author: TATE, Justice. SUMMERS, Justice

text:
    STATE of Louisiana v. Jimmy T. SLAYTON.

    No. 58054.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Dissenting Opinion Dec. 16, 1976.

      S. Patrick Phillips, Bossier City, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Charles R. Lindsay, Asst. Dist. Atty., for plaintiff-appellee.

        Editor’s Note: The opinion of the Supreme Court of Louisiana, in State v. Neyrey, published in the advance sheets at this citation (338 So.2d 694), was withdrawn from the bound volume at the request of the court, and will be republished.

   TATE, Justice.

The defendant Slayton was convicted of distribution of an illegal drug (methamphetamine), La.R.S. 40:968, and sentenced, as a multiple offender, La.R.S. 15:529.1, to twenty years at hard labor.

On his appeal, we reverse his conviction and remand for a new trial. We find merit in his contention that evidence of other drug offenses were improperly and prejudi-cially admitted in evidence. Assignments of Error Nos. 1, 3, 4, 5, and 11.

As we will show in more detail, the state introduced evidence of other offenses of drug distribution to prove the defendant’s participation in the present sale of an illegal drug with which he is charged. The other drug offenses occurred under totally different circumstances than the present offense.

The issue posed is whether these other offenses, completely independent of and unrelated to the present crime, are nevertheless admissible in evidence under the limited exceptions and for the limited purposes permitted by La.R.S. 15:445 and 446, i. e., to show knowledge, intent, or system.

I

Under our law, the state has the burden to prove beyond a reasonable doubt the accused’s guilt of the specific crime charged. La.Const. of 1974, Art. 1, Section 16. Proof of present guilt may not properly be made by proof of general bad character or of prior criminal record or of other unrelated criminal activity. State v. Prieur, 277 So.2d 126 (La.1976).

To repeat again what we stated in this leading decision, 277 So.2d 126 at 128 (La. 1973):

“The admissibility of other acts of misconduct involves substantial risk of grave prejudice to a defendant. As to the prejudicial effect of evidence of other crimes, Wigmore says:

“ ‘* * * The natural and inevitable tendency of the tribunal — whether judge or jury — is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge. * * * ’ 1 Wigmore, Evidence § 194 (3rd Ed.).

“The probative value of evidence of unrelated offenses in relation to the charged offense should therefore be weighed in light of its possible prejudicial effect, its tendency to influence the triers of fact improperly as to the present guilt of the accused. See McCormick on Evidence, § 190 (Cleary Ed. 1972). . . .

“Evidence of crimes related to the offense with which a defendant is charged is inadmissible except under ' special exceptions. . . . McCormick on Evidence, § 190 (Cleary Ed.1972). Aside from related offenses admissible as part of the res ges-tae, and convictions admissible for impeachment purposes, Louisiana’s statutes provide for only three exceptions — acts relevant to show intent, knowledge or system. * * ”

In State v. Moore, 278 So.2d 781 (La. 1973), we said: “ * * * [TJhere is always this second qualification to the admission of evidence of other offenses in a criminal prosecution: even if otherwise admissible, if the prejudicial effect outweighs the probative value of evidence of other offenses, such evidence should be excluded.”

Subject to these principles, evidence of similar offenses may be admissible for the limited purposes provided by La.R.S. 15:445, 446 (quoted in footnotes 2 and 3 above). La.R.S. 15:446 concludes: “ * * * where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.”

However, where the extraneous crimes are introduced to prove system in connection with the present crime charged, “the common system used in both crimes must be so similar and individual as preponderantly to demonstrate that the perpetrator of both must be identical.” State v. Waddles, 336 So.2d 810, 815 (La.1976).

H

The defendant is charged with participating in an illegal sale of methampetamine on August 1, 1973. The dissimilar extraneous offenses were committed in 1974 and 1975.

The August 1 offense charged took place as follows:

The actual drug sale occurred between Jerome Franklin, the seller, and Hawkins, an undercover federal narcotics agent. Earlier that evening, Hawkins agreed by telephone with Franklin to buy three pounds of methamphetamine for $3,200 per pound.

They agreed to meet at 10:30 p. m. in the parking lot of a motel to complete the sale. Hawkins was also informed that other persons would be in the area to make sure no one was robbed on either side. The only other person so identified was Richard Wilder, who had participated in the telephone negotiations.

Hawkins then arranged for other police officers to be in the vicinity of the parking lot. He was to signal (by putting on his coat) when the sale was completed, and then the officers were to arrest the participants.

Just before the agreed time, Hawkins parked on the motel parking lot. Shortly afterwards, a Buick containing two men (who later turned out to be Wilder and the defendant Slayton) parked near the concession stand of a closed service station next door. Within a few minutes, another vehicle driven by Franklin also parked in the service station lot a car length or so behind the Buick. (The waiting police officers thought they observed a glance of recognition exchanged between Franklin and the two men, now standing outside their Buick and watching the motel parking lot.)

Franklin then walked over to the motel. He met Hawkins by the latter’s automobile, where Hawkins field-tested the drug to be sure it was genuine. He then gave the signal (put on his coat), and the waiting police officers arrested Franklin, and also the two men near the Buick on the adjacent premises (as well as at least one other individual waiting in a nearby car, who was apparently not involved in the incident).

The theory of the state’s case was that the defendant Slayton, as well as Wilder, were principals in the illegal drug distribution, along with the actual seller Franklin. Slayton and Wilder were allegedly there maintaining watch to help protect their investment from hijacking or other mishap during the sale from Franklin to Hawkins.

Slayton, Wilder, and Franklin were all jointly charged w.ith the offense. (Wilder and Franklin pleaded guilty and were state’s witnesses at the trial.)

III

Despite the state’s strong case (see II above), it also, pursuant to proper Prieur pre-trial notices, introduced evidence of three other drug transactions:

James Dauman testified (a) that Slayton sold him ten grams of methamphetamine in January, 1974, (b) that in 1974 Slayton introduced him to Wayne Waldon as a source from which he (Dauman) could and did obtain methamphetamine, and (c) that on July 24 or 25, 1975, he had been able to secure a large quantitude of methamphetamine from Slayton for purposes of re-selling it.

The circumstances of this July, 1975 transaction (for which Slayton was not on trial in this case) were then proved in detail by six witnesses, including Dauman and his wife, police agents, the chemist, and chain of custody evidence.

Dauman and his wife testified to the transaction as follows: Slayton came to Dauman’s house, but he was out of town. Slayton pointed out to Dauman’s wife where he had left a package containing amphetamines next to a utility box in the ditch right outside her fence. Dauman’s wife picked it up and placed it behind her bed to keep it for Dauman’s return.

The amphetamines were delivered to Dauman, according to him, as a result of a prior agreement between Slayton and himself. Dauman had agreed to pay Slayton for the drugs after he had re-sold them to his buyers (the undercover federal agents), to whom he had made two previous sales of amphetamines already (obtained from other sources than Slayton, he testified);

IV

The total dissimilarity of the July, 1975 offense to the present one (August 1, 1973) is obvious. Nor is there any similarity between the latter and the face-to-face' 10-gram sale of January, 1974. Nor can we ascribe, any admissible purpose to the testimony that Slayton introduced Dauman to a drug-seller so that Dauman could buy drugs. Assuming proof of “system” were here relevant, no system .is proved by these extraneous crimes.

As noted in I above, proof of extraneous offenses unrelated to the crime charged is prejudicial to the right of a fair trial of guilt as to it. It is admitted only exceptionally, only to prove knowledge, intent, or system, and only when proof of such is probative of a genuine issue in the prosecution, and then only when the probative value outweighs its prejudicial effect. See also State v. Clark, 338 So.2d 690 (docket no. 58055, October 6, 1976); State v. Gaines, (docket no. 57,598, October 6, 1976); State v. Waddles, 336 So.2d 810 (La.1976).

As noted, even if system were here relevant, the extraneous offenses here prove no “system”. Nor do they here prove “intent”, any more than proof that an accused has at some time committed the same crime (even though by a different method) ever does so — and such proof of guilt of one crime by evidence of unrelated crimes of the accused is forbidden by our law. See I above.

Nor do these extraneous offenses prove “guilty knowledge”, the final limited purpose for which this type of evidence may be admissible:

Extraneous offenses are sometimes permitted to be used as evidence to prove “guilty knowledge”, when proof of such is required to establish guilt; but, in this sense, “guilty knowledge” is used to negate an innocent explanation for an undoubtedly unlawful act, as possibly done unknowingly.

In the guise of proving “guilty knowledge”, however, the state cannot introduce unrelated other offenses to prove that presumably lawful conduct (here, standing by a service station) was in fact done to accomplish an unlawful purpose as part of a crime. This is an attempt to prove by extraneous offenses that the defendant’s presumably innocent conduct (standing by the service station) was in fact criminal; not that the accused had no defense to ostensibly unlawful conduct because he did not have “guilty knowledge” (when required for conviction of guilt as in certain crimes).

Here, the circumstances of the transaction proved that those who participated in it had guilty knowledge of its nature, and the real thrust of the proof of extraneous drug offenses was not to prove guilty knowledge but that, because of his past record, the accused Slayton was a principal participating in commission of the crime. See State v. Clark, 338 So.2d 690 (docket no. 58,055, October 6, 1976).

The decisions cited by the state are not apposite. State v. Medlock, 297 So.2d 190 (La.1974), concerned prosecution for possession with intent to distribute drugs which had been seized a few minutes after they arrived at the defendant’s home in the mails; the other offenses were admissible to prove the requisite intent to distribute of the undoubted possession. State v. Banks, 307 So.2d 594 (La.1975), concerned the proof of an identical transaction between the same parties, closely related in time and place, to prove a genuine issue of disputed identification by the undercover-agent buyer. State v. Kibby, 294 So.2d 196 (La.1974), likewise concerned identical transactions between the same parties within a day of one another (conceding that its alternative holding on “guilty knowledge” is at vari-anee with the views above expressed and the decisions there cited).

In the present case, the chief effect of the testimony of the extraneous offenses is to prove that the defendant had sold the present drug on two other occasions, and had known someone else who sold the drugs. As noted, traditionally our American concept of prosecution and conviction is that the state must prove the defendant guilty beyond a reasonable doubt of the crime actually charged, not that he may have committed it because he is a bad man who had committed other offenses on other occasions.

For instance: Assuming the state had no other evidence against the defendant than that he was standing in the vicinity when the drug sale occurred, the state would nevertheless wish us to affirm a conviction principally on the basis of the evidence that, on other occasions, by totally dissimilar methods and on dates and places far distant, he had committed the same crime with which he is now charged.

The extraneous offenses erroneously introduced were apparently introduced to prove that the accused must be guilty of participating in this crime, since he was in the vicinity and could reasonably have been one of the principals, principally because he had engaged in (dissimilar) drug transactions in the past. The evidence principally served the prohibited purpose of placing the defendant’s so-shown bad character before the jury, without being relevant to proof of any genuine issue in the case. The evidence as to these extraneous offenses therefore constitutes reversible error.

Decree

Accordingly, we must reverse the conviction and sentence, and remand to this case for a new trial in accordance with law.

REVERSED AND REMANDED.

SANDERS, C. J., and MARCUS, J., dissent.

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice

(dissenting).

After Slayton’s arrest on the night of August 1, 1973, he was released on bond. Thereafter he began to deal with James Dauman, another drug user and dealer. Dauman testified that on one occasion in January 1974 he bought ten grams of methamphetamine from Slayton.

Later, as part of his method of operation, Slayton introduced Dauman to another drug dealer, Wayne Ray Walden, and instructed Dauman to make further purchases from Walden. In July of 1975 Slayton delivered approximately three pounds of methamphetamine to the Dauman residence in Mooringsport. This methamphetamine was delivered to be resold, wholesale for $6,000 and retail for $14,000. As in previous transactions, Slayton made every effort to protect himself from being caught with drugs in his possession. When he delivered the methamphetamine to Dauman, he hid the package a short distance from the house, and pointed out its location to Mrs. Dauman, who later retrieved it.

The evidence admitted was relevant to show Slayton’s guilty knowledge at the time of the August 1, 1973 offense; and to show, also, that the distribution in the August 1st offense was part of a system, scheme and plan to engage in the distribution of drugs.

This showing was particularly relevant in view of Slayton’s contention that he had no knowledge that a drug sale was taking place a few feet away on the night of August 1st and that he was merely waiting for his friend Wilder to make a phone call at the Exxon Service Station. Moreover, the subsequent drug transactions involving the Daumans were relevant to establish Slayton’s guilty knowledge, intent, motive and system.

This Court has consistently approved the admission of evidence of other offenses to show knowledge, intent, motive and system in drug transactions. One example is State v. Medlock, 297 So.2d 190 (La.1974), a case dealing with possession of LSD with intent to distribute. There evidence of sales of LSD was held to be admissible. Evidence of other offenses was recognized in that case to be of great value in establishing intent, an essential element of distribution. See also State v. Banks, 307 So.2d 594 (La. 1975); State v. Kibby, 294 So.2d 196 (La. 1974).

I would affirm the conviction.

      . See also earlier appeal, in which this court upheld the constitutionality of the proscription and description of methamphetamine as a controlled dangerous substance, La.R.S. 40:964, Schedule III A(2). State v. Slayton, 301 So.2d 600 (La. 1974).

      . La.R.S. 15:445 provides:
      “In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.”

      .La.R.S. 15:446 provides:
      “When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.” (Italics ours.)

      . Although the testimony of Wilder and Hawkins was not transcribed (per instructions of counsel), the record (arguments of counsel and interrogation of Slayton) indicates that Wilder and Franklin testified in support of the state’s theory that Slayton was a principal participating in the crime as alleged. Wilder testified that he had gotten the drugs from Slayton’s house, and that then Wilder and Slayton had stopped on the way to the service station and had given the drugs to Franklin.
      Slayton took the stand and denied any part in the transaction. He denied ever having seen Franklin before the arrest. He stated that Wilder had called him on the evening of August 1 to go for a few drinks. Allegedly, Wilder had stopped at the service station to call his girl friend, and Slayton had gotten out of the vehicle to drink a coke from the coin machine at the station’s concession stand.

      . His buyers turned out to be federal agents; Slayton was arrested and turned state’s evidence.

      . Thus, in State v. Johnson, 228 La. 317, 82 So.2d 24 (1955), the leading decision permitting use of extraneous offenses to prove “guilty knowledge” in narcotics cases, the undoubted possessor of marijuana, found in gleanings in his clothes, claimed not to know of them.

      . We must always be mindful of the constitutional presumption of innocence. See La. Constitution of 1974, Art. 1, Section 16.

      . Actually, the state seems to have had a fairly strong case, with direct evidence by co-principals of the defendant’s participation in the crime. See footnote 4 above. We are unable to ascertain any valid reason for infecting the validity of the resulting conviction by the injection of these prejudicial extraneous offenses, non-probative of any issue of the prosecution, except to impress upon the jury the alleged bad character of the defendant so that it would not believe his sworn denials of his alleged confederates’ implication of him in the crime. This is contrary to settled principle, see I above, as well as statute, cf. La.R.S. 15:481, 495.


source: Caselaw Access Project

license: Public Domain

text:
    William H. REBMAN and Gertrude Gardner, Inc. v. C. Espy REED.
    No. 58511.
    Supreme Court of Louisiana.
    Oct. 27, 1976.
   In re: William H. Rebman and Gertrude Gardner, Inc., applying for certiorari, or writ of review, to the Court of Appeal, 335 So.2d 37, Fourth Circuit, Parish of Orleans.

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

DIXON and TATE, JJ., are of the opinion the writ should be granted.


text:
    EAST PARKER PROPERTIES, INC. v. PELICAN REALTY COMPANY et al.
    No. 58497.
    Supreme Court of Louisiana.
    Oct. 27, 1976.
   In re: East Parker Properties, Inc. applying for certiorari, or writ of review, to the Court of Appeal, 335 So.2d 466, First Circuit, Parish of East Baton Rouge.

Writ denied. Since the judgment in Garrett et al. v. Pelican Realty Co., et al. is null and void only insofar as it applies to the Coerver heirs, on the facts found by the court of appeal, the remaining assignments of error are without merit.

CALOGERO, J., would grant the writ.

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


text:
    Theda Kay PARKER and Narvel Parker v. ST. PAUL FIRE & MARINE INSURANCE CO. et al.
    No. 58489.
    Supreme Court of Louisiana.
    Oct. 27, 1976.
   In re: Theda Kay Parker and Narvel E. Parker applying for certiorari, or writ of review, to the Court of Appeal, 335 So.2d 725, Second Circuit, Parish of Webster.

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

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

CALOGERO, J., would grant the writ.


text:
    GOLD & SUCKLE, INC. v. Stephen L. SUCKLE, et al.
    No. 58539.
    Supreme Court of Louisiana.
    Oct. 29, 1976.
   In re: Stephen and Barry Suckle applying for certiorari, or writ of review, to the Court of Appeal, 335 So.2d 713, Second Circuit, Parish of Caddo.

Writ denied. There is no error of law in the judgment complained of.

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


text:
    Chalin O. PEREZ v. Mary Ellen Sheehan, wife of Chalin O. PEREZ.
    No. 58533.
    Supreme Court of Louisiana.
    Oct. 29, 1976.
   In re: Mary Ellen Sheehan, applying for Certiorari, or writ of review, to the Court of Appeal, 334 So.2d 719, Fourth Circuit, Parish of Plaquemines.

Writ denied. No error of law as to assignments 1 and 2. There is no error in result as shown as to assignment 3.

CALOGERO, J., not present during consideration of this writ.


author: TATE, J.,

text:
    Moran ROBERTSON v. Joseph R. GERACE, Administrator and Godchaux’s.
    No. 58532.
    Supreme Court of Louisiana.
    Oct. 29, 1976.
   In re: Moran Robertson applying for cer-tiorari, or writ of review, to the Court of Appeal, 335 So.2d 102, Fourth Circuit, Parish of Orleans.

Application denied; No error in the judgment of the court of appeal.

TATE, J.,

I respectfully dissent, for the reasons assigned by the dissenting judge in the court of appeal.


author: DIXON, J.,

text:
    Mary Lynn CARTER and Kenneth Johnson v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 58523.
    Supreme Court of Louisiana.
    Oct. 29, 1976.
   In re: Mary Lynn Carter and Kenneth Johnson applying for certiorari, or writ of review, to the Court of Appeal, 335 So.2d 105, Fourth Circuit, Parish of Orleans.

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

DIXON, J.,

dissents from the denial; although quantum is probably not great, which is an influential factor, the driver should not have continued to operate the bus containing such a boisterous crowd that he could not hear the buzzer and could not observe the attack on plaintiffs.


text:
    Ann Mitchell, wife of/and Ryan F. UHLICH v. MEDALLION REALTY, INC., et al.
    No. 58517.
    Supreme Court of Louisiana.
    Oct. 29, 1976.
   In re: Medallion Realty, Inc. and Dunbar G. LaPlace, Jr. applying for certiorari or writ of review, to the Court of Appeal, 334 So.2d 788, Fourth Circuit, Parish of Jefferson.

Writ denied. Upon the facts found by the court of appeal, the result is correct.

DIXON, J.,

concurs in the denial, believing there is no error of law in the court of appeal opinion.


text:
    Landry E. BASCO v. The STATE of Louisiana, Through the DEPARTMENT OF CORRECTIONS and Houston General Insurance Co.
    No. 58530.
    Supreme Court of Louisiana.
    Nov. 3, 1976.
   In re: Landry E. Basco, applying for Certiorari, or writ of review, to the Court of Appeal, 335 So.2d 457, First Circuit, Parish of East Baton Rouge.

Writ denied. No error of law.

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


author: DENNIS, J.,

text:
    LOUISIANA HORTICULTURE COMMISSION v. Joe KUHARCIK.
    No. 58538.
    Supreme Court of Louisiana.
    Nov. 3, 1976.
   In re: Joe Kuharcik, applying for certio-rari, or writ of review, to the Court of Appeal, 335 So.2d 56, Fourth Circuit, Parish of Orleans.

Writ refused. Based on the assignments of error, there is no error of law in its judgment.

DENNIS, J.,

is of the opinion the writ should be granted because R.S. 37:1964, subd. C requires but one $25.00 annual fee for each separate establishment or place of business. R.S. 37:1963(21) defines “place of business” as a “permanent establishment”. The facts found by the Court of Appeal opinion show that applicant has but one “permanent establishment”.


author: SUMMERS, J.,

text:
    STATE of Louisiana v. Collins REID.
    No. 58556.
    Supreme Court of Louisiana.
    Nov. 3, 1976.
   In re: State of La. through District Attorney of Orleans Parish applying for writ of certiorari, prohibition and mandamus.

Writ denied. We find no abuse of discretion in the rulings of the trial judge.

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

SUMMERS, J.,

is of the opinion the writ should be granted. The ruling of the trial judge improperly expands the scope of pre trial discovery contrary to repeated decisions of this Court. State v. Devore, 309 So.2d 325 (La.1975); State v. Kado, 300 So.2d 461 (1974); State v. Green, 275 So.2d 184 (La.1973); State v. Burkhalter, 260 La. 27, 255 So.2d 62 (1971); State v. Andrus, 250 La. 765, 199 So.2d 867 (1967).

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


text:
    Thomas C. MORRIS v. Daisy Bel GUIDRY et al.
    No. 58566.
    Supreme Court of Louisiana.
    Nov. 3, 1976.
   In re: Thomas C. Morris applying for certiorari, or writ of review, to the Court of Appeal, 335 So.2d 75, Third Circuit, Parish of Calcasieu.

Writ denied. The result is correct.

DENNIS, J.,

is of the opinion the writ should be granted because the jury was not clearly instructed that excessive force by the bartender would completely obviate the theory of self-defense; also there was evidence from which the jury could have found reasonably that the bar owner was guilty of primary negligence in either employing a person with dangerous propensities or in not stopping the argument before the injury occurred.


text:
    STATE of Louisiana v. Isaac BRAZIEL.
    No. 58819.
    Supreme Court of Louisiana.
    Nov. 3, 1976.
   In re: State of Louisiana applying for Writs of Certiorari, Mandamus and Prohibition.

Writ denied. The judgment is correct.

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

SUMMERS, J.,

is of the opinion the writ should be granted. See my dissenting opinion in State v. Lee, La., 340 So.2d 180 (1976).


text:
    Leroy ANDREWS v. SPEARSVILLE TIMBER CO., INC., et al.
    No. 58555.
    Supreme Court of Louisiana.
    Nov. 3, 1976.
   In re: Willie Andrews, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Union, 335 So.2d 698.

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 v. David Joseph SYLVESTER.
    No. 58640.
    Supreme Court of Louisiana.
    Nov. 3, 1976.
   In re: State of La. through District Attorney, Parish of Orleans, applying for writ of certiorari, mandamus and prohibition.

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 Charles R. Ward, Judge of the Criminal District Court, for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 15th day of November, 1976, 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 28th day of January, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Melvin STOVALL v. Ross MAGGIO, Jr., Acting Warden, Louisiana State Penitentiary.
    No. 58436.
    Supreme Court of Louisiana.
    Nov. 3, 1976.
   In re: Melvin Stovall, applying for remedial writs of certiorari and habeas corpus.

Writ denied. The contemporaneously recorded colloquies at the time of the plea, December 10, 1974, and at the time of the sentence, December 13, 1974, indicate the absence of merit to the petitioner’s allegations. See also trial court’s reasons for judgment of June 29, 1976.


text:
    Eddie PITTS v. Ethel H. LENZ and the Hanover Insurance Company.
    No. 58528.
    Supreme Court of Louisiana.
    Nov. 3, 1976.
   In re: Ethel H. Lenz and the Hanover Insurance Company applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 334 So.2d 779.

Writ refused. On the facts found by the court of appeal, there is no error of law in its judgment.


text:
    V-8 TAXI CAB SERVICE, INC. v. Helen McGEE.
    No. 58545.
    Supreme Court of Louisiana.
    Nov. 3, 1976.
   In re: Helen McGee, applying for Certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 335 So.2d 476. '

Writ refused. On the facts found, there is no error of law in the Court of Appeal judgment.


text:
    V-8 TAXI CAB SERVICE, INC. v. Elijah HILL.
    No. 58546.
    Supreme Court of Louisiana.
    Nov. 3, 1976.
   In re: Elijah Hill, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 335 So.2d 477.

Writ refused. On the facts found, there is no error of law in the Court of Appeal judgment.


text:
    Charles LAYTON v. S. H. BOLINGER CO., et al.
    No. 58553.
    Supreme Court of Louisiana.
    Nov. 3, 1976.
   In re: Charles Layton, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Bossier, 335 So.2d 695.

Writ denied. Under the facts found by the Court of Appeal, we cannot say the result is incorrect.


text:
    Vaudine Rice SMITH v. REPUBLIC NATIONAL LIFE INS. CO.
    No. 58561.
    Supreme Court of Louisiana.
    Nov. 3, 1976.
   In re: Vaudine Rice Smith, applying for Certiorari, or writ of review to the Court of Appeal, Second Circuit, Parish of Winn, 335 So.2d 739.

Writ refused. On the facts found by the Court of Appeal, the result is correct.


text:
    STATE of Louisiana v. Raymond TAPP.
    No. 58562.
    Supreme Court of Louisiana.
    Nov. 3, 1976.
   In re: State of Louisiana applying for Writ of Certiorari.

Writ denied. The ruling is correct.


text:
    STATE of Louisiana v. Allen James WANTLIN.
    No. 58572.
    Supreme Court of Louisiana.
    Nov. 3, 1976.
   In re: Norval J. Rhodes, D. A., 32nd JD, Parish of Terrebonne applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

Writ denied. The ruling of the trial judge is correct.


text:
    STATE of Louisiana v. Joyce TERRY.
    No. 58587.
    Supreme Court of Louisiana.
    Nov. 3, 1976.
   In re: Joyce Terry, applying for writs of certiorari, prohibition, mandamus and for a stay order.

Writ denied. We find no merit in the assignments of error.


text:
    CITY OF BATON ROUGE v. James JARREAU.
    No. 58592.
    Supreme Court of Louisiana.
    Nov. 3, 1976.
   In re: James Jarreau applying for Writs of Certiorari.

Application not considered. When an extension to apply was granted until July 28, the trial court’s ruling became final before the next extension was granted on July 30.


text:
    STATE of Louisiana ex rel. Prentice ROBINSON, Jr. v. George W. D’ARTOIS, Commissioner of Public Safety.
    No. 58540.
    Supreme Court of Louisiana.
    Oct. 29, 1976.
   In re: Prentice Robinson, Jr. applying for Writ of Certiorari.

Writ denied. The application does not set forth grounds for relief under La.R.S. 44:1 et seq. See La.R.S. 44:32-34. The application is denied without prejudice to any right to obtain access to the records in connection with a pending application for post-conviction relief.


author: SCHOTT, Judge.

text:
    INTERNATIONAL HARVESTER CREDIT CORPORATION v. AMERICAN TROUBLESHOOTERS, INC.
    No. 7632.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Deutsch, Kerrigan & Stiles, Thomas R. Blum, New Orleans, for plaintiff-appellant.
    Graffagnino, Perez & Roberts, Don C. Gardner, Metairie, for defendant-appellee.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a judgment dismissing its suit to collect the balance on a note made by defendant and to enforce a chattel mortgage given to secure payment of the note.

On April 3, 1972, defendant purchased a pickup truck and executed the note for the purchase price and to refinance the balance defendant owed on a stump-cutter machine purchased in 1971. The chattel mortgage covered both pieces of equipment. Regular monthly payments were made on the note through December, 1972, but thereafter the account became delinquent. Over the ensuing months plaintiff’s representatives attempted to collect the arrearages from defendant and the evidence is in conflict as to why no payments were made.

Plaintiff’s contract representative, William Sigler, testified from his notes that defendant’s only complaint was relative to excessive charges to the account for insurance on the equipment, while defendant’s president, Carmelo Graffagnini, testified that the problem arose because the stump-cutter never functioned properly. Finally, by May, 1973, Sigler became convinced that defendant was simply having financial problems and recommended to his superiors that defendant be given a release in exchange for a surrender of the two vehicles. According to Sigler, he contacted Graffag-nini and asked him to store the equipment at plaintiff’s outlet. As to why Sigler asked Graffagnini to return the equipment, he said:

“Because in our business it is normal if a customer does not pay to ask him to store the equipment to keep it from further depreciating.”

Sigler said that he was waiting for a decision from his superiors whether to take legal action or release defendant, but he denied that he ever mentioned to Graffag-nini the possibility of a complete release.

On May 21, 1973, the stump-cutter and pickup truck were delivered to plaintiff by defendant’s employee. Graffagnini’s wife testified that she received a call from Sigler in which he requested that the equipment be brought in to plaintiff’s facility and that she relayed that message to her husband.

Graffagnini testified that his surrender of the equipment came about after he had had numerous conversations with Si-gler and a Mr. Duncan, one of Sigler’s superiors. In these conversations Graffagnini had threatened plaintiff with a lawsuit because of its failure to refund allegedly excessive insurance premiums charged to defendant and had complained about the failure of the stump-cutter to perform properly. He stoutly maintained that he would not have surrendered the equipment unless the release was forthcoming because of the equity he had already built up in the equipment. An agreement was finally made between him and plaintiff’s representative that he would buy from International Harvester Company (an entity separate from but close to plaintiff in its operation), another vehicle if a release were given on the first two pieces of equipment. When he delivered the equipment he was under the impression that a settlement had been made, including a full release on the note sued on. He testified that one month following the surrender of the equipment he ordered another vehicle for $29,000, pursuant to the agreement that he had made.

Thus, it can be seen from Graffagnini’s testimony that there might have been an informal compromise of the difference between the parties aiming toward a dation en paiement, or there might have been a novation consisting of plaintiff’s agreement to release and discharge defendant of the existing obligation in exchange for defendant’s giving up of the equipment and agreeing to purchase another vehicle.

The trial judge in his reasons for judgment stated that the evidence did not support a conclusion that there was “a definite accord and settlement between the parties.” However, the trial judge found that plaintiff was equitably estopped from collecting the balance on the account.

We agree that the evidence does not support the theory that the obligation was extinguished by any sort of release agreement, be it a dation en paiement (which was specially pleaded by defendant in its answer to plaintiff’s petition), accord and satisfaction, or a transaction or compromise, under LSA-C.C. Art. 3071, because were any of these to apply there must be a contract between the parties based upon a meeting of the minds and consent of both parties, and the compromise must be reduced to writing. There is no evidence in this record to show that plaintiff ever made such an agreement even though the evidence is persuasive that the defendant did intend such a result.

The trial judge makes no reference to Graffagnini’s testimony which tends to support a theory that the original debt was extinguished by a novation between the parties. In all probability, the trial judge was not impressed with this testimony, nor are we, because while Graffagnini testified that he ordered the new vehicle shortly after surrendering the old equipment, convincing documentary evidence shows that Graffagnini did not order the new vehicle until February of 1974, long after the suit and defendant’s answer were filed.

The crucial question is whether the law and evidence support the trial judge’s decision that plaintiff was equitably es-topped from the enforcement of the balance of its claim. The trial judge gave two reasons for this conclusion. First, plaintiff had kept the equipment while negotiating a settlement with defendant and “[A]t this late stage they now ask defendant to accept a credit for the truck which is in a highly depreciated condition;” and second, the faulty performance of the equipment demonstrated that defendant was entitled to file suit for redhibition. Had defendant done so it might have prevailed, but because of plaintiff’s actions the prescriptive period ran against the filing of such a suit.

In American Bank & Trust Co. v. Trinity Universal Ins. Co., 251 La. 445, 205 So.2d 35 (1967) the Supreme Court said:

“Equitable estoppel may be defined as the effect of the voluntary conduct of a party whereby he is precluded from asserting rights against another who has justifiably relied upon such conduct and changed his position so that he will suffer injury if the former is allowed to repudiate the conduct. Founded upon good faith, the doctrine is designed to prevent injustice by barring a party, under special circumstances, from taking a position contrary to his prior acts, admissions, representations, or silence.”

The record does not support the trial judge’s application of estoppel on the theory that defendant was deprived of an action in redhibition because it relied on plaintiff’s action. The note was given for the purchase of the truck but only to refinance the stump-cutter. The stump-cutter had been purchased sometime in 1971, perhaps as long as two years before it was surrendered to plaintiff, and the alleged defects were known to plaintiff more than a year before the surrender and more than a year since the seller’s last attempt to remedy the defects. All of the testimony regarding defects was confined to the stump-cutter but there is no such testimony with respect to the truck. The action in redhibition as to the stump-cutter had prescribed long before the surrender was made, so that plaintiff lost nothing in this regard.

However, we have concluded that the surrender of the vehicle itself, along with plaintiff’s silence thereafter, does provide a basis for the application of estoppel to defeat plaintiff’s claim.

The trial judge was apparently convinced that Graffagnini was in good faith when he surrendered the equipment on May 21, and so are we. Unless Graffagnini thought he was securing a release when he surrendered the equipment he had no incentive for doing so. He certainly had no need for plaintiff’s storage space and he was every bit as interested in protecting the equipment from depreciating as Sigler might have been. There was a suggestion by plaintiff’s representatives that the equipment was stored by plaintiff in order to assist defendant in its efforts to sell the equipment. Aside from the fact that Graffagnini denied this arrangement we are at a loss to understand how this would have helped defendant to make a sale in the first place.

Although there is some vague testimony by Sigler that he was in touch with Graf-fagnini by telephone after the surrender the record does not convincingly show that plaintiff contacted defendant from the date that the equipment was surrendered to plaintiff on May 21 until July 11, when plaintiff addressed the following letter to defendant:

“The present status of subject note is that it is very far in the arrears. The unit has been voluntarily stored at the IHC Branch in order for IHC to assist you in selling the Stump-Cutter and Pickup. To date, we have not received any indication that there is a purchaser in mind. Furthermore, our Field Representative in your area, Mr. W. E. Sigler, indicated upon his last contact your Company was not interested in trying to sell the unit. Mr. Sigler was told as far as your Company was concerned, the unit had been repossessed. As you are well aware, International Harvester Credit was not in favor of allowing you to sign a release. Therefore, you are still liable on the note.
“If all past due installments are not given to the Branch by Monday, July 16th, it is our intentions to proceed with legal action.”

Thus defendant, having relied on plaintiff’s initial request that the equipment be returned and on plaintiff’s silence while retaining the equipment for over fifty days, was for the first time told that no release had been given.

What happened thereafter was of no consequence. The trial judge was impressed that so much time had gone by when the trial was held, which has prompted plaintiff to raise the question of why didn’t defendant reclaim its property when apprised of plaintiff’s intentions. The answer is that by the time plaintiff sent its letter of July 11 it was already estopped from making its claim. Once it is established that estoppel exists, it cannot be revoked. Public Service Mut. Ins. Co. v. Hudson Properties, Inc., 15 Misc.2d 963, 182 N.Y.S.2d 710, 719 (1958).

Some authorities have indicated that the injury involved must be substantial in order to support an estoppel, 28 Am.Jur.2d 716 Estoppel § 78, and for this reason the mere surrender by defendant of the equipment might not have been sufficient to support the estoppel in this case, but when considered in the light of plaintiff’s inaction thereafter and the reasonable belief of defendant until the letter of July 11 was received that the matter was then closed and no further obligation existed there was a sufficient basis for application of the principle so as to defeat plaintiff’s claim.

Our decision is consistent with Maloney Motor Car Co. v. Perrin, 155 So. 289 (La. App.Orl.1934) in which our predecessor Court held that plaintiff was estopped from collecting the balance on note secured by a chattel mortgage on an automobile where defendant voluntarily surrendered the automobile with the impression that he was being released from liability.

Pointing but that plaintiff had demanded the surrender of the vehicle when it had no legal right to do so the Court noted that the' only possible consideration defendant could have received for giving up his car voluntarily was a release or an extension of the time for payment. The Court continued:

“But the plaintiff does not claim that there was an extension of time granted, or the partial cancellation of the debt, and, therefore, the defendant, as a reasonably prudent person, might well be led to believe and understand that, by his voluntary surrender of the car at that time, without legal process, plaintiff was taking back the car as a consideration for the balance due. The plaintiff, in taking this action, which it was not entitled to under its chattel mortgage, was under the duty of making it clear to the defendant that in surrendering the automobile he was not to be granted any consideration therefor whatsoever and that execu-tory proceedings would be filed against him just the same as if he had not surrendered the car. If he had been apprised of that fact, there is no doubt in our minds that he would not have surrendered the car then. .
“It might well be that the actions of the plaintiff’s representatives, who misled the defendant, were unintentional — and there is nothing in the record to indicate the contrary — but their conduct was, nevertheless, such as to cause any reasonably prudent person to be misled as the defendant says he was. Therefore, whether or not the plaintiff’s representatives intended to cancel the balance is unimportant, since their actions were such as actually misled defendant, to his harm, and as would have misled any reasonably prudent person. It is our opinion that there was sufficient evidence to establish the plea of estoppel, and the trial court erred in overruling it.”

Plaintiff relies on Bickham Motors, Inc. v. Bickham, 104 So.2d 442 (La.App. 1st Cir. 1958) where the Court rejected the plea of estoppel under circumstances where the mortgaged automobile was voluntarily surrendered to plaintiff and stored. But in that case, the Court affirmed the trial court with the following:

“The decision in this case rests purely upon a question of fact, as to whether the surrender of the truck by the defendant to the plaintiff was voluntary and in consideration of an extension of time in which to pay the obligation due the finance company, which was in arrears, or whether the surrender was in full payment of all amounts due on the truck. The District Judge has resolved the answer in favor of the plaintiff and unless his judgment is manifestly erroneous from the record it will not be reversed.”

Thus, the case turned on factual findings favorable to plaintiff whereas in the instant case the trial judge resolved the factual dispute in favor of defendant.

However, in Bickham, the Court in no way took issue with the principle of estop-pel applied in the Maloney case but distinguished the case on its facts, noting that in Maloney the Court found no consideration whereas in Bickham there was consideration. In the instant case, as in Maloney, there was no consideration flowing to defendant for the surrender of the equipment and deprivation of use thereof.

We are cognizant of the additional distinction in Maloney that the automobile was actually sold by plaintiff under executory proceedings before any further demand was made on defendant for the balance but we do not believe that this was the deciding feature in Maloney. It could hardly be said that plaintiff in Maloney or our plaintiff could hold the chattel in storage indefinitely as long as it was not sold and thereby avoid the operation of an estoppel.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

      . The original claim filed in September, 1973, was for $8045.24.
      By the time of the trial held in July-, 1975, and the judgment signed on October 23, 1975, the stump-cutter had been sold pursuant to an agreement between the parties that it was sold without prejudice to either side and that the proceeds would be credited to the principal balance. While the case was pending in this Court of Appeal the pickup truck was sold with the same understanding. As a result, plaintiffs claim is for $3546.64 plus interest, attorney’s fees and costs.


author: ST. AMANT, Judge.

text:
    Michael A. BRUNO, Individually and on behalf of/and as the Administrator of the Estate of his minor daughter, Janet Bruno, v. Lawrence E. FONTAN.
    No. 7356.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 14, 1976.
    Rehearing Denied Nov. 16, 1976.

      Windhorst, Heisler, De Laup, Wysocki & Klein, Jerome M. Volk, Jr., New Orleans, for plaintiffs-appellants.
    Deutsch, Kerrigan & Stiles, Francis G. Weller, New Orleans, for defendant-appel-lee.
    Before GULOTTA, SCHOTT and ST. AMANT, JJ.
   ST. AMANT, Judge.

This is a malpractice action against an attorney and his errors and omissions insurer for failure to timely file a tort action on behalf of the plaintiff. The insurer stipulated that its insured attorney was negligent in failing to file suit and conceded liability if the plaintiff’s injuries were the consequence of a tort on the part of anyone. The trial court rendered judgment in favor of defendants, finding that the plaintiff “was guilty of contributory negligence”. Plaintiff has appealed and we reverse.

Janet Bruno, then nine years of age, was injured while riding as. a passenger on a school bus on March 22,1965. This suit was not tried until 1975 so that both parties and the trial judge were faced with the difficult task of attempting to reconstruct events which took place a decade earlier after the witnesses’ memories were necessarily dimmed by the passage of time.

The record indicates however that Janet, a student at St. Louis King of France School, boarded a school bus designated as Tinker Belle No. 3 at the conclusion of the school day for the purpose of returning home. The bus was overcrowded with some six or seven students standing in the aisle. Janet took a position on top of one of the seats with her back facing the front of the bus, her feet braced against the seat in front of her, and her left arm resting on the window. Admittedly sitting on top of the seats was a practice forbidden by the rules of the school but it was a common practice both before and after the accident as a result of the overcrowded conditions on the bus. The only alternative available to Janet was to stand in the aisle with the other six or seven children who had not been able to secure seats.

The school bus, being driven by Marvin Bordelon, proceeded down Carrollton Avenue to the intersection with Hammond Highway where the bus driver intended to make a right hand turn. The bus was going up an incline as it approached the intersection which was controlled by a “STOP” sign at the top right hand side of the incline. Janet was injured when her upper left arm came in contact with the sign.

The precise manner in which the accident happened is a matter of vigorous dispute. Plaintiff claims that the bus driver accelerated as he went up the incline and made a sharp right hand turn causing the bus to “rock” and thrusting another student sharply against her with the result that her arm was involuntarily thrust out of the window. Plaintiff further claims that the bus scraped the sign as it made the right turn. Defendants on the other hand contend that Janet was riding with her arm out of the window prior to the accident and that the bus did not actually come in contact with the sign.

The trial judge in brief written reasons for judgment made two findings of fact; first, “At the time of the accident Janet Bruno had her arm out of the window” and second, “The ‘STOP SIGN’ did not scrape the side of the bus”. It is a fundamental principle of our law that factual findings by the trial court are entitled to great weight and will not be disturbed on appeal unless manifestly erroneous. From our review of the record we cannot say that the trial court committed manifest error in either of the above findings of fact which we therefore accept as conclusive for purposes of this opinion. However, these factual findings do not dispose of the issues.

In Louisiana school buses are considered to be “common carriers” as distinguished from “private carriers” and as such the driver of a school bus owes his passengers the “highest degree of care”. Landry v. Travelers Indemnity Co., 155 So.2d 102 (La.App. 1st Cir. 1963); Adams v. Great American Indemnity Co., 116 So.2d 307 (La. App. 2nd Cir. 1959); Mire v. Lafourche Parish School Board, 62 So.2d 541 (La.App. 1st Cir. 1952).

In Landry, supra, at page 103, the court stated “. . where a passenger is not safely transported to his destination the carrier bears the burden of proving its freedom from negligence and must overcome the presumption against it by a preponderance of the evidence.” In Mire, supra, the court declared that “. . . the general rule may be stated that the carrier is bound to exercise as high a degree of care, skill, and diligence in receiving, carrying and discharging a passenger as the circumstance of the case will permit.” The court in Mire further stated “. . . the carrier is required to do all that human sagacity and foresight can do under the circumstances.

In the instant case we are compelled to hold the school bus driver guilty of negligence when measuring his conduct against the standard of care required by our jurisprudence for common carriers. He admitted that he was aware of the fact that the passengers on his bus frequently extended their arms out of the windows despite a school rule to the contrary. He also admitted that he was aware of the fact that the sign at the intersection was leaning into the street. Under these circumstances he was under a duty as he approached the sign either to first ascertain before proceeding that all passengers had their arms safely in the bus or alternatively to have been careful not to drive so close to the sign as to imperil the safety of his passengers. It is immaterial whether the bus actually struck the stop sign or not. It is evident that if the bus did not hit the sign the, bus driver at least drove too close to the sign for safety.

The facts presented here are similar to those involved in Yarberry v. Shreveport Railways Co., 117 So.2d 637 (La.App. 2nd Cir. 1959), and the early Supreme Court case of Clerc v. Morgan’s La. and Texas Railway Co., 107 La. 370, 31 So. 886 (Sp.Ct. 1902). Although neither of the cited cases involved school buses each dealt with the question of the liability of a common carrier to a passenger whose arm was injured while protruding from a window.

In Yarberry, supra, the plaintiff contended that her right arm was resting on the ledge of the open window at the time the defendant’s bus stopped at the curb to pick up a passenger and that as the bus started to leave the loading zone her arm was caught between the bus and a telephone utility pole and as a result received a mashing injury. The court noted the evidence to the effect that there were no marks of contact either on the side of the bus or the pole and that the location of the pole was at least six to eight inches removed from the curb, but held this evidence insufficient to exonerate the defendant in view of the. burden of care imposed upon a common carrier.

In Clerc, supra, the plaintiff was seated at the window of a train with his arm on the sill and protruding slightly out of the window. His arm was injured when it came in contact with an open door on a freight car on an adjoining track. The court noted that defendant could expect passengers to put their arms out of the windows, that the plaintiff had his arm out of the window through inadvertence which was not negligence per se, and that plaintiff did not appreciate the danger since it had not happened to anyone previously. Judgment was rendered in favor of plaintiff rejecting the defendant’s plea of contributory negligence.

In the instant case the trial judge impliedly found negligence on the part of the bus driver in concluding that “Janet Bruno was guilty of contributory negligence.”

A plea of contributory negligence is an affirmative defense. The burden of proof rests upon the party asserting contributory negligence to establish it by a preponderance of the evidence. Furthermore, the test for contributory negligence on the part of children is not the same as that of an adult. Woods v. Cappo, 232 So.2d 578 (La.App. 1st Cir. 1970); Morgan v. Travelers Insurance Co., 224 So.2d 484 (La.App. 3rd Cir. 1969); Ates v. State Farm Mutual Automobile Insurance Co., 191 So.2d 332 (La.App. 3rd Cir. 1966).

In Woods, supra, the court stated:
“The test for contributory negligence on the part of a youth is not the same as that of an adult. That is to say, the child’s age, intelligence, and experience, under the particular circumstances must be considered and they are not expected to react in the same manner as an older and more mature person.”

Likewise, in Ates, supra, the court declared:

“The test to be applied to determine the contributory negligence of small children is ‘a gross disregard of one’s safety in the face of known, perceived and understood dangers.’ ”

In the instant case we have accepted the trial court’s finding that “At the time of the accident Janet Bruno had her arm out of the window” but this does not dispose of the crucial question as to why her arm was out of the window. As noted earlier plaintiff contends that her arm was thrust out of the window as a result of the action of the bus driver in accelerating up the incline and turning sharply to the right causing the bus to “rock” and thrusting another passenger against her. If this is correct the bus driver was responsible for her position of peril.

In any event if the plaintiff was riding with her arm out of the window prior to the accident she had her back to the front of the bus, she was unaware of the sign leaning into the intersection, and she was unaware of the fact that the bus was approaching this dangerous obstacle. There was therefore no known, perceived or understood danger on her part although the dangerous condition was readily apparent to the bus driver. We conclude in view of all of these facts that the defendant has failed to meet the burden of proving contributory negligence on the part of this nine year old child.

On the question of quantum, Janet was initially confined to the hospital for a period of one week following the accident during which time she suffered considerable pain and discomfort. Following her discharge from the hospital she continued to suffer pain and discomfort for an extended period of time. She was unable to participate in various school activities and was forced to undergo an extensive program of therapy and exercises designed to rehabilitate her arm. The arm was considerably disfigured and some five years after the accident she re-entered the hospital for surgery designed to correct this condition. Additional therapy was required thereafter.

Although the surgery was partially successful the arm continued to be disfigured to some extent. The plaintiff’s physician last examined her four days prior to the trial at which time she had only minimal residual physical disability but considerable cosmetic deformity. The plaintiff has thus suffered the embarrassment of this condition for a period in excess of ten years and will continue to do so in the future. We are of the opinion that Janet’s physical injuries, pain, suffering, temporary disability and permanent cosmetic deformity justify an award of $15,000.00. In addition her father is entitled to recover proven medical expenses of $1,559.05.

For the foregoing reasons the judgment of the trial court is reversed and it is now ordered, adjudged and decreed that there be judgment in favor of Michael A. Bruno individually in the sum of $1,559.05 and in favor of Michael A. Bruno as the administrator of the estate of his minor daughter Janet Bruno in the sum of $15,000.00 together with legal interest on both of said sums from date of judicial demand until paid and for all costs.

REVERSED AND RENDERED.


author: LANDRY, Judge.

text:
    John L. BURT, Sr. v. C. J. HEBERT, Jr., and Vernon Abrahams.
    No. 10848.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.

      Steven Joffrion, Donaldsonville, for plaintiff-appellee.
    Jude Fanguy, Houma, for defendants-ap-pellees.
    Peter T. Dazzio, Baton Rouge, for third party defendants, Robert Thibodeaux and Co., Inc. and appellants.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Plaintiff, John L. Burt, Sr. (Burt), filed suit against defendants C. J. Hebert, Jr., and Vernon Abrahams for the rental of equipment furnished said defendants (Subcontractor) for the performance of a paving contract undertaken by Sub-contractor for Robert Thibodeaux and Company, Inc., (Contractor), prime contractor for construction of the Assumption Parish Hospital, Na-poleonville, Louisiana. Sub-contractor third partied Contractor contending Contractor orally agreed to pay Burt’s claim in the sum of $1,625.00. The trial court, giving no oral or written reasons for judgment, rendered judgment in favor of Burt against Sub-contractor in the sum of $1,625.00 and also rendered judgment in favor of Sub-contractor against Contractor in said same amount. Contractor’s third party defendant reconventional demand against third party-plaintiff Sub-contractor, in the sum of $3,000.00, for money allegedly spent in completing the project, was rejected by the trial court.

Contractor has appealed the judgment against him in favor of Sub-contractor and has also appealed the rejection of his recon-ventional demand against Sub-contractor. We reverse, setting aside the judgment in favor of Sub-contractor and rendering judgment in favor of Contractor in the sum of $3,000.00 on Contractor’s reconventional demand.

The sub-contract called for installation of approximately 80,000 square feet of concrete parking area with the requisite curbing and other appurtenances, for a stipulated price of $54,000.00. The agreement provided the work was to be completed in sixty working days, commencing the week of March 8, 1971. Hebert and Abrahams, partners in the endeavor, rented a road grader from Burt for use on the project. Contractor had no connection whatsoever with the rental of the equipment.

Work on the project did not progress as originally anticipated. Sub-contractor apparently encountered financial difficulties to the extent that in July, 1971, Contractor began receiving communications from ma-terialmen that Sub-contractor was delinquent in payment for materials furnished for the hospital paving project. On July 13, 1971, Contractor received a letter from one materialman indicating Sub-contractor’s delinquency on an account of $526.84. Prior thereto, on June 30, 1971, Sub-contractor had assigned $10,000.00 of the amount due from Contractor, to payment of the claim of a materialman who had furnished redi-mixed concrete for the job in question. By mid-July, 1971, when the work was about 70% complete, Contractor had paid approximately $34,000.00 of the contract price directly to Sub-contractor and had paid about $8,000.00 to suppliers of materials for the job. From mid-July until about August 20, 1971, Sub-contractor performed little, if any, work on the project. Believing the work had been abandoned by Sub-contractor, Contractor arranged a meeting with Hebert and Abrahams, on the job-site, on or about August 20, 1971, to discuss the status of the job and Sub-contractor’s affairs. Attending the meeting on behalf of Contractor were Robert Thibodeaux, owner of Contractor, Walter Newmann, Contractor’s job superintendent in charge of the hospital project, and Nolan Graham, estimator for Contractor.

As was to be expected, Contractor’s and Sub-contractor’s versions of what transpired at the meeting are in significant conflict. In essence Hebert testified that Contractor’s representatives orally agreed to take over the project, finish the work and pay all claims for labor and materials already incorporated in the work as well as additional costs required to complete the project. He also stated it was agreed that if the work were finished and all claims paid for less than the contract price of $54,000.00, Contractor would refund Subcontractor the difference whereas if there were a cost overrun, meaning that if completion cost more than the contract price, Contractor assumed sole responsibility for such excess. Hebert further testified that all parties present at the meeting then went to Burt’s home, which was nearby, where Contractor’s representatives spoke with Burt and agreed to pay Burt’s claim. Hebert acknowledged having received a change order from Contractor, dated August 21,1971, which he did not sign because it failed to recite that Contractor agreed to pay all costs incurred by Sub-contractor on the subject project. Hebert conceded, however, he did not communicate further with Contractor about the matter and that he did not return to the job-site.

Contractor’s representatives testified the meeting disclosed Sub-contractor’s financial condition to be such that Sub-contractor could not complete the work. It was orally agreed Contractor would complete the job. It was also agreed Contractor would issue a change order to the effect Contractor would complete the work, which order was issued under date of August 20, 1971, and sent to Contractor who refused to sign. The assembled parties went to Burt’s home for the purpose of ascertaining the amount due Burt by Sub-contractor, concerning which there appeared to be a dispute between Burt and Sub-contractor. Contractor’s representatives deposed that at no time did they discuss with Burt the matter of his claim against Sub-contractor, nor did they promise to pay Burt’s claim. They also stated the sole purpose of the visit to Burt was for Sub-contractor to see if the precise amount due Burt could be agreed upon and that Hebert did all the talking with Burt. They acknowledged agreeing to take over the project and pay all claims which constituted lienable items against the project. They acknowledged payment of several claims owed by Sub-contractor on the job and refusal to pay others, including Burt’s. They expressly denied having orally promised, either Burt or Hebert, to pay Burt’s claim.

The record adequately establishes that Contractor completed the work with an “overrun” of slightly more than $5,000.00, notwithstanding which Contractor reconvened for only $3,000.00.

Abrahams, defendant in the original demand, third party-plaintiff, and defendant in Contractor’s reconventional demand, did not testify at the trial. Counsel for Hebert explained Abrahams’ absence by noting that he had expected Abrahams to voluntarily appear. Hebert conceded Abrahams had not been subpoenaed and accounted for Abrahams’ absence by noting that he did not know Abrahams’ present whereabouts. We deem it most significant that Burt, who initiated this proceeding, did not make Contractor a party defendant in his demand, neither did he appear as a witness herein. The amount of Burt’s claim against Subcontractor was stipulated in the sum of $1,625.00 subject to Contractor’s express denial of any liability therefor.

Relying upon Flick v. Salloum, La.App., 163 So.2d 143, and authorities cited therein, Contractor contends the trial court erred in receiving parol evidence to establish Contractor’s alleged promise to pay Sub-contractor’s debt to Burt. The record reflects, however, that upon Contractor’s objection, the trial court ruled the evidence was admissible pursuant to LSA-C.C. Article 2277 which concerns proof by parol evidence of a contract in excess of $500.00, but that the testimony was inadmissible, pursuant to LSA-C.C. Article 2278, to prove an oral agreement to pay the debt of a third person. It further appears the evidence was admitted only for the purpose of establishing the alleged oral contract between Contractor and Sub-contractor.

The rule that parol evidence is inadmissible to establish a promise to pay the debt of a third person is subject to the well recognized exception that such evidence is admissible to prove such a promise where the promisor has sufficient interest in the subject matter to constitute consideration for the promise. Gardiner v. Cleveland Motors, 16 So.2d 544; Collier v. Brown, 141 So. 405; Wallenburg v. Kerry, 16 La.App. 221, 133 So. 823.

LSA-C.C. Article 2277, pertinently states:

“All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, about five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances.”

The testimony of plaintiff can serve as that of “one credible witness”, for purposes of application of LSA-C.C. Article 2277. Aydell v. Fontaine Abbott Construction Company, Inc., 274 So.2d 484; Foshee v. Hand-Enis Realty Co., 237 So.2d 437.

Burt’s oral testimony was clearly admissible pursuant to Article 2277, above. Assuming, solely for argument’s saké, the parol evidence tendered was admissible for purposes of the exception to Article 2278, above, recognized in the Gardiner, Collier and Wallenburg cases, above, we find that Sub-contractor’s third party demand must fall for lack of sufficient proof.

The unexplained failure of a witness to testify concerning important knowledge, which he possesses with respect to the issues involved in a lawsuit, is ground for presuming the witness’s testimony would be unfavorable to the party failing to call him. Turner v. Southern Wheel and Rim Service, Inc., 322 So.2d 810; Bidwell v. Binnings Construction Company, 228 So.2d 240. This rule is especially applicable where the witness not called is a party to the action and could have been produced to substantiate the contentions of another party occupying the same position as the witness not called. In this instance Abrahams’ interest and position is identical to that of defendant Hebert. It behooved Hebert to produce Abra-hams to corroborate Hebert’s version of the agreement reached at the meeting in question. We are not impressed with Hebert’s testimony regarding his inability to communicate with Abrahams. The two men were former business partners. So far as the record shows, Abrahams was in the State of Louisiana. Moreover, we again note the statement of counsel for Sub-contractor that he had expected Abrahams to appear. Under the circumstances we conclude Abra-hams, if called, would not have corroborated Hebert’s testimony that Contractor agreed to pay Burt’s claim. We also find it highly significant that Hebert did not subpoena Burt to corroborate the contention that Contractor agreed to pay Sub-contractor’s debt to Burt. Moreover, had Burt received a promise from Contractor to pay the obligation, it is reasonable to presume Burt would have joined Contractor in the action.

We reject, as incredible, Hebert’s testimony that Contractor agreed to assume the cost of any overrun incurred in completing the work and simultaneously agreed to remit to Sub-contractor the difference between total completion cost and contract price in the event the former were less than the latter. Where a dispute exists over the terms of a contract, the controversy must be resolved in the light of the principle that informed and experienced parties do not ordinarily bind themselves to unreasonable obligations. Oil Field Supply & Scrap Material Co. v. Gifford Hill & Co., 204 La. 929, 16 So.2d 483; J. H. Jenkins Contractor, Inc. v. City of Denham Springs, La.App., 216 So.2d 549. The record in this instance discloses that Robert Thibodeaux is an experienced contractor. His testimony leaves no doubt that he would not have consented to an agreement of the nature testified by Hebert.

We are cognizant of the well established rule that the findings of a trial court should not be set aside on appeal involving consideration of factual determinations, save in a case of manifest error.

Under the circumstances we find that failure of third party plaintiffs to produce Abrahams and Burt as witnesses, must be construed to mean the testimony of said parties to this litigation would have been unfavorable to the position of third party plaintiffs, both as to their demands against Contractor and as to Contractor’s reconven-tional demand. Considering the record, we find a total lack of corroboration of Hebert’s testimony, either by another witness or established circumstances. We likewise find the record clearly preponderates in favor of Contractor’s reconventional demand. We conclude the trial court manifestly erred in holding otherwise.

It is ordered, adjudged and decreed that the judgment of the trial court in favor of third party plaintiffs C. J. Hebert, Jr. and Vernon Abrahams, against third party defendant Robert Thibodeaux and Company, Inc., be and the same is hereby annulled, reversed and set aside and judgment rendered herein in favor of said third party defendant dismissing and rejecting said third party plaintiff demand, with prejudice.

It is further ordered, adjudged and decreed that the judgment of the trial court rejecting the demands of third party defendant in reconvention, Robert Thibo-deaux and Company, Inc., against third party plaintiffs in reconvention C. J. Hebert, Jr. and Vernon Abrahams, be and the same is hereby annulled, reversed and set aside and judgment rendered herein in favor of said reconvenor against said defendants in reconvention, in the full sum of Three Thousand ($3,000.00) Dollars, with legal interest thereon from date of judicial demand, until paid, all costs of these proceedings to be paid by third party plaintiffs C. J. Hebert, Jr. and Vernon Abrahams.

Reversed and rendered.


author: SARTAIN, Judge.

text:
    J. G. DUPLANTIS, Plaintiff-Appellant, v. TERREBONNE PARISH SCHOOL BOARD et al., Defendant-Appellee.
    No. 10926.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.

      Edmond L. Deramee, Jr., and David L. Landry, Thibodaux, for plaintiff and appellant.
    Norval Rhodes, Dist. Atty., Houma, and John Cox, New Orleans, for defendants and appellees.
    Before LANDRY, SARTAIN and EDWARDS, JJ.
   SARTAIN, Judge.

This matter is before us on a motion filed by defendant seeking to have plaintiff’s appeal herein dismissed as untimely. We sustain defendant’s motion for reasons hereinafter stated.

The record before us shows that on December 13, 1975, pursuant to resolution adopted by the Parish School Board of Ter-rebonne and subsequently approved by the State Bond Commission, a special election was held in the Parish of Terrebonne. At that time, the majority of voters who voted therein approved a %% sales tax on goods and services, which tax was dedicated for various uses in the Terrebonne Parish Pub-lie School System. The following language concluded the approved proposition:

“. . . and further shall the avails or proceeds of the tax be subject to funding into negotiable bonds by the Terrebonne Parish School Board, maturing over a period not exceeding twenty (20) years from date thereof, in the manner provided in Act No. 21 of the First Extraordinary Session of the Legislature of Louisiana for the Year 1975, for the purpose of acquiring, constructing and installing air conditioning equipment and facilities in the public schools of said Parish?”

On January 21, 1976 plaintiff, a taxpayer and registered voter in the Parish of Terre-bonne, filed suit seeking to have the election set aside and declared to be without legal effect on allegations that a portion of the sales tax would, pursuant to the approved proposition, be used for capital improvements in contravention of our laws. The trial judge subsequently ruled in favor of defendants upholding the legality of special election in judgment signed on January 30, 1976. Plaintiff filed his motion and bond for a devolutive appeal on April 14, 1976.

Defendants argue herein that the above appeal was untimely inasmuch as it was not filed within the delays prescribed by R.S. 13:4452 (30 days), or in the alternative, the delays found in R.S. 13:5128 (10 days). Plaintiff acknowledges and the record so indicates that his appeal was not filed within the above mentioned delays. However, plaintiff argues this appeal was taken within the 90 day limitation enunciated in La.C. C.P. Art. 2087.

Thus, the sole issue presented here is whether this controversy falls within the subject matter described in either R.S. 13:4452 or 13:5128. If so, the appeal must be dismissed as untimely; otherwise, appellant has perfected a devolutive appeal within the delays of La.C.C.P. Art. 2087.

We have concluded that the applicable statute governing the pertinent delays herein is R.S. 13:4452, which states:

“An appeal from a judgment in a case involving the validity of bonds or certificates of indebtedness of a public board or corporation, or political subdivision of the state, or of taxes or assessments necessary to pay the principal and interest thereon, can be taken only within thirty days of the applicable date provided in Article 2087 (1-3) of the Code of Civil Procedure.” (Emphasis ours.)

In the case of Jacobs v. City of Baton Rouge, 262 La. 342, 263 So.2d 315 (1972), the Louisiana Supreme Court noted the underlying purpose of R.S. 13:4452 was “to provide for a speedy determination of matters involving bonds so as to facilitate their marketability.” The Jacobs case presented an attack on a ’ sales tax levied without voter approval. Defendant argued that plaintiff’s subsequent appeal was untimely under R.S. 13:4452. Plaintiff admitted that he had not filed the appeal within the delays of that statute, but argued nonetheless that the statute was inapplicable since he was not contesting the validity of bonds and further since the tax assailed was not necessary to pay principal and interest on bonds inasmuch as it had never been dedicated for that purpose. The court held that dedication of the tax to payment on the bonds was not required, but the mere fact that the tax was necessary for such payment was sufficient to invoke R.S. 13:4452.

We find in the instant case that proceeds of this sales tax are by law necessary to pay principal and interest on governmental bonds by virtue of the provisions under which the approved proposition provides that the bonds shall be issued, specifically Act No. 21 of the First Extraordinary Session of 1975. Section 5(B) of said act states in part:

“Bonds issued hereunder shall be payable solely from and secured by an irrevocable pledge and dedication of such part of the sales tax revenues as may be pledged thereto in the authorizing resolution.”

By subsequent resolution the %% sales tax being levied and collected by the Parish School Board of Terrebonne was dedicated to secure the bonds authorized in the December 13 election. It is interesting to note from Act No. 21 that it is only these proceeds which secure the bonds, so it could hardly be argued that they are not necessary to pay principal and interest thereon.

Plaintiff argues that R.S. 13:4452 has no application since the approved proposition does not make it mandatory that bonds even be issued by the School Board. If bonds are not issued, he argues, then the tax cannot be construed as necessary to pay principal and interest. We find no merit in this argument since it is clear that when and if bonds are issued the tax will be necessary to secure the same. We feel that the Legislative intent of R.S. 13:4552, to preserve and insure bond marketability through expedient determination of matters bearing on governmental bonds, applies regardless of whether the bonds have already been issued, as in Jacobs, supra, or have only been authorized by election, as here.

Since we have concluded that the thirty day period prescribed in R.S. 13:4452 is controlling herein, we need not pass upon the applicability of R.S. 13:5128 which provides an even shorter period of ten days.

Accordingly, for the above and foregoing reasons, appellant’s appeal is hereby dismissed at appellant’s costs.

APPEAL DISMISSED.

      . We note that intermediate appellate courts now have appellate jurisdiction over the subject matter of controversies contesting the legality of a tax by virtue of an omission in Art. 5, Sect. 5(D)(1) of the La.Const. of 1974 of a provision formerly contained in Art. VII, Sect. 10(1) and (2) of the La.Const. of 1921 which conferred appellate jurisdiction in such disputes on the Louisiana Supreme Court. See, Southland Corp. v. Collector of Revenue for Louisiana, 318 So.2d 23 (La.1975).


author: BLANCHE, Judge.

text:
    Succession of Catherine Frazer White THOMPSON. Catherine Helen COUSIN et al. v. Olivia and Hayward PREVOST.
    No. 10895.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Gerald F. Poole, Jr., Slidell, for plaintiffs-appellees.
    Carl J. Selenberg, New Orleans, for defendants-appellants.
    Before LANDRY, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

Catherine Frazer White Thompson died on March 20, 1970, leaving no forced heirs. Her olographic will, dated February 4,1970, naming Hayward Prevost and Olivia Pre-vost as universal legatees, was admitted for probate on May 4, 1970 and an ex-parte judgment of possession pursuant thereto was signed on May 8, 1970.

On July 17, 1970, a petition, alleging the will to be a forgery and asking to have the probate thereof and the judgment of possession set aside, was filed by Catherine Helen Cousin, Mrs. Lillian White and Caleb Albert White Hooker.

After trial on the merits, judgment was rendered dismissing the petition for nullity of the will. From that judgment, the opponents have appealed.

Under Article 2932 of the Code of Civil Procedure, when an action to annul a probated testament is brought within 90 days of the date of probate, the proponents of that testament have the burden of proving its validity.

The proponents offered the testimony of several witnesses who were familiar with the decedent’s handwriting. Edward Daniels operated a grocery store in the decedent’s neighborhood, and over the course of years, received many written orders from her. He was certain that the entire questioned will was written in the hand of the decedent.

Up until shortly before the decedent’s death, Sarah Mars corresponded frequently with her and identified the handwriting in the olographic will to be that of the decedent.

Gilbert J. Fortier, Jr., a highly qualified examiner of questioned documents, testified that the will had been written by the same hand that had written nine specimen signatures which were identified by various witnesses as having been written by the decedent.

One of the witnesses called by the opponents of the will, Mrs. Lucy Terrell, testified that she had known the decedent for thirty years, and that she was of the opinion that the signature on the olographic will was that of the decedent.

The opponents, to rebut the proof offered in favor of the will, offered the testimony of Joseph Cousins, who had rented property from the decedent. He stated that he had prepared the decedent’s alien’s report form for her signature until 1969, and, therefore, he was familiar with it. He was not, however, familiar with her handwriting. Not only did he not recognize the signature on the contested will, he also did not recognize the decedent’s signature on any document which was shown to him.

Caleb Albert White Hooker, a nephew of the decedent who resides in Managua, Nicaragua, testified that he received many letters from the decedent and was familiar with her handwriting. He was of the opinion that the signature on the olographic will was not that of his aunt. However, he also failed to recognize the valid signature of the decedent on the recapitulation of property in her husband’s succession proceeding.

We conclude that this witness’s testimony is of little value in this proceeding. Since his last correspondence with the decedent in 1965, she had suffered a stroke and her handwriting had evidently changed to the extent that he could not even recognize her valid signature on the succession recapitulation.

The opponents’ expert, Cy Courtney, also a highly qualified examiner of questioned documents, testified that the signature on the olographic will was not made by the same person that had written three specimen signatures which were identified by various witnesses as having been written by the decedent.

After hearing the testimony the trial judge decided to discount the conflicting testimony of both experts. He then accepted the testimony of the lay witnesses who testified for the proponents, including the plaintiff Olivia Prevost who testified that she had witnessed the writing of the will by. the decedent in her room at the New Orleans Charity Hospital, thereby upholding the validity of the will.

After a thorough examination of the record we conclude, as did the trial judge, that the proponents of this olographic will proved, by a preponderance of the evidence, that the document was written entirely in the hand of the decedent. The judgment appealed from is therefore affirmed, at opponents’ costs.

AFFIRMED.


text:
    Walter J. MOLAISON et al. v. WEST BROTHERS OF THIBODAUX, LOUISIANA, INC., et al.
    No. 10896.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.

      Sidney A. Ordoyne, Jr., Thibodaux, for plaintiffs and appellees.
    Wood Brown, III, Montgomery, Barnett, Brown & Read, New Orleans, for defendants and appellants.
    Gerard M. Dillon, Dillon & Williams, New Orleans, for third party defendant and ap-pellee.
    Before LANDRY, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

Defendants-appellants, West Brothers of Thibodaux, La., Inc., West Brothers of DeR-idder, La., Inc., and their insurer, Casualty Reciprocal Exchange, appeal the trial court judgment in this premises liability case which ordered them to pay $1,767.76 to plaintiff-appellee, Walter J. Molaison, and $18,000 to plaintiff-appellee, Mrs. Walter J. Molaison, plus legal interest from date of judicial demand until paid. Mrs. Molaison answered the appeal seeking an increase in her award. We affirm.

On April 15, 1972, seventy-two year old Mrs. Molaison entered West Brothers’ department store in the Nicholls Shopping Center, Thibodaux, Louisiana, to make purchases therein. She was accompanied on the trip by her husband, Walter; her grandson’s wife, Cheryl Mahler; and two small grandchildren.

As Mrs. Molaison and her party approached the front door of the store, they began conversing with two friends, Barbara Ann Hebert and Margery Delatte. Immediately after entering the store, Mr. Molai-son began helping Cheryl Mahler load the grandchildren into a rolling shopping basket while Mrs. Molaison continued talking with Miss Hebert and Mrs. Delatte.

At that point, Mrs. Molaison’s left foot was resting on a rubber base floor mat with carpet upper, of the type generally used to trap dust, et cetera, at the entrance to commercial establishments. Her right foot was on the bare floor.

As the group prepared to proceed to the store’s shopping area, Mrs. Molaison turned to follow. However, after apparently pivoting on her left foot, her right foot went underneath the floor mat and she fell to the floor. None of the witnesses actually saw her foot go underneath the mat, but it was established that immediately after the fall, as Mrs. Molaison lay on the floor, her left foot was on top of the mat and her right foot was underneath.

As a result of the fall, Mrs. Molaison sustained a fracture of the right hip which was repaired by open reduction, internal fixation with a Smith-Peterson nail and Thornton plate. She was hospitalized for approximately two weeks and remained in bed at home for almost one year thereafter. With the aid of a walker and crutches, she was able to walk again at the time of the trial.

Walter Molaison, as head and master of the marital community, brought the instant suit against West Brothers for the expenses occasioned by the accident. Mrs. Molaison joined in the suit seeking damages for her personal injuries. The basis of plaintiffs’ suit was that the mat was not lying flat on the floor, and because of the uneven and irregular condition thereof, Mrs. Molaison tripped and sustained the injuries complained of.

West Brothers, in turn, instituted a third party demand against Red Stick Linen Service, the supplier of the floor mat, seeking indemnification for any amount that it might be required to pay to the plaintiffs.

Without recorded reasons, the trial judge held West Brothers liable to the plaintiffs and dismissed their third party demand against Red Stick. West Brothers has appealed both the finding of liability and the dismissal of their third party demand.

Although no reasons were given by the trial judge, we must assume that he found the facts to be those presented by the plaintiffs, since judgment was rendered in their favor. The standard for our review of those findings is set forth in Canter v. Koehring Company, La., 283 So.2d 716 (1973), as follows:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” (Canter v. Koehring Company, 283 So.2d at 724)

An examination of the record reveals ample evidence to support a finding that the floor mat caused Mrs. Molaison to fall and injure herself.

It is uncontested that Mrs. Molaison came to rest, immediately after falling, with her right foot underneath the mat and her left foot on top. It would be virtually impossible for the aforementioned to have occurred if the mat were lying flat upon the floor as contended by West Brothers.

Neither Mrs. Molaison nor any of the witnesses noticed the condition of the mat prior to the accident, and, consequently, the plaintiffs could not prove by direct testimony that a dangerous situation existed at the time Mrs. Molaison attempted to walk across the mat. However, there was evidence presented which established that the rolling of shopping baskets through the doorway and over the mat sometimes caused it to become dislodged, thereby creating a dangerous condition.

Mrs. Molaison, in her deposition, clearly stated that the mat caused her to fall because her right foot went underneath it. West Brothers did not attack her credibility, nor could they produce another plausible version of the event since no one saw what happened until the plaintiff was lying on the floor.

It was also established that even though Mrs. Molaison was seventy-two years old at the time of the accident, she was steady on her feet and did not require a walking cane or other device to aid her in walking. Therefore, we assume she did not fall due to her own infirmity.

In view of the testimony of Mrs. Molaison and the corroborating circumstances, we cannot say that the trial judge was manifestly erroneous in believing that the mat in question caused the plaintiff to fall.

We utilize the duty-risk analysis to determine whether West Brothers is liable for her injuries. Louisiana Civil Code Articles 2315 and 2316. See, also Shelton v. Aetna Casualty and Surety Company handed down on June 21, 1976, Louisiana Supreme Court, 334 So.2d 406.

A store proprietor is not an insurer of the safety of his patrons but does owe an affirmative duty to use ordinary care to keep the premises, including the floors, in a reasonably safe condition, Bergeron v. Employers-Commercial Union Companies, 306 So.2d 367 (La.App. 3rd Cir. 1975). In other words, the proprietor is held to the standards of reasonable men in view of the probability of injury to others, Shelton v. Aetna Casualty and Surety Company, supra.

In determining the duty owed, we look to several factors, including the nature of the business and premises, the volume of business and the type and likelihood of the risk that occurred. Bergeron, supra. Because of the many patrons and shopping carts which pass through the doorway and across the mat daily, the probability that the subject mat would become dislodged and create a hazard to the patrons of this store was great. Since the risk was great, West Brothers owed a correspondingly high duty to protect its invited customers, including the plaintiff herein, from injury.

Regarding West Brothers’ attempt to fulfill its duty to the plaintiff, the manager of the store at the time of the accident, James Cooley, testified that all of the store’s employees were instructed to notify the management the moment a hazardous condition developed anywhere on the premises. The store’s porter was also instructed that he was to watch the floors for potential problems in addition to his other duties.

Nevertheless, the procedure employed by West Brothers to discover or protect against the dangerous condition which might be created by the mat was obviously inadequate since Mrs. Molaison was injured. Under the facts presented, the trial judge evidently found that West Brothers breached its legal duty to the plaintiff by failing to prevent her injury and we cannot say that he erred in so finding.

West Brothers has also appealed the dismissal of its third party demand for indemnity against Red Stick, the supplier of the subject mat. If a defective mat was, in fact, supplied to West Brothers and that defect was the cause of Mrs. Molaison’s injuries, then surely Red Stick would be liable for all or a portion of her damages.

However, West Brothers failed to prove that the mat in question was defective when supplied to them, or that it was otherwise inadequate for the job for which it was intended. By dismissing the third party demand, the trial judge obviously concluded that this accident was the sole responsibility of West Brothers. The record amply supports this finding and it will not be disturbed on appeal.

Mrs. Molaison answered the appeal, seeking an .increase in the $18,000 in damages awarded to her by the trial court. There has been no appeal or answer concerning the award of special damages to Mr. Molai-son as head and master of the marital community and, therefore, the only issue before this court is the adequacy of the award to Mrs. Molaison. LSA-C.C.P. Art. 2133; Shelton v. Aetna Casualty and Surety Company, supra.

The record discloses that this seventy-two year old plaintiff was hospitalized for approximately two weeks following her operation and then convalesced uneventfully at home. She was confined to bed for almost one year before she could resume walking with mechanical aids. The record discloses that she suffered a moderate amount of pain in conjunction with her injury and operation, and we can assume that because of her age she will continue to experience some discomfort and disability. The award of $18,000 for general damages reveals no abuse of the great discretion which is accorded to the trier of fact in such cases. Weiland v. King, La., 281 So.2d 688 (1973); Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971).

For the above and foregoing reasons, the judgment of the trial court is affirmed, at appellants’ cost.

AFFIRMED.