text:
    Robert Earl BARRINGTON, Sr., Appellant, v. STATE of Florida, Appellee.
    No. AA-226.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1976.

      Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant seeks review of his conviction of the crime of sexual battery (F.S. 794.011(4)(a)) and his resulting sentence of life imprisonment. Oúr examination of the record reveals that the evidence was sufficient, if believed by the jury, (which apparently it was) to sustain the conviction. (See McKee v. State, Sup.Ct.Fla.1947, 159 Fla. 794, 33 So.2d 50; Truluck v. State, Sup.Ct. Fla.1959, 108 So.2d 748; Thomas v. State, Sup.Ct.Fla.1964, 167 So.2d 309 and Tibbs v. State, Sup.Ct.Fla.1976, 337 So.2d 788, opinion filed July 28, 1976. However, the state candidly agrees that the sentence imposed exceeds that permitted by law. (See F.S. 794.011(4)(e) and F.S. 775.082, Florida Statutes 1973). Accordingly, we affirm the conviction but reverse and remand for the purpose of the trial judge correcting the sentence. It shall not be necessary for appellant to be present at the time the sentence is corrected.

Affirmed in part and reversed in part.

BOYER, C. J., and RAWLS and McCORD, JJ., concur.


source: Caselaw Access Project

author: McCORD, Judge.

license: Public Domain

text:
    Lydia L. PALMER, Appellant, v. Stanford B. PALMER, Jr., Appellee.
    No. AA-400.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1976.

      S. Gordon Blalock of Blalock, Holbrook, Lewis, Paul & Issac, Jacksonville, for appellant.
    E. Thornton Jackson, Jr., Jacksonville, for appellee.
   McCORD, Judge.

This is an appeal from a final judgment of dissolution of marriage. Appellant wife contends that the trial court erred in awarding her only $10 per week alimony and in awarding her only a portion of the homestead property as permanent alimony.

The parties were married for 35 years and raised three children, all now grown. The wife is 57 years old and the husband is approximately the same age. The husband is a welder and has been employed by the same company continuously for the past 22 years. His earnings for 1974 were $16,-263.28 and he realized an additional $3,893 from sale of stock. He testified that he had $600 to $700 in the bank and that his interest in a profit-sharing plan with his employer was around $17,500. The husband separated from the wife in 1970 and since 1972 has been living with another woman in Alabama and providing her with support. He has made no contributions to his wife except for a few token amounts.

The wife has been employed at a cigar factory off and on for the past 40 years and earns an average of $78.27 per week. The home property consists of a small frame four-room house sitting on about six acres of land in the suburbs of Jacksonville, Florida. The parties purchased the property in 1963 for $7,000 and the tax assessment valuation for the house and land is $18,300. The wife’s testimony is uncontradicted that the house is in a "very bad” state of repair and that she has been given a short period of time by the authorities to repair it or they will bring an action against her. She owns no other property, has no savings and is totally dependent upon her earnings for support. The cigar factory where she works is being automated and she is in danger of losing her job. Out of approximately six acres homestead property of the parties, the trial court carved approximately one acre on which the house stands and awarded the husband’s one-half interest in it to the wife as lump sum alimony.

Great weight is accorded to the findings and judgment of the chancellor and alimony awards will not be disturbed unless an abuse of discretion is shown. Dorman v. Dorman, 332 So.2d 358 (Fla. 1 DCA 1976). Here, because of the length of this marriage, the wide disparity between the earning abilities of the parties and the husband’s $17,500 interest in the profit-sharing plan with his employer, we consider that an abuse of discretion was shown. The circumstances justify and require that the wife be awarded all rather than part of the home property and that she be awarded at least $20 per week permanent alimony.

Reversed and remanded with directions to modify the final judgment to award the wife the husband’s interest in all of the home property and to increase the permanent alimony to at least $20 per week.

RAWLS, Acting C. J., and SMITH, J., concur.


text:
    Linda J. DOWLING and Elaine C. Wolter, Appellants, v. BLUE CROSS OF FLORIDA, INC., a Florida Corporation, and Blue Shield of Florida, Inc., a Florida Corporation, Appellees.
    No. BB-172.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1976.
    A. Graham Allen, Freeman, Richardson, Watson, Slade, McCarthy & Kelly, Jacksonville, for appellants.
    James E. Cobb, Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellees.
   McCORD, Judge.

Appellants’ complaint was dismissed with prejudice. It attempted to state a cause of action for intentional infliction of emotional distress. The gravamen of the allegations was that appellees dismissed appellants from their employment on a false accusation that appellants had sexual relations with one another in the ladies’ lounge of appellees’ building; that the accusations were made without benefit of a reasonable investigation which would have revealed that no such act had taken place; that as a result, appellants were caused to suffer severe emotional distress. It is undisputed that appellees had the legal right to terminate appellants’ employment at will.

Prosser, Law of Torts (3d Edition, 1964), § 11, page 48, states the general law as to suits of this nature as follows:

“So far as it is possible to generalize from the cases, the rule ... is that there is liability for conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.”

The Florida Supreme Court allowed such a suit in Kirksey v. Jernigan, 45 So.2d 188 (1950), where a funeral home without authorization allegedly took the dead body of plaintiff’s child without being authorized, refused to turn it over to plaintiff, embalmed it, and then finally released it on payment of an allegedly excessive fee. There the Supreme Court said:

“This court is committed to the rule, and we re-affirm it herein, that there can be no recovery for mental pain and anguish unconnected with physical injury in an action arising out of the negligent breach of a contract whereby simple negligence is involved. Dunahoo v. Bess, 146 Fla. 182, 200 So. 541, following International Ocean Telegraph Company v. Saunders, 32 Fla. 434, 14 So. 148, 21 L.R.A. 810. But we do not feel constrained to extend this rule to cases founded purely in tort, where the wrongful act is such as to reasonably imply malice, or where, from the entire want of care of attention to duty, or great indifference to the persons, property, or rights of others, such malice will be imputed as would justify the assessments of exemplary or punitive damages. See 15 Am.Jur., Damages, Sec. 179, page 596; Restatement of Torts, Section 47(b). The right to recover, in such cases, is especially appropriate to tortious interference with rights involving dead human bodies, where mental anguish to the surviving relatives is not only the natural and probable consequence of the character of wrong committed, but indeed is frequently the only injurious consequence to follow from it.”

In Fletcher v. Florida Publishing Company, 319 So.2d 100 (Fla. 1 DCA 1975), presently pending on petition for certiorari in the Florida Supreme Court, this court stated the following with regard to the tort of intentional infliction of emotional distress. “. . .To sustain such an action the

complaint must allege conduct exceeding all bounds that could be reasonably tolerated by society of a nature especially calculated to cause severe emotional distress to a person of ordinary sensibilities and the wrongful act alleged must be such as to reasonably imply malice or be such that, from the entire want of care or attention to duty or great indifference to the person, property or rights of others, such malice may be imputed as would justify assessment of exemplary or punitive damages. The wrongful act giving rise to the cause of action must also have been done intentionally or in reckless disregard of the rights of others.”

When we compare the allegations of appellants in the case sub judice with the foregoing statements of the law, such allegations are found wanting. Appellant’s allegations as to appellee’s act or acts lack the outrageous character upon which to predicate a suit for intentional infliction of emotional distress.

Appellants contend that the trial court erred in dismissing their complaint with prejudice rather than to allow amendment but there is nothing of record to indicate that they could successfully amend the complaint to state a cause of action if leave to amend was granted.

AFFIRMED.

RAWLS, Acting C. J., and SMITH, J., concur.


author: SCHEB, Judge.

text:
    FOOD FAIR STORES, INC., d/b/a Pantry Pride Stores, et al., Appellants, v. Clarence L. MORGAN, Appellee.
    No. 75-1294.
    District Court of Appeal of Florida, Second District.
    Oct. 13, 1976.

      John R. Bush of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellants.
    David B. Webster of Charlton, Webster & Caltagirone and David A. Maney of Gordon & Matiey, Tampa, for appellee.
   SCHEB, Judge.

Plaintiff/appellee recovered a jury verdict of $75,000 for compensatory damages in an action for assault and battery against the defendants/appellants. Defendants’ motion for a remittitur or in the alternative a new trial was denied by the trial court. Defendants appeal. We reverse.

On the evening of August 10, 1974, the plaintiff, Clarence L. Morgan, and his two daughters, ages 3 and 13, went shopping at the defendant Food Fair’s Pantry Pride Supermarket in Floriland Mall in Tampa. While in the checkout line, the plaintiff observed the defendant Robert E. Darling, one of the store’s security investigators, reprimand the young woman who was the cashier. Plaintiff took umbrage to Mr. Darling’s conduct and spoke to him in defense of the cashier. An argument between plaintiff and Mr. Darling ensued and the plaintiff left the store. While in front of the store and in presence of his two daughters, he was knocked to the ground and beaten by Darling, the defendant Harry L. Pope, and another man, all of whom were employees of Food Fair. When a police officer arrived, the incident ended with no arrests and the plaintiff and his daughters returned to his car in the parking lot. After taking his daughters home, plaintiff went to a hospital emergency room for treatment, complaining of injuries to his shoulder, elbow and back. He was treated and released shortly thereafter.

Plaintiff Morgan is a 40-year old self-employed cabinet maker. Although Morgan did not suffer any great loss of movement and continued at his work following the incident, he testified that sometimes he now quits work earlier than usual because of back pain. He complained of frequent discomfort in his back, particularly at night in bed “. . . if I’m laying the wrong way.” He also suffered a chipped tooth from the altercation. Morgan consulted Dr. Maurice Cohen, a physician, whose diagnosis was that the plaintiff had suffered acute cervical and dorsal sprain and bursitis of the right elbow. Dr. Cohen saw the plaintiff six times and treated him conservatively. After treatment was underway, Dr. Cohen died. Plaintiff then consulted an osteopathic physician, Dr. Rodney Griffin, who agreed with Dr. Cohen’s diagnosis. Dr. Griffin saw the plaintiff seven times and continued a conservative course of treatment, prescribing muscle relaxants, exercises and diathermic treatments.

In addition to the emergency room bill of $42.50, the plaintiff produced medical bills from Dr. Cohen and Dr. Griffin for $225 and $103, respectively. No other special damages were established. Although the jury had before it the records from the hospital showing plaintiff’s x-rays and electrocardiogram to be normal, and the records from Dr. Cohen’s Office, Dr. Griffin was the only medical expert who testified at the trial. He opined that within the bounds of reasonable osteopathic certainty, plaintiff Morgan suffers “permanent or chronic strain and sprain” in his back. Dr. Griffin concluded that an operation to relieve the condition would not be surgically feasible.

The views of the advocates contrast sharply. Plaintiff’s counsel suggests that for this court to order a remittitur would be judicial tyranny. Defendant’s counsel argues that the verdict of $75,000 demonstrates a case of inflamed passions of the jury awarding a sum not even suggestively sustained by the evidence.

Unquestionably there was sufficient evidence for the jury to find the defendant Food Fair’s employees committed an assault and battery against Morgan. Plaintiff was entitled to recover all reasonable medical costs attendant thereto, damages for the mental anguish and humiliation he suffered at hands of the defendants, as well as for the pain and suffering he endured as a result of his injuries and any loss of capacity to enjoy life. Glickstein v. Setzer, 78 So.2d 374 (Fla.1955). Dr. Griffin’s testimony furnished an evidentiary basis for the court’s instruction on permanent injuries. There was, however, no evidence of the need for any future medical expenses or, aside from plaintiff’s statement that he occasionally left work early, no proof of lost earnings or of any diminished earning capacity.

Here the record impels us to conclude the jury viewed the evidence from a punitive as well as a compensatory standpoint. This conclusion is bolstered by opening statements by counsel for the plaintiff concerning the count, later dismissed, of malicious prosecution of the plaintiff and the evidence understandably adduced in support of that count of his complaint. There was considerable other testimony from which the jury could properly conclude that the behavior of the defendants’ employees was flagrant. However, the issue of punitive damages was not before the court and, of course, was not submitted to the jury. On basis of the evidence before us and even granting the jury the widest acceptable latitude in awarding damages, we find $75,000 to be a grossly excessive verdict.

An appellate court must act with great restraint in review of jury awards in tort actions. The very paucity of decisions of this court granting remittiturs attests to our reluctance to encroach upon the jury’s role or upon the judgment of the trial court in denying requests for remittiturs. But where, as here, we determine there is no reasonable basis for the award, it is necessary for us to act to relieve a defendant from an obviously excessive verdict. As stated in Smith v. Goodpasture, 179 So.2d 240 (Fla.2d DCA 1965), we must attempt to “measure that which is immeasurable” since we are dealing with intangible elements of damage such as pain and suffering and humiliation. And, while we must not apply a slide rule to calculate damages in tort actions, in some cases it becomes necessary to use a yardstick. We think this is one of those cases. From a review of the entire evidence, we conclude that any award in excess of $50,000 for compensatory damages cannot find any rational support in the evidence. The verdict, therefore, is so great as to shock our judicial conscience. See Bartholf v. Baker, 71 So.2d 480 (Fla.1954).

We reverse the judgment of the trial court with directions that if the plaintiff shall enter a remittitur in the amount of $25,000 then a judgment for $50,000 plus interest and costs, may be entered against the defendants. If the plaintiff fails to enter such remittitur within ten days after the filing of the mandate of this court, then the trial court shall order a new trial as to damages only on the assault and battery count against the defendant.

BOARDMAN, A. C. J., and GRIMES, J., concur.

      . The trial court directed a verdict in favor of the defendants on two other counts, one alleging negligent hiring of employees and the other alleging malicious prosecution of the plaintiff.

      . At the conclusion of the evidence, plaintiff sought to amend his complaint to seek punitive as well as compensatory damages. Despite evidence which may have been sufficient to go to the jury on proper allegation and prayer for punitive damages, we think there was no abuse of discretion when the trial judge denied the request at that late stage of the trial. Triax v. City of Treasure Island, 208 So.2d 669 (Fla.2d DCA 1968). In any event, there was no cross-assignment of error on this point.


author: PER CURIAM.

text:
    Samuel OAKLEY, Appellant, v. STATE of Florida, Appellee.
    No. 76-540.
    District Court of Appeal of Florida, Second District.
    Oct. 13, 1976.
    Jack O. Johnson, Public Defender, and Thomas W. Garrard, Sp. Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant, Samuel Oakley, was charged with commission of three separate criminal offenses. He pled not guilty. After trial by jury he was found guilty of each crime. He was adjudicated guilty and received one general sentence of 15 years to be served in the state prison.

We have carefully reviewed the points raised on this appeal and find each of them to be without merit. Accordingly, the judgment is affirmed, but the case is remanded to the trial court for apportionment of the sentence pursuant to the decision of this court in Darden v. State, 306 So.2d 581 (Fla.2d DCA 1975).

BOARDMAN, A. C. J., and GRIMES and SCHEB, JJ., concur.


author: CALOGERO, J., DENNIS, J.,

text:
    James A. MOREAU v. Richard A. TONRY et al.
    No. 58703.
    Supreme Court of Louisiana.
    Oct. 5, 1976.
   In re: Louis Riess (incorrectly named Louis Reese in the petition) applying for writ of certiorari, prohibition and mandamus.

Writ denied. The restraining order issued by the District Judge is maintained in force and effect subject to these conditions: All parties to this litigation shall have the right to examine, photograph and copy the precinct registers in the custody of the Clerk of Court and under the supervision of the trial court during 72 hours after four o’clock p. m. on October 5, 1976, after which the precinct registers shall be returned to the Registrar of Voters.

CALOGERO, J.,

believes the application has merit, and concurs in the sentiments expressed by Justice Dennis. No adequate reason has been alleged or shown to require interference with operation of the Legislature’s mandate that the sealed locked registers be returned to their proper custodian. The Registrar of Voters, The Registrar, after receipt, is the person who should be ordered to permit inspection and copying of the registers.

DENNIS, J.,

is of the opinion that the showing made in the application and the opposition thereto does not warrant the interference with the orderly processes of the election laws; that the registers should be returned to the Registrar of Voters as required by law; and that upon a proper showing, the registrar should be ordered to allow any party hereto to inspect and copy the registers within a period of 72 hours during which the registrar should be restrained from altering these records.


author: SUMMERS, J.,

text:
    James A. MOREAU v. Richard A. TONRY et al.
    No. 58727.
    Supreme Court of Louisiana.
    Oct. 8, 1976.
   In re: Paul J. Hardy, Secretary of State of La., et al., applying for Writ of Certiora-ri, Prohibition and Mandamus.

Writ denied in part, granted in part. With respect to the trial court’s rulings on the exceptions of prematurity no right or cause of action and lis pendens, the judgment is not final and we will not interfere with the ordinary process of the trial court.

The temporary restraining order issued herein enjoining the First Congressional District Democratic Executive Committee from certifying to the Secretary of State that Richard A. Tonry is the democratic nominee for the office of U. S. Representative from First Congressional District of Louisiana and enjoining Secretary of State from recognizing any certification from the First Congressional District Democratic Executive Committee certifying Richard A. Tonry as democratic nominee for U. S. Representative for the First Congressional District of Louisiana and further “restraining from causing the name of Richard A. Tonry from being printed on the ballot” as the democratic nominee for U. S. Representative in the First Congressional District for the general election to be held on November 2, 1976, is hereby vacated and set aside.

SUMMERS, J.,

is of the opinion that the applicant has made no showing warranting the exercise of this Court’s supervisory jurisdiction. There is no final judgment for review and this Court should not interfere with the orderly processes in the court below in the absence of irreparable injury, great wrong or palpable error.


text:
    James A. MOREAU v. Richard A. TONRY et al.
    No. 58747.
    Supreme Court of Louisiana.
    Oct. 12, 1976.
   In re: Richard A. Tonry applying for motion to appoint a judge.

STAY ORDER

On the showing that the trial judge re-cused himself, appointed another judge, who resumed the trial of the case in progress without having heard the evidence previously introduced:

All proceedings in this case are stayed until further orders of this court, and the respondent James Moreau is ordered to show cause, if he can or will, before 9:30 A.M., Wednesday, October 13th, why relief similar to that requested should not be afforded the relator Richard Tonry herein.

SUMMERS, J., is of the opinion that there is no merit to this application.


author: CALOGERO, Justice!

text:
    STATE of Louisiana v. Louis Albert MARTENS.
    No. 57858.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    Michael W. Fontenot, Jefferson, Samuel S. Dalton Law Offices, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Me-tairie, for plaintiff-appellee.
   CALOGERO, Justice!

In this case applicant’s probation was revoked and he was ordered to serve a six month parish prison sentence which had earlier been suspended. We must decide whether the action in the district court was legally correct.

The facts show that on May 16, 1972, defendant Louis Martens pled guilty to a charge of simple battery. On September 7, 1972, he was sentenced to a term of six months; the sentence was suspended, and he was placed on active probation for two years. On August 8, 1973, during the period of his probation, Martens was charged with having committed, on August 6, 1973, the crime of attempting to possess a controlled dangerous substance (desoxyn) by fraud. On September 6, 1974, on the very last day of defendant’s period of probation on the burglary charge, the state filed a warrant for the revocation of his probation. This action was taken ex parte, without notice to defendant. The warrant was never executed. However, almost nine months after filing of the warrant, some five and one half months after defendant had pled guilty on the drug charge, and two months after he had completed serving the sentence imposed in connection with that drug charge, the state on June 2, 1975 filed a Rule to Revoke Probation. Service upon defendant of this rule was his first notification (he alleges) that any steps had been or were being taken to revoke his earlier probation.

Defendant Martens moved to dismiss the revocation proceeding contending that his sentence had already been satisfied relying upon State v. Jones, 285 So.2d 231 (La. 1973) in this regard. The trial judge denied the motion, and we granted defendant’s application for writs to consider the revocation of Martens’ probation in light of the Jones case.

In State v. Jones, supra, this Court held that a warrant to revoke probation must be executed in order for such warrant to suspend the running of the probation period in a situation where the filing of the warrant and its execution could have taken place within the probationary period. In Jones, defendant pled guilty to a charge of theft on July 2, 1970, was sentenced to two years, sentence suspended, and was placed on two years supervised probation. During this two year probation period, on October 6,1970, defendant was arrested, pled guilty, and was confined to a federal prison. On February 21, 1971, during the probation period, state authorities issued a warrant for probation violation, but the warrant was not executed until December 14, 1972, after the two year probation period had run. We held that defendant’s sentence had been satisfied under the terms of Article 898 of the Code of Criminal Procedure, and that the trial court’s action in revoking his probation was illegal, because the probationary period had passed before the warrant was executed and the revocation hearing held. We said that “since the state could have executed the warrant but did not attempt to do so, the running of the probation period was not suspended” simply by issuance of the warrant during the probation period. 285 So.2d at 234.

Additionally we stated that:

“in a hearing to revoke probation or parole, the defendant is entitled to compliance with certain due process standards, including a hearing and determination within a reasonably prompt time after the revocation charge is made. .
Among the reasons requiring this is the otherwise possible loss of having multiple sentences run concurrently rather than consecutively, as well as the desirability of holding the hearing when the evidence is fresh.” Id.

In the case at bar defendant Martens, like Jones, was serving out a two year probation period. Both of them violated a condition of their probation by committing crimes during the probation period for which guilty pleas were entered (Jones, before his probation had run; Martens, after his probation had run). Each was in custody for his respective offense during the probation period. Warrants were issued but not executed in either case during the probation period. Nothing prevented state officials in either case from executing the warrant and granting the probationer a hearing.

The state argues that State v. Jones is distinguishable from the ease here under consideration, first, because in the Jones case there was over a year between the filing of the warrant and the end of the probation period (and twenty-two months between issuance and execution) whereas in the case at bar no warrant was issued until the very end of the probation term, “rendering execution of the warrant clearly impracticable if not impossible.” The argument does not recognize that in this case, no less than in the Jones case, the state could have filed and executed its warrant long before the termination of the probation term. Thirteen months passed from his arrest on the drug charge until the warrant was issued. The fact that the state chose to file its warrant against defendant Martens closer to the end of his probation period than it did against defendant Jones cannot form a basis for distinguishing Jones. In both cases the state could have filed and executed the warrant before the end of the probation period but did not attempt to do so.

Had the state served the warrant and provoked a hearing within a reasonable time following issuance of the warrant on the last day of defendant’s probation period, we would perhaps have a more difficult issue. See State v. Rosteet, 257 La. 863, 244 So.2d 813 (1971) and State v. Jones, supra note 4, at 234. However, here the state took no steps following issuance of the warrant until some nine months later, six months after defendant pled guilty to the drug charge, and two months after he completed service of his sentence on the drug charge.

The same principles which prompted the result in Jones control here.

The state further points out that Martens was not convicted until after his probation had run, whereas Jones was convicted before his probation had run, and suggests that its delay in execution of the warrant here was thus justified.

Although in some circumstances it may be to a defendant’s benefit to have the state delay its filing and execution of a revocation warrant until defendant’s conviction on another charge, the fact remains that when the state has grounds to revoke a probationer’s suspended sentence (see C.Cr.P. art. 899) and when it is able to file its warrant within the probation period and proceed by service thereof and hearing promptly thereafter, then the state delays in doing so to their prejudice in light of Article 898 and the limited exception for suspension of the running of the period of probation provided in Article 899(D).

We find that under the terms of Article 898 of the Code of Criminal Procedure defendant Martens satisfied his sentence for simple battery on September 6, 1974, and that the action thereafter taken in revoking defendant’s probation was ineffective because defendant had already completed his period of sentence and probation.

For the reasons stated above, we reverse the judgment of the district court and remand the case to the trial court for defendant to be discharged from his sentence on the simple battery charge.

SANDERS, C. J„ and SUMMERS and MARCUS, JJ., dissent.

      . Martens pled guilty to this second charge on January 22, 1975. He was sentenced to serve thirty days in parish prison to be served on ten consecutive weekends beginning January 31, 1975. Service of the sentence was completed in April, 1975.

      . Defendant Martens was in the custody of the State of Louisiana from April of 1973 to the present time because he was under bond, present for court appearances, and serving ten consecutive weekends in the parish prison from January 22, 1975 to April 1975.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Aubrey R. BOLEN.
    No. 57999.
    Supreme Court of Louisiana.
    Oct. 6, 1976.

      James S. Gravel, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., L. Paul Gianfala, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Aubrey Bolen was charged with the negligent homicide of Susan Story, a violation of R.S. 14:32. Defendant was tried before a judge, without a jury. The trial judge found the defendant guilty as charged and sentenced him to five years at hard labor, which sentence the trial court suspended. The defendant was placed on active probation for three years.

On August 11, 1975, William Galloway arrived at Ruby Red’s in Alexandria at approximately 6:00 p. m. The defendant arrived at about 8:00 p. m. Susan Story, the decedent, met Galloway at Ruby Red's at 9:00 p. m. Galloway, Ms. Story and a friend, Frank Shelfo, left Ruby Red’s at approximately 10:00 p. m. and went driving in an automobile for about forty-five minutes. They then returned to Ruby Red’s and stayed there until closing time at 12:00 midnight, when they walked out on the parking lot. Decedent was struck and fatally injured by defendant’s motorcycle on the parking lot.

Assignment of Error No. 1

In this assignment the defendant contends that the trial court erred in refusing to order the State to make an opening statement. While Articles 766-769 of the Code of Criminal Procedure provide the rules governing the use and scope of the State’s opening statement, this court has held that in misdemeanor eases an opening statement is not required. State v. Layssard, 310 So.2d 107 (La.1975); State v. Himel, 260 La. 949, 257 So.2d 670 (1972); State v. Didier, 259 La. 967, 254 So.2d 262 (1971). One of the functions of the opening statement is to acquaint the jury with the case so that they may better understand the evidence. The trial judge in the case before us had tried a companion case the day before.

Another function of an opening statement is to inform the defendant of the nature of the charge and evidence by which the State intends to prove its case so as to prevent the defendant from being unfairly surprised. State v. Roquemore, 292 So.2d 204 (La.1974). Defendant does not complain of surprise. Even in jury cases, modern jurisprudence has left the scope and extent of the opening statement to the sound discretion of the trial judge. State v. Clark, 231 La. 807, 93 So.2d 13 (1957); C.Cr.P. 769 and Official Revision Comments thereunder.

In this ease no useful purpose would have been served by an opening statement, and we find no error in this assignment.

Assignment of Error No. 2

During the trial William B. Galloway testified for the State. On cross-examination he stated that about two hours before the accident he had left Ruby Red’s and gone driving around in a car for awhile and then had come back to Ruby Red’s. Defense counsel asked him if he or any one else had smoked marijuana while in the car at that time. Mr. Galloway stated that no one had. Galloway, Prank Shelfo and the victim had been in the ear together. Later, when Mr. Shelfo was under cross-examination, defense counsel asked him the same question and, over defense counsel’s objection, the witness was allowed to take the Fifth Amendment. Defendant intended to use Mr. Shelfo’s testimony for two purposes: to demonstrate that the smoking of marijuana could diminish the witness’ perception or recall of the events of the accident; to impeach the testimony of William Galloway.

The defendant contends that since Mr. Shelfo had testified as to the material facts of the accident, he had waived his right to invoke the Fifth Amendment. In addition he claims that the refusal to order the witness to answer the question deprived the defendant of his rights under R.S. 15:486 which states:

“Each side has the right to impeach the testimony and the credibility of every witness sworn on behalf of the other side.”

Here we have a conflict between the defendant’s right to impeach the testimony of prosecution witness Galloway and the witness’ right to invoke his privilege against self-incrimination. United States Constitution, Amendment V; Louisiana Constitution of 1974, Art. I, § 16; La.R.S. 15:276. While a defendant waives his Fifth Amendment privilege when he takes the stand (State v. Shelby, 308 So.2d 279 (La.1975); State v. Collins, 283 So.2d 744 (La.1973)), a witness who is not the accused may, under certain circumstances, take the stand and testify as to some matters and invoke the Fifth Amendment as to others. In State ex rel Doran v. Doran, 215 La. 151, 39 So.2d 894, 896 (1949), this court held:

“. . . [I]f a person voluntarily takes the witness stand, whether as a mere witness or as a party in the case, giving testimony during which he discloses a fact or transaction, he is deemed to waive this immunity and thereby subjects himself to cross-examination with respect thereto. 147 A.L.R. 256; 58 Am.Jur. 78, Sections 94 and 95. However, where the witness voluntarily takes the stand for the purpose of testifying as to one issue only, he cannot, under cross-examination, be made to testify against his will concerning matters that are wholly unrelated to that issue. . . .”
As stated in the federal jurisprudence: “The general rule is that a witness who has testified to incriminating matters on direct examination has waived the privilege as to those matters and may not decline to answer on Fifth Amendment grounds when cross-examined. Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951).” United States v. Stephens, 492 F.2d 1367, 1375 (6th Cir. 1974).

In addition, in United States v. Johnson, 488 F.2d 1206 (1st Cir. 1973), the court stated:

“. . . [W]hen a witness voluntarily testifies to certain facts, he may not invoke the privilege as to details . . . ”

See also, In re Master Key Litigation, 507 F.2d 292 (9th Cir. 1974).

Here the record indicates that on direct examination this witness did not discuss the 10:00 p. m. car ride at all. In fact the only reference to leaving Ruby Red’s before closing time was made when the witness apparently misunderstood the prosecutor’s question:

“Q All right, Sir. Now, approximately what time did you leave that place, Ruby Red’s, that night, Sir?
A Uh — About 10:30 or 11:00.
Q About 10:30 or 11:00? And did you come back?
A What do you mean, leave to go home or what?
Q All right let me rephrase the question. Approximately what time did you leave the place with the intention of not coming back to the place?
A To go home, in other words?
Q Yes Sir.
A Uh — I don’t know. It was before closing time. About 30 minutes. Eleven something.”

There was no reference to an incriminating event on direct examination, nor did the witness discuss any fact or transaction that would relate in any way to smoking marijuana in a car an hour or two before the accident.

Furthermore, the transcript reveals that at the time the witness first invoked his privilege, the trial judge recessed the trial and met with the witness in chambers. The per curiam to this assignment of error reveals that in that confidential meeting, the witness informed the court that he and two other persons had all smoked marijuana while riding in the car. Since the trial judge was the finder of fact in this case, the defendant actually accomplished both purposes for which he sought to elicit this testimony from the witness. In his per curiam the trial judge stated:

“Additionally, it had already been established that the witness had been drinking alcoholic beverages and that his ability to observe the accident and to accurately relate what he observed was thereby impaired.”

After the conversation with the witness in chambers the trial judge was aware of the conflict in the testimony on the car ride given by Galloway and the admission by Mr. Shelfo in chambers. The impeachment of Galloway was thus effectively accomplished. There was no error in refusing to order the witness to testify over his assertion of his Fifth Amendment privilege.

Finding no error, the judgment of the trial court is affirmed.

SUMMERS, J., dissents.


text:
    STATE of Louisiana v. Ricky HATTER.
    No. 58024.
    Supreme Court of Louisiana.
    Oct. 6, 1976.

      Paul E. Kitchens, Kitchens, Benton & Kitchens, Minden, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., for plaintiff-appel-lee.
   DIXON, Justice.

On August 4,1975 defendant, Ricky Hatter, was indicted by the Webster Parish Grand Jury for the armed robbery of Sandra Smith and Amanda Bernard on July 1, 1975 in violation of R.S. 14:64. He was tried before twelve jurors who, on December 17, 1975, unanimously returned a verdict of guilty as charged. On March 25, 1976 defendant was sentenced to thirty years at hard labor. Defendant reserved thirteen assignments of error but on appeal specifically abandoned Nos. 3, 8 and 12.

On July 1, 1975, near closing time, the two victims, employees of the Sarepta Drive-In, Sarepta, Louisiana, were alone when the defendant came in and placed an order. Defendant then pulled out a small caliber blue pistol and held it on the two girls until he obtained $600.00 from the two cash registers. The defendant then fled, apparently in an old model white automobile.

Assignment of Error No. 4

In addition to the above facts, it was established in the State’s case in chief that on July 7, 1975 the defendant, dressed in a distinctive pair of yellow pants, was driven by a friend to Plain Dealing, Louisiana. Further testimony was elicited to the effect that the same yellow pants were later found on July 9,1975 in Plain Dealing with a small caliber blue pistol in the pockets. This gun was in turn identified by the victims of the robbery as one quite similar to the gun used in the robbery. When the State sought to introduce the pants and pistol into evidence, defendant objected. His objection was overruled and forms the basis of this assignment of error.

Defendant objected on the grounds that this real evidence lacked relevancy and materiality. The objection was properly overruled, however, because the State adequately connected the defendant with the yellow pants, which in turn were connected to the gun. Once the gun was identified as similar to the weapon used in the robbery, the relevance and materiality of the evidence were adequately shown. Therefore, the evidence was properly admissible as it tended to prove the defendant’s identity. R.S. 15:435. That the evidence failed to prove positively that the defendant placed the gun in the pants is an argument that goes to the weight of the evidence, not its admissibility.

This assignment lacks merit.

Assignments of Error Nos. 5, 6 and 9

All of these assignments of error relate to eliciting evidence, in rebuttal, of the defendant’s connection with the gun and the yellow pants. Defendant argues that this evidence constituted improper rebuttal.

In the defense there was an attempt to establish an alibi and to contradict the State’s proof, adduced in its case in chief, tying defendant to the pants and gun. (See discussion above). Defendant admitted that he had gone to Plain Dealing on July 7, 1975 while dressed in the yellow pants. However, defendant contended that he went to Plain Dealing on that day to help his aunt paint furniture and had placed his pants on a line behind the house while he painted in another pair of pants. He alleged that upon finishing his work he went behind the house to retrieve his pants and saw “two dudes” stealing them. Defendant also testified he never saw the gun in question and, in fact, never owned a gun.

In order to contradict these assertions, the State-in rebuttal examined a number of witnesses who testified to seeing defendant in Plain Dealing on July 7, 1975 dressed in the yellow pants and in the possession of the small blue pistol. Although one witness did not testify to seeing a gun (Assignment of Error No. 9), her testimony corroborated the testimony of another witness (Assignment of Error No. 7) to the effect that defendant had a gun while dressed in the yellow pants.

In substance defendant argues that this evidence constituted improper rebuttal as it did not contradict any facts presented by the defendant. R.S. 15:282 provides:

“The prosecution has the right to rebut the evidence adduced by the defendant, but the defendant is without right to rebut the prosecution’s rebuttal.”

In State v. Monroe, 205 La. 285, 17 So.2d 331 (1844), we held that “rebuttal evidence” was that evidence offered to explain, repel, contradict or disprove facts given in evidence by the adverse party. Consistently, State v. Campbell, 263 La. 1058, 270 So.2d 506 (1972), held that evidence of another crime offered to prove intent is not properly adduced in rebuttal when defendant only denies the commission of the ■ crime for which he is on trial. The basis of this holding was that defendant had offered no facts to negate intent. In this case,. however, defendant presented facts to the effect that he never owned a gun and never saw the particular gun at issue. In addition, defendant testified to a theft of his pants in order to create the inference that the alleged thieves placed the gun in the pants. Thus, it was proper to offer evidence in rebuttal contradicting these factual assertions.

The State did not save any of its case in chief in order to surprise the defendant; sufficient evidence was adduced in the case in chief to tie defendant to the gun. However, when defendant attempted to explain this proof it was necessary for the State to proceed further in order to contradict defendant’s evidence. Thus, the purpose of the evidence was to disprove the defense and contradict the defense witnesses, rather than to prove the State’s case. State v. Diggs, 261 La. 76, 259 So.2d 18 (1972).

These assignments lack merit.

Assignments of Error Nos. 1, 7 and 11

Defendant argues in these assignments of error that, assuming the subject matter of the rebuttal was proper, the evidence exceeded its proper scope and tended to show the commission of another robbery, evidence of which was not admissible. While the State concedes in its brief that the evidence adduced in rebuttal might lead to the conclusion that defendant had committed another crime, the State argues that the evidence was not offered to prove knowledge, intent or system but only to rebut facts elicited in defense.

As discussed above, the State in rebuttal presented testimony relative to the defendant’s possession of the small blue pistol while dressed in the yellow pants. The owner of the Green Discount Store in Plain Dealing testified that defendant entered his store on July 7 dressed in yellow pants. He further testified that defendant had a gun. The following exchange took place:

“Q Did you see this?
“A Yes.
“Q Was it close to you?
“A Yes.
“Q How close to you was this gun?
“A About that much.
“Q Was it pointed at you?
“A Yes, sir.”
After defendant’s objection was overruled, the testimony continued:
“Q I’ll show you what I’ve marked as S-5 and ask you to examine this — will you go ahead and hold it.
“A I don’t remember the color.
“Q Does this look like the gun he had? “A Yes.
“Q As far as size and shape, and so forth?
“A Right.
“Q It was of this smaller nature?
“A Right.
“Q And how close was this to you?
“A About that much.
“Q Were you afraid?
“A Yes.”

The only other testimony connecting defendant with a robbery occurred when another witness identified the accused as the person she saw leaving Green Discount Store. (This occurred after the same witness had gratuitously mentioned the commission of a robbery and after the court overruled defendant’s motion for a mistrial).

While the State cannot avoid the procedural safeguards and substantive limitations of State v. Prieur, 277 So.2d 126 (La. 1973) by using evidence of extraneous crimes in rebuttal (State v. Ghoram, 290 So.2d 850 (La. 1974)), in this case the State abandoned its apparent intention of proving the extraneous offense in order to show knowledge, intent, etc. Rather, the State attempted to limit its proof to those circumstances which explained the witnesses’ opportunity to observe the defendant, his clothes and the gun. The State was not seeking to prove and did not prove an extraneous offense in order to show intent or system. Therefore, the requirements of Prieur are inapplicable. For this reason, defendant’s Assignment of Error No. 1, in which he complains that the notice he received immediately prior to trial was not the “reasonable” notice required by Prieur, lacks merit.

Although the trial judge is granted wide discretion in determining the permissible scope of rebuttal testimony, State v. Peters, 302 So.2d 888 (La. 1974), such testimony should nonetheless be closely guarded. State v. Diggs, supra. The defendant correctly contends (in Assignments of Error Nos. 7 and 11) that if the State exceeded the scope of contradicting the facts elicited in defense and sought to prove the commission of a robbery, it would place the defendant’s bad character before the jury and constitute reversible error. State v. Prieur, supra. However, this was not done in this case. It was proper to allow the witness to explain that the gun was close to the witness in order to counter any doubts that the identification of the weapon was mistaken. (Assignment of Error No. 7). Likewise, it was proper to allow the witness to identify the accused as the man she saw leaving the Green Discount Store on July 7 in order to corroborate the store owner’s identification of the defendant as the man wearing the yellow pants and possessing the gun at issue (Assignment of Error No. 11). The trial judge did not abuse his discretion in admitting this evidence.

Even though the prosecutor may have exceeded the proper bounds of rebuttal by asking the witness if she was “afraid,” the trial court sustained defendant’s objection to this question. In addition, defendant abandoned Assignment of Error No. 8 which dealt with this particular question and, in any event, the record reveals that the defendant was satisfied with this ruling since he did not request an admonishment. The prosecutor limited his proof and in good faith avoided any direct references to the other offense. Under these circumstances we hold that the rebuttal testimony was properly limited to conform to its permissible scope.

These assignments of error lack merit.

Assignment of Error No. 10

Defendant contends that the trial court erred in refusing to grant his motion for a mistrial after a rebuttal witness, Shirley Bryant, answered as follows:

“Q Mrs. Bryant, were you in Plain Dealing around 1:45 P.M. on July 7th, 1975? “A I was.
“Q Were you by the Green Discount Store?
“A Yes.
“Q Did you notice anything unusual at that time?
“A No, when I walked in the store, well, I met this boy coming out of the store and she told me she had just been robbed

Defense counsel immediately moved for a mistrial but the judge only had the unresponsive answer stricken. Defendant then requested and received an admonition. Defendant timely objected to the court’s refusal to grant a mistrial and subject objection forms the basis of Assignment of Error No. 10.

C.Cr.P. 771 provides in part:
“In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
“(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
“In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.”
C.Cr.P. 770 provides in part:
“Upon 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: “(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.”

It is evident that references to other criminal activity is potentially prejudicial. However, when the requisites of C.Cr.P. 770 have not been met (which is the case here), the trial judge has wide discretion to determine whether an admonition is sufficient to dispel any prejudicial effect the reference by the witness may have created. State v. Gabriel, 308 So.2d 746 (La. 1975); State v. Smith, 285 So.2d 240 (La. 1973). In addition, numerous cases have declined to charge the prosecutor with the witness’ comment when the prosecutor was acting in good faith but the witness’ answer to the State’s question was unsolicited and unresponsive. E.g. State v. Jones, 332 So.2d 466 (La. 1976); State v. Gabriel, supra; State v. Smith, supra. In such cases it is often held that an admonition cured any prejudicial effect the answer created.

In the instant case it is important to note that the commission of another offense was brought out by defendant and his counsel prior to the testimony of this witness. In defendant’s direct examination by his counsel the following exchange occurred:

“Q Now, when you went to Plain Dealing did you take with you a small caliber pistol?
“A No, sir. I didn’t have no pistol, they couldn’t find no handprints or nothing on the pistol belonging to me — I have never carried no pistol, touched no pistol up until now.
“Q Now, you’ve heard the testimony in this court about the pants being discovered up in Plain Dealing and that the pistol being in the pockets?
“A yes, I heard about the pants and the robbery.”

In addition, defense counsel, in his cross-examination of the first rebuttal witness, stated:

“Q Now, Mrs. Huddleston, what date did you say this offense occurred on? What date did you say this incident occurred?”

The prosecutor’s question sought to elicit what the witness saw or noticed and thus her answer describing what she heard was not responsive. Under these circumstances we hold that the judge did not abuse his discretion in denying defendant’s motion for a mistrial and that the admonition sufficiently dispelled any prejudice.

This assignment lacks merit.

Assignment of Error No. 13

Defendant argues in this assignment of error that the trial judge erred in referring to “previous arrests, suspicions and juvenile offenses” not supported by proof and not subject to rebuttal or explanation by the defendant in determining defendant’s sentence. Pursuant to C.Cr.P. 875 a presen-tence investigation was conducted and a report filed with the judge. The judge referred to this report at the time of sentencing and mentioned the defendant’s juvenile offenses, imprisonment at LTI and escapes therefrom and his two prior armed robberies.

At no point during the sentencing procedure did defense counsel object to the judge’s reference to the presentence investigative report nor is a copy of the report before us. The determination of a sentence is within the sound discretion of the trial judge, State v. Pierson, 296 So.2d 324 (La. 1974); State v. Polk, 258 La. 738, 247 So.2d 853 (1971), and, if within the statutory and constitutional limits, is generally not subject to review. State v. Pierson, supra. In addition, it is clear that a trial judge may consider evidence of other offenses in determining sentence. C.Cr.P. 875; State v. Pierson, supra. Defendant argues that the Pierson case requires proof that defendant actually committed the offenses revealed in the presentence report — a misconstruction of the Pierson case. The trial judge may rely on the report (C.Cr.P. 875); defendant was not denied an opportunity to prove the report erroneous.

This assignment lacks merit.

Assignment of Error No. 2

In this assignment of error defendant contends that the notice be received prior to trial informing him of the State’s intention to use inculpatory statements was inadequate. In State v. Morris, 259 La. 1001, 254 So.2d 444 (1971), we held that notice handed defense counsel in court before the opening statement sufficiently complied with C.Cr.P. 768. In any event, defendant only avers he was prejudiced because the statements introduced a new issue of what defendant was wearing on a day other than the date of the alleged crime. Since, in fact, no inculpatory statements were introduced relative to what defendant said he was wearing on July 7, no prejudice has been demonstrated.

This assignment lacks merit.

For the foregoing reasons the judgment and sentence appealed from are affirmed.

SUMMERS, J., concurs in the result.

      . Assignment of Error No. 5 relates to defendant’s general objection made prior to the State’s rebuttal that any evidence elicited concerning the clothes and gun would constitute improper rebuttal.

      . Thus, this case is distinguishable from State v. Turner, La., 337 So.2d 455 (1976), wherein we held that the State improperly saved incul-patory statements for rebuttal since they were evidence of guilt and did not contradict the defendant’s alibi.

      . See Assignment of Error No. 10, infra.

      . In discussing Assignment of Error No. 10, defense counsel admits that a robbery was not proved.


author: CALOGERO, Justice. SANDERS, Chief Justice

text:
    STATE of Louisiana v. Drex Anthony FORD.
    No. 58165.
    Supreme Court of Louisiana.
    Oct. 6, 1976.

      Mark Bienvenu, Voorhies & Labbe, Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Byron P. Legendre, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Drex Anthony Ford was charged, tried, and convicted and appropriately sentenced for committing second degree murder of William Cummings, Jr. From his conviction and sentence, defendant appeals, relying on two assignments of error. Because we find merit in the first of these assignments, we pretermit consideration of the other.

The facts from which this error arose occurred in the following manner. Defendant’s trial was held on September 17 and 18, 1974. For reasons which are unexplained, the court reporter did not record the entire trial through mechanical or other means. Although a record was made of the testimony of some of the witnesses, no record was made of the examination of four state witnesses, the voir dire examination of the prospective jurors and the impaneling of those chosen, or of the opening statement made by the prosecutor. Consequently, defense counsel, who did not serve as trial counsel but was appointed by the court to represent defendant Ford on appeal, had no independent knowledge of trial events except as revealed by the incomplete record. He was unable to review the entire record so as to perfect assignments for any errors which may have occurred during the unrecorded portion of the trial. Defendant Ford now argues to this Court that the failure of the court reporter to comply with Article 843 of the Code of Criminal Procedure entitles him to a reversal of his conviction and an order for a new trial.

At the time defendant Ford was tried, Article 843 of the Code of Criminal Procedure provided that in felony cases all of the proceedings must be recorded:

“On motion of the court, the state, or the defendant in misdemeanor cases in the district court in which the possible sentence may give the defendant the right to appeal, and in felony cases, the clerk or court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.” Amended by Acts 1974, No. 207, § 1. (emphasis added)

The official revision comment to article 843 reasserted the rule that all proceedings must be recorded in felony cases, and explained that article 843 provided for this recordation so that the record would “be available to be transcribed if designated to support an assignment of error.” As is clear from the official comment to the article as formerly written, the recordation requirement makes it possible for the party alleging the error to accurately present it for review. When no record at all is available of a portion of the trial, a defendant cannot perfect assignments of error which may have occurred during the unrecorded portion of the trial so that the court can review any such errors and insure that the trial was properly conducted. C.Cr.P. art. 920.

The state argues that the failure of the court reporter to provide a complete record of the proceedings should not require an automatic reversal of defendant’s conviction, but that he must allege “factual prejudice” before a reversal is required. In order to determine the merits of the state’s contention, we find instructive the federal jurisprudence construing a federal provision very similar to the Louisiana statute at issue here. The federal statute provides that a court reporter “shall record verbatim . all proceedings in criminal cases had in open court.” 28 U.S.C. § 753(b). In cases where no transcript was made of a portion of the trial, the federal courts have consistently applied the provision strictly ruling that the requirement is mandatory and that a new trial was required. Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964); Herron v. United States, 512 F.2d 439 (4th Cir. 1975); Fowler v. United States, 310 F.2d 66 (5th Cir. 1962). The United States Fourth Circuit Court of Appeals has explained that the statutory provisions “are designed to preserve a correct and authentic record of criminal proceedings free from the infirmities of human error and they provide a safeguard to which not only the court but also the defendant is entitled in the preservation of his rights.” United States v. Taylor, 303 F.2d 165, 169 (4th Cir. 1962).

The United States Fifth Circuit Court of Appeals has been especially vigilant in requiring a reversal, even if no particular prejudice has been alleged, when defendant’s counsel on appeal is a different person from trial counsel and a portion of the transcript is unavailable. United States v. Upshaw, 448 F.2d 1218 (5th Cir. 1971), cert. denied, 405 U.S. 934, 92 S.Ct. 970, 30 L.Ed.2d 810 (1972); United States v. Garcia-Bonifascio, 443 F.2d 914 (5th Cir. 1971); United States v. Atilus, 425 F.2d 816 (5th Cir. 1970). In United States v. Atilus, supra, the Fifth Circuit reversed a conviction where counsel on appeal was not counsel at trial, and no trial transcript was available, stating:

“[tjhrough no fault of the defendant a transcript of the trial proceedings is no longer available. Under these circumstances this court has no choice but to reverse the conviction. The Supreme Court has made it clear beyond question that a criminal defendant has a right to a complete transcript of the trial proceedings, particularly where, as here, counsel on appeal was not counsel at the trial. Hardy v. United States, 1963, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331.” 425 F.2d at 816.

Our Court has at least twice reversed convictions because of infirmities in the record available to the Court for review. In State v. Bizette, 334 So.2d 392 (La.1976), we remanded a case for new trial when the recording equipment used at the trial malfunctioned, and we were unable to adequately review the trial court’s denial of defendant’s motion for acquittal. Likewise, in the case of State v. Rooney, 187 La. 256, 257, 174 So. 348 (1937), where both parties entered a joint motion to have the verdict annulled and the case remanded, we reversed defendant’s conviction because of an incomplete record, stating:

“the transcript of the testimony taken in relation to the bills of exception reserved by the defendant is so defective and in such condition that it is impossible to present the case intelligently on appeal. Hence it appears to be in the interest of justice that the verdict and sentence should be set aside and the case remanded for a new trial.”

In Louisiana, as in the federal courts, an appeal from a felony conviction is an absolute right. La.Const. art. VII, § 10 (1921); La.Const. art. V, § 5(D)(2) (1974); Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). Without a complete record from which a transcript for appeal may be prepared, a defendant’s right of appellate review is rendered meaningless. A slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal would not cause us to reverse defendant’s conviction. But where a defendant’s attorney is unable, through no fault of his own, to review a substantial portion of the trial record for errors so that he may properly perform his duty as appellate counsel, the interests of justice require that a defendant be afforded a new, fully-recorded trial.

For the reasons assigned, the conviction and sentence of defendant Ford is reversed and remanded for retrial.

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

SUMMERS, J., dissents for the reasons assigned by the Chief Justice.

SANDERS, Chief Justice

(dissenting).

The Court Reporter failed to record a portion of the proceeding at defendant’s trial. Holding that Article 843 of the Louisiana Code of. Criminal Procedure makes recordation mandatory, the majority reverses the conviction and orders a new trial. I disagree.

In his Per Curiam, the trial judge states:

“The statement of facts set forth by Counsel in the assignment of errors is correct. It was not known to me, however, that Counsel did not know of the absence of the court reporter as stated.”

It is well established that a defendant may waive a statutory right such as that set forth in Article 843. See State v. Porter, 176 La. 673, 146 So. 465 (1933); State v. Scruggs, 165 La. 842, 116 So. 206 (1928); State v. Mischiro, 165 La. 705, 115 So. 909 (1928).

The appropriate action, in my opinion, would be to order the trial court to conduct an evidentiary hearing to ascertain if trial counsel waived the statutory right contained in LSA — C.Cr.P. 843. If no waiver occurred, the trial judge should also determine at the evidentiary hearing whether or not the failure of recordation prejudiced the appellate review of any defense objections. See, e.g., State v. Bias, La., 337 So.2d 426 (1976); State v. Simmons, La., 328 So.2d 149 (1976). I would not disturb the conviction at this time.

For the reasons assigned, I respectfully dissent.

      . The trial judge’s per curiam indicated that no record was made because the court reporter was absent during the trial, but the state’s attorney in oral argument could offer no explanation of why the proceedings were not preserved.

      . By special statute, court reporters in the fifteenth judicial district can employ any of these methods to record the proceeding: “shorthand, stenograph, voice recording with equipment approved by the presiding judges, or in any recognized manner approved by the presiding judges.” La.R.S., 13:968.

      . Specifically, those witnesses were Dr. Henry Voorhies, State Trooper Danny Warner, Lieutenant Mike Norce and Michael Brooks.

      . By Acts 1975, No. 118, § 1, the legislature amended Article 843, but the current provision likewise requires all proceedings in felony cases to be recorded.

      . In Bizette, we were especially concerned with the provision of the 1974 Constitution which requires a defendant’s intelligent waiver of his right of judicial review based upon a complete record of all evidence upon which the judgment is based. La.Const. art. 1, § 19 (1974).


author: TATE, DIXON and CALOGERO, JJ.,

text:
    AMERICAN BANK & TRUST COMPANY IN MONROE v. CARSON HOMES, INC., et al.
    No. 58742.
    Supreme Court of Louisiana.
    Oct. 19, 1976.
   In re: Carson Homes, Inc., et al. applying for Writs of Certiorari and Review, Mandamus, Prohibition, Supervisory Writs and/or Stay Order and Devolutive Appeal. 331 So.2d 521.

Not considered. Not timely filed. See Rule X, § 5(b), Rules of this Court (Oct. 31, 1975).

TATE, DIXON and CALOGERO, JJ.,

concur. In their view, however, the relator can reapply after obtaining a delay from the trial court within which to apply for certiorari here. See Rule X, § 5(b), first sentence.


text:
    Robert L. RABORN v. Glenn I. DONICA.
    No. 58409.
    Supreme Court of Louisiana.
    Oct. 20, 1976.
   In re: Robert L. Raborn, applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 334 So.2d 471.

Writ refused. No error of law.

DENNIS, J., concurs in the result only.


author: DIXON, J.,

text:
    Mrs. Joan O. GIBSON et al. v. The SUCCESSION of Mrs. Ruth O’Brien GUMBEL et al.
    No. 58399.
    Supreme Court of Louisiana.
    Oct. 20, 1976.
   In re: Mrs. Joan O. Gibson, et al., applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 333 So.2d 340.

Writ refused. Under the facts found by the Court of Appeal, the judgment of the Court of Appeal is correct.

DIXON, J.,

concurs in the denial because there is no error of law in the judgment of the Court of Appeal.


text:
    Eddie MARTIN, etc., et al. v. Mrs. Lucille RICHARD et al.
    No. 58421.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: Eddie Martin, et al., applying for Certiorari, or writ of review, to the Court of Appeal, 333 So.2d 668, Third Circuit, Parish of St. Landry.

Writ denied. On the facts found, the result is correct.

DIXON, J.,

dissents from the refusal. The trial court and the court of appeal failed to give any weight to uncontradicted testimony of both doctors and the only witness to the claim for damages for secondary amenorrhea.

CALOGERO, J., is of the opinion the writ should be granted.


text:
    STATE of Louisiana v. Edwin J. DIAZ, III.
    No. 58422.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: State of Louisiana applying for writ of certiorari, mandamus and prohibition.

Writ denied. No error of law.

SANDERS, C. J., is of the opinion that a writ should be granted.

SUMMERS, J.,

is of the opinion the writ should be granted. See dissent in State v. Ransom & Richard, No. 58,510, writ denied this day.

MARCUS, J., is of the opinion that the writ should be granted.


text:
    STATE of Louisiana ex rel. Kenneth NATIONS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary, and John Rabalais, Custodian of Records, Louisiana State Penitentiary.
    No. 58424.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: Kenneth Nations, applying for writs of review.

Writ denied. The judgment is correct.

DIXON, J., is of the opinion the writ should be granted.


text:
    Jake ALLO, Individually and on behalf of his minor son, Vic Allo v. Kassie B. JEFFERSON et al.
    No. 58427.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: Jake Allo, individually and on behalf of his minor son, Vic Alio applying for certiorari, or writ of review, to the Court of Appeal, 333 So.2d 704, Second Circuit, Parish of Caddo.

Writ Denied. Under the facts found by the court of appeal, we find no error in the result.

DIXON, J., is of the opinion the writ should be granted.


author: DIXON and DENNIS, JJ.,

text:
    James E. LaCROIX et al. v. TRAVELERS INDEMNITY CO. et al.
    No. 58432.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: James E. LaCroix applying for certiorari, or writ of review, to the Court of Appeal, 333 So.2d 724, Second Circuit, Parish of Winn.

Writ refused. On the facts found by the court of appeal, the result is correct.

DIXON and DENNIS, JJ.,

are of the opinion the writ should be granted to clarify, if we can, Hero Lands Co. v. Texaco, Inc. and the per curiam on the denial of rehearing. If anything is clear, it is that Hero does not require ultra-hazardous activity before the neighbors can recover loss of value caused by a 667 violation.


text:
    STATE of Louisiana ex rel. Charles PRICE, Sr. v. STATE of Louisiana.
    No. 58435.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: Charles Price, Sr., applying for remedial writs of certiorari and habeas corpus.

Writ denied. There is no merit to this application. Relator has not made an unconditional application for an out of time appeal.

DIXON, J.,

concurs in the denial. Applicant is not entitled to transcript to search out error in order to seek post-conviction remedy. Transcript may be furnished if applicant seeks and is granted an out-of-time appeal.


text:
    STATE of Louisiana v. Bertell BROWN, Jr.
    No. 58473.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: Bertell Brown, Jr., applying for writs of certiorari and review.

Denied. On the facts shown at the hearing on the probation revocation, there is no error in the ruling of the trial judge revoking applicant’s probation.

DIXON, J.,

concurs in the denial. Fairly construed, the rule to show cause charged misconduct as well as arrest.


text:
    Bonnie M. HATCH v. Urzula Cloud HATCH.
    No. 58476.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: Urzula Cloud Hatch applying for certiorari, or writ of review, to the Court of Appeal, 335 So.2d 707, Second Circuit, Parish of Jackson.

Application denied; we cannot say the court of appeal erred in the result.

DENNIS, J., is of the opinion the writ should be granted.


text:
    STATE of Louisiana v. Emma RANSOM and Allen Richard.
    No. 58510.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: State of Louisiana applying for Writ of Certiorari, Mandamus and Prohibition.

Writ Denied. No error of law.

SANDERS, C. J., is of the opinion that a writ should be granted.

SUMMERS, J.,

is of the opinion L.R. Statute 40:966(C)(1) is special legislation more recently enacted expressing the latest expression of legislative intent. Accordingly, this section should prevail over the general and more ancient provision of La.Rev. Statute 40:893 which permit suspension of sentences, etc. The writ should be granted to correct the erroneous sentence.

MARCUS, J., is of the opinion that the writ should be granted.


text:
    STATE of Louisiana v. Douglas Bryan BOYD et al.
    No. 58705.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: Douglas Bryan Boyd, Eric Reed Gutter, and Ernest Reginald Pichón applying for writs of certiorari, review and mandamus.

Writ denied. Upon the showing made by this application, there is no error in the ruling complained of.

CALOGERO, J., concurs in this writ denial.


author: LOTTINGER, Judge.

text:
    Mrs. Issannac HAWKINS v. SECURITY INDUSTRIAL INSURANCE COMPANY.
    No. 10900.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Wilson C. Krebs, Patterson, for appellant.
    Donald T. Carmouche, Donaldsonville, for appellee.
    Before LANDRY, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is a suit by Mrs. Issannac Hawkins, plaintiff, to recover on three separate insurance policies issued by the defendant, Security Industrial Insurance Company, on the life of her late husband. The Trial Court rendered judgment in favor of the defendant and the plaintiff moved for a suspensive appeal, however, the suspensive appeal bond was not filed timely, though timely for a devolutive appeal, and therefore, will be considered as such.

Plaintiff’s husband was shot to death by Jessie H. Engleton on October 12, 1974. Defendant denies any obligations under the policies alleging that an exclusion included in each of the policies provided that the policies do not allow coverage for “ * * * death or injury resulting directly or indirectly from * * * injuries, intentionally inflicted upon the Insured by himself or by another person * * * ” and operates as a bar to her recovery in the instant case. Plaintiff is the named beneficiary on each policy.

The facts as found by the Trial Court are as follows:

“Hawkins and another, Jesse H. Engle-ton, got involved in an argument at a local bar room. Things got out of hand and Hawkins said he would kill Engleton, at which point he obtained a chain and began swinging it at Engleton, who in the interim had obtained a gun from one Mildred Black. Engleton evidently shot several times to ward off Hawkins but to no avail. He eventually shot and killed Hawkins. Engleton declared at the trial that he did not intend to kill Hawkins but to scare him off. Later, Engleton was brought before the Grand Jury for the commission of the crime of “Second Degree Murder.” However, the Grand Jury returned a “No True Bill”, evidence of which was introduced into the record. Therefore, the main issue to be determined in this case is whether under the circumstances delineated supra the exclusion contained in the insurance policy should act as a bar to Mrs. Hawkins’ recovery.”

The evidence reflects that the plaintiff’s husband was shot at by Engleton some three or four times. In reaching its decision, the Trial Court said:

“The leading ease concerning this issue is TORNABENE vs. ATLAS LIFE INSURANCE COMPANY [La.App.], 295 So.2d 10 (4 C-1974), writ refused [La.] 299 So.2d 360. The Tornabene case discusses the entire line of jurisprudence on this particular issue, involving almost the identical exclusion. In Tornabene and the other cases cited in the opinion, the exclusion was held invalid. However, the reason the courts found the exclusion to be invalid was evidentiary in nature. The Court of Appeal adopted the trial court’s finding that the case of CHAMBERS vs. FIRST NATIONAL LIFE INSURANCE COMPANY [La.App.], 253 So.2d 636 (1971) is controlling. In the Chambers case, the court held that the burden of proof is to show that the death was by ‘violent and external means unforeseen by the victim to show that the death was accidental.’ Upon this showing, the burden then shifts to the defendant to prove ‘that the death falls under the intentional act exclusion by showing that (1) the killing was intentional and (2) that the victim was the intended victim.’ (Tornabene v. Atlas Life Insurance Company, supra, at p. 12).
“In the instant case, it appears that Hawkins was the aggressor and therefore it is not apparent that the plaintiff has proven that the injury resulting in Hawkins’ death was unforeseen. One cannot threaten to kill another and not expect his intended victim to lay passively by and allow himself to be killed. Certainly it is foreseeable that if you accost someone in such a fashion, that a foreseeable result would be that the aggressor becomes the victim. In the alternative, it can hardly be said that Engleton did not intend to kill Hawkins. Even though he testified that he did not and was not indicted by the Grand Jury, it is apparent from the evidence that he must have intended to kill Hawkins. It could not be conceived that Engleton was going to continue to fire ‘warning shots’ at Hawkins who had threatened to kill him, apparently intended to do so, and had within his means a weapon with which to accomplish that end, namely the chain. Therefore, I feel that the killing was intentional and that the evidence bears this opinion out.
“With regard to the second evidentiary requirement to be met by the defendant, that the actual victim was the intended victim, the evidence is also clear. Engle-ton, in apparent self-defense, shot Hawkins. He knew who Hawkins was. Hawkins assailed him and he intended to stop that assault. There is no question but that Hawkins was the intended victim. “Although the parties have not argued the point, it seems that the decedent’s widow would also be barred by another exclusion, namely because the policy does not cover death resulting directly or indirectly from ‘participation in any criminal act.’ The de'cedent, Hawkins, was engaged in an aggravated battery when he was killed so that exclusion should apply-”

After a reading of the record, we find no manifest error on the part of the Trial Judge. Therefore, for the above and foregoing reasons as pronounced by the Trial Judge in his written reasons for judgment, the judgment of the Trial Court is affirmed. All costs of this appeal to be paid by plaintiff-appellant.

AFFIRMED.


author: SCHOTT, Judge.

text:
    GOLDEN LANE MARINE, INC. v. BOBBEN FABRICATORS, INC. and Summit Insurance Co. of New York.
    No. 7028.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1976.
    Rehearing Denied Oct. 13, 1976.
    Writ Refused Dec. 8,1976.

      Adams & Reese, Michael G. Crow, New Orleans, for plaintiff-appellee.
    Gordon K. Konrad, Gretna, for defendant-appellant.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   SCHOTT, Judge.

Defendant, Bobben Fabricators, Inc. (Bobben), has appealed from a judgment making absolute a rule for a preliminary injunction filed by plaintiff and ordering Bobben to deliver a vessel to plaintiff upon plaintiff’s payment to Bobben of $30,000. Plaintiff has not itself appealed or answered Bobben’s appeal. While the judgment was also rendered against Bobben’s surety, Summit Insurance Company of New York, Summit has not appealed and consequently is not a party to the proceedings before us.

On September 21, 1973, a contract was entered into between Bobben, designated therein as “builder,” and plaintiff, designated therein as “owner,” under which Bobben was to construct a tugboat for plaintiff. The contract excluded “any work commonly referred to as ‘outfitting’.” It provided for completion by March 15, 1974, with provisions for extensions of time in favor of Bobben in the event of delays beyond its control, but required that Bobben give notice in writing to plaintiff of any such delay within five days from the start thereof. It provided further for a contract price of $250,000 to be paid in installments of $10,-000 with the furnishing by Bobben of a performance bond, $75,000 when the steel required for the construction was in Bob-ben’s yard, and progress payments every 30 days based on the percentage of completion, and the percentage of machinery, equipment and fixtures delivered to Bobben for installation in the vessel. The final payment was to be made upon delivery of the vessel. The contract also contained the following:

“This contract embodies all agreements between the parties hereto and any promises, agreements, representations, or obligations which may have been previously made or undertaken by either party and not set out herein are cancelled and shall be of no further force or effect.”

Following the confection of the contract plaintiff arranged for financing with its bank to the extent of $700,000, which was then anticipated as necessary for the completion of the vessel. By the time this loan agreement was completed, the performance bond was furnished by Bobben and the steel had been delivered to Bobben’s yard so that an initial payment of $85,000 was made. Progress payments totaling $135,000 were made during construction, and by the end of 1974 a total of $220,000 had been paid on the account. In addition, plaintiff had paid $117,000 for equipment materials and supplies, which were installed in the vessel during construction, and plaintiff had purchased for $333,340 the engines which were likewise installed in the vessel during the construction.

A number of delays had been encountered by Bobben so that the initial deadline of March, 1974, was long past before this dispute arose. During this period of time costs had increased and Bobben had taken a loss on the project. In addition, Bobben hoped to get a contract from plaintiff for the second phase of the construction of the vessel, namely, the outfitting, which was specifically excluded from the contract for the construction and which had never ripened into a contract between the parties. But by the end of 1974 Bobben was intent upon making up for the loss it had incurred on the contract for the construction of the vessel with a contract for the outfitting, but, apparently, plaintiff was unwilling to pay Bobben’s price.

While these negotiations were in progress Bobben declined to proceed any further on the construction contract. At this point, some 27,000 man-hours had been expended on the project and Bobben’s vice president admitted that it would take only 250 man-hours or a week’s work to complete the contract. ■ Thus, plaintiff was confronted with a situation where it had paid to Bob-ben $220,000 to construct the vessel, it had paid $450,000 for equipment and engines now installed in the vessel, the work on the vessel under the contract was 99% complete, the vessel was subject to easy removal from Bobben’s possession and delivery to plaintiff, and plaintiff was willing to pay the balance of $30,000 under the contract, but Bobben refused to complete the work and deliver the vessel despite the fact that it was now January, 1975. Bobben’s obvious motive was to pressure plaintiff into making a contract for the outfitting which would be financially beneficial to Bobben.

In attacking the trial judge’s injunction Bobben takes the position that the contract was one of sale and the $10,000 to be paid when the performance bond was delivered was earnest money under LSA-C.C.- Art. 2463, so that either party could recede from the contract in consideration of the amount of the earnest. Alternatively, Bobben asserts that the contract was an “obligation to do” under C.C. Art. 1926, and pursuant to Art. 1927 plaintiff was relegated to a suit for monetary damages and was not entitled to specific performance.

The circumstances of this case do not support the position that this was a contract to purchase and to sell with the $10,000 being in the nature of earnest money. From the wording of the contract and the manner in which payments were made, we must conclude that plaintiff simply employed Bobben to construct this vessel out of materials which were supplied by plaintiff. Before construction commenced plaintiff was the owner of the steel for which it paid $75,000 to Bobben, and while under construction, the vessel was the property of plaintiff. Plaintiff’s suit cannot be construed as one seeking specific performance of a sale but was simply an attempt by plaintiff to get possession of its own property. Likewise, we do not agree that plaintiff was relegated to a suit for monetary damages under C.C. Art. 1927. This is not an “ordinary” case where Bobben’s breach of contract would entitle plaintiff only to monetary damages. Aside from the fact that plaintiff was being deprived of possession of its property, compensation for which cannot be accurately measured, plaintiff was confronted with the extraordinary situation of having spent some $770,000 on its vessel, being willing to pay the balance of $30,000 in order to get possession thereof, and being told by Bobben it could not get possession unless plaintiff agreed to employ Bobben to the outfitting on the vessel.

The trial judge has broad discretion in determining whether to grant or refuse a preliminary injunction and his decision will be disturbed only in cases where a clear abuse of this discretion has been shown. Picard v. Choplin, 306 So.2d 918 (La.App.3rd Cir. 1975), LSA-C.C.P. Art. 3601 authorizes the issuance of an injunction in cases where irreparable injury, loss or damage may otherwise result to the applicant. On the facts of this case we cannot say that there was an abuse of discretion on the part of the trial judge, and accordingly the judgment appealed from is affirmed.

AFFIRMED.


author: LANDRY, Judge.

text:
    Raymond CHAISSON v. Karen Ann LeBOUEF.
    No. 10858.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Appellant, Karen Ann LeBouef did not file a brief in this matter. Neither did she appear prior to the calling of this case for oral argument.

In accordance with Rule 7, Section 5(b), Uniform Rules, Courts of Appeal, this appeal is considered abandoned, and is hereby ordered dismissed at Appellant's cost.

Appeal dismissed.


author: CHIASSON, Judge.

text:
    STANDARD ROOFING COMPANY, INC., Plaintiff and Defendant-In-Reconvention-Appellant. v. RAGUSA BROTHERS, INC., Defendant and Plaintiff-In-Reconvention-Appellee.
    No. 10844.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.

      Breard Snellings, Robert E. Barkley, Jr., of Sessions, Fishman, Rosenson, New Orleans, Paul Marks, Jr., of Dale, Owen, Richardson, Taylor & Mathews, Baton Rouge, for plaintiff and defendant-in-reconvention appellant.
    Iddo Pittman, Jr., Pittman & Matheny, Hammond, for defendant and plaintiff-in-reconvention appellee.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

Standard Roofing Company, Inc., plaintiff and defendant-in-reeonvention-appel-lant, has brought this appeal from a judgment of the District Court dismissing its suit- and awarding Ragusa Brothers, Inc., defendant and plaintiff-in-reconvention-ap-pellee, $360.56 plus interest from date of judicial demand.

This suit was filed by the appellant to recover $5,049.44, together with interest and attorney’s fees, the balance alleged as due on a building contract. The appellee answered, denying the appellant’s allegations and reconvened for $56,410.00, plus interest from date of judicial demand. This demand included $50,000.00 for damage to reputation, humiliation and embarrassment; $5,060.00 for painting the exterior of the building, which painting the appellee alleged was necessitated by the appellant’s improper performance in roofing the building; $1,000.00 for various damages to metal roof decking caused by the methods appellant used in transporting materials over them; and $350.00 for damages to the automatic sprinkler system caused when the employees of the appellant ran machinery into it.

After a trial on the merits the District Court dismissed the appellant’s suit and awarded the appellee the difference between the cost of painting the exterior of the building and the amount still owed on the original subcontract, plus $350.00 for other damages to the premises.

On March 19, 1968, the appellant, a roofing contractor, entered into an agreement with the appellee, a general contractor, under which the appellant was to construct the roof on the Elmer’s Candy Corporation building in Ponchatoula, Louisiana. Work on the roof began at the end of January or the beginning of February, 1969. The roof specified was a composition roof consisting of a layer of rigid insulation placed over a steel deck, an asphalt base sheet, three plys of felt, and gravel, with hot asphalt mopped between each layer. A gravel guard formed the finished edge of the roof with gutters to control water runoff.

The normal method of installing a roof of this type is to put the insulation and asphalt base sheet down first, making the entire building water tight as soon as possible. Then the layers of felt are applied. The gutters and gravel guards go on next and are flashed in with two strips of felt. The final coat of asphalt and gravel is then applied.

The appellant employs only union labor. One union, the roofers, install all the roofing material (insulation, felt, gravel and asphalt). A second union, the sheet metal workers, install the gravel guards and gutters. At the end of May, 1969, the sheet metal workers went on strike, halting work on the roof. Prior to the strike, all of the insulation and basesheets had been installed and 1100 of the 1175 squares of felt and gravel had been installed. 1500 feet of the gravel guard and 900 feet of gutter were in place.

Due to the strike work on the roof was not completed until August, 1969. The walls on the warehouse were stained as a result of water running off the unfinished roof and down the sides of the building. Because of these stains, it was necessary for the contractor to paint the exterior of the building. After a trial on the merits the Trial Judge held that the appellant was liable for the cost of painting the exterior walls.

The errors specified by the appellant as plaintiff are:

“1. The Court erred in failing to allow Standard an extra of $447.00 which was admitted as due by Mr. Mannino, representative of Ragusa.
“2. The Trial Court erred in dismissing Standard’s suit against Ragusa and in not awarding judgment in favor of Standard for the balance due on its original contract of $5,049.44, plus the $447.00 admittedly due as an extra for a total judgment in favor of Standard of $5,496.44, plus 6% agreed contract interest from March 27, 1970.”

The errors specified by the appellant as defendant-in-reconvention are:

“1. The Trial Court erred in not dismissing the reconventional demand of Ragusa Brothers since said reconventional demand was not proved by a preponderance of the evidence.
“2. The Trial Court erred in not maintaining Standard Roofing’s plea of prescription.
“3. The Trial Court erred in failing to give effect to the contract between the parties which contained an exculpatory clause and a ‘strike clause.’ ”

In his judgment the Trial Judge awarded the appellee $360.56, the difference between the cost of painting the exterior of the building ($5,060.00) and the amount still due on the original subcontract ($5,049.44), plus $350.00 for other damages to the premises caused by the appellant. During the trial, evidence was introduced which established that the appellant was entitled to an additional $447.00 as a result of a change order.

“Under the doctrine of variance, proof which goes beyond the pleadings is inad-missable if objected to. If no objection is made at the time evidence is introduced, then the pleadings are considered enlarged to that extent.” Tate, 43 Tul. 211 at 224.

Because no objection was made to the introduction of testimony establishing that the appellant was due an additional $447.00 for work done in constructing the roof, the appellant’s pleadings are considered enlarged to that extent. CCP Art. 1154. Kennedy v. Travelers Insurance Company, La.App., 277 So.2d 692 (2nd Cir. 1973); Kegley v. Grain Dealers Mutual Ins. Co., La.App., 207 So.2d 824 (3rd Cir. 1968).

Judicial compensation occurs when a court decides that the two parties before it are mutually indebted to each other and balances the amounts found to be owed in fixing the judgment. The most usual case in which this arises is one where the conditions for legal compensation do not exist and the party who is sued on a debt files a reconventional demand. In these cases the judge finds for each party and renders judgment for the difference between the amounts found to be owed. Tolbird v. Cooper, 243 La. 306, 143 So.2d 80 (1962). It is clear from the award contained in the District Court’s judgment that he found the appellant and appellee to be mutually indebted. Because the Trial Judge found that there was a valid debt owed the appellant by the appellee under the contract, it was error for him to dismiss the appellant’s suit. However, it was not error for the Trial Judge to render judgment for the difference between the two debts.

The basic law in regard to a contractor’s liability for failure to properly perform a building contract is contained in Civil Code Article 2769 which provides:

“If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

Where remedial work, not contemplated by a subcontract, is required to complete a project, the cost of such remedial work must be borne by the party at fault. Alumaglass Corp. v. Adm’x of Succession of Kendrick, La.App., 303 So.2d 911 (1st Cir. 1974). It is implicit in every building contract that the work will be performed in a good workmanlike manner, free from defects in either materials or workmanship. To recover for damages resulting from defects in construction, it is necessary to prove the existence and nature of the defect, that the defect is due to faulty workmanship or materials, and the cost of correcting the defect. Neel v. O’Quinn, La. App., 313 So.2d 286 (3rd Cir. 1975). The evidence adduced at the trial on the merits clearly establishes the existence and nature of the defect, stains on the wall, and the cost of correcting the defect, $5,060.00, the cost of painting the exterior walls.

The question central to a determination of the appellee’s right to recover on his reconventional demand is whether the defect resulted from faulty workmanship. The method used by the appellant in constructing the roof followed accepted industry practices. It would appear that this method produces a workmanlike result where there is no delay in installation of gravel guards and gutters following completion of the felt layers and there is no rain. The appellant did not perform the contract in a workmanlike manner because his installation of the ■ gravel guards and gutters was delayed during a period when rain might be expected on a fairly frequent basis.

The mere allegation that the appellant “purposely and negligently delayed completion of said work long past a reasonable completion date” does not make the appellee’s reconventional demand an action in tort rather than contract where the allegation is part of the appellee’s action in contract. Federal Insurance Co. v. Insurance Co. of No. Amer., 262 La. 509, 263 So.2d 871 (1972). Appellee’s right of action is one in contract and the ten year prescription contained in Civil Code Article 3544 applies.

The contract between the appellant and the appellee provided in part that “All contracts are for immediate acceptance and are contingent upon strikes, accidents, or other causes beyond our control” and “It is understood that we (the appellant) are to be held blameless for damage to buildings or contents during the erection of material required in this contract.” The appellant contends that the delay in installation of the gravel guards and gutters was the result of a “strike” and that the appellant cannot, therefore, be held liable for the damage.

Because the Trial Judge did not assign written reasons for his judgment and because his oral reasons were not transcribed and included in the record, we do not know if he made a determination as to whether the delay in installing the gravel guards and gutters was caused by the appellant’s failure to provide sufficient workers or by the strike.

The amount of work done by the appellant in each month, as evidenced by his monthly estimates, may be summarized as follows:

WORK PERIOD (1969)

INSULATION

BASE-SHEETS

. 3 PLY-ROOFING

GRAVEL

GRAVEL GUARDS

GUTTERS

Start to 2/27 110 110 110 110 0 0

2/27 to 3/25 399 399 399 143 480 0

3/25 to 4/29 416 416 91 148 0 0

4/29 to 5/30 250 250 500 699 1020 900

TOTALS 1175 1175 1100 1100 1500 900

The orderly progression of work with regard to installation of the insulation, ba-sesheets, 3 ply-roofing (felt) and gravel, ' combined with testimony in the record that the appellant had a full roofing crew on the job on a regular basis, indicates that there was no unreasonable delay by appellant in installing the roofing. The length of time the roofing took to install may be attributed to the weather. However, there is no such orderly progression with regard to the installation of gravel guards and gutters and little evidence as to whether the appellant maintained a full crew of sheet metal workers. While it is true that gravel guards and gutters are not installed until after the 3 ply-roofing, nevertheless, considering the fact that the sheet metal workers’ contracts were coming to an end and a strike was possible, even if not probable; that there was a very real danger of staining with the roofing on, but not the sheet metal; and, that because almost all of the 3 ply-roofing was on, almost all of the sheet metal could have been on, we conclude that the appellant failed to perform in a workmanlike manner and is therefore under Civil Code Article 2769 liable for the cost of painting the exterior of the building.

The evidence adduced supports the Trial Judge’s holding that the appellant was liable for an additional $350.00 for damages to the automatic sprinkling system.

For the above and foregoing reasons, the judgment appealed from is reversed, insofar as it dismisses appellant’s suit, is amended to award the appellant $86.44 (the difference between the amount owed appellant on the contract,$5,049.44, plus $447.00, and the amount due appellee, $5,060.00 for painting, plus $350.00 for repairs to the sprinkler system), and is affirmed as to all other aspects. Cost to be paid by the appellant.

REVERSED AND RENDERED IN PART, AMENDED, AND AFFIRMED IN PART.

      . In squares of roofing.

      . In linear feet.