author: MELVIN, Judge.

text:
    Dennis R. NEVELS, Appellant, v. STATE of Florida, Appellee.
    No. FF-79.
    District Court of Appeal of Florida, First District.
    Nov. 10, 1977.

      Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   MELVIN, Judge.

Appellant-defendant seeks reversal of a judgment and sentence imposed upon him for the crime of murder in the second degree.

Appellant urges reversible error for: 1) alleged improper remarks by the state attorney, and 2) alleged error that is said to flow from the testimony of a police captain to the effect that when appellant was advised of his Miranda rights and asked if he wished to make a statement, “. . .he told me, no, he didn’t wish to talk to me.” We discuss these in the order presented.

It was error for the state attorney, in his opening remarks, to call the jurors’ attention to the fact that the deceased was married and had a 13-year-old daughter. This error, however, was rendered harmless by the prompt admonition and charge to the jury by the trial judge in sustaining the objection of defense counsel.

It is error of unconstitutional proportion for the state to present testimony that, when the defendant had been advised of his Miranda rights, he claimed the benefit of such rights and refused to answer questions, or to make a statement. See Bennett v. State, 316 So.2d 41 (Fla.1975); Martin v. State, 334 So.2d 841 (Fla. 4th DCA 1976); and Shannon v. State, 335 So.2d 5 (Fla.1976). Under the facts of this case, however, the statement of the officer was rendered harmless by a “blurted out” statement of the defendant to his girlfriend. The record reveals that a few minutes after his interview by the officer, the defendant met his girlfriend in a nearby office and voluntarily stated to her: “I killed the son of a bitch and I would do it again if I had to.” It is our view that defendant’s voluntary statement, unrelated in point of time to his saying to the officer he did not wish to make a statement, rendered any error in the trial court’s ruling to be harmless.

The evidence established overwhelmingly the guilt of the defendant. There is no reasonable possibility that the officer’s statement complained of might have contributed to the conviction, Bennett v. State, supra, at 44.

In State v. Young, 283 So.2d 58, 60 (Fla. 1st DCA 1973), this Court held:

“In any prosecution there are, of course, two parties involved; the State of Florida as the plaintiff and the person accused of crime as the defendant. They each stand before the Bar of Justice upon level ground. The defendant is entitled to a fair and an impartial trial. By the same token, the State of Florida, representing its citizenry, is likewise entitled to a fair and impartial trial. Neither the State of Florida nor any defendant may, within reason, expect to receive a perfect trial in any tribunal in which mortals preside. In nearly every adversary proceedings, some technical error may be found. Unless error reaches to and affects in a prejudicial manner the rights of a party to a fair and impartial trial, such error is harmless and does not infect the validity of the proceedings.
“One of the stated purposes of those who put together the fabric of the Constitution of the United States was to ‘establish justice ’ and insure ‘domestic tranquility. [Emphasis supplied.] Such noble purposes were not reserved just to those accused of crime. They spread as a mantle of protection for the citizenry in general.”

The appellant having failed to demonstrate reversible error, the judgment and sentence are

AFFIRMED.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jiri BEREZOVSKY, Appellant, v. The STATE of Florida, Appellee.
    No. 75-490.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 1977.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, and John Coleman, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on May 18,1976 (335 So.2d 592) affirming the judgment and sentence of the Circuit Court for Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed September 15, 1977, 350 So.2d 80 and mandate now lodged in this court, affirmed in part and reversed in part and remanded the cause for resentencing.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on August 10, 1976 is withdrawn the judgment of this court filed in this cause on May 18, 1976, except as is affirmed by the judgment of the Supreme Court dated September 15, 1977, is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court. The judgment and sentence appealed from herein is reversed in part and affirmed in part and the cause is remanded to the trial court for resentencing consistent with the views expressed herein. Costs allowed shall be taxed in the trial court (Rule 3.16b Florida Appellate Rules).


text:
    Nathaniel FLOWERS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-995.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1977.

      Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita G. Esquiroz, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Nathaniel Flowers was charged by information with burglary of a dwelling and grand larceny. At trial, a jury found Flowers guilty on the charge of burglary, and not guilty on the charge of grand larceny. Following a presentence investigation, the trial court adjudicated Flowers guilty of burglary and sentenced him to fifteen years in the state penitentiary. On this appeal, Flowers contends that an answer given by a state witness suggested that he (Flowers) had prior criminal entanglements, and that the court erred in denying defense counsel’s motion for a mistrial on those grounds. We do not agree.

The record reflects that on defense counsel’s cross examination of a state witness, extensive inquiry was made into the matter of who first identified the defendant while the witness and a police officer were searching for him in the officer’s car. In attempting to ascertain from the witness whether he identified the defendant before or after the officer brought, him (the defendant) back to the car, defense counsel read into the record a portion of the witness’ testimony given in a pretrial deposition:

Q Page 17.
‘Q While you were sitting in the car you said something to the police officer, is that right? You said that’s the fellow, whatever.’
And you said, ‘I don’t know whether I said anything or not. It wasn’t necessary. He evidently knew him because the minute he saw him he stopped the car, got out and put him under arrest.’ ” (emphasis added)

On redirect examination of that witness by the prosecutor, the following colloquy took place:

“Q . . when you were riding around with the officer and you saw the defendant, who said something first, you or the officer; if you recall?
A That I’m not sure about, because the officer evidently recognized the man from probably previous things.” (emphasis added)

Defense counsel objected and moved for a mistrial. The objection was sustained, but the motion for mistrial was denied. The jury was instructed to “disregard the last statement.”

In our opinion, the question of who said something first was proper on redirect examination as it related directly to questions asked on cross examination, and tended to qualify, limit or explain testimony elicited on cross examination. See Hinton v. State, 347 So.2d 1079 (Fla.3d DCA 1977). As a general rule, a motion for mistrial should be granted during a criminal trial with great care and caution, and only where there is an absolute legal necessity. Lawson v. State, 304 So.2d 522, 524 (Fla.3d DCA 1974); Johnsen v. State, 332 So.2d 69, 71 (Fla. 1976). The response, “the officer evidently recognized the man from probably previous things,” was an unsolicited volunteered response. In* the context of the record before us in this case, taking into consideration the court’s curative instruction to the jury, we find no error in the failure to grant the motion for mistrial. See Rhome v. State, 222 So.2d 431 (Fla.3d DCA 1969); Rivers v. State, 226 So.2d 337 (Fla.1969).

The other point raised by the defendant is without merit and will not be discussed.

Affirmed.


text:
    Loretta Dannean OAKLANDER, Appellant, v. Jules OAKLANDER, Appellee.
    No. 76-1841.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1977.
    Joe N. Unger and Mark King Leban, Miami, for appellant.
    Adams, George, Schulte & Ward and Amy Shield Levine, Miami, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. Ludacer v. Ludacer, 211 So.2d 64, 65 (Fla.2d DCA 1968).


text:
    Robert L. KOEPPEL, Appellant, v. Phyllis G. KOEPPEL, Appellee.
    Nos. 77-366 and 77-616.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1977.

      Koeppel, Stark & Newmark, Miami, for appellant.
    John W. Watson III, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

In these consolidated appeals, a husband appeals from a final judgment of dissolution of marriage and a post final judgment order, and a wife cross appeals from the same judgments. We affirm the decisions below.

The parties were married for twenty-one years. At the time of the final hearing there were two minor children at home, aged fifteen and seventeen, and a nineteen year old away at college. The husband is an attorney, the wife a college graduate who recently became a licensed real estate salesperson, earning small sums through this vocation.

They owned, in joint names, a marital home in Coral Gables valued at approximately $187,000, encumbered by a $29,000 mortgage. They also owned property in, the Florida Keys, the land having been given to the wife by her father, improvements thereon in the nature of rental apartments having been built by the parties while married. There were other extensive property holdings acquired during coverture, some in joint names, some solely in the husband’s name. Both parties owned substantial assets, though each contested the other’s estimated net worth.

The trial court entered a final judgment awarding the wife permanent alimony of $1,000 a month; child support of $200 a month per minor child until each reaches the age of eighteen; and ordering the marital home to be sold, but requiring each party to pay half of the taxes, insurance, and mortgage payments until it is sold. A special equity in the Keys property was found for the husband, which was awarded to the wife as lump sum alimony along with $15,000 from the husband’s half of the net proceeds of the sale of the Coral Gables home. The wife was also awarded $2,500 attorney’s fees for the dissolution proceedings, and, in a post judgment order, $750 attorney’s fees for additional proceedings. Thereafter the trial court denied the wife’s petition for modification. These consolidated appeals followed.

Appellant-husband assigns as error the trial court’s award of permanent alimony to the wife, contending that rehabilitative alimony would have been proper, and also that the amount of the permanent alimony was excessive. He also asserts error in the trial court’s award of lump sum alimony, in its determination of the amount of his special equity, and in its award of attorney’s fees in the amounts stated.

Cross appellant-wife contends, inter alia, that permanent alimony was correctly awarded, but the trial court erred in granting an insufficient amount; that the lump sum award is not enough; that she should have been granted special equities in additional properties; and that her petition for modification should have been granted in its entirety.

The function of the trial court is to evaluate the testimony and evidence from the perspective of immediacy available to it, to observe and weigh the demean- or and credibility of the witnesses and information presented. It is not the function of the appellate court to reevaluate the evidence, but merely to decide whether the judgment of the trial court is supported by competent evidence. Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Herzog v. Herzog, 346 So.2d 56 (Fla.1977).

A review of the trial court’s judgments in the light of the record presented on appeal reveals no abuse of discretion. While we might have chosen to balance the distribution of the parties’ assets differently, we find neither error nor abuse of discretion in the results it reached.

Nor are we able to conclude that the awards of lump sum and permanent alimony were error on the facts before us. See Schultz v. Schultz, 290 So.2d 146 (Fla.2d DCA 1974); Lash v. Lash, 307 So.2d 241 (Fla.2d DCA 1975); Maissen v. Maissen, 347 So.2d 798 (Fla.2d DCA 1977). The record reflects that the wife has assets of her own, and is healthy, educated and able to work. But she remains responsible for the care of teenage children, and has become accustomed-to a relatively high standard of living over the term of the marriage. Moreover, the likelihood of a woman of her age being able to earn an income that would enable her to maintain a reasonably similar standard is slight, for she has not had the opportunity to enhance her earning capacity over the years through job experience, while the husband is a seasoned professional whose capacity for earning a living is well established. Despite annual variations in his income, nothing in the record indicates that his earning capacity will not continue at least at present levels, if not increase because of additional years of experience and expertise to be expected in the future. Based on the record before us and the mandates of Shaw and Herzog, supra, we affirm the decision of the trial court.

Affirmed.


text:
    VOLKSWAGENWERK AKTIENGE-SELLSCRAFT, a Foreign Corporation, Appellant, v. Vivian SKINNER, as personal representative of the Estates of Dan Skinner and Sam Skinner, minors and parent and natural guardian, Appellee.
    No. 77-745.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1977.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Mark Hicks, Miami, for appellant.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Fred 0. Pasternack, Miami, for appellee.
    Before HENDRY, C. J., and HAVER-FIELD and HUBBART, JJ.
   PER CURIAM.

Affirmed. See McKibben v. Mallory, 293 So.2d 48 (Fla.1974); Griffis v. J. C. Penny Company, Inc., 333 So.2d 503 (Fla. 1st DCA 1976).


author: HAVERFIELD, Judge.

text:
    STATE of Florida ex rel. William M. OWRA, Relator, v. FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY and T. W. Stewart & Associates, Respondents.
    No. 77-1050.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1977.
    William M. Owra, in pro. per.
    Kenneth H. Hart, Jr., Tallahassee, and James R. Parks, Miami, for respondents.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   HAVERFIELD, Judge.

Claimant, William M. Owra, by way of certiorari seeks review of an order of the Industrial Relations Commission that his appeal to the appeals referee was untimely.

On January 10,1977 the claims examiner mailed a notice of claims determination to petitioner disqualifying him from receiving unemployment compensation benefits. Petitioner had 10 days from the date of mailing (or until January 20, 1977) to appeal this determination; however, he never received the notice. Petitioner first learned of the disqualification when he appeared at the local claims office on January 21, his normal reporting date, and thereupon he immediately filed an appeal. The appeals referee determined that under the circumstances petitioner’s appeal was timely and reversed the disqualification determination of the claims examiner. Petitioner's employer appealed the appeals referee’s decision to the Industrial Relations Commission. On April 19 the Commission entered an order determining that petitioner’s January 21 appeal to the appeals referee was untimely, and the appeals referee lacked jurisdiction to consider petitioner’s appeal as the determination of the claims examiner became final on January 20. The order quashed the decision of the appeals referee and reinstated the disqualification determination of the claims examiner. Petitioner argues his appeal to the appeals referee was timely.

On two previous occasions this court has been presented with the identical jurisdictional issue and we determined that the denial of an appeal under similar factual circumstances amounts to a denial of due process. See State ex rel. Martinez v. Fla. Div., etc., 339 So.2d 313 (Fla. 3d DCA 1976) and Polatnick v. Fla. Dept. of Commerce, 349 So.2d 203 (Fla. 3d DCA 1977). We find likewise in the ease at bar and hereby treat this cause as a petition for writ of mandamus and hold that petitioner is entitled to the issuance of such a peremptory writ.

The April 19 order of the Industrial Relations Commission is quashed, the decision of the appeals referee is reinstated and the cause is remanded to the Commission with directions to consider the appeal by petitioner’s employer from the decision of the appeals referee on the merits and to hold a hearing. We assume these directions will be followed without the necessity for the issuance of a final peremptory writ of mandamus.

So ordered.


text:
    EKL-MARA, INC., a Florida Corporation, d/b/a Universal Health Studios, Appellant, v. Maria T. GAUNA, Appellee.
    No. 77-2251.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1977.
    Rohan & Rohan, Miami, for appellant.
    Sussman & Granda, Miami, for appellee.
    Before PEARSON, HAVÉRFIELD and NATHAN, JJ.
   PER CURIAM.

The plaintiff in the trial court having appealed an order of dismissal with prejudice and the defendant having filed a confession of error before the filing of the record in this court, therefore, in order to expedite the disposition of the cause, the order appealed is reversed and the cause is remanded to the trial court for such further proceedings as he shall find proper.

Reversed and remanded.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Rita DAVIS and Gail D. Smith.
    No. 59637.
    Supreme Court of Louisiana.
    Oct. 10, 1977.
    Rehearing Denied Nov. 11, 1977.
    James E. Boren, Boren & Holthaus, Baton Rouge, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Anthony J. Marabella, Jr., Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
   SANDERS, Chief Justice.

Defendants, Rita Davis and Gail D. Smith, were convicted and sentenced in the district court for the armed robbery of a gasoline service station in East Baton Rouge Parish, a violation of LSA-R.S. 14:64. On appeal, defendants rely upon five specifications of error for reversal of their convictions and sentences. Finding merit in defendants’ Specification of Error No. 1, we reverse the conviction.

In Specification of Error No. 1, defendants complain that “[t]he trial court erred in admitting testimony over defense objections regarding the fact that a lie detector test was administered to the State’s chief witness, Belvin Sanders, and the trial court erred in allowing the State to establish through testimony that Belvin Sanders passed the lie detector test.”

It is well settled in our state, as well as in many other jurisdictions, that the fact that a lie detector test was given and the results of such a test are inadmissible in a criminal prosecution. The circumstance that a party was willing or unwilling to take the test or that a test was given is inadmissible because it is viewed as an attempt by indirection to evade the direct prohibition against lie detection testimony. State v. Governor, La., 331 So.2d 443 (1976); State v. Corbin, La., 285 So.2d 234 (1973); State v. Refuge, 264 La. 135, 270 So.2d 842 (1972); McCormick on Evidence, § 207 (2d ed. 1972) Annotation, Physiological or Psychological Truth and Deception Tests, 23 A.L.R.2d 1306 (1952) and supplement; 22A C.J.S. Criminal Law § 645(2); 32 C.J.S. Evidence § 588(4); 29 Am.Jur.2d, Evidence § 831; Skolnick, Scientific Theory and Scientific Evidence: An Analysis of Lie Detection, 70 Yale L.J. 694, 724-28 (1961).

Although it is settled that reference to the fact that a lie detector test was given, as well as the results, is inadmissible, we have held that such a reference does not always constitute reversible error. State v. Refuge, supra. For this reason, we find it necessary to explain in considerable detail our holding of reversible error under the circumstances of this case.

The State’s chief witness, Belvin Sanders, was the attendant on duty at the service station when the alleged armed robbery occurred. She testified that about 11:00 p. m., on July 14, 1976, two women entered the station, produced a gun, took her money, and ran away. Further, she testified that at the time of the robbery she did not know the names of the two women, but several days later, she saw the two women in the food stamp office and obtained the name of at least one of them. This information, which she relayed to the police, resulted in the arrests of the two defendants.

The defendants contended that they were not guilty of armed robbery because they had no weapon and because they obtained the money from Belvin Sanders pursuant to a plan in which Sanders was involved.

Elizabeth Stewart, a witness for the defense, testified that one afternoon she and the defendants went to the station where Sanders was employed and that Sanders initiated a conversation with Rita Davis. The essence of the conversation was that Davis could go back to the station one evening at which time Sanders would give her some money; would later call the police, after Davis had time to escape; report an armed robbery; and tell the police that she was unable to identify the perpetrators.

Stewart declined to be involved in the proposed activity, and the defendants testified that Davis informed Smith of the proposal to which Smith agreed. They testified that, on the basis of Sanders’ proposal, they decided to engage in the proposed theft; went to the station; got the money from Sanders; and ran through the back where they were observed by a passer-by, later discovered to be Ricky Welsh, who lived in the area.

Both defendants testified that they saw Sanders in the food stamp office and that they did not divide the money they had gotten from the station with Sanders because the amount was very small, $58, and they thought that Sanders had “held out” on them. The implication from their testimony is that once Sanders was informed at the food stamp office of their intention not to divide the money with her, she, Sanders, became angry and identified them to the police. The defendants were arrested late on the same day or in the early morning hours of the next day after their meeting with Sanders in the food stamp office.

Ricky Welsh, who appeared as a hostile witness for the State, knew both Sanders and Davis prior to the robbery. Although he had identified Davis at a lineup, he recanted this identification at trial and testified that the two defendants could have been the same two people he saw running away from the station the night of the robbery.

Obviously, Belvin Sanders’ credibility was of vital importance to the State in this prosecution for armed robbery. This conclusion is reinforced by the State’s closing argument to the jury, which was devoted almost entirely to the credibility of this witness.

The fact that Belvin Sanders had been given a lie detector test came to the attention of the jury in the following ways: On cross examination, defense counsel asked numerous questions for the purpose of testing Ms. Sanders’ veracity and memory. In answer to defense counsel’s question regarding what time she went to work the day after the robbery, she unresponsively mentioned that she had been taken to have a lie detector test:

“Q. . . . Did you work the day after the robbery?
“A. I worked that evening, that evening from 2:00 to 10:00, I think — yeah, some time that day I worked.
“Q. Now, let’s get this straight. You were on duty on July 14 from 10:00 a. m. until 6:00 in the morning, and you say the robbery happened about 11:00 in the morning — I mean 11:00 at night?
“A. Somewhere around that time.
“Q. Around that time?
“A. Yeah.
“Q. You called the police that night, they came out, and the following day, which would be July 15, you went to work that evening from 2:00 to 10:00?
“A. I went to work after I had went— my manager had taken me to a lie detector test, I went to work after-wards.
“Q. All right. Now, you’re positive you worked that following day, is that correct?”

Sanders’ testimony that she had taken a lie detector test was unresponsive to the question regarding the hours she had worked on the day following the robbery. Rather than request an admonition to the jury at this point, defense counsel continued with his cross examination. LSA-C.Cr.P. Art. 771. When defense counsel finished his cross examination, he asked that the jury be retired so that the matter could be discussed with the court. Defense counsel then stated that Sanders had unresponsively made reference to the lie detector test and asked that there be no further testimony regarding a lie detector test. The prosecutor requested that he be allowed to ask the witness if, in fact, she took a lie detector test and, if she did, if she returned to work after she had taken the test. The court ruled that the prosecutor could ask the question. The defense objected to the court’s ruling and assigned error. On redirect examination the prosecutor did indeed bring out the fact that Ms. Sanders had taken a lie detector test and had returned immediately thereafter to work. The defense timely objected to these questions and was overruled. The prosecutor further brought out that Ms. Sanders had continued to work for the station for several months after the robbery; had quit the job because she was pregnant; and that she intended to return to her previous employment after the birth of her baby. Defense counsel objected to this line of questioning and was overruled by the court. Again in closing argument, the prosecutor sought to support Ms. Sanders’ truthfulness by the fact that she had been retained in her employment and would return after the birth of her child.

Since the witness’s answer to the defense counsel’s original question was unresponsive, the State’s contention that defense counsel opened the door for further questions regarding the lie detector test lacks merit.

In State v. Refuge, supra, we set forth the applicable principles as follows:

“Although there is no Louisiana decision in point, the universal rule in American jurisdictions is that (at least in the absence of stipulation) the results of a lie detector test are inadmissible when offered by either party, either as substantive evidence or as relating to the credibility of a party or a witness. The essential reason is the lack of probative value and insufficient scientific reliability, as well as the possible unduly prejudicial effect upon lay triers of fact.
“ * * * [Citations omitted.]
“Moreover, because of the reasons for which the test itself is inadmissible, these same authorities summarize the uniform holdings to be that likewise inadmissible is the willingness or unwillingness of a witness or a party to submit to such examination, as is evidence that the test was administered. Such evidence is excluded as an attempt by indirection to evade the direct prohibition against lie-detection testimony for jury consideration, based upon the incompetency and unduly prejudicial effect of such testimony in judicial proceedings. See also Annotation, Propriety and prejudicial effect of comment or evidence as to accused’s willingness to take lie detector test, 95 A.L.R.2d 819 (1964) and later case supplementing it.
“However, as there noted, if such evidence of this latter type is admitted, it may not necessarily be reversible error, depending upon whether the party was prejudiced by it.
(( ‡ * *
“In the present instance, an extremely close question is presented whether reversible error was committed by the State’s improper elicitation of testimony as to whether a witness had taken a lie detector test. Nevertheless, we ultimately conclude that the error is not so prejudicial as to be reversible, upon examination of the entire record and in the context in which the error occurred.”

See also, State v. Governor, supra; State v. Corbin, supra, McCormick on Evidence, supra, Annotation, Physiological or Psychological Truth and Deception Tests, 23 A.L.R.2d 1306 (1952) and later cases supplementing it; 22A C.J.S. Criminal Law § 645(2); 32 C.J.S. Evidence § 588(4); 29 Am.Jur.2d, Evidence § 831; Skolnick, Scientific Theory and Scientific Evidence: An Analysis of Lie-Detection, 70 Yale L.J. 694, 724-28 (1961).

After a careful examination of the entire record and review of our prior holdings as well as those of other jurisdictions, we are forced to conclude that not only was error committed but that the error committed substantially prejudiced the defendant and was, therefore, reversible. LSA-C. Cr.P. art. 921. In the present case, by eliciting impermissible testimony to the effect that the witness had taken a lie detector test and establishing that she had been retained in her employment, the State created the impression that the witness took the test; told the truth; and, therefore, was testifying truthfully at the trial. In our opinion, this represents a substantial evasion of the prohibition against lie detection testimony. In the case before us, the impermissible testimony was so prejudicial as to require reversal. LSA-C.Cr.P. art. 921.

For the reasons assigned, the convictions and sentences are reversed, and the case is remanded for a new trial in accordance with law and the views herein expressed.


text:
    U. S. OIL OF LOUISIANA, LTD., et al. v. LOUISIANA POWER AND LIGHT CO.
    No. 60681.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: U. S. Oil of Louisiana Ltd. et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Lafourche. 350 So.2d 907.

Denied.


text:
    U. S. OIL OF LOUISIANA, LTD., et al. v. LOUISIANA POWER AND LIGHT CO.
    No. 60678.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Louisiana Power and Light Co., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Lafourche. 350 So.2d 907.

Denied.


text:
    STATE of Louisiana v. John H. McCOY and George W. McCoy, Jr.
    No. 60608.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: State of Louisiana applying for remedial writs.

Writ granted. Ruling of trial court reversed, bill of information reinstated. See C.Cr.P. art. 296, Official Review Comment. Trial court shall order defendant released without bond. When ño probable cause is shown at preliminary hearing, defendant is properly released without bond; however, the trial court does not have authority to dismiss the bill of information.


text:
    Glen R. FOLDEN v. TRAVELERS INSURANCE CO. and Futch Motor Co., Inc.
    No. 60845.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: Glen R. Folden applying for certio-rari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Winn. 349 So.2d 1004.

Denied.

DIXON, J., would grant the writ.


text:
    Elois DOYLE v. EMPLOYERS FIRE INSURANCE COMPANY et al.
    No. 60847.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: Elois Doyle applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides. 349 So.2d 450.

Writ denied.

CALOGERO, J., would grant the writ.


text:
    William J. MOREAUX, Individually, etc. v. ARGONAUT INS. CO.
    No. 60896.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: William J. Moreaux, Ind. and on behalf of his two minor children applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu. 350 So.2d 240.

Writ denied.

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


text:
    STATE of Louisiana ex rel. Claude Woods and Joseph WOODS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 60596.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: Claude Woods and Joseph Woods applying for writ of habeas corpus. Writ denied. The transcribed contemporaneous colloquy of March 22, 1972 shows that the defendants’ guilty pleas were voluntarily made, with full awareness of the consequences., The allegations to the contrary, and of inadequate assistance of counsel, do not, under the circumstances, show that the petitioners are entitled to an evi-dentiary hearing.


author: LEMMON, Judge.

text:
    FRANK BRIGTSEN, INC. v. ALPHA BUILDERS, INC. & Charles Foster.
    No. 8529.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Cronvich & Wambsgans, Metairie, Kenneth V. Ward, Jr., New Orleans, for plaintiff-appellee.
    Scariano & McCranie, George Scariano, Metairie, for defendants-appellants.
    Before SAMUEL, LEMMON and BEER, JJ.
   LEMMON, Judge.

This is a suit on an open account against Alpha Builders, Inc. and Charles Foster, who owned 50% of the stock in the corporation. The trial court rendered judgment holding the defendants liable in solido for the account balance. Foster has appealed.

The issue on appeal is whether the evidence is sufficient to hold Foster liable for the debt, either by contracting the debt individually or by becoming a surety on the debt contracted by the corporation.

The invoices, reflecting a series of sales of building materials, are not in the record, but plaintiff’s manager testified that, according to the invoices, the materials were sold and delivered to Alpha Builders, Inc. He further testified that Foster “requested that they (the materials) be sold to Alpha Builders, Inc.”, but that, because of a credit statement completed and executed by Foster, he was under the impression that Foster was to be responsible for the debt.

A creditor suing on an open account has the burden of proving that the defendant, alleged to be the debtor, contracted for the sales on open account. In the present case there is no specific testimony that Foster ordered the particular materials or was in any way connected with the particular purchases at issue. Indeed, plaintiff’s procedure of addressing invoices and Foster’s testimony that the materials were ordered by an employee of th.; corporation indicate that Alpha Builders, Inc. purchased the materials involved in these sales. Moreover, there was no evidence whatsoever of an account in the name of Charles Foster. We therefore conclude plaintiff failed to prove Foster was liable on the debt as purchaser of the materials.

As to Foster’s liability as surety for the debtor, plaintiff argues that credit was extended on the basis of the following document completed and signed by Foster:

This argument essentially asserts that Foster was liable as surety for the debt incurred by Alpha Builders, Inc. However, suretyship cannot be presumed, but must be expressed. C.C. art. 3039. Nowhere in the document does Foster expressly bind himself to satisfy the obligation of Alpha Builders, Inc. Foster therefore cannot be held liable as surety for the debtor.

Accordingly, the judgment of the trial court as to Charles Foster is reversed, and it is now ordered that the suit against Charles Foster be dismissed. Each party is to bear his own costs in both courts.

REVERSED AND RENDERED.

      . This case does not present the frequently occurring problem of a corporate agent failing to disclose his representative status to a seller who is otherwise unaware that the other contracting party is a corporation. Here, the seller was well aware that the purchaser was a corporation and addressed the invoices to the corporation at the request of the corporate agent.


author: EDWARDS, Judge.

text:
    John E. CLARK v. Louise Cavalier CLARK.
    No. 11670.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.

      Larry Boudreaux, Thibodaux, for defendant and appellant.
    Sidney Sundbery, Houma, for plaintiff and appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

On July 13, 1977, this Court, ex proprio motu, ordered the parties in this suit to show cause why the present appeal should not be dismissed for failure to file the appeal bond timely.

The record indicates that defendant, Louise Cavalier Clark, is appealing an adverse judgment signed on February 11, 1977.

On February 18, 1977, Mrs. Clark filed a motion for a new trial. A hearing on the motion was held on March 25, 1977, and the trial court took the matter under advisement. Judgment was rendered on May 11, 1977, denying the motion for a new trial. No written request for notice of judgment was ever filed on behalf of Mrs. Clark. However, notice of the judgment denying the motion for a new trial was sent to counsel for both parties on May 13, 1977.

On May 26, 1977, Mrs. Clark obtained an order of appeal in which the trial judge set the return date and fixed the amount of the appeal bond. Mrs. Clark thereafter filed her . appeal bond.

The delay within which to perfect an appeal from a judgment granting a separation from bed and board is thirty (30) days. LSA-C.C.P. article 3942. This delay commences to run, in cases such as the present case in which a timely application for a new trial has been filed, from the date of the trial court’s refusal to grant the new trial if the applicant is not entitled to notice of such refusal. LSA-C.C.P. articles 2087(2) and 3942.

In the instant case, Mrs. Clark was not entitled to notice of the denial of her application for a new trial as she had not filed a written request for notice of judgment as provided in LSA-C.C.P. article 1914. Harris v. Dupree, 322 So.2d 380 (La.App. 2nd Cir. 1975), writ refused 325 So.2d 612 (La.1976); Me Dowell Well Service, Inc. v. Gray and Company, 270 So.2d 647 (La.App. 3rd Cir. 1972).

Therefore the delay for perfecting an appeal commenced on May 11, 1977, the day the trial court denied Mrs. Clark’s application for a new trial. This delay expired on June 10, 1977.

Counsel for Mrs. Clark argues that the appeal bond was filed timely as it was mailed to the Clerk of Court’s office on June 7, 1977 with a cover letter also dated June 7, 1977. He maintains that the bond was received by the Clerk of Court within the delays for perfecting the appeal. The letter of June 7 is in the record and indicates that the appeal bond and the check to cover the cost for preparation and lodging of the record were transmitted with the letter.

We have received a' certificate from the Clerk of Court of Terrebonne Parish which certifies that the attorney’s check was deposited on June 9, 1977. Therefore, we conclude that the appeal bond was received on or prior to June 9, 1977, and was timely.

The apparent policy of the 32nd Judicial District of holding an appeal bond for “approval” by the District Court has no legal significance. The appeal bond was timely received by the Clerk, and therefore was timely “filed.”

For the above reasons, the show cause order is recalled and vacated.

ORDER RECALLED AND VACATED.


author: LANDRY, Judge.

text:
    KENNER MARINE AND MACHINERY, INC. v. William BEZDEK et al.
    No. 11724.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Jules A. Carville, III, LaPlace, of counsel for plaintiff-appellant Kenner Marine & Machinery, Inc.
    Charles Seeman, Jr., New Orleans, of counsel for defendant-appellee Maryland Cas. Co.
    Donald Cave, Baton Rouge, of counsel for defendant-appellee, William Bezdek, et al.
    Asst. Gen. Counsel Sharon Frazier, Baton Rouge, of counsel for defendant-appellee Dept, of Highways.
   ON MOTION TO DISMISS APPEAL

Before LANDRY, SARTAIN and ELLIS, JJ.

LANDRY, Judge.

The Department of Highways, State of Louisiana (Appellee), has moved dismissal of the appeal taken by plaintiff (Appellant) from judgment maintaining Appellee’s exception of no right of action. The motion is predicated on Appellant’s alleged untimely posting of the required appeal bond. We grant the motion and dismiss the appeal.

On May 11, 1977, judgment was rendered in the presence of counsel for Appellant, maintaining Appellee’s said exception and dismissing Appellant’s suit as to Appellee, with prejudice. Judgment was signed that same day. Appellant did not apply for a new trial. On June 7, 1977, Appellant applied for and was granted a suspensive appeal or, alternatively, a devolutive appeal, on posting bond in the sum of $250.00. Appellant posted bond on August 5, 1977.

A suspensive appeal must be taken and bond posted therefor within 30 days of expiration of the delays for applying for a new trial when no application for new trial has been made. La.C.C.P. Article 2123. The delay for taking a devolutive appeal and posting bond therefor is 60 days within expiration of the delays for applying for a new trial when a new trial has not been requested. La.C.C.P. Article 2087.

A new trial must be applied for within 7 days, excluding holidays, of the signing of judgment when notice of judgment is not required. La.C.C.P. Article 1974.

Notice of judgment is not required when judgment is rendered at the conclusion of trial and the party against whom judgment is rendered does not request notice of judgment when judgment is signed. La.C.C.P. Article 1913.

Notice of judgment was not required in this case. Article 1913, above. Since notice was not required, the delays for applying for new trial herein commenced Wednesday, May 12,1977, and expired Friday, May 20, 1977. The sixty day delay for perfecting a devolutive appeal herein commenced May 21,1977, and expired Tuesday, July 19, 1977. Appellant’s posting of bond on August 5, 1977, was untimely.

Failure of Appellant to timely post the required appeal bond is a jurisdictional defect mandating dismissal of the appeal. Wright v. Mark C. Smith & Sons Partnership, 264 So.2d 304 (La.App. 1st Cir. 1972); Something Irish Company v. Rack, 333 So.2d 773 (La.App. 1st Cir. 1976).

The appeal herein taken by Appellant is dismissed as to defendant State of Louisiana, Through the Department of Highways, at Appellant’s cost.

Appeal dismissed.


text:
    Lionel McCASTLE et al. v. TRI-G MARINE SUPPLIES CO. et al.
    No. 11369.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.

      Etta Kay Hearn, Baton Rouge, of counsel for plaintiff-appellant Lionel McCastle, et al.
    M. O’Neal Walsh, Baton Rouge, of counsel for defendant-appellee Tri-G Marine Supply Co. et al.
    Robert L. Cangelosi, Baton Rouge, for defendant Earl J. Guidry.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Plaintiffs appeal from judgment rejecting their respective actions in tort for alleged personal injuries resulting from their averred forcible ejection from a barge belonging to defendants and moored in the Mississippi River in the City of Baton Rouge. We affirm.

The alleged incident occurred on the night of July 4, 1973, when plaintiffs went to the river bank to witness a public fireworks display in celebration of Independence Day. Plaintiffs’ version of the incident is that they arrived after the fireworks display had ended. Thinking that defendants’ barge sold fireworks, plaintiffs boarded the barge to purchase fireworks and obtain a better view of the river. While on the barge, plaintiffs were insulted, cursed, ordered to leave and physically abused by defendants. Plaintiffs contended they saw no sign on the gang plank of the barge indicating a private party was in progress and for uninvited guests to keep away. They also testified they did nothing to provoke an assault and offered to leave voluntarily when told the party was private.

Defendants’ account of the occurrence is that they had erected a sign over the gang plank which sign stated that a private party was in progress, and which warned uninvited persons to keep off. Upon noting plaintiffs aboard, defendants requested that plaintiffs leave and plaintiffs did so without incident. After plaintiffs’ departure, unknown parties began throwing stones at the barge, striking one or more guests aboard.

Based on discrepancies in the testimony of plaintiffs’ witnesses, and failure of plaintiffs to call a single disinterested witness on their behalf, the trial court concluded that plaintiffs failed to prove their case by a preponderance of evidence. We find no manifest error in this determination. On the contrary, our independent review of the record discloses more than sufficient evidence to support the trial court’s factual finding.

Factual findings of the trier of fact are entitled to great weight on appellate review. Where there is a conflict of testimony, reasonable evaluations of credibility and reasonable inferences of fact made and drawn by the trier of fact should not be disturbed on appeal. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The judgment is affirmed at plaintiffs’ cost.

Affirmed.


text:
    Thirkeel EVANS v. The TRAVELERS INSURANCE COMPANY.
    No. 11446.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.

      Robin W. Poirier, and John F. McKay, Baton Rouge, of counsel, for plaintiff-appellant Thirkeel Evans.
    John R. Tharp, Baton Rouge, of counsel, for defendant-appellee The Travelers Ins. Co.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Plaintiff (Appellant), an inmate of Louisiana State Penitentiary, Angola, Louisiana, appeals from judgment dismissing his claim for personal injuries sustained while riding on the fender of a farm tractor being operated on the penitentiary grounds by a fellow inmate. We affirm.

The accident occurred on April 18, 1975. At the time, Appellant, a trustee, was known as a “horse boy” whose duties consisted of caring for horses used by prison supervisory personnel in charge of work crews. As such, Appellant brought saddled horses to a designated work site and remained on hand for the sole purpose of tending and caring for the horses during the day.

On the day in question, Appellant was assisting in a sandbagging operation on the Mississippi River Levee which protects the penitentiary grounds from inundation during high water. Two crews of prisoners were being used to fill and place sandbags atop the levee at low places. One crew was under the control of Howard Dupont, an unarmed work -supervisor. The other was under the control of Barry Lemoine, an armed field supervisor. The crews had been brought to the work site in carts or “hootnannies” drawn by a small farm tractor operated by inmate Allan Mitchell. Du-pont ordered Mitchell to use the tractor and proceed to Camp G and bring back a ball of twine needed to tie sandbags. Mitchell unhitched the carts from the tractor and with Appellant seated on a fender of the vehicle, proceeded toward Camp G via the gravel road on top of the levee. En route, Mitchell encountered a sharp curve described by Du-pont as an elbow curve and by Lemoine as an S curve. The road was considered to be in fairly good condition, although it did have some holes, mud puddles and bumps at various places. Mitchell entered the curve at a speed sufficient to cause the tractor to leave tracks from 40 to 50 yards in length. The tracks continued a short distance beyond the curve at which point the tracks ran off the levee and into the river. Mitchell stayed on the tractor and was drowned. Appellant jumped off the machine and was injured when one of its wheels ran over his back as he lay face down on the ground.

The tractor had a top speed of approximately 35 miles per hour. It was a new machine and in good condition.

Appellant’s sole duty was to care for the horses. He was not required to assist in the sandbagging operation. As a trustee, he was not guarded as closely as prisoners in the work detail, and was allowed considerable freedom of movement around the work site. Appellant testified he was ordered by Dupont to go with Mitchell and bring back a ball of twine which, appellant stated, weighed about 4 or 6 pounds. He seated himself on the right fender of the tractor holding on with both hands as he had done on prior occasions when he rode a tractor. He knew it was strictly against prison rules for anyone other than the driver to ride a tractor but did not dare disobey Dupont. He stated that Mitchell proceeded along the levee road about as fast as the tractor would go. While he considered the possibility of an accident with him riding in such a position, he did not think he would get hurt. He did not protest the speed at which Mitchell was proceeding.

Dupont and Lemoine were familiar with the levee road. They considered the curve dangerous and felt that it was unsafe to negotiate the curve at a speed greater than 10 miles per hour. Both men stated it was against prison rules for anyone other than the driver to ride a tractor and any prisoner caught violating the rule would face disciplinary action. In addition, any guard or supervisor ordering a prisoner to ride a tractor in violation of the rule would himself be subject to disciplinary action. Du-pont denied having ordered Appellant to accompany Mitchell. Lemoine did not hear such an order given.

Upon examining the accident site, Du-pont found the above mentioned tracks. He concluded the tractor tilted to one side because it entered the curve at excessive speed. He followed the tracks from where they commenced on the levee road to where they entered the river at which point the submerged tractor was found.

The trial court concluded Mitchell was negligent in driving the tractor at excessive speed. We concur in this finding. He also found Appellant guilty of assumption of the risk or contributory negligence in riding the tractor by sitting on its fender. Appellant contends the trial court erred in rejecting his demand because defendant has failed to discharge the burden of proving its affirmative defense of assumption of risk or contributory negligence. Inferentially, Appellant maintains defendant may not plead contributory negligence or assumption of risk because as a prisoner he had no choice except to obey Dupont’s order.

The trial court noted the divergence between the testimony of Dupont and that of Appellant concerning the alleged order to Appellant, but did not resolve this factual dispute. We note that Appellant was corroborated by a fellow prisoner, Charles Ranker, a member of the sandbagging crew.

We reject Appellant’s contention that he was ordered to ride the tractor. We do so because: (1) Dupont would have subjected himself to possible disciplinary action for issuing such an order; and (2) Appellant could have been of no assistance to Mitchell. The record shows that Appellant was almost totally occupied in holding on to the fender of the tractor.

An outrider on a vehicle assumes only such risks as are ordinarily incident to his position. He does not assume the risk of negligent driving on the part of his host driver, as he is ordinarily entitled to rely upon his host’s exercise of ordinary care. Brantley v. Brown, 277 So.2d 141 (La.1973), and authorities therein cited.

The determination of whether a plaintiff has assumed a‘ risk is made by subjective inquiry. The test is whether plaintiff voluntarily and knowingly encounters a risk which causes his injury. Prestenbach v. Sentry Insurance Co., 340 So.2d 1331 (La.1976). In determining known assumption of risk, knowledge is not imputed to plaintiff because he was in a position to make certain observations, but because he actually made observations from which he should have known a risk was involved. Prestenbach, above.

Contributory negligence, however, is determined objectively under the reasonable man standard. Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971).

We find plaintiff guilty of contributory negligence barring his recovery because it was unreasonable for plaintiff to place himself in a precarious position on a tractor designed to hold only the driver and not protest his host’s traveling at an unreasonable and unsafe speed under the circumstances.

The judgment is affirmed at Appellant’s cost.

Affirmed.


author: BLANCHE, Judge.

text:
    Timothy R. HAILEY v. BATON ROUGE MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD.
    No. 11473.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.

      Kenneth L. Riche, Baton Rouge, of counsel, for plaintiff-appellant Timothy R. Hai-ley.
    Joseph Keogh, Parish Atty., Charles E. Pilcher, Asst. Parish Atty., Baton Rouge, of counsel, for defendant-appellee Baton Rouge Municipal Fire and Police Civil Service Bd.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Timothy R. Hailey appeals from the trial court judgment upholding his dismissal from the Baton Rouge Police Department.

The appellant was dismissed from the Baton Rouge Police Department on January 23,1976. Timely, through his attorney, appellant requested the Board to review and investigate the action in his dismissal. After a hearing, the Board unanimously decided to uphold the action by the Chief of Police, stating in a resolution that the dismissal was in good faith and for cause.

The appellant appealed on March 31, 1976, to the Nineteenth Judicial District Court which upheld the Board’s decision.

On appeal to this Court, appellant assigns these errors:

“I.
“Pre-trial investigation by the Civil Service Board carried out in prejudicial and biased manner violates the good faith requirements of the Civil Service law and the decision of the Board based partially upon the prejudicial pre-trial evidence violates the good faith requirements of the Civil Service law.
“II.
“Ex parte communication between one of the litigants to a judicial or quasi-judicial hearing with one of the members of the body called upon to make a decision violates due process required of administrative and judicatory bodies and subjects the decision of that body to reversal. Thus, it is error to uphold that body’s decision on appeal.”

The substance of appellant’s argument is that when the Police Department forwarded the Board information concerning the appellant, it sent only evidence unfavorable to the appellant taken from his personnel record and certain letters of commendation were not included. Appellant contends that this was an ex parte communication from the Chief of Police without notice to the appellant and constituted a prejudicial and biased investigation. Appellant cites Camero v. United States, 375 F.2d 777, 179 Ct.Cl. 520 (1967); Brown v. United States, 377 F.Supp. 530 (N.D.Tex.1974); S & E Contractors, Inc. v. United States, 433 F.2d 1373, 193 Ct.Cl. 335 (1970); Jarett v. United States, 451 F.2d 623, 195 Ct.Cl. 320 (1971); and 5 U.S.C.A. §§ 500 and 554, supporting his position that the pre-trial investigation was carried out in a prejudicial and biased manner thereby violating the good faith requirements of civil service law. Appellant asserts in his brief that “ex parte communication between one of the litigants to a judicial or quasi-judicial hearing with one of the members of the body called upon to make a decision violates due process required of administrative and judicatory bodies.”

Though federal cases and statutes are persuasive if applicable, we find these neither persuasive nor applicable to the case at bar.

The record indicates that the letters of commendation which were not simultaneously submitted to the Board with unfavorable information were the result of letters written to the Police Department by private citizens complimenting appellant, along with other officers, for having served as a pallbearer; assisting with a sick person; and killing a snake. We are unable to believe that the omission of these letters would constitute sufficient prejudice to the appellant so as to deny him due process of law or to result in a board decision which was not made in good faith for cause. Furthermore, we note from the minutes of the Board’s hearing that the appellant was represented at the hearing by counsel and that these letters were finally included among the exhibits for the appellant.

LSA-R.S. 33:2477 pertinently provides:

“The Board shall:
“(5) Conduct investigations and pass upon complaints by or against any officer or employee in the classified service for the purpose of demotion, reduction in position or abolition thereof, suspension or dismissal of the officer or employee, in accordance with the provisions of this Part.”

In receiving the information from the Police Department the Board members complied with the investigatory duty of the statute, and this investigatory duty was met throughout the hearing at which time the letters of commendation were available as well as the advocacy of counsel for appellant. Thus, we find no prejudice.

We reject appellant’s contention that there was “ex parte communication between one of the litigants to a judicial or quasi-judicial hearing with one of the members of the body called upon to make a decision.” Instead, we find compliance on the part of the Police Department with the normal hearing procedures for the Board when the Police Department is involved. There is no evidence in the record to show that the Chief of Police took any undue initiative or extraordinary means to furnish the Board members with information upon which he based his decision to dismiss appellant.

LSA-R.S. 33:2478 gives each municipal, fire and police board the authority to execute rules, regulations and orders necessary or desirable to effectively carry out the provisions of the municipal fire and police civil service law. This would implicitly include investigations and hearings. No suggestion is made by the appellant that any of the Board’s specific rules had been violated, and since the appellant was present through counsel, we assume any violations would have been brought to the attention of this Court.

Since we find no prejudice to the appellant in the investigation by the Board, nor any improper ex parte communication between the Chief of Police and the members of the Board, we agree with the decision of the court below.

The judgment of the trial court is affirmed, and appellant is to pay all costs of these proceedings.

AFFIRMED.


text:
    Jake B. REED v. STATE of Louisiana, Through the DEPARTMENT OF CORRECTIONS.
    No. 11480.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.

      William P. Brumfield, Baton Rouge, for plaintiff and appellant.
    Marvin J. Montgomery, for defendant and appellee.
    James B. Frederick, Jr., Baton Rouge, for third party defendant Sylvesters, Inc.
    Donald T. W. Phelps, Baton Rouge, for third party defendant Ralide, Inc.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Plaintiff (Appellant), an inmate of Louisiana State Penitentiary, Angola, Louisiana, appeals from judgment dismissing his tort action seeking recovery for personal injuries sustained on horseback while assisting in loading a roped cow into a cattle trailer. Appellant was injured when his saddle pommel broke, struck him in the abdomen and caused him to fall from his horse to the ground. The State Through the Department of Corrections (Department) was named sole defendant. The Department third partied Sylvester Saddle and Leather Company from whom it purchased the saddle Appellant was using. Appellant did not join Sylvester as defendant. The trial court rejected Appellant’s contention that the Department was negligent in either furnishing him a defective saddle or a saddle too light for the work involved, thereby subjecting Appellant to an unreasonable risk of harm. We affirm.

Appellant was 43 years old at the time of the accident which occurred April 30, 1971. He is an experienced cow hand, well versed in the handling of horses, cutting cows from a herd on horseback, roping cattle and loading animals into trucks and trailers for transportation. At 21 years of age, Appellant was sentenced to 10 years in the penitentiary. In 1969, he was sentenced again to prison. In each such incarceration, Appellant, because of his superior knowledge of horses and cattle, was placed in charge of the remuda used in the cattle raising operation at the penitentiary. His duties in this capacity included caring for the horses and their gear and the repair of saddles when necessary.

When the accident occurred, Appellant was astride a 1,200 pound horse. He was using a 32 foot long “unbreakable” nylon rope, which was secured to his saddle and wrapped around the saddle pommel. Appellant roped an 800 pound animal to load it onto a cattle trailer. Assisting Appellant was James Oliveaux, Assistant Farm Manager, Appellant’s supervisor, who was also on horseback, and who also had a rope on the animal being loaded. In addition, two inmates on foot were helping in the loading. As Appellant’s horse was straining forward to pull the animal into the trailer, Appellant’s saddle pommel broke.

The testimony of Oliveaux, an experienced horseman, establishes that the saddle in question was one of about a dozen medium weight fiberglass saddles purchased by him for the Department, approximately one month prior to the accident. While admittedly not the best quality saddle available, it was of medium weight and quality, heavy enough for the work involved, and especially rigged for roping in that it had a double back girth and heavy under rigging. He bought the best available for the money allocated to him for the purchase of saddles. He conceded that his own saddle, made of leather, was the best money could buy and that he had bought his own with his personal funds. He explained that he purchased his own for what small extra measure of protection it afforded. He also explained that subject saddle was in good condition, but nevertheless saddles, including one such as his own, do sometimes break when used in roping animals.

From its purchase to the date of the accident, subject saddle was under Appellant’s care, custody and control. Nevertheless, Appellant pointed to no defect in the quality of the saddle; neither did he establish any defect in its manufacture. In essence, Appellant maintains the saddle was unsafe because it was not of the best available quality and was too light for the work involved.

We agree that the Department owes prison inmates the duty of providing equipment which is safe for whatever tasks inmates may be required to perform. We do not, however, agree that the occurrence of an accident in a penal institution shifts the burden of proof to the institution merely because the institution furnishes gear or equipment. See Boyd v. Department of Corrections, 292 So.2d 793 (La.App. 1st Cir. 1974).

As did the trial court, we find no negligence or breach of duty by the Department in this instance. The record establishes that of the dozen or so similar saddles purchased at the same time as subject saddle, Appellant’s saddle is the only one which broke. Moreover, the unrefuted testimony of Oliveaux establishes that the saddle was sufficiently heavy and rugged for roping cattle. That the saddle broke under such use does not imply or establish negligence on the part of the Department.

The judgment is affirmed at Appellant’s cost.

Affirmed.


text:
    Doris Allain PETTUS et al. v. The ATCHAFALAYA WILDLIFE PROTECTIVE SOCIETY.
    No. 11482.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.

      Joseph B. Dupont, Dupont, Dupont & Du-pont, Plaquemine, for plaintiffs, appellees.
    Samuel C. Cashio, Maringouin, C. Jerome D’Aquila, New Roads, for defendant, appellant.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Plaintiffs (Appellants) appeal from judgment dismissing their contempt rule against defendants Donald Torres (Appellee), and the Atchafalaya Wildlife Protective Society (Society), through its members, for alleged violation of an injunction prohibiting said defendants from trespassing upon property belonging to Appellants. We affirm.

The issues are: (1) May a trial court, ex proprio motu and without hearing, strike from a rule nisi a party defendant on the basis that the petition on its face does not allege a violation of the injunction; and (2) May a defense to a contempt rule be tried pursuant to a peremptory exception of no cause and no right of action.

On January 6, 1976, the trial court enjoined Society, through its members, from trespassing upon certain property situated in Iberville Parish, and in which Appellants own an approximate 28% undivided interest. On November 16, 1976, Appellants presented to the trial court a petition for a rule nisi directed to Appellee and Society seeking to have said defendants declared to be in contempt for violating the aforesaid injunction. The trial court struck that portion of the petition for rule nisi directed against the Society upon concluding the petition on its face did not allege a contempt violation by the Society. The trial court signed the rule as to Torres and the matter proceeded to trial on the merits.

Appellants’ petition, filed November 17, 1976 alleges that Torres, a member of the society, violated the injunction by subsequently thereto doing or failing to do the following: (1) Removing his hunting camp from the land; (2) Trespassing on the property; and (3) Forcing some of Appellants’ guests to leave the land.

Willful disobedience of a mandate, lawful judgment, writ or process of court is a constructive contempt of court. LSA-C. C.P. Article 224; Louisiana State Board of Medical Examiners v. Bates, 258 La. 1049, 249 So.2d 127 (1971). Although introduction of evidence is not required in an action for a direct contempt of court, an action for constructive contempt is a summary proceeding to enforce obedience of a court order when the principal issue relates to the court and the defendant in rule. Dugas and LeBlanc v. Port Barre Timber and Tie Company, 144 La. 71, 80 So. 203 (1918).

A rule to show cause must be tried contradictorily. LSA-C.C.P. Article 963.

On October 1, 1976 (after issuance of the injunction), Torres obtained a hunting lease on subject property, which lease was granted by individuals whose ownerships aggregate a 67V2 undivided interest. Subsequent to issuance of the injunction, Torres did not go upon the land until after obtaining his lease. There is no evidence that Torres forced Appellants’ guests to leave the land. Torres concedes that after obtaining his lease, he went on the property to hunt and otherwise exercised his lease rights. Torres contends that at all times he acted in his individual capacity as lessee, and that at no time did he purport to represent the Society-

The injunction was directed specifically toward the Society, through its members. It did not mention Torres individually. The Society is, of course, a legal entity distinct from its members. As a corporation, the Society may be punished for contempt for the actions of its agents, representatives and members acting in its name or on its behalf. An injunction to a corporation is a mandate to those responsible for the conduct of the corporation’s affairs. Should such parties violate the injunction, they, as well as the corporation, may be punished for contempt. A corporation is not, however, responsible for the actions of its agents or representatives acting solely in their individual capacities. See 17 C.J.S. Contempt § 34, page 94.

The trial court erred as a matter of law in striking the name of the Society from the application for rule nisi. In so doing, it contravened the provisions of LSA-C.C.P. Article 964, which states that a court may on its own motion strike an insufficient demand from a petition, but only after a hearing. The petition alleges facts which, if true, would constitute a violation of the injunction by the Society. Under the circumstances, the Society should not have been stricken from the proceeding prior to a contradictory hearing.

On trial of the rule Appellee filed exceptions of no cause and no right of action, based on the premise that the injunction was directed to the Society and not to Appellee individually. The exception of no cause of action raises the issue of whether plaintiff’s petition alleges a grievance for which the law affords a remedy. Bamber Contractors, Inc. v. Henderson Brothers, Inc., 345 So.2d 1212 (La.App. 1st Cir. 1977). Such an exception is triable on the face of the pleadings and in such trial, all well pleaded allegations of the petition must be accepted as true. No evidence is admissible in support or defense of an exception of no cause of action. LSA-C.C.P. Article 931; Haskins v. Clary, 346 So.2d 193 (La.1977). Insofar as concerns the exception of no cause of action, Appellants’ petition does state a cause of action.

At the opening of the hearing, Ap-pellee elected to try his exception of no right of action. Testifying in connection therewith, over Appellants’ objection, Ap-pellee introduced his lease and offered evidence of his possession pursuant thereto. An exception of no right of action questions plaintiff’s interest in the subject matter of the litigation. It questions plaintiff’s right to bring the action and evidence is admissible to prove or disprove said right or interest. Bamber, above.

In this instance, the ground for Ap-pellee’s exception of no right of action does not address itself to plaintiff's interest in the litigation, but is a matter of defense triable on the merits. Proceedings on Behalf of Judge v. Grosch, 222 La. 937, 64 So.2d 225 (1953).

We find the trial court correctly overruled Appellee’s exception of no right of action. We also find that this action was properly dismissed against Torres because subsequent to issuance of the injunction, he did not enter the land until after obtaining his lease. The right of a co-owner to use and possess property held in common is equal to that of other co-owners. LSA-C.C. Article 491. It includes the right to use the property for the purpose for which it is intended. Ree Corporation v. Shaffer, 246 So.2d 313 (La.App. 1st Cir. 1971). A co-owner may possess his undivided portion of the land through a predial lessee so long as the lessee does not exclude the other co-owners from the property. A lessee who possesses through his lessor is not a trespasser. Ree Corporation, above. Appellants’ contention that Appellee’s lease and possession pursuant thereto were inadmissible on trial of the rule is without foundation in law. The lease was admissible to show that Appellee was not a trespasser in violation of the injunction, but that he entered the land pursuant to a valid lease which conferred upon him the legal right to use the land for the purpose to which it was put.

The trial court should have dismissed the rule as to the Society on the merits. Since Torres did not violate the injunction there could not possibly be a violation by the Society.

The judgment is affirmed at Appellants’ cost.

Affirmed.


author: SARTAIN, Judge.

text:
    Camille RODRIGUEZ et al., Plaimtiffs-Appellants, v. HOOD TRACTOR SERVICE AND SENTRY INSURANCE, Defemdants-Appellees.
    No. 11486.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Charles B. W. Palmer, Amite, for Camille Rodriguez, plaintiffs-appellants.
    Joseph H. Simpson, Amite, for Hood Tractor and Arthur E. Hood, Jr. defendants-appellees.
    Paul Marks, Jr., Baton Rouge for Sentry Ins. defendant-appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ.

      . The correct name of the defendant is Sentry Indemnity Company.

   SARTAIN, Judge.

This automobile accident case was brought by Mrs. Rodriguez for physical injuries and lost wages and by her husband for medical expenses, property damages, and physical injuries suffered by their minor daughter. The accident, which involved a truck and horse trailer driven by defendant, A. E. Hood, Jr., and a car driven by Mrs. Camille Rodriguez in which her daughter was a passenger, occurred on December 3, 1974, near Amite, Louisiana.

Besides Mr. Hood the named defendants are his liability insurer, Sentry Indemnity Company, and Hood Tractor Service. There was no testimony at trial concerning Hood Tractor Service and suit against it was dismissed by the trial court. There was likewise no argument on this point on appeal and we therefore consider this claim to be abandoned.

The defendant Hood was proceeding westerly on Louisiana Highway 16 at between 40 and 45 miles per hour according to the testimony of both Hood and a disinterested witness. Plaintiff asserts that defendant was traveling at least 70 miles per hour. The record contains no testimony to this effect, but rather plaintiff bases his assertion upon a recitation of measurements and unsubstantiated conclusions therefrom. The trial judge as trier of fact accepted the testimony of the defendant’s witnesses as to speed. We agree with his determination.

As defendant was so proceeding, plaintiff drove out of a side road immediately in front of him. To avoid an imminent collision defendant cut to the left. It appeared that defendant had thereby successfully avoided a collision. However, Mrs. Rodriguez, who had still not seen Hood, then without looking attempted to turn left into another side road. She crashed into the horse trailer being pulled by defendant.

We find no error in the determination of these facts by the trial court. It is abundantly clear that under them Hood was in no wise negligent. The apparent bases of plaintiff’s assertion of negligence are Hood’s alleged excessive speed and his passing in a zone where passing is prohibited. However, the facts show that Hood’s speed was not excessive. Hood was likewise not negligent in crossing the double yellow lines. He was not passing but rather was doing his best to avoid an accident in the face of an emergency not of his own making. The disinterested eyewitness testified that Hood’s evasive maneuver was the only possible means of avoiding a collision. Hood was certainly not at fault when the plaintiff’s act of turning without looking caused his quick action to be unsuccessful in avoiding the accident.

For the above and foregoing reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


text:
    George W. ROBERT, Plaintiff-Appellee, v. BEARD ENGINEERING, INC., Defendant-Appellant.
    No. 11487.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    James J. Zito, Baton Rouge, of counsel for plaintiff-appellee George W. Robert.
    James M. Field, Baton Rouge, of counsel for defendant-appellant Beard Engineering, Inc.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

Defendant Beard Engineering, Inc. appeals from a judgment which ordered it to pay plaintiff, George W. Robert, $1,433.00. Plaintiff was employed by defendant from 1972 to 1975. In April of 1975 the company was experiencing cash flow problems. Harold J. Beard, the president and an eighty percent stockholder in the company, decided upon a plan to help the company out of its difficulties. He and the other directors-employees would take a salary reduction which would remain in effect until the company had regained its financial position. The reduction was agreed to by the directors at a board meeting in early April of 1975. Robert, as a director, agreed to the reduction in his salary although he was not pleased with it.

The salary reduction remained in effect from April 7, 1975 to August 31, 1975. Robert’s salary, which had been $1700.00 per month prior to April, was reduced to $1400.00 per month for this period. Then effective September 1, 1975, his salary was increased to $2000.00 per month. Plaintiff resigned his position with the company on September 29, 1975.

Plaintiff contends that under the oral agreement reached at the April board meeting he along with the other directors were to be reimbursed their salary reductions for the slightly under five month period if the business became sound. There being no dispute that the business was financially sound as of September 1, 1975, but the defendant having refused to pay him, plaintiff brought this action for his salary loss.

The trial court concluded that Robert’s assertions were borne out by the evidence and therefore held in his favor. The defendant argues that the trial court’s determination of facts leading to its conclusion that there was an oral agreement was manifestly erroneous. We, however, find that the conclusion that the reduction was to be repaid if the business improved is supported by the evidence. Plaintiff testified that Beard stated at the meeting that the reduction “would be taken care of” at the end of the fiscal year in the probable form of a bonus. Donny Gill, another director, testified that Beard stated that the reduction would be made up before the end of the year. His impression was that if the company got on a sound financial footing they would be paid. Mr. Beard himself testified twice that if the company got back on its feet the reductions would be repaid to the directors. Only Raleigh Cox, who was also a director, testified that there was no promise to repay. Even if he believed that the repayment would probably be made. Cox is an extremely loyal employee of Beard; at one point he testified he would have worked for nothing. His testimony is not strong enough to override the other evidence.

In view of the testimony found in the record, we have had a difficult time discovering the basis for the defendant’s argument of manifest error. Beard Engineering seems to place great reliance on statements by Donny Gill that he did not believe that he had an enforceable agreement for the return of the salary reduction. But Gill’s opinion cannot affect our decision. It is for the court to determine the enforceability of an agreement. Simply because Gill believed the agreement to be unenforceable and chose not to attempt its enforcement cannot affect Robert’s right to his pay under the agreement.

We find no error in the trial court’s determination of the agreement entered into between the parties.

Defendant also urges that even if there were an agreement it included an implied condition that plaintiff remain in the company’s employ for a reasonable time after its financial condition improved. If he had done so, he would have been compensated for his loss through his increased salary which began September 1. However, defendant makes no reference to any statement in the record to substantiate such an implied condition. After a careful review of the record, we have also been unable to discover any such evidence.

Finally, defendant urges that in any event he should receive a credit on his obligation for $300.00, the September salary increase. Beard testified that it was his intent to make up the reduction in this way. If the payment were made as partial repayment it should be so credited. However, Beard further testified that he never communicated his intention for the allocation of the salary to Robert or the other directors. Other testimony of Beard indicates that the increase in salary was based on merit. There is no indication that the increase raised Robert’s salary to a figure higher than his services were worth. We therefore find nothing manifestly erroneous in the view of the trial court that the increase in salary was just that and not a repayment on the salary loss.

For the reasons assigned, we affirm the holding of the lower court at appellant’s cost.

AFFIRMED.


text:
    Barbara Jenkins, wife of Darly M. CABLE, Plaintiff-Appellant, v. Francis T. CAZAYOU, John W. Simpson and St. Paul Fire & Marine Insurance Co., Defendants-Appellees.
    No. 11488.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.

      Peter J. Abadie, Jr., New Orleans, for plaintiff-appellant.
    H. Martin Hunley, Jr., New Orleans, for defendants-appellees.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

This is a medical malpractice case in which plaintiff appeals from an adverse judgment. We affirm.

Plaintiff avers that Drs. Francis T. Ca-zayou and John W. Simpson, obstetrical and gynecological specialists practicing as partners in Covington, Louisiana, were negligent in the performance of two operations on her and in the post-operative care given to her. The first operation, a presacral neurectomy, was performed by Dr. Cazayou with the assistance of Dr. Simpson. Following this operation Ms. Jenkins developed an abscess in the presacral area. It was treated with antibiotics until a complete blockage of the small intestine was discovered by x-ray. A second operation was then performed by Dr. Simpson, assisted by Dr. Cazayou, to surgically remove the obstruction. In this operation a colostomy was performed. The blockage was successfully removed. However, Ms. Jenkins has continually had extensive problems involving her abdominal area.

The testimony of the plaintiff and the two defendant physicians was taken at trial. The other testimony was submitted by deposition. The other witnesses were (1) Dr. Patrick Hunter, a general surgeon in Covington, who examined the plaintiff pri- or to the second surgery and later performed additional surgery on her, (2) Dr. Jacob Kety, a general practitioner in Cov-ington, who treated the plaintiff on numerous occasions subsequent to the operation in question, (3) Dr. James Willis, a radiologist in Covington, who interpreted numerous x-rays of the plaintiff both before and during the hospitalization in question, and (4) Dr. Edward Hyman, an internist in New Orleans, who treated plaintiff on numerous occasions subsequent to the hospitalization in question.

The trial court found that the plaintiff had failed to carry her burden of showing that these doctors were negligent. “The burden of proof rests with the plaintiff to establish that a physician deviated from the required standard of care employed by other physicians practicing in the same locality and under similar circumstances.” Delaune v. Davis, 316 So.2d 7, 9 (La.App. 1st Cir. 1975). Findings of fact made by the trial court should not be disturbed on appeal unless they are found to be manifestly erroneous. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

The plaintiff contends that the determination that the defendants were not guilty of negligence is erroneous. She points to several areas of alleged negligence which we will consider in turn.

Prior to the first surgery plaintiff was suffering from chronic pelvic pain which the doctors were treating with ovulatory drugs. They believed the pain was caused by endometriosis although they did not rule out pelvic inflammatory disease. When the problem did not respond to the conservative drug treatment, Dr. Cazayou recommended a presacral neurectomy. This is a procedure in which certain nerves, whose only function is to recognize pain in the presa-cral area, are clipped and removed. This recommendation was made by Dr. Cazayou and accepted by Ms. Jenkins. The only other available technique to relieve her pain was a hysterectomy. Because she wished to retain her child-bearing capabilities Ms. Jenkins chose the presacral neurectomy.

Plaintiff apparently contends that malpractice occurred in that no erythrocyte sedimentation rate was obtained prior to surgery. However, the only testimony on this point was that a “sed-rate” was “usually” obtained prior to such an operation. Dr. Kety, who stated this, never testified that failure to obtain a “sed-rate” was negligence.

Ms. Jenkins also contends that a biopsy should have been done during the first surgery. This would have been the only method of confirming the doctors’ diagnosis. However, there is no evidence that a determination of whether Ms. Jenkins’ problem was endometriosis or pelvic inflammatory disease would have aided in later treatment. In fact, the testimony shows that a biopsy would have prolonged the operation and caused unnecessary blood loss. This failure was not malpractice and in any event there is no showing that it caused damage.

Contention is made that the antibiotic therapy between the two operations was improper. This is based on the evidence that only one antibiotic (which later proved ineffective although it is a commonly used broad spectrum drug) was used by the doctors at a time when Dr. Kety testified he would “cover with antibiotics.” The record does not reveal what this phrase means. Plaintiff asserts it means using several antibiotics. Whether this is correct or not, Dr. Kety never testified that the antibiotic therapy used by the doctors was improper.

It is also alleged that the second operation was beyond the competence of Drs. Simpson and Cazayou as obstetricians/gynecologists. The only evidence to support this is the statement of Dr. Kety that he would have liked to have a general surgeon with him in performing the operation. But this does not necessarily indicate that Dr. Simpson and Dr. Cazayou should have had a general surgeon present. They were more expert in gynecological surgery than Dr. Kety, who was only a general practitioner. In any event, Kety never said that it was improper for Dr. Simpson to perform the surgery.

Dr. Kety likewise testified that he would most likely have performed the second surgery before the time that the doctors did. He admitted that the time of intervention would depend upon the clinical course of the patient. He did not actually see the patient as Drs. Simpson and Cazayou had. In any event, he only testified to what he would have done and he was not as expert as either of the defendants. He did not say that they were negligent.

Ms. Jenkins also alleges that the second surgery was improperly performed. There is no medical evidence to support this allegation. All witnesses who testified on this point (Drs. Simpson, Cazayou and Hunter) stated that the surgery was properly done.

The trial brief of counsel for plaintiff in this case is replete with these and other arguments supported largely by inferences of negligence drawn from the defendants’ testimony and medical records. However, such inferences by a layman carry almost no weight in a medical malpractice suit. Likewise, simply because one doctor testifies he does a procedure in one way, the court is in no position to infer that another doctor who does it in a different manner is negligent. The plaintiff must prove his case through medical testimony as to the prevailing community standard.

The plaintiff also complains that there was error in denial of her motion for a new trial. She alleged in her motion that she had been operated on since the trial by two doctors “who feel that Dr. Francis T. Cazayou and Dr. John W. Simpson did in fact act toward the plaintiff in a manner which could be construed by this court to be malpractice.”

The party seeking a new trial bears a heavy burden.

“For a new trial to be granted on the ground of newly discovered evidence, the party praying for it must show clearly that he discovered this evidence after the trial, and that he used every effort and all diligence in his power to timely procure the necessary evidence, and, if his vigilance is in doubt, his application must fail.”

Orlando v. Polito, 228 La. 846, 84 So.2d 433, 434 (1955). Here the plaintiff by affidavit simply states that “to the best of her knowledge and belief” she was unaware of the existence of these witnesses and could not have obtained their testimony with due diligence. We do not believe that this statement constitutes a clear showing. This is especially true in light of the fact that this case was pending in the trial court for five years.

There is likewise no peremptory ground for a new trial unless the new evidence would tend to change the result in the case. Strobel v. Schlegel, 145 So.2d 664 (La.App. 4th Cir. 1962) cert, denied. At the trial of the motion the plaintiff failed to introduce the affidavit or deposition of either doctor. Instead Ms. Jenkins relied on her assertion that their testimony could be construed as showing defendants’ malpractice. This is insufficient to show that their testimony would change the result of the first trial.

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

AFFIRMED.


author: LOTTINGER, Judge.

text:
    FIDELITY NATIONAL BANK OF BATON ROUGE v. Donald J. MILLS et al.
    No. 11493.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.

      Patrick McGrew, Baton Rouge, of counsel for plaintiff-appellee Fidelity National Bank of Baton Rouge.
    Doris Gates Rankin, Baton Rouge, of counsel for defendant-appellee Donald J. Mills et al.
    George Clauer III, Baton Rouge, of counsel for defendant-appellant Howard Carber.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit on a promissory note. From a judgment in favor of plaintiff, the defendant, Howard F. Carber, has appealed.

The plaintiff, Fidelity National Bank of Baton Rouge (Fidelity), filed suit on a promissory note executed on June 27, 1974, by Big River Equipment Company (Big River), as maker, and Donald J. Mills and Howard F. Carber as endorsers, in the amount of $1,651.80. Plaintiff originally sued for the face amount of the note, including interest and attorney fees, but later stipulated that the balance due was $730.96.

Carber answered denying liability and that the plaintiff was a holder in due course as well as third partying Mills for contribution. Mills answered denying liability to both the original and third party petitions. Both Carber and Mills pleaded failure of consideration.

The record points out that the note was executed to secure a loan made by Big River to purchase insurance for some of its equipment. The insurance was purchased through the Ward Insurance Agency (Ward) by Big River, and the proceeds of the loan were deposited by plaintiff to the account of Ward. Several installments on the note became delinquent, and Fidelity called upon Ward to cancel the insurance policy and refund to it the unearned premium. This Ward did.

Neither Ward nor Fidelity sent a written notice to Big River or to Carber and Mills advising that the insurance policy was being cancelled, however, Carber testified that he was informed by Mills of the delinquent status of the note.

During the trial both Mills and Carber resisted the plaintiff’s demand on the grounds that plaintiff’s action in causing the insurance policy to be cancelled without formal notice to them or to Big River constituted a failure of consideration which worked to relieve them from their obligation on the note. They considered themselves accommodation endorsers standing in the shoes of the maker.

Inasmuch as the note was executed on June 27, 1974, this controversy is controlled by the Negotiable Instruments Law, LSA-R.S. 7:1, et seq., rather than the “Commercial Laws”, LSA-R.S. 10:1, et seq.

The note sued upon is made payable to the order of “Fidelity National Bank of Baton Rouge”, and thus, plaintiff is not a holder in due course because it is the original holder thus, not coming under LSA-R.S. 7:52. Beneficial Finance Company of New Orleans v. Bienemy, 244 So.2d 275 (La.App. 4th Cir. 1971).

There is no contention that either Mills or Carber received anything of value for their endorsements, thus, they are properly termed “accommodation endorsers”, LSA-R.S. 7:29, and thus they stand in the shoes of the maker, and if the maker could show partial failure in the consideration flowing to him, then so can those sought to be held as his accommodation endorsers. CHF Finance Discount “A” Company v. Harris, 188 So.2d 457 (La.App. 4th Cir. 1966).

The question then is whether there was a failure of consideration. The purpose for executing the promissory note was to obtain sufficient funds with which to buy insurance. This was accomplished with the signing of the note. It was only after the note became delinquent by several installments that.plaintiff requested of the insurance agency a cancellation of the policy and a partial refund of the premium.

It was undisputed that the note sued upon was not the type of note normally used by plaintiff for the purpose of financing insurance premiums. Rather, this note was simply an unsecured hand note. The language in the note clearly states the intention of the parties in connection with default of any payments. “It being understood and agreed that my failure to pay any installment of this indebtedness at its maturity shall, at the option of the holder of this note, without demand or putting in default cause all unpaid installments to become at once due and exigible.” In the printed material above the signatures, the endorsers, Howard F. Carber and Donald J. Mills, unconditionally bound themselves to the terms of the said note. The insurance contract between Ward and Big River is not incorporated into this note. Even though the insurance agent was the individual who suggested the plaintiff bank to the defendants for the purpose of obtaining the necessary funds for the insurance premium, the policy remained in control of the insurance agent. Plaintiff’s request to cancel the policy and return the remaining premiums was not obligatory on the agent therefore, we do not find a failure of consideration so as to void the obligation of the defendant, Carber.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is affirmed. All costs of this appeal to be paid by defendant-appellant, Carber.

AFFIRMED.