author: TATE, Justice. MARCUS, Justice SUMMERS, Justice

text:
    Rose J. HENDERSON, Plaintiff-Appellant-Relator, v. TRAVELERS INSURANCE CO. et al., Defendants-Appellees-Respondents.
    No. 60214.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    John G. Fontenot, Guillory, McGee & Mayeux, Eunice, for plaintiff-appellant-relator.
    Don L. Broussard, with Harry V. Sin-green, John F. Caraway, A Professional Law Corporation, New Orleans, on the brief, for defendants-appellees-respondents.
    Lemuel E. Hawsey, III, Ronald E. Stutes, Baton Rouge, for amicus curiae.
   TATE, Justice.

The claimant was denied workmen’s compensation benefits. 346 So.2d 816 (La.App. 1st Cir. 1977), certiorari granted, 349 So.2d 886 (La.1977).

The question before us is whether a dependent concubine—in popular parlance, a “common-law wife”—is totally barred from receiving workmen’s compensation benefits arising out of the work-caused death of her “common-law husband”, with whom she had been living in a stable home relationship for eleven years. The rights of no member of the decedent’s legitimate family—who are preferred claimants, anyway, under our compensation law—are involved, since the decedent was not married, had no children, and was survived by no dependent parents or siblings.

Stated more technically, the precise legal issue is: Under the circumstances shown above, may the dependent concubine of a workman fatally injured at work recover workmen’s compensation benefits, on the basis that she is a dependent member of his family, La.R.S. 23:1232(8), 1253, when her doing so will not infringe upon any share of compensation benefits to which statutorily entitled claimants (wife, child, parent) are preferentially entitled, La.R.S. 23:1232(1)-(1)1

We hold that she may, reversing the previous dismissal of her claim for compensation. In doing so, we overrule Humphreys v. Marquette Casualty Co., 235 La. 355, 103 So.2d 895 (1958), which held to the contrary.

I.

The undisputed facts show:

The decedent, George Henderson, died as the result of a work-accident in 1971. George Henderson and the claimant, Rose Henderson, had been living together as man and wife for eleven years (i. e., since 1960) in a stable, loving relationship. Rose was totally dependent on the decedent. (He had, moreover, supported her three children by a prior marriage, who lived in their home. However, the children were no longer dependent upon him at the time of his death.)

At the time of his accident, George Henderson was earning $450 per week. If entitled to workmen’s compensation benefits, the claimant is entitled to recover them at the rate of $49 per week, not to exceed 500 weeks. La.R.S. 23:1231 (1968). The insurer paid the claimant compensation benefits at this weekly rate between the decedent’s death in 1971 and early 1974. It then terminated payments upon finding reason to doubt the validity of a (claimed but unproved) Mississippi marriage or common-law marriage.

The decedent is not shown to be survived by any wife, child, or other dependent.

II.

The claimant seeks workmen’s compensation benefits as an “other dependent” “member of the family”. La.R.S. 23:1232(8), 1253. This classification of dependents receives compensation only if compensation liability to certain preferred classifications of dependents (spouse, child, parent, brother, sister) does not exhaust the maximum benefits payable by the employer. La.R.S. 23-1231, 1232; Caddo Contracting Co. v. Johnson, 222 La. 796, 64 So.2d 177 (1953); Malone, Louisiana Workmen’s Compensation Law, Section 305 (1951; 1964 pocket part).

Except for the concubine, the jurisprudence is well settled that a member of the decedent’s family household, if dependent, is entitled to recover compensation benefits when a contributing wage earner dies as the result of work-caused injuries. The dependent member of the family group is entitled to compensation regardless of blood relationship or the technicalities of inheritance law. This broad interpretation has been adopted to effectuate the socio-eco-nomic purposes of the statute to provide compensation for dependents deprived of support through the work-caused death of the decedent.

See: Caddo Contracting Co. v. Johnson, 222 La. 796, 64 So.2d 177 (1953); Patin v. T. L. James & Co., 218 La. 949, 51 So.2d 586 (1951); Thompson v. Vestal Lumber & Mfg. Co., 208 La. 83, 22 So.2d 842 (1944); Archibald v. Employers’ Liability Assur. Corp., 202 La. 89, 11 So.2d 492; Malone, cited above, Section 304. See also: McDermott v. Funel, 258 La. 657, 247 So.2d 567 (1971).

The sole jurisprudential exception to this rule is the concubine — in popular language, a “common-law wife”.

The status as concubine arises when a man and a woman live together in a permanent relationship as husband and wife, although without benefit of matrimony or a putative marriage. See, e. g.; Succession of Franz, 232 La. 310, 94 So.2d 270 (1957); Succession of Jahraus, 114 La. 456, 38 So. 417 (1905); Succession of Keuhling, 187 So.2d 520 (La.App.3d Cir. 1966); Note, 32 Tul.L.Rev. 127 (1957). As we stated in Gauff v. Johnson, 161 La. 975, 977, 109 So. 782, 783 (1926): “ * * * the concubine must not be confounded with the courtesan, or even what is ordinarily called a mistress. She is a wife without title.”

We held that a man and a woman living together in this relationship constitute a family for purposes of the workmen’s compensation act; therefore, their children are entitled to compensation benefits if the wage earner is killed at work, as dependent members of the family. Thompson v. Vestal Lumber & Mfg. Co., 208 La. 83, 22 So.2d 842 (1945). Even the concubine’s nephew living in the household, if dependent on the wage-earner, is entitled to workmen’s compensation benefits as a member of his family for purposes of the compensation act. Patin v. T. L. James & Co., 218 La. 949, 51 So.2d 586 (1951).

Nevertheless, in Humphreys v. Marquette Casualty Co., 235 La. 355, 103 So.2d 895 (1958), this court refused to allow compensation benefits to the concubine herself. We followed two earlier intermediate court decisions to the same effect. We did so primarily because we thought it beyond the legislative intent to allow any recovery whatsoever to the concubine, even though dependent, arising out of an illicit relationship “not countenanced by” the laws of our state — stating, “ ‘Where there is turpitude, the law will help neither party to the transaction.’ ” 103 So.2d 903.

III.

In the present case, the court of appeal reluctantly followed Humphreys, since it had not yet been overruled. However, the intermediate court correctly noted that the Humphreys decision is inconsistent with Archibald and Thompson, cited above, and with the intent of the compensation act as a whole.

In these latter decisions we held that the workmen’s compensation act was designed to protect all dependent members of the family household from the loss of support caused by a wage-earner’s death through work-accident. The industry which caused the loss should bear it, not the individual nor the taxpayer through welfare benefits. “Undoubtedly, the Legislature intended to allow compensation to those who were dependent upon an employee for support.” Archibald, at 11 So.2d 493-94. See Thompson, at 22 So.2d 857.

As Professor Malone noted in his authoritative treatise, the denial of compensation to the concubine because of moral turpitude “is more moralistic than it is sound. No other claimant need prove his moral worthiness so long as he or she is dependent. It would seem that the fault of the dependent concubine should no more exclude her from compensation than should the fault of the employee himself. ... The social need for compensation here is as great as though the dictates of convention had been met. It does not seem fair that the employer or his insurer should benefit by the windfall.” Malone, Louisiana Workmen’s Compensation Law, Section 304, p. 399 (1951).

We are unable to find in the terms of the compensation act itself any legislative intent to deny compensation benefits to any dependent member of the decedent’s family household because of moral unworthiness. Under the terms of the act, all dependent members of the family are entitled to compensation, subject only to the priority of preferred claimants who exhaust the statutory maximum weekly payments.

Further, we are unable to find any general legislative policy indicating a desire to punish a concubine by depriving her of all benefits or rights whatsoever because of her status. The status is not punishable by criminal penalty, for instance. Historically, the civil penalty has been, not to deprive the concubine of any right whatsoever to receive donations or testamentary dispositions, but only to limit the amount which may be donated. La.Civil Code art. 1481.

In Sizeler v. Sizeler, 170 La. 128, 127 So. 388, 389-90 (1930), for instance, we pointed out that “In the absence of express legislation on the subject, we have no judicial authority or power to draw a distinction between the classes of beneficiaries named in life insurance policies”, so as to deny recovery to a concubine. Similarly, here, in the absence of indication that the legislature desired to exclude concubines from the dependency benefits otherwise allowable under the terms of the statute, we conclude that we erred in Humphreys in importing moral unworthiness as a criterion for eligibility for compensation benefits, and in thus excluding dependent concubines alone from the compensation benefits to which all dependent members of the deceased wage earner’s family household are entitled by statute. We therefore overrule Hum-phreys.

Decree

Accordingly, we reverse the judgments of the previous courts which had dismissed the plaintiff’s suit and had granted the defendants judgment on their reconventional demand. For the reasons assigned, we render judgment in favor of the plaintiff, Rose J. Henderson, and against the defendants, Travelers Insurance Company and Fred A. Setton, holding them liable jointly, severally, and in solido for compensation payments at the rate of $49.00 per week, commencing November 30, 1971, and not to exceed 500 weeks thereafter (less credit for compensation previously paid), with legal interest at the rate of 7 per cent per annum on each installment from date of delinquency until paid; judgment is further rendered in the plaintiff’s favor dismissing the defendants’ reconventional demand with prejudice. The defendants-appellees are cast with all costs of these proceedings in the trial and appellate courts.

REVERSED AND RENDERED.

MARCUS, Justice

(dissenting).

La.R.S. 23:1253 provides that “[n]o person shall be considered a dependent, unless he is a member of the family of the deceased employee . . I do not consider a concubine to be a “member of the family of the deceased employee.” Accordingly, I respectfully dissent.

SUMMERS, Justice

(dissenting).

This Court’s search for a legislative intent to exclude concubines from the benefits of the Workmen’s Compensation Act in the context of this case can best be found in the refusal of the Legislature to overrule the decisions which have denied benefits to concubines since 1946. The problem was first presented in Moore v. Capitol Glass & Supply Co., 25 So.2d 248 (La.App.1946), where Judge LeBlanc, later Justice of this Court, as organ of the court wrote:

“The status of the plaintiff in this case is different. She is responsible for the illegal relation which she assumed and carried on with the deceased employee. There was no duty on his part to support or care for her. Either was at liberty to break off or terminate the relation at his or her own pleasure without any recourse whatever to the other. The workmen’s compensation statute, being social legislation, there may be sound and economic and legal reason to apply its liberal provisions to children who are the innocent victims of such illicit relations by including them in that class of dependents embodied in the deceased employee’s ‘family’, within the meaning of that term as used in that kind of legislation; but by no strained construction should the use of that word in the statute be extended so as to bring within its folds, no matter how freely it has to be interpreted, those who voluntarily enter into a relation not countenanced by the law of this State, in which there is no legal duty on the part of anyone and from which either party may retire at will.”

For my part, I would adhere to the rationale announced by Judge LeBlanc and approved by this Court. See Humphreys v. Marquette Casualty Co., 235 La. 355, 103 So.2d 895 (1958). It is a rule designed to impose a measure of restraint upon citizens of this State and to solidify and strengthen the family unit by a contract of marriage. Generally the rule prevails throughout the nation. 81 Am.Jur. 2d, Workmen’s Compensation, § 200; 99 C.J.S. Workmen’s Compensation, § 140(2).

The “family” is an outgrowth of human nature refined as a civilized institution. Its present form was instituted to preserve and strengthen society. Marriage is an integral part of this concept. It is not a purely moral obligation. It is a legal requirement which carries with it responsibilities and obligations lending stability to the family unit and providing order for its existence. Any erosion of this principle is bound to lessen needed restraints and weaken a vital element of society. This decision plays a part in the process of erosion by bestowing on concubines the same privileges and benefits to which married women are entitled under the Workmen’s Compensation Act. In doing so the decision demeans the dignity of marriage and to that extent strikes a blow at the family unit and the stability of the social structure.

Furthermore, since there was no legal or moral obligation on the part of the deceased employee to support his concubine, I see no reason why the employer should bear that burden at the employee’s demise. For, among other reasons, this burden is in time passed on to society at large when the employer, to meet the added costs, increases the price of his product to the customer.

I would affirm the result reached by the Court of Appeal without approving the content of that opinion.

      . If entitled to compensation benefits, she is entitled to receive them at the rate of 32 V2 per cent of the decedent’s weekly wages ($450), whether a widow, La.R.S. 23:1232(1), or a dependent “other” member of his family, La.R.S. 23:1232(8), but not to exceed the (then) statutory maximum weekly rate of $49.00, La.R.S. 23:1202 (1968).

      . In the present proceedings, the defendants reconvened to recover back workmen’s compensation benefits paid the claimant between 1971 and 1974, in the mistaken belief she was the decedent’s widow. The previous courts awarded them judgment on their reconventional demand in the amount of $5,390 for compensation so paid.

      . In Thompson, we held that unacknowledged illegitimate children could recover only as dependent “other” members of the family, now La.R.S. 23:1232(8), not as children. La.R.S. 23:1232(4)-(6). Thus, if the compensation payable to legitimate or acknowledged children exhausted the statutory maximum weekly rate, the illegitimates received nothing. Stokes v. Aetna Casualty & Surety Co., 257 La. 424, 242 So.2d 567 (1971). The United States Supreme Court reversed Stokes and held that such distinction between the legitimate and illegitimate children of a deceased wage earner was constitutionally prohibited as a denial of equal protection. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972). The vitality of Thompson’s holding— that the family unit so arising from the relationship entitled dependent members to compensation benefits in the event of the wage earner’s work-caused death — was not, of course, affected by the broadening of recovery to members of the family which, Weber held, is constitutionally mandated.

      . On two previous occasions the courts of appeal likewise felt constrained to follow Humphreys. Liberty Mut. Ins. Co. v. Caesar, 345 So.2d 64 (La.App. 3d Cir. 1977), cert. denied 347 So.2d 1118 (La.1977). Dickerson v. Employers Mut. Liab. Ins. Co., 248 So.2d 852 (La. App.2d Cir. 1971), cert. denied, 259 La. 763, 252 So.2d 457 (La.1971). Certiorari was denied in each instance over the dissent of three justices.

      . However, under the holdings of these cases, weekly compensation benefits awarded dependent other members of the family cannot infringe upon amounts due preferred claimants, such as the spouse and children, nor exceed the statutory maximum amount assessable against the employer. Caddo Contracting Co. v. Johnson, 222 La. 796, 94 So.2d 177 (1953).

      . The legislative policy expressed by Civil Code Article 1481 of disfavoring concubines in favor of the legitimate family of the decedent, if applicable to the compensation statute’s scheme, is adequately served by the concubine’s less favored position with regard to the preferred compensation claimants, the spouse, children, parents, and siblings of the decedent.


source: Caselaw Access Project

author: CALOGERO, Justice. SUMMERS, J.,

license: Public Domain

text:
    STATE of Louisiana v. McArthur JOHNSON.
    No. 60289.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Frank E. Brown, Jr., Piper & Brown, a Professional Law Corporation, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., for plaintiff-appel-lee.
   CALOGERO, Justice.

Defendant was indicted for aggravated rape, R.S. 14:42, and pled not guilty, but on the morning of trial changed his plea to guilty of the reduced charge of attempted aggravated rape. He was sentenced to fifty years at hard labor. Defendant appeals that conviction and sentence on the basis of two assignments of error.

ASSIGNMENT OF ERROR NO. 1

Defendant complains that the trial judge erred in deciding that his motion to suppress was untimely filed and in refusing to hold a hearing on the merits of his motion. This complaint has no merit.

On the morning of trial, defendant withdrew his not guilty plea and entered a plea of guilty to a reduced charge. Normally, a plea of guilty waives a defendant’s right to appeal. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). However, an appeal of pre-plea court rulings is allowed when a defendant has pled guilty with a specific reservation of his right to appeal. State v. Williams, 340 So.2d 1382 (La.1977); State v. Crosby, 338 So.2d 584 (La.1976). Because defendant Johnson made no such reservation of his right to appeal, we would normally refuse to consider his appeal of pre-plea rulings. However, the record shows that the trial judge during his Boykinization of defendant Johnson indicated that he had “the right to appeal this guilty plea and sentence.” While we doubt that this statement, in the midst of a lengthy Boykinization, actually misled the defendant into believing that he could appeal from a guilty plea, we feel it best to consider the merits of his single assignment of error to a pre-plea ruling.

Article 703(A) of the Code of Criminal Procedure pertinently allows an accused to file of right a motion to suppress “no later than three judicial days before the trial on the merits begins, . . . unless . the defendant was not aware of the grounds for the motion.” The motion at issue here was filed the judicial day before trial started, and counsel explains the tardy filing by saying that he obtained a copy of defendant’s confession on January 25th which prompted his filing the motion eight days later.

We see no merit in this position. There is no asserted or obvious relevancy between defendant’s purported confession and his motion to suppress tangible evidence (a pistol and some clothing). Nor does that explanation account for the eight days between purported discovery of the grounds for the motion and its filing. Under these circumstances, we hold that the trial judge did not err or abuse his discretion in refusing to allow the filing of the motion to suppress. The assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment, defendant complains that the sentence imposed on him was excessive. Although this complaint was not waived by the guilty plea, it cannot be considered by us because no objection was raised to it at the time of sentencing. State v. Williams, supra. Moreover, were we to consider the merits of this assignment, we would find it nonmeritorious. Defendant was given the maximum sentence on a reduced charge pursuant to a plea bargain so that he would not face trial for aggravated rape with its possible death penalty upon conviction. Independent of the bargain, however, the sentence is not excessive under the circumstances of this case.

Decree

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED.

SANDERS, C. J., concurs.

SUMMERS, J.,

concurs. This court is not authorized to review excessiveness of sentence in this case.

      . Defendant filed his motion to suppress on Friday, February 4, 1977 when trial was scheduled to commence Monday, February 7th.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Joseph SHERER.
    No. 60349.
    Supreme Court of Louisiana.
    Jan. 30, 1978.

      Philip A. LeTard, Yidalia, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., W. C. Falken-heiner, Dist. Atty., Glenn B. Gremillion, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Joseph Sherer was charged by the grand jury in the same indictment with two separate counts of negligent homicide in violation of La.R.S. 14:32. After trial before a jury of six persons, defendant was found guilty as charged of both offenses. After the convictions, but prior to sentencing, the district attorney filed an information accusing defendant of three previous felony convictions under La.R.S. 15:529.1 (Habitual Offender Law). Defendant pled guilty to the habitual offender charge, admitting the three previous felony convictions, and was sentenced by the court to serve thirty years at hard labor. On appeal, defendant relies on five assignments of error for reversal of his convictions and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant was tried by a jury of six persons for the offenses of negligent homicide. He contends the trial judge erred in denying his pretrial motion to be tried before a jury of twelve persons grounded on the claim that, because of his previous felony convictions, he was subject to being charged as a fourth offender under the Habitual Offender Law and sentenced thereunder to imprisonment of no less than twenty years. He argues that such a sentence would be necessarily at hard labor; therefore, he was entitled to be tried before a jury of twelve persons under La.Const. art. 1, § 17 and La.Code Crim.P. art. 782.

There is no merit to this contention. La. Const, art. 1, § 17 governs the number of persons comprising a jury, dependent upon the punishment in the criminal case involving defendant’s guilt or innocence. La. Const, art. 1, § 17 provides in pertinent part:

A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A. case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, five of whom must concur to render a verdict. . . . (Emphasis added.)

La.Code Crim.P. art. 782 provides similarly.

The habitual offender proceeding is not applicable until after a person has been convicted of a felony within this state. La. R.S. 15:529.1(A) and (D). Thereafter, the filing of an information accusing the convicted felon of a previous conviction(s) is discretionary with the district attorney. La.R.S. 15:529.1(D). Hence, the habitual offender proceeding is a separate proceeding applicable only after conviction and then at the discretion of the district attorney. It forms no part of the punishment of the criminal case involving defendant’s guilt or innocence; therefore, it has no bearing on the determination of the number of persons comprising the jury for the trial of the case.

In the instant case, defendant was charged with and tried for two separate counts of negligent homicide. La.R.S. 14:32 (negligent homicide) provides for a punishment of imprisonment “with or without hard labor” for not more than five years. Clearly, the punishment for the criminal case involving defendant’s guilt or innocence is not necessarily confinement at hard labor requiring a trial before a jury of twelve persons. Rather, it provides for a punishment which may be confinement at hard labor. Accordingly, defendant was properly tried before a jury of six persons. La.Const, art. 1, § 17; La.Code Crim.P. art. 782. The trial judge correctly denied defendant’s motion for a trial before a jury of twelve persons.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OP ERROR NO. 2

Defendant contends the trial judge erred in admitting in evidence the result of an alcohol blood test given defendant on the grounds that the requirements of La.R.S. 32:661 were not met and that the state failed to establish a proper chain of evidence.

The instant prosecution arises from a serious traffic accident involving defendant’s truck and two other vehicles on June 16, 1976 in Concordia Parish. At trial, Louisiana State Trooper James W. Farris testified that he investigated the accident. He stated that, when he arrived at the scene of the accident, defendant was still in his truck in an unconscious state. He testified that defendant’s breath smelled of alcohol, beer cans were found in the truck, and the truck had crossed the center line of the highway. Trooper Farris further stated that, prior to defendant’s removal from the scene in an ambulance, he told the ambulance driver that he was placing charges against defendant based on the physical evidence indicating that he had been driving while intoxicated. He instructed the driver to obtain a blood alcohol test on defendant, as he needed one in connection with those charges. After completing his investigation at the scene of the accident, Trooper Farris went to Jefferson Davis Hospital in Natchez, Mississippi, where defendant had been taken for emergency medical care. Upon arrival, he was informed that two of the female accident victims had been dead on arrival at the hospital. Defendant was unconscious; nevertheless, he advised him of. his rights and requested his consent to the blood alcohol test. Naturally, he received no response. Thereupon, he requested a doctor to withdraw the blood for the test. Trooper Farris further testified that a “blood alcohol kit” supplied by the state of Louisiana was used to withdraw the blood sample.

Dr. Orrick Metcalf, Jr. testified that he treated defendant in the emergency room of Jefferson Davis Hospital for injuries sustained in the accident. During the course of his treatment, he withdraw fluid from defendant’s stomach in an effort to relieve pressure on his respiratory tract. He stated that the fluid smelled “pretty strong” of alcohol. He instructed Mrs. Maddox to withdraw a blood sample which she did under his supervision.

Mrs. Carrie Maddox, a nurse anesthetist, testified that, upon Dr. Metcalf’s instructions, she withdraw a blood sample from defendant who was unconscious at the time. She performed this act in the emergency room of the hospital. She stated that she cleansed the site of the vein with Betadine, not alcohol, and used a 10 cc. sterile syringe with a sterile needle to withdraw the blood. She then gave the blood sample to Trooper Farris.

Trooper Farris testified that he received the blood sample in a vial from Mrs. Maddox; the vial was sealed around the top and placed in a styrofoam box which was also sealed. He stated that he retained possession of it until the next day when he gave it to Trooper Blunschi for delivery to the crime lab in Baton Rouge.

Trooper Johnny Blunschi testified that he received the blood sample, still sealed in the styrofoam box, personally from Trooper Farris and delivered it to John Ricca at the state police crime lab in Baton Rouge.

John Ricca, certified by the Louisiana State Department of Health to perform chemical analyses of bodily substances (La. R.S. 32:663), testified that he received the blood sample from Trooper Blunschi on July 6,1976. He stated that he refrigerated the sample until he made the analysis on July 15; the result of the test was .27 grams of alcohol per one hundred cubic centimeters of blood. He further testified that an absence of preservatives in a blood sample or failure to refrigerate the blood sample will not cause an increase in the alcoholic content thereof. Rather, once blood is taken out of the body, the alcoholic content can only decrease. He stated that he performed another analysis of the blood sample taken from defendant some six months after the initial analysis. During this period, the blood sample was not refrigerated. The result of the analysis was .23 grams of alcohol per one hundred cubic centimeters of blood, a decrease of .04 grams from the initial analysis.

Dr. Allen M. Read, a certified pathologist, testified that, if preservatives are not added to the blood, the sample is not refrigerated, and the sample is contaminated with bacteria, then it is possible, but highly unlikely, that the alcoholic content of the sample would increase. More likely, the opposite result would obtain, i. e., a decrease in the alcoholic content.

Defendant argues first that the blood sample was illegally withdrawn from him on the grounds that he was not under arrest at that time, had not consented to the test, and Trooper Farris had no authority in Mississippi to order the taking of the blood sample.

In substance, La.R.S. 32:661(A) provides that a person operating a motor vehicle on the public highways of this state shall be deemed to consent to chemical tests to determine the alcoholic content of his blood “if arrested” for a motor vehicle offense while believed to be under the influence of alcoholic beverages. La.R.S. 32:661(B) provides that this implied consent is not withdrawn if the person is dead or unconscious or otherwise incapable of refusing to take the tests. La.Code Crim.P. art. 201 defines “arrest” as follows:

Arrest is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him.

The statutory definition of “arrest” is keyed to the concept of restraint. It is the circumstances indicating intent to effect an extended restraint on the liberty of an accused, rather than the precise timing of an officer’s statement: “You are under arrest,” that are determinative of when an arrest is actually made. State v. Marks, 337 So.2d 1177 (La.1976); State v. Breaux, 329 So.2d 696 (La.1976); State v. Warren, 283 So.2d 740 (La.1973).

In the instant case, Trooper Farris told the ambulance driver that he was placing charges against defendant based on the physical evidence indicating that he had been driving while intoxicated. He further instructed the driver to obtain a blood alcohol test on defendant as he needed one in connection with those charges. Defendant was unconscious and in need of medical care; it was not possible to physically detain defendant without seriously jeopardizing his health. Moreover, there was no need to detain defendant who was obviously incapable of escape. Under the circumstances, we find a clear intent on the part of Trooper Farris to effect a restraint on defendant, to the extent possible, at the scene of the accident. Hence, defendant was “arrested” in Louisiana.

Furthermore, defendant remained unconscious at the hospital, a condition rendering him incapable of refusal to submit to the alcohol blood test. Hence, under La.R.S. 32:661(B), his implied consent was not withdrawn; and the testing was permissible.

Finally, having found that an arrest occurred in Louisiana for an offense arising out of acts alleged to have been committed while driving a motor vehicle on a public highway of this state while believed to be under the influence of alcoholic beverages and the implied consent to an alcohol blood test was not withdrawn, we find that the fact that the blood sample was taken at a Mississippi hospital where defendant was taken for emergency medical treatment did not vitiate that implied consent.

Next, defendant contends that the state failed to establish a proper chain of evidence for admission of the result of the alcohol blood test. Specifically, defendant argues that the state failed to prove that the sample had not been contaminated due to improper procedure in withdrawing the blood sample, failure to refrigerate the sample, or tampering with the sample.

It is well settled that a preponderance of the evidence on the question of admissibility is sufficient. State v. Graham, 278 So.2d 78 (La.1973); State v. Coleman, 254 La. 264, 223 So.2d 402 (1969). It is not necessary that all possibility of alteration be eliminated for evidence to be admissible, as long as the evidence establishes connexity by a preponderance of the evidence. State v. Rittiner, 341 So.2d 307 (La.1977); State v. Singleton, 311 So.2d 881 (La.1975).

In the instant case, Mrs. Maddox testified that she cleansed the site of defendant’s vein with Betadine, not alcohol, and used a sterile syringe and a sterile needle to take the blood sample which was then sealed in a vial. Mr. Ricca testified that failure to refrigerate the blood sample did not cause an increase of alcohol therein and, further, that an alcohol analysis made six months after the initial analysis showed a decrease in the alcoholic content of the blood sample, although it had not been re-, frigerated. Dr. Read testified that an increase in the alcoholic content is highly unlikely, even if no preservatives are added to the blood sample and the sample is not refrigerated. Unbroken chain of custody of the blood sample from its initial withdrawal from defendant’s vein until delivery to Mr. Ricca who performed the alcohol analysis was established by the testimony of those who personally possessed the sample during that interval. Clearly, the state met its burden of proving a proper chain of evidence. Hence, the trial judge did not err in allowing its introduction in evidence.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in denying his motion for a mistrial on the ground that the state’s witnesses were not sequestered as requested by defendant under La.Code Crim.P. art. 764. Specifically, he argues that they were allowed to discuss the case among themselves during the course of trial.

The trial lasted three days, the first two of which were devoted primarily to the state’s case-in-chief. At the beginning of trial, the judge asked defendant if he wished to have the witnesses sequestered prior to opening statements. Defendant indicated that he preferred to wait until the testimony began. Before any testimony was taken, the trial judge instructed the state to call its witnesses so that they could be placed under the rule of sequestration. Only three of the state’s witnesses were present at the time. After stating: “[WJe’ll watch for the others tomorrow morning,” the trial judge administered the oath to these witnesses and instructed them as follows: “You are all under the rule. Wait in the back.” Defendant made no objection to the scope of the court’s order. On the second day of trial, the state informed the court that some of those persons present in the courtroom were to be witnesses. The trial judge again instructed all witnesses in the case not to “enter the courtroom and hear the testimony of any other witness.” As previously, he did not instruct them to refrain from discussing the facts of the case or the testimony of any witness with each other. Again, defendant did not object to this form of sequestration. Apparently, not all of the state’s witnesses were present to hear the sequestration order but were taken upon their arrival at the courthouse to the room in which all witnesses were located to await their summons to testify; no witness entered the courtroom prior to testifying.

Mrs. Donna Wiggins was the seventeenth state witness to testify. She testified on the second day of trial. On cross-examination, defendant asked her if she had been told not to discuss the case with anyone. She replied that she had not been so instructed and that all of the witnesses had been waiting in one room to testify. Defendant moved for a mistrial on the ground that the witnesses were to have been placed under the rule of sequestration and should not have been allowed to discuss their testimony with anyone. The jury was removed from the courtroom. The trial judge asked Mrs. Wiggins if anyone had suggested to her what she should say in court or if she was testifying truthfully and to the best of her knowledge. She answered that no one had told her what to say. The trial judge also asked her if any other witnesses had told her how they intended to testify. She replied in the negative. Mrs. Wiggins also stated that none of the witnesses had told her about their testimony after having testified. The trial judge denied defendant’s motion for a mistrial. The jury was returned to the courtroom. After the testimony of Mrs. Wiggins was completed, the state requested the court to place the remaining witnesses under the rule of sequestration. Thereupon, the witnesses were brought into the courtroom and asked by the trial judge if anyone had told them how to testify. None replied affirmatively. The trial judge then instructed the witnesses not to discuss the case among themselves. A subsequent witness denied speaking to witnesses after they testified.

The rule providing for sequestration of witnesses is contained in La.Code Crim.P. art. 764 which provides:

Upon its own motion the court may, and upon request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice.

At the outset, we note that defendant’s contention that no sequestration order was given by the trial judge is without merit. The record clearly reveals that, prior to the taking of any testimony, the trial judge placed the witnesses present under the rule of sequestration by ordering that they be excluded from the courtroom. On the second day of trial, upon the state’s request, the trial judge again instructed all witnesses in the case not to enter the courtroom and hear the testimony of the other witnesses. Hence, the trial judge did issue a sequestration order. Moreover, no witness violated the order as given, i. e., no witness entered the courtroom and heard the testimony of any other witness.

Defendant’s second contention that the witnesses were improperly allowed to discuss the case among themselves is equally without merit. La.Code Crim.P. art. 841 provides, and this court has consistently held, that an irregularity or error cannot be availed of after verdict unless it is objected to at the time of its occurrence. State v. Williams, 343 So.2d 1026 (La.1977); State v. Finley, 341 So.2d 381 (La.1976). On the first and second days of trial, the judge ordered that the witnesses be excluded from the courtroom. They were not instructed to refrain from discussing the facts of the case or the testimony of any witness with each other. Defendant did not object on either occasion to the scope of the sequestration order. Moreover, not until sixteen witnesses had testified did defendant on the second day of trial make known his complaint to the trial judge. At this point, the trial judge immediately instructed the remaining witnesses to refrain from discussion of the case among themselves. Clearly, defendant waived any objection to the form of the sequestration order, i. e., that it did not include an instruction to the witnesses to refrain from discussing the case among themselves. Hence, the trial judge correctly denied defendant’s motion for a mistrial.

Assignment of Error No. 5 is without merit.

DECREE

For the reasons assigned, the convictions and sentence are affirmed.

      . Defendant has neither briefed nor argued Assignments of Error Nos. 3 and 4. Therefore, we consider these assignments of error to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . La.R.S. 32:661(A) provides:
      Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent, subject to the provisions of R.S. 32:662, to a chemical test or tests of his blood, breath, urine or other bodily substance for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while believed to be under the influence of alcoholic beverages. The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of alcoholic beverages. The law enforcement agency by which such officer is employed shall designate which of the aforesaid tests shall be administered.

      . La.R.S. 32:661(B) provides:
      Any person who is dead, unconscious or otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn the consent provided by Subsection (A) of this section, and the test or tests may be administered subject to the provisions of R.S. 32:662.


text:
    STATE of Louisiana v. Herbert LUTCHER.
    No. 61440.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: Herbert Lutcher, applying for writs of certiorari, prohibition and mandamus. Parish of St. Bernard.

Writ denied.


text:
    STATE of Louisiana v. George HUTCHINSON.
    No. 61218.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: George Hutchinson applying for supervisory and/or remedial writs and stay order. Orleans Parish.

Writ denied. Adequate remedy by appeal in the event of conviction.


text:
    STATE of Louisiana v. Orest PENA.
    No. 61210.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: Orest Pena applying for supervisory writs and stay order. Orleans Parish.

Application denied; there is an adequate remedy through review in the event of conviction.


text:
    LOUISIANA POWER & LIGHT COMPANY v. Jeanne Leche, wife of Vernon L. CALDWELL, Jr., et al.
    No. 61238.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: LA Power and Light Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche. 353 So.2d 1343.

Writ denied.


text:
    STATE of Louisiana v. Roy JOHNSON.
    No. 61508.
    Supreme Court of Louisiana.
    Feb. 1, 1978.
   In re: Roy Johnson, applying for writs of certiorari, prohibition, mandamus and for stay order. Parish of Caddo.

Writ granted. On the showing made, Roy Johnson is entitled to be released on his own recognizance. La. Code Criminal Procedure, Art. 336.

SANDERS, C. J., dissents from the granting of the writ, being of the opinion that the showing made is insufficient.

SUMMERS, J., dissents.


text:
    Sam J. VITRANO v. Gregory VITRANO.
    No. 61527.
    Supreme Court of Louisiana.
    Feb. 3, 1978.
   In re: Joan Melancon, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. 353 So.2d 398.

Writ not considered: Insufficient showing and insufficient compliance with our Rules to justify relief.


text:
    KANSAS CITY SOUTHERN RAILWAY CO. et al. v. CITY OF SHREVEPORT et al.
    No. 61519.
    Supreme Court of Louisiana.
    Feb. 3, 1978.
   In re: City of Shreveport, et al., applying for motion to exercise supervisory jurisdiction and expedite final determination. Caddo Parish.

Writ granted. Case fixed for hearing Monday, February 6, 1978 at 10:00 A.M.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable C. J. Bolin, Jr., Judge of the First Judicial District, Court for the Parish of Caddo to transmit to the Supreme Court of Louisiana, on or before the 3rd day of February, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 6th day of February, 1978, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.

DIXON, J., is recused.


text:
    STATE of Louisiana v. David WESTPHAL.
    No. 61472.
    Supreme Court of Louisiana.
    Feb. 9, 1978.
   In re: State of Louisiana, applying for supervisory writs. Parish of East Baton Rouge.

Writ denied.

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


text:
    Pete O. GOODLY v. Dorothy WELLS, Harry Connick, District Attorney for Orleans Parish and Ossie Brown, District Attorney for East Baton Rouge Parish.
    No. 61555.
    Supreme Court of Louisiana.
    Feb. 9, 1978.
   In re: Pete 0. Goodly applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Orleans, Parish of East Baton Rouge.

Writ denied. Applicant has not exhausted his remedy in the Court of Appeal. Accordingly, this application is transferred to the Court of Appeal, Fourth Circuit.


text:
    STATE of Louisiana v. David Stafford WESTPHAL.
    No. 61453.
    Supreme Court of Louisiana.
    Feb. 9, 1978.
   In re: David Stafford Westphal applying for writ of certiorari. Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana v. Gerald A. BOSWORTH.
    No. 61492.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: Gerald A. Bosworth applying for supervisory writs. Parish of Terrebonne.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Wil-more J. Broussard, Jr., Judge of the Thirty-Second Judicial District, Court for the Parish of Terrebonne, to transmit to the Supreme Court of Louisiana, on or before the 24th day of February, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.

SUMMERS, J., dissents.


text:
    STATE of Louisiana v. Ernest L. THOMAS.
    No. 61253.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: State of Louisiana, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans.

Writ denied.

SUMMERS, J., dissents.


text:
    STATE of Louisiana v. Marvin L. BURTON.
    No. 61412.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: Marvin L. Burton, applying for writ of certiorari and review. Parish of Ouachita.

Writ denied.

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


text:
    GREATER BATON ROUGE AIRPORT DISTRICT et al. v. Mrs. Florence Hobgood HAYS et al.
    No. 61442.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: Mrs. Florence Hobgood Hays, et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 353 So.2d 357.

Writ denied.

SUMMERS, J., would grant the writ.


text:
    Carl M. WECKEL v. LHHRA, CHARITY HOSPITAL OF LOUISIANA AT NEW ORLEANS.
    No. 61461.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: La. Health & Human Resources Administration, Charity Hospital of Louisiana at New Orleans applying for certiorari, or writ of review, to the Court of Appeal, First Circuit (Civil Service Commission). 353 So.2d 337.

Writ denied.

SANDERS, C. J., SUMMERS and DENNIS, JJ., would grant this writ.


text:
    Doris M. BAHAM v. Carolyn PATTERSON, Donald F. McGowan, Cotton’s Inc., United States Fidelity & Guaranty Co. and Government Employees Insurance Co.
    No. 61414.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: Donald F. McGowan, Cotton’s Inc., and United States Fidelity and Guaranty Company applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Livingston. 353 So.2d 366.

Writ denied. The result is correct.

CALOGERO, J., would grant the writ.


text:
    CIRCLE FOOD STORE, INC. v. NATIONAL AMERICAN BANK OF NEW ORLEANS.
    No. 61364.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: National American Bank of New Orleans applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 352 So.2d 327.

Writ denied.

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


text:
    STATE of Louisiana ex rel. Michael Wayne BOLEYN v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 61425.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: Michael Wayne Boleyn, applying for writs of habeas corpus, certiorari, prohibition and mandamus. Parish of Rapides.

Denied.


text:
    Bennie MOORE, Sr., et ux. v. The TRAVELERS INDEMNITY CO. et al.
    No. 61330.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: June R. Hill, State of La. and Travelers Ins. Co., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 352 So.2d 270.

Denied.


text:
    Ethel F. WASHINGTON et vir. v. LAKE CITY BEVERAGE, INC., et al.
    No. 61392.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: Allen Fontenot, Lake City Beverage, Inc. and Travelers Ins. Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 352 So.2d 717.

Writ denied.


text:
    Von Elton CHAMPION v. FARM BUREAU INSURANCE CO.
    No. 61384.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: Von Elton Champion, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches. 352 So.2d 737.

Writ denied.


text:
    Thomas J. PROVOST v. CITY OF LOREAUVILLE et al.
    No. 61393.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: Thomas J. Provost applying for certiorari, or writ of review to the Court of Appeal, Third Circuit. Parish of Iberia. 352 So.2d 789.

Writ denied.


text:
    Louis MASON v. Howard NORTON.
    No. 61493.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: Louis Mason, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 353 So.2d 304.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    FOREMOST-McKESSON, INC. v. F. C. DOYAL, Administrator of the Division of Employment Security, etc.
    No. 61470.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: Foremost-McKesson, Inc. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 353 So.2d 360.

Writ denied.


text:
    Perry M. SEGURA, d/b/a Perry Segura and Associates v. LOUISIANA ARCHITECTS SELECTION BOARD et al.
    No. 61390.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: Perry M. Segura, d/b/a Perry Segura and Associates, applying for certio-rari, or writ of review to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 353 So.2d 330.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. J. Walter SMITH.
    No. 61454.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: J. Walter Smith, applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Livingston. 353 So.2d 322.

Granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Judy BRADDY v. TRIANGLE TIMBER, INC.
    No. 61467.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: Judy Braddy, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipa-hoa. 353 So.2d 311.

Writ denied.


text:
    STATE of Louisiana ex rel. Bernard JONES v. Judge Bernard J. BAGERT et al.
    No. 61486.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: Bernard Jones applying for writ of mandamus. Orleans Parish.

Writ denied. Appeal pending.


text:
    STATE of Louisiana v. Arthur WEBB, Jr.
    No. 61484.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: Arthur Webb, Jr. applying for writ of certiorari and habeas corpus. Parish of Pointe Coupee.

Writ denied.


text:
    TRI-SOUTH MORTGAGE INVESTORS v. NEW COMMUNITIES, INC.
    No. 61481.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: New Communities, Inc. and J. E. F. Developers applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terrebonne.

Writ denied.


text:
    STATE of Louisiana v. Gerald MANNING.
    No. 61471.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: State of Louisiana through District Attorney, J. Carl Parkerson, applying for writs of certiorari and review and stay order. Ouachita Parish.

Writ denied.


text:
    Norma Langhof, wife of/and Ricky David MEEK v. CLEARVIEW DODGE SALES, INC., Credithrift of America # 2, Inc. and Chrysler Corporation.
    No. 61457.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: Clearview Dodge Sales, Inc. applying for writs of certiorari, review, prohibition and mandamus. Jefferson Parish.

Writ denied.


text:
    George FOURNETTE v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 61436.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: George Fournette, applying for certiorari and habeas corpus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Bobby Ray SPATES v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 61426.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: Bobby Ray Spates applying for writ of habeas corpus. Caddo Parish.

Granted. Applicant’s sentence is set aside, and the trial judge is instructed to appoint counsel and resentence applicant with benefit of counsel.


text:
    STATE of Louisiana v. Louis BUTLER.
    No. 61529.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: Louis Butler, applying for supervisory writs of certiorari, mandamus and prohibition.

Writ denied in part, granted in part.

No error as to ruling on preliminary examination. Bond reduced to $50,000.


text:
    STATE of Louisiana ex rel. Melvin BUJOL v. Frank A. MARULLO, Jr., Judge, Criminal District Court, Parish of Orleans.
    No. 61025.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: Melvin Bujol applying for writ of mandamus. Parish of Orleans.

Not considered. Issue is moot.


text:
    Norman J. PELLEGRIN v. Bernard L. MANALE, M.D.
    No. 61387.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: Bernard L. Manale, M.D. applying for writ of certiorari. Orleans Parish.

Denied. The judgment is not final.


text:
    STATE of Louisiana ex rel. Otto CLARK v. Honorable Frank SHEA, Judge, et al.
    No. 61423.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: Otto Clark applying for writ of mandamus. Parish of Orleans.

Writ denied. Relator’s appeal is pending.


text:
    STATE of Louisiana v. Joe GUTIERREZ.
    No. 61413.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: Joe Gutierrez, applying for supervisory writs.

Writ denied. Adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana ex rel. James E. BATISTE v. Matthew S. BRANIFF, Judge, et al.
    No. 61399.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: James E. Batiste, applying for mandamus and habeas corpus. Parish of Orleans.

Writ denied. Relator’s appeal is pending.


author: LOTTINGER, Judge.

text:
    GLOBE PLUMBING, HEATING AND AIR CONDITIONING COMPANY v. ROUSSEL-HART CONTRACTORS. ROUSSEL-HART CONTRACTORS v. The HOUSING AUTHORITY OF the TOWN OF WHITE CASTLE, Louisiana.
    Nos. 11602 and 11653.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.
    Writs Refused March 27, 1978.
    Warren L. Mengis, Baton Rouge, for plaintiff-appellant, Globe Plumbing, Heating & Air Conditioning Co.
    Robert L. Roland of Watson, Blanche, Wilson & Posner, Baton Rouge, for defendant-appellee-appellant-plaintiff, Roussel, Hart Contractors.
    Patrick W. Pendley of Freeman & Pend-ley, Ltd., Plaquemine, for defendant-appel-lee-appellee-defendant, Housing Authority of the Town of White Castle.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

These consolidated cases, arising out of the construction of a low-cost housing project in the town of White Castle, involve the contractual relationships between the general contractor, Roussel-Hart Contractors (Roussel-Hart), the subcontractor of the plumbing and sewer system, Globe Plumbing, Heating and Air Conditioning Company (Globe), and the owner, The Housing Authority for the Town of White Castle, Louisiana (Housing Authority). The principal contractor sued on the basis of failure to pay the remaining funds due on the contract and the Housing Authority reconvened for liquidated damages, the cost of dirt fill, sidewalk repairs and additional architect’s and attorney’s fees. The subcontractor’s suit is also based on a failure to pay the complete subcontract by the principal contractor. In Roussel-Hart’s reconven-tional demand they request reimbursement of any assessed liquidated damages attributable to Globe, the cost of repair work done to the sewer system and the corrective dirt work used therein, and other charges which have been settled and are not here on appeal. In well written reasons for judgment, the Trial Judge clearly and distinctly set forth all of the facts and his conclusions.

In suit number 11602, Globe v. Roussel-Hart, the Trial Court awarded Roussel-Hart on its reconventional demand the sum of $23,728.48 as follows:

“Amount paid by Roussel-Hart to correct
the gravity sanitary sewer system-$ 8,151.06
Damages by Globe to Building C-21-$ 55.92
Plumbing and Sewer permits-$ 1,180.00
Water tapping fees -$ 350.00
Refund for corrective dirt work -$ 2,236.50
One-half of liquidated damages for 135 days at $116.00 per day -$ 7,830.00
One-half additional architect’s costs-$ 1,300.00
One-half of attorney fee for Patrick W. Pendley_$ 2,625.00
Total $23,728.48”

The reconventional demand award was subject to a credit of $15,343.62 in favor of Globe on its main demand.

Additionally, in suit number 11653, the Trial Court awarded Roussel-Hart in its suit against the Housing Authority the sum of $39,472.22, less $27,118.30 in favor of the Housing Authority on its reconventional demand, which was computed as follows:

“A) Liquidated Damages for Delay — (135 days) at $116.00 per day_$15,660.00
B) Amount paid S. J. Guercio for sand and dirt fill _$ 2,236.50
C) Sidewalk repair_$ 1,505.80
D) Architect costs beyond original costs due to delays and corrective work ...$ 2,600.00
E) Attorney Pee _$ 5,116.00
TOTAL _ $27,118.30”

In suit number 11602, Globe, the appellant argues that the Trial Judge committed error in finding that (1) the sewer system was defective and corrective work was necessary, (2) the local codes and regulations were not complied with, (3) as subcontractor they were assessable half of the attorney’s fees, liquidated damages and architect’s fees, (4) the corrective dirt work was used in connection with the sewer lines and the contract for said work was not illegal, null and void. In the consolidated suit number 11653, Roussel-Hart, the appellant therein contends that the errors committed by the Trial Judge’s findings are that of (1) the sewer system not meeting the plans and specification, (2) assessing liquidated damages, (3) awarding attorney’s fees and architect’s fees and (4) awarding the cost of the sidewalk repairs.

In order to facilitate this appeal, the Court will conjointly view these specifications of error under the specific issues of (1) the construction and correction of the sewer system, (2) the assessing of liquidating damages and failure to grant extensions of time, (3) the awarding , of attorney’s fees and architect’s fees, (4) the reimbursement for the purchases of dirt from the Mayor of the town of White Castle and (5) the valuation and assessing of the^ necessary sidewalk repairs.

ISSUE NO. 1

The Trial Judge’s determination, “there was no doubt whatsoever the sewer system was defective and corrective work necessary”, is in complete accord with the record on appeal. The plans specifically called for the tamping of the lines and the laying of a proper foundation for the sewer system. The testimony clearly demonstrates that the method employed by Globe in tamping the lines was contrary to the method called for in the plans and specifications. The conclusion, the improper method of installation mandating the corrective work, is logically inferred from the numerous inspections of the lines which revealed dips and a broken joint.

This is a gravity sewer system where maintaining the proper grade is crucial to the operation of the system. Dips in the line which were revealed in the televised inspections showed the grading of the line to be off enough to hinder its proper operation; there being a retention of water in the lines. The acceptance of the project by the Housing Authority depended upon the correction of the dips in the line. Until those corrections were performed the project, according to the Housing Authority, could not be considered substantially complete. The substantial completion date as determined by the Housing Authority was June 24, 1974, two days following the completion of the corrective sewer work. We see no error in the findings of the Trial Judge that the lines were defectively installed and that the corrective work was necessary.

ISSUE NO. 2

In assessing liquidated damage ($116.00 per day) Roussel-Hart contends that all requests for extensions of time should have been granted and that no liquidated damages are due and owing. The record contains lengthy discussions on the amount of rain and the number of employees working on the days claimed by Rous-sel-Hart. According to Roussel-Hart they were plagued with hurricanes, delayed approval of change orders and strikes, and that any delay because of the unacceptability of the sewer lines was totally chargeable to Globe.

The Housing Authority felt that the slow progress was not only due to the weather conditions but was attributable to Roussel-Hart’s failure to properly man the project. The poor workmanship of Roussel-Hart which required correction before the acceptance of the project, also justified the assessment of liquidated damages.

The amount assessed against Globe (one-half of the liquidated damages) is within the range of time for which the delay is attributable to the defective sewer lines and the time entailed in correcting them. The Trial Judge’s award of 135 days of liquidated damage, split between Globe and Roussel-Hart, is not found to be excessive and we find no error in this assessment.

ISSUE NO. 3

The contract under which the parties are suing contains no stipulation for attorney’s fees or extra architectural fees. The Trial Judge erred in concluding the contract incorporated by reference Section 10(f) of the Instructions to Bidders which states that the bond would include the payment of reasonable attorney’s fees and extraordinary engineering fees. It is clear from the record that there is no reference to the Instructions to Bidders in the contract thus, there being no statute compelling the payment of these fees, we find their assessment to be in error. Maloney v. Oak Builders, Inc., 256 La. 85, 235 So.2d 386 (1970).

ISSUE NO. 4

The Trial Judge was apparently of the opinion that the legality of the contracts with the Mayor had no real significance, but rather, the question was who was going to pay for the dirt used. Argument in brief is aimed more at the factual conclusions of the Trial Judge than to the legality of the contract. After a thorough review of the record on this issue, we do not find any error on the part of the Trial Judge in his conclusion that the extra fill was necessitated by the work of Globe, and that the price was reasonable.

ISSUE NO. 5

The need for sidewalk repairs and the value of those repairs exclusively involves Roussel-Hart and the Housing Authority. The record indicates that the sidewalks were in need of repair and that any alleged faulty design has no affect on the one year warranty given by Roussel-Hart for repair to the sidewalks. Differing evaluations for the necessary repair work were presented to the Trial Judge and his award of $1,505.80 is reasonable and equitable. We can find no error in this holding.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is amended to provide in suit number 11602 that there be judgment on the reconven-tional demand in favor of Roussel-Hart in the amount of $19,803.48, and in suit number 11653, that there be judgment on the reconventional demand in favor of the Housing Authority in the amount of $19,-402.30, and in all other respects, the judgment of the Trial Court is affirmed. All costs of this appeal are to be paid equally by Roussel-Hart, Globe, and the Housing Authority.

REVERSED IN PART, AMENDED AND AFFIRMED.

      . Tamping is a process by which pipes are secured in the trenches by hand pressing dirt around them and for six inches to a foot on top of them. The pressing is usually done with a tamper.


author: COVINGTON, Judge.

text:
    Tommy HOLLINGSWORTH v. STATE of Louisiana, Through the DEPARTMENT OF PUBLIC SAFETY, et al.
    No. 11702.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.
    Writ Refused March 31, 1978.
    Dee D. Drell, Alexandria, for appellant Tommy Hollingsworth.
    R. Gray Sexton, Baton Rouge, for appel-lee.
    Howard P. Elliott, Jr., Baton Rouge, for Dept, of Public Safety, Division of State Police.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

The appellant, Tommy Hollingsworth, has appealed the decision of the Civil Service Commission (Commission) which granted the Department of Public Safety’s Motion for Summary Disposition and dismissed his appeal. We affirm.

The appellant is employed by the Department of Public Safety, Division of State Police, as a State Police Command Inspector, serving with permanent status.

The basis of the appellant’s appeal to the Commission, which was filed on April 14, 1976, was discrimination in the application of the Commission’s Uniform Pay Plan in that two employees of the State Department of Public Safety who are serving in the same position as the appellant are now receiving a higher rate of pay than the appellant even though he has served longer and in higher classes of position than they have served.

The pay plan to which reference was made in the notice of the meeting of the Commission, following a public hearing held the previous day, was subsequently given an effective date of implementation of August 2, 1975.

The Department of Public Safety, in response to the notice of appeal, filed a motion for summary disposition, asserting that the Commission was without jurisdiction because the delay for appealing had tolled because the appeal had not been filed within thirty days of the action which was the subject of the complaint.

The facts show that upon learning that his pay was less than that of the two employees holding the same position as he, the appellant properly applied to the Secretary of the Department of Public Safety for a discretionary pay increase to bring his pa^ in line with the comparable employees. This letter was written on December 14, 1976, and appellant’s request was denied on December 22, 1976. On January 10, 1977, within thirty days of the denial, appellant filed with the Civil Service Commission his “appeal from discrimination in application of pay plan.”

We find that the appellant has timely appealed within the meaning of Civil Service Rule 18.12, because his appeal was lodged within thirty days of the denial of his request for the pay increase.

The Commission considered and ruled upon the merits of the appeal. Therefore, appellant was not adversely affected by any consideration of its timeliness.

He complains that there are only two other Command Inspectors in the Department, each of whom is junior to him in service, each of whom was in turn promoted to Commander and then to Command Inspector, and each of whom has been awarded two salary step increases. It is these adjustments in their pay which provided them with a greater pay than the appellant.

A review of the record convinces us that Hollingsworth has received all of the pay increases and salary adjustments which were due him under Civil Service Rules from the date of his employment to the date of the present appeal. There is nothing in the record to show bias toward him or any discriminatory omissions or commissions by the Department or the Commission against him as a police officer.

The record reflects that the manner in which the two compatible officers are receiving slightly more pay than appellant came about was: at the time when the pay plan went into effect each of them held a lower rank than Hollingsworth, but they obtained a discretionary merit step increase in pay in the lower rank prior to their promotions and the accompanying salary increases. The record also shows that when the two other employees moved from State Police Captain to the new class of State Police Commander, the two-step increases made it possible for them to receive more pay than Hollingsworth, who was already a Commander Inspector. However, such a variance comes about, solely from the mechanics of the system, not from any discriminatory application or implementation of the pay plan. An imbalance can occur in any department, and pay discrepancies to a slight extent exist throughout the system. Such discrepancies are caused primarily by the provisions of the Civil Service pay rules and the way the pay plan is structured, and not from any internal administrative adjustments. For example, any employee can be promoted to a higher paying classification just prior to the date of an annual merit increase and receive less money than if his promotion had come after the merit raise.

Accordingly, we conclude that there was no discrimination against the appellant and that there is no merit in his appeal. We, therefore, affirm the decision of the State Civil Service Commission, at appellant’s costs.

AFFIRMED.

      . The pay plan was adjusted pursuant to the provisions of Article 10, Section 10, of the Louisiana Constitution of 1974.

      . It provides, inter alia, that an appeal, in order to be effective, must be . . received in the office of the Director . or . is addressed to the Director . . . with proper postage affixed, and is dated by the United States Post Office . . . ” within 30 caleutíar days after the date on which the appellant received written notice of the action in which the appeal is based, when such notice is required by the Rules, or within 30 calendar days “. . . after the date when the appellant learned or was aware that the action complained of had occurred when no written notice is required by these Rules or, if required, was given tardily or not at all.”


author: CHIASSON, Judge.

text:
    Jessie R. RANDALL v. RORAN CORPORATION et al.
    No. 11685.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.
    Writ Refused April 7, 1978.
    James A. Wood, Baton Rouge, of counsel for plaintiff-appellant Jessie R. Randall.
    James E. Moore, Baton Rouge, of counsel for defendant-appellee Lanier & Associates, Inc. and Aetna Life and Casualty.
    John E. Miller, Baton Rouge, of counsel for defendant-appellee Roran Corporation et al.
    Before SARTAIN, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

Plaintiff appeals a judgment denying his claim in tort for personal injuries against the defendants Lanier and Associates, Inc. and Aetna Life and Casualty for the alleged negligent construction of a temporary ladder from which he fell.

The defendants have not answered nor have they appealed from the judgment.

Plaintiff was a non-salaried officer (the vice-president) and a stockholder of Roran Corporation, a general building contracting company hired for the construction of the Devonshire Apartments by the owner, U-Store It, Inc. The apartments are located at 11620 Airline Highway in East Baton Rouge Parish. Plaintiff was also the general manager of R & R Consultants, an architecture and engineering consultant company hired by U-Store It, Inc. to draw the plans of the apartments. Roran Corporation hired the services of the plaintiff in his capacity as an architect with R & R Consultants to inspect certain construction work being conducted on the apartments. Finally, the defendant Lanier and Associates, Inc. was subcontracted by Roran Corporation to do the framing and carpentry along with other crafts that were also subcontracted.

On January 30, 1974, plaintiff was called to inspect one of the apartment units under construction. It was a two-story unit in the early stages of construction. The fire wall had been completed, the bottom floor was framed in, and the carpenters were in the first stages of construction of the second floor. To gain access to the second floor a temporary ladder was made with two-by-fours nailed across existing wall studs up to an opening in the decking of the second floor which was later to receive a stairway. Plaintiff climbed the temporary ladder and inspected the job site. After discussing a problem with the carpenters, he proceeded to descend the ladder; however, for some reason, he fell to the first floor landing on his back on the cement slab.

The trial judge rendered judgment against the plaintiff and in favor of all defendants dismissing his claims at his costs, and also dismissing plaintiff’s claim for workmen’s compensation against Roran Corporation. Consequently, a third party claim filed by Roran Corporation against the defendants Lanier & Associates and Aetna Life and Casualty in case Roran was found liable was also dismissed, at Roran’s costs.

Plaintiff alleges that the lower court erred:

I. In failing to apply the doctrine of Res Ipsa Loquitur.
II. In failing to find negligence on the part of the defendant, Lanier and Associates, for their inadequate supervision and construction of a ladder.
III. In failing to award damages.

There is evidence supporting the trial court’s finding that Mr. Randall’s fall was not related to the faulty or negligent construction of the ladder in question.

No witness, other than Mr. Rushing, testified that they observed a missing rung to the temporary ladder after the accident.

Mr. Michael Raymond Montz, a carpenter employed on the job at the time of the accident, was the only eye witness who observed Mr. Randall’s fall. He testified that he didn’t see Mr. Randall bring any wood structure down with him when he fell and he couldn’t say whether the rung pulled out or whether Mr. Randall just missed the rung altogether. All the witnesses who used the ladder testified that they had no reason to believe that the ladder was unsafe. Furthermore, the temporary ladder had previously been used by a number of people prior to the time of the accident on that day. Mr. Montz testified that he had used the ladder at least three times prior to the accident.

The testimony does not warrant the conclusion that a rung on the temporary ladder pulled out to cause Mr. Randall’s injuries. Consequently, Mr. Randall’s fall could have been due equally to his own fault in failing to watch his step as well as to the faulty or negligent construction of the temporary ladder.

The test of applying res ipsa loquitur is “Do the facts of the controversy suggest the negligence of the defendant rather than some other factors, as the most plausible explanation of the accident? ... On the other hand application of the principle is defeated if ‘an inference that the accident was due to a cause other than defendant’s negligence could be drawn as reasonably as one that it was due to his negligence.’ ” (Emphasis supplied). Pille v. National Food Stores of Louisiana, Inc., 245 La. 276, 158 So.2d 162, 165 (1963); Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972). Therefore, res ipsa loquitur does not apply in this case.

Plaintiff further asserts that La.R.S. 40:1672 imposed a duty upon defendant La-nier & Associates to construct their ladders “. . so as to give proper and adequate protection to any person employed or engaged thereon . . and that violation of this statute is negligence per se under the case of Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962). Without considering whether the violation of La.R.S. 40:1672. constitutes negligence per se, we find that the evidence was simply insufficient to establish that the defendant breached its duties to the plaintiff whether statutorily imposed or otherwise.

In view of the evidence and testimony of the witnesses, we find no error in the judgment of the trial court dismissing the plaintiff’s suit and dismissing the defendant Ro-ran Corporation’s third party claim.

Costs of this appeal are to be paid by the plaintiff.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


author: STOULIG, Judge.

text:
    CLEAN SWEEP, INC. v. DELTA CONTAINER CORPORATION.
    No. 8696.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.

      James J. Morrison, Jr., New Orleans, for plaintiff-appellee.
    Baldwin, Haspel, Rainold, Meyer, Reso, Dussom & Little, Michael F. Little and William E. Wright, Jr., New Orleans, for defendant-appellant.
    Before REDMANN, LEMMON and STOULIG, JJ.
   STOULIG, Judge.

Defendant, Delta Container Corporation (Delta), has appealed a judgment awarding plaintiff, Clean Sweep, Inc., $1,413.30 in a suit on a contract to clean and seal Delta’s warehouse floor.

Initially plaintiff submitted a proposal to sand and apply a 14% acrylic concrete protective sealer on the floor area measuring approximately 20,000 square feet. The job was to be done in four phases of 5,000 square feet each between Friday and Sunday nights so that defendant’s regular business operation would not be disrupted.

At defendant’s request, plaintiff used a substitute sealer, Tennant 416 Epoxy Penetrating Seal, after defendant’s representative Sidney Folse and plaintiff’s supervisor Alan Reinecke viewed another floor where it had been applied. After plaintiff completed the first section by applying three coats of the Tennant seal, it became apparent almost immediately that the product would not adhere to the concrete floor.

Folse then advised Reinecke he wanted Matter Cure and Seal used instead of Ten-nant. Plaintiff reworked the first section with the Matter seal, which adhered better, but did not produce the result Folse expected.

Plaintiff’s workmen applied only one coat of sealer to the second section in place of the three originally specified in the contract. This was on the advice of the Matter representative with full concurrence of Folse. After plaintiff’s laborers had sanded the third section (admittedly with a lesser grade of sandpaper), Folse cancelled the contract.

To plaintiff’s demand for payment for the labor and materials it expended on the job, Folse defended by claiming plaintiff left the floor in worse condition than it was when the work was undertaken. Defendant uses the area in question for storing, shipping and receiving materials. Its forklifts carry loads up to 2,000 pounds without using pallets and the trucks deposit their loads by tilting the fork at a downward angle, and reversing quickly so that the load will stay in place. Admittedly this practice entails “digging out” or spinning wheels in place until the truck moves out quickly. Plaintiff’s position is that this hard use removed the Matter sealer from the floor and left it in the condition of which defendant’s representative complains. Plaintiff maintains normal use of the forklift would not have caused this condition.

The trial court concluded plaintiff properly prepared and sealed the floor. In well-stated verbal reasons the trial judge found the Tennant and Matter sealers selected by defendant’s representative inadequate to seal a floor subjected to “digging out” driving operations. Because defendant’s agent Folse selected the material, he cannot hold the contractor for deficiencies in the product. Sisters of the Good Shepherd v. Quinn Const. Co., 225 So.2d 225 (La.App. 4th Cir. 1969).

The question of damages is difficult because plaintiff’s casual approach to bookkeeping has produced imprecise records. We state at the outset that it is apparent plaintiff expended considerable time, labor and materials on this job and should not have its suit dismissed because of internal clerical errors. We do not think a remand could clarify the situation because the records kept by plaintiff are inadequate.

We find no fraud or subterfuge in these inconsistencies and will reconstruct damages from that part of the record we deem competent evidence. Claims for labor and materials are supported by testimony, invoices and/or plaintiff’s bookkeeping records, such as they are.

Plaintiff was billed $1,309 for 110 gallons of Malter seal material. Of this amount 50 gallons were used before plaintiff was discharged from the job and 60 gallons, packaged in 10 gallon drums, were returned. The trial court allowed $917 or 70% of the amount on the theory that plaintiff would get credit for the unopened containers. The record fails to explain why the seals were broken by plaintiff on three of the ten gallon drums for which Malter refuses to allow plaintiff credit. We think plaintiff is entitled to be paid for the material actually used at the rate of the $11.90 per gallon price or 50 X $11.90 = $595. In addition plaintiff is entitled to $53.61 or the accrued service charges for late payment.

Plaintiff was awarded $60 for 12 wool pads and two applicators based on testimony they were purchased at the cost itemized on Tennant’s list. Cost of the applicators was understated by plaintiff, but it was awarded the amount sought in its petition.

The next item complained of is 200 hours of labor at $3 per hour, or $600. Reinecke, plaintiff’s supervisor, testified 228 hours were expended and there is some confusion in the records of Clean Sweep’s payroll. It is obvious that plaintiff spent considerable time on this job. Excluding labor, defendant was not charged for removing the Ten-nant sealer and redoing the first section.

Plaintiff was awarded the $54 for gasoline consumed by its vehicles for 18 trips to the jobsite. The testimony of Reinecke is sufficient to establish this item.

We reduce the award of $322 for rental of sanders to $142.16 because this is the amount the record supports as the rental expense attributable to the Delta job. The evidence also warrants the award of $65 for the stripper and $148 for sanding pads.

The foregoing awards are subject to a credit of $700 previously paid. In summary we award:

Sealer material and late charge $ 648.61
Pads and applicator 60.00
Labor 600.00
Gas travel expense 54.00
Sander rental 142.16
Floor stripper at $13 per gallon 65.00
Sanding pads 148.00
$1,717.77
Less payment 700.00
$1,017.77

For the reasons assigned, the judgment appealed from is amended to reduce the award to plaintiff from $1,413.30 to $1,017.77 and as amended, it is affirmed. Costs are to be divided equally between the litigants.

AMENDED AND AFFIRMED.

      . Reinecke testified that the Tennant product could actually be “picked up and peeled from the floor” and that this condition was not caused by any of the defendant’s forklift activities.

      . Invoices dated 3/25/76 for $16.84; 4/2/76 for $62.66 and 4/9/76 for $62.66.