author: PER CURIAM. HOOD, Judge.

text:
    Roger Dale McGEE, Plaintiff-Appellee, v. Conrad FUSELIER et al., Defendants-Appellants.
    No. 5506.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 1976.
    On Application for Rehearing April 20, 1976.
    Tate & Tate, by Donald J. Tate, Mamou, for defendant-appellant.
    John C. Fontenot, Ville Platte, for plaintiff-appellee.
    I. Stephen George, Baton Rouge, for de f endant-appellee.
    Before HOOD, CULPEPPER, DO-MENGEAUX, WATSON and GUIDRY, JJ-
   PER CURIAM.

This is an election contest instituted under the provisions of LSA-R.S. 18:420. That statute provides that when an appeal is taken in such a case the appellate court will decide the issue within 24 hours after submission. LSA-R.S. 18:420E.

After considering the facts, the law and the arguments of counsel, we have concluded that there is no error in the judgment rendered by the trial court.

In view of the provisions of LSA-R.S. 18:420E, we have decided to render judgment at this time affirming the judgment appealed from. Reasons for that judgment will be assigned at a later date.

The judgment appealed from is affirmed. The costs of this appeal are assessed to defendant, Conrad Fuselier.

HOOD, Judge.

Roger Dale McGee, a candidate for Justice of the Peace for Ward 3 in Evangeline Parish, instituted this suit for judgment ordering a recount of the absentee ballots cast in four precincts of that ward at a general election held on December 13, 1975. The defendants are Conrad Fuselier, also a candidate for the above office, and Walter Lee, the Clerk of Court for Evangeline Parish. The court appointed counters for that purpose, and the absentee ballots eventually were recounted. Judgment was rendered by the trial court on March 16, 1976, decreeing that plaintiff McGee had obtained a majority of the votes cast at that election. Defendant Fuselier appealed.

This case was consolidated for appeal with two other related cases: Roger Dale McGee v. Board of Supervisors of Elections et al., 330 So.2d 391 (No. 5505 on our docket); and Conrad Fuselier v. Roger Dale McGee et al., 330 So.2d 392 (No. 5516 on our docket). A separate judgment is being rendered in each of these consolidated cases.

These consolidated appeals were argued before us on April 7, 1976. LSA-R.S. 18 :- 420E requires that the appellate court decide the issue presented in a case of this kind within 24 hours after submission. In view of that requirement, we rendered judgment in each case on that date, April 7, affirming the trial court in each instance, and we now assign our reasons for those judgments.

At a general election held on December 13, 1975, McGee and Fuselier were the only candidates for election as Justice of the Peace for Ward 3 in Evangeline Parish. Following that election, an unofficial tabulation of the votes cast indicated that Fuselier received 1372 votes and that McGee received 1371 votes. The Honorable Walter Lee, Clerk of Court, verified the election returns, and on December 16, Fuselier was declared to have been elected to the above office.

On December 17, 1975, McGee instituted this suit against Fuselier and the Clerk of Court, seeking a recount of the absentee ballots cast in Precincts 2, 3, 6 and 7 of Ward 3, in Evangeline Parish. The recount was demanded under the provisions of LSA-R.S. 18:420, and four counters were appointed by the trial court for that purpose. Defendant Fuselier filed pleadings attacking the constitutionality of LSA-R.S. 18:420, however, and pursuant to those pleadings a rule was issued directing plaintiff McGee to show cause why that statute should not be decreed to be unconstitutional and why this suit should not be dismissed. A hearing was held on December 19, and at that hearing the trial court indicated that the above statute would be held to be unconstitutional. Judgment was rendered on December 29, 1975, decreeing LSA-R.S. 18:420 to be unconstitutional and dismissing plaintiffs suit. McGee appealed directly to the Louisiana Supreme Court.

On December 22, 1975, which was after a hearing had been held but before judgment was rendered in the instant suit, plaintiff McGee instituted a separate suit against the Board of Supervisors of Elections, Evangeline Parish, seeking a mandamus ordering that board to recount the absentee ballots cast in the four above mentioned precincts. An alternate writ of manadamus was issued by the trial court ordering the Board of Supervisors to recount the absentee ballots, as prayed for, or to show cause why it should not be required to do so. After a hearing, judgment was rendered by the trial court on December 29, 1975, dismissing that mandamus suit. McGee appealed that judgment to the Supreme Court, and that case was consolidated with the instant suit for appeal in that court.

The Supreme Court rendered judgment on February 23, 1976, reversing the judgment rendered in the instant suit on December 29, 1975, and reversing the judgment rendered in the later suit filed by McGee against the Board of Supervisors of Elections. The court held that-LSA-R.S. 18:420 was constitutional, and it remanded both of those cases to the trial court for further proceedings in accordance with the views therein expressed. See Roger Dale McGee v. Walter Lee et al., 328 So.2d 159 (No. 57,321 on the docket of the Supreme Court), and Roger Dale McGee v. Board of Supervisors of Elections, 328 So.2d 159 (No. 57,323 on the docket of the Supreme Court).

Upon remand, both of the above cases were consolidated for trial, counters were appointed by the trial judge, and the absentee ballots were recounted on March 11, 1976. A recount of the absentee ballots cast in the four precincts specified by plaintiff indicated that McGee, rather than Fuselier, received a majority of the total votes cast for the office. Defendant Fu-selier then demanded that the remaining absentee ballots cast in Ward Three be recounted, and the trial court thereupon ordered that all of the absentee votes cast in that ward be recounted, despite an objection by plaintiff. A recount of all absentee ballots cast in that ward also indicated that plaintiff McGee received a majority of the votes cast for the office of Justice of the Peace. The recount showed that McGee received 51 absentee votes and that Fuselier received 20 such votes. The result of the election as shown by that recount, including the machine votes and the absentee votes cast, was:

Roger Dale McGee- — 1,367

Conrad Fuselier — 1,365

Judgment was rendered by the trial court in both of the consolidated cases on March 16, 1976, decreeing the result of the election to be as shown by the above recount. The effect of that judgment was to decree that McGee was elected to the office. Defendant Fuselier appealed both cases to this court. (No. 5505 and 5506 on our docket).

On March 16, 1976, that being the date on which the last mentioned judgment was rendered, Fuselier instituted another suit against McGee, and against the Clerk of Court, the Evangeline Parish Board of Supervisors of Elections, and the Secretary of State. In that suit he seeks a judgment (1) granting a preliminary injunction prohibiting defendants from promulgating the results of the election as set out in the judgment rendered on March 16, 1976, (2) disallowing all absentee votes cast for the office of Justice of the Peace in Ward 3, (3) disallowing any change in the official tabulation of the results of the election as promulgated by the Secretary of State, (4) decreeing Fuselier to be elected to the office of Justice of the Peace in that Ward, and (5) in the alternative, annulling the election and ordering that another election be called. A number of exceptions were filed by defendants. After a hearing, judgment was rendered by the trial court on March 25, 1976, decreeing that defendants are “enjoined preliminarily” from undertaking to promulgate the result of the above election as set forth in the judgment of March 16, 1976, but dismissing all other demands of plaintiff, with prejudice. Plaintiff Fuselier appealed (No. 5516 on our docket), and that case has been consolidated for appeal with the two other related suits which previously were appealed to this court.

Fuselier thus is the appellant in all three suits which are before us on appeal. He contends first that the trial court erred in refusing to require, as a condition precedent to recounting the absentee ballots, that McGee produce satisfactory evidence that the absentee ballots had not been tampered with or disturbed subsequent to the date of the election.

LSA-R.S. 18:364, relating to primary elections, had as its source Act 46 of 1940, enacted before voting machines were authorized. The 1940 act provided a procedure for the recount of “all or any specified ballot boxes,” and it provided that “before any box is thus recounted satisfactory evidence shall be produced to the court that the box or the contents thereof have not been tampered with or disturbed subsequent to its closing by the commissioners.”

The above section of the Revised Statutes has been superseded by LSA-R.S. 18 420, which is a part of the open election laws adopted by the Louisiana Legislature in 1975 (Act. 1 of 1975). The new law provides a procedure for recounting “all or any specified absentee ballots,” and although the 1975 act uses some of the language which appears in LSA-R.S. 18:364, it omits the requirement contained in the old law that evidence be produced prior to a recount establishing that the absentee ballots or the ballot boxes have not been tampered with or disturbed.

Defendant Fuselier concedes that the statutes no longer require proof of non-tampering before a recount of votes can be had. He contends, however, that jurisprudence has been established to the effect that such proof is required as a prerequisite for a recount, even though the statutes do not require it. He relies on McConnell v. Salmon, 174 La. 606, 141 So. 73 (1932); Dutel v. Domingues, 166 La. 301, 117 So. 232 (1928); and Hill v. Vernon Parish Democratic Executive Committee, 56 So. 2d 868 (La.App. 1 Cir. 1952).

In the cited cases the courts held that as a prerequisite to a recount of ballot boxes, satisfactory evidence must be produced to show that the boxes have not been tampered with subsequent to being closed by the commissioners. In Hill, the court merely applied the provisions of LSA-R.S. 18:364, which specifically required such evidence but which has now been superseded by LSA-R.S. 18:420, containing no such requirement. The McConnell and Dutel cases were decided before there was a statutory requirement to that effect, and we agree that they tend to support defendant’s argument.

We believe, however, that the Legislature intended to omit from Act 1 of 1975 (LSA-R.S. 18:420) the requirement that evidence of non-tampering be produced as a prerequisite to a recount of absentee ballots. In our opinion the lawmakers intended to do away with that requirement. Absentee ballots now are generally locked in voting machines after the results have been tabulated, and the law provides for the safekeeping of those machines. There thus is less likelihood that absentee ballots could be tampered with now than was possible when they were kept with other ballots in ballot boxes after the closing of the polls. This might have been a circumstance which the Legislature considered when it deleted from the 1975 open election laws the old requirement that evidence of no tampering be produced. Regardless of the reasons, however, we feel that the Legislature has intentionally omitted such a requirement from the law relating to the recount of absentee ballots.

We have concluded that the trial judge did not err in permitting the recount of the absentee ballots in this case, without requiring that plaintiff first prove that those ballots had not been tampered with or disturbed.

We note, in connection with the above ruling, that neither defendant nor anyone else has alleged or attempted to show that the absentee ballots were tampered with after the results were tabulated by the commissioners. The question is not presented, therefore, as to whether a defendant may prevent a recount by an affirmative showing that the ballots were tarn-pered with or disturbed between the time the votes were tabulated and the time of the recount.

Fuselier contends next that the trial court erred in failing to require that the counters, as the first step in the recounting procedure, examine the affidavits on the flaps of the envelopes containing the absentee ballots, and compare the information contained on each such flap with the Precinct Register to determine whether the affidavit was properly executed and whether the affiant was qualified to vote at that election. The thrust of his argument is that the court-appointed counters should be required to follow the same procedure in recounting the absentee ballots as were required of the commissioners at the time the votes were tabulated originally. We find no merit to that argument.

The law provides that at the close of the polls the commissioners must compare the information shown on the flap of the envelope containing an absentee ballot with the information contained on the Precinct Register to determine whether the absent voter is a registered and qualified elector in that precinct. If they find that he is a qualified elector and that he has not voted in person on that day, the commissioners then are required to tear the flap from the envelope, leaving the envelope sealed and intact. The envelope thereafter cannot be identified as containing the ballot of a particular voter. The detached flaps are placed in a separate envelope, and the commissioners then proceed to open the sealed envelopes containing the absentee ballots and to count and tabulate the votes as shown by those ballots. See LSA-R.S. 18:-1076.

After the flaps have been torn from the envelopes containing the absentee ballots, it is impossible to identify an absentee ballot as having been cast by a particular voter. A requirement that the counters examine the affidavits on the flaps of the envelopes containing absentee ballots thus would not enable them to determine whether any particular ballot should or should not be allowed.

It may be proper, in an action to annul an election, for the court to compare the information contained on the flaps of the absentee ballot envelopes with the information contained on the Precinct Registers, to determine whether irregularities or fraud existed sufficient to void the election. We agree with the trial judge, however, that no useful purpose would be served, in a proceeding for the recount of votes cast in an election by, requiring the counters to examine the flap-affidavits which previously were torn from the absentee ballot envelopes.

Even if the court-appointed counters should be required to examine the flap-affidavits, we find that defendant is now precluded from challenging the qualifications of any of the absentee voters, because of his failure to timely challenge those voters or the absentee ballots cast by them pursuant to the provisions of LSA-R.S. 18:-1077.

The law provides that the Clerk of Court, immediately upon receipt of an envelope containing an absentee ballot, must post the names of all persons voting absentee ballots, with their wards and precincts, in a conspicuous place accessible to the public. LSA-R.S. 18:1075. The procedure for challenging an absentee voter or an absentee ballot is set out in LSA-R.S. 18:1077, which reads:

“The challengers of the respective parties or candidates may be present during the casting of the ballots under this Part. Any voter under this Part may be challenged for cause, the same as if the voter were present and voted in person. The commissioners or a majority of them may hear and determine the legality of the ballot. However, if a challenge is sustained, the commissioners shall give notice by mail addressed to the voter’s place of residence.”

Our jurisprudence is settled that the time for challenging the qualification of a voter to cast an absentee ballot is before the flap is torn from the envelope containing that ballot, or at least before the absentee ballot is removed from the envelope and counted by the commissioners. The failure tu timely challenge the qualifications of the voter precludes the subsequent challenge of any particular absentee ballot on the ground that the voter was not qualified to cast a vote at that election. See Love v. Cross, 158 So.2d 614 (La.App. 3 Cir. 1963).

In the instant suit defendant does not allege, and he has not shown, that any of the absentee ballots cast at the above election were protested before those ballots were removed from the sealed envelopes and tabulated by the commissioners. Defendant thus, because of his failure to timely challenge the right of the voter to cast an absentee ballot, is precluded from challenging the validity of a particular absentee ballot on the ground that the voter was not qualified to cast such a vote at that election.

We agree with the trial court thar in an action to recount votes the counters are not required to examine the affidavits on the flaps of the envelopes containing absentee ballots, or to compare the information on those flaps with the Precinct Register, to determine whether the voters were qualified to cast absentee ballots at that election.

Fuselier contends also that the trial judge erred (1) in declaring certain absentee ballots to be spoiled, over objections urged by defendant, and in not allowing them to be tabulated by the court-appointed counters, and (2) in ruling that other absentee ballots cast in that election were valid and could be counted, despite objections made to such ballots by Fuselier.

The trial judge concluded that 12 of the absentee ballots, marked “S-l” through “S-12,” were spoiled and should not be tabulated by the court-appointed counters. Fie overruled objections to ten other absentee ballots, marked “0-1” through “0-10,” holding that those ballots were valid and should be included in the tabulations made by the counters.

Defendant Fuselier contends on this appeal that the trial judge erred in declaring that four of the absentee ballots, marked S-2, S-3, S-S and S-6, were spoiled, and in refusing to allow them to be counted. He also contends that the trial court erred in decreeing, over defendant’s objections, that eight of the absentee ballots, marked “0-1,” “0-3,” “0-4,” “0-5,” “0-6,” “O-7,” “0-9” and “0-10” were valid, and in allowing those ballots to be included in the tabulations made by the counters.

Our Supreme Court, in Courtney v. Abels, 205 La. 559, 17 So.2d 824 (1944), set out the general rules which are to be applied in determining the validity of contested ballots. The court, quoting with approval from Ruling Case Law, Vol. 9, page 1136, under the topic “Elections,” said:

“ ‘A distinguishing mark prohibited by the law is such a mark as will separate and distinguish the particular ballot from other ballots cast at the election. It is some sort of mark put on a ballot to indicate who cast it, and to furnish means of evading the law as to secrecy. Therefore, not every mark made by a voter on his ballot which may separate and distinguish the particular ballot from other ballots cast at the election will necessarily result in a declaration of invalidity. If it appears from the face of the ballot that the marks or writing were placed thereon as the result of an honest effort on the part of the voter to indicate his choice of a candidate among those to be voted for at the election and that the voter did not thereby pretend or attempt to indicate who voted the ballot, the ballot should not be rejected as to • candidates for whom there is a choice expressed, in compliance with the requirements of the statutes.’ ”

In Cusimano v. O’Niell, 192 So.2d 147 (La.App. 1 Cir. 1966), the First Circuit Court of Appeal said:

“It is settled jurisprudence that the law and the courts as well regard the secrecy of the ballot as sacred and arc most fervent in protecting, guarding and insuring the right of a voter to cast his vote in a free election without fear of his decision being known or disclosed. A ballot susceptible of identification by any distinguishing mark or characteristic pursuant to which it may subsequently be identified, tends to promote bribery of voters thus leading to corruption in elections, and to avoid such undesirable result will be rejected as invalid and illegal. Courtney v. Abels, 205 La. 559, 17 So.2d 824. A distinction is made, however, between a mark which on one hand will identify a ballot as having been cast by a particular voter and one which, on the other hand, merely indicates the attempt of an elector to correct an honest mistake or error in marking his ballot because the courts are equally ardent to preserve and safeguard the right of the voter to cast his ballot and have it counted. Courtney v. Abels, supra.

We quoted and applied the above rules in Angelle v. Angelle, 204 So.2d 581 (La.App. 3 Cir. 1967). See also the cases cited in Angelle.

With these general rules or guidelines in mind, we have examined each of the ballots which appellant Fuselier contends were erroneously held to be spoiled or held to be valid by the trial court. We consider first the ballots which were held to be spoiled.

Absentee ballot marked “S-2” was torn, the tear or tears being about four inches long, near the center of the ballot. The trial judge considered it to be a mutilated ballot, capable of being identified, and he ruled that it was spoiled and should not be counted. We find no error in that ruling.

The ballot marked “S — 3” contained a circle, drawn with a lead pencil, around the vote cast for one candidate, and the word “Spoiled” was written in pencil on the face of the ballot and again on the back of it. The “X” marks on the ballot were made with ink. The commissioners regarded the ballot as being spoiled and did not count it. Fuselier argues that the pencil marks on the ballot, including the circle around the vote cast for one candidate, must have been made by the commissioners, since the voter obviously used ink to mark the ballot. The trial judge felt that defendant’s argument was conjectural. He held that the ballot was spoiled and should not be counted. We agree.

The ballot marked “S-5” contained a circle in blue ink around the word “Agriculture,” which appeared in the phrase “For Commissioner of Agriculture” on the ballot. The trial court correctly decreed that ballot to be spoiled.

On Ballot “S-6” four votes were cast. In three of them a square was superimposed with a lead pencil over the block in which the choice of the candidate had been entered. The trial court properly rejected that ballot'as having been spoiled.

We turn now to the absentee ballots which the trial judge held to be valid, over objections urged by Fuselier. On ballots marked “0-1” and “0-3” some of the penciled cross marks appear to have been retraced. The trial judge felt that those slight irregularities were not intended to be, and could not serve as, identifying marks. He held these ballots to be valid, and we agree.

One of the cross marks on the ballot marked “0-4,” indicating a vote for a candidate other than Justice of the Peace, appears to have been erased. The trial judge held that the ballot was valid. An erasure which has no distinguishing feature, and which may not reasonably be assumed to have been intended as an identifying mark by the voter, will not invalidate the ballot. Courtney v. Abels, supra; Angelle v. Angelle, supra. We agree with the trial judge that this ballot was valid and should be counted.

Ballots marked “0-5” and “0-10” contain minute marks which appear to have been made by the voter’s inadvertent failure to lift his pencil or pen from the ballot after marking his vote. Neither of these marks is sufficient to serve as an identifying mark. We think the trial court correctly held both of those ballots to be valid.

The ballots marked “0-6” “0-7” and “0-9” were objected to by Fuselier on the ground that the cross marks on those ballots appear to be irregular, thus constituting an identifying feature. We find nothing so distinctive or irregular in the cross marks appearing on ballots “0-6” and “0-7” that they can serve as identifying marks. On ballot “0-9” one of the marks appears to resemble a “T” more than an “X.” We have concluded, however, that this was not intended to be, and cannot reasonably serve as, an identifying mark. We find no error in the ruling of the trial court, therefore, that all three of these ballots are valid and should be counted.

Our conclusion is that the trial court ruled correctly as to the validity or invalidity of each of the ballots which were contested. The results of the election as determined by the trial court are correct.

Fuselier contends, finally, that the trial judge erred in dismissing the suit which he filed on March 16, 1976 (No. 5S16 on our docket).

In that suit Fuselier alleges a number of irregularities in the conduct of the election. His principal demand is for judgment disallowing all absentee ballots and declaring him to be elected as Justice of the Peace, Ward Three, Evangeline Parish. Alternatively, he prays for judgment annulling the election. Several exceptions were filed by defendants, including exceptions of (1) res judicata, (2) non joinder of an indispensable party, (3) no cause and no right of action, and (4) prescription.

As already noted, judgment was rendered by the trial court on March 25, 1976, enjoining defendants preliminarily from undertaking to promulgate the result of the election as set forth in the judgment rendered on March 16, 1976, with the provision that “this preliminary injunction shall continue in effect during the pendency of the appeal.” The judgment decrees that “in all other respects, the suit of plaintiff is dismissed with prejudice.”

The trial judge did not assign reasons for judgment, and we thus do not know the basis for his decision. Counsel for both parties feel, however, that he intended to sustain the exceptions of no cause and no right of action. We find no error in the judgment of the trial court dismissing this suit with prejudice, but we prefer to base our decision on the exception of prescription, or peremption, filed by defendants.

LSA-R.S. 18:420H provides:

“H. No contest shall be entertained unless brought within two days after the official promulgation of the result of the election.”

Fuselier alleges in his petition that “by official promulgation in the official state journal, the State Times, Baton Rouge, Louisiana, of Friday, January 2, 1976, petitioner, Conrad Fuselier, was declared duly elected to the office of Justice of the Peace in and for Ward Three of Evangeline Parish, Louisiana.” The instant suit was filed on March 16, 1976, which was substantially more than two days after the official promulgation of the result. The action thus appears to be barred by the peremption provided in LSA-R.S. 18:420H. See Aus tin v. Dupre, 328 So.2d 406 (La.App. 1 Cir. 1976).

Fuselier contends, however, that his suit was instituted under the provisions of LSA-R.S. 18:1251, which provides that an action to contest an election may be instituted within 30 days after the official promulgation of the result. He takes the position, as we understand his argument, that the prescriptive, or peremptive, period provided in that statute should not have begun to run until after the recount of the votes was completed and judgment was rendered changing the results of the election.

We believe that LSA-R.S. 18:1251 has been superseded by LSA-R.S. 18:420. (See LSA-R.S. 18:423 and 841). Regardless of which section of the Revised Statutes applies, however, we conclude that the suit instituted by Fuselier on March 16, 1976, was filed too late. He knew at the time the results of the election were officially promulgated that suits were pending demanding a recount of the vote. There was nothing to prevent him from instituting a suit at that time contesting the election. His failure to institute such a suit within the peremptive period provided by either of the above statutes bars him from maintaining such an action now.

We agree with the judgment of the trial court which dismisses the suit instituted by Fuselier on March 16, 1976 (No. 5516 on our docket).

For the reasons assigned, we hereby confirm the judgment which we rendered in the instant suit on April 7, 1976. The judgment appealed from is affirmed. The costs of this appeal are assessed to defendant, Conrad Fuselier.

AFFIRMED.

DOMENGEAUX, J., concurs in the decree.

WATSON, J., concurs in the result.


source: Caselaw Access Project

author:
PER CURIAM.
      HOOD, Judge.

license: Public Domain

text:
    Roger Dale McGEE, Plaintiff-Appellee, v. BOARD OF SUPERVISORS OF ELECTIONS et al., Defendant-Appellant.
    No. 5505.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 1976.
    On Application for Rehearing April 20, 1976.
    Tate & Tate, by Donald J. Tate, Mamou, for defendant-appellant.
    John C. Fontenot, Ville Platte, for plaintiff-appellee.
    I. Stephen George, Baton Rouge, for defendant-appellee.
    Before HOOD, CULPEPPER, DO-MENGEAUX, WATSON and GUIDRY, JJ.
   PER CURIAM.

This is an election contest instituted under the provisions of LSA-R.S. 18:420. That statute provides that when an appeal is taken in such a case the appellate court will decide the issue within 24 hours after submission. LSA-R.S. 18:420E.

After considering the facts, the law and the arguments of counsel, we have concluded that there is rio error in the judgment rendered by the trial court.

In view of the provisions of LSA-R.S. 18:420E, we have decided to render judgment at this time affirming the judgment appealed from. Reasons for that judgment will be assigned at a later date.

The judgment appealed from is affirmed. The costs of this appeal are assessed to defendant, Conrad Fuselier.

HOOD, Judge.

For the reasons which we are assigning today in Roger Dale McGee v. Conrad Fuselier et al., 330 So.2d 383 (No. 5506 on our docket), we hereby confirm the judgment which we rendered in the instant suit on April 7, 1976. The judgment appealed from is affirmed. The costs of this appeal are assessed to appellant, Conrad Fuselier.

AFFIRMED.

DOMENGEAUX, J., concurs m the decree.

WATSON, J., concurs in the result.


text:
    Conrad FUSELIER, Plaintiff-Appellant, v. Roger Dale McGEE et al., Defendant-Appellee.
    No. 5516.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 1976.
    On Application for Rehearing April 20, 1976.
    Tate & Tate, by Donald J. Tate, Mamou, for defendant-appellant.
    John C. Fontenot, Ville Platte, for plaintiff-appellee.
    I. Stephen George, Baton Rouge, for defendant-appellee.
    Before HOOD, CULPEPPER, DO-MENGEAUX, WATSON and GUIDRY, JJ-
   PER CURIAM.

This is an election contest instituted un der the provisions of LSA-R.S. 18:420. That statute provides that when an appeal is taken in such a case the appellate court will decide the issue within 24 hours after submission. LSA-R.S. 18:420E.

After considering the facts, the law and the arguments of counsel, we have concluded that there is no error in the judgment rendered by the trial court.

In view of the provisions of LSA-R.S. 18:420E, we have decided to render judgment at this time affirming the judgment appealed from. Reasons for that judgment will be assigned at a later date.

The judgment dismissing plaintiff’s suit is affirmed. The costs of this appeal are assessed to plaintiff, Conrad Fuselier.

Appeal from the Thirteenth Judicial District Court, Parish of Evangeline, State of Louisiana; Honorable J. Burton Foret, District Judge, Presiding.

Before HOOD, CULPEPPER, DO-MENGEAUX, WATSON and GUIDRY, Judges.

HOOD, Judge.

For the reasons which we are assigning today in Roger Dale McGee v. Conrad Fuselier et al., 330 So.2d 383 (No. 5506 on our docket), we hereby affirm the judgment which we rendered in the instant suit on April 7, 1976. The judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff, Conrad Fuselier.

AFFIRMED.

DOMENGEAUX, J., concurs in the decree.

WATSON, J., concurs in the result.


author: CULPEPPER, Judge.

text:
    STATE FARM FIRE & CASUALTY COMPANY, Plaintiff and Appellee, v. Robert Kelly DROST, Jr., et al., Defendants and Appellants.
    No. 5388.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Fred A. Book, Jr., Lake Charles, for defendants and appellants.
    Stockwell, Sievert, Viccellio & Clements, Shaddock, John S. Bradford, Lake Charles, for plaintiff and appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   CULPEPPER, Judge.

This is a suit by the subrogated fire insurer of an apartment complex against the two defendants whose negligence allegedly caused the fire. The district court found the defendants liable and awarded plaintiff $8,000 in damages. Defendants appealed. Plaintiff answered the appeal, requesting that the award be increased.

The issues are: (1) Did the trial judge err in applying the doctrine of res ipsa lo-quitur to find defendants liable? (2) Did the trial judge err in holding that special damages may be reduced because of defendants’ inability to pay ?

The fire occurred at approximately 7:00 a.m. on the morning of August 26, 1972 in an apartment building in Sulphur, Louisiana owned by Rev. R. D. Harris. Shortly before the fire, the defendant, Robert Drost, Jr., had rented one of the apartments as a home for him and his future wife. He was to be married on August 26, 1972 and planned to move into the apartment shortly thereafter.

On the night before the fire, Drost and the defendant, Gordon Gremillion, a close friend, attended a rehearsal supper preceding the marriage the following afternoon. The supper ended at about ten o’clock that night, following which the defendants and Brian Cormier, another friend, went to several bars and continued drinking until approximately 3 :30 or 4:00 a.m. when Cor-mier drove the two defendants to the apartment which had been rented by Drost. The three testified that Drost immediately went to bed in the bedroom and Gremillion on a couch in the living room. Cormier left and drove home.

At about 7:00 a.m., Gremillion awoke coughing. The apartment was filled with smoke. He opened the front door and went out to get some fresh air. Then he went back and carried the unconscious Drost out of the burning apartment. Gremillion testified that while carrying Drost, he noticed a flame flickering through the smoke above the stove near the exhaust -vent. After re-entering the apartment to retrieve some clothes for himself and Drost, Gremillion ran to a nearby service station and reported the fire to the fire department.

Mr. Paul Frederick, the fire chief for the city of Sulphur, testified that after his men had brought the flames under control, he and Rev. Harris inspected the apartment to determine the cause and origin of the fire. The chief stated the major portion of the damage was above the electric stove in the kitchen and that the left front burner was in the “On” position with a charred pot on the burner. He further testified that there was one-half carton of eggs on the counter near the stove and broken eggshells in a waste basket. It was the chief’s opinion that someone had been cooking eggs in grease in the pot on the stove and had left the burner on, and that this caused the fire.

Rev. Harris, the owner of the apartment, testified substantially to the same effect as Chief Frederick.

Both defendants testified that after going to bed they did not get up until after the fire had started. They denied that they had been in the kitchen, or that they had turned on the stove or that they had cooked eggs or anything else.

Defendant’s wife, Katherine Drost, testified that a few days before the fire she had gone to the apartment and had fried some potatoes in a pot of grease on the stove. She says she left the pot of grease on the back corner of the stove. She also testified that in anticipation of their marriage and moving to the apartment, she had bought a few groceries and had placed some eggs in the refrigerator.

Mrs. Drost testified further that on the day of the fire she and her father, Mr. Robert McGee, went to the apartment to see if anything was salvageable. She and her father testified they pried open the ice box and found the carton of eggs inside. They broke one egg and found it was not good, so they placed the remainder on the counter near the stove.

The district judge, evaluated this conflicting testimony as follows:

“There is a direct conflict between testimony of the defendants and the Fire Chief and the owner, Harris. It must be remembered that the owner had collected the money that was due him by the insurance company, and certainly the Fire Chief had no interest in the outcome of this law suit. As we weigh this testimony we must conclude that the Fire Chief was truthful in stating that his investigation revealed a charred pot on the left front burner of the electric stove, which burner control was left in an ‘on’ position.”

After quoting from Boudreaux v. American Insurance Company, La., 264 So.2d 621 (1972) the applicable law regarding the doctrine of res ipsa loquitur, the trial judge then concluded:

“As we apply the principles of the Boud-reaux case to the facts at hand, we must conclude that the defendants are liable for the damages incurred. The doctrine of res ipsa loquitur is applicable and must be invoked wherein negligence is inferred on the part of the defendants because the facts indicate that the more probable cause of the damage was leaving the fire ‘on’ under the pot of grease or oil, in the absence of any other plausible explanation of the fire by witnesses who are found credible. The question to be answered in these cases is ‘Do the facts of the controversy suggest negligence of the defendant rather than some other factors, as the most plausible explanation for the accident?’ Answering this question with the credible evidence in this case it must be answered in the affirmative that it was more probable than not that the fire resulted from the negligence of the defendants. There is no question that both of these defendants were under the influence of alcoholic beverages, and it is questionable that they actually remembered activities of those early morning hours. Having concluded that the fire was caused by the negligence of the defendants, the next question is damages.”

The evidence is clearly sufficient to support these factual findings of the trial judge based on his evaluation of the credibility of the witnesses and reasonable inferences drawn from the evidence. Canter v. Kaehring Company, La., 283 So.2d 716 (1973).

The next issue is the quantum of the award. The plaintiff insurer paid to Mr. Harris the sum of $38,712.67 for his fire loss. The district court awarded plaintiff judgment in solido against the two defendants for the sum of only $8,000. He expressly considered the circumstances that defendants are young men who own no property and who earn only about $150 per week. Due to the inability of the defendants to pay a large judgment, the court did not award the full amount of the damages caused by the fire.

Plaintiff answered the appeal, contending that special damages may not be reduced because of defendant’s inability to pay. The only case cited in support of this contention is Becnel v. Ward, La.App., 286 So.2d 731 (4th Cir. 1974), in which there was a district court judgment for $520,000, of which $375,000 was for general damages for personal injuries and $145,000 was for medical expense and other special damages. Defendants appealed, urging as grounds for reduction of this large award their inability to pay. The appellate court stated that the interest on the special damages alone would consume all of defendants’ income, and that defendants could not be saved from bankruptcy even if no general damages were awarded. Accordingly, the court concluded that the case was not one for critical analysis of jurisprudence regarding quantum. However, the court did make the statement: “Further, the special damages may not be reduced since they are not a matter of the trial court’s discretion like general damages are.” There is no further explanation of this statement and no citation of authorities. It is obvious this was not a serious issue in the case. We doubt the case is authority for plaintiff’s contention.

Plaintiff has not cited, nor have we found, any other case supporting its contention that special damages may not be reduced because of defendant’s inability to pay. Of course, the rule is well established in Louisiana jurisprudence that the financial ability of defendant to pay is a circumstance which may be considered in assessing an award for damages. Lambert v. Foy, La.App., 224 So.2d 11 (1st Cir. 1969); Urk v. Southern Farm Bureau Casualty Insurance Company, La.App., 181 So.2d 69 (2d Cir. 1965) and the authorities cited therein.

It is our view that defendants’ ability to pay is a factor which can be taken into consideration in awarding either special or general damages. In the present case, we find no error on the part of the trial judge in this respect.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendants-appellants.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Eloise WILLIAMS, Plaintiff-Appellant, v. Curtis VIDRINE, Defendant-Appellee.
    No. 5394.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Preston N. Aucoin, Ville Platte, for plaintiff-appellant.
    J. Wendel Fusilier, Ville Platte, for defendant-appellee.
    Before HOOD, GUIDRY and PETERS, JJ-
   GUIDRY, Judge.

This action was brought by Eloise Williams, the natural mother of Pakavi Ja-wayne Williams, seeking to adjudge the defendant, Curtis Vidrine, father of this child, so as to establish his responsibility for child support. The plaintiff appeals the trial court’s dismissal of her suit.

At the outset we note that the record in this matter reflects that the defendant filed an exception of “No cause and/or No Right of Action” which was not ruled on by the trial judge. We consider the exception to have been abandoned. See Quinette v. Delhommer, 247 La. 1121, 176 So. 2d 399 (1965); Oil Purchasers, Inc. v. Kuehling, 321 So.2d 17 (La.App., 3rd Cir., 1975); Ford Motor Credit Company v. Soileau, 323 So.2d 221 (La.App., 3rd Cir., 1975).

On the merits the trial court in applying Articles 209 and 210 of the Revised Civil Code found that the plaintiff had not offered sufficient proof that Curtis Vidrine was the natural father of her child, Pakavi Jawayne. We find the evidence to support the conclusion reached by the trial judge and affirm his dismissal of the plaintiff’s suit.

Article 208 of the Revised Civil Code provides that an illegitimate child may prove his paternal descent. Article 209 of the Revised Civil Code which sets forth the method of proving paternal descent provides as follows:

“In the case where the proof of paternal descent is authorized by the preceding article, the proof may be made in either of the following ways:
1. By all kinds of private writings, in which the father may have acknowledged the bastard as his child, or may have called him so;
2. When the father, either in public or in private, has acknowledged him as his child, or has called him so in conversation, or has caused him to be educated as such;
3. When the mother of the child was known as living in a state of concubinage with the father, and resided as such in his house at the time when the child was conceived.”

There is no evidence in the record to support a claim that the defendant acknowledged the child through private writings, educated him as his, or that the plaintiff was living in a state of concubinage with the defendant.

Plaintiffs claim of filiation under R.C.C. Article 209 is based on subsection 2, it being alleged that defendant verbally acknowledged that Pakavi Jawayne was his son. In support of this allegation plaintiff relies on her testimony and that of her mother, and one, Elmo Washington, a close friend of the family. The testimony of these three is to the effect that the defendant acknowledged Pakavi Jawayne as his son in conversation and on one occasion the child visited at the defendant’s mother’s home. Defendant only admitted to having told the plaintiff on a couple of occasions that Pakavi Jawayne was his child and did so only to satisfy the plaintiff and to induce her to continue their clandestine and illicit relationship. The trial court found that the evidence fell short of the provisions of R.C.C. Article 209, sub-paragraph 2 and consequently that plaintiff failed to meet her burden of proof. The trial court, obviously unimpressed with the plaintiff’s witnesses, stated:

“Proof in such cases should be such that paternity should not be based on conjecture, but rather that verbal acknowledgments in public or in private, or in conversations, are sufficiently frequent that there can be little doubt that the alleged father truly believes himself to be the father of the child.”

We are in accord with the trial court’s decision that there was no suitable acknowledgment of the child under R.C.C. Article 209(2).

Plaintiff next sought to establish filiation under the provisions of R.C.C. Article 210 which provides as follows:

“The oath of the mother, supported by proof of the cohabitation of the reputed father with her, out of his house, is not sufficient to establish natural paternal descent, if the mother be known as a woman of dissolute manners, or as having an unlawful connection with one or more men (other than the man whom she declares to be the father of the child) either before or since the birth of the child.”

The trial court determined that although the evidence reflected that defendant had cohabited with plaintiff, outside of his house, during the period of time when conception likely occurred such evidence standing alone was insufficient to establish filiation because the evidence likewise established plaintiff to be a woman of dissolute manners. In speaking to this issue the trial court stated:

“The evidence shows without dispute that plaintiff and the defendant were having sexual relations intermittenly during the period of time at which conception likely occurred. The evidence further shows, by plaintiff’s own testimony, that she is a highly promiscuous female. She testified that while she was in the Army for a short period immediately prior to her relationship with the defendant, she had a lover or lovers at four out of five duty stations at which she served, and implied the only reason she did not have a lover at the fifth duty station was because she was only there for a period of one week. The plaintiff further testified that after her baby was born that she began having illicit relationship with one Raymond Rueben, approximately six weeks after the birth of the child, and that she is still having an illicit relationship with the said Reuben.
This Court therefore considers the plaintiff to be a dissolute woman under the terms of Article 210 of the Louisiana Civil Code. Admittedly she has had sexual relationships with seven different men, on numerous occasions, over a period of approximately two or three years. The Court would not rule out the probability that she was involved sexually with many more men. . .”

We are in accord with the trial court’s finding that the plaintiff was of dissolute manner and consequently that oath and evidence of cohabitation under the circumstances of this case was not sufficient to establish that defendant is the natural father of Pakavi Jawayne. Succession of Washington, 308 So.2d 892 (La.App., 2nd Cir., 1974); McConkey v. Pinto, 305 So.2d 469 (S.Ct. La.1974).

Finally, plaintiff through counsel suggested that the trial judge erred when he refused during the admission of rebuttal evidence to permit a recall of the defendant under cross-examination. Accordingly plaintiff urges that this case should be remanded so as to permit further examination of the defendant under cross.

Article 1634 of the Code of Civil Procedure states in pertinent part:

“The Court may permit the recall and further cross-examination of the party or his representative as often as it deems in the interest of justice.”

We are of the opinion that the trial judge did not abuse his discretion in not allowing the recall of the defendant. Harrelson v. New Orleans — Roosevelt Corporation, 184 La. 551, 166 So. 671 (1936).

For the foregoing reasons the judgment appealed from is affirmed, all costs of these proceedings being borne by the plaintiff-appellant.

AFFIRMED.

      . Defendant Exhibit 1 is the Certificate of Live Birth issued by the State at the time of Pakavi Jawayne’s birth. Examination of the Certificate reveals that the child’s last name was designated as Williams. No father’s name was given. Plaintiff Exhibit 1 is a Baptismal Certificate listing the child in the family name Vidrine and Curtis Vidrine as the child’s father. The record clearly shows that Curtis Vidrine was not at the baptism nor was he aware of or agreed to the use of his name.


author: WATSON, Judge.

text:
    Clara WESLEY, Plaintiff-Appellant, v. The WALGREEN COMPANY et al., Defendants-Appellees.
    No. 5384.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.

      Ford & Nugent by Howard N. Nugent, Jr., Alexandria, for plaintiff-appellant.
    Gold, Hall, Hammill & Little by James D. Davis, Alexandria, for defendants-ap-pellees.
    Before DOMENGEAUX, WATSON and CUTRER, JJ.
   WATSON, Judge.

Plaintiff, Clara Wesley, filed this suit against defendants, The Walgreen Company, and its liability insurer, The Travelers Insurance Company, to recover damages for personal injuries she sustained when she slipped and fell in a Walgreen’s Store in Alexandria, Louisiana, on December 31, 1974. The trial court awarded damages of $336.00, $300 in general damages and $36 in medical expenses. Plaintiff has appealed, contending that this amount is inadequate. Defendants have not appealed nor answered plaintiff’s appeal and the only issue before this court is whether the award of the trial court constitutes an abuse of its much discretion in fixing damges. LSA-C.C. art. 1934.

Plaintiff contends not only that the general damages are inadequate but also that the trial court erred in not awarding plaintiff :

(1) a $10.00 emergency room charge; and
(2) attorney’s fees and expenses incurred in seeking admissions of facts from defendants under LSA-C.C.P. art. 1514.

FACTS

Plaintiff Wesley, an obese, 38-year-old, widowed housewife with three teenaged children, testified that, after she fell, a Walgreen’s supervisor took her to Dr. Walter Cloud. Dr. Cloud bandaged her left leg and gave her a prescription. Mrs. Wesley then lived with her mother about a week because she could not get around well. Mrs. Wesley testified that she was still having difficulty with pain in her left knee and swelling in her left leg at the time of trial, eight months after her fall. Mrs. Wesley only returned once to Dr. Cloud. On a third occasion, Mrs. Wesley could not contact Dr. Cloud and went to Rapides General Hospital Emergency Room in an effort to see him. She was charged $10.00 for the visit to the emergency room but was not treated. The trial court found that the hospital was not entitled to charge for this visit and denied recovery of the $10.00. During trial, Mrs. Wesley was asked to walk across the courtroom in order that the judge could observe her gait. In reasons for judgment, the trial court stated his impressions:

“There was no noticeable limp or limitation in her walking or evidence of pain or favoring of her allegedly injured knee.” (TR. 43)

Dr. Walter Cloud, an expert medical witness in the field of general practice, testified that he saw Mrs. Wesley in his office on December 31, 1974, and her predominate complaint was pain in her left knee. She had muscle spasm in the left leg. Dr. Cloud diagnosed a muscle sprain after x-rays were negative for fracture. He prescribed Percodan for pain and gave her a Cortisone shot. He saw Mrs. Wesley again on January 2, 1975, when she had complaints of pain in her left knee and low back. On this visit, Mrs. Wesley still had some spasm in her left leg and limitation of motion of the knee joint.

Mrs. Wesley went to the Charity Hospital (the Huey P. Long Memorial Hospital), after her two visits to Dr. Cloud and the unsuccessful attempt to see him.

Mrs. Frances Williams, medical records supervisor at Huey P. Long Memorial Hospital, identified the medical records of Mrs. Wesley at that hospital. These medical records show that Mrs. Wesley went to this hospital on January 9 and January 21, 1975. The x-ray report on the left knee on January 9 was as follows:

“There is an irregular calcified density on the lateral aspect of the knee. This may be osteochondroma or myositis os-scificans . . .” (Pl.Ex. 2)

Osteochondroma is defined in Maloy’s Medical Dictionary for Lawyers, 3rd Ed., as:

“A tumor that is partly bone and partly cartilaginous.” (pg. 536)

The same source defines myositis as “In-flamation of muscles” (pg. 503). Myositis osscificans is defined in the Attorney’s Text-book of Medicine by Gordy-Gray, Vol. I, 3rd Ed., § 2.49(3) as bone information in soft tissues adjacent to bone. The record does not reveal whether this calcification nine days after plaintiff’s injury could have resulted from her fall.

The trial court stated that the hospital records

“ . . .do not indicate that plaintiff suffered any disability from her fall.” (TR. 43)

The trial court held, in a rule hearing prior to trial, that defendants were required to answer requests for admissions submitted by plaintiff under LSA-C.C.P. art. 1496. Defendants did not comply with the judge’s ruling and the court held that their failure resulted in the requested admissions being deemed admitted. The trial court found the admissions sufficient to cover the issue of liability. The wording of LSA-C.C.P. art. 1514 under which plaintiff asks attorney’s fees is as follows:

“Art. 1514. Refusal to admit, expenses
If a party, after being served with a request under Article 1496 to admit the genuineness of any documents or the truth of any matters of fact, serves a sworn denial thereof and if the party requesting the admissions thereafter proves the genuineness of any such document or the truth of any such matter of fact, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including reasonable attorney’s fees. Unless the court finds that there were good reasons for the denial or that the admissions sought were of no substantial importance, the order shall be made.”

CONCLUSION

The instant situation is not exactly in keeping with the wording of LSA-C.C.P. art. 1514, since defendants did not deny the facts they were requested to admit; rather the facts were deemed admitted because of defendants’ failure to answer. The trial court found that:

“The failure of defendants to file the answers appears to have been genuinely inadvertent and certainly was not intentionally done in contempt of the Court’s ruling.” (TR. 42-43)

LSA-C.C.P. art. 1514 had its source in Federal Rule of Civil Procedure 37(c). Rule 37(c) was amended in 1970 and is now worded differently from the Louisiana article. The reason for the amendment is given in Wright & Miller, Federal Practice and Procedure: Civil § 2290 as follows:

“The 1970 amendments closed an unfortunate loophole that had previously existed in Rule 37(c). Prior to those amendments the rule had applied only if a party had made a sworn denial of a matter he was requested to admit. Literally it had no application if a party stated reasons why he could neither admit nor deny. Although some courts overlooked this point, and others found ways of avoiding it, it was desirable to amend the rule, as was done in 1970, and make it applicable to any failure to admit whether it be by denial or by a statement of inability to admit or deny.81 The sanction of Rule 37(c) does not apply if a party simply does not respond to a request for admissions since this is deemed to be an admission.82 ” (pg. 802)

Thus, the Louisiana rule, which is exactly the same as the Federal rule prior to the 1970 amendment, does not apply literally to a situation where a party neither admits nor denies a request for admissions. The trial court found that defendants here were required to answer but also indicated that the admissions sought related to:

“ . . . controverted issues which go to the heart of the case.” (TR. 46)

See Voison v. Luke, 249 La. 796, 191 So.2d 503 (1966). The Supreme Court there stated that this discovery procedure was not intended to cover legal issues lying at the very heart of a case. The trial court in the instant situation deemed the matters admitted and did not require proof on the issue of liability, but did not apply the further sanction of ordering payment of expenses and attorney’s fees as. in West Kentucky Coal Co. v. Walling, 153 F.2d 582, (Fed.App. 6 Cir. 1946). The trial court’s action was within its discretion.

No abuse of discretion appears in the trial court’s disallowing the Rapides General Hospital $10.00 charge and no abuse of discretion in the award of general damages of $300.

For the foregoing reasons, the judgment of the trial court herein is affirmed. All costs of this appeal are assessed to' plaintiff-appellant, Clara Wesley.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Succession of Ervin SMITH. Denise Smith DAVIS et al., Opponents-Appellants, v. Norine Rigmaiden SMITH, Testamentary Executrix-Appellee.
    No. 5422.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Camp, Carmouche, Palmer, Carwile & Barsh by H. Gayle Marshall, Lake Charles, for opponents-appellants.
    Planchard, Thompson & James by Glen A. James, Sulphur, for succession-appellee.

      Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   DOMENGEAUX, Judge.

Ervin Smith died June 19, 1973, in Sul-phur, Louisiana. Norine Rigmaiden Smith, as surviving spouse and testamentary executrix of his succession, filed a Tableau of Distribution and final accounting and petitioned the court to homologate same. Several of the decedent’s daughters (by a prior marriage) filed an opposition to the Tableau of Distribution. After a trial on the merits the District Judge dismissed the opposition. From this judgment the opponents have appealed.

Two of the specifications of error involved in this appeal deal with the trial judge’s failure to deny payment of two debts of the succession, to-wit:

(1) $4,599.25 to James Funeral Home for funeral expenses.

(2) Fees for legal services rendered by the law firm of Planchard, Thompson & James in the amount of $1,000.00, relating to an attempted interdiction of the decedent some time before his death.

The third and final specification of error raised by the opponents addresses itself to the trial judge’s refusal to sequester one of the witnesses at trial.

Opponents contend that the cost of decedent’s funeral ($4,599.25) is excessive and that said claim should not be allowed against the succession. In the case of Payton v. Jones, 38 So.2d 6031 (La.App.Orl. 1949) the court stated:

“Wa do not believe that the surviving spouse or the heirs of a decedent are privileged to burden his estate with exorbitant burial charges, but in determining whether such charges are reasonable it seems to us that the living standards, both financial and social, of the parties should be given consideration.”

In Payton the decedent’s estate was valued at $2,000.00, while his funeral expenses were $584.25. The court held that the cost of the funeral was not out of proportion with the value of the estate. It is undisputed in the present litigation that the decedent expressed the desire that he be given a “nice” funeral. While there was some testimony to the effect that another funeral home would have performed the same service for approximately $3,000.00, the evidence indicates that the manner in which James Funeral Home computed the costs of the services was reasonably in accord with the prevailing methods of pricing in the industry and location at the time.

Plaintiff’s estate was valued at approximately $26,500.00 and his funeral expenses were $4,599.25. As we have already noted, in Payton the funeral charges were $584.25 against an estate worth approximately $2,000.00. While it appears to us that the funeral expenses border on being excessive, we cannot say, in view of the evidence presented that the trial judge manifestly erred in allowing the funeral expenses to stand.

The second charge against the estate which opponents contend is excessive is that of $1,000.00 for legal services rendered to the decedent in the defense of interdiction proceedings instituted against him by some of his relatives. The attorney in question, E. W. Thompson of Sul-phur, Louisiana, who was personally retained by the decedent to represent him in the interdiction matter, testified as to the amount of work he performed for the decedent. Mr. Thompson testified that he filed numerous exceptions and an answer in the proceedings, interviewed the decedent approximately six times in the hospital and once after he returned to his home, interviewed the decedent’s physician, two of his nurses, and interviewed numerous other individuals in the preparation of his defense. Mr. Thompson further testified that his office preparation alone consumed approximately twenty hours.

In Lofaso v. Blanchard, 185 So.2d 579 (La.App. 1st Cir. 1966), writ refused 249 La. 465, 187 So.2d 443, the court quoted with approval from the case of In re Interstate Trust & Banking Company, 235 La. 825, 106 So.2d 276 (La.1958):

“In determining the amount to be awarded them as reasonable attorneys’ fees, the court should consider the extent and nature of the services rendered by these attorneys; the labor, time, and trouble involved; the results achieved; the character and importance of the matter; the amount of money involved; the learning, skill, and experience exercised; and the difficulty of the legal problems

See also for example the cases of Ezernack v. Chief Motor Company, 240 So.2d 417 (La.App. 3rd Cir. 1970); and Pittman & Matheny v. T. H. Davidge, 189 So.2d 706 (La.App. 1st Cir. 1966), writ refused 249 La. 768, 191 So.2d 143.

The opponents offered no evidence in support of their contention that the fees charged by this law firm were excessive. The trial judge determined that the evidence supported said claim, and under the facts of this case we cannot say that he was in error.

The final issue raised by this appeal concerns itself with the trial judge’s decision to exclude the abovementioned attorney, E. W. Thompson, from the rule of sequestration. Mr. Thompson was, of course, called as a witness relative to the fees charged by his law firm for representation of the decedent in the interdiction proceedings. However, Mr. Thompson also initially represented the executrix and was the attorney for the succession. Because of other pressing matters Mr. Thompson formally withdrew as counsel for the executrix and the matter was then handled by his law partner, Mr. James. At the trial the following transpired:

“MR. JAMES: Your Honor, may it please the Court, Judge Thompson is co-counsel on this matter; and I would request he be allowed to stay in the courtroom.
THE COURT: Yes, Judge Thompson, your firm is the one that is handling this particular matter, is it not ?
JUDGE THOMPSON: Yes, sir. I originated the petition, as a matter of fact.
THE COURT: Well, I’m not going to place Judge Thompson under the rule then, if he’s counsel in the matter.
MR. DELAFIELD: Well, Your Hon- or, I wasn’t aware, and I don’t mean to belabor the point, sir, I wasn’t aware that Judge Thompson was representing the succession. I knew he was representing the interdiction .
THE COURT: Well, for example, here’s a petition for probate of a statutory testament filed November 9th, 1973, by her attorneys, Planchará, Thompson & James, signed by E. Woody Thompson. The pleadings were signed by Judge Thompson.
MR. DELAFIELD: Well, I will defer then, Judge.
THE COURT: It is my understanding that it is the firm handling the succession and not Mr. James, individually.
MR. DELAFIELD: I’ll defer to your greater wisdom, Judge.
THE COURT: All right, sir. Judge Thompson will be excused from the rule.”

The opponents contend that the exclusion of Mr. Thompson from the rule of sequestration prejudiced their ability to examine him regarding the issue of attorney’s fees.

The sequestration of witnesses is governed by LSA-C.C.P. Article 1631 which provides:

“Art. 1631. Power of court over proceedings; exclusion of witnesses
The court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done.
On its own motion the court may, and on request of a party the court shall, order that the witnesses, other than parties, be excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. In the interest of justice, the court may exempt any witness from its order. As amended Acts 1966, No. 36, § 1.” (Emphasis added)

Although Mr. Thompson was not technically counsel of record for the executrix, it is conceivable that his presence was necessary in view of the fact that he initially represented her. For that reason, and in light of the obvious acquiescence on the issue by counsel for the opponents, we are of the opinion that the trial judge acted within the bounds of discretion in exempting Mr. Thompson from the rule of sequestration. Furthermore, we are unable to find that Mr. Thompson’s presence in the courtroom prejudiced the opponents in their examination of him relative to the issue of attorney’s fees.

For the above and foregoing reasons the judgment of the District Court is affirmed. Costs of this appeal are assessed against the opponents-appellants.

AFFIRMED.

      . Footnote by appellate court. Attorney Thompson is also City Judge of the Sulphur City Court.


text:
    In re William Harris BERRY, applying for Adoption, Plaintiff and Appellee, v. Jack Ronald BERRYHILL, Defendant and Appellant.
    No. 5425.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.

      Edward E. Roberts, Jr., Alexandria, for defendant and appellant.
    Alfred B. Shapiro, Alexandria, for plaintiff and appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   CULPEPPER, Judge.

The plaintiff, William Harris Berry, seeks to adopt the two legitimate minor children of his wife, Patricia, born of her previous marriage to the defendant, Jack Ronald Berryhill. Plaintiff contends the consent of the defendant to the adoption is not necessary because defendant failed to comply with a court order of support for a period of one year within the meaning of LSA-R.S. 9:422.1. The defendant admits his failure to support his minor children, but contends it was beyond his control to pay such support since he was in prison in Texas. The district judge granted the petition for adoption. Defendant appealed.

The decisive issue on appeal is whether the defendant carried his burden of proving the affirmative defense that his failure to pay child support during the year immediately following the court order was because he was incarcerated within one year after the court order.

The pertinent facts are that the mother of the children was married first to the defendant, Jack Ronald Berryhill, in Harris County, Texas on March 11, 1960. Of this marriage were born the two children herein sought to be adopted. On May 9, 1968, the mother was granted a divorce from the father in Brazos County, Texas. The judgment of divorce awards custody of the two children to the mother and orders the father to pay child support in the sum of $15 per week.

The report of the investigation by the Division of Family Services, Louisiana Health and Human Resources Administration, shows that Berryhill was arrested in Texas in May of 1969 for robbery by assault. He was sentenced to the Texas State Penitentiary in October of 1969. At the time this suit was filed, Berryhill was still incarcerated in the Texas State Penitentiary. An attorney was appointed to represent him in these proceedings. The attorney contacted Berryhill, who advised that he wished to oppose the adoption.

At the first hearing of this matter on July 21, 1975, the mother of the children testified that Berryhill had failed to pay any of the child support payments ordered by the divorce judgment of May 9, 1968. She said that about a year or two after the divorce, she learned that defendant was in prison. After this testimony on July 21, 1975, the hearing was continued to a later date for the submission of evidence by the defendant.

On December 16, 1975, the hearing of the case was completed. Defendant’s attorney filed in evidence without objection a notarized statement by defendant that he opposed the adoption. He does not contend he has made any support payments as ordered by the court. His only contention is that he was unable to make support payments since he was in prison.

Neither this affidavit, nor any other evi-idence introduced by the defendant, shows the date on which defendant was incarcerated. The only evidence on this question is, as stated above, that the report of the investigation by the Division of Family Services shows that Berryhill was arrested in May of 1969 and that he was sentenced in October of 1969.

LSA-R.S. 9:422.1 provides in pertinent part:

“If the spouse of the petitioner is the legitimate parent of the child or if the petitioner is the grandparent or grandparents of the child, then the consent of the other legitimate parent is not necessary if the first and second or the first and third conditions exist:
“(1) The spouse of the petitioner or the grandparent or grandparents or the mother or the father have been granted custody of the child by a court of competent jurisdiction and
“(2) The other legitimate parent has refused or failed to comply with a court order of support for a period of one year or”

In the case of In Re Ackenhausen, 244 La. 730, 154 So.2d 380 (1963) the court construed the second condition of the statute, quoted above, concerning the failure or refusal of the parent to comply with a court order of support for a period of one year. The court held that if the failure to pay is due to sickness or some other cause beyond the control of the parent, he may prove this as an excuse for nonpayment. See also the later case of In Re LaFitte, 247 La. 856, 174 So.2d 804 (1965).

Under this jurisprudence, the defendant in the present case contends his failure to pay child support was beyond his control because he was in prison. However, we do not reach a decision of this question, because defendant has failed to prove the date of his incarceration. The only evidence in the record shows that he was arrested on some unknown date in May of 1969, and that he was sentenced to prison in October of 1969.

The plaintiff proved a prima fa-cie case under LSA-R.S. 9:422.1. He proved that he is married to the legitimate mother of the children, that the mother was granted custody of the children in the divorce decree by a court of competent jurisdiction, and that the legitimate father has failed for a period of more than one year to comply with the court order of support. The defendant’s contention that he is excused from paying the support because he was in prison is an affirmative defense under LSA-C.C.P. Article 1005, which defendant had the burden to prove. Martin v. Calloway, 303 So.2d 525 (La.App.1974); New Amsterdam Casualty Company v. Culotta, 230 So.2d 339 (La.App.1970).

Defendant offers no excuse for his failure to pay during the period from the date of the court order on May 9, 1968 to the date on which he was imprisoned. In order to show that his excuse for nonpayment began within one year following the court order of support, it was incumbent upon defendant to prove the date of his incarceration. Having failed to do so, the statute must be applied against him as written.

Under the conclusion which we have reached, it is unnecessary for us to decide the question of whether the willful and voluntary commission of a crime, leading to imprisonment, constitutes during incarceration a cause beyond the control of the defendant for his failure to pay support.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendant-appellant.

Affirmed.


author: HOOD, Judge.

text:
    Clayton Paul CALAIS, Plaintiff-Appellant, v. PETROLEUM HELICOPTERS, INC. and American International Home Assurance Company, Defendant-Appellee.
    No. 5415.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Edwards, Stefanski & Barousse, by Jean Pierre Lendais, Lafayette, for plaintiff-appellant.
    Schumacher, McGlinchey, Stafford & Mintz, by Carl J. Schumacher, Jr., Frederick B. Alexius, New Orleans, for defendant-appellee.
    Before HOOD, GUIDRY and PETERS, J J.
   HOOD, Judge.

This is a workmen’s compensation suit instituted by Clayton Paul Calais against Petroleum Helicopters, Inc. (referred to as “PHI”), and its insurer, American International Home Assurance Company. Judgment was rendered by the trial court in favor of defendants. Plaintiff appealed.

The principal issue presented, and we think the determining one, is whether an accident occurred in the course of plaintiff’s employment which caused plaintiff to sustain a disabling injury.

Calais contends that an accident occurred at about 11:45 P.M. on Tuesday, December 17, 1974, in Morgan City, while he was working as a truck driver or handyman for PHI. He testified that at that time he was assisting two other employees of PHI in carrying a helicopter blade, that he slipped and fell en his back while doing so, and that the helicopter blade fell on his chest. He claims that as a result of that accident he sustained injuries consisting of a strain of his chest and upper abdomen, with a ruptured blood vessel, and that he has been totally and permanently disabled since that time.

Plaintiff drove a PHI truck from Lafayette to Morgan City during the evening of December 17 and he arrived at his employer’s place of business in Morgan City shortly before he says the accident occurred. One of the purposes of the trip was to load a helicopter blade on the truck and to transport it from Morgan City back to Lafayette. The accident described by plaintiff allegedly occurred while the blade was being carried from the place it had been located in a hangar, to the place where the truck was parked. Plaintiff testified that he suffered pain when the accident occurred, and that he began spitting up blood shortly thereafter. The blade was loaded on the truck despite that alleged accident, and plaintiff drove the truck back to Lafayette that night, although he stated that he suffered pain during that trip.

Calais identified one of the two men who allegedly assisted him in carrying the helicopter blade when the accident occurred as being John Laurenson. He did not know the name of the other one, but he knew that he was an employee of PHI. Laurenson, an aircraft mechanic for PHI, testified that plaintiff did not assist at any time in carrying or loading the helicopter blade, that plaintiff was not in that immediate vicinity when the blade was handled, and that no accident of any kind occurred while that was being done. He stated that the blade was carried to and loaded on the truck solely by Laurenson, David Pitts, Richard Gibbens and Randy Breckinridge, all of whom were employees of PHI. He said that Calais went into the office immediately after he arrived at the hangar in Morgan City, that Laurenson did not see him again until after the blade had been moved and loaded on the truck, and that plaintiff was “nowhere in sight” while the blade was being handled.

Pitts and Gibbens testified at the trial, and both of them confirmed the testimony of Laurenson that Calais did not assist in carrying or loading the helicopter blade, that he was not in that vicinity when the blade was moved, and that no accident of any kind occurred while that was being done. Pitts was working for PHI at the time of the alleged accident, but he was no longer working for that establishment when the case was tried. Gibbens is an aircraft mechanic for defendant and he was working as a supervisor for that company when the above accident occurred.

The record indicates that the only persons who were in or near the hangar when the accident allegedly occurred were plaintiff, Laurenson, Pitts, Gibbens, Breckin-ridge and another PHI employee who was washing the floor. Breckinridge and the employee who was washing the floor did not testify at the trial.

Plaintiff’s testimony that an accident occurred on the above mentioned date thus is contradicted by three of his co-employees who were present at that time. His testimony to that effect is not supported or corroborated by that of any other fellow employee.

Patrick Arceneaux was the assistant supervisor of maintenance for PHI, and it was his duty to supervise the drivers for his employer. He testified that Calais worked on Tuesday, December 17, and that he also worked the following day, December 18, on which date he drove a truck to Cameron. Plaintiff maintains that he did not work on Wednesday, December 18, but that instead he went to his family doctor, Dr. Louis Weinstein, for treatment on that day. Dr. Weinstein, contradicting plaintiff’s statements, testified that he first saw and treated plaintiff on Thursday, December 19, 1974.

Plaintiff also testified that when he first went to see Dr. Weinstein, he carried a cup with him and was spitting blood in that cup while waiting to see the doctor. His testimony to that effect is supported by that of his daughter, and by the statements of two friends, Mrs. Hazel Belton and Mrs. Jane Belton, who also were in the waiting room of Dr. Weinstein’s office that day. Dr. Weinstein testified, however, that he did not see plaintiff bleeding at any time, that he found no blood in his sputum, and that he could find no objective signs of injury. He detected some swelling in plaintiff’s upper abdomen, but he said that could be caused by gas or a gall bladder condition, rather than by trauma.

The law is settled that the testimony of the plaintiff alone is sufficient to prove an accident in a workmen’s compensation case, provided that (1) there is nothing to discredit his testimony, and (2) his statements are corroborated by surrounding circumstances. Guillory v. American Fire and Casualty Company, 192 So.2d 674 (La.App. 3 Cir. 1966); Duncan v. Hardware Mutual Casualty Company, 275 So.2d 462 (La.App. 2 Cir. 1973).

In the instant suit, plaintiff’s testimony that an accident occurred stands alone. His statements are discredited, however, by that of every other person who was present at the time and who testified at the trial. The testimony of plaintiff’s daughter, and that of Mrs. Hazel Belton and Mrs. Jane Belton, to the effect that plaintiff was spitting blood while waiting for Dr. Weinstein on December 19, 1974, tends to corroborate a part of Calais’ testimony. Their statements were contradicted to some extent by the testimony of Dr. Wein-stein, however, and at best the part of plaintiff’s testimony which they tended to corroborate constitutes very weak evidence that an accident occurred two days earlier.

Plaintiff contends, however, that he was prejudiced by a ruling of the trial court which prevented him from introducing evidence which would tend to corroborate further his testimony that an accident occurred. The record shows that the trial court sustained an objection to plaintiff’s offer to introduce the “hearsay” testimony of his daughter, and that of Mrs. Hazel Belton and Mrs. Jane Belton, to the effect that plaintiff related to them how the accident occurred while they were in Dr. Weinstein’s office a day or two later. He contends that their testimony as to what he told them about the accident should have been admitted in evidence. To support his argument that hearsay evidence is admissible in workmen’s compensation suits, plaintiff cites Manues v. Ships and Power, Incorporated, 180 F.Supp. 850 (E.D.La. 1960), and Montgomery v. Delta Concrete Products Co., Inc., 290 So.2d 769 (La.App. 1 Cir. 1974).

We find it unnecessary to determine whether hearsay evidence is admissible in a workmen’s compensation case to establish that an accident occurred, or to show the manner in which it occurred. Assuming that all three of these witnesses, that is, plaintiff’s daughter and the two Mrs. Beltons, would testify that plaintiff told them on the morning of December 19, 1974, that an accident occurred as related by him at the trial, we have concluded that that testimony would not override the positive testimony of the eye witnesses, Pitts, Laurenson and Gibbens, that no such accident occurred.

Although procedural rules are construed liberally in favor of the claimant in a workmen’s compensation suit, the burden of proof nevertheless rests on plaintiff to prove his case by a preponderance of the evidence, as is required in other cases. The testimony as a whole must show that more probably than not a work-connected accident occurred, and that it had a causal relationship to the claimant’s disability. Prim v. City of Shreveport, 297 So.2d 421 (La.1974).

The factual findings of the trial judge are entitled to great weight, particularly when they involve a determination of the credibility of witness, and his factual findings will not be disturbed on appeal unless found to be clearly erroneous. Dohmann v. Richard, 282 So.2d 789 (La.App. 3 Cir. 1973).

In the instant suit the trial judge found that the evidence failed to establish that an accident occurred in the course of plaintiff’s employment. We cannot say that the trial judge erred in making that factual finding.

Our conclusion, like that of the trial court, is that the evidence fails to establish that an accident occurred in the course of plaintiff’s employment. We thus find no error in the judgment rendered by the trial court rejecting plaintiff’s demands.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.