text:
    STATE of Louisiana v. Peter OVERTON, Jr.
    No. 58109.
    Supreme Court of Louisiana.
    Oct. 6, 1976.

      Ronald P. Herman, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Gretna, Abbott J. Reeves, Director, Research and Appeals Division, Metairie, for plaintiff-appellee.
   DENNIS, Justice.

On December 12, 1974, defendant, Peter Overton, Jr., was charged by bill of information with the offense of armed robbery, a violation of La.R.S. 14:64. He was tried by a jury, convicted, and subsequently sentenced under the Habitual Offender Law to serve sixty years at hard labor, without benefit of parole, probation, or suspension of sentence. On appeal, he urges twelve assignments of error.

ASSIGNMENTS OF ERROR NOS. 1 and 5

Defendant questions the legality of a search warrant issued on December 5,1974, which authorized a December 6 search of Peter Overton Sr.’s residence at 1420 Pailet Street, Harvey, Louisiana. Defendant attempted to show at the motion to suppress hearing that he did not reside at the address shown on the warrant, and consequently that there was no probable cause to believe that a search of the house indicated would produce evidence connected with the robbery. Defendant’s wife, the sole witness at the hearing, testified that she and defendant lived with her mother at the time the search was conducted.

We find the defendant had no standing to object to the search. In Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973), the United States Supreme Court held that evidence seized under a search warrant was properly admitted against defendants who alleged a possessory interest in neither the premises searched nor the merchandise seized:

“ * * * [T]here is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure.”

By defendant’s own allegations, he was not present at the time of the search and had no proprietary or possessory interest in the premises. He was not charged with a possessory offense, and therefore possession of the trench coat and ski mask seized in the search was not an essential element of the offense charged. Furthermore, defendant alleged no possessory interest in the items seized. Thus, he had no basis for standing. Brown v. United States, supra; State v. Hicks, 301 So.2d 357 (La.1974); State v. Vassel, 285 So.2d 221 (La.1973); State v. Page, 251 La. 810, 206 So.2d 503 (1968).

We note further that the testimony of defendant’s only witness at the hearing does not persuade us that the address on the warrant was incorrect. The trial judge aptly remarked, “very frankly, the Court does not believe Peter Overton’s wife.” Actual residence at 1420 Pailet Street would accord defendant standing to challenge the search but simultaneously nullify his sole attack on the warrant.

These assignments are without merit.

ASSIGNMENTS OF ERROR NOS. 2 and 3

The State called as its first witness the deputy clerk of court, whose function is to receive evidence from police officers and file it in the Clerk’s Office for safekeeping prior to trial. When the witness was asked whether he had received any evidence in connection with defendant’s case, defense counsel objected on the ground that the question was premature since the relevancy of the evidence had not yet been demonstrated. The State argued that it was not offering the items into evidence, but rather was attempting to lay a proper foundation for their introduction. The court advised defense counsel that relevancy could be established later, and overruled the objection.

To admit demonstrative evidence at trial, the law requires that the object be identified either visually or by chain of custody, as the State was attempting to do here. State v. Dotson, 260 La. 471, 256 So.2d 594, 608 (1971). La. Code of Criminal Procedure article 773 provides:

“Neither the state nor the defendant can be controlled by the court as to the order in which evidence shall be adduced; but when the evidence requires a foundation for its admission, the foundation must be laid before the evidence is admissible.”

The State was taking appropriate steps to lay a foundation for the introduction of the evidence and the court properly refused to restrict it in the conduct of its case. See State v. Mitchell, 311 So.2d 888 (La.1975).

These assignments are without merit.

ASSIGNMENT OF ERROR NO. 4

This assignment relates to the court’s denial of defendant’s motion for a mistrial, based upon an allegedly prejudicial remark by a prosecution witness.

In its motion to suppress, the defense had contested the validity of the warrant to search 1420 Pailet Street in Harvey, claiming that there was no prt ,able cause to believe that defendant resided there. In order to establish what had led police officers to that address, the district attorney questioned the officer conducting the search as follows:

“Q. And for what premises did you get that search warrant?
“A. 1420 Pailet Street in Harvey.
“Q. And did you have any information concerning that premises that led you to get a warrant for that address?
“A. Our records and identification section, we received an address 1420 Pailet Street as being his last known address.
“Q. For whom, sir?
“A. Peter Overton, Jr.” (Emphasis supplied.)

Defense counsel promptly requested that the jury be removed from the courtroom and moved for a mistrial, arguing that the reference to the “records and identification section” indicated that defendant had a police record. In denying the motion, the trial court reasoned:

“I doubt if the jury even knows what R&I means and our records could mean anything. It would take some mental gymnastics for the jury to connect up all these things and to try to figure out this man had a prior conviction.”

Louisiana Code of Criminal Procedure article 770 provides:

“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
U * * *
“(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.
U * * * It

An impermissible reference to another crime deliberately elicited of a witness by the prosecutor would be imputable to the State and would mandate a mistrial. See State v. Lepkowski, 316 So.2d 727 (La. 1975). However, we agree with the trial judge that the recondite reference at issue here could not have suggested to the jury that defendant had a prior criminal record. As the witness testified out of the jury’s presence, a person’s name might be on file with the records and identification section for innocent reasons, such as involvement in a traffic accident. The ruling of the trial judge was correct.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 6

Defense counsel objected to the officer’s identification of the items he seized in the search and to their subsequent admission into evidence.

The officer testified that in executing the search warrant he retrieved from a closet a green trench coat containing a red ski mask in one of its pockets. The prosecutor then displayed to the witness State’s Exhibit No. 1, a red ski mask, and after the witness had identified the object asked, “Where have you seen that previously?” Defense counsel objected, claiming that the question was leading. This was proper procedure for establishing the identity of the evidence, as the State was required to do. State v. Dotson, supra. The question did not suggest the answer which the witness was to deliver, and consequently, was not leading. La.R.S. 15:277.

Defense counsel also complained that the State did not demonstrate that the relevancy of this evidence was sufficient for its admission in evidence. The victim of the robbery had previously testified that her assailant wore a red ski mask, and the officer had stated that the mask and coat in which the mask had been discovered were recovered from what his records indicated to be defendant’s residence. This testimony clearly established the relevancy of these items; hence they were properly received in evidence by the trial court. State v. Monk, 315 So.2d 727 (La.1975).

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 7

Persisting in his attempt to establish that defendant did not reside at 1420 Pailet Street, and consequently that the evidence seized there could not be related to defendant, defense counsel inquired of the officer who executed the search:

“Q. Did you subsequently learn at the time you executed the search warrant that my client lived at another address on Robinson Street?
“A. At the time that search warrant was executed I had reason to believe that Peter Overton, Jr. was living on Pailet Street.
“Q. Now, I am going to ask you again for you to answer my questions. My question is this: At the time you executed the search warrant did you learn that Peter Overton was living at another address, yes or no?
“A. No, living, no.
“Q. Did you locate him at another address?
“A. Yes, sir, uh-huh.”

On redirect examination the State asked the witness what he had learned about defendant’s residence when he executed the warrant. He responded, “I learned that he was living on Pailet Street.” Defense counsel objected: “I object, Your Honor, he hasn’t laid any proper foundation by whom did he learn.”

The prosecutor then asked the witness from whom he had gotten his information, and when he answered, “Peter Overton, Sr.,” defense counsel complained that this was hearsay. The court correctly ruled that defense counsel had opened the door to this area on cross-examination and that it was a proper subject for redirect examination. La.R.S. 15:281. Defense counsel may not approach a prohibited area, make misleading suggestions about what is to be found there, and then close the door to clarification behind him. Where defense counsel went on cross-examination, the State had the right to follow on redirect. Furthermore, defense counsel did not initially object to the hearsay nature of the testimony but rather encouraged the prosecutor to solicit the source of the witness’ information. There was no basis for complaint when this was done.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 8

Defendant claims that the court erred in refusing to grant a motion for directed verdict at the close of the State's case. Our review is limited to a determination of whether there is a total lack of evidence to prove a crime or an essential element thereof. State v. Douglas, 278 So.2d 485 (La.1973). The victim of the crime testified that on December 2, 1974, two men, one of whom was armed with a gun, entered Aaron’s Lounge where she worked as a barmaid, took the money from the register and her pocketbook and left. An eyewitness to the crime was positive in his identification of defendant as one of the robbers.

Clearly, there was “some” evidence to sustain a conviction. An attack upon the sufficiency of the evidence is not properly directed to this Court. State v. Evans, 317 So.2d 168 (La.1975).

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 9

Defendant moved for a new trial on the ground that the verdict was “contrary to the law and the evidence.” His argument was directed at a minor inaccuracy in the eyewitness’ identification: the witness testified that the robber whom he recognized as defendant sported a gold star on one of his front teeth, whereas the design on defendant’s tooth was cross-shaped. The trial court found this complaint insufficient to warrant a new trial.

Defendant’s argument presents nothing for this Court’s review, which is confined to allegations that there is no evidence of the crime charged or an essential element thereof. La.C.Cr.P. art. 858; State v. Woods, 327 So.2d 405 (La.1976).

Defendant also reasserted in his motion various allegedly prejudicial errors previously considered herein and dismissed.

This assignment is without merit.

ASSIGNMENTS OF ERROR NOS. 10, 11, and 12

The remaining assignments of error relate to defendant’s sentencing under the Habitual Offender Law, La.R.S. 15:529.1.

First, defendant argues that the sentence which might have been imposed under the Habitual Offender Law was so disproportionate to the offense he committed as to be “excessive” under Article I, § 20 of the Louisiana Constitution of 1974. Defendant’s third felony conviction, in this case for armed robbery, subjected him to a prison term of 49V2-198 years without benefit of parole, probation, or suspension of sentence. La.R.S. 15:529.1(A)(2); La.R.S. 14:64. He was in fact sentenced to serve a term of sixty years without benefit of parole, probation, or suspension of sentence, less than two-thirds the maximum sentence for a first offense. We do not find this too severe a punishment for a third serious offense. See State v. Walker, 328 So.2d 87 (La.1976).

Defendant also contends that because a prison term of 198 years is the equivalent of life imprisonment, prosecution should have been initiated by grand jury indictment under La.Const.1974, Art. I, § 15. Multiple offender charges are not prosecutions for crimes but enhanced penalty proceedings for previous convictions, and consequently do not fall within the cited constitutional provision. State v. Williams, 326 So.2d 815 (La.1976).

The district attorney’s discretion to enforce the multiple offender law selectively is claimed to be unconstitutional. In the absence of a showing that a policy of selective enforcement is deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification, there is no constitutional infringement. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962).

Defendant objected to the trial court’s qualification of a State witness as an expert in the field of fingerprint identification. The witness had graduated from the F.B.I. Fingerprint School in Baton Rouge, and had worked as a fingerprint technician for the Jefferson Parish Sheriff’s Office for two and a half years. We find that the trial court did not abuse its discretion in ruling that the witness’ past training and experience established his competency to testify on the subject of fingerprint identification. La.R.S. 15:466; See State v. Richmond, 278 So.2d 17 (La.1973).

Defendant’s complaint that his prior arrest records and fingerprint cards on file with the Jefferson Parish Bureau of Identification were improperly admitted is likewise without merit. These documents were all properly certified and were admissible as public records. La.R.S. 15:581.16. Contrary to defendant’s allegation that the fingerprints were nowhere identified as his, the expert testified that he had examined the prints from each arrest record, including the armed robbery which was the subject of the instant prosecution, and found that they all came from the same individual.

Defendant makes a number of additional arguments which were not designated in his assignments of error and thus are not properly presented for our review. La.C.Cr.P. art. 920.

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

AFFIRMED.

SANDERS, C. J., and DIXON and MARCUS, JJ., concur.

       A different result on standing would follow under the 1974 Louisiana Constitution (effective midnight December 31, 1974). The federal rule of standing, which was adopted by this Court in Hicks, supra, Vassel, supra, and Page, supra, was “premised on a recognition that the need for deterrence and hence the rationale for excluding the evidence are strongest where the Government’s unlawful conduct would result in imposition of a criminal sanction on the victim of the search.” United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974). However, our new constitution abandoned this reasoning to provide: “[a]ny person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.” Article I, § 5. This change in the law avails defendant nothing, however, because La. Const. 1974, Art. XIV, § 26 states: “[t]his constitution . . shall not create any right or liability which did not exist under the Constitution of 1921 based upon actions or matters occurring prior to the effective date of this constitution.”
      Defendant’s position would not be improved by a finding that he had standing. Although he made sufficiently specific allegations to permit an inquiry into the truthfulness of the affidavit, State v. Melson, 284 So.2d 873 (La.1973); State v. Giordano, 284 So.2d 880 (La.1973), he did not as observed in the text convincingly establish at the hearing that his address was misrepresented by the affiant.


source: Caselaw Access Project

author: CALOGERO, J.,

license: Public Domain

text:
    STATE of Louisiana v. Jackie THACKER.
    No. 58645.
    Supreme Court of Louisiana.
    Oct. 15, 1976.
   In re: Jackie Thacker applying for Writs of Certiorari, Prohibition and Mandamus.

Application denied; adequate remedy in event of conviction.

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

CALOGERO, J.,

is of the opinion the writ should be granted. The issue is a close one. We should not in this case wait until defendant has possibly been convicted, and then reverse the conviction.

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


text:
    Mrs. Anna Shirley Burglass divorced wife of Joseph DeSALVO v. FINANCE FUNDS GROUP, INC.
    No. 58408.
    Supreme Court of Louisiana.
    Oct. 20, 1976.
   In re: Mrs. Anna Burglass (DeSalvo) Dunker, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, parish of Jefferson.

Writ denied. On the facts found by the Court of Appeal there is no error in the judgment.

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


author: DIXON, J.,

text:
    STATE of Louisiana ex rel. Philip E. O’NEILL v. Honorable Frank J. SHEA.
    No. 58738.
    Supreme Court of Louisiana.
    Oct. 20, 1976.
   In re: Philip E. O’Neill applying for Writs of Certiorari, (Review), Prohibition, Mandamus and for a Stay Order.

Writ denied. The showing made does not warrant the exercise of our supervisory jurisdiction.

DIXON, J.,

is of the opinion the trial judge was in error and the writ should be granted for two reasons. 1. Lawyer has been found guilty of contempt for telling the court, after the court announced its intention “take the proper act” the next time, “Do whatever you think.” The language is not contemptuous, particularly in the circumstances disclosed by the record. 2. This court ignores lawyer’s complaint that he was denied right under C.Cr.P. 22 for a hearing in “defense or mitigation.” Nor was there until this court requested a response from the trial judge” an order reciting the facts constituting the contempt, adjudging the person guilty thereof and specifying the punishment imposed.” C.Cr.P. 22.

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


author: GUIDRY, Judge. BERTRAND, Judge.

text:
    AMERICAN BANK & TRUST COMPANY, Plaintiff-Appellee, v. MARBANE INVESTMENTS, INC., et al., Defendants-Appellants.
    No. 5492.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.
    On Rehearing Sept. 20, 1976.
    John L'evy, Metairie, for defendants-appellants.
    Charles N. Wooten, Ltd., by Robert P. Brenham, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and BERTRAND, JJ.
   GUIDRY, Judge.

Plaintiff-Appellee, American Bank and Trust Company, filed suit on a promissory note in the principal amount of $30,000.00 against Defendants-Appellants, Marbane Investments Inc. and Marvin Poole. The suit was filed on January 20, 1975. On February 6, 1975 plaintiff was granted a preliminary default judgment which was entered in the minutes of court. On February 11, 1975 defendants appeared, through counsel, and filed an exception of no right of action, which exception has never been disposed of. On February 12, 1975 plaintiff proceeded to confirm the preliminary default judgment and on that date the trial court rendered and signed a judgment in favor of plaintiff and against defendants in the principal sum of $30,-000.00. Plaintiffs counsel asserts in brief to this court that although he did receive in the U. S. mail an unsigned, undated copy of what purported to be a peremptory exception of no right of action on the morning of February 12, 1975, the official court file did not contain this filing so he proceeded to confirm the preliminary default previously entered. In any event, the record does now contain an exception of no right of action filed on behalf of defendants with a notation duly signed by a deputy clerk of court evidencing that same was received and filed on February 11, 1975.

On November 10, 1975 defendants appeared through counsel and caused a rule to issue requiring plaintiff to show cause why the default judgment of February 12, 1975 should not be annulled for having been improvidently granted. In response to this rule plaintiff filed an exception objecting to defendant’s alleged improper use of summary procedure, which exception was filed on November 20, 1975. The matter was heard, plaintiff’s exception was maintained and defendant’s rule seeking nullity of the judgment of February 12, 1975, was dismissed at defendant’s cost. Defendants then filed an application for new trial which was denied. Defendants prosecute this devolutive appeal from the judgment of the trial court which dismissed their rule for nullity of the default judgment of February 12, 1975.

We believe that the trial court erred in refusing to annul the final judgment of February 12, 1975 and in sustaining plaintiff’s exception of “unauthorized use of summary procedure”.

The following articles of our Code of Civil Procedure are pertinent to the matter at issue:

LSA-C.C.P. Article 927:
“The objections which may be raised through the peremptory exception include, but are not limited to, the following:
(1) Prescription;
(2) Res judicata;
(3) Nonjoinder of an indispensable party;
(4) No cause of action; and
(5) No right of action, or no interest in the plaintiff to institute the suit.
The court cannot supply the objections of prescription and res judicata, which must be specially pleaded. The non-joinder of an indispensable party, or the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit, may be noticed by either the trial or appellate court of its own motion.”
LSA-C.C.P. Article 928:
“The declinatory exception and the dilatory exception shall be pleaded prior to answer or judgment by default. When both exceptions are pleaded, they shall be filed at the same time, and may be incorporated in the same pleading. When filed at the same time or in the same pleading, these exceptions need not be pleaded in the alternative or in a particular order.
The peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision.”
LSA-C.C.P. Article 1001:
“A defendant shall file his answer within fifteen days after service of citation upon him, except as otherwise provided by law.
When an exception is filed prior to answer and is overruled or referred to the merits, or is sustained and an amendment of the petition ordered, the answer shall be filed within ten days after the exception is overruled or referred to the merits, or ten days after service of the amended petition.
The court may grant additional time for answering.”
LSA-C.C.P. Article 1002;
“Notwithstanding the provisions of Article 1001, the defendant may file his answer at any time prior to confirmation of a default judgment against him.”
LSA-C.C.P. Article 1701:
“If a defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him. The judgment may be obtained by oral motion in open court or by written motion, either of which shall be entered in the minutes of the court, but the judgment shall consist merely of an entry in the minutes.”
LSA-C.C.P. Article 1702:
“A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default.
When the sum due is on an open account, promissory note or other negotiable instrument, an affidavit of the correctness thereof shall be prima facie proof. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required.”
LSA-C.C.P. Article 1843:
“A judgment by default is that which is rendered against a defendant who fails to plead within the time prescribed by law.”
LSA-C.C.P. Article 2001:
“The nullity of a final judgment may be demanded for vices of either form or substance, as provided in Articles 2002 through 2006.”
LSA-C.C.P. Article 2002:
“A final judgment shall be annulled if it is rendered:
(1) Against an incompetent person not represented as required by law;
(2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken; or
(3) By a court which does not have jurisdiction over the subject matter of the suit.
Except as otherwise provided in Article 2003, an action to annul a judgment on these grounds may be brought at any time.”

The defendant concedes as it must that the preliminary judgment of default entered on the 6th day of February, 1975 was valid, defendant having failed to answer within the time prescribed by law. Defendants contend however, that this judgment was set aside or rendered invalid by the filing of the exception of no right of action on February 11, 1975 prior to the confirmation of such default judgment which took place on the 12th day of February, 1975, and therefore that the latter judgment is patently null having been entered against a defendant against whom a valid judgment by default had not been taken. (LSA-C.C.P. Article 2002(2)).

It clearly appears on the face of the record before us that prior to the rendition and signing of the judgment of ^February 12, 1975 the defendants pleaded the exception of no right of action to the action of plaintiff, which exception has never been considered.. This peremptory exception although filed after entry of a preliminary judgment of default (LSA-C.C.P. Art. 1701) was timely in that such exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision (LSA-C.C.P. Art. 928).

Our law provides that on'e need only plead to the demand of a plaintiff to avoid the entry of a preliminary judgment of default (LSA-C.C.P. Article 1843), however, it is absolutely essential that an answer he filed prior to confirmation in order to set aside and render invalid a previously entered judgment of default (LSA-C.C.P. Articles 1002 and 1702). The filing of a peremptory exception does not have the effect of setting aside or of rendering invalid a judgment of default.

Although the filing of the exception in this case did not have the effect of setting aside or rendering invalid the preliminary judgment of default previously entered on the 6th day of February, 1975, LSA-C.C.P. Articles 1002 and 1702; State ex rel Borland v. Judge, 30 La.Ann. 155 (La.1878) ; Lamb v. General Film Co., 130 La. 1026, 58 So. 867, (La.1912), in our opinion, the filed exception suspended the effect of this preliminary judgment of default to the end that such default judgment was not subject to confirmation until a hearing was had on the exception and same was overruled. Our opinion in this regard appears to he supported by the following excerpt from Lamb v. General Film Co., pg. 869, supra:

“The defendant here having filed a peremptory exception after default, and all parties to the record having treated same as an exception, it cannot be decreed to be an answer, and it cannot have the effect of an answer. Plaintiff had the undoubted right to proceed and administer the proof necessary to confirm the default, after the peremptory exception had been disposed of.” (Emphasis ours)

To hold otherwise would render nugatory the plain and explicit provision of LSA-C.C.P. Article 928 which permits the filing of the peremptory exception at any stage of the proceeding in the trial court prior to a submission of the case for a decision.

The effect of the default judgment of February 6th having been suspended pending disposition of the exception of no right of action we conclude that the final judgment of February 12th was improvidently granted for not being founded upon a validly effective judgment of default LSA-C.C.P. Article 2002(2). The nullity of the judgment of February 12th being patent on the face of the record we conclude that defendants were not required to bring a direct action to obtain this declaration of nullity, rather the proceeding by rule to show cause was proper.

It is well established in the jurisprudence of this state that a judgment absolutely void for defects patent on the face of the record may be collaterally attacked. Decuir v. Decuir, 105 La. 481, 29 So. 932; Nottingham v. Hoss, 19 La.App. 643, 141 So. 391; In re New Orleans Butchers’ Co-operative, Abattoir, Inc., La.App., 193 So.2d 309; Folse v. St. Bernard Parish Police Jury, 201 La. 1048, 10 So.2d 892. In Decuir v. Decuir, supra, the court stated:

“ . . . The error of this ruling lies in the failure of the judge to distinguish between judgments that may be voidable and those absolutely void. As to the former, suits of nullity must be brought before the court which rendered the judgments. As to the latter, if a judgment is absolutely null for defects patent on the face of the proceeding, the party opposing its effect as to him need not resort to a direct action in the court which rendered it to secure the declaration of its nullity. . . . ”

In support of its claim that summary process was improper in the instant case plaintiff-appellee refers us to the cases of Columbia Radio & Supply Company v. Jordan, 215 So.2d 553 (La.App. 4th Cir. 1968) and Garnett v. Ancar, 203 So.2d 812 (La.App. 4th Cir. 1967). The cited cases do not support plaintiff’s argument that under all circumstances the action of nullity must be by ordinary proceedings. In Columbia Radio & Supply Company v. Jordan, supra, the plaintiff’s demand for nullity of judgment was based upon allegations of improper service of garnishment interrogatories by the constable of the First City Court. The nullity of judgment was not patent on the face of the record and plaintiff therefore sought to demonstrate the invalidity of the judgment in an ordinary proceeding. In holding that the defendant could not convert this proceeding into a summary proceeding by a rule to show cause why the petition for nullity should not be dismissed the Court was careful to point out that the return of a serving officer on any citation was presumed correct and that such presumption of correctness was rebuttable only upon presentation of proper and convincing evidence. Accordingly, the action of nullity in that case was properly triable as an ordinary proceeding.

In Garnett v. Ancar, supra, the Court specifically found nothing on the face of the record disclosing the judgment to be an absolute nullity and in the course of its opinion clearly indicated that had it found otherwise the decision would have been different. In that case the court said:

“The question to be decided here is whether the default judgment of July 14, 1964 is an absolute nullity for defects patent on the face of the proceedings leading up to it. If so it may be attacked at any time, at any place, by rule or by any other method. If not it cannot be attacked except by a direct action of nullity preceded by petition and citation.”

To the same effect is the following recent pronouncement of our Supreme Court in the case of Nethken v. Nethken, 307 So.2d 563 (La.1975):

“It is otherwise in the case of a judgment rendered against an unrepresented incompetent, a defendant not served or appearing or against whom a judgment by default has not been taken, or by a court without jurisdiction of the subject matter.- As to these -judgments, their nullity may be adjudged at any time and may -be raised collaterally. They are said to be nul ab initio. La.Code Civ.P. art. 2002.”

For the above and foregoing reasons the judgment of the trial court is set aside and annulled. The rule to show cause filed by defendants in this proceeding on the 10th day of November, 1975, is now made absolute and accordingly the judgment of the trial court rendered and signed in this proceeding on the 12th day of February, 1975 is annulled. This matter is now remanded to the trial court for such additional proceedings as the nature of the case may require and which will be consistent with the views expressed herein. Plaintiff-Appellee is cast for all costs of this appeal, the assessment of costs in the trial court to await the final disposition of this matter.

REVERSED AND REMANDED.

BERTRAND, Judge.

We granted a rehearing in this case to reconsider that portion of our original judgment which set aside and annulled the judgment of the trial court dated February 12, 1975.

Upon reconsideration we conclude that we committed error when we considered appellant’s rule for nullity on its merits and determined that the judgment of February 12, 1975 was a nullity.

The district court did not try this rule on its merits. Instead, it dismissed same, having determined that the exception of improper use of summary procedure filed by appellee was well taken. The only issue before this court on appeal, therefore, was whether the trial court’s action in sustaining this exception was proper or improper.

On original hearing we conclude that defendants could proceed in a summary manner to seek nullity of the judgment of February 12, 1975 and that the trial judge erred in sustaining the exception of improper use of summary procedure. For the reasons set forth in'our original opinion, we adhere to this ruling. We find that we erred, however, in going further and in considering such rule on its merits. The trial court not having considered the rule for nullity on its merits, appellee has not had an opportunity to show, if it can, that appellants have lost their right to seek nullity of this judgment by voluntarily acquiescing therein. LSA-C.C.P. Article 2003.

For these reasons we amend the decree portion of our original judgment to read as follows:

“For the above and foregoing reasons the judgment of the trial court is set aside and annulled. The rule to show cause filed by defendants in this proceeding on the 10th day of November, 1975 is reinstated. This matter is_ remanded for trial of this rule and for such additional proceedings as the nature of the case may require and which will be consistent with the views expressed herein. Plaintiff-Appellee is cast for all costs of this appeal, the assessment of costs in the trial court to await the final disposition of this matter.”

REVERSED AND REMANDED.


author: PONDER, Judge.

text:
    MOTOROLA, INC. v. STANDARD MATERIALS, INC.
    No. 10828.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.

      Richard P. Massony, Covington, for plaintiff-appellant.
    Robert R. Thorne, Slidell, for defendant-appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Motorola, Inc., plaintiff-appellant, filed suit on open account for $888.46 against Standard Materials, Incorporated, defendant-appellee, for materials and services allegedly performed. Standard reconvened demanding $9,665.10 allegedly due because of Motorola’s breach of a maintenance contract and because Motorola “took five (5) radio communication sets to their shop for repairs and maintenance which were never returned . . . ”. The lower court found that Motorola failed to bear its burden of proof and dismissed its suit and signed judgment granting Standard $4,000.00 on its reconventional demand. Motorola has timely appealed. We affirm.

Plaintiff-appellant did not call anyone from Motorola to testify as to whether the alleged materials were ever delivered or that any work was ever done on behalf of Standard or that there was a balance due. Instead, plaintiff attempted to prove its case by introducing unsubstantiated invoices to which defendant-appellee promptly and properly objected. The manager of Standard testified that although he had seen some invoices and a bill for around $888.46, he believed Motorola had been paid in full. Under these circumstances, we agree with the trial judge that Motorola did not bear its burden of proof.

Motorola’s main attack on the lower court’s granting of $4,000.00 on the recon-ventional demand is that the failure of Motorola to return the radios, for whatever reason, (misplaced, lost or stolen) sounds in tort and is therefore prescribed, since the suit was not brought within one year of the alleged wrongful conduct.

The lower court found that Standard’s reconventional demand was based on breach of the service and maintenance contract, and not tort. We agree. Although Standard’s reconventional demand is not entirely explicit on this point, it is obvious that the cause of action arose when goods entrusted to Motorola (or its agent) were not returned to Standard as per agreement. Such an occurrence can create two remedies, a suit in contract (based on the maintenance agreement or the law of deposit), or an action in tort (conversion). The party damaged can elect to recover his damages in either of the two actions. The prescription applicable is determined by the character which plaintiff gives his pleadings and form of his action. See Federal Insurance Company v. Insurance Company of North America, La., 262 La. 509, 263 So.2d 871 (1972); McCrory Corporation v. Shepard M. Latter d/b/a The Commerce Building, 331 So.2d 577 (La.App. 1st Cir. 1976); Richardson v. Moore, 304 So.2d 425 (La.App. 1st Cir. 1973).

Our review of the pleadings convinces us that Standard’s reconventional demand is based on contract with a ten year prescriptive period. LSA-C.C. Art. 3544. Motorola’s attack as to the alleged ambiguity of the reconventional demand should have been the subject of the dilatory exception of vagueness instead of being used as an anchor to windward.

Appellant argues orally that appellee did not bear the burden of proof as to the missing communication sets and their value. The trial court found otherwise and we cannot say that he committed manifest error in doing so. See Coleman & Bean v. Victor, Inc., La., 326 So.2d 344 (1976).

Accordingly, for the above reasons we affirm; plaintiff-appellant is to pay all costs.

AFFIRMED.

      . We note on this point that although the record establishes that Motorola manifested an intention to file a plea of liberative prescription, after all the evidence was taken, no such filing is in the record. However, we find this deficiency immaterial in view of our holding herein.


author: COVINGTON, Judge:

text:
    Nancy Gail Wallace TROSCLAIR v. Wayne Paul TROSCLAIR.
    No. 10846.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Walton J. Barnes, Baton Rouge, of counsel, for Wayne Paul Trosclair.
    J. R. Coxe, III, Baton Rouge, of counsel, for Nancy Gail Wallace Trosclair.
    .Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge:

The parties herein were married July 8, 1972, while Wayne Paul Trosclair, defendant and plaintiff in reconvention, was in the armed forces of the United States. Sometime after he was discharged from military service they began living in Nina or Breaux Bridge. They separated in November of 1974 and reconciled thereafter. Plaintiff, Nancy Gail Wallace Trosclair, left the matrimonial domicile on June 14, 1975. She filed this petition for separation on June 30, 1975, alleging cruel treatment on the part of her husband and that he put her out of the family home on June 14.

Defendant answered and reconvened, denying in his answer the allegations of plaintiff and in reconvention, alleging that his wife, defendant in reconvention failed to perform wifely duties, such as the household chores, and specifically that defendant in reconvention failed and refused on all occasions to maintain the home in a decent and presentable state. He also alleged that she abandoned the matrimonial domicile without just cause and refused to return.

The evidence presented shows that on June 14,1975, defendant, Wayne Paul Tros-clair, returned home, after working four days off-shore at Mallard Well Service, and became highly disturbed upon finding dog excrement on the floor. The testimony shows that defendant did not remove the excrement, but instead waited a few hours until his wife returned from work and reproached her. An argument ensued and plaintiff alleges she was asked to leave, which allegation is corroborated by defendant. However, when she demonstrated her "intention to leave he stated that he apologized and asked her not to do so. After trial of the matter, the trial judge rendered judgment on December 16, 1975, which judgment was signed on January 9, 1976, decreeing a separation from bed and board in favor of plaintiff, rejecting the reconven-tional demands of defendant, plaintiff in reconvention, and ordering him to pay the sum of $200.00 per month as alimony. From the judgment, defendant has perfected this appeal.

Defendant, Wayne Paul Trosclair, hereinafter referred to as appellant, assigns the following specifications of error:

1. The trial court manifestly erred in concluding that the defendant’s words spoken in anger, immediately followed by an apology, constituted legal fault, therefore giving the plaintiff grounds to leave the matrimonial domicile.
2. The trial court erred in failing to find provocation for defendant and plaintiff in reconvention’s angry words in light of the fact that Mrs. Trosclair also spoke in anger.
3. The trial court manifestly erred in failing to allow the defendant-appellant a separation on the grounds of abandonment.
4. In the alternative, the trial court erred in failing to deny to both parties a separation on the grounds of mutual fault.

Appellee has alleged in her petition that she left because her husband put her out of the family home. Appellant contends that his words, admittedly spoken in anger, followed by an apology, would not constitute legal fault sufficient to support a separation from bed and board. We have carefully examined the records and the testimony contained herein, and find that the trial judge had evidence of which he could find fault sufficient to support appellee’s allegations of cruel treatment.

Appellee testified that her husband’s actions often made her cry and that although she had been asked to leave prior to June 14, 1975, she did not truly feel that appellant wanted her to leave. However, on the date in question, she felt really sure that he didn’t want her in his life and therefore she left. James Dean Wallace, James D. Wallace, Jr., and Margaret M. Wallace were called as witnesses for the appellee and corroborated the appellee’s testimony that she had left her husband once before. Mrs. Margaret M. Wallace testified that she had occasionally visited with her daughter and son-in-law in their home and that its appearance was in very good shape. She also corroborated the appellee’s testimony of marital discord the week before June 14 and that her daughter had been crying pri- or to her arrival.

Appellant called Natalie Hall, a former co-employee of appellee, who testified that generally appellee was not cooperative in the matter of cleanliness while working as a hairdresser at Barksdale Beauty Salon.

It is well settled that in the area of domestic relations much discretion must be vested in the trial judge, and particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of the credibility of witnesses, Rayner v. Rayner, 216 La. 1099, 45 So.2d 637 (1950); Sampognaro v. Sampognaro, 211 La. 105, 29 So.2d 581 (1947).

The trial judge, having observed the demeanor of the witnesses in this case is in the better position to rule on their credibility. We find no reason to disturb his decision.

For the foregoing reasons, the judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.


author: COVINGTON, Judge.

text:
    Lanson P. HUE v. Wilbert BLANCHARD and Southern Farm Bureau Casualty Insurance Company.
    No. 10855.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.

      Dale P. Martin, Lippman, Hunter & Rawls, Morgan City, for plaintiff-appellant.
    E. Robert Sternfels, Triche & Sternfels, Napoleonville, for defendant-appellee.
    Robert J. Vandaworker, Taylor, Porter, Brooks & Phillips, Baton Rouge, for Southern Farm Bureau Cas. Ins. Co.
    Before LANDRY, COVINGTON and PONDER, JJ.:
   COVINGTON, Judge.

Plaintiff-appellant, Lanson P. Hue, brought this action against defendants-ap-pellees, Wilbert Blanchard, and his liability insurer, Southern Farm Bureau Casualty Insurance Company, for damages for personal injuries sustained by him when he was struck by a vehicle owned and being operated by said insured. The trial court found in favor of the defendants, dismissing plaintiff’s suit at his cost. We affirm.

The plaintiff contends that at approximately three o’clock on the morning of April 27, 1974, intending to go to his home, which was located off Louisiana Highway 70 in Pierre Part, he and Deloris Hue were walking easterly on the shoulder of Highway 70, a two-lane blacktopped road, when a car suddenly struck him from behind.

Deloris Ann (Martinez) Hue said that she was walking along with plaintiff, just holding hands and talking, when all of a sudden a car came off the road and hit him.

Wilbert Blanchard alleges that he was traveling on Highway 70 at a speed of approximately thirty-five miles per hour and saw the plaintiff and Deloris walking on the shoulder. He contends that when his automobile was a matter of feet away from the couple, plaintiff, who was walking nearer the highway, suddenly stumbled or ran onto the highway and struck his car. Gaulbert Blanchard, defendant’s brother, who was riding in the vehicle, stated that he observed the plaintiff and Deloris Hue walking on the shoulder of the highway about one hundred and fifty feet ahead of them and that when the car was a short distance from the couple, plaintiff fell or ran into the side of his brother’s automobile. Other than the Hues and the Blanch-ards, there were no eyewitnesses. The trial judge found that the insured’s automobile did not leave the highway, that he was not guilty of any negligence and, therefore, the defendants are not liable to plaintiff. From the judgment dismissing his suit, the plaintiff has perfected this appeal.

Appellant essentially contends that the lower court erred in failing to find Blanchard guilty of negligence, finding the plaintiff guilty of negligence, and in failing to award plaintiff general and special damages. The trial judge in his oral reasons for judgment stated:

“I’ve come to the conclusion that this accident was caused through the negligence of the Plaintiff himself, and my principal reason for coming to that conclusion is that following the accident his body was still partially on the blacktop and on the gravel. Now, that’s according to his own testimony, if you recall. Under those conditions, the Court cannot as a matter of physical evidence, conclude that Mr. Blanchard ran off, veered to the right, and hit the Plaintiff on the shoulder, in which case he would have been, as a matter of physics, knocked into the ditch; or, if he had been on the shoulder, he would have been knocked further down the shoulder, but, according to his own testimony, he was partially on the blacktop and on the shoulder of the highway. So the Court reaches the conclusion that the Plaintiff has not proven his case by a preponderance of the evidence, and for that reason the suit will be dismissed at his cost.”

Appellant, in his brief, has reiterated the facts of this case and alleged that the trial court further erred in failing to find that appellee veered off the road, striking the plaintiff, and in not applying the doctrine of “last clear chance.”

Trooper Thomas Mabile, of the Louisiana State Police, inspected the scene an hour and a half or two hours after the accident. He could find no physical evidence whatsoever to indicate that anything amiss had occurred, even though he, with others, walked back and forth “for at least 200 feet on either side of where they pointed out the accident had happened.” Further, while the insured told him that Hue had “jumped into the side of his vehicle”, Deloris Hue was noncommital. Of coürse, Hue was injured and in no condition to relate how the events occurred.

The question that was before the court was a fact question and it was decided against the appellant. When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. The testimony relating to whether or not appellee drove his automobile off the blacktop and onto the shoulder striking appellant was conflicting. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Various inconsistencies between the testimony of Deloris Hue might well have been considered by the judge in his evaluation of her credibility. For example, in her deposition taken on October, 29, 1974, she stated that she had been married to Mr. Hue for a year and, in response to a question as to how much he had to drink the evening and night of the accident, she stated: “Well he drank quite a bit, but I can’t judge about how much he drank.” However, on trial of the case almost five months later, she testified that they had been together for two years but had never married and that he (Hue) had “a few” beers that night. Both she and Hue testified that they did not hear the car approaching from the rear, nor did they see the light from its headlamps.

The trial court alluded to the physical evidence and an acknowledgment by the appellant that he was partly on the blacktop after impact, indicating to the judge that the appellant was on the road when struck. The general rule is that where the testimony of the parties is irreconcilable, the physical facts surrounding the accident are to be accepted by the court as the determining factor; Loicano v. Maryland Casualty Insurance Company, 301 So.2d 897 (La.App. 4 Cir., 1974).

Appellant objected to evidence being presented by appellees which showed appellant’s blood to contain .20 gram per cent of alcohol. Appellant contends that the trial court erred in allowing the introduction of such evidence because the result of a gas chromatograph test do not present any presumption of intoxication in a civil proceeding. We do not find where the evidence prejudiced his position; the trier of fact did not base his decision on appellant’s alleged intoxicated condition. His decision was based on other testimony including Hue’s and the physical evidence. Obviously, the plaintiff did not prove his case by a preponderance of the evidence. An excellent definition of “preponderance of evidence” is contained in an article entitled “Anatomy of Proof in Civil Cases” by Chief Justice Sanders in 28 La.L.Rev. 297 (1968), at page 308:

“Proof by preponderance of the evidence requires the burdened litigant to persuade the trier of fact by sufficient evidence that the existence of the fact in issue is more probable than its non-existence.”

See, also, Maguire v. Masino, 325 So.2d 844 (La.App. 4 Cir., 1975).

We find no error in the judgment complained of and, accordingly, the same is affirmed at appellant’s cost.

AFFIRMED.

      . The testimony referred to was:
      “Q. After you got hit, where did you end up?
      A. I was on the shoulder, and I was — my head and all was laying on the blacktop, and my body was on the shoulder.
      Q. When you got hit by this car, were you thrown any at all?
      A. Yes, I was thrown four or five feet.
      Q. In what direction?
      A. The same way I was going.
      Q. You were thrown forward?
      A. Yes.”


author: PONDER, Judge:

text:
    John DELIBERTO v. Katherine Derman DELIBERTO.
    No. 10857.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.

      Curtis M. Baham, Jr., Newton & Baham, Hammond, for John Deliberto.
    Charles B. W. Palmer, Amite, for Katherine Derman Deliberto.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge:

John Deliberto, plaintiff-appellee, filed suit on October 9, 1974, against Katherine Derman Deliberto, defendant-appellant, seeking a divorce on the grounds of living separate and apart for more than two years and custody of the minor child born of the marriage. Defendant-appellant reconvened seeking custody and a separation from bed and board based on the plaintiff-appellee’s alleged cruelty, abandonment and non-support together with $250.00 per month alimony pendente lite and $250.00 child support. After trial, the lower court signed judgment granting plaintiff-appellee a divorce and defendant-appellant custody of the minor child with plaintiff-appellee to pay $100.00 per month child support.

Plaintiff-appellee was also ordered to pay $400.00 per month alimony pendente lite and child support for the period from February 21, 1975 to April 11, 1975, the date judgment herein was rendered. However, the lower court denied defendant-appellant permanent alimony because the court found “that the party seeking that award is not without fault in this matter.” Defendant-appellant has timely appealed. We affirm.

Defendant-appellant’s specifications of error are essentially as follows:

1. The trial court erred in finding the parties had lived apart for two years;

2. The trial court erred in failing to grant defendant-appellant a separation from bed and board on the grounds of cruelty, abandonment without cause and nonsupport;

3. The trial court erred in finding the wife was “not without fault;”

4. The trial court erred in not allowing tapes of conversations that show cruelty of plaintiff and his family against defendant-appellant.

SPECIFICATION NUMBER ONE

Plaintiff-appellee testified that he had not lived with his wife since October 1970. Several witnesses who kept in close contact with the parties corroborated this fact. In fact, the consensus was that it was common knowledge in the community that the Delibertos had not lived together for several years. Defendant-appellant also testified that she had not lived with her husband since October 1970; however, it was her contention that her husband had “spent the night” on numerous occasions and actually moved back in with her on one occasion. The only witness to testify that plaintiff and defendant had lived together on any basis within two years of the filing of this suit was the ten year old child of the marriage. There was some evidence introduced that his testimony was distorted under threat of defendant-appellant.

Obviously, the trial judge believed the several witnesses who testified that the De-libertos had not lived together for four to five years instead of the testimony of defendant-appellant and the minor child. The trial court viewed the demeanor of the witnesses and was in much better position thán this court to evaluate credibility. His determination as to how much weight is to be given the testimony of individual witnesses must be given great weight, and will not be overturned in the absence of manifest error. There is evidence in the record which upon reasonable evaluation supports the conclusion that the Delibertos had not lived together or slept together for almost four years prior to filing this suit. Therefore, this specification is without merit.

SPECIFICATION NUMBER TWO

We cannot find any evidence in the record that plaintiff-appellee was guilty of non-support, cruelty or abandonment without cause. There is ample evidence that plaintiff-appellee furnished defendant-appellant with food, shelter, and money. There is also evidence that defendant-appellant would very seldom, if ever, cook the food she was given and that she spent money she was given playing bingo.

Although it appears that plaintiff-appellee failed to pay two months rent, he did this at a time he thought he was divorced. Thus, we find no evidence of non-support.

Likewise, there is no evidence whatsoever of any cruelty on the part of plaintiff-appellee. The only evidence even approximating cruelty was an incident in which plaintiff-appellee accidentally slammed a car door on defendant-appellant’s leg as she was exiting an automobile. Certainly, this was not cruelty.

Finally, as to this specification, although it was plaintiff-appellee who left the matrimonial domicile, the evidence was overwhelming that he had just and sufficient cause. His wife never cooked for him and kept the house in a deplorable state with rubbish and dirt everywhere. Defendant-appellant “tormented” him and caused many arguments until finally he “just couldn’t stand it anymore.” Under these circumstances, we cannot say that plaintiff-appellee left the matrimonial domicile without cause.

SPECIFICATION NUMBER THREE

Defendant-appellant argues that the trial judge erroneously placed the burden of showing freedom from fault on her and that she had in fact borne the burden. Our jurisprudence is clear that the wife has burden of proving with reasonable certainty freedom from fault to be entitled to alimony. LSA-C.C. Art. 160; Carter v. Carter, 316 So.2d 829 (La.App.1st Cir.1975); Smith v. Smith, 287 So.2d 815 (La.App.4th Cir. 1974). The question of a wife’s fault is a factual one. Morgan v. Morgan, 260 So.2d 336 (La.App.4th Cir.1972). As stated in our discussion of specification two, the actions of the wife were a cause in the separation. Therefore, she is not entitled to alimony.

SPECIFICATION NUMBER FOUR

This specification is totally without merit. There were several hints throughout the trial of this matter that defendant-appellant possessed tapes establishing bad faith and ill will on the part of plaintiff-ap-pellee and some of his witnesses. However, the record is void of any attempted introduction of the alleged tapes. Therefore, this matter is not before us.

Although, defendant-appellant does not formally specify as error the alleged insufficiency of the $100 per month child support award, this contention is raised in brief. The record establishes that defendant-appellant and her son needed $65-$75 per month for rent and $100 per month for food. Very little evidence was introduced as to other expenses and certainly almost no evidence was adduced establishing the husband’s ability to pay. Under these circumstances, we cannot say that the trial court abused the wide discretion he is accorded in such matters.

Accordingly, for the above reasons the judgment of the lower court is affirmed, defendant-appellant to pay costs.

AFFIRMED.

      . Plaintiff-appellee testified that although he gave his wife money for tuition for the minor child, the school never received payment. A representative of the school testified that they were never paid.

      . A default judgment was procured in this matter without knowledge of an answer that had been previously filed.

      .Defendant-appellant argues that her husband, in any event, was also at fault and therefore she is entitled to alimony. Even if her husband were at fault, our jurisprudence is to the contrary. Kratzberg v. Kratzberg, 286 So.2d 174 (La.App.4th Cir. 1973).


text:
    Richard E. DUNHAM v. Katherine O. DUNHAM et al.
    No. 10898.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    J. Glenn Dupree, Baton Rouge, for appellant.
    John S. White, Jr., Baton Rouge, for ap-pellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Plaintiffs in reconvention-appellees filed a motion to dismiss the appeal for failure to pay costs of preparing the record and filing fee of the appellate court not later than three days prior to the extended return day pursuant to Code of Civil Procedure Article 2126. A Show Cause Order was issued, but appellant has not responded thereto.

Judgment was signed in this matter on September 16, 1975. A timely order of devolutive appeal and appeal bond was filed. The appeal was made returnable on February 12, 1976. On February 6, 1976, the Clerk of Court obtained an order extending the return date sixty days from February 12, 1976.

The affidavit of the Deputy Clerk of Court filed on appeal establishes that the attorney for appellant was notified of the nonpayment ($645.97) on March 12, 1976 and on April 5, 1976.

The appeal must be dismissed for appellant’s failure to pay the required costs and fees before three days of the extended return date. Tropicana Hotel and Country Club v. Dantoni, 287 So.2d 817 (La.App. 1st Cir. 1974). See also Thibodeaux v. St. Paul Mercury Insurance Company, 310 So.2d 860, (La.App. 3rd Cir. 1975) where untimely payment was held to constitute grounds for dismissal.

Accordingly, for these reasons, the appeal is dismissed, at the costs of appellant.


text:
    PRINGLE ASSOCIATED MORTGAGE CORP. v. C. M. C. PROPERTIES, INC., et al.
    No. 10966.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Leon Gary, Jr., Baton Rouge, for appellant.
    Doris Gates Rankin, Richard C. Cadwal-lader, Baton Rouge, for appellees.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge:

Pringle Associated Mortgage Corporation, plaintiff-appellant, appealed a judgment enjoining a sheriff’s sale it instituted. However, Pringle now desires the appeal be summarily dismissed and remanded. It alleges in its motion for dismissal and remand that new developments in the case, such as, defaults in payment, have occurred which would now entitle it to the relief originally sought in the court below, and that this appeal is therefore moot.

The order of appeal herein was timely taken and the required bond was timely filed. However, plaintiff-appellant failed to pay the costs of preparing the record on appeal and the filing fee due no later than three days prior to the extended return day. C.C.P. Art. 2126. Because of this nonpayment, dismissal of the appeal is mandated. C.C.P. Art. 2161; Hunt v. Winn Dixie Louisiana, Inc., 276 So.2d 900 (La.App. 1st Cir. 1973).

Accordingly, the appeal is dismissed. Plaintiff-appellant is to pay all costs.


author: SARTAIN, Judge.

text:
    Carolyn Ann FORD, Individually, and as Administratrix of the minor child, Joel William Tucker, Plaintiff-Appellee, v. Jimmie R. KNIGHT, Defendant-Appellant.
    No. 10868.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.

      Robin W. Poirier, Baton Rouge, of counsel for plaintiff-appellee Carolyn Ann Ford, etc.
    Edwin A. Smith, III, E. Clark Gaudin, Baton Rouge, of counsel for defendant-appellant Jimmie R. Knight.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

The accident giving rise to this litigation occurred on April 19, 1973, when plaintiff’s minor child, Joel William Tucker, age five, was struck by a vehicle owned and operated by the defendant, Jimmie R. Knight. The trial court entered judgment in favor of the plaintiff in the amount of $1,735.75 for special damages and $7,500.00 for the injuries sustained by young Tucker. It is from this judgment that defendant has appealed. We affirm.

The accident itself occurred at the intersection of Alliquipa and Mohican Streets in the City of Baton Rouge, Louisiana. The weather was clear and the streets were dry. Mohican Street is a four lane major thoroughfare, consisting of two lanes for east bound traffic and two lanes for west bound traffic. On the south it is bordered by a neutral ground approximately two to three feet in width and is further paralleled by a sidewalk.

Knight was traveling on the outside east bound lane of traffic. Immediately prior to the accident young Tucker was walking, then running in an easterly direction on the sidewalk on the south side of Mohican Street. He veered sharply to his left with the intention of crossing Mohican Street. As he did so he ran into the right front fender of the Knight vehicle just as he stepped into the street. The point of impact was fixed two feet north of the south curb of Mohican Street a distance of twenty-six feet from the west parallel line of Alliquipa Street.

The evidence indicates that shortly prior to the accident young Tucker was accompanying his cousin, Scotty Fontenot. They had just left their grandmother’s home and were going to a grocery store situated near the northwest corner of Mohican and Alli-quipa Streets. Their grandmother’s home is located some three and one-half blocks west and south of Mohican Street. The various versions of the witnesses who testified are generally uniform except that the position of Scotty Fontenot at the time of the accident appears to pose a conflict.

Knight testified that he was proceeding in an easterly direction in the outside lane of Mohican Street at a speed of between 35 and 40 m.p.h. He stated on direct examination that the first time he observed young Tucker was when the latter immediately ran from the sidewalk in a “cater-cornered direction” into his (Knight) lane of traffic, striking his vehicle’s right front fender. He stated that he could do nothing to avoid the accident save to immediately apply his brakes when he first discerned the presence and movement of the child. This testimony is in marked contrast to that given by him when he was first called under cross examination by plaintiff’s attorney. At that time Knight stated that as he was proceeding in an easterly direction on Mohican he first observed two youths on the sidewalk, when the younger of the two broke away from the older, ran a few feet and then cut directly into his path of travel. On direct examination he confirmed the fact that his first observation of the youth was just immediately prior to the accident and right at the south curb where the impact occurred. He could not recall the presence or location of the Fontenot lad.

The police report which was introduced in evidence by stipulation in lieu of the testimony of the officer indicates that the Knight vehicle left fifty-seven feet of skid-marks, eight of which were beyond the point of impact. The stated speed limit for Mohican Street at this point is 40 m.p.h.

Maude Jackson resides at her home on the north side of Mohican Street. She stated that on the morning of the accident she was in her yard and observed two youths proceeding in an easterly direction on the sidewalk on the south side of Mohican, the older youth (Fontenot) was holding the younger’s (Tucker) hand. “They were just walking at first and the little boy started running. He pulled from the older boy’s hand and just as he ran down the sidewalk he ran for a little distance, then cut across in the street. I yelled, but it was too late because this car was right up on him. Now, if I had seen the car maybe I could have yelled louder, but you cannot see around my house from my carport because my house sits out a distance from the carport and I have two cedar trees on either side of the steps.” She estimated that young Tucker stepped off of the curb and into the street at a point approximately fifteen feet from and west of the corner. Her testimony adds very little to the position of Fontenot after he and Tucker separated, that is, at what point in the scheme of things did Fontenot cross Mohican Street.

Scotty Fontenot testified that as he and Tucker were walking along the sidewalk he was holding Tucker’s hand when Tucker pulled away from him and started running. When this occurred Fontenot crossed Mohican and after he had done so he turned around only to see that his young cousin had come into contact with the Knight vehicle. His testimony is positive to the effect that he had crossed Mohican Street immediately prior to the accident. If this be the case, then he had to cross Mohican Street within Knight’s vision. From a factual point of view we find that under either version of the accident, namely: (1) both youths remained on the south side of Mohican Street, or (2) Tucker continued running along the south side of Mohican Street and Fontenot crossed the street instantly after Tucker broke away from him, that Knight should have observed the presence of these young boys and taken such steps as their conduct dictated. We believe that the record supports the conclusion that Fonten-ot had in fact already proceeded across Mohican Street at a time that Tucker was still running along the sidewalk.

Accordingly, we find the facts to be as follows: Knight was traveling 25-30 m.p.h. in an easterly direction on the outside lane of Mohican Street. Young Tucker and Fontenot were walking in an easterly direction on the sidewalk on the south side of Mohican Street. They had done so for approximately a block. Tucker broke away from Fontenot and started to run. Fonten-ot then crossed Mohican Street. Just before Tucker reached the corner he veered sharply to his left and as he ran onto Mohican Street he collided with the right front fender of Knight’s vehicle. As there was another car traveling east on the inside lane of Mohican Street and alongside of Knight, the latter could not cut to his left. Knight applied his brakes and left 49 feet of skid-marks prior to impact. There were no cars preceding Knight nor were there any cars parked on Mohican Street. Knight had a clear unimpeded view ahead of him for a full block. He (Knight) did not see either of the youths until Tucker was about to step from the curb. He did not see the Fontenot lad at all, much less observe him cross the street in front of him.

In fixing Knight’s liability, it must be determined whether the conduct complained of was negligent, that is, whether there was a duty owed by him to the child, the scope of such duty, if this duty was breached, and the causal relation between the child’s injuries and the alleged negligent conduct. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); and Pierre v. Allstate Insurance Co., 257 La. 471, 242 So.2d 821 (1970). Our jurisprudence is well settled to the effect that a motorist who sees or should see children near the roadway must exercise a high degree of care in view of the propensity of young children to do the unexpected, dart into the street or to take sudden and perilous action, heedless of their own safety and well being. Pea v. Smith, 224 So.2d 37 (1st La.App., 1969); Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975); and Cheramie v. Great American Insurance Co., 198 So.2d 726 (1st La.App., 1967). However, a motorist is not an insurer of the safety of children. The high degree of care he is required to exercise in their presence is not exacted of him until he either sees or by the exercise of reasonable care should have seen the presence of small children. He is exonerated from liability in the typical dart and run case where a child suddenly appears from behind an obstacle that has blocked his view. Duraso v. Barbo, 215 So.2d 908 (1st La.App., 1968). Each case must be resolved on the facts peculiar to it. The scope of the duty is much broader than that owed to an adult or older person. Where a small child is involved a driver is to expect the unexpected. This is so because a child of tender years does not possess the judgment and maturity expected of older persons.

In the instant case, it is apparent that Knight was not exercising that degree of care imposed upon him by law. He had a clear and unhindered view and should have seen these two youths on the sidewalk just several feet from the street itself for at least the distance of a block away. This failure to observe their presence was a breach of the duty he owed under these circumstances.

Defendant argues that plaintiff has failed to bear the burden of proving when the presence of these children should have been known to him and showing further that he thereafter breached his duty toward them. He argues (by applying reasonable reaction time) he acted as quickly as he could and was just eight feet short of avert-: ing the accident. Defendant is indicted by his own testimony because he did nothing until he saw young Tucker about to step into the street in front of him. We are satisfied, as was the trial judge, that plaintiff has borne her burden of proof. The children were there. They did not step from behind another object. For the defendant to argue that he looked and did not see them when they were in fact there is equivalent to saying that he did not look at all. His lack of attention and observation is apparent.

The question of quantum has not been raised.

Accordingly, for the above reasons, the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.


author: EDWARDS, Judge.

text:
    A. WILBERT’S SONS LUMBER & SHINGLE COMPANY v. Elias CHANEY.
    No. 10881.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    J. Evan Delahaye, John L. Delahaye of Borron & Delahaye, Plaquemine, for plaintiff.
    Lewis 0. Unglesby of D’Amico & Curet, Baton Rouge, for defendant.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

Plaintiff corporation, as lessor, and defendant Elias Chaney, as lessee, executed a written lease on April 25, 1974 whereby defendant leased a certain tract of land in Iberville Parish from plaintiff for the stated period of one year, ending December 31, 1974. The lease contained an option permitting the defendant to renew for an additional period of one year, or through December 31, 1975. At the expiration of the second year defendant refused to vacate despite plaintiff’s request.

On January 5, 1976 plaintiff filed suit to evict defendant through summary proceedings. Defendant filed an exception of lis pendens alleging an earlier suit for eviction by plaintiff was still pending. Defendant then answered and reconvened asserting the possessory action. Defendant’s wife intervened, likewise asserting the possessory action. Plaintiff excepted to the reconven-tional demand and intervention on the grounds of improper cumulation of actions, no right of action, and unauthorized use of summary process.

The trial court sustained plaintiff’s exceptions and overruled defendant’s exception of lis pendens. After trial on the rule, judgment was rendered in favor of plaintiff and against defendant, condemning the defendant to vacate the premises and to deliver possession of the land to plaintiff. Defendant appeals this judgment.

Defendant’s only specification of error is the trial court’s overruling of his exception of lis pendens.

The basis of defendant’s exception is a suit previously filed by plaintiff. This was likewise a suit for eviction of defendant from the same tract of land. However, that suit alleged the non-payment of rent due pursuant to an oral lease as grounds for eviction, while the present petition alleged and plaintiff proved the expiration of a more recent and written lease as grounds for eviction.

The exception of lis pendens is provided for by LSA-C.C.P. art. 531, which states:

“When two or more suits are pending in a Louisiana court or courts on the same cause of action, between the same parties in the same capacities, and having the same object, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final. judgment rendered shall be conclusive of all.”

The pertinent criterion for the instant decision is that the suits be “on the same cause of action.”

Appellant fails to distinguish the object, or demand, of the two suits from the causes of action. While both suits seek the same object (to have Chaney evicted), the causes of action are different. In Hope v. Madison, 192 La. 593, 606, 188 So. 711, 715 (1939), our Supreme Court defined a cause of action as follows:

“A cause of action is an act on the part of a defendant which gives rise to a plaintiff’s cause of complaint; ‘the existence of those facts which give a party a right to judicial interference in his behalf’; ‘the situation or state of facts which entitles a party to sustain an action.’ ”

The distinction has been noted “that the demand of a suit is not synonymous with the cause of action therein. The demand is the object of the suit. The cause of action is the state of facts which gives a party a right to judicially assert an action against the defendant.” Trahan v. Liberty Mutual Insurance Company, 314 So.2d 350, 353 (La.1975), citing National Surety Corporation v. Standard Accident Insurance Company, 247 La. 905, 175 So.2d 263 (1965).

Clearly, the factual bases of the two suits in question are dissimilar: the one is based on failure to pay rent due under an oral lease, the other alleges termination of a written lease covering a separate and later time period. Since these are separate causes of action, the exception of lis pendens properly was overruled.

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

AFFIRMED.


author: CHIASSON, Judge.

text:
    L. T. CHAUVIN, Plaintiff-Appellee, v. NELKIN INSURANCE AGENCY, INC. and Appalachian Insurance Company, Defendants-Appellants.
    No. 10909.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.

      Richard L. Bodet, New Orleans, and John Coleman, Franklin, for defendants-appellants.
    Dale P. Martin, Morgan City, for plaintiff-appellee.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

This matter is before us on a motion to show cause why defendants’ appeal should not be dismissed because not perfected timely.

The record reflects the following chronology of events:

(1) Plaintiff filed petition against defendants on May 14, 1975;
(2) Defendants were personally served with a copy of the petition through their agents for service of process, as follows:
a. Nelkin Insurance Agency, Inc. on May 16, 1975
b. Appalachian Insurance Company on May 20, 1975
(3) Confirmation of default judgment was rendered and signed against both defendants on July 11, 1975;
(4) Motion for new trial filed by defendants on November 14, 1975;
(5) Supplemental and amended motion for new trial and alternative petition to annul judgment and for injunction filed on March 18,1976, and fixed for trial on March 19, 1976;
(6) Judgment rendered and signed on motion for new trial and alternative petition to annul judgment on March 19, 1976;
(7) Motion for suspensive appeal and order thereon filed on April 15, 1976, granting suspensive appeal from judgment rendered and signed on March 19, 1976, and from judgment rendered and signed on July 11,1975;
(8) Appeal bond filed on April 15, 1976.

JUDGMENT OF JULY 11, 1975

No notice of judgment to the defendants or their counsel was required. Code of Civil Procedure, Article 1913. The delay for applying for a new trial, therefore, commenced to run on the 14th day of July, 1975, the day after signing of the judgment, exclusive of legal holidays. Since the motion for new trial was not filed within the delays provided for by the Code of Civil Procedure, Article 1974, the application for a new trial was untimely.

The delay for a suspensive appeal began to run on July 23,1975, and ended on August 21, 1975. Code of Civil Procedure, Articles 2123 and 1974. The suspensive appeal, as to the judgment of July 11, 1975, was untimely and is therefore dismissed.

JUDGMENT OF MARCH 19, 1976

The suspensive appeal from the judgment of March 19, 1976, filed on April 15,1976, was timely as was the appeal bond.

With regard to the appeal taken from the judgment denying defendants’ alternative petition to annul judgment, the suspensive appeal was timely and is therefore maintained.

With regard to the suspensive appeal taken from the judgment denying defendants’ motion for a new trial, the appeal is dismissed. Article 2083 of the Louisiana Code of Civil Procedure provides:

“An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury.”

The judgment denying a motion for a new trial is interlocutory in nature and can only be appealed upon a showing of irreparable injury. Price v. Price, La.App., 272 So.2d 388. No such showing has been made in this case. Further, the judgment of July 11, 1976, having become executory on August 22, 1975, cannot be stayed merely by the filing of an untimely motion for a new trial.

For the foregoing reasons, the appeal is maintained as to the judgment denying defendants’ alternative petition to annul the judgment of July 11, 1975, and in all other respects, the appeal is dismissed.

APPEAL MAINTAINED IN PART AND DISMISSED IN PART.


text:
    Francis MABRY and Gloria Mabry, Plaintiff and Appellant, v. Eugene THERIOT et al., Defendants and Appellees.
    No. 11030.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Lloyd P. Champagne, Baton Rouge, for plaintiff and appellant.
    Gerald M. Dillion, William A. Porteous, III, New Orleans, and Charles Hanemann, Houma, for defendants and appellees.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

Husband and wife filed suit for personal injuries sustained by husband and for the wife’s mental anguish resulting from injuries to the husband.

An exception of no cause of action filed by the defendant Dr. Eugene Theriot to the demands of the plaintiff Gloria Mabry was sustained by the trial court, and judgment to that effect was signed on January 6, 1976. Notice of judgment was sent to counsel the same day.

A motion to reconsider judgment on exception was filed on January 18, 1976 and denied on February 16,1976.

On March 5, 1976 plaintiffs moved for and were granted an appeal from the judgment dismissing the wife’s cause of action, and the appeal bond was set at $250.00.

The appeal bond was filed on May 3, 1976. LSA-C.C.P. art. 1974 stipulates that the seven-day delay therein provided for applying for a new trial commences to run the day after the Clerk has mailed notice of signing of judgment when notice of judgment is required pursuant to LSA-C.C.P. art. 1913. Since notice was mailed on January 6, 1976, the last day for timely application for a new trial was January 15, 1976. The motion to reconsider judgment'filed on January 18, 1976 was therefore untimely.

The delay for taking a devolutive appeal is fixed by LSA-C.C.P. art. 2087. At the time that the judgment herein was signed, the delay for taking a devolutive appeal and furnishing security therefor was 90 days from the expiration of the delay for a new trial (where no application for a new trial is filed timely).

Since the 90 day delay expired on April 14, 1976, the appeal bond filed on May 3, 1976 was not timely.

The appeal is dismissed at appellant’s cost.

APPEAL DISMISSED.


author: LOTTINGER, Judge.

text:
    Mrs. Katie Nell WICKER, etc. v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY et al.
    No. 10885.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Writ Refused Dec. 3, 1976.

      Duncan S. Kemp, III, Hammond, E. Lynn Singleton, Greensburg, for Katie Nell Wicker, etc.
    Robert J. Vandaworker, Baton Rouge, for Southern Farm and Paul Sanders. '
    Charles M. Hughes, John W. Anthony, Bogalusa, for Amite Milling and Leon Jackson.
    Before SARTAIN, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is a suit by Mrs. Katie Nell Wicker, individually and as administratrix of the estate of her minor daughter, Angela Lynette Wicker, for damages as the result of Angela having been hit and killed by an automobile. The defendants are Paul E. Sanders, owner and driver of the automobile which struck Angela Wicker, his insurer, Southern Farm Bureau Casualty Insurance Company, Amite Milling Company, Inc., the owner of the truck in which plaintiff and her minor daughter had been riding moments before the accident, and Leon Jackson, driver of the truck. The Trial Court rendered judgment in favor of Katie Nell Wicker and against Amite Milling Company, Inc. and Leon Jackson, even though plaintiff had not prayed for judgment against Jackson, and dismissed plaintiff’s suit against Paul E. Sanders and Southern Farm Bureau Casualty Insurance Company. From the judgment of the Trial Court, Leon Jackson and Amite Milling Company, Inc. filed a suspensive appeal, and plaintiff filed a devolutive appeal. Paul E. Sanders and Southern Farm Bureau Casualty Insurance Company answered the appeal of plaintiff.

Angela, who was five years old, was killed in St. Helena Parish on September 21, 1972, when struck while attempting to cross Louisiana highway 1045 from the south shoulder of that highway to the residence of Mr. Watson located on the north side of the highway. She was struck by the automobile owned and driven by Paul E. Sanders traveling on Highway 1045 in an easterly direction.

Shortly before the accident, Mrs. Wicker, Angela, and three other Wicker children left their home to walk to the Watson residence where another of the Wicker children was visiting. As they were walking, they were offered and accepted a ride with Leon Jackson who was driving a large feed truck belonging to Amite Milling Company, Inc. When they reached their destination Jackson pulled to his right onto the south shoulder of Highway 1045 immediately across from the Watson residence.

Sanders was traveling in the same direction that Jackson had been driving, that is from west to east. Three houses, including the Watson residence, were located on the north side of the highway or to Sanders’ left in the immediate vicinity of the accident, and children were playing outdoors around the houses. To the right or south of the highway there was an open field surrounded by a barbed wire fence. The feed truck, being operated by Jackson, was parked half on the paved portion of the highway and half on the shoulder. According to the testimony of Jackson, he had engaged the flashing emergency lights located on the rear of the truck.

Mrs. Wicker opened the door of the truck and descended holding one of her small children in her arms. She then assisted Angela from the truck, and according to her testimony, she reached back into the truck to assist another of her children. At this point, subsequent to Angela descending, Mrs. Wicker apparently heard an oncoming vehicle and looked back to the west to see the Sanders’ vehicle. She then looked for Angela who by this time had walked in front of the truck and onto the pavement. As the Sanders’ vehicle passed the truck in which Mrs. Wicker and her children had been riding, Angela attempted to run across the highway and was struck and killed by the Sanders’ vehicle.

Sanders testified that he first saw the stopped truck as he came over a small hill toward it. When he first saw it, he could not tell whether it was moving or stopped for only the top portion of the truck was visible to him. As he approached the vehicle more closely, he saw that the vehicle was stopped, and, according to his testimony, he noticed that there was a woman holding a small child in her arms at the right door of the truck talking to the driver. According to Sanders’ testimony, there was no indication that there were any children on the ground nearby or that there were any passengers in the truck. For all he knew, Mrs. Wicker might never have been a passenger in the truck and might simply have been visiting with the driver while holding the only child in the vicinity in her arms.

Sanders testified that he was driving at his usual speed which he estimated to be 50 to 55 miles per hour. He testified that as he approached the stopped truck, he did not attempt to apply his brakes but that he began coasting approximately 25 yards from the point of impact with Angela in order to slow so that he might get around the truck which was partially in his lane of traffic.

The Trial Judge has furnished us with no reasons for judgment and we do not know why he held Leon Jackson and Amite Milling Company, Inc. liable or why he dismissed the suit against Mr. Sanders and his insurer.

We first consider the appeal by defendants, Leon Jackson and Amite Milling Company, Inc. We have reviewed the record and are at a loss to find any negligence on the part of these defendants upon which the Trial Judge could base liability. Plaintiff’s brief is silent with regard to why the judgment of the Trial Court should be upheld against these defendants, and in oral argument, plaintiff admitted that Jackson and Amite Milling Company, Inc. should not be cast in judgment. Accordingly, we reverse the judgment of the Trial Court in favor of plaintiff and against Leon Jackson and Amite Milling Company, Inc.

We now come to plaintiff’s appeal of the judgment dismissing her suit against Paul E. Sanders and his insurer, Southern Farm Bureau Casualty Insurance Company. Plaintiff strongly argues that Sanders should have been put on notice to take special care because there were children in the area playing in the yards across the street, that he should have known that Mrs. Wicker and anyone with her would be crossing the road inasmuch as there was a fenced field on their side of the road, and that Sanders should have known that Mrs. Wicker was a passenger exiting from the truck and this should have put him on notice that there were other passengers exiting from the truck and getting ready to cross the road to get to the houses on the other side.

Plaintiff cites the case of Borman v. Lafargue, 183 So. 548 (La.App. 1st Cir. 1938) as being analogous to the case before us. In that case, a vehicle stopped on its right shoulder of the road, directly opposite an intersection to its left in order for passengers, including a seven year old child to exit. The child exited, got away from her mother, went around the rear of the vehicle in which she had been riding and onto the highway, and was hit on the far edge of the highway by defendant’s vehicle headed in the opposite direction from which the vehicle in which the child was riding had come. In Borman, the Court said that the accident was caused by the excessive speed at which Lafargue was driving, his lack of control of his car, and his failure to see the child in time to prevent striking her. The Court said that the case did not come within the class of cases where the driver is suddenly and unexpectedly confronted with an emergency by a child darting out from behind a parked automobile or other obstruction into the path of the oncoming car, making it unavoidable on the part of the driver striking the child. The Court said that the case before it came within the line of cases where the facts showed that the accident could have been avoided had the driver been traveling at the proper speed, keeping a proper lookout, and with his car under proper control.

In Campo v. Vampran, 183 So.2d 57 (La.App. 1st Cir. 1966) this Court said:

“The duty to exercise greater than ordinary care to avoid injury to a child does not become operative or exist in favor of such child until his presence is known or should have been known under the existing facts of the particular case to the operator or driver of a motor vehicle. The motorist, upon discovering the presence of children in his path of travel or in a position where they could become imperiled, is under a duty to exercise the highest degree of care to avoid injury to them. Each case must be adjudged on the facts peculiar to it. No one case is absolutely controlling of another, as few cases are identical factually.”

The Court in Bruno v. Daniels, 328 So.2d 739 (La.App. 4th Cir. 1976) quoted the above language and then went on to state the following:

“This statement points up two situations. If the driver notices children playing near the street then he is under a duty of great care as to them. If, for example, he sees children playing on the left side of the street and a child darts into his path from the right, he owes that child only a duty to exercise ordinary, reasonable care, unless he should have expected the child to be in that position. The duty of great care arises only upon the driver becoming aware of the child or under circumstances where he should have been aware of the child. . . .”

In light of the foregoing, the question is whether Sanders should have expected Angela Wicker to be in the position she occupied and thus had a special duty of care for her safety.

We call special attention to the language emphasized by the Court in the above quotation from Bruno v. Daniels, supra, stating that the duty to take special precautions is owed only to the children that a driver sees playing near the street. Though Sanders saw children playing in the yards across the road, the duty he had to take special precautions for their safety did not extend to Angela. We do not find it reasonable to expect Sanders to have foreseen Angela’s presence, and therefore, he had no duty to take special precautions for her safety.

For the above and foregoing reasons the judgment of the Trial Court is reversed insofar as it cast Leon Jackson and Amite Milling Company, Inc. in judgment, and plaintiff’s suit as to those defendants is dismissed. The judgment of the Trial Court in favor of Paul E. Sanders and Southern Farm Bureau Casualty Insurance Company and against Katie Nell Wicker dismissing the plaintiff’s suit is affirmed. All costs of this appeal are to be paid by plaintiff.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.