for this court to grant a continuance based off Mr. Daigle's word that his cardiologist, has suggested that he should not do this line of work.\\nThe City argues that the trial court, was obligated to grant a continuance under Louisiana Code of Civil Procedure article 1602, which provides:\\nA continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.\\nIn order to be entitled to a continuance, the moving party has the burden of showing that he met the requirements set forth in Article 1602. Polkey v. Landworks, Inc., 10-0718 (La.App. 1 Cir. 10/29/10), 68 So.3d 540, 551. To meet his burden, the party must establish either (1) that he exercised due diligence, yet was unsuccessful in obtaining material evidence; or (2) that a material witness absented himself contrary to the arrangement made by the party for the witness to appear. McGregor v. Hospice Care of Louisiana in Baton Rouge, Inc., 08-2029 (La.App. 1 Cir. 8/27/09), 2009 WL 838621, p. 3, writ denied, 09-1232 (La.9/18/09), 17 So.3d 980. A party applying for a continuance, although entitled to a reasonable delay and opportunity to procure his witnesses, must show due diligence. La. Code Civ. Pro. art. 1602, 1960 Official Revision Comment (b); Spencer v. Benny's Car Wash, LLC, 11-1708 (La.App. 1 Cir. 5/4/12), 2012 WL 1580601, p. 6, writ not considered, 12-1279 (La.9/28/12), 98 So.3d 824, reconsideration denied, 12-1279 (La. 11/9/12), 100 So.3d 826.\\n| (\\u00beWhen the conditions of Article 1602 are met, the granting of a continuance is mandatory. Carbo v. City of Slidell, 01-0170 (La.App. 1 Cir. 1/8/03), 844 So.2d 1, 9, writ denied, 03-0392 (La.4/25/03), 842 So.2d 400. The policy behind the mandatory continuance is to insure that a party is not deprived of his day in court or his right to properly present his defense when not due to his own fault or delinquency. See American Motorists Insurance Company v. State, Worker's Compensation Second Injury Board, 544 So.2d 595, 598 (La.App. 1 Cir. 1989).\\nThe record reflects that Daigle told the City's counsel three weeks before trial that he would not appear as a witness on advice of his physician. The City did not request a trial subpoena for Daigle before or after that notification, and it presented no medical documentation or other evidence substantiating Daigle's claim that he was physically Unable to attend trial. Upon the showing made, the City's failure to take reasonable measures to compel, or at least attempt to compel, the witness's appearance at the trial, combined with its failure to present any proof that the witness's health rendered any such measures futile or unnecessary, does not demonstrate sufficient due diligence to invoke the provisions of Article 1602. See Broussard v. Coleman, 479 So.2d 1016, 1018-1019 (La.App. 3 Cir.1985), writ denied, 481 So.2d 1354 (La.1986) (trial court did- not err in refusing to continue the trial or hold the record open based on a witness's illness where the plaintiffs offered no evidence of the illness.and did not subpoena the witness). This assignment of error has no merit.\\nUse of Daigle's Deposition at Trial\\nThe City next asserts that the trial court erred in refusing to permit the introduction of Daigle's discovery deposition, which the City offered during its case-in-chief, on the grounds that Daigle was unavailable for trial because of his health. In support of that tender, the City proffered an exchange of emails dated August 29, 2013, reflecting an attempt by the City's counsel to get an affidavit |7from Daigle confirming his condition. Daigle advised that he was out of state and would not be back in Louisiana until after the trial. When questioned by the trial court, counsel did not know why Daigle, a resident of the Mandeville/Covington area, was out of state and \\\"didn't ask.\\\" Sullivan's counsel objected to the introduction of the deposition, citing a lack of proof of Daigle's unavailability, the City's failure to subpoena Daigle, and the fact that the deposition was taken for discovery purposes. The trial court sustained the objection, finding that the City offered no proof of Daigle's unavailability.\\nOn appeal the City argues that Daigle's health condition rendered him unavailable for the trial or, in the alternative, that exceptional circumstances warranted the admission of the deposition. Louisiana Code of Civil Procedure article 1450 provides, in pertinent part, that the deposition of a witness may be used by any party for any purpose if the court finds that \\\"the witness is unavailable . or [ujpon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.\\\" La.Code Civ. Pro. art. 1450A(3)(a) and (c). The trial court has much discretion under Article 1450 in determining whether to allow the use of deposition testimony at trial, and its decision will not be disturbed on review in the absence of an abuse, of that discretion. Dunning v. Dapco Ventures, L.L.C., 01-2366 (La.App. 1 Cir. 11/8/02), 834 So.2d.448, 455, writ denied, 03-0215 (La.3/28/03), 840 So.2d 576.\\nAlthough Article 1450 does not specify when a witness is \\\"unavailable,\\\" Louisiana Code of Evidence article 804 provides, in pertinent part, that a declar-ant is \\\"unavailable as a witness\\\" when he \\\"cannot or will not appear in court and testify,\\\" including when he is \\\"unable to be present or to testify at the hearing because of death or then existing physical or mental illness, infirmity, or other Insufficient cause.\\\" La.Code Evid. art. 804 A(4). The party asserting the admissibility of a deposition under Article 1450 A(3)(a) must show that the witness is unavailable for trial. See Montgomery v. Breaux, 297 So.2d 185, 189 (La.1974).\\nThe determination of whether a witness is unavailable is a preliminary question for the trial court. See La. Code Evid. art. 104 A; State v. Ball, 00-2277 (La.1/25/02), 824 So.2d 1089, 1112, cert. denied, 587 U.S. 864, 123 S.Ct. 260, 154 L.Ed.2d 107; Folse v. Folse, 98-1976 (La.6/29/99), 738 So.2d 1040, 1048-49. The trial court may consider otherwise inadmissible evidence in determining this preliminary factual question. See La.Code Evid. arts. 104 A and 1101 C(l); Folse, 738 So.2d at 1048-49. Such determinations are reviewed for manifest error and will not be overturned, absent an abuse of the trial court's discretion. Ball, 824 So.2d at 1112; see also Martin v. Francis, 600 So.2d 1382, 1386 (La.App. 1 Cir.), writ denied, 606 So.2d 541 (La.1992) (recognizing that the trial court is vested with broad discretion in determining whether a witness is unavailable within the meaning of Article 1450).\\nThe City's assertion that Daigle was unavailable for trial rests entirely on Daigle's statement, reflected in an email proffered by the City, that he was no longer \\\"available for trial testimony on the advice of [his] cardiologist.\\\" The City presented no documentation substantiating Daigle's claim, nor did the City's counsel express any personal knowledge of the physician-imposed restrictions based upon communications with Daigle's physician. While an attorney's representations of his efforts to locate a witness have been held sufficient to ^establish a witness's unavailability, see Ball v. Capital City Cornichon Corp., 11-1862 (La.App. 1 Cir. 5/2/12), 2012 WL 1550545, pp. 3-4, writ denied, 12-1448 (La.1/18/13), 107 So.3d 623, counsel's representations in the present case merely conveyed the witness's claim that his physician advised him not to attend the trial.\\nIn reviewing the trial court's determination, this court must be cautious not to re-weigh the evidence or substitute its own factual finding just because it may have decided the matter differently. See Cooper v. Barr 13-1857 (La.App. 1 Cir. 5/2/14), 2014 WL 1778281, p. 2, writ denied, 14-1169 (La.9/19/14), 149 So.3d 245. While the City made some showing of Daigle's unavailability, great weight is attached to the exercise of a trial court's discretion, which will not be disturbed on review if reasonable people could differ as to the propriety of the trial court's action. See J. Caldarera and Company, Inc. v. City of Baton Rouge, 03-0759 (La.App. 1 Cir. 2/23/04), 873 So.2d 728, 730. Based upon the showing made, the trial court was not sufficiently persuaded that Daigle was unavailable for trial. Under these circumstances, we find no manifest error or abuse of discretion in that determination.\\nOn appeal, the City also argues that exceptional circumstances justified the admission of Daigle's deposition under Article 1450 A(3)(e), because it \\\"was informed only weeks from trial that its damages expert could not attend court on advice from his cardiologist.\\\" The trial court made no determination of whether exceptional circumstances existed in this case because the City did not present this argument when it offered the deposition at the trial. Rule 1-3 of the Uniform Rules of Louisiana Courts of Appeal provides, and our jurisprudence generally establishes, that the courts of appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise. See McLane Southern, Inc. v. Bridges, 13-1819 (La.App. 1 Cir. 11/3/14), 2014 WL 5588893, p. 4. Preter-mitting whether the City properly preserved this issue for appeal, we find no exceptional circumstances that warranted the admission of Daigle's discovery deposition. For the reasons already provided, the record supports a finding that the City did not exercise due diligence to secure Daigle's appearance at trial or to substantiate the circumstances preventing his appearance. The \\\"exceptional circumstances\\\" basis for admitting a deposition cannot serve as a substitute for the due diligence required to secure a witness's attendance at trial or the necessity of establishing his unavailability. The City's reliance on Article 1450 A(3)(c) in support of the admissibility of Daigle's deposition is without merit.\\nThe City also argues that Daigle's deposition was admissible at trial because the parties stipulated that the deposition was \\\"taken for all purposes allowed under Article 1421 et seq. of the Louisiana Code of Civil Procedure in accordance with law.\\\" (Emphasis added.) As indicated, the stipulation that the deposition was taken \\\"for all purposes\\\" is expressly limited to those purposes \\\"allowed under\\\" and \\\"in accordance with\\\" the discovery provisions of the Code of Civil Procedure. Those provisions include Article 1450, which sets forth the limitations and conditions for using a deposition at trial. The stipulation does not purport to waive Article 1450's requirements and does not reflect an unqualified agreement that the deposition would be admissible at trial.\\nThe two cases cited by the City in support of its argument, Town of Church Point v. Carriere, 463 So.2d 986 (La.App. 3 Cir.1985), and Joseph v. Gibliant, 590 So.2d 841 (La.App. 4 Cir.1991), are distinguishable from the present case. In Town of Church Point, the court found a stipulation ambiguous but upheld the trial court's admission of an expert's deposition into evidence because counsel for |nthe objecting party \\\"surely must have understood\\\" that the deposition was for probable use at trial since it was taken by counsel for the party who hired the expert. Town of Church Point, 463 So.2d at 989. The court reasoned that a deposition of one's own expert \\\"would hardly have been taken for discovery purposes.\\\" Town of Church Point, 463 So.2d at 989. In contrast, Dai-gle's deposition was taken by Sullivan's counsel and the City's attorney did not ask any questions during the deposition. There is no indication that .the parties intended that this discovery deposition would be used by the City at the trial in lieu of Daigle's live testimony.\\nIn Joseph, a physician indicated to both counsel before and during a three-day trial that he would be available to testify at any time. Joseph, 590 So.2d at 843. When defense counsel called him to come to court on the last day of trial, the physician's office indicated that he was not available and would not be for the rest of the day. The trial court then called the physician's office in an unsuccessful effort to secure his attendance. A witness subpoena apparently had been requested but was not personally served. The trial court allowed the introduction of the physician's deposition, and the court of appeal found no abuse of discretion. Joseph, 590 So.2d at 843. Although the court of appeal quoted a stipulation concerning the use of the deposition, the court primarily based its decision on a finding that the witness \\\"chose to make himself unavailable after assuring counsel of his availability.\\\" Joseph, 590 So.2d at 843. The court further found that opposing counsel \\\"knew the deposition was being taken for perpetuation, he was present, and he participated fully.\\\" Joseph, 590 So.2d at 843. Notably, a subpoena for the witness had apparently been requested. See Joseph, 590 So.2d at 843.\\nIn the present case, Daigle did not assure either party at the outset of trial that he would appear when requested, and he was not subpoenaed. Rather, he |12informed the City three weeks earlier that he would not appear at the trial. Further, there is no suggestion that Sullivan's counsel thought the discovery deposition of the witness was a perpetuation deposition for use at trial. Neither Town of Church Point nor Joseph support the City's contention that the parties stipulated to the use of Daigle's deposition at trial in lieu of his live testimony, and the trial court did not abuse its discretion in refusing to allow Daigle's deposition into evidence. This assignment of error has no merit.\\nCalculation of Damages for Idle Equipment and Additional Overhead\\nThe City's next two assignments of error concern the trial court's reliance on the opinions of Sullivan's expert, Michael Myers, in determining the amount of damages awarded to Sullivan. In rendering its ruling, the trial court stated that Myers, who was accepted by the court as an expert in cost consulting and critical path method scheduling, \\\"gave the court some direction or guidance\\\" as to the length of the delay resulting from the utilities conflicts, but the court agreed with the City that some of the days included in the 303-day delay calculated by Myers \\\"should not be counted.\\\" The court expressed difficulty in determining an exact number of days to \\\"pull out . due to rain, holidays and all of that,\\\" so it used Myers's calculation of 303 days but discounted Myers's net damage figures by 11S15%, resulting in an award for idle equipment costs of $889,045.97. The court also awarded $62,690.40 for Sullivan's separate claim for lost overhead.\\nIn reviewing these assignments of error, we are mindful that when findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Lirette v. State Farm Ins. Co., 563 So.2d 850, 853 (La.1990); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. Hanks v. Entergy Corporation, 06-477 (La.12/18/06), 944 So.2d 564, 580-81; Lirette, 563 So.2d at 852-53; Hartec Corporation v. GSE Associates, Inc., 10-1332 (La.App. 1 Cir. 2/24/12), 91 So.3d 375, 390, writ denied, 12-0972 (La.6/22/12), 91 So.3d 972. The factual basis for an expert opinion determines the credibility of the testimony. Hudspeth v. Allstate Insurance Company, 13-1288 (La.App. 1 Cir. 7/3/14), 2014 WL 3559373, writ denied, 14-1651 (La.10/31/14), 152 So.3d 157. Where documents or objective evidence so contradict the witness's testimony, or the testimony is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the testimony, the court of appeal may find manifest error or clear wrongness even where the finding is purportedly based on a credibility determination. Jackson v. Tulane Medical Center Hospital & Clinic, 05-1594 (La.10/17/06), 942 So.2d 509, 513.\\nWe first address the trial court's award for idle equipment charges. While the City concedes that Sullivan introduced evidence that indicates a delay due to 1 ^utilities conflicts, the City contends that the evidence does not show when the delays occurred. As a consequence, according to the City, Sullivan did not prove what equipment, was at the job site when the actual delays occurred. Having exhaustively reviewed Myers's opinion., and the basis therefore, we find the City's position to be correct.\\nThe parties do not dispute that equipment \\\"standby\\\" or \\\"idle\\\" charges are determined pursuant to a directive in the Engineering Directives and Standards Manual issued by DOTD (DOTD directive), which is part of the contract documents and provides in pertinent part:\\nFor standby equipment, the allowed hourly reimbursement rate shall not exceed one-half of the Blue Book monthly rate, divided by 176, and adjusted for region and age. Standby will not be allowed during periods when the equipment would ordinarily be idle, such as on Saturdays, Sundays, holidays, and days when weather conditions prevent the contractor from working, or when breakdowns prevent working, or while being serviced. Standby hours -will not be allowed if the equipment actually worked eight or more hours in the day or forty or more hours for the week.\\nAs indicated, the DOTD directive provides for an hourly reimbursement rate for \\\"standby equipment . [that] shall not exceed one-half of the Blue Book monthly rate, divided by 176, and adjusted for region and age.\\\" This rate is then multiplied by the number of hours the equipment is idle, which in the present case means the amount of time the equipment sat idle on the site because of utilities conflicts.\\nBecause the reimbursement is available only for equipment rendered idle by a delay, and in this ease a delay specifically resulting from utilities conflicts, the specific date of any such delay is necessary to determine what equipment was on the project at the time of the delay. As expressed by Myers, \\\"If a piece of equipment wasn't there during that time period, then it wasn't going to get into any claim.\\\" To establish the dates of the delays, Sullivan did not rely on project documentation identifying when the project was halted because of utilities conflicts. Instead, Sullivan relied on Myers's opinions to show not only the length | l5of the delays, but, more importantly for the idle equipment claim, when those delays occurred. By comparing Sullivan's projected construction schedule with the actual construction schedule, Myers surmised that the delays totaled 303 days, which occurred during two consecutive periods, the first consisting of 122 days from March 25, 2002, through July 25, 2002, and the second consisting of 181 days from July 25, 2002, through May 30, 2003.\\nMyers then used Sullivan's billing record to identify 105 pieces of equipment, ranging from bulldozers to tracks that were on the job site during those delay periods. He calculated the recoverable equipment costs for each piece of equipment by multiplying its idle days by a daily reimbursement rate, which he derived from a monthly rate in the \\\"Blue Book,\\\" a reference book that is mentioned in the applicable DOTD directive. Cumulatively, Myers calculated gross idle equipment costs of $2,557,274.26, which he then reduced by 50% to arrive at net recoverable idle equipment costs of $1,278,637.13.\\nAfter a thorough review of the record and Myers's testimony, we find no reasonable basis supporting his opinion concerning the critical issue of when the delays occurred. Myers opined that the first delay of 122 days occurred from March 25, 2002, through July 25, 2002, whicli correlated with Sullivan's completion of the Phase 1 paving work and the start of the base work for the new road in Phase 2. Because Sullivan originally had not projected any delay between those two phases of the project, Myers attributed the 122 day delay to the utilities conflicts. However, there is no evidence in the record, nor did Myers cite any |,(\\u00a1information upon which he relied, indicating that the project was actually suspended during that period of time.\\nMyers acknowledged that the 122 days of delay \\\"didn't just occur in that period,\\\" meaning March 25, 2002, through July 25, 2002. Rather, the delays \\\"accumulated sporadically over the course of the whole preceding part of the job . incrementally from the beginning of the job through this July 25th point in time,\\\" but the sum result \\\"was realized as March through July of '02.\\\" A summary of the project work prepared by Myers indicates that during that period of time, Sullivan was working on driveways and sidewalks for Phase 1 and excavation and embankment work for Phase 2. That information is supported by the project work diaries which likewise documented Sullivan's work on those parts of the job during that time period.\\nThere was also ample evidence of days when construction was suspended by utilities conflicts before March 25, 2002. Reports generated by the City that documented \\\"work days\\\" were offered into evidence and identified 49 such days lost to utilities conflicts on dates occurring well before the commencement of Myers's first delay period beginning on March 25, 2002. While Sullivan disputes the accuracy of later reports prepared by the City, Sullivan did not dispute that the 49 days identified in the reports were, in fact, lost due to utilities conflicts; however, Myers apparently merged those days into the delay period he identified beginning on March 25, 2002. Similarly, Steve Strickland, Sullivan's project estimator and construction manager, testified that utilities conflicts began within two weeks of commencement of the drainage work in April of 2001 and persisted thereafter. This testimony was corroborated by testimony from Roland Alonso, president and sole owner of RCS, and letters from Alonso and Sullivan to the City advising of repeated conflicts with utilities on numerous occasions before March 25,2002.\\n117Pespite this evidence, Myers utilized a delay period that commenced on March 25, 2002, and ran continuously through My 25, 2002, to identify which equipment was idle and for how long as a result of the utilities conflicts. Myers's calculation, therefore, includes idle equipment charges for any and all equipment that was on the site at any time between March 25, 2002, and July 25, 2002, even though it is undisputed that work was ongoing during that period of time. On the other hand, Myers's calculation does not. include idle equipment charges for equipment that was on the site during any of the uncontested 49 utilities conflict days, all of which occurred before March 25, 2002.\\nAs to the second delay, Myers began with the actual duration of Phase 2 (309 days) and subtracted its duration as projected by Sullivan (128 days) to arrive at a figure of 181 days. He considered these additional 181 days as days when construction on the project was not possible because of utilities conflicts. Without explanation, Myers concluded that the start date and end date of the second delay coincided with the start date and end date for the entire Phase 2 construction: July 25, 2002, through May 30, 2003. Myers made no effort to identify exactly when the 181 delay days occurred during Phase 2. Instead, he generally attributed the 181 days throughout the entire period and utilized a \\\"factor\\\" of .5858 to determine the length of the idle time for each piece of equipment used on the job during Phase 2. That factor appears to be the proportion of delay days, as determined by Myers, compared to the total number of days actually required to complete Phase 2.\\nMyers thus assumed that every piece of equipment used in Phase 2 was idle at some point during that phase, and, moreover, that each such item of equipment was idle for the same percentage of time it was on site: 58.58%. That assumption has no factual basis in the record, and Myers did not identify any information that | ishe relied upon to support the application of such a global assumption to each and every piece of equipment used in Phase 2 of the project.\\nCombining both of his delay periods, Myers assumed that all of the days when construction was suspended due to utilities conflicts occurred during a continuous period of time beginning on March 25, 2002, and ending on May 30, 2003. The record contains no evidence suggesting that construction on the project completely ceased for that period of time due to utilities conflicts or for any other any reason. Myers's opinion concerning when the construction delays occurred is not based in fact, is internally inconsistent, and is contradicted by documents and objective evidence. Therefore, because Myers's reasons are patently unsound, the trial court's reliance on his opinion to determine the amount of the idle equipment charges is owed no deference and was manifestly erroneous. See Hanks, 944 So.2d at 580-81. This warrants a de novo review of the evidence by this court to determine an appropriate amount of damages for the idle equipment charges. See Wooley v. Lucksinger, 09-0571 (La.4/1/11), 61 So.3d 507, 555; Ferrell v. Fireman's Fund Insurance Co., 94-1252 (La.2/20/95), 650 So.2d 742, 745.\\nThe delays resulting from the utilities conflicts were addressed by several witnesses at trial. Steve Strickland, Sullivan's project estimator and construction manager, testified about his preparation of a construction schedule for the project in connection with the preparation of Sullivan's bid. He testified that RCS began the drainage work, but the planned construction sequence was soon disrupted due to conflicts with utility lines located in the construction area and not shown on the City's construction plans. Strickland also reviewed the City's work day reports that identified working days and nonworking-days. He confirmed that those records identified 49 dates during the first seven months of the construction when work on the project was suspended due to utilities conflicts. The subsequent' work day reports did not identify any more lost days due to utilities conflicts; however, | inStrickland testified that he was familiar with additional'utilities delays, although he did not specify when those delays occurred or their duration. He thought the subsequent work day reports by the City were inaccurate and did not sign them.\\nJesse Spence, Sullivan's junior project manager at the time of the project, confirmed that undisclosed utility lines delayed the construction project. He noted utilities conflicts and delays still occurring as late as 2003; however, like Strickland, Spence did not testify as to any specific dates when construction was suspended or the duration of any such suspension. Spence disagreed with the City's documentation in the work day reports and diaries and believed that Sullivan was charged for work days when utilities conflicts prevented them from working, while on other days the City noted that weather prevented work when, in fact, utilities prevented work. However, Sullivan submitted no documentation of its own to reflect a more accurate number of work days lost due to utilities conflicts.\\nRoland Alonso, president and sole owner of RCS, described problematic delays in completing the installation of the drainage system due to utility lines that had not been removed and were not shown on the plans. As late as February of 2003, almost two years after the commencement of construction, RCS was still hitting utility lines that were not disclosed on the plans. Sullivan offered into evidence numerous letters written by Alonso or Strickland to the City's project engineer regarding the utilities conflicts; however, Alonso also failed to identify any specific dates when his company's work had to stop due to the conflicts and the duration of the delays.\\nThe City offered a discovery deposition of the City, taken pursuant to Louisiana Code of Civil Procedure article 1442, that consisted of testimony from several City employees involved in the project. The City employees conceded that hnconflicts with unidentified utilities caused delays in the project, but they contended that most of the project delays were due to a lack of cooperation from RCS.\\nThe City also offered excerpts from the discovery deposition of Stephen Spohrer, an engineer retained by the City with experience in construction management and cost scheduling. Spohrer believed that Sullivan's original estimate of the project duration was unrealistic based upon Sullivan's history with similar jobs. According to Spohrer, a job of this nature would normally take Sullivan 22 to 28 months to complete, and the total duration of this project fell within that range. He believed that this project was a normal, typical job for Sullivan and that the surprises they encountered were not unusual for a job of this character in an urban environment.\\nSullivan, as the party seeking to recover damages under the contract, bore the burden of proving its entitlement to idle equipment charges.in accordance with the terms and conditions of the DOTD directive in the contract documents. See La.Civ.Code arts. 1995, 2005; L & A Contracting Company, Inc. v. Ram Industrial Coatings, Inc., 99-0854 (La.App. 1 Cir. 6/23/00), 762 So.2d 1223, 1235, writ denied, 00-2232 (La.11/13/00), 775 So.2d 438. The DOTD directive sets forth a precise formula for determining the idle equipment expenses that requires proof of what equipment was rendered idle by utilities conflicts and the duration of the idle period. Because equipment is periodically delivered to and removed from the project site, the identification of equipment rendered idle by a compensable delay requires proof of the actual dates the project was suspended due to utilities conflicts. Otherwise, it is impossible to determine what equipment was rendered idle by a compensable delay.\\nWhile Sullivan criticizes the City for failing to document the specific days delayed due to utilities conflicts, noting that the City's documentation of the utilities conflicts delays stopped after 49 such days were documented, it is Sullivan l2iwho is claiming damages in this case. Those damages are based upon a specific damage provision of Sullivan's contract with the City. Consequently, it is Sullivan's burden of proof, not the City's, to establish the delays which caused its damage. While claiming about a year of such delays, Sullivan apparently maintained no documentation for the purpose of establishing its claim; thus, the necessity for its expert to construct a formula to reconstruct the delays.\\nAlthough the testimony of the witnesses generally indicates periodic conflicts with utilities throughout the project, the only evidence of actual dates when utilities conflicts suspended the construction is contained in the City's work day reports, which identify 49 such dates from April 16, 2001 through October 26, 2001. No other competent evidence identifies specific dates when work on the projected stopped and equipment was idle due to utilities conflicts. Accordingly, from the evidence presented, we are able to ascertain 49 specific days when the construction was suspended due to utilities conflicts.\\nWe next determine what equipment was on the project site during one or more of these 49 days. The City argues that Sullivan failed to prove when any equipment was on the construction site, because Sullivan did not maintain records confirming the first and last date that each item of equipment was on the site. Sullivan did document when it \\\"charged\\\" each piece of equipment to the project, meaning the days when a piece of equipment was used on the project. Spence reviewed Sullivan's records and determined the first and last day each piece of equipment was charged on the project, and Myers used that information to define the period of time each piece of equipment was on the project site for purposes of his calculations. Although Spence conceded that \\\"theoretically\\\" some of the equipment could have been moved off the job between charge dates, he stated that | a2it would be very uneconomical to do so. At Myers's request, Sullivan personnel also reviewed records for some of the equipment to determine whether it was charged to any other projects during the delay period, and no billings for the equipment were found for other projects.\\nIn an action to recover damages for breach of contract, a plaintiff must prove his case by a preponderance of the evidence, either direct or circumstantial. See Guidry v. Statewide Trailer Sales & Lafourche Concrete, Inc., 393 So.2d 144, 145 (La.App. 1 Cir.1980). Proof is sufficient to constitute a preponderance when the entirety of the evidence, both direct and circumstantial, shows the fact sought to be proved is more probable than not. Hanks, 944 So.2d at 578; Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654, 664 (La.1989). A fact established by direct evidence is one which has been testified to by witnesses as having come under the cognizance of their senses. Hanks, 944 So.2d at 578; Cangelosi, 564 So.2d at 664. Circumstantial evidence, on the other hand, is evidence of one fact, or of a set of facts, from which the existence of the fact to be determined may reasonably be inferred. Hanks, 944 So.2d at 578-579; Cangelosi, 564 So.2d at 664-665.\\nConsidering the entirety of the evidence, both direct and circumstantial, we find that Sullivan sufficiently proved the dates that each item of equipment was on the project site. Based upon our de novo review of the evidence, 54 items of equipment were on the project site during one or more of the 49 utilities-conflict days and are eligible for idle time reimbursement, all as more specifically set forth on the Addendum attached hereto.\\nThe remaining information necessary to calculate the idle equipment expense for each of the 54 items of equipment is a reimbursement rate. .We are |^persuaded that Myers determined appropriate monthly reimbursement rates for the equipment by using the Blue Book monthly rate. His testimony and supporting exhibits confirm that for each piece of equipment, he utilized the applicable Blue Book rate, made adjustments for the equipment age and project region, and arrived at a monthly rate. In accordance with the formula set form in the DOTD directive, we reduce that monthly rate by half and divide the figure by 176 hours to arrive at an hourly reimbursement rate, which we then convert to a daily rate based on an 8-hour work-day. For each of 54 items of equipment identified on the Addendum, we have multiplied its daily reimbursement rate by the number of days it was on the site when the construction was suspended. As itemized in the Addendum and in accordance with the formula agreed upon by the parties, we award total idle equipment reimbursement expense in favor of Sullivan and against the City in the amount of $124,741.64.\\nWe next consider Sullivan's claim for additional overhead expenses attributable to delays from utilities conflicts. Overhead or indirect expenses consists generally of the expenses of a business enterprise for salaries of executives, central office staff personnel, rent, communications, vehicles, utilities, interest on borrowed capital and numerous other expenses which are necessary for the operation of the business, but which are not directly attributable to a particular construction job or project. See McCarty Corporation v. Industrial Scaffolding, Inc., 413 So.2d 1322, 1324 (La.App. 1 Cir. 1981). Since it is practically impossible to accurately allocate the exact amount of indirect expense actually incurred on each job or project, the generally accepted practice is to determine what the proportionate amount of all indirect expenses is to the dollar volume of work performed or business done by the company, and then allocate these overhead or indirect expenses to each job or project. McCarty, 413 So.2d at 1324. Overhead or indirect expenses are a true cost of doing business; therefore, it is ^customary to award overhead expenses in both actions of breach of contract and tort actions to cover indirect expenses that are not reflected in a direct expense incurred in remedying the damage sustained, and such expenses need not be proved item by item. See McCarty, 413 So.2d at 1324.\\nMyers calculated a daily amount of overhead expense attributable to the Tiger Bend project based upon the length of the project and the percentage of Sullivan's total revenue derived from the project. That daily amount, according to Myers, was $591.14, which he then multiplied by 303 days to arrive at the sum of $179,115.42. The trial court awarded $62,690.40 for this claim.\\nThe City does not contest Sullivan's right to recover additional overhead expenses caused by any delays from utilities conflicts, but the City does contend that the 303-day figure utilized by Myers to calculate the award was improper because that figure includes weekends, holidays and weather, days. The City essentially argues that the compensable delay for additional overhead expense should be limited to actual work days only.\\nInitially, we note that while the calculation of idle equipment charges requires specific proof of when the delays occurred in order to identify what equipment was on site during the delay, the determination of the additional overhead expenses, as calculated by Myers, does not require such specificity because the overhead expense is distributed pro rata over the entire duration of the project. Myers only needed to determine the total duration of the utilities- conflict delays, which he then multiplied by his daily overhead rate to arrive at the additional overhead expense. As to the duration of the delay, Myers acknowledged that his 303-day figure consisted of calendar days, as opposed to work days, and included weekends, weather days, and holidays. However, his calculation of the additional overhead amount used a daily rate derived from the total overhead expense allocated to the project divided by the total number of calendar days (822) | gfjin the project. Thus in determining the daily rate, Myers spread the overhead expense over calendar days, not just work days, which yielded a lower daily rate than if the overhead had been divided only by work days. His use of calendar days to determine a reduced daily rate appears to warrant the use of calendar days to determine the second factor in the calculation, the duration of the delay.\\nHowever, more importantly, the trial court did not accept Myers's proposed figure of $179,115.42 for the additional overhead expenses. Instead, the court awarded only $62,690.40. Based upon the entirety of the evidence, we cannot say that award is an abuse of discretion. The evidence indicates that the delays from utilities conflicts may have been as long as 303 days (Myers's opinion), as short as 49 days (the City's work day reports), or somewhere in between those two extremes. Myers's opinion was not only contradicted by the City's documentation but was also contradicted by his own construction summary that indicated ongoing work during the period of his delay. On the other hand, the City's documentation of only 49 days of delay caused by utilities conflicts, with the final day occurring in October of 2001, is contradicted by the testimony of multiple witnesses who confirmed continued problems with the conflicts as late as 2003.\\nIn reviewing an award of additional overhead expenses, this court has recognized that \\\"it is practically impossible to accurately allocate the exact amount of' indirect expense or overhead actually incurred on a job and that \\\"such expenses need not be proved item by item.\\\" See McCarty, 413 So.2d at 1324. Likewise, when damages are insusceptible of precise measurement, much discretion shall be left to the court for the reasonable assessment of these damages. La. Civ. Code art. 1999; L & A Contracting Company, Inc. v. Ram Industrial Coatings, Inc., 99-0354 (La.App. 1 Cir. 6/23/00), 762 So.2d 1223, 1235, writ denied, 00-2232 (La.11/13/00), 775 So.2d 438. Absent an abuse of discretion, an appellate court will not disturb a trial court's assessment of damages. L & A Contracting Company, Inc., 762 So.2d at 1235. Considering all of the evidence in the present case, the trial court reasonably could have determined that the recoverable delay was more than 49 days but less than 303 days, and the trial court's award is consistent with a recoverable delay that falls within the range of those two extremes. Accordingly, we find no abuse of discretion or manifest error in the award of $62,690.40 for Sullivan's additional overhead expenses.\\nSullivan's Appeal: Recovery of RCS's Alleged Damages\\nSullivan also appealed the judgment and contends that the trial court erred in failing to award the alleged additional expenses and damages that its subcontractor, RCS, incurred as a result of the errors in the City's contract documents. RCS's owner, Alonso, testified that the company was owed $209,238.00 for additional work, idle equipment costs, and overhead expenses resulting from the utilities conflicts. Citing Keller Construction Corporation v. George W. McCoy & Co., Inc., 239 La. 522, 557-58, 119 So.2d 450, 463 (1960), Sullivan argues that as the general contractor, it has the right to recover these damages claimed by its subcontractor.\\nIn Keller, a developer contracted with a general contractor (Keller) to complete a project that involved the construction of a sewer system. Keller then entered an agreement with a subcontractor (McCoy) for that work. When the 127system developed leaks, McCoy made several repairs; however, the system continued to develop leaks. The matter proceeded to litigation involving all three parties, with Keller suing McCoy based on allegations of faulty work by the subcontractor, McCoy reconvening against Keller for the costs of McCoy's repair work based on allegations that the leaks were not due to any fault of McCoy, and Keller filing a third-party demand against the developer seeking reimbursement for any liability Keller may have to McCoy if the developer's plans were defective. Keller, 239 La. at 534-535, 119 So.2d at 454-455. The trial court rendered a judgment in favor of Keller against McCoy; however, on appeal, the supreme court found that the leaks were due to deficiencies in the developer's plans and specifications. Keller, 239 La. at 536, 556, 119 So.2d at 456, 463. Because the leaks were not due to any fault of McCoy, the supreme court held that McCoy was entitled to recover the cost of the repair work from Keller, who, in turn, was entitled to recover that amount from the developer, the.party ultimately responsible for the defective plans which caused the leaks. Keller, 239 La. at 556-558, 119 So.2d at 463.\\nThe facts of Keller are distinguishable from the present case because RCS is not a party to this suit and has not filed any claim against Sullivan. In contrast to Keller, Sullivan was not cast in judgment to RCS for any expenses or damages incurred by RCS, and Sullivan is not seeking to be reimbursed any liability judicially imposed upon it.\\nSullivan also cites Farrell Construction Company v. Jefferson Parish, Louisiana, 896 F.2d 136, 141 (5th Cir.1990), which addressed whether a subcontractor was an indispensable party in a suit filed against an owner by a general contractor on its own behalf and \\\"for the account of' a subcontractor. Farrell, 896 F.2d at 138-139. The subcontractor, whose presence in the suit would have defeated diversity jurisdiction, entered a \\\"prelitigation agreement\\\" IgjWith the general contractor whereby the parties agreed that the general contractor would file \\\"one consolidated action\\\" against the owner and that the parties would \\\"fully cooperate with each other in the prosecution of the claims.\\\" Farrell, 896 F.2d at 138. The Fifth Circuit held that the subcontractor was not an indispensable party because it did not have any substantive rights, contractual or otherwise, that were enforceable against the owner. Farrell, 896 F.2d at 140-141. In dicta, the court further stated that the general contractor's claim \\\"on behalf of [the subcontractor] is authorized by the civil law\\\" because \\\"[i]n Louisiana . the prime contractor may assert against the owner as an element of its own damages the damages of the subcontractor attributable to the owner's defective plans and specifications.\\\" Farrell, 896 F.2d at 141. The court cited Keller as authority for that statement.\\nWe do not construe Keller as authorizing a general contractor to file suit \\\"on behalf of a subcontractor to recover the subcontractor's damages caused by the owner's fault.\\\" Keller permitted a general contractor, who was judicially declared liable to the subcontractor for expenses it incurred due to faulty plans, to recover those sums from the owner as part of the general contractor's damages. Under those circumstances, the general contractor sustained damages, in the form of judicially-imposed liability to its subcontractor, caused by the owner's breach of warranty for its plans and specifications. To the extent Fair ell construed Keller otherwise, we disagree.\\n| aflRCS is not a party to this litigation and has no claim pending against Sullivan. Sullivan's liability, if any, to RCS for idle equipment charges, overhead, and additional expenses arising out of the undisclosed utility lines has not been judicially imposed and is not otherwise established by the evidence. Spence, Sullivan's representative, testified that Sullivan was only obligated to pay the claim if and when the City paid the amounts to Sullivan. An incomplete copy of the subcontract was introduced into evidence, and the provisions in evidence do not set forth any obligation by Sullivan to pay RCS's idle equipment charges, nor does the subcontract incorporate the City's contract documents, except to provide that the \\\"Subcontractor shall be bound\\\" by the documents insofar as applicable to RCS's work. The subcontract does not vest RCS with the right to enforce any remedies provided in those documents, such as the idle equipment charges, against Sullivan. The trial court did not err in denying Sullivan's claim seeking to recover damages allegedly sustained by RCS. This assignment of error has no merit.\\nCONCLUSION\\nThe November 27, 2013 judgment, as amended on March 5, 2014, is amended, in part, to set forth a total award in favor of Sullivan of $187,432.04, consisting of $124,741.64 in idle equipment expenses and $62,690.40 in additional overhead expenses. As amended the judgment is affirmed. Costs of this appeal in the amount of $5,252.50 are assessed one-half to F.G. Sullivan, Jr., Contractor, and one-half to the City of Baton Rouge and Parish of East Baton Rouge.\\nAMENDED AND AFFIRMED AS AMENDED.\\nMcDONALD, J., concurs and assigns reasons.\\n. We note that the sum of the trial court's itemized amounts is $951,736.37, which is $6,000.00 less than its original award of $957,736.37. In opposing the City's motion for new trial, Sullivan suggested that the trial court intended to award $895,045.99 for the idle equipment charges 35% of the gross amount calculated by Sullivan's expert witness, which, when added to the overhead award, would result in a total award of $957,736.39 (two cents higher than the original judgment amount). The trial court signed an amended judgment for the revised total.\\n. This court has previously used Louisiana Code of Evidence article 804's definition of \\\"unavailable\\\" to determine whether a deponent was unavailable for purposes of Louisiana Code of Civil Procedure article 1450 A(3)(a). See Walley v. Vargas, 12-0022 (La.App. 1 Cir. 9/21/12), 104 So.3d 93, 99-100.\\n. We recognize that any such communications would require Daigle's authorization pursuant to the Health Insurance Portability and Accountability Act at 42 U.S.C.A. \\u00a7 I320d et seq. See also 45 C.F.R. \\u00a7 164.508.\\n. See also Trascher v. Territo, 11-2093 (La.5/8/12), 89 So.3d 357, 362 (\\\"A party may not complain on appeal about an evidentiary ruling unless the trial judge was given the opportunity to avoid the perceived error, and the ruling 'affected' a 'substantial right' of the party.\\\")\\n. In two related arguments, the City also, asserted, again for the first time on appeal, that Daigle's deposition was admissible under Article 1450 A(5), which permits the use of a deposition of an expert at trial unless, in pertinent part, the opposing party objects. Because Sullivan objected to the introduction of Daigle's deposition, Article-1450 A(5) is not applicable. The City also cited Estate of Anderson v. Charity Hospital of Louisiana at New Orleans, 537 So.2d 1218 (La.App. 4 Cir.), writ denied, 539 So.2d 633 (La.1989), for the general proposition that \\\"courts in Louisiana have recognized the need to use expert depositions in lieu of live testimony, especially when there is such a vast expanse of time in between when the deposition is taken and the trial occurs, such as the case here.\\\" We find no support for this statement in Estate of Anderson, which upheld the introduction of a perpetuation deposition of an expert who had been available for multiple prior trial settings but was not available for the final trial setting. Estate of Anderson, 537 So.2d at 1218. That holding offers no support for the City's assignment of error.\\n. Pursuant to a provision in the contract documents addressed hereinafter, Myers reduced his gross damage figure for idle equipment charges by 50% to arrive at a net, recoverable amount. The trial court reduced Myers's gross figure by 65%, meaning the court applied an additional 15% discount to Myers's figure to arrive at the amount of the award for idle equipment charges.\\n. Although the DOTD directive provides an hourly reimbursement rate that is determined by dividing the monthly rate by 176, Myers used a daily rate that he calculated by dividing the monthly rate by 30.4 days.\\n. The 50% reduction was applied in accordance with the provision in the DOTD Directive that the reimbursement rate shall not exceed one-half of the Blue Book rate. Rather than use one-half of the Blue Book rate, Myers used the full rate and calculated a gross amount for all \\\"idle\\\" equipment, which he then reduced by 50% to account for the one-half limitation on the Blue Book rate.\\n. Those 49 days, all in 2001, are as follows: April 16, 17, 18, 19, 20; May 14, 15, 16, 17, 23. 31; June 1. 4. 5. 13. 14. 15. 18. 19. 20. 22. 28, 29; July 9, 10, 11, 12, 13, 16, 19, 20, 23, 25; August 6, 21, 22; and October 3, 4, 8, 9, 16. 17. 18. 19. 22. 23. 24. 25. 26.\\n. The identified equipment includes trucks and a mobile concrete plant moved to the location. We reject the City's arguments that these items of equipment should not be included in the calculation of the idle equipment charges.\\n. Myers offered a similar explanation for his calculation of the idle equipment expenses. According to Myers, his use of calendar-days yielded essentially the same result as a workday delay calculation because he converted the Blue Book monthly rate to a daily rate by dividing the monthly figure by 30.4 days, which is the average number of calendar days in a month. The DOTD directive called for dividing the monthly figure by 176 hours, which if converted to a daily rate, is the equivalent of only 22 days (based on an 8 hour work day). Thus, Myers's higher number of days (calendar versus work day) was offset by a lower daily rate.\\n. We note that de novo review of the award of additional overhead expenses is not warranted by the trial court's error in determining the award for the separate claim for idle equipment expenses. The lower court's error in relying upon Myers's opinion to determine when the delays occurred was not material to the claim for additional overhead expenses, because that claim did not require specific proof of when the delays occurred. Consequently, the trial court's error in determining the award for idle equipment expenses was not material to the overhead expense claim and did not interdict the fact-finding process for that award. Cf. Roberts v. Rudzis, 13-0538 (La.App. 1 Cir. 5/28/14), 146 So.3d 602, 608, writ denied, 14-1369 (La.10/3/14), 149 So.3d 797.\\n. In a similar argument, Sullivan also cites jurisprudence from federal courts and other states for the premise that a general contractor should be allowed to recover extra costs and services wrongfully demanded under the contract, regardless of whether the contractor performed the work itself or through a subcontractor. Sometimes referred to as the \\\"pass-through doctrine,\\\" this theory of recovery allows a general contractor to bring an action for the subcontractor's damages; however, as in Keller, the general contractor must be liable to the subcontractor for those damages. See Interstate Contracting Corporation v. City of Dallas, 135 S.W.3d 605, 611 (Tex.2004). For that reason, the cited jurisprudence is not applicable to the present case.\"}"
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+ "{\"id\": \"7001449\", \"name\": \"Marti Elizabeth SIMON, et al. v. Ronald THERIOT, Sheriff, et al.\", \"name_abbreviation\": \"Simon v. Theriot\", \"decision_date\": \"2013-12-11\", \"docket_number\": \"No. 13-562\", \"first_page\": \"1057\", \"last_page\": \"1064\", \"citations\": \"127 So. 3d 1057\", \"volume\": \"127\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Louisiana Court of Appeal\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T22:09:44.564170+00:00\", \"provenance\": \"CAP\", \"judges\": \"Court composed of JOHN D. SAUNDERS, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.\", \"parties\": \"Marti Elizabeth SIMON, et al. v. Ronald THERIOT, Sheriff, et al.\", \"head_matter\": \"Marti Elizabeth SIMON, et al. v. Ronald THERIOT, Sheriff, et al.\\nNo. 13-562.\\nCourt of Appeal of Louisiana, Third Circuit.\\nDec. 11, 2013.\\nCarl J. Rachal, Simon Law Offices, Lafayette, Louisiana, for Plaintiff/Appellant, Marti Elizabeth Simon, on behalf of her minor children, Haley Nel Richard and Haven Gage Richard.\\nPatrick B. Mclntire, Robin J. Magee, Oats & Marino, Lafayette, Louisiana, for Defendants/Appellees, Ronald Theriot, Sheriff St. Martin Parish Sheriffs Office.\\nCourt composed of JOHN D. SAUNDERS, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.\", \"word_count\": \"3400\", \"char_count\": \"20660\", \"text\": \"KEATY, Judge.\\n| plaintiff appeals the trial court's judgment granting of a peremptory exception in favor of Defendants. For the following reasons, we affirm.\\nFACTS AND PROCEDURAL HISTORY\\nThe action giving rise to this litigation involves the wrongful death causes of action by the survivors, i.e., the minor children of decedent, Christopher Ted Richard (Ted).\\nOn October 8, 2010, Ted dropped off his girlfriend, Danielle Belle (Belle) and/or her mother, at her home. Thereafter, Belle and/or her mother called 9-1-1 to file a complaint against Ted. Members of the St. Martinville City Police and St. Martin Sheriffs units were subsequently dispatched to the scene and arrived, surrounding the vehicle that Ted was occupying. Ted locked and barricaded himself inside his vehicle. Thereafter, Ted called his father, Larry Richard (Larry), his mother, Cheryl Richard (Cheryl), and his ex-wife, Marti Elizabeth Simon (Simon), on his cell phone wherein he indicated he intended to kill himself.\\nOver the next few hours, Ted made several phone calls to Larry, Cheryl, and Simon. During one of these calls to his father, Larry told Ted that he was \\\"on his way\\\" and to \\\"not do anything stupid.\\\" Ted told his father that he would not shoot himself or do \\\"anything stupid\\\" and that he would wait for his father to arrive at the crisis scene.\\nMajor Ginny Higgins (Major Higgins) was the head crisis negotiator with the St. Martin Parish Sheriffs Office and was in charge of the crisis negotiations with Ted. Major Higgins told Larry, Cheryl, and Simon that she did not want them ^having any further communications with Ted as it would interfere with their handling of the crisis negotiations. Major Higgins and her assistant, Deputy Allison Boudreaux (Deputy Boudreaux), also told them that if they spoke by telephone with Ted, they would be criminally charged with obstruction of justice and arrested for interfering with their negotiations. After these conversations with Major Higgins and Deputy Boudreaux, Ted made numerous cell phone calls to Larry, Cheryl, and Simon. Due to the threat of arrest and incarceration, all of these cell phone calls went unanswered. Ted subsequently shot and killed himself while in his own vehicle.\\nSimon, on behalf of her minor children, Haley Nel Richard and Haven Gage Richard, thereafter filed a Petition for Damages against Defendants, Ronald Theriot, in his capacity as St. Martin Parish Sheriff, and the St. Martin Parish Sheriffs Office. Simon's petition alleged that Defendants were negligent and/or at fault in causing Ted's death. Defendants responded by filing an answer with general denials and a peremptory exception for failure to state a cause of action. In its initial judgment in favor of Defendants, the trial court stated that Simon failed to state a cause of action as her petition failed to allege facts which would impose a duty upon Defendants. The trial court granted Defendants' exception but also allowed Simon thirty days to amend her petition to state a cause of action. After Simon filed an amended petition for damages, Defendants re-urged their original exception of no cause of action. The trial court ruled in favor of Defendants, granted the exception, and dismissed Simon's lawsuit with prejudice.\\nIgSimon is now before this court asserting that the trial court committed reversible error and abused its discretion by failing to accept the allegations and facts in her original and supplemental petition for damages as true and correct and in granting Defendants' peremptory exception of no cause of action on the grounds that Simon failed to allege an affirmative duty prohibiting family members from participating in crisis negotiations when a person is threatening suicide.\\nLAW\\n\\\"In reviewing the judgment of the district court relating to an exception of no cause of action, appellate courts should conduct a de novo review because the exception raises a question of law and the lower court's decision is based solely on the sufficiency of the petition.\\\" Ramey v. DeCaire, 03-1299, pp. 7-8 (La.3/19/04), 869 So.2d 114, 119.\\nDISCUSSION\\nI. Simon's Mis-Reading of the Trial Court's Judgment\\nIn her assignment of error, Simon asserts two issues: (a) that the trial court failed to accept the allegations of fact in the original and supplemental petitions as true and (b) that the trial court granted the exception of no cause of action because Simon did not allege an affirmative duty \\\"prohibiting family members from participating in crisis negotiations when a person is threatening suicide.\\\" In opposition, Defendants contend that Simon is mistaken on both counts.\\nAs used in the context of the peremptory exception, a cause of action refers to the operative facts which give rise to the plaintiffs right to judicially assert the action against the defendant. Ramey, 869 So.2d 114. The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the [4facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru S., Inc., 616 So.2d 1234, 1235 (La.1993). \\\"On the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.\\\" La.Code Civ.P. art. 931. Additionally, \\\"[n]o evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.\\\" Id. Consequently, \\\"the court reviews the petition and accepts well pleaded allegations of fact as true, and the issue at trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought.\\\" Jackson v. State ex rel. Dep't of Corr., 00-2882, pp. 3-4 (La.5/15/01), 785 So.2d 803, 806.\\nIn her original petition, Simon alleged the same facts as stated in the factual section above. She further alleged that Defendants were at fault by:\\nA. Negligently failing to utilize properly trained negotiators;\\nB. Negligently failing to properly train the negotiators in question;\\nC. Negligently failing to follow proper accepted police training and procedures for crisis negotiations for dealing with suicidal individuals such as Ted Richard;\\nD. Negligently failing to allow the deceased's father, mother and ex-wife from assisting in the crisis negotiations;\\nE. Other such actions and/or inactions in failing to see and/or do what should have been done under the circumstances in order to avoid and/or prevent the death of Ted Richard; and\\nF.Any and all other acts of negligence and/or fault which may be proven at the trial of this matter.\\nAs mentioned above, the trial court initially ruled in favor of Defendants and allowed Simon thirty days to amend her petition to state a cause of action. In its written reasons for judgment dated June 13, 2012, the trial court stated that \\\"[for] |Bthe purpose of the exception the following facts in the petition are considered true.\\\" The trial court then recited the facts as alleged by Simon in her petition. The trial court further stated:\\nPlaintiff has cited no authority which imposes upon deputies, negotiating with a person threatening suicide, an obligation to allow untrained family members to participate in the negotiations. This court has found no such authority. Plaintiff has failed to allege facts which impose a duty upon the Sheriffs deputies or the Sheriff; therefore, plaintiff has failed to state a cause of action.\\nSimon subsequently filed an amended and supplemental petition. She re-alleged the same facts contained in her original petition. She further alleged that Defendants were at fault by:\\na. Failing to recognize and/or not ignore the risks of suicide, which were foreseeable;\\nb. Failing to take reasonable steps necessary to prevent said suicide;\\nc. Once it became clear that there was a high risk of suicide, by failing to adhere to their duty to do everything possible to prevent such suicide, including, but not limited to, allowing Ted Richard's family to speak with him to attempt to circumvent, deter and/or prevent such suicide;\\nd. By failing to act reasonably and prudently under the circumstances;\\ne. By acting carelessly and recklessly under the circumstances; and\\nf. Any and all other acts of negligence which may be proven at the trial of this matter.\\nDespite the supplemental and amended petition, the trial court again granted the Defendants' peremptory exception on December 15, 2012. In its oral reasons for judgment dated November 16, 2012, the trial court stated that it has to \\\"accept the facts as true in deciding.\\\" The trial court further stated that it did not see that a legal duty existed on the part of the Sheriff.\\n| (\\u00a1Contrary to Simon's argument that the trial court was demanding eviden-tiary proof and based upon the above oral and written reasons for judgment, we find that the trial court did accept the allegations of the petition and amending and supplemental petition as true for purposes of the exception. The trial court simply found that under the circumstances alleged, i.e., an armed, barricaded, and suicidal individual, the deputies did not owe any duty to Simon that would make them liable for damages if the suicide took place.\\nAdditionally, the trial court did not grant the exception simply because Simon failed to allege that there was an affirmative duty. Allegation of a duty would not be a fact but would be a legal conclusion that is to be disregarded when analyzing the petition. See Brewer v. J.B. Hunt Transp., Inc., 09-1408, 09-1428 (La.3/16/10), 35 So.3d 230 (whether a duty is owed is a question of law); see also Montalvo v. Sondes, 93-2813 (La.5/23/94), 637 So.2d 127 (allegations in counter-claim that original suit was frivolous and in bad faith were mere conclusions when unsupported by facts). What the trial court found was that \\\"[pjlaintiff has failed to allege facts which impose a duty upon the Sheriffs deputies.\\\" Again, the facts alleged in this case establish that the deputies were confronted with an armed, barricaded, and suicidal individual who was never in custody at any time during the encounter. The trial court correctly concluded that, under these circumstances, no duty arose on the part of the Sheriff and the deputies. The exception was granted, not because of a failure to allege a duty, but because under the facts as pled, viewed in the light most favorable to Simon, no duty arose as a matter of law.\\nSimon correctly notes that the trial court found that the Sheriff had no legal duty under the facts of this case to assure the survival of Ted. Simon, however, argues that duty was not the issue. Rather, Simon argues that the issue was 17whether, under La.Civ.Code art. 2315, the deputies \\\"were negligent in the handling of the suicide situation.\\\" We find that Simon is mistaken. The issue raised by the exception was whether a duty existed under the circumstances alleged. It is axiomatic that in all negligence cases, Louisiana courts have adopted a duty-risk analysis to determine if liability exists under the facts of a particular case. Brewer v. J.B. Hunt Transp., Inc., 09-1408, 09-1428 (La.3/16/10), 35 So.3d 230. The first element of a duty-risk analysis is whether \\\"the defendant had a duty to conform his or her conduct to a specific standard of care.\\\" Id. at 240. The existence of a legal duty is a question of law, and it is appropriate for resolution by an exception of no cause of action. Id.\\nThus, we find that Simon mis-read the trial court's judgment. Accordingly, we find that Simon's assignment of error is without merit for the reasons stated above and below.\\nII. The Trial Court's Ruling Regarding the Supplemental and Amended Petition\\nDespite Simon's protestations, the issue in this case is whether Louisiana law imposes a duty on the Sheriff to allow family members to participate in crisis negotiations, or more generally, to assure the survival of a suicidal man who has locked himself in a car with a loaded shotgun pointed at his head. We find that it does not.\\nAs mentioned above, the existence of a duty is a question of law. Hardy v. Bowie, 99-2821 (La.9/8/99), 744 So.2d 606. \\\"The inquiry is whether the plaintiff has any law \\u2014 statutory, jurisprudential, or arising from general principles of fault \\u2014 to support his claim.\\\" Id. at 614. In Hardy, police officers were responding to the sound of a gunshot within a crowd. One of the issues was whether they | sowed a duty to bystanders, and particularly the decedent who was shot soon after the police began their search for the gun-wielding assailant. The court noted that \\\"[generally, a 'police officer has a duty to perform his function with due regard for the safety of all citizens who will be affected by his action.'\\\" Id. at 614 (quoting Prattini v. Whorton, 326 So.2d 576 (La.App. 4 Cir.1976)). Citing Mathieu v. Imperial Toy Corp., 94-952 (La.11/30/94), 646 So.2d 318, the Hardy court observed that police officers are \\\"held to choosing a course of action which is reasonable under the circumstances.\\\" Hardy, 744 So.2d. at 614.\\nWe note that the above cases have acknowledged tort protection for the benefit of innocent bystanders and for the protection of suspects from battery by the police. Nevertheless, Simon has not provided jurisprudence which stands for the proposition that there exists a duty upon police officers to allow family members to participate in crisis negotiations. Likewise, we have been unable to find jurisprudence to that effect.\\nThe Louisiana Supreme Court has upheld an exception of no cause of action in a slightly different wrongful death by suicide claim. See Ramey, 869 So.2d 114. In Ramey, the decedent physician committed suicide after being told over the phone that he had failed a random drug screen, knowing that the drug test would likely cost him his medical license. The plaintiffs sued the people who had advised the decedent of the test result for negligently failing to take precautions against the risk of suicide when such risk was foreseeable under the circumstances. The supreme court granted the exception of no cause of action, though it remanded the case to allow plaintiffs another opportunity to amend to cure the exception. Justice Knoll, concurring with the holding of the failure to state a cause of action and dissenting from the decision to remand rather than dismiss the suit, noted that the |flpleadings did not articulate any legal duty given \\\"the strong policy considerations against assigning del-ictual responsibility for the suicidal acts of another, and the great reluctance of our courts to extend such liability, especially in non-custodial circumstances.\\\" Id. at 120. Justice Knoll also noted the highly speculative nature of the claim and the general rule that \\\"[p]leadings which establish only possibility, speculation, or unsupported probability do not suffice to establish a cause of action.\\\" Id. at 120-21.\\nOther states have addressed the specific issue of police liability in the context of an armed and suicidal individual. They have found no duty to allow participation by family members in the crisis negotiations and have found no duty to assure survival of the suicidal person at all. In Ferreira v. City of East Providence, 568 F.Supp.2d 197 (D.R.I.2008), Patricia Ferreira shot herself while barricaded in a car. Her suicide came after her brother, against police orders, had draped himself over the windshield of the car, from which he had to be removed and placed in handcuffs in a police cruiser. In Ferreira, as in the present case, the allegation was that if only the police had allowed the brother to continue the dialogue, the suicide could have been prevented. The court noted that the police were justified in removing the brother from the vicinity of the car and that to do otherwise \\\"would have placed Ferreira [the brother], who was in a stressed and upset state, effectively in charge of the situation.\\\" Id. at 207. The court found that the issue was whether the officers owed any duty to protect Patricia from herself. It found that they did not.\\nIn Adams v. City of Fremont, 68 Cal.App.4th 243, 80 Cal.Rptr.2d 196 (1998), the court found that officers responding to a situation involving a person threatening suicide with a loaded weapon have no legal duty of care that would |inexpose them to liability if their conduct fails to prevent the suicide from being carried out. In Adams, the court noted that police officers in the presence of an armed and suicidal person are concerned with several interests: the physical safety of the community, including themselves, other citizens, and family members; the physical safety of the suicidal person, and; the psychological sanctity of family members. The court held that \\\"imposing liability for the negligent handling of a threatened suicide improperly elevates the interests in preserving the life of the person threatening suicide over the interests of public safety and the physical safety of police officers.\\\" Id. at 272, 80 Cal.Rptr.2d 196.\\nIn the present case, Simon contends that the out-of-state cases examined above did not involve exceptions of no cause of action. We note, however, that these cases were decided as a matter of law based on the issue of whether to recognize a legal claim under circumstances virtually identical to the case at hand, i.e., police dealing with an armed and suicidal individual. Both cases held that no such cause of action should be allowed.\\nSimon has likewise cited cases in support of her assignment of error. In Garza v. Delta Tau Delta Fraternity Nat'l, 06-698 (La.App. 1 Cir. 3/28/07), an unpublished decision, the allegation was that a police officer refused to take the complaint of a rape victim, told her that no official action would be taken against the alleged rapist, and told her that she would be sued for defamation if she continued to complain. The gist of the case was that the officer encountered a non-suicidal person and helped drive her to suicide. In the present case, however, the petition and supplemental and amended petition makes it clear that the suicidal person in this case was already barricaded in a car with a loaded gun threatening |n suicide when the police encountered him. Thus, the circumstances in this case are easily distinguishable from Garza.\\nSimon also cites the case of White v. Walker, 950 F.2d 972 (5th Cir.1991), a Mississippi federal case. The allegation in White was that the suicidal person was never in contemplation of taking his own life until the encounter with the officer. The court upheld the exclusion of a psychologist's testimony to the effect that the officer's conduct contributed to the suicide. It reversed and remanded solely on the issue of whether there was a Fourth Amendment violation of the suicidal person's rights as a result of the traffic stop that began the encounter. The issue turned on whether there was a violation of Mississippi traffic law. All other claims were dismissed. We find that this case does not stand for the proposition that officers confronted with an armed, barr\\u00ed- caded, and suicidal individual have a duty to save the life of the suicidal individual which trumps their duty to others at risk.\\nFinally, Simon cites Gray v. City of Detroit, 399 F.3d 612 (6th Cir.2005), where the decedent committed suicide while in a police cell at a hospital. Since Gray committed suicide while in police custody, Gray is distinguishable from the facts in the present case as Ted was not in custody at the time of his suicide.\\nThus, Simon's assignment of error is without merit.\\nDECREE\\nThe judgment rendered by the trial court is affirmed. All costs of this appeal are assessed against Marti Elizabeth Simon, on behalf of her minor children, Haley Nel Richard and Haven Gage Richard.\\nAFFIRMED.\\n. Simon and Ted have two minor children, Haley Nel Richard and Haven Gage Richard.\\n. The facts stated above are the same facts alleged in Simon's petition and supplemental and amended petition.\"}"
la/7001835.json ADDED
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1
+ "{\"id\": \"7001835\", \"name\": \"Connie LOVE v. Jeanne SIREY\", \"name_abbreviation\": \"Love v. Sirey\", \"decision_date\": \"2013-05-30\", \"docket_number\": \"No. 12-CA-823\", \"first_page\": \"732\", \"last_page\": \"741\", \"citations\": \"119 So. 3d 732\", \"volume\": \"119\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Louisiana Court of Appeal\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-11T00:35:40.223838+00:00\", \"provenance\": \"CAP\", \"judges\": \"Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT M. MURPHY and STEPHEN J. WINDHORST.\", \"parties\": \"Connie LOVE v. Jeanne SIREY.\", \"head_matter\": \"Connie LOVE v. Jeanne SIREY.\\nNo. 12-CA-823.\\nCourt of Appeal of Louisiana, Fifth Circuit.\\nMay 30, 2013.\\nJason P. Foote, Desmonde Bennett, Attorneys at Law, Metairie, LA, for Defendant/Appellant.\\nJohn E. McAuliffe, Jr., Attorney at Law, Metairie, LA, for Intervenor/Appellee.\\nPanel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT M. MURPHY and STEPHEN J. WINDHORST.\", \"word_count\": \"3526\", \"char_count\": \"21927\", \"text\": \"STEPHEN J. WINDHORST, Judge.\\n12Jeanne Sirey appeals a summary judgment granted in favor of her homeowners insurer, State Farm Fire and Casualty Company (\\\"State Farm\\\"), finding that State Farm owed no duty to defend or indemnify Ms. Sirey against the claims asserted by Connie Love and denying Ms. Sire/s cross-motion for summary judgment. For the following reasons, we affirm in part, vacate in part and remand the matter back to the trial court.\\nPROCEDURAL HISTORY\\nOn February 27, 2007, Ms. Love filed a Complaint for Personal Injuries against Ms. Sirey claiming that Ms. Sirey committed continuous assaults and batteries on Ms. Love through inappropriate comments and inappropriate bodily contact, which occurred at their place of employment, Moti-va. Subsequently, Ms. Sirey contacted State Farm and reported the pending lawsuit. State Farm proceeded to defend Ms. Sirey pursuant to a reservation of rights by appointing separate counsel to represent Ms. Sirey. State Farm filed an Intervention for Declaratory Judgment and then a motion for summary judgment asserting that coverage defenses precluded coverage to Ms. Sirey. Ms. Sirey filed a cross-motion for summary judgment contending she had coverage under the policy. The trial |acourt granted State Farm's summary judgment and denied Ms. Sirey's cross-motion for summary judgment. This appeal followed.\\nDISCUSSION\\nWhen reviewing a trial court's grant of a motion for summary judgment, a de novo standard of review is applied. Flowers v. Wal-Mart Stores, Inc., 12-140 (La.App. 5 Cir. 7/31/12), 99 So.3d 696. In summary judgment there is no live testimony or determination of credibility of evidence by the trial court. La. C.C.P. art. 966 B(2); KMJ Services, Inc. v. Hood, 12-757, p. 4 (La.App. 5 Cir. 4/10/13), 115 So.3d 34, 2013 WL 1442631; Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La.2/20/04), 866 So.2d 228. Therefore, courts of appeal apply the same criteria that govern the trial court's consideration of whether summary judgment is appropriate, ie., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. KMJ Services, Inc., 12-757 at 4, 115 So.3d at 36.\\nGenerally, in a motion for summary judgment, the mover retains the burden of proof. After adequate discovery, if the mover sustains this initial burden by showing an absence of factual support for at least one essential element of the adverse party's claim, action, or defense, then the burden shifts to the adverse party to present factual support adequate to establish that he will be able to satisfy the evidentia-ry burden at trial. La. C.C.P. art. 966 C(l) & (2). Subsequently, if the adverse party fails to produce factual support to show that he will be able to meet his evidentiary burden of proof at trial, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966 C(2). Robinson v. Jefferson Parish Sch. Bd., 08-1224 (La.App. 5 Cir. 4/7/09), 9 So.3d 1035, 1043, writ denied, 09-1187 (La.9/18/09), 17 So.3d 975, citing Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773, 776-77.\\n| insurance policies are contracts between the insured and insurer wherein the agreement governs the nature of their relationship. La. C.C. art.1983. An insurance policy is a contract that must be construed using the general rules of contract interpretation set forth in the Civil Code. Louisiana Ins. Guar. Ass'n v. Interstate Fire & Cas. Co., 93-0911 (La.1/4/94), 630 So.2d 759, 763; Peterson v. Schimek, 98-1712 (La.3/2/99), 729 So.2d 1024, 1028. Whether an insurance policy provides or precludes coverage is a dispute that can be properly resolved within the framework of a motion for summary judgment. Brewster v. Hunter, 09-932 (La.App. 5 Cir. 3/9/10), 38 So.3d 912, 915, writ denied, 10-773 (La.6/4/10), 38 So.3d 305.\\nThe purpose of liability insurance is to provide the insured protection from claims of damage. Peterson, 729 So.2d at 1028. Courts must determine the intent of the parties when interpreting an insurance policy. La. C.C. art. 2045. Insurance policies should be interpreted to effect coverage, not deny coverage. Yount v. Maisano, 627 So.2d 148, 151 (La.1993). An exclusion from coverage should be narrowly construed. Breland v. Schilling, 550 So.2d 609, 610 (La.1989). An insurance policy should not be interpreted unreasonably or in a strained manner in an attempt to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Bernard v. Ellis, 11-2377 (La.7/2/12), 111 So.3d 995; Graphia v. Schmitt, 08-613 (La.App. 5 Cir. 1/13/09), 7 So.3d 716, 718. Absent a conflict with public policy or statutory provisions, insurers, like other persons, are entitled to limit their liability and to impose and to enforce reasonable conditions upon the obligations they contractually assume under the policy. Id. When the policy's language is clearly expressed and unambiguous, the insurance policy must be enforced as written and no further interpretation may be made to determine the intent of the ^parties. Id; La. C.C. art.2046. However, when the policy provisions are ambiguous and susceptible to two or more reasonable interpretations, then those provisions are construed against the insurer and in favor of coverage. La. C.C. art.2056; Louisiana Ins. Guar. Ass'n, 630 So.2d at 764.\\nIn general, an insurer's obligation to defend a lawsuit against its insured is broader than its liability for damage claims. Yount, 627 So.2d at 153. A duty to defend an insured is determined by the allegations of the plaintiffs petition wherein the insurer is obligated to provide a defense unless the petition unambiguously and clearly excludes coverage. Id., citing American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969); Meloy v. Conoco, Inc., 504 So.2d 833 (La.1987). Assuming all the allegations of the plaintiffs petition are true, if there would be coverage under the policy and liability to the plaintiff, the insurer must defend its insured irrespective of the final outcome of the lawsuit. Id.; Graphia, 7 So.3d at 718. The allegations of the petition are liberally construed to determine whether they set forth grounds which bring the claim within the insurer's duty to defend. Id.\\nAssignment of Error One\\nIn her first assignment of error, Ms. Sirey contends that the trial court erred by finding that the acts claimed in Ms. Love's petition do not constitute an insurable \\\"occurrence\\\" under the policy issued to Ms. Sirey by State Farm.\\nState Farm contends that the policy defines an \\\"occurrence\\\" as an \\\"accident.\\\" State Farm argues that the acts of battery and assault are intentional by nature and thus, do not constitute an \\\"occurrence\\\" under the policy. State Farm further claims that when reviewing the acts from the point of view of Ms. Love, the actions by Ms. Sirey do not constitute an \\\"accident.\\\" Ms. Love testified in her deposition that she did not believe that the actions by Ms. Sirey were an accident.\\n1 fiSection II of the policy entitled \\\"Liability Coverage,\\\" provides:\\nCoverage L \\u2014 Personal Liability:\\nIf a claim is made or a suit is brought against an Insured for damages because of bodily injury or property damage to which this coverage applies, caused by an occurrence, we will:\\n1. Pay up to our limit of liability for the damages for which the Insured is legally liable; and\\n2. Provide a defense at our expense by counsel of our choice. We may make any investigation and settle any claim or suit that we decide is appropriate. Our obligation to defend any claim or suit ends when the amount we pay for damages, to effect settlement or satisfy a judgment resulting from the occurrence, equals our limit of liability.\\nThus, for the policy to afford coverage to Ms. Sirey there must have been a suit brought against the insured, Ms. Sirey, for \\\"bodily injury\\\" or \\\"property damage\\\" caused by an \\\"occurrence\\\" as defined in the policy.\\nIn Ms. Love's petition and first amended petition, she claimed that Ms. Sirey repeatedly committed several assaults and batteries on Ms. Love over a period of time and the \\\"touchings were offensive\\\" to Ms. Love. Ms. Love additionally claimed that as a result of \\\"continuous unchecked threats\\\" she suffered severe emotional distress that resulted in her transfer to another position wherein she was sent home as disabled.\\nThe trial court found that there was no coverage for the claims in Ms. Love's petitions because they did not constitute an \\\"occurrence\\\" as defined in the policy. The policy definition states that an \\\"occurrence,\\\" when used in Section II of the policy, is \\\"an accident, including exposure to conditions, which results in bodily injury or property damage during the policy period. Repeated or continuous exposure to the same general conditions is considered to be one occurrence.\\\"\\nThe policy does not define \\\"accident,\\\" \\\"exposure to conditions\\\" and/or \\\"repeated or continuous exposure.\\\" It does not exclude intentional acts from | coverage (discussed infra, assignment of error three), and the definition of occurrence does not specifically exclude assault and battery. Considering the precise language of the policy, and the allegations set forth in the petitions, the policy does not unambiguously or clearly exclude Ms. Love's claims from coverage as an insurable occurrence. We find that the trial court erred in concluding that the petitions fail to state a covered occurrence.\\nAssignment of Error Two\\nIn her second assignment of error, Ms. Sirey contends that the trial court erred by finding that Ms. Love's claims did not result in \\\"bodily injury.\\\"\\nState Farm argues that Ms. Love in her deposition affirmatively testified that she did not sustain any bodily injury or property damage as a result of the actions of Ms. Sirey. State Farm further claims that the policy excludes damages for emotional distress under the definition of \\\"bodily injury.\\\"\\nMs. Sirey contends that Ms. Love's petition and first amended petition claimed bodily injury.. Specifically, Ms. Love claimed that she suffered emotional distress and was \\\"disabled\\\" as result of the acts perpetrated by Ms. Sirey. Additionally, Ms. Sirey argues that Ms. Love testified in her deposition that as a result of the . emotional distress, she suffered from a physical bodily injury, ie., loss of bodily functions. Furthermore, Ms. Sirey claims that Ms. Love's petitions assert various assaults and batteries which include the threat of physical contact and physical contact which could reasonably be interpreted as \\\"bodily injury.\\\"\\nIn the State Farm policy, \\\"bodily injury\\\" is defined as physical injury, sickness, or disease to a person. The policy further provides that:\\nBodily Injury does not include:\\nc. emotional distress, mental anguish, humiliation, mental distress, mental injury, or any similar injury unless it arises out of actual physical injury to some person.\\nlsOn the face of the petition and first amended petition, Ms. Love clearly claimed \\\"bodily injury\\\" sufficient to trigger coverage under the State Farm policy. Ms. Love claimed unwanted bodily contact and \\\"threatened\\\" bodily contact by Ms. Sirey. Ms. Love contended that the acts by Ms. Sirey caused her to be disabled. A review of Ms. Love's deposition testimony provides additional evidence that Ms. Love sustained bodily injury. Ms. Love testified that due to fear and anxiety she developed a physical injury, namely, loss of her bodily functions. Furthermore, Ms. Love claimed bodily injury by contending Ms. Sirey committed several batteries which by its nature encompasses bodily contact. Thus, the policy does not unambiguously exclude coverage for Ms. Love's claimed bodily injury. The trial court erred in finding Ms. Sirey did not have coverage under the policy.\\nAssignment of Error Three\\nIn her third assignment error, Ms. Sirey claims that the trial court erred by finding that this was an intentional act that was excluded by the intentional act provision when in fact the policy contains an intentional injury exclusion.\\nState Farm argues that the acts of assault and battery are intentional torts and are excluded under the policy's intentional act/malicious acts exclusion provision. Ms. Sirey contends that the policy does not contain an intentional act exclusion, rather it contains an intentional injury exclusion which has been held not to exclude all intentional acts.\\nThe State Farm policy \\\"Section II \\u2014 Exclusions\\\" provides:\\n1. Coverage L and Coverage M do not apply to:\\na. bodily injury or property damage:\\n(1) which is either expected or intended by the insured; or\\n(2) which is the result of willful and malicious acts of the insured;\\nlain interpreting insurance policies, policies should be construed to effect coverage, not deny it. Yount, 627 So.2d at 151, citing Breland, 550 So.2d at 610. Thus, any exclusion from coverage should be narrowly construed and where an ambiguity exists, the provision should be construed in favor of coverage and against the insurer. Reynolds v. Select Properties, Ltd., 634 So.2d 1180, 1188 (La.1994), citing Great American Ins. Co. v. Gaspard, 608 So.2d 981, 984 (La.1992); La. C.C. art. 2056.\\nIn Breland, 550 So.2d at 610, the Supreme Court discussed the difference between an intentional act and an intentional injury exclusion. The Court held that\\n[t]he purpose of the intentional injury exclusion is to restrict liability insurance coverage by denying coverage to an insured in circumstances where the insured acts deliberately and intends or expects bodily injury to another. The exclusion is \\\"designed to prevent an insured from acting wrongfully with the security of knowing that his insurance company will 'pay the piper' for the damages.\\\"\\nThe language used in an intentional injury exclusion provision has been held to be ambiguous. Pique v. Saia, 450 So.2d 654, 655 (La.1984). An intentional injury clause, by its language does not exclude coverage for bodily injury caused by an insured's intentional act. Breland, 550 So.2d at 611. The exclusion precludes coverage for bodily injury \\\"expected or intended\\\" by the insured. Id. Thus, the excluded injury would be the injury the insured intended, not the injury which the insured unintentionally caused, however intentional the act which produced the injury. Id. The subjective intention and expectation of the insured will determine which injuries fall within and which fall outside the scope of coverage under an insurance policy with this language. Id.\\n| mThis interpretation is in direct contrast to the traditional intentional tort inquiry into an individual's intent. The intentional tort inquiry focuses on the consequences an objective reasonable person might expect or intend as a result of a deliberate act. Id. Thus, the intentional tort standard exposes an individual to liability for injuries he did not foresee or intend to produce, whereas an intentional injury exclusion excludes coverage only for those injuries which the defendant subjectively intended to inflict. Id. at 612.\\nFor the intentional injury exclusion, whether the act and the resulting injury were intended by the insured is a question of fact to be determined by the trier of fact. Id. at 614. The trier of fact must examine \\\"not only the words before, at the time of, and after the pertinent conduct, but from all the facts and circumstances bearing on such intent or expectation.\\\" Yount, 627 So.2d at 152, citing Great American Insurance Co., 608 So.2d at 986, quoting Breland, 550 So.2d at 615 (Lemmon, J. concurring). Because this inquiry is fact intensive, much discretion will be given to the trier of fact. Yount, 627 So.2d at 152.\\nThe State Farm policy does not contain an intentional act exclusion. Instead it contains an intentional injury exclusion. Thus, the court must determine Ms. Sirey's subjective intent to determine whether the she intended the injuries, which is an issue of fact. Accordingly, a genuine issue of material fact exists as to Ms. Sirey's subjective intent which precludes summary judgment under the intentional injury exclusion. We find that the trial court erred in finding that the intentional injury exclusion precluded coverage to Ms. Sirey under the policy.\\nState Farm also asserts that the insurance policy contains a separate exclusion for the \\\"willful and malicious | nacts of an insured.\\\" Under the malicious acts section of the exclusion, State Farm contends that coverage to Ms. Sirey is excluded. State Farm argues that assuming the court finds that the exclusion is an intentional injury exclusion, any intended or unintended injury is not relevant in a determination of malicious acts. Rather, the mere act itself fits within the exclusion and thus, the policy does not provide coverage to Ms. Sirey\\nIn Keathley v. State Farm Fire & Casualty Insurance Co., 594 So.2d 963 (La.App. 3 Cir.1992), the Third Circuit, interpreted an exclusionary clause in a liability policy similar to the clause in the present case. The court held that under the second part of the exclusionary clause (willful and malicious acts), it was immaterial whether the defendant intended the actual resulting injuries. Keathley, 594 So.2d at 966. Although conceding that not many cases have interpreted the \\\"willful and malicious\\\" exclusionary clause, the court noted:\\nThe term willful has been defined, and this term has been held to apply to conduct which is still merely negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if harm was intended.\\nThe usual meaning assigned to this term is that the actor has intentionally done an act of unreasonable character in reckless disregard of the risk known to him, or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It is usually accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow. See Pros-ser, Law of Torts, Section 34, at pages 187-189 (3d Ed.1964); Cates v. Beauregard Electric Cooperative, Inc., 316 So.2d 907 (La.App. 3d Cir.1975); Prosser v. Crawford, 383 So.2d 1363 (La.App. 3d Cir.1980).\\nThe term malicious, also used in the second part of the exclusionary clause, has not been defined or used in any case like the term \\\"willful.\\\" In order to determine if defendant's conduct fall under this second prong, we must use the common meaning of the word \\\"malicious.\\\" The general meaning of this term as found in Black's Law Dictionary 5th ed. is as follows: \\\"Characterized by, or involving, malice; having, or done with, wicked or mischievous intentions or motives; wrongful and done intentionally without just cause or excuse. See also Malice; Willful.\\\"\\nKeathley, 594 So.2d at 965-966.\\n| ^Despite State Farm's assertion to the contrary, genuine issues of material fact remain as to whether the acts claimed by Ms. Love are excluded under this provision.\\nAssignment of Error Four\\nIn her fourth assignment of error, Ms. Sirey contends that trial court erred in granting summary judgment to State Farm because the acts alleged in the plaintiffs petition do not relate to either party's business pursuits exclusion.\\nState Farm argues that the acts claimed by Ms. Love occurred almost entirely at Motiva where Ms. Love and Ms. Sirey are co-workers and are excluded under the business pursuits exclusion. However, we note that the exclusion does not apply \\\"to activities which are ordinarily incident to non-business pursuits. We find that a genuine issue of material fact exists regarding whether the business pursuits exclusion unambiguously excludes coverage.\\nAssignment of Error Five\\nIn her final assignment of error, Ms. Sirey contends that the trial court erred by denying her cross-motion for summary judgment since coverage was clearly provided under the State Farm policy.\\nWhile we find that the acts set forth in Ms. Love's petition are not unambiguously excluded from coverage, we likewise find genuine issues of material fact remain which bear on whether or not coverage is excluded under the exclusion provisions of the policy. Considering the reasons above, the trial court was correct in denying Ms. Sire/s cross-motion for summary judgment.\\nWe decline to address Ms. Sirey's request that State Farm should be ordered to reimburse Ms. Sirey for all out of pocket fees and costs for defending herself on this issue. Such a determination would be premature.\\n| ^CONCLUSION\\nFor the reasons stated above, we affirm the trial court's judgment denying Ms. Sir-ey's cross-motion for summary judgment. We vacate the trial court's judgment granting State Farm's motion for summary judgment. This case is remanded to the trial court for further proceedings.\\nAFFIRMED IN PART; VACATED IN PART; AND REMANDED\\n. Ms. Love filed a First Amended Complaint for Personal Injuries on October 25, 2010.\\n. In Breland, the Supreme Court held that \\\"... when a minor bodily injury is intended, and such results, the injury is barred from coverage. When serious bodily injury is intended, and such results, the injury is also barred from coverage. When a severe injury of a given sort is intended, and a severe injury of any sort occurs, then coverage is also barred. But when a minor injury is intended, and a substantially greater or more severe injury results, whether by chance, coincidence, accident, or whatever, coverage for the more severe injury is not barred.\\\" Id. at 614.\"}"
la/7002642.json ADDED
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+ "{\"id\": \"7002642\", \"name\": \"Melanie GARDNER, Plaintiff-Appellant v. Mike CRAFT, et al., & The Stebbins Engineering and Manufacturing Company, Defendants-Appellees\", \"name_abbreviation\": \"Gardner v. Craft\", \"decision_date\": \"2012-09-26\", \"docket_number\": \"No. 47,360-CA\", \"first_page\": \"135\", \"last_page\": \"138\", \"citations\": \"105 So. 3d 135\", \"volume\": \"105\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Louisiana Court of Appeal\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T18:38:12.535793+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before CARAWAY, MOORE & SEXTON (Pro Tempore), JJ.\", \"parties\": \"Melanie GARDNER, Plaintiff-Appellant v. Mike CRAFT, et al., & The Stebbins Engineering and Manufacturing Company, Defendants-Appellees.\", \"head_matter\": \"Melanie GARDNER, Plaintiff-Appellant v. Mike CRAFT, et al., & The Stebbins Engineering and Manufacturing Company, Defendants-Appellees.\\nNo. 47,360-CA.\\nCourt of Appeal of Louisiana, Second Circuit.\\nSept. 26, 2012.\\nRehearing Denied Nov. 8, 2012.\\nDelphin Law Offices, APLC, by Mark A. Delphin, Lake Charles, LA, Arthur J. O\\u2019Keefe, Law Offices of Reed Morgan, PC, by Stephen Reed Morgan, for Appellant.\\nMayer, Smith & Roberts, L.L.P., Shreveport, LA, by Caldwell Roberts, Jr., The Stebbins Engineering and Manufacturing Co., for Appellee.\\nCook, Yancey, King & Galloway, by Herschel E. Richard, Jr., John C. Nickel-son, Jason Andrew Green, Shreveport, LA, Thomas C. Quinlen, for Int\\u2019l Paper Co. & Mike Craft.\\nBefore CARAWAY, MOORE & SEXTON (Pro Tempore), JJ.\", \"word_count\": \"1596\", \"char_count\": \"9814\", \"text\": \"SEXTON, Judge Pro Tem.\\n| ] Plaintiff, Melanie Gardner, appeals a summary judgment of the trial court in favor of Defendant, Stebbins Engineering and Manufacturing Company (\\\"Stebbins\\\"), dismissing with prejudice her claims against Stebbins. For the reasons stated herein, we affirm.\\nFACTS\\nMs. Gardner is the widow of Toby Gardner, who worked at the Mansfield location of International Paper Company, Inc. (\\\"IP\\\"). On September 28, 2009, Mr. Gardner was repairing a valve on the platform surrounding the top of the linerboard white water tank/tile chest (\\\"whitewater tank\\\") when he fell through the access opening and into the tank. Tanks such as the one at issue contain pressurized liquid kept at 150 degrees Fahrenheit, pulp fibers and debris. Mr. Gardner died within minutes. The record reflects that the access opening covers are not affixed to the tank and may become dislodged if the tank is overpressurized or overfilled, causing overflow of the liquid and debris onto the top of the tank. Photographs and testimony established that there was pulp debris accumulation around the access opening on the whitewater tank on the day of Mr. Gardner's accident, indicating that the access opening cover may have been dislodged due to overflow at some point prior to his fall.\\nMs. Gardner filed suit against Mike Craft, the manager of the Mansfield paper mill, IP and Stebbins. Stebbins designs and constructs cylindrical concrete tanks or tile chests that can hold cold or hot liquids, and, more than 20 years ago, it designed and manufactured part of the whitewater tank into which Mr. Gardner fell. Stebbins did not design or 12construct the access opening covers on the tanks. Stebbins also has a contractual arrangement with IP to inspect the structural integrity of tile chests at many of its locations worldwide. Ms. Gardner asserted that, through inspections at plants other than the Mansfield paper mill, Stebbins learned that some tile chests were being overpressurized and were overflowing. Ms. Gardner further alleged that this practice caused the access opening covers to become dislodged, presenting a hazard to IP employees working on the tanks, and that the knowledge of this hazardous practice created an obligation on the part of Stebbins to inform IP of the unsafe practice. It should be noted that Stebbins had no such inspection contract for the Mansfield paper mill.\\nMs. Gardner took the corporate deposition of Stebbins and Joe Branch testified on its behalf. Mr. Branch conducted the inspections of the tile chests at various IP locations. The whitewater tank at issue at the Mansfield paper mill was not inspected by Stebbins prior to Mr. Gardner's accident. Mr. Branch testified that, usually, the inspections were requested after a plant had closed and inspections of operating tanks were limited to the structural integrity of the tank. Mr. Branch explained that he \\\"inspect[s] the outside and interior of tile chests and tanks for the outward appearance of the condition of the tile, the cement or the concrete, and the reinforcing steel.\\\" He stated that the inspections have nothing to do with operation of the tank. When he would note overfilling of the tanks, he would be concerned with \\\"cracks or structural flaws that may have occurred from pressure or overpressure,\\\" not with the practice of the plant in [ <\\u00a1overpressurizing the tank. Mr. Branch clearly stated that \\\"[w]e're not trained to operate the plant.\\\"\\nStebbins filed a motion for summary judgment arguing that Ms. Gardner's design claim was perempted under La. R.S. 9:2772 and/or La. 9:5607. It further argued that it had not inspected the whitewater tank at the Mansfield paper mill and had no duty to IP or Mr. Gardner. The trial judge granted the motion, finding \\\"no issue of an affirmative obligation on behalf of Stebbins at the Mansfield Plant. And that 9:2772 in addition to that, bars the claim after five years.\\\" This appeal by Ms. Gardner ensued.\\nDISCUSSION\\nThe appellate court's review of a grant or denial of a summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226. A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. See La. C.C.P. art. 966(B). The burden of proof on a motion for summary judgment remains with the movant. Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880. When the movant, however, will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant is not required to negate all the essential elements of the adverse party's claim, action or defense. Id. Rather, the movant need only point out to the court that there is an absence of factual support for one or more elements essential to the ^adverse party's claim. Samaha, supra. Then, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact and movant is entitled to summary judgment. See La. C.C.P. art. 966(C)(2).\\nIt is undisputed that Stebbins' design and construction of part of the whitewater tank at issue was completed and accepted by IP more than 20 years prior to Mr. Gardner's accident. Stebbins performed no work on or inspection of the whitewater tank after November 28, 1980. La. R.S. 9:2772 provides a peremptive period of 5 years on design and construction claims. Accordingly, absent a showing of some other duty or obligation on the part of Stebbins in this case, all claims of Ms. Gardner against it are clearly perempted.\\nIn a effort to survive peremption, Ms. Gardner argues that Stebbins' inspections of the tile chests and alleged knowledge of the overfilling and overflowing of tile chests at IP plants, albeit in locations other than Mansfield, created a duty on the part of Stebbins to inform IP of the dangerous operation of the tanks by its employees. In other words, Ms. Gardner asserts that Stebbins assumed a duty to provide safety advice to IP due to its occasional observation and awareness of overpressurizing and overflowing tanks during its inspection of the structural integrity of the walls of the tile chests. We disagree.\\nIn Bujol v. Entergy Services, Inc., 03-0492 (La.5/25/04), 922 So.2d 1113, the supreme court explained:\\nOne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as |5necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect [perform] his undertaking, if\\n(a) his failure to exercise reasonable care increases the risk of harm, or\\n(b) he has undertaken to perform a duty owed by the other to the third person, or\\n(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.\\nThis common law doctrine has existed for centuries and has traditionally been used to impose liability upon an actor who has failed to exercise reasonable care when it undertook to perform a duty owed to a third party.\\nThe Bujol court was faced with the question of whether a parent corporation had assumed a duty for the workplace safety of its subsidiary, the plaintiffs employer. The supreme court noted that, under Louisiana jurisprudence, \\\"parties who voluntarily assume certain duties for work place safety must perform those duties in a reasonable and prudent manner.\\\" Bujol, supra. In order to find such an assumed duty, the supreme court required \\\"some proof of positive undertaking\\\" for work place safety, stating that \\\"neither mere concern with nor minimal contact about safety matters creates a duty to ensure a safe working environment for employees of a subsidiary corporation.\\\" Bujol, supra, citing Muniz v. National Can Corp., 737 F.2d 145 (1st Cir.1984).\\nHere, there is no evidence that Stebbins positively undertook any obligation to en sure the safety of IP employees. To the contrary, the evidence conclusively establishes that the only obligation on the part of Stebbins was to inspect for structural integrity certain tanks as requested by RIP. Stebbins exhibited no concern for, or contact with, the operational safety of IP plants or, specifically, the tile chests. Bu-jol, supra; Muniz, supra. There simply is no basis in law for the creation or assumption of any duty on the part of Stebbins to ensure the safe operation of the IP tanks. The trial judge properly granted Stebbins' motion for summary judgment.\\nCONCLUSION\\nFor the foregoing reasons, the summary judgment in favor of Stebbins Engineering and Manufacturing Company is affirmed. Costs of appeal are assessed to Plaintiff, Melanie Gardner.\\nAFFIRMED.\\nAPPLICATION FOR REHEARING\\nBefore STEWART, CARAWAY, MOORE, LOLLEY & SEXTON (Pro Tempore), JJ.\\nRehearing denied.\"}"
la/7003864.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"7003864\", \"name\": \"STATE ex rel. Carl BARRAS v. STATE of Louisiana\", \"name_abbreviation\": \"State ex rel. Barras v. State\", \"decision_date\": \"2013-10-25\", \"docket_number\": \"No. 2013-KH-1015\", \"first_page\": \"1094\", \"last_page\": \"1094\", \"citations\": \"124 So. 3d 1094\", \"volume\": \"124\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T19:35:38.430564+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE ex rel. Carl BARRAS v. STATE of Louisiana.\", \"head_matter\": \"STATE ex rel. Carl BARRAS v. STATE of Louisiana.\\nNo. 2013-KH-1015.\\nSupreme Court of Louisiana.\\nOct. 25, 2013.\", \"word_count\": \"67\", \"char_count\": \"417\", \"text\": \"In re Barras, Carl;\\u2014Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 188319; to the Court of Appeal, First Circuit, No. 2013 KW 0275.\\nDenied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/35), 660 So.2d 1189.\"}"
la/7022451.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"7022451\", \"name\": \"STATE ex rel. Daimon WILLIAMS v. STATE OF LOUISIANA\", \"name_abbreviation\": \"State ex rel. Williams v. State\", \"decision_date\": \"2013-07-31\", \"docket_number\": \"No. 2013-KH-0497\", \"first_page\": \"1121\", \"last_page\": \"1121\", \"citations\": \"118 So. 3d 1121\", \"volume\": \"118\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T18:17:37.217582+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE ex rel. Daimon WILLIAMS v. STATE OF LOUISIANA.\", \"head_matter\": \"STATE ex rel. Daimon WILLIAMS v. STATE OF LOUISIANA.\\nNo. 2013-KH-0497.\\nSupreme Court of Louisiana.\\nJuly 31, 2013.\", \"word_count\": \"78\", \"char_count\": \"515\", \"text\": \"In re Williams, Daimon; \\u2014 Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 01-2427; to the Court of Appeal, Fifth Circuit, No. 13-KH-73.\\nDenied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.\"}"
la/7042300.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"7042300\", \"name\": \"STATE of Louisiana v. Jarvis TUCKER a/k/a Joe Tate a/k/a Dwayne Lee\", \"name_abbreviation\": \"State v. Tucker\", \"decision_date\": \"2010-12-10\", \"docket_number\": \"No. 2010-KP-0573\", \"first_page\": \"721\", \"last_page\": \"721\", \"citations\": \"51 So. 3d 721\", \"volume\": \"51\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T22:12:22.387987+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Louisiana v. Jarvis TUCKER a/k/a Joe Tate a/k/a Dwayne Lee.\", \"head_matter\": \"STATE of Louisiana v. Jarvis TUCKER a/k/a Joe Tate a/k/a Dwayne Lee.\\nNo. 2010-KP-0573.\\nSupreme Court of Louisiana.\\nDec. 10, 2010.\", \"word_count\": \"69\", \"char_count\": \"435\", \"text\": \"In re Lee A/K/A, Dwayne; Moses A/K/A, Dwayne; Tate A/K/A, Joe; Tucker A/K/A, Jarvis; \\u2014Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, Nos. 09-97-0406, 04-98-0440; to the Court of Appeal, First Circuit, No. 2009 KW 2321.\\nDenied.\"}"
la/7059584.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"7059584\", \"name\": \"STATE of Louisiana v. Eric T. MAXWELL\", \"name_abbreviation\": \"State v. Maxwell\", \"decision_date\": \"2009-08-19\", \"docket_number\": \"No. 2008-KA-1007\", \"first_page\": \"505\", \"last_page\": \"512\", \"citations\": \"17 So. 3d 505\", \"volume\": \"17\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Louisiana Court of Appeal\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T18:57:02.725427+00:00\", \"provenance\": \"CAP\", \"judges\": \"(Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, and Judge DENNIS R. BAGNERIS, SR.).\", \"parties\": \"STATE of Louisiana v. Eric T. MAXWELL.\", \"head_matter\": \"STATE of Louisiana v. Eric T. MAXWELL.\\nNo. 2008-KA-1007.\\nCourt of Appeal of Louisiana, Fourth Circuit.\\nAug. 19, 2009.\\nRehearing Denied Sept. 15, 2009.\\nLeon A. Cannizzaro, Jr., District Attorney, Cate L. Bartholomew, Assistant District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for State of Louisiana.\\nMary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.\\n(Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, and Judge DENNIS R. BAGNERIS, SR.).\", \"word_count\": \"4012\", \"char_count\": \"24330\", \"text\": \"CHARLES R. JONES, Judge.\\n| jEric Maxwell appeals his conviction and sentence of ten (10) years for the offense of being a felon in possession of a firearm. We reverse, vacate Maxwell's conviction and sentence, and remand for a new trial.\\nThe State charged Maxwell with one count of being a felon in possession of a firearm. He pled not guilty at his arraignment. At the conclusion of his jury trial, he was found guilty as charged by a 12 member jury panel. The district court ordered a presentence investigation, and on April 30, 2008, the district court sentenced Maxwell to serve ten (10) years, concurrent with any other sentence, with credit for time served, and recommended him for the Department of Corrections Impact Program, and for any other self-help programs. Maxwell filed an oral motion for appeal that day, and he filed a written motion for appeal on May 5, 2008, on which date it was granted.\\nOn the morning of June 17, 2007, at about 11 a.m., New Orleans Police Department Officer Samuel Dupre was on routine patrol in his marked police vehicle when he was flagged down by a woman who informed him of a parked Lexus on Canal Street in Orleans Parish. The informant stated there were 2 black males \\\"ducked down\\\" in the car and it seemed like they were hiding from |2someone. Based on this information, Officer Dupre proceeded to the location described by the informant and saw the vehicle and the two men she described.\\nWhile parked about 20 feet away from the vehicle described, Officer Dupre witnessed the two men, Maxwell and another male, exit the Lexus and walk up to the Athletes Foot store located on Canal Street, peer through the window and return back to their vehicle. The two men reached under the seats of the vehicle to retrieve something and placed the item in their waste bands or pocket. Officer Dupre testified that because he was parked so far away, he could not confirm as to what the two males were retrieving from under the seat or where on their bodies they hid the item. The two males proceeded to walk back towards the Athletes Foot store. Officer Dupre further testified that the two males' actions made him think that they were going to rob the shoe store because \\\"they looked through the store, walked back to the vehicle to retrieve something that seemed like a gun from under the seat and then proceeded to walk back to the store.\\\"\\nOfficer Dupre testified that at this time, he tried to stop the two males by driving his vehicle up and blocking their way to the store. He asked the two males to place their hands on the car and requested their identification cards. Maxwell did not have an ID, but provided his name and birth date to Officer Dupre. After Officer Dupre ran the two males' names in the system, he found out that Maxwell had numerous warrants against him. The officer exited his vehicle to approach the two males, and he noticed Maxwell cupping a handgun in his hand. Officer Dupre testified that the gun was a blue steel semiautomatic handgun. Maxwell at this time began backing away from the officer, even though the officer had given him a verbal command to drop the weapon. Maxwell turned and ran down University Place. During this foot pursuit, Officer Dupre witnessed Maxwell drop the gun in Ra drain before continuing to run and hide in a parking garage where he was arrested by Officer Dupre.\\nThe security attendant, who was sitting by the parking lot, screamed and pointed to where Maxwell was hiding. Officer Dupre arrested Maxwell, returned him to the drain where Maxwell had dropped the gun, and waited for other members of the police force to arrive and assist him. Officer Dupre testified that at that time, Maxwell stated to Officer Dupre that he merely dropped marijuana in the drain, not a gun. Upon arrival and with Officer Dupre's entire precinct present, the officers pried open the drain where the gun, a fully loaded Bersa Blue Steel semi-automatic .380 caliber handgun, was retrieved. Upon retrieval, the officers returned to the initial location where the Lexus was still located.\\nAt trial, New Orleans Police Department crime lab technical specialist Teddy Fambro testified that he did not take finger prints off the handgun because at the time it was retrieved, it was wet and dirty. At trial, Mr. Fambro identified photographs of the handgun since the gun was not available for review in court.\\nMaxwell was charged with being a felon in possession of a handgun. Thus, his probation officer, Benny Stevens, a probation officer for the State of Louisiana, testified that he supervised Maxwell after he pled guilty to possession of crack cocaine on December 16, 2004, and was placed on probation for 18 months.\\nOn appeal, Maxwell raises four assignments of error:\\n1) the district court erred in the prosecutor's reasons for using peremptory challenges to remove five black prospective jurors, and in failing to require the prosecutor to go back and explain his strikes of five other black prospective jurors which were made before the Bat-son challenge was asserted, i.e., before the pattern became apparent; and in failing to keep official records which permit a review of the jury selection process;\\n|42) the district court erred in granting the State's challenge for cause to remove a black female prospective juror over objection by the defense; the transcript of voir dire is inadequate to review the ruling.\\n3) the district court abused its discretion in overruling defense counsels objection and denying closing arguments, specifically, that the ten (10) year minimum sentence could be \\\"changed\\\", that defense counsel should have questioned the police officer about the contents of the surveillance videotape which he lost before the defense could view it; and that the defense could have called witness to verify whether the police officer was telling the truth; and\\n4) the district court erred in failing to include \\\"illegal carrying of a concealed weapon\\\" as a responsive verdict in Maxwell's prosecution for being a \\\"felon in possession of a firearm or carrying a concealed weapon.\\\"\\nIn his first assignment of error, Maxwell argues the district court erred in not finding a pattern of racially motivated peremptory challenge when the State utilized nine of its twelve peremptory challenges to strike blacks from the jury and exercised cause challenges only against black venire members. In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court stated \\\"the Equal Protection Clause of the United States Constitution prohibits the use of peremptory challenges to discriminate on the basis of race.\\\" Bat-son has been codified in Louisiana Law under La. C. Cr. P. art. 795(C), as follows:\\nNo peremptory challenges made by the state or the defendant shall be based solely upon the race of the juror. If an objection is made that the state or defense has excluded a juror, solely on the basis of race, and a prima facie case supporting that objection is made by the objecting party, the court may demand a satisfactory racially neutral reason for the exercise of the challenge, unless the court is satisfied that such reason is apparent from the voir dire examination of the juror. Such demand |sand disclosure, if required by the court, shall be made outside of the hearing of any juror or prospective juror.\\nIn Batson, the United States Supreme Court established a three-step analysis to determine whether a peremptory challenge has been used in violation of the Equal Protection Clause. The district court must first determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Batson, 106 S.Ct. at 1722. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Batson, 106 S.Ct. at 1723. This second step \\\"does not demand an explanation that is persuasive or even plausible\\\"; as long as the reason is not inherently discriminatory, it suffices. Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995) (per curium). Finally, the district court must then determine whether the defendant has established purposeful discrimination. Batson, 106 S. Ct at 1723-1724.\\nIn Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008), the United States Supreme Court reemphasized the district courts' role under the third step of Batson: to carefully scrutinize the plausibility of the prosecutor's explanation for a peremptory strike by evaluating the prosecutor's credibility by assessing \\\"not only whether the prosecutor's demeanor belies a discriminatory intent, but also whether the juror's demean- or can credibly be said to have exhibited basis for the strike attributed to the juror by the prosecutor.\\\" Snyder, 128 S.Ct. at 1208.\\nIn the present case, the voir dire record shows that a total of thirty seven (37) people were questioned in the selecting process. The court called two panels. The jury panel was completed and filled during these two panels. The voir dire record shows that when the district court denied the State's challenges for cause on three | fi(3) black jurors, the State used its peremptory challenges to strike these prospective jurors during the first panel, in addition to two (2) others stricken peremptorily. The first three (3) prospective jurors the State requested challenges for cause on were: 1) Cleaster Baham, female; 2) Vanessa Sanders, female; and 3) Dine-trius Dillon, female. In addition to these, the State used its peremptory strikes on Gregory Pound, male, and Glorious Santos, female. All these prospective jurors, according to the panel list attached to the record, were African Americans. When the State's challenges for cause were denied by the district court, the State used its peremptory challenges. The transcript reveals that it was not until the questioning of the second panel of prospective jurors and when the State made its sixth peremptory challenge on another African American person that the defense made a Batson objection. The defense made a Batson objection at this time involving black females that had been struck by the state up to Ms. Annette Hawkins, the sixth African American the State sought to strike.\\nImmediately after the State challenged prospective juror Annette Hawkins, counsel for Maxwell made Batson challenges as to \\\"black females that have been struck by the State up to now.\\\" Upon the defense's Batson objection, the Prosecutor stated his reason as to why he requested for Ms. Hawkins and Ms. Renell Ballard to be struck. The State explained that both black females stated that they would not follow the law and would hold the State to a higher standard to prove its case than what is allowed by the law. The Prosecutor explained that as Ms. Hawkins was providing her statements to the State, Ms. Ballard was shaking |7her head in agreement. The district court accepted the State's reason and did not instruct the State to explain why it struck the first 4 black women as well as Ms. Hawkins. The State further requested Ms. Renell Ballard to be stricken for cause because she stated that she would hold the State to a higher standard of proof and would require the State to produce more than one witness. The district court denied the State's request; however, the State was still allowed to peremptorily strike Ms. Ballard. Upon the defense's Batson objection, the district court refused to instruct the State to provide further reasons for its strike. The record indicates that the State provided reasons for the challenge for cause of each person to be eliminated; however, the State did not provide reasons for the peremptory strikes. The voir dire record shows that after the Prosecutor provided its reasons on the record for requesting Ms. Hawkins to be struck, he inquired from the district court as to whether he should present his reasons for the strikes of the previous prospective jurors to which the defense had made a Batson objection. The district court responded in the negative:\\nState: . those are my reasons. Do you want me to put the reasons on for the others, Your Honor?\\nDistrict Court: No. Well, I'll deny the Batson challenge as to Ms. Hawkins.\\nIn applying the Batson three step test, which has been reaffirmed in recent cases such as Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) and Miller-El v. Dretke, 545 U.S. 231, 239, 125 S.Ct. 2317, 2324, 162 L.Ed.2d 196 (2005), we must examine the first element: the district court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a [ \\u00a1peremptory challenge on the basis of race. Batson, 476 U.S. 79, 106 S.Ct. 1712, 1722, 90 L.Ed.2d 69 (1986). In further applying the first test in Batson, in State v. Drake, 2008-1194 (La.1/30/09), 2 So.3d 416, the Louisiana Supreme Court stated:\\nThe United States Supreme Court \\\"did not intend, the first step of Batson to be so onerous that a defendant would have to persuade the judge on the basis of all the facts, some of which are impossible for the defendant to know with eertainty-that the challenge was more likely than not the product of purposeful discrimination.\\\" Johnson v. California, 545 U.S. 162, 170, 25 S.Ct. 2410, 2417, 162 1. L.Ed.2d 129 (2005). A defendant \\\"satisfies the requirement of Batson first step by producing evidence sufficient to permit the district judge to draw an inference that discrimination has occurred.\\\" Id.\\nIn the instant case, the defense did not raise a Batson challenge until the State was on their sixth peremptory strike. The record shows that Ms. Hawkins was the State's sixth strike of an African American. The defense made a Batson objection of all African American females up to Ms. Hawkins. Defense counsel clearly referred to \\\"black females,\\\" when he made the Batson challenge. Though the defense made numerous Batson objections, the district court did not shift the burden onto the prosecutor to present a race-neutral explanation for striking the jurors in question. After the first Batson objection by the defense, prosecutor asked if he should give reasons for striking the previous strikes. The district court clearly stated no, thus ignoring the requirements of the Batson challenge.\\nIn State v. Drake, 2008-1194 (La.1/30/09), 2 So.3d 416 \\u2014 a per curium decision by the Supreme Court \\u2014 during voir dire in Drake, the State peremptorily struck eight African American prospective jurors called for examination after the court excused seven others for cause. However, the State did allow and accept two | ^African American prospective jurors for the panel, of which the defense struck one. The district court found that defendant failed to satisfy the first step of the three step Batson test because he did not make a prima facie showing of discriminatory intent. The appellate court affirmed, finding no error in the district courts conclusion that there was no prima facie showing of purposeful discrimination met by the defense in its Batson objection. State v. Drake, 2008-1194 (La.1/30/09), 2 So.3d 416. The Louisiana Supreme Court in Drake, supra, granted the defendant's writ of certiorari and concluded in Drake that the circumstances set forth above gave rise to a reasonable inference of discriminatory purpose. Id., 2 So.3d at 417. Thus, the Supreme Court granted the defendant's writ of certiorari and remanded the case to the district court \\\"for purposes of providing the State with an opportunity to offer race-neutral reasons\\\" for the exercise of eight of its peremptory challenges to exclude prospective black jurors. Id., 2 So.3d at 417.\\nIn the instant case, the State's use of its peremptory challenges gave rise to a reasonable inference of discriminatory purposes on the part of the State. Though the district court did find initially that Maxwell made a prima facie showing that the State exercised peremptory challenges on the basis of race, it is apparent that the court subsequently accepted the Prosecutor's race-neutral explanations for striking the first five named black jurors. However, there is nothing in the record that shows that the district court required the State to go back and provide reasons for the strikes of the first five prospective jurors. When the State inquired as to whether he should go back and give reasons for the first five juror strikes, the district court informed him that it was not necessary. The State argues that its reasons in requesting challenges for cause for three of the first five prospective Jjjjm'ors \\u2014 which were subsequently struck by peremptory strikes \\u2014 provided race neutral reasons for the peremptory strikes. However, this argument is without merit because the State still does not provide race neutral reasons for striking the remaining two prospective jurors, Ms. Santos and Mr. Pounds.\\nThe State further requested Ms. Ballard to be stricken for cause because she stated that she would hold the State to a higher standard of proof and would require the State to produce more than one witness. The district court denied the State's request; however, the State was allowed to still strike Ms. Ballard using a peremptory challenge. Upon defense's Batson objection, the district court refused to instruct the State to provide further reasons for their strike. The State proceeded by striking the eighth prospective juror, another black female, Ms. Monica Sawyer. The State requested Ms. Sawyer to be stricken for cause, but this request was denied by the district court. Instead, the district court allowed for the prospective juror to be removed by the use of peremptory challenge. The district court merely noted the defense's Batson objection to the removal of Ms. Sawyer rather than following the second element of Batson and demanding a satisfactory racially neutral reason for the exercise of the challenge. Batson, 476 U.S. 79, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69 (1986).\\nThe State struck all but two African American prospective jurors. On the jury panel at trial, there were ten whites, two blacks, and a white alternate. This group is not reflective of the population of the Parish of Orleans in which Maxwell resides and is domiciled. By the district court failing to require the State to provide reasoning for the first five strikes which the defense counsel made a Batson objection to, the Batson objection was violated. The defense made a prima facie showing of discriminatory intent on the part of the State; however, the burden to | nprove otherwise was never transferred onto the State. Therefore, the district court did not complete the three part test of Batson.\\nAccordingly, Maxwell's assignment of error has merit. The manner in which the State exercised its peremptory challenges in this case, based on race, resulted in a violation of the defendant's constitutional rights; this error raises serious federal constitutional equal protection issues affecting the rights of both the defendant and the excused venire-member. See State v. Coleman, 2006-0518, p. 9 (La.11/02/07), 970 So.2d 511, 516-517. This error is a structural one, affecting the framework within which the trial proceeded. Id., 2006-0518, p. 9, 970 So.2d at 517. Here, the State used its peremptory strikes to strike all African Americans, the same race as the defendant. When Maxwell made a Batson objection, the district court did not shift the burden of proof onto the State to provide race-neutral reasons for its strikes. Thus, the district court erred in applying the Batson three part test and evaluating the Batson objection by Maxwell. Consequently, we vacate Maxwell's conviction and sentence, and remand this matter to the district court to conduct a new trial. Furthermore, we pretermit the defendant's three remaining assignments of error having found that the district court erred in addressing his Bat-son challenges.\\nA review of the record reveals two errors patent. Both the sentencing transcript and the minute entry from the date of sentencing reflect that the district court sentenced Maxwell to ten (10) years at hard labor.\\nLa. R.S. 14:95.1(B) states that whoever is being found guilty of possession of a firearm by a person who has been convicted of, inter alia, any violation of the Uniform Controlled Dangerous Substances Law, La. R.S. 40:961 et seq., which is a felony, shall be imprisoned at hard labor for not less than ten nor more than [ 12fifteen years \\\"without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars or more than five thousand dollars.\\\"\\nIn the instant case, Maxwell's prior conviction was for possession of cocaine, a violation of La. R.S. 40:967(C) and a felony.\\nThe district court failed to stipulate that Maxwell's sentence be served without the benefit of probation, parole, or suspension of sentence.\\nLa. R.S. 15:301.1(A) provides that the failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of parole, probation or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without the benefit of parole, probation or suspension of sentence. La. R.S. 15:301.1(A) deems that those required statutory restrictions are contained in the sentence, whether or not imposed by the sentencing court, and the paragraph self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence resulting from the failure of the sentencing court to impose the restrictions. State v. Williams, 2000-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799; State v. Boudreaux, 2007-0089, pp. 3-4 (La.App. 4 Cir. 8/15/07), 966 So.2d 79, 81-82, writ denied, 2007-1936 (La.2/1/08), 976 So.2d 717.\\nTherefore, the district court's failure to stipulate that Maxwell's sentence to be served without the benefit of probation, parole, or suspension of sentence pursuant to La. R.S. 14:95.1(B) does not require a remand by this court for a ministerial correction of the illegally lenient sentence.\\nThe second patent error is that the district court failed to impose a mandatory fine on Maxwell of not less than one thousand dollars nor more than five thousand dollars pursuant to La. R.S. 14:95.1(B). The failure to impose a mandatory fine for | ^conviction under La. R.S. 14:95.1(B) requires that the appellate court remand the case for imposition of the fine. State v. Major, 2008-0861, p. 4 (La.App. 4 Cir. 12/10/08), 1 So.3d 715, 719; State v. Brown, 2003-2155, p. 5 (La.App. 4 Cir. 4/14/04), 895 So.2d 542, 545.\\nHowever, having vacated Maxwell's conviction and sentence, and remanding this matter to the district court to conduct a new trial, we find the resolution of this patent error is rendered moot.\\nDECREE\\nFor the forgoing reasons, the conviction and sentence imposed upon Eric Maxwell is reversed and remanded for a new trial.\\nREVERSED AND REMANDED.\\n. However, the district court granted the States challenge for cause against Ms. Lan Tran, an Asian female. Ms. Tran had provided similar answers as the jurors previously stricken.\\n. There is no document in the record or the transcript of voir dire that reflects the race of the first five (5) jurors' stricken by the prosecutor. However, there is an attachment in the appellant's brief which shows the figures depicting the sex and race of the jury panel and the panel list with handwritten information by the defense attorney as to the age, sex, occupation and race of each prospective juror. The figures and panel list attached in the brief shows that the first five (5) prospective jurors struck by the State were all black people, 4 females and 1 male.\"}"
la/7062113.json ADDED
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+ "{\"id\": \"7062113\", \"name\": \"STATE of Louisiana v. Terrance CARTER\", \"name_abbreviation\": \"State v. Carter\", \"decision_date\": \"2009-06-17\", \"docket_number\": \"No. 2009-KK-1154\", \"first_page\": \"720\", \"last_page\": \"720\", \"citations\": \"10 So. 3d 720\", \"volume\": \"10\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T19:29:32.181678+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Louisiana v. Terrance CARTER.\", \"head_matter\": \"STATE of Louisiana v. Terrance CARTER.\\nNo. 2009-KK-1154.\\nSupreme Court of Louisiana.\\nJune 17, 2009.\", \"word_count\": \"78\", \"char_count\": \"498\", \"text\": \"In re Carter, Terrance; \\u2014 Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Red River, 39th Judicial District Court Div. 0, No. 101,993; to the Court of Appeal, Second Circuit, No. 44660-KW.\\nTransferred to Court of Appeal. The Court of Appeal retains jurisdiction over capital cases until a sentence of death is imposed. La. Const, art. 5, Sections 5, 10; La.C.Cr.P. art. 912.1.\"}"
la/7064084.json ADDED
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1
+ "{\"id\": \"7064084\", \"name\": \"Mary Ed McDONALD v. Ronald A. McDONALD\", \"name_abbreviation\": \"McDonald v. McDonald\", \"decision_date\": \"2009-03-04\", \"docket_number\": \"No. CA 08-1165\", \"first_page\": \"780\", \"last_page\": \"784\", \"citations\": \"10 So. 3d 780\", \"volume\": \"10\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Louisiana Court of Appeal\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T19:29:32.181678+00:00\", \"provenance\": \"CAP\", \"judges\": \"Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.\", \"parties\": \"Mary Ed McDONALD v. Ronald A. McDONALD.\", \"head_matter\": \"Mary Ed McDONALD v. Ronald A. McDONALD.\\nNo. CA 08-1165.\\nCourt of Appeal of Louisiana, Third Circuit.\\nMarch 4, 2009.\\nKerry Lyndon Spruill, Marksville, LA, for Plaintifi/Appellee Mary Ed McDonald.\\nKeith Wayne Manuel, Attorney At Law, Marksville, LA, for Defendant/Appellant Ronald A. McDonald.\\nDerrick M. Whittington, Whittington Law Firm, Marksville, LA, for Defendant/Appellant Ronald A. McDonald.\\nCourt composed of SYLVIA R. COOKS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.\", \"word_count\": \"1592\", \"char_count\": \"9741\", \"text\": \"GREMILLION, Judge.\\n| ,The defendant, Ronald McDonald, appeals the judgment of the trial court holding him in contempt and sentencing him to ninety days in jail. For the following reasons, we affirm.\\nFACTUAL AND PROCEDURAL BACKGROUND\\nRonald McDonald and Mary McDonald, formerly residents of Pearl River, Mississippi, were divorced in February 2005 after eighteen years of marriage. Ronald thereafter moved to Plaueheville, Louisiana. In October 2007, Mary filed a Petition to Make Judgments Executory in Avoyelles Parish concerning judgments for alimony, past due support, and contempt that were rendered by the Chancery Court of Pearl River County, Mississippi. Following a hearing in November 2007, the trial court made executory (1) the Final Judgment of Divorce (which included a property settlement agreement), (2) An April 6, 2006 judgment (reiterating that Ronald pay Mary $475 per month from his retirement plan and that Mary relinquish rights to Ronald's Louisiana Sheriffs Pension Fund) and, (3) the Judgment of Contempt filed on October 18, 2006 (which found Ronald $4,228 in arrearages in alimony owed to Mary).\\nMary then filed a Motion to Examine Judgment Debtor. Ronald filed a Rule for Contempt of Court or Rescind Property Settlement claiming that Mary had failed to execute certain documents which would relinquish her claim over his Louisiana Sheriffs Pension Fund. Mary then filed a Rule for Contempt of Court. Following a hearing in March 2008 on both Mary and Ronald's rules for contempt, the trial court found Ronald in contempt of court for nonpayment of spousal support in the amount of $3,286.50. It further found with regard to Ronald's Louisiana ^Sheriffs Pension Fund:\\nAlthough the evidence presented at hearing failed to reveal to this Court any legal basis for this claim, the record was held open to allow Ronald McDonald the opportunity to submit further information to prove this claim to the Court. The information obtained by Ronald McDonald subsequent to the hearing actually proved that his Rule for Contempt of Court is totally and completely without merit. This Court received correspondence from Andrea Aymond, Attorney for Ronald McDonald, dated May 8, 2008 with attachments from the Louisiana Sheriffs Pension and Relief Fund which confirm that the failure of Ronald McDonald to receive maximum benefits was through no fault whatsoever of Mary McDonald. In fact, if there was any fault to be assessed, that fault would be upon Ronald McDonald.\\nThe trial court further found that Ronald had been fully reimbursed from the Sheriffs pension fund and it further recalled his rule for contempt at his costs. The trial court noted that Ronald had \\\"absolute contempt\\\" for Mary and sentenced him to serve a period of ninety days in the Avo-yelles Parish jail. The trial court held that Ronald could purge himself of the ninety day sentence by paying Mary $3,286.50 plus attorney's fees of $500 and all court costs associated with the rule for contempt. Ronald filed a Motion to Vacate Judgment, for New Trial and Alternatively for Exceptions of No Cause of and No Right of Action, which were denied, with prejudice, by the trial court. Ronald was ordered to begin his ninety day sentence. Ronald filed a supervisory writ to this court, which was denied because an adequate remedy was available through appeal. Ronald now appeals. Maiy answered the appeal and seeks damages for frivolous appeal.\\nISSUES\\nRonald assigns as error:\\n1. The trial court abused its discretion when it held him in contempt of court.\\n2. The trial court abused its discretion when it sentenced him to the maximum sentence allowed pursuant to La.R.S. 1,13:4611.\\nCONTEMPT OF COURT\\nRonald claims that he should not have been held in contempt because the underlying judgments of divorce, including the property settlement, issued by the Chancery Court in Mississippi were unlawful under Louisiana law and, therefore, could not be made executory by a Louisiana court because they were against the public policy of this state. We disagree. Louisiana Code of Civil Procedure Article 2541 states:\\nA. A party seeking recognition or execution by a Louisiana court of a judgment or decree of a court of the Untied States or a territory thereof, or of any other state, or of any foreign country may either seek enforcement pursuant to R.S. 13:4241, et. seq., or bring an ordinary proceeding against the judgment debtor in the proper Louisiana court, to have the judgment or decree recognized and made the judgment of the Louisiana court.\\nB. In the latter case, a duly authenticated copy of the judgment or decree must be annexed to the petition.\\nMary complied with the statutory requirements and the Louisiana court ordered Ronald to pay her $475 per month less what she received from his military retirement. Ronald's claim that a Louisiana court must determine whether Mary is in need and free from fault pursuant to La.Civ.Code arts. Ill and 112 is without merit. The determination of whether Mary was entitled to the $475 per month award has already been decided by the Mississippi court. Mary now merely seeks to enforce the money judgment she has against Ronald. Any issues that Ronald has with the original Mississippi judgments should have been raised in the court that issued the judgment.\\nRonald urges that Daigle v. Daigle, 06-346 (La.App. 3 Cir. 9/27/06), 940 So.2d 891, writ denied, 06-2914 (La.2/16/07), 949 So.2d 418 supports his position. |4We disagree. Daigle is totally inapplicable to the facts at hand. In Daigle, both parties were Louisiana residents and the property settlement agreement was in contravention of public policy.\\n\\\"A contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.\\\" La.Code Civ.P. art. 221. Constructive contempt includes \\\"[wjillful disobedience of any lawful judgment, order, mandate, writ, or process of the court[.]\\\" La.Code Civ.P. art. 224. Louisiana Revised Statute 13:4611 addresses punishment for contempt of court and states that district courts may punish a person found in contempt:\\n(d) For any other contempt of court, including disobeying an order for the payment of child support or spousal support . by a fine of not more than five hundred dollars, or imprisonment for not more than three months, or both.\\nThe trial court has vast discretion in determining whether a party is in contempt of court and its decision will not be reversed absent and abuse of discretion. See Martin v. Martin, 37, 958 (La.App. 2 Cir. 12/10/03), 862 So.2d 1081. Having reviewed the record, we find that the trial court did not abuse its discretion in finding Ronald in contempt of court for failure to pay Mary $475 per month. It is clear that Ronald is intent on refusing to pay or delaying the payment rightfully owed Mary pursuant to the valid Mississippi judgment. It was Ronald's testimony that he feels he owes his former wife nothing and that she does not deserve a cent. Consider this excerpt from the trial transcript:\\nTRIAL COURT: There are two Judgments in Mississippi that say you owe her $475.00 out of the military retirement. Whether she gets it all from you, you know, or gets part from the military retirement and part |5from you $475.00 has to go to her. Do you understand that?\\nRONALD: I understand what you are saying yes, sir.\\nTRIAL COURT: And that is the Judgment of the court that says that. Two Judgments of the court that say that and you understand that but you still don't intend on paying her.\\nRONALD: No, sir.\\nFurthermore, it is clear from reading the letter sent by Ronald's own attorney to the trial court dated May 8, 2008, that Mary is not wrongfully receiving monies from his Louisiana Sheriffs Pension Fund nor did she fail to take any required action. Ronald's actions indicate the willful contempt he has for the court's orders. Accordingly, we find that the ninety day jail sentence was not excessive. These assignments of error are without merit.\\nFRIVOLOUS APPEAL\\nMary urges that we award her damages for frivolous appeal.\\nLa.Code Civ.P. art. 2164 provides that an appellate court may award damages for frivolous appeal. However, damages for frivolous appeal will not be awarded unless it appears that the appeal was taken solely for the purpose of delay, that serious legal questions are not raised, or that the attorney does not seriously believe in the position he advocates. Robinson v. Thornton, 96-1329 (La.App. 3 Cir. 10/29/97); 705 So.2d 745, writ denied, 97-2963 (La.2/6/98); 709 So.2d 739.\\nCooks v. Rodenback, 97-1389, p. 9 (La.App. 3 Cir. 4/29/98), 711 So.2d 444, 449. Considering the facts before us, we find that Ronald has pursued this appeal merely for the purposes of delaying payment to Mary. Accordingly, we award her $1425 in attorney's fees for work performed on appeal, an amount equal to three months of the support Ronald has contemptuously refused to pay her.\\nCONCLUSION\\nThe judgment of the trial court finding the defendant-appellant, Ronald [(McDonald in contempt of court and sentencing him to ninety days in jail is affirmed. Ronald is hereby ordered to pay Mary $1425 in attorney's fees for work performed on appeal-\\nAFFIRMED.\"}"
la/7430405.json ADDED
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1
+ "{\"id\": \"7430405\", \"name\": \"STATE of Louisiana v. George PAYNE, Jr.\", \"name_abbreviation\": \"State v. Payne\", \"decision_date\": \"1996-05-22\", \"docket_number\": \"No. CR94-1628\", \"first_page\": \"527\", \"last_page\": \"530\", \"citations\": \"677 So. 2d 527\", \"volume\": \"677\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Louisiana Court of Appeal\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T18:48:09.118850+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before WOODARD, PETERS and SULLIVAN, JJ.\", \"parties\": \"STATE of Louisiana v. George PAYNE, Jr.\", \"head_matter\": \"STATE of Louisiana v. George PAYNE, Jr.\\nNo. CR94-1628.\\nCourt of Appeal of Louisiana, Third Circuit.\\nMay 22, 1996.\\nJames M. Buck, Alexandria, for State of Louisiana.\\nJoseph Richard Kutch, Pineville, for George Edward Payne Jr.\\nGeorge Edward Payne, Jr., pro se.\\nBefore WOODARD, PETERS and SULLIVAN, JJ.\", \"word_count\": \"1598\", \"char_count\": \"9513\", \"text\": \"JjSULLIVAN, Judge.\\nOn July 19, 1994, a jury found defendant, George Payne, Jr., guilty of possession of stolen goods in excess of one hundred dollars but less than five hundred dollars, a violation of La.R.S. 14:69(B)(2). On September 23, 1994, the state charged defendant as a multiple offender. Pursuant to a plea bargain agreement, defendant admitted his status as a multiple felony offender, having pled guilty to a 1988 simple burglary charge. He was sentenced to serve two years with the Louisiana Department of Corrections. Defendant's counsel made an oral motion for appeal and, on September 26,1994, filed a written motion for appeal assigning as error insufficiency of evidence.\\nOn January 31, 1995, instead of briefing the assignment of error, appellate counsel filed an Anders brief, together with a motion to withdraw. This court considered the assignment of error abandoned and did not address it. The court reviewed the record, as mandated by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990), finding one 12error patent; namely, defendant was not informed of his right to remain silent prior to pleading guilty to his multiple offender status. State v. Payne, 94-1628 (La.App. 3 Cir. 12/6/95); 665 So.2d 158. We denied the motion to withdraw and ordered appellate counsel to brief the issue of whether State v. Harris, 95-0900 (La. 5/19/95); 654 So.2d 680, which involved an application for post-conviction relief, also applied to cases on appeal and, if so, whether defendant's habitual offender hearing was fundamentally fair. After reviewing the record and the relevant law, we find that Hams does apply to eases on appeal, that the habitual offender hearing was fundamentally fair, and affirm defendant's adjudication and sentence.\\nLa.R.S. 15:529.1(D) provides, in part:\\n[T]he court . shall inform [defendant] of the allegation contained in the information and of his right to be tried as to the truth thereof according to law and shall require the offender to say whether the allegations are true.\\nIn State v. Johnson, 432 So.2d 815 (La.1983), defendant was determined by the trial court to be a habitual offender and sentenced to twenty-four years at hard labor. At the hearing, defendant pled not guilty. No evidence was presented by the state that defendant was the same person who had been previously convicted. The trial court, over the objection of counsel, compelled defendant to testify. The supreme court reversed and vacated the sentence. The court stated:\\nThis section of the statute clearly recognizes that the defendant, if he chooses, has the right to remain silent. Once the defendant chooses to remain silent the state must then by competent evidence prove the elements of R.S. 15:529.1 before the defendant can be sentenced as an habitual offender. Before the defendant chooses to acknowledge or confess in open court that he has been previously convicted of a felony, the statute requires that he first be cautioned by the trial court as to his rights. R.S. 15:529.1(D) specifically provides that defendant be advised by the court of his right to a \\\"formal hearing\\\" and to have the state prove its case. State v. Martin, 427 So.2d 1182 (La.1983). Further, this section implicitly provides that the defendant should be advised, by the court, of his statutory right to remain silent.\\n| gM, at 817.\\nMore recently, in State v. Harris, 654 So.2d 680, the supreme court, in an application for post-conviction relief, stated:\\nAdmissions of identity at a multiple offender hearing implicate the defendant's Fifth Amendment privilege against self-incrimination. State v. Johnson, 432 So.2d 815 (La.1983). Nevertheless, multiple offender proceedings \\\"simply should not be equated (at least for purposes of determining the validity of an admission) to trials of guilt or innocence.\\\" State v. Martin, 427 So.2d 1182, 1185 (La.1983). This Court has therefore declined to adopt as a constitutional prerequisite to a valid admission of identity at a multiple offender proceeding a procedure analogous to the Boykin colloquy which must accompany a valid plea of guilty. Id., 427 So.2d at 1185, n. 7. In the absence of any allegation or showing that the admission was involuntary, compare State v. Johnson, supra, the availability of post-conviction relief turns on whether the proceedings as a whole accorded the petitioner fundamental fairness and due process of law. See, Holloway v. Lynaugh, 838 F.2d 792 (5th Cir.), cert. denied, 488 U.S. 838, 109 S.Ct. 104, 102 L.Ed.2d 80 (1988); State v. Firmin, 522 So.2d 1181 (La.App. 4th Cir.), writ denied, 532 So.2d 759 (La.1988).\\nIn the case sub judice, unlike in Harris, no independent evidence was introduced by the state to prove defendant was the same person previously convicted of a predicate felony. However, our review of the record convinces us that \\\"the proceedings as a whole accorded the (defendant) fundamental fairness and due process.\\\" At the hearing on September 23, 1994, the following colloquy occurred:\\nBY MS. LAING (assistant district attorney):\\nMr. George Payne?\\nBY MR. PAYNE:\\nYes, ma'am.\\nBY MS. LAING:\\nMr. Payne, you're present and represented by your attorney, Mr. Kutch. Is that correct?\\nBY MR. PAYNE:\\nYes.\\nUBY THE COURT: .\\nWhat docket?\\nBY MS. LAING:\\nMr. Payne, there's a . Oh, I'm sorry. 236,525.\\nBY THE COURT:\\nMinor little details.\\nBY MS. LAING:\\nThere's a bill of information filed against you, Mr. Payne, alleging that you are a multiple felony offender, second offender, I believe. It's my understanding you intend to admit .\\nBY MR. PAYNE:\\nYes ma'am.\\nBY MS. LAING:\\n. that. Is that correct?\\nBY MR. PAYNE:\\nYes, ma'am.\\nBY MS. LAING:\\nOkay. It's alleged that you pled guilty to simple burglary in December 14, 1988, and that you were convicted of possession of stolen things in July 19, 1994, and you admit those charges?\\nBY MR. PAYNE:\\nYes, ma'am.\\nBY THE COURT:\\nMr. Payne, you understand . We filed the bill?\\nBY MS. LAING:\\nWell, no, I need to file it. I didn't realize that was the original.\\n|5BY THE COURT:\\nMr. Payne, you understand that you have a right to a hearing .\\nBY MR. PAYNE:\\nYes, sir.\\nBY THE COURT:\\n. on this particular charge itself on the multiple bill? You have a right to have the state come and prove that you are the same George Payne that had the other convictions.\\nBY MR. PAYNE:\\nYes, sir.\\nBY THE COURT:\\nYou have a right to a lawyer at that particular hearing?\\nBY MR. PAYNE:\\nYes, sir.\\nBY THE COURT:\\nThen those convictions are valid convictions?\\nBY MR. PAYNE:\\nYes, sir.\\nBY THE COURT:\\nIf you plead guilty and accept this at this time, then you're waiving the right to that particular hearing, which would be with all due process and all the rest. You understand that?\\nBY MR. PAYNE:\\nYes, sir.\\nBY THE COURT:\\nleAnd you also understand that if you plead guilty on this, you will receive a sentence that will be without benefit of probation or suspension of sentence?\\nBY MR. PAYNE:\\nYes, sir.\\nBY THE COURT:\\nYou also understand under 15:571.4, I believe, .3, et seq., then you'd also lose your rights to good time? You understand .\\nBY MR. PAYNE:\\nNo, I . I didn't .\\nBY THE COURT:\\nYou didn't know that?\\nBY MR. PAYNE:\\nNo. (Inaudible)\\nBY THE COURT:\\nThis would be a sentence without good time. You understand that you have a two-year sentence is the agreement in exchange for this?\\nBY MR. PAYNE:\\nYes, sir.\\nBY THE COURT:\\nAnd that that would be without benefit of suspension of sentence or probation but that it would be also without benefit of good time under the statute?\\nBY MR. PAYNE:\\nYes, sir.\\nBY THE COURT:\\nAnd you're still prepared to admit?\\nJtBY MR. PAYNE:\\nYes, sir.\\nBY THE COURT:\\nOkay. Court's satisfied in this particular matter. It's going to be the sentence of the Court that Mr. George Payne is to serve two years with the Department of Corrections as an habitual offender, second offender.\\nBY MR. PAYNE:\\nBut, Your Honor, I've got . I've got almost eleven months turned in now.\\nBY THE COURT:\\nHang on. We've got some other things I've got to say. You will get credit for time served. You've got three years from the date your sentence becomes final to seek post-conviction relief. If you want another court to review this, you've got to ask for it within three years. That needs to show in the sentencing transcript, too, Brenda.\\n* \\u215c \\u215c\\nBY MR. PAYNE:\\nYour Honor, how much time does that leave me to . due?\\nBY THE COURT:\\nThirteen months.\\nBY MR. PAYNE:\\nThirteen months?\\nBY THE COURT:\\nIt's straight time.\\nBY MR. PAYNE:\\nOkay.\\nBY THE COURT:\\nIsOkay?\\nThere have been no allegations or showing that the admission was involuntary. Defendant was represented by counsel at the hearing, he was informed of the allegations in the multiple offender bill and he was advised of his right to a hearing wherein the state would have the burden of proving he was the same person previously convicted of the predicate offense. Furthermore, the admission was part of a plea agreement and defendant was fully apprised of the sentence he was to receive.\\nAccordingly, we find there was no error in the habitual offender proceedings and the defendant's adjudication and sentence as a habitual offender are affirmed.\\nAFFIRMED.\"}"
la/7450230.json ADDED
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1
+ "{\"id\": \"7450230\", \"name\": \"BARO CONTROLS, INC. v. Helen PREJEAN\", \"name_abbreviation\": \"Baro Controls, Inc. v. Prejean\", \"decision_date\": \"1994-03-11\", \"docket_number\": \"No. 93 CA 0586\", \"first_page\": \"46\", \"last_page\": \"49\", \"citations\": \"634 So. 2d 46\", \"volume\": \"634\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Louisiana Court of Appeal\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T22:59:37.025126+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before FOIL, PITCHER and PARRO, JJ.\", \"parties\": \"BARO CONTROLS, INC. v. Helen PREJEAN.\", \"head_matter\": \"BARO CONTROLS, INC. v. Helen PREJEAN.\\nNo. 93 CA 0586.\\nCourt of Appeal of Louisiana, First Circuit.\\nMarch 11, 1994.\\nEugene Groves, Baton Rouge, for plaintiff-appellant Baro Controls, Inc.\\nHobart Pardue, Springfield, for defendant-appellee Helen Prejean.\\nO\\u2019Neal Walsh, Baton Rouge, for defendant-appellee American Motorist.\\nBefore FOIL, PITCHER and PARRO, JJ.\", \"word_count\": \"1520\", \"char_count\": \"8976\", \"text\": \"PITCHER, Judge.\\nThis is an appeal of a trial court's judgment nullifying the right of an option grantor to retain a $10,000.00 option price because of an alleged defect in the property. We reverse.\\nFACTS\\nOn June 6, 1988, Baro Controls, Inc. (Baro), a Texas corporation and owner of Lot 27-A of Joy's Riverway Estates in Livingston Parish, Louisiana, entered into a contract of lease for said property with Helen Prejean (Mrs. Prejean). The term of the lease was from June 1,1988 to September 19, 1988, with monthly rental amounts payable as follow: June, $800.00; July, $400.00; and August through September 19 $300.00. For the additional consideration of $10,000.00, Mrs. Prejean was granted an option to purchase the property for the sum of $130,-000.00. Under the agreement, Mrs. Prejean was to exercise her option on or before September 1, 1988. If she failed to exercise her option within this time frame, the $10,000.00 would be deemed forfeited. Additionally, a forfeiture could result from a default of any term or condition of the lease, or from termination of the lease for any reason, or from a failure to purchase the property as provided for under the agreement.\\nOn July 19, 1988, Baro offered to modify the lease by extending the term of the lease to November 15,1988. Additionally, the rent from the first of August through the end of September would be fixed at $400.00, and then increased to $1,500.00 per month thereafter. The deadline for exercising the option remained at September 1, 1988. The lease agreement specified that any modification to the agreement was to be in writing and signed by the parties.\\nThe September 1, 1988 deadline passed without Mrs. Prejean exercising her option to purchase the property. She stopped paying rent as of October 1, 1988, but continued to occupy the premises. By letter dated October 27, 1988, Baro notified Mrs. Prejean that she was being put in default for failure to pay rent under the terms of the lease agreement.\\nBy letter dated November 5, 1988, Mrs. Prejean's attorney sought to renegotiate the purchase price of the property. In his letter it was claimed that extensive repairs were needed because there was a rotten beam supporting an upstairs deck. Baro responded by offering to reduce the purchase price by $20,000.00. Mrs. Prejean, again through her attorney, wrote Baro and advised that the repair costs might be as much as $25,-000.00, and offered to renegotiate the purchase price. Baro responded by offering to reduce the sales price by 25%, provided that Mrs. Prejean pay all past due rent, pay $20,000 of the purchase price by December 1, 1988, and close the sale by December 15, 1988.\\nBaro and Mrs. Prejean faded to reach a new agreement. Baro filed a rule to evict Mrs. Prejean on December 15, 1988. Mrs. Prejean filed a reconventional demand seeking the return of her $10,000.00 option price because of the alleged defect in the property. Baro then filed pleadings to recover all past due rent under the terms of the lease.\\nAfter trial on the merits, the trial judge held that Mrs. Prejean was entitled to the return of her option deposit, subject to an off-set of $2,000.00 for past due rent. This suspensive appeal followed.\\nTHE OPTION\\nBaro contends that the trial judge erred in rescinding the option and returning the $10,000.00 option price to Mrs. Prejean, notwithstanding the fact that she failed to exercise her option in a timely manner. We agree.\\nAn option is a unilateral contract whereby one party obligates himself to sell to another party a certain thing for a price, under certain terms and conditions, within a stipulated period of time. Ebrecht v. Ponchatoula Farm Bureau Association, Inc., 498 So.2d 55, 57 (La.App. 1st Cir.1986), writ denied, 501 So.2d 233 (La.1987). Additional ly, an option grants to a party an elective right that, when exercised, ripens into a binding contract to buy and sell. Major Commodity Corporation v. Cunningham, 555 So.2d 525, 527 (La.App. 4th Cir.1989). The grantee is free to accept or reject the offer or promise to sell of his own volition within the specified time period.\\nStatutorily, the option is governed by LSA-C.C. art. 2462 and reads in pertinent part:\\nOne may purchase the right, or option to accept or reject, within a stipulated time, an offer or promise to sell, after the purchase of such option, for any consideration therein stipulated, such offer, or promise can not be withdrawn before the time agreed upon; and should it be accepted within the time stipulated, the contract or agreement to sell, evidenced by such promise and acceptance, may be specifically enforced by either party.\\nThe record in the instant case clearly reflects that Baro obligated itself to sell to Mrs. Prejean, Lot 27-A of Joy's Riverway Estates in Livingston Parish, Louisiana, and that it would not withdraw the offer before the expiration of the option. The price was fixed at $130,000.00, and Mrs. Prejean had to accept or reject the offer on or before September 1, 1988. The language of the agreement was clear and unambiguous and was sufficient to put Mrs. Prejean on notice that should she fail to exercise her option on or before the stipulated date, she would forfeit her option to purchase. The September 1, 1988 expiration date passed without Mrs. Prejean notifying Baro that she was accepting the offer in accordance with the terms of the agreement. When this happened, the forfeiture took effect, and Baro was therefore entitled to keep the option money without applying it to any sales price.\\nWe believe that the trial judge erred as a matter of law and was clearly wrong when he ordered the return of the option price. Apparently, the trial judge reasoned that a rotten beam, which Mrs. Prejean cited as being one of the reasons why she decided not to exercise her option, was of such a nature that it would allow her to back out of the option agreement. However, in order for a defect to rise to the level of error necessary to vitiate consent, the error must be as to the principal cause for making the contract, and the cause was known or should have been known to the other party. LSA-C.C. art. 1949. Additionally, one must prove that the obligation would not have been incurred by a reasonable person who knew of the defective condition. See, Sigsworth v. Gernon, 465 So.2d 705, 707 (La.1985). We believe that Mrs. Prejean failed to establish that the defect was of such a nature that she would not have purchased the option had she known of the condition prior to June 6, 1988. The record bears out that Mrs. Prejean continued to live in the residence for some five months past the expiration of the date to exercise the option, and continued in her efforts to purchase the property, through her attorney, at a renegotiated price. Throughout the attempted renegotiations, Mrs. Prejean contended that the repairs to the rotten beam were going to cost anywhere from a low of $25,000.00 to a high of $40,000.00. However, the record reflects that the ultimate purchaser of the property repaired the defective condition for $4,300.00.\\nWe believe that Mrs. Prejean gambled and lost. She gambled that a renegotiated sales price for the property would be confected, and that she would be able to apply the $10,000.00 option price to the new deal, even though the option had expired. Because Mrs. Prejean failed to exercise her option in a timely fashion, she is not entitled to a return of her option price.\\nPAST DUE RENT\\nBaro further contends that it is entitled to collect past due rent based upon the terms of a written modification to the original agreement that was tendered to Mrs. Prejean. We disagree.\\nAlthough Mrs. Prejean testified that she verbally agreed with the modification agreement which was tendered to her, Baro is precluded from collecting the amounts set forth therein, because Article XII of the original lease agreement specified that any modifications to the lease agreement must be in writing and signed by the parties. Mrs. Prejean never signed the modification, and the new rental amounts never went into effect. Therefore, the trial judge was correct in granting judgment in favor of Baro for the sum of $2,000.00, based on five (5) months of past due rent at the rate of $400.00 per month, which was a reasonable rental in accordance with the terms of the original lease agreement.\\nFor the above and foregoing reasons, the judgment of the trial court is reversed as to the return of the option price, and affirmed as to the award for past due rents. All costs of this appeal are assessed against Helen Prejean.\\nAFFIRMED IN PART AND REVERSED IN PART.\"}"
la/7450354.json ADDED
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1
+ "{\"id\": \"7450354\", \"name\": \"STATE of Louisiana, v. Vincent SMITH\", \"name_abbreviation\": \"State v. Smith\", \"decision_date\": \"1996-01-30\", \"docket_number\": \"No. 95-KA-734\", \"first_page\": \"1260\", \"last_page\": \"1269\", \"citations\": \"668 So. 2d 1260\", \"volume\": \"668\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Louisiana Court of Appeal\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T23:20:45.742921+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before GOTHARD and CANNELLA, JJ., and REMY CHIASSON, J. Pro Tem.\", \"parties\": \"STATE of Louisiana, v. Vincent SMITH.\", \"head_matter\": \"STATE of Louisiana, v. Vincent SMITH.\\nNo. 95-KA-734.\\nCourt of Appeal of Louisiana, Fifth Circuit.\\nJan. 30, 1996.\\nJohn M. Mamoulides, District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, for Plaintiff/Appellee.\\nLinda Davis-Short, 24th Judicial District, Indigent Defender Board, Gretna, for Defendant/Appellant.\\nBefore GOTHARD and CANNELLA, JJ., and REMY CHIASSON, J. Pro Tem.\", \"word_count\": \"5088\", \"char_count\": \"31212\", \"text\": \"UGOTHARD, Judge.\\nDefendant, Vincent Smith, appeals his conviction and sentence for second degree murder. We affirm.\\nSmith was indicted by a Jefferson Parish Grand Jury on December 8, 1994 for second degree murder in violation of LSA-R.S. 14:30.1. He pled not guilty at his arraignment, and was subsequently tried by a jury on May 23, 24 and 25, 1995. At the conclusion of the trial, the jury found the defendant guilty as charged. On June 25, 1995, the court sentenced Smith to life imprisonment at hard labor -without benefit of probation, parole, or suspension of sentence, giving credit for time served. Defendant filed this appeal.\\nIsOn November 27, 1994, at about 4:30 a.m., the victim, Johnnie Mae Payne, and a friend, Mattie Lang, were returning home from an evening out. As they arrived at the apartment complex at 7525 Airline Highway, defendant, the victim's live-in boyfriend, was sitting outside. An argument began between defendant and the victim which continued after the two went inside the victim's apartment. The argument became loud enough to awakened Ms. Payne's children. During the course of the argument, Smith shot Payne.\\nOne of the victim's children, Quinton Payne, testified that he heard his mother telling defendant to get out of the house, to which defendant replied \\\"I'll kill you.\\\" Quinton further testified that after his mother replied \\\"shoot me then,\\\" he heard gunshots. Quinton looked out of his bedroom and saw his mother laying motionless on the floor. He then observed defendant bend over the victim and shoot her in the head.\\nAfter shooting the victim, the defendant went from the back part of the house to the front room. He pointed a gun at Shadrika Payne, the victim's daughter, and demanded the keys to the victim's pick-up truck. Smith threatened to shoot Shadrika also if she did not comply. Believing that her life was in danger, Shadrika gave defendant the keys. Defendant then opened the door and left the scene in the victim's white Ford pick-up truck.\\nAfter defendant left, the police were called to the scene. A broadcast giving a description of the suspect vehicle and naming the perpetrator as Vincent Smith went out over police radio. Deputy Henry Bonds, who was working a paid detail in the area at the time, observed the suspect vehicle on Airline Highway. After verifying the race of the subject, Officer Bonds stopped the vehicle at the intersection of pHolIygrove and Airline Highway. Deputy Edward Ducos of the Jefferson Parish Sheriffs Office, who was also working a paid detail, arrived on the scene.\\nWhen the driver identified himself as Vincent Smith, Officer Ducos advised him of his constitutional rights and inquired as to what happened. Defendant advised the officer that his girlfriend pulled a gun on him, that she fired a shot at him, that he got in a struggle with her to gain control of the gun, during which she was shot. The officer then inquired as to the whereabouts of the weapon, to which defendant replied that he threw it behind the seat. Officer Ducos checked behind the seat to verify the location of the gun, but did not remove it until the crime lab arrived to process the scene.\\nDefendant was thereafter transported to the detective bureau. After being fully advised of his rights and executing a waiver of rights form, defendant gave a taped statement to Detective Dennis Thornton. In defendant's statement, he claimed that he and the victim were arguing and that she told him to leave the apartment. As Smith was packing his clothes, Payne fired a shot. A struggle over the gun ensued during which it fired accidentally. Defendant then tripped over the victim, causing the gun to go off again.\\nIn addition to taking a statement from defendant, Detective Thornton spoke to other witnesses and gathered evidence about what had occurred. Based on the information received, Detective Thornton arrested defendant for the murder of Johnnie Mae Payne.\\nIn his first assignment of error defendant challenges the sufficiency of the evidence used to convict him of second degree murder, contending that the evidence warranted a verdict of manslaughter.\\n|5In State v. Burrow, 565 So.2d 972, 976 (La.App. 5 Cir.1990), writ denied, 572 So.2d 60 (La.1991), the court set forth the standard for testing the sufficiency of the evidence as follows:\\nThe constitutional standard for testing the sufficiency of the evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Rosiere, 488 So.2d 965 (La.1986); State v. Davis, 540 So.2d 600 ([La.App.] 5th Cir.1989). When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 mandates that, \\\"assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.\\\" The requirement of LSA-R.S. 15:438 does not establish a standard separate from the Jackson standard, but rather provides a helpful methodology for determining the existence of reasonable doubt. State v. Captville, 448 So.2d 676 (La.1984); State v. DiLosa, 529 So.2d 14 ([La.App.] 5th Cir. 1988), writ denied, 538 So.2d 1010 (La. 1989). Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Porretto, 468 So.2d 1142 (La.1985), dissenting opinion, 475 So.2d 314 (La.1985).\\nThe defendant was charged with and convicted of one count of second degree murder in violation of LSA-R.S. 14:30.1, which reads in pertinent part as follows:\\nA. Second degree murder is the killing of a human being:\\n(1) When the offender has a specific intent to kill or to inflict great bodily harm[.]\\nAccordingly, the state must show that the defendant killed the victim; and that the defendant had the specific intent to kill or to inflict great bodily harm. State v. Gibson, 529 So.2d 1347 (La.App. 5 Cir.1988), writ denied, 536 So.2d 1212 (La.1989).\\nIn the present ease, there was testimony that defendant shot the victim. Specifically, Quinton Payne testified that as the victim lay motionless on the floor, defendant approached with the gun, bent over her, and shot her in the head. In | (\\u00a1addition, there was expert testimony by Dr. Fraser Mac-Kenzie of the Jefferson Parish Coroner's Office that the victim died of gunshot wounds, and that the hypothetical scenario that this incident resulted in an accidental fashion because of two people struggling over the gun, would be inconsistent with his findings. Ms. Louise Walzer, an expert in firearms examination who tested the weapon, testified that the gun discharged only when the trigger was pulled and did not go off accidentally.\\nWe find the state presented sufficient evidence to show that defendant killed the victim and that defendant had the specific intent to kill or to inflict great bodily harm.\\nHowever, a homicide committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of self-control and cool reflection is manslaughter. LSA-R.S. 14:31. The presence of \\\"sudden passion\\\" or \\\"heat of blood\\\" distinguishes manslaughter from murder. State v. Thome, 93-859 (La.App. 5 Cir. 2/23/94), 633 So.2d 773; State v. Robinson, 598 So.2d 407 (La.App. 5 Cir.1992). \\\"Sudden passion\\\" and \\\"heat of blood\\\" are not elements of the offense of manslaughter; rather, they are mitigatory factors in the nature of a defense which exhibit a degree of culpability less than that present when the homicide is committed without them. State v. Thome, supra. When the preponderance of the evidence shows that a homicide was committed in \\\"sudden passion\\\" or \\\"heat of blood\\\" which would have deprived an average person of his self control and cool reflections, a jury errs in rendering a verdict of second degree murder. State ex rel. Lawrence v. Smith, 571 So.2d 133, 136 (La.1990), appeal after remand, 584 So.2d 334 (La.App. 3 Cir. 1991), writ denied, 586 So.2d 566 (La.1991); State v. Robinson, supra.\\n|7In reviewing a claim that defendant proved the presence of the mitigating factors by a preponderance of the evidence, the appellate court must determine whether a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found that the mitigatory factors were not established by a preponderance of the evidence. State v. Thome, supra; State v. Robinson, supra.\\nDefendant argues that the evidence showed by a preponderance of the evidence that the mitigating factors of heat of blood and sudden passion were present. Defendant points to the facts that he and the victim were involved in a heated argument, the victim arrived sitting next to another man in the back seat, and that there was a knife found in the bedroom where the shooting occurred.\\nHowever, the evidence presented does not support defendant's argument that heat of blood and sudden passion were present. While the testimony clearly established that defendant and the victim were in a heated argument, defendant himself indicated that he and the victim argued often, and routinely separated only to reconcile shortly afterward. Moreover, while a knife was found in the bedroom, there was no testimony indicating that the victim threatened defendant with the knife. Further, the testimony suggests that at one point the argument calmed down but then escalated again. Thus, viewing the evidence in the light most favorable to the prosecution, it appears that the jury could have reasonably found that the mitigatory factors were not established by a preponderance of the evidence. See State v. Copeland, 93-544 (La.App. 5 Cir. 1/25/94), 631 So.2d 1223, writ denied, 94-0417 (La. 5/20/94), 637 So.2d 477. We find this assignment to be without merit.\\nIn his second assignment of error, defendant asserts the trial court erred in denying a defense motion for mistrial. At trial, defendant testified in his own behalf Rand on direct examination admitted to several prior convictions: simple robbery, aggravated battery, possession of cocaine, car burglary, and assault and battery. During the cross-examination of defendant by one of the prosecuting attorneys, the following exchange took place:\\nQ. And you said, as you were waiting for her to come home, you felt hurt and used, right?\\nA. Um-hum (affirmative response).\\nQ. All right. Let me ask you, Mr. Smith, on April 22nd, 1985, do you think that\\nByron Alexander felt hurt and used when you robbed him and pistol\\u2014\\nMS. SCHLOSSER:\\nUh, objection\\u2014\\nMR. OLINDE: whipped him\\u2014\\nMS. SCHLOSSER:\\nYour Honor.\\nMR. OLINDE: for forty dollars?\\nMS. SCHLOSSER:\\nObjection.\\nTHE COURT:\\nSustained.\\nMR. OLINDE:\\nThat's part of a conviction, Judge\\nMS. SCHLOSSER:\\nObjection!\\nIsTHE COURT:\\nSustained.\\nMR. OLINDE:\\nWere you not convicted\\u2014\\nTHE COURT:\\nIt is\\u2014\\nMS. SCHLOSSER:\\nMistrial!\\nTHE COURT: sustained!\\nTHE COURT:\\nIt is sustained, Mr. Olinde.\\nMR. OLINDE:\\nI can't ask him about the conviction, Judge?\\nMS. SCHLOSSER:\\nMistrial!\\nTHE COURT:\\nCome on up, counsel.\\n(The following conversation occurred at the Bench, out of earshot of the jury.) THE COURT:\\nNo, you cannot. He admitted it. You cannot go into the facts, once they admit it. MS. SCHLOSSER:\\nMistrial.\\nJioMR. OLINDE:\\nI'm not asking\\u2014\\nTHE COURT:\\nI'm denying\\u2014\\nMR. WILSON:\\nIt's not a mistrial.\\nTHE COURT:\\na mistrial.\\nMR. WILSON:\\nIt's the Bill of Information.\\nTHE COURT:\\nI'm not \\u2014 just lay off of it. He's admitted it. You can't go any further into it, and I'm not granting a mistrial.\\nMS. SCHLOSSER:\\nOkay. Let me make this request, then. THE COURT:\\nWait, counsel.\\nMS. SCHLOSSER:\\nI just want the record to reflect that I requested a mistrial over this.\\nTHE COURT:\\nOkay.\\nMS. SCHLOSSER:\\nOkay\\u2014\\nTHE COURT:\\nAnd I denied it.\\n| nAfter the trial judge denied the motion for mistrial, defense counsel requested the judge to instruct the jury that convictions are to be used for credibility only. When the judge thereafter charged the jury, she told them that: \\\"Prior convictions may be used only to consider the credibility of a witness, and for no other purpose.\\\"\\nDefendant now complains that the trial judge erred in denying his motion for mistrial. Defendant specifically contends that inasmuch as defendant admitted his conviction, the reference to the facts of that conviction was inadmissible and highly prejudicial. On the other hand, the state contends that defendant's argument is without merit as the trial judge maintained the objection and prevented the prosecution from delving further into the simple robbery by pistol whipping.\\nDefendant relies on LSA-C.Cr.P. art. 770 to support his argument that a mistrial is warranted. That article provides, in pertinent part, as follows:\\nUpon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:\\n(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;\\n#\\nAn admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.\\nPursuant to LSA-C.Cr.P. art. 770(2), the state is prohibited from referring to other crimes committed by defendant as to which evidence is not admissible. We do not find that article applicable to the instant situation because evidence of defendant's prior convictions is admissible pursuant to LSA-C.E. art. 609.1, which reads in part as follows:\\n11\\u00beA. General criminal rule. In a criminal case, every witness by testifying subjects himself to examination relative to his criminal convictions, subject to limitations set forth below.\\nB. Convictions. Generally, only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an acquittal.\\nAlthough actual convictions are admissible, the details of such convictions are generally not admissible as shown by LSA-C.E. art. 609.1 C which reads as follows:\\nC. Details of convictions. Ordinarily, only the fact of a conviction, the name of the offense, the date thereof, and the sentence imposed is admissible. However, details of the offense may become admissible to show the true nature of the offense:\\n(1) When the witness has denied the conviction or denied recollection thereof;\\n(2) When the witness has testified to exculpatory facts or circumstances surrounding the conviction; or\\n(8) When the probative value thereof outweighs the danger of unfair prejudice, confusion of the issues, or misleading the jury.\\nIn the present ease, defendant admitted the conviction on direct examination and therefore, the details of the offense were not admissible. When the prosecutor tried to delve into the details of one of defendant's convictions, the trial judge sustained the defense objection and did not allow the prosecutor to pursue that line of questioning. Further, we note that it was defense counsel during direct examination, who brought up the fact of defendant's conviction, which defendant admitted. Thus, we find defendant's complaint in this regard without merit.\\nIn the third assignment defendant argues the trial court erred in denying a motion to suppress his statements.\\nOn December 19, 1994, defendant filed a Motion to Suppress Confession alleging that the statements made to the police officers were not freely and | ^voluntarily given but were made under the influence of fear, intim-idations, threats or other duress, or because of promises or other inducements. In his motion, defendant also alleged that he \\\"had not been advised of his rights under Miranda, or had invoked his right to remain silent or to have an attorney and this right had not been honored.\\\"\\nAt the April 7, 1995 suppression hearing, Deputy Edward Ducos of the Jefferson Parish Sheriffs Office testified that on November 27, 1994, in the early morning hours, he was working a paid security detail at the Metairie Country Club. At approximately 4:30 a.m., he heard a police broadcast about a 1980 white Ford pickup, driven by Vincent Smith, who was wanted for a shooting that occurred at 7525 Airline Highway. Henry Bonds, who was working the detail with Officer Ducos, checked the south side of the golf course. Bonds advised headquarters that he sighted such a truck and asked for the race of the person involved in the shooting. When headquarters advised that it was a black male, Bonds notified them that he had the possible vehicle. At that point, Officer Ducos proceeded towards Officer Bonds who had stopped the vehicle at Hollygrove and Airline Highway. After the driver identified himself as Vincent Smith, Deputy Ducos advised defendant of his constitutional rights and asked him what happened. In response to the officer's inquiry, defendant stated that he went to a barroom to meet his live-in girlfriend; however, when she was not there, he returned to his apartment. The girlfriend arrived later with two other men and asked him to leave. At that time, the girlfriend pulled a gun out and shot at him. They struggled over the weapon, and he shot her. In response to the officer's question, the defendant advised him that he threw the gun behind the seat. After the officers handcuffed defendant, they moved the seat forward and observed a black steel nine millimeter pistol. The officers left the gun |i4in that location until the crime lab arrived. Defendant was placed in the police unit and brought to the detective bureau.\\nRegarding the issue of whether the defendant was properly informed of his constitutional rights, Deputy Ducos testified that he read defendant his Miranda rights using the card that he carries with him. According to the officer, defendant indicated that he was a career criminal and that he understood those rights. The officer also testified that defendant waived his rights prior to making his oral statement. Deputy Ducos further testified that he did not force, threaten, coerce or intimidate defendant into making a statement, nor did the officer promise or offer defendant any inducement or reward for making the statement. According to the officer, defendant made the statement freely and voluntarily and did not appear to be intoxicated.\\nDetective Dennis Thornton of the Jefferson Parish Sheriffs Office testified as to his participation in the investigation. On November 27, 1994, he executed a waiver of rights form with defendant. Thornton testified that he explained the rights that were listed on the form, that defendant placed his initials next to each stated right, and that defendant indicated he understood the rights that were read to him. Subsequent to the execution of this form, defendant gave a taped statement to the officer. According to Detective Thornton, no one forced, threatened or coerced defendant into making this statement, nor did anyone offer him any promises or inducements. The detective further testified that defendant gave the state ment freely and voluntarily and did not appear to be under the influence of any sort of intoxicant at the time. In addition, the officer testified that at no time did defendant state that he was hard of hearing or that he could not understand what was being explained to him.\\nhgAfter listening to the testimony presented, the trial judge denied the motion to suppress both statements, expressing her belief that they were freely and voluntarily given.\\nDefendant now contends that the statements were not freely and voluntarily given because the officers played \\\"mind games\\\" with him and made him feel pressured into giving a statement.\\nIn State v. Leeming, 612 So.2d 308, 311\\u2014 312 (La.App. 5 Cir.1992), writ denied, 616 So.2d 681 (La.1993), this court set forth the law regarding the admissibility of a confession as follows:\\nBefore a confession can be introduced into evidence, the State has the burden of proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises, [footnote omitted] LSA-C.Cr.P. art. 703(D); LSA-R.S. 15:451; State v. Vaccaro, 411 So.2d 415 (La.1982). It must also be established that an accused who makes a confession during a custodial interrogation was first advised of his constitutional rights as per Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966) and voluntarily and intelligently waived those rights. State v. Castillo, 389 So.2d 1307 (La.1980), cert, denied, 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d 1004 (1981); State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990).\\n\\u215c \\u215c \\u215c # \\u215c \\u215c\\nThe issue of whether a showing of volun-tariness has been made is analyzed on a case by ease basis with regard to the facts and circumstances of each case. The trial judge must consider the \\\"totality of the circumstances\\\" in deciding whether the confession is admissible. State v. Shepherd, 449 So.2d 1120, 1123 (La.App. 5th Cir.1984). The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of testimony relating to the voluntariness of a confession are entitled to great weight and will not be overturned on appeal unless they are not supported by the evidence. State v. Be-noit, 440 So.2d 129 (La.1983); State v. Weiland, supra; State v. Delaune, 572 So.2d 652 (La.App. 5th Cir.1990).\\nIn the present case it appears that the state, through the testimony of the police officers, proved that defendant's statement was freely and voluntarily given |if,and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. The testimony at the suppression hearing that the officer read and explained to defendant his constitutional rights, and that defendant decided to waive those rights and give a statement, was undisputed. In addition, the testimony adduced at trial showed that defendant indicated he understood those rights and wished to waive them. It is also noted that defendant did not object at trial to the introduction of the waiver of rights form or the transcribed copy of the statement.\\nWe conclude that defendant was properly advised of his rights and waived them before giving a free and voluntary statement. Accordingly, the trial judge properly denied defendant's motion to suppress. This assignment is without merit.\\nIn his next assignment defendant argues the trial court erred in applying R.S. 15:283 . In the present case, the prosecutor, during the course of the trial, made a motion that Quinton Payne, a twelve-year-old witness, be allowed to testify unseen by defendant. In arguing the merits of the motion, the prosecutor asked the court to consider that the witness is a twelve-year-old child who witnessed his mother being shot in the head by the defendant. The prosecutor also informed the court that the witness entered the courtroom earlier and was so traumatized by the sight of the defendant he was unable to talk for a while. It also appears from the prosecutor's statement, that Quinton witnessed the murder of his cousin, James Darby, six months earlier. Defense counsel objected to the state's motion on the basis of the confrontation clause, arguing that the accused has a right to face his accusers.\\nAfter arguments by counsel, the judge, using LSA-R.S. 15:283 for guidance, granted the state's motion and allowed that the chair for this witness be placed next Irrto the bench. Defendant now contends that the trial judge's ruling violated his right to confront his accusers as guaranteed under the provisions of the Sixth Amendment to the United States Constitution and the Louisiana Constitution, Art. 1, Sec. 16. Defendant also contends that the trial court erred in applying LSA-R.S. 15:283 in a situation where the child witness was not the victim of the crime and there was no proof of the necessity for the child to testify from a position other than the witness chair.\\nThe Sixth Amendment to the United States Constitution guarantees that \\\"[i]n all criminal prosecutions, the accused shall enjoy the right . to be confronted with the witnesses against him.\\\" In Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), the federal right to confrontation was made binding on the states through the Fourteenth Amendment. In addition, Article I, \\u00a7 16 of the Louisiana Constitution of 1974 guarantees an accused in a criminal prosecution the right to be confronted with the witnesses against him. See also LSA-R.S. 15:273 which provides, in part, that \\\"[t]he accused shall have the right to be confronted with the witnesses against him....\\\"\\nIn State v. Racca, 525 So.2d 1229, 1231 (LaApp. 1 Cir.1988), the court discussed the purpose behind the confrontation clause, stating as follows:\\nThe Court set forth the purposes underlying the constitutional right of confrontation in California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970). Therein, the Court noted the purposes protected by that right are as follows: (1) to insure that the witness will give his statements under oath, thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) to force the witness to submit to cross-examination, the \\\"greatest legal engine ever invented for the discovery of truth\\\"; (3) to permit the jury that is to decide the defendant's fate [the opportunity] to observe the demeanor of the witness making his statement, thus aiding the jury in assessing his credibility. See also State v. Kaufman, 304 So.2d 300 (La.1974), U.S. cert, denied, 429 U.S. 981, 97 S.Ct. 495, 50 L.Ed.2d 591 (1976).\\nIisln State v. Roberts, 541 So.2d 961 (La. App. 2 Cir.1989), the court stated that confrontation means a face-to-face meeting between witness and defendant. However, the court noted that this right is not absolute, but is subject to the inherent power of courts to conduct criminal proceedings in a dignified, orderly and expeditious manner.\\nIn State v. Daniels, 484 So.2d 941, 944 (LaApp. 1 Cir.1986), which the state cites in its brief, the court stated the following:\\nLa.R.S. 15:283 preserves the essential elements of confrontation \\u2014 the oath, the opportunity to observe the witness' demean- or, and the right to cross-examine. These elements provide \\\"all that the Sixth Amendment demands: 'substantial compliance with the purposes behind the confrontation requirement.'\\\" Ohio v. Roberts, 448 U.S. 56, 69, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (quoting California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)). The defendant's right to confront the child face to face during the child's testimony is not critical to the purposes of cross-examination. As long as the defendant can hear the child's testimony and can confer with her attorney, the essential safeguards of cross-examination are preserved. Admittedly, the United States Supreme Court has used the words \\\"face to face\\\" to describe the guarantee of the confrontation clause. Snyder v. Massachu setts, 291 U.S. 97,106, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934); Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895). However, this language supports the right of cross-examination rather than of physical confrontation per se and the court's choice of words may have resulted from its inability to foresee technological developments permitting cross-examination without physical presence. See Note, 98 Harv.L.Rev. 806, 823 (1985). The Constitution mandates confrontation, not intimidation. In the child-victim case where all elements of confrontation are preserved except the ability of the witness to see the defendant and the jury, the constitutional mandate is satisfied.\\nIn the present case, there is nothing to indicate that defendant was deprived, in any way, of his right to confront his accusers. The witness was in the courtroom, but was located in such a position that he could not directly see defendant. It appears, however, that defendant had a view of the witness, heard all of his | ^testimony and was given a right to full cross-examination. Moreover, the trial judge's comments on the record support the position that defendant was not denied his right to confrontation in any way. Particularly, on June 30,1995, the trial judge had defendant brought to court solely to make the following comments on the record:\\nAll right, Mr. Smith, I meant, when I sentenced you, to make a comment for the record, because I know it's going up on appeal, and I want this part to go up, too, Patty; when Quentin Payne testified, we moved him from the normal witness area in my courtroom to an area directly beside my desk and below. I want the record to reflect that, while he was not directly in front of Mr. Smith, he was able to see him \\u2014 Mr. Smith was able to see Quentin Payne, so I don't think the right to confrontation was abridged in any way. I don't know whether that will appear in the record Quentin Payne, when asked to identify, was able to directly look to his side and see the defendant, Vincent Smith, and point at him and identify him. But I wanted to be very clear, for the record, that there was viewing between the two. Okay, that's the only reason I brought him over today. Thank you.\\nGiven the facts of this case, we do not find merit in the defendant's argument that his constitutional rights to confrontation were violated by the actions of the trial court.\\nIn his final assignment of error, defendant requests a review of the record for errors patent in accordance with LSA-C.Cr.P. art. 920 and State v. Oliveaux, 312 So.2d 337 (La.1975). We have conducted such a review and find no errors patent.\\nFor the foregoing reasons, the conviction and sentence are affirmed.\\nAFFIRMED.\\n. It is noted that defendant's appeal motion was filed prior to the time he was sentenced. However, the prematurity of the motion was cured by defendant's subsequent sentencing. See State v. Waldron, 482 So.2d 163 (La.App. 4th Cir.1986).\\n. LSA-R.S. 15:283 concerns testimony by victims of child abuse and allows such testimony to be taken in a room other than the courtroom.\\n. Although the court, in Daniels, was discussing LSA-R.S. 15:283, the language employed by the court is helpful in understanding an accused's right to confrontation.\"}"
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+ "{\"id\": \"7469792\", \"name\": \"STATE of Louisiana, Appellee, v. Richard Allen COLE, Sr., Defendant-Appellant\", \"name_abbreviation\": \"State v. Cole\", \"decision_date\": \"1995-02-01\", \"docket_number\": \"No. CR 94-1070\", \"first_page\": \"1214\", \"last_page\": \"1220\", \"citations\": \"649 So. 2d 1214\", \"volume\": \"649\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Louisiana Court of Appeal\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T23:30:25.017254+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before DOUCET, C.J., and THIBODEAUX and SULLIVAN, JJ.\", \"parties\": \"STATE of Louisiana, Appellee, v. Richard Allen COLE, Sr., Defendant-Appellant.\", \"head_matter\": \"STATE of Louisiana, Appellee, v. Richard Allen COLE, Sr., Defendant-Appellant.\\nNo. CR 94-1070.\\nCourt of Appeal of Louisiana, Third Circuit.\\nFeb. 1, 1995.\\nRehearing Denied March 17, 1994.\\nMonique Yvette Metoyer, Alexandria, for State.\\nJoseph Richard Kuteh, Pineville, for Richard Allen Cole Sr.\\nBefore DOUCET, C.J., and THIBODEAUX and SULLIVAN, JJ.\", \"word_count\": \"3372\", \"char_count\": \"19948\", \"text\": \"JiDOUCET, Chief Judge.\\nPROCEDURAL HISTORY\\nOn September 14, 1993, defendant was charged by bill of information with one count of theft over five hundred dollars and one count of possession of stolen goods over five hundred dollars. On September 24, 1993, defendant entered a plea of not guilty to all charges. The theft charge was dropped by the state on January 11,1994. The first trial on the possession of stolen goods charge began on February 22, 1994, with a mistrial based on a hung jury being declared the next day. A new trial was held and on May 18, 1994; the jury found the defendant guilty. Finally, on June 17, 1994, defendant was tried and adjudged a second habitual offender. Defendant was then sentenced to seventy-two months at hard labor without benefit of probation or suspension of sentence. Defendant now appeals alleging three assignments of error.\\nFACTS:\\nDefendant Richard Cole and victim Louise Landry met in mid-September of 1992. Subsequent to that meeting, an intimate relationship developed between the two. According to Louise, the relationship became a friendship two weeks after the initial meeting. Richard went to Louise's home on various occasions following the initial meeting. Richard's brother, Clifford, ^accompanied Richard to Louise's on two or three occasions. Within days or hours following some of the visits, Louise found various items missing from her home, including two rings, some silverware, a handgun, tools and a toolbox. The items became missing at different times over a period of several months. Louise wrote Richard a letter asking him to return the rings and the pistol; one of the rings was then mailed to her. The pistol was returned to her by being placed under a bush outside her house.' The silverware and the tools were' never retrieved.\\nERRORS PATENT:\\nLa.C.Cr.P. art. 920 provides as follows:\\nThe following matters and no others shall be considered on appeal:\\n(1) An error designated in the assignment of errors; and\\n(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.\\nA review of the record reveals one error patent. It concerns defendant's habitual offender hearing. Defendant admitted his guilt as a habitual offender. Under La. R.S. 15:529.1(D)(1) and State v. Walker, 432 So.2d 1057 (La.App. 3 Cir.1983), he should have been informed of his right to remain silent and have the state prove its ease. In Walker, supra, the trial court's failure to comply with La.R.S. 15:529.1(D)(1) resulted in this court's remand of the case for another multiple offender hearing. The trial judge failed to do so in this case.\\nHowever, the transcript of the hearing reveals that when the court began the habitual offender hearing, the defendant's own attorney inquired of the defendant if he had any objection to admitting that he was the same Richard Cole, Sr. in the prior proceedings which formed the basis of his \\\"habitual offender\\\" status. The defendant stated that he had no objection to such admission.\\nMoreover, if evidence is introduced to establish the prior convictions, the error is not reversible. State v. Mallett, 552 So.2d 28 (La.App. 3 Cir.1989), writs denied 556 So.2d 1258 and 558 So.2d 567 (La.1990). In the case sub judice, evidence was introduced of Cole's prior convictions. The state introduced certified copies of various convictions, and the court accepted one from Catahoula Parish. Defense did not object to the validity of the conviction. Because evidence was introduced to establish the prior conviction, the trial court's failure to comply with La. R.S. 15:529.1(D)(1) does not require remand of the case. Defendant was properly sen- teneed after being correctly adjudged a multiple offender.\\n| ^ASSIGNMENT OF ERROR NO. 1:\\nBy defendant's first assignment of error, he claims insufficiency of the evidence. As to appellant's argument that the verdict is not supported by the evidence adduced, it is well settled that when the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore the appellate court should not second guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, supra, citing State v. Richardson, 425 So.2d 1228 (La.1983).\\nIn order for the state to obtain a conviction, it must prove all the elements of the crime beyond a reasonable doubt. Defendant was charged with possession of stolen goods over five hundred dollars, a violation of La.R.S. 14:69(A) and (B)(1), which read:\\nA. Illegal possession of stolen things is the intentional possessing, procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses, [and]\\nB. (1) Whoever commits the crime of illegal possession of stolen things, when the value of the things is five hundred dollars or more, shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.\\nThe elements of the crime are: 1) intentional possessing, procuring, receiving or concealing, of 2) anything of value,; 3) which has been the subject of any robbery or theft, 4) where circumstances indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses and 5) the value of the items stolen exceeds five hundred dollars. Defendant claims the evidence was lacking to satisfy most of the elements. Our review of the trial transcript, including the various witnesses' testimonies indicates otherwise.\\nDetective Keith Perkins of the Rap-ides Parish Sheriffs Office testified he interviewed the victim Louise Landry and Clifford Cole, brother of the defendant Richard Cole. Perkins said that both of them were sober and were able to readily answer questions posed to them.\\nUClifford Cole, who was called by the state, identified the defendant as his brother, Richard Cole. Clifford stated that he went to Louise Landry's home on only two or three occasions, and that he was with his brother Richard on all of the visits. Clifford testified that while he had access to all the rooms in her house during visits, he only went into the den, the bathroom and the spa. He stated that on the third visit to the house he stayed outside because he was helping his brother Richard clean out Louise Landry's tool shed. He said Landry told them they could take the tool box and she watched them put it in the truck. Concerning the silverware Landry found missing, Clifford testified he was not aware Landry owned silverware until he was told by Detective Perkins she was missing it. The prosecutor then impeached Clifford by reading from a previous statement he had made to Detective Perkins on August 6, 1993. When asked by Perkins if he ever saw the silverware, Clifford replied that Richard had told him he sold the silverware at a flea market. Clifford said on the stand he lied during the interview with Perkins, and the contents of the statement were untrue. Clifford stated on the stand he had addressed an envelope for Richard to Louise Landry but he did not know Richard sent a ring back to her. The prosecutor once again referred to Clifford's previous statement to Perkins. In the statement Clifford said he was told by Richard that he wanted to get the ring back to Landry but he did not want to give it to her so he mailed it back to her. Once again, when confronted by the prosecution about the inconsistency of the two statements, Clifford said the previous statement to Perkins was a he because he did not have any knowledge of Richard mailing the ring back to Louise Landry. Clifford also told the prosecutor he never saw the ring and he never told Perkins the ring was yellow gold. The prosecutor read the section of the statement in which Clifford described the ring as yellow gold. Clifford then claimed he was inebriated when he gave the statement to Detective Perkins.\\nOn cross-examination, Clifford stated that on one of the instances of visiting Landry's house he had entered Landry's bedroom and awakened Richard. He also stated that his testimony for the state was part of his plea bargain agreement with the state, and he told Detective Perkins what he wanted to hear during the statement so he could get bond.\\nLouise Landry identified the defendant Richard Cole. Landry testified that the pistol that was found missing had been kept on a shelf of a nightstand that had a skirt over it. Landry testified that, besides herself, Richard was the only person who knew where the pistol was kept. She testified Richard came to her home on a Thursday night and wanted to visit. Landry refused him and then he Rasked if he could borrow a shotgun to take his son squirrel hunting. Landry said she let him in and then he went and got his brother Robert who was waiting in the car. Landry and Richard went to the storage room where the shotgun was and then Richard said he had to use the bathroom. Landry and Robert sat and talked during this time. Richard returned and said, \\\"I have to go, I have to go.\\\" Landry says she noticed he was fidgety and antsy. After they left, Landry went to bed, but the next morning she thought something was not right. She went to cheek the pistol and it was gone. Then she checked her jewelry box and found the two rings were missing. Landry said after she noticed the two rings missing she wrote Richard Cole a letter explaining what the rings meant to her and that she would be grateful if he returned them and the pistol to her. She says she slipped the note under his door and then ran errands. When she returned home the phone was ringing; it was Richard. Landry said Richard told her the pistol was on the side of the garage. She then asked him about the jewelry and he said he knew nothing about it. Landry said the yellow gold wedding band was sent anonymously to her in the mail. She said Richard returned the pistol by placing it under a bush near her house.\\nLandry testified the silverware, the tools and toolbox turned up missing after Clifford and Richard had been at the house helping her clean the utility shed. They both had unaccompanied access to the house. Landry said she was in the utility shed talking with each of them one at a time. She said they always made sure one of them was in the utility shed with her. Landry said she could not see the back door of her house nor the gate to the driveway from the utility shed. She testified Richard was the only one who knew she kept her silver in that drawer. Landry also testified as to the value of the silverware, the rings, the tools and the tool box. She said the silverware was appraised at about ninety-two hundred to ten thousand dollars, and she paid one hundred twenty-five dollars for the wedding band and three hundred eighty-nine dollars for the turquoise ring. She testified the tool box cost seventy-nine dollars and the tools cost forty-five dollars. Landry did not testify to the value of the gun. The stolen items exceeded the five hundred dollar requirement of the statute.\\nWe find that viewing the evidence in the light most favorable to the prosecution, a reasonable jury could have found sufficient evidence to find defendant guilty beyond a reasonable doubt. Clifford's testimony was impeached, and the jury may have found Landry and Officer Perkins more credible. Accordingly this assignment of error lacks merit.\\nASSIGNMENT OF ERROR NO. 2:\\nIsBy this assignment of error defendant contends Landry's testimony as to the value of the tool set and the silverware were hearsay under La.Code Evid. art. 801. De fendant contends Landry rightfully testified about the value of the rings because she paid for them. The value of the gun is not in issue because Landry testified that she had no idea about the value of the gun.\\nLa.Code Evid. art. 801(C) states:\\nC. Hearsay. \\\"Hearsay\\\" is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.\\nAlthough defendant does not refer to any other evidence articles in his brief, staff assumes he makes his argument in conjunction with La.Code Evid. art. 802 which makes hearsay inadmissible. In State v. Lambert, 475 So.2d 791 (La.App. 3 Cir.1985), writ denied, 481 So.2d 1345 (La.1986), this court was faced with a similar claim by a defendant. In Lambert, the victims testified as to the value of stolen items including a gun and replacement of and responsibility for a stolen credit card. The defendant claimed these testimonies were hearsay. The court held the victims' testimony constituted their personal knowledge and was thus admissible. Lambert, 475 So.2d at 794. Landry had the silver appraised so she could have personal knowledge of the amount of the silver. Thus, her testimony stemmed from personal knowledge and was not inadmissible hearsay.\\nIn State v. Hoskin, 605 So.2d 650 (La.App. 4 Cir.1992), a possession of stolen goods case, the court held the owner's testimony as to the value of the stolen goods was sufficient if it was clear and uncontradicted. Landry had the silverware appraised and testified based upon that appraisal. The defense could have brought up the value of the silver on cross-examination if he wanted to impeach or contradict Landry's testimony. Additionally, he could have subpoenaed the appraiser from the store where Landry had the jewelry appraised. The defense chose to do neither and so Landry's testimony was clear and uncontradicted as required by Hoskins. Staff submits Landry's testimony as to the value of the silverware was sufficient and correctly admitted.\\nAs to the tool box and the sprocket set, nothing in the transcript indicates Landry did not pay for these items. Landry was asked what she paid for the items and she responded with what she thought the prices for the items were. The defense did not cross her on the topic of her knowledge of the tools and tool box or whether she had purchased them. The defendant claims that Landry's answer was hearsay, yet he presented no contradictory evidence to show Landry did not testify from personal knowledge. Based on Hoskins, supra, Landry's testimony was sufficient because it was clear |7and uncontradicted. Staff submits Landry's values for the tools and tool box were properly admitted as they were not hearsay.\\nBecause Landry's testimony as to the value of the silver, the tools and the tool box resulted from her personal knowledge, it did not constitute hearsay. Hence it was properly admitted into evidence. Thus this assignment of error also lacks merit.\\nASSIGNMENT OF ERROR NO. 3:\\nDefendant contends in his third assignment of error the testimonies of Louise Landry and Clifford Cole made references to other crimes and a mistrial should have been declared based on these references. Defendant refers to a bench conference held during trial at which time defense counsel objected to Landry's testimony regarding the tool box and some tools. Landry stated the Coles were at her house, helping her clean out a utility shed. They asked if they could have the tools and toolbox and she told them no. Landry then testified, without further prompting from the prosecution, that the Coles \\\"took all of that regardless.\\\" Defendant's objection was based on his belief that Landry's answer was evidence of another crime, either theft or unauthorized use of a moveable. The judge did not grant a mistrial saying the testimony did not make a strong reference or point to Richard Cole being guilty of theft. The judge did caution Landry to be careful not to give the impression Richard Cole stole anything. La.Code Evid. art. 404(B)(1) states:\\nB. Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.\\nAlthough Landry's comment that the Coles took the tool box and tools was evidence of another crime, it was properly admitted because it related to conduct that constituted an integral part of the act or transaction that was the subject of the proceeding. That the goods in issue were stolen is an element of the crime of possession of stolen goods. If the Coles were authorized to take the tool box and tools, then the goods were not stolen. If the goods were not stolen then one of the elements of the crime is lacking. The reference to the Coles taking the tools and tool box was not offered to depict the defendant as a bad man but was admissible because it helped to prove that the goods were stolen, and this fact was an integral part of the crime for which the defendant was being prosecuted. Thus, the trial judge's decision to forego granting a mistrial was proper.\\nIgDuring Clifford's testimony he was asked by the prosecution whether he recalled testifying previously that he had gone to Landry's home with Richard Cole. Defense objected to the prosecutor's question arguing it made reference to a prior trial. The judge overruled the objection saying it did not make reference to another trial. La.Code Crim.P. art. 770(2) states:\\nUpon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:\\n\\u215c *\\n(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;\\n\\u215d # \\u215c * \\u215c \\u215c\\nThe prosecutor's question was whether Clifford had previously testified that he had gone to Landry's home with Richard. This question does not refer to another crime alleged to have been committed by the defendant, rather he question concerns Clifford testifying previously about something he did, that is, going to Landry's home. There is no indication that Clifford previously testified in a trial for a crime which Richard committed. The trial judge's denial of a mistrial based on this objection was proper.\\nCONCLUSION:\\nIt is clear that sufficient evidence existed for a reasonable jury to have found defendant guilty of possession of stolen goods. The value of the stolen items was properly proven through the testimony of the owner. Although Clifford Cole and Louise Landry's testimony established that the missing property had been stolen, it did not contain evidence of other crimes warranting a mistrial. Accordingly, defendant's assignments of error are without merit and the trial judge's decision is affirmed.\\nAFFIRMED.\"}"
la/7488461.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"7488461\", \"name\": \"Harold BROWN v. STATE of Louisiana\", \"name_abbreviation\": \"Brown v. State\", \"decision_date\": \"1992-12-21\", \"docket_number\": \"No. 91-KH-2859\", \"first_page\": \"252\", \"last_page\": \"252\", \"citations\": \"609 So. 2d 252\", \"volume\": \"609\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T19:06:11.503551+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Harold BROWN v. STATE of Louisiana.\", \"head_matter\": \"Harold BROWN v. STATE of Louisiana.\\nNo. 91-KH-2859.\\nSupreme Court of Louisiana.\\nDec. 21, 1992.\", \"word_count\": \"80\", \"char_count\": \"516\", \"text\": \"In re Brown, Harold; \\u2014 Plaintiff(s); applying for supervisory and/or remedial writs; to the Court of Appeal, Fourth Circuit, No. 91KW-2071; Parish of Orleans, Criminal District Court, Div. \\\"F\\\", No. 303-482.\\nDenied. Relator has failed to carry his burden of proving that the five-year cleansing period of La.R.S. 15:529.1(C) prohibited the lower court's finding that he is a fourth felony offender. La.C.Cr.P. art. 930.2.\"}"
la/7488979.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"7488979\", \"name\": \"Barbara Wilkinson SPILLMAN, William P. Raborn, Trustee and the Barbara Wilkinson Spillman Trust v. Earl Wayne SPILLMAN\", \"name_abbreviation\": \"Spillman v. Spillman\", \"decision_date\": \"1993-05-21\", \"docket_number\": \"No. 93-C-0931\", \"first_page\": \"1182\", \"last_page\": \"1182\", \"citations\": \"617 So. 2d 1182\", \"volume\": \"617\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Louisiana Supreme Court\", \"jurisdiction\": \"Louisiana\", \"last_updated\": \"2021-08-10T21:56:58.966548+00:00\", \"provenance\": \"CAP\", \"judges\": \"CALOGERO, C.J., and DENNIS and ORTIQUE, JJ., would grant the writ.\", \"parties\": \"Barbara Wilkinson SPILLMAN, William P. Raborn, Trustee and the Barbara Wilkinson Spillman Trust v. Earl Wayne SPILLMAN.\", \"head_matter\": \"Barbara Wilkinson SPILLMAN, William P. Raborn, Trustee and the Barbara Wilkinson Spillman Trust v. Earl Wayne SPILLMAN.\\nNo. 93-C-0931.\\nSupreme Court of Louisiana.\\nMay 21, 1993.\", \"word_count\": \"79\", \"char_count\": \"497\", \"text\": \"In re Raborn, William P.; \\u2014 Plaintiff(s); applying for writ of certiorari and/or review; to the Court of Appeal, First Circuit, No. CA92 0138; Parish of West Feliciana, 20th Judicial District Court, Div. \\\"B\\\", No. 10,465.\\nDenied.\\nCALOGERO, C.J., and DENNIS and ORTIQUE, JJ., would grant the writ.\\nHALL, J., not on panel.\"}"