author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Talman HEGWOOD, Jr.
    No. 59014.
    Supreme Court of Louisiana.
    May 16, 1977.

      Prentiss Cox, Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., Alexander L. Doyle, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Hegwood here appeals his conviction of simple robbery and his five year sentence imposed after trial,by jury on the charge of armed robbery of a teller at Ter-rebonne Bank and Trust Company on January 28, 1976. His appeal is based on seven assignments of error which have been consolidated on appeal into four arguments.

ASSIGNMENTS OF ERROR NOS. 1 AND 2.

In these assignments, defendant Heg-wood argues that the trial judge improperly refused him permission to represent himself, despite his request to do so.

On the date originally set for trial, June 10, 1976, but before trial had commenced, defendant moved for a continuance on the grounds that he lacked confidence in his court-appointed attorney and desired additional time in which to seek privately-retained counsel. The defendant did not further elaborate on his reasons for this request, and he had previously expressed on the record no dissatisfaction with his attorney who had been appointed and had served since before his arraignment some three months before. The court denied the motion, and defendant assigned error number one. The defendant through his attorney immediately moved to dismiss his court-appointed attorney and to represent himself. The trial judge refused to allow the dismissal of the appointed attorney on the day of trial, but allowed defendant leave to take writs to this Court for review. We denied writs, 333 So.2d 249 (La.1976), and defendant went to trial represented by appointed counsel. He now reasserts these issues on appeal.

In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) the United States Supreme Court raised to constitutional level the right of a state criminal defendant to represent himself. When a defendant asserts this right of self-representation, a trial judge must make two independent decisions: whether defendant’s waiver of his right to be represented by counsel is intelligently and voluntarily made, and whether his assertion of his right to represent himself is clear and unequivocal. See Faretta v. California, supra.; United States v. Bennett, 539 F.2d 45 (10th Cir. 1976); United States ex rel. Konigsberg v. Vincent, 526 F.2d 131 (2nd Cir. 1975); State v. Snoddy, 332 So.2d 800 (La.1976); State v. Nix, 327 So.2d 301 (La.1975), per curiam on denial of rehearing (La.1976).

We have previously held that a criminal defendant who waits until the morning of trial to ask the court to excuse his appointed attorney in order to search for retained counsel has waited so long that a trial judge’s action in denying such a delaying tactic is justified. State v. Austin, 258 La. 273, 246 So.2d 12 (1971). For this reason, defendant’s assignment number one lacks merit.

Similarly, it is also true that a defendant who waits until after the commencement of trial to assert for the first time his right to represent himself, after having acquiesced in representation by an attorney throughout pretrial procedures and the institution of trial, cannot thereafter successfully assert that right unless he makes a showing that the prejudice to his legitimate interests overbalances the potential disruption of the proceeding already in progress. State v. Nix, supra; see also United States v. Montgomery, 529 F.2d 1404 (10th Cir. 1976); United States ex rel Maldonado v. Denno, 348 F.2d 12 (2nd Cir. 1965), cert. denied 384 U.S. 1007, 86 S.Ct. 1950, 16 L.Ed.2d 1020 (1966). Here, defendant Hegwood acquiesced in the appointment of counsel until the morning of trial and then asked for a continuance so as to have time to retain private counsel. On the heels of the judge’s refusal to delay the trial, defendant for the first time expressed his wish to dismiss his appointed counsel and to represent himself. The record does not indicate that defendant had given any serious thought to self-representation, nor that he had explored the possibility of the grave risks inherent in such action. Our reading of the record convinces us that this motion was intended only as another delaying tactic, not as a clear and unequivocal assertion of his right to represent himself. We are not here faced with the case of a person resigned to appear pro se who has merely failed to make known to the court his decision until the morning of trial.

Therefore, we find that a criminal defendant who has acquiesced in the representation of counsel, who for the first time requests to represent himself the morning of trial under circumstances which indicate that the request was a delaying tactic, and who makes no showing at all of any particular reason for his delay in asserting that right has impliedly waived his right to self-representation. See State v. Snoddy, supra. For these reasons, defendant’s assignments lack merit.

ASSIGNMENT OF ERROR NO. 3.

Before the jury selection began, defense counsel moved that the voir dire examination be by questioning jurors one by one, not while they were seated in groups of six or twelve. The purpose of his motion was to insulate jurors from the possibly prejudicial questions and responses of other prospective jurors. However, defendant points to nothing particular about his case which might cause answers given by some prospective jurors (or the questions asked them) to prejudice the views of other prospective jurors.

In selecting a petit jury panel, the details of whether jurors should be called individually or by groups is a matter within the court’s discretion. C.Cr.P. art. 784, see especially official revision comment. We have previously held that the trial judge’s refusal to insulate prospective jurors from the voir dire examination of other prospective jurors does not, in the absence of special circumstances, deny a defendant a fair trial. State v. Groves, 311 So.2d 230 (La.1975); State v. Robinson, 302 So.2d 270 (La.1974). See also State v. Madison, 345 So.2d 485 (La.1977). Finding no special circumstances here, we conclude that the judge’s overruling defendant’s motion was completely justified, and we find no merit to this assignment.

ASSIGNMENTS OF ERROR NOS. 6 AND 7.

In these two assignments, defendant complains that the trial court mistakenly overruled his objection to questions propounded to a state witness regarding a twenty dollar bill and regarding packages of currency found in defendant’s apartment. The objections arose during the state’s examination of the bank teller who was the victim of the robbery. She had testified that the robber had handed her a twenty dollar bill with a note written on it containing his robbery demand. When shown a twenty dollar bill with writing on it, she testified that that bill was not the same bill as the one used in the robbery. When the state asked if this bill was similar to the one used to effect the robbery, she answered “yes” while the defendant simultaneously objected to the question on the basis that the state had shown no connection between this piece of currency, which was found in defendant’s apartment, and the crime. The court overruled the objection (the decision which forms the basis of assignment number six), but the state did not pursue its questioning of the witness about this twenty dollar bill.

Subsequently, the state showed the witness several packages containing various denominations of currency and asked her if they were similar to those stolen from her. Defendant objected on the grounds that the currency, which was found in defendant’s apartment, had not been shown to be the same currency as that taken from the bank. The judge sustained defendant’s objection to this question, and when the prosecutor asked the witness if the money could have been that which had been stolen, defendant’s objection was again sustained by the court. These questions form the basis of assignment number seven.

We find no error in the judge’s decision that the bank teller could be questioned about the twenty dollar bill found in defendant’s apartment. The robber had perpetrated the crime by handing the bank teller a twenty dollar bill with a message written on it; a twenty dollar bill with a similar message was found in defendant’s apartment. Although it was established that the two bills were not the same, the question to the witness about their possible similarity was relevant to the case and properly admitted. While the fact of having a twenty dollar bill with a robbery message written on it in one’s apartment is clearly not proof to a certainty that a similar bill with a similar message was written by that person and relevant to the robbery at issue, it is sufficiently probative of that fact to withstand the objection that it is not relevant. R.S. 15:441; McCormick, Law of Evidence § 151, at 314 (Hornbook ed. 1954).

As for the defendant’s objection that the prosecutor should not have been allowed to question the bank teller about the packages of currency found in defendant’s apartment, we note that the trial judge sustained both of defendant’s objections to these questions. Although there are some instances where matters raised in state questions to a witness can be so prejudicial as to mandate a mistrial even when objections to those questions are sustained, see State v. Meshell, 332 So.2d 767 (La.1976), this is not that sort of case. The prosecutor asked the bank teller if she could identify the packages of money as those taken from the bank and she stated that she could not. She was then asked if the packages were similar to those taken from her, and it was this inquiry that the judge did not allow her to answer, and that defendant now complains of. We find no prejudice under the circumstances and therefore conclude that the assignment has no merit.

ASSIGNMENTS OF ERROR NOS. 11 AND 12.

These two alleged errors relate to the alleged prejudicial impact on the jury in learning that defendant Hegwood had been booked as a fugitive from justice and that the police officers who originally arrested defendant Hegwood believed he fit the description of the man who had robbed the bank in question. This information was published in a local newspaper on the first day of trial. In the afternoon, the trial judge, evidently having seen the article at the noon recess, cautioned the jurors, who were not sequestered, to refrain from reading or listening to any news accounts about the case. He told the jurors that if any of them did so he would declare a mistrial, and secured from the jurors their promise not to read the newspaper or listen to the radio until the trial was completed. Defendant moved for a mistrial on the grounds that the jurors still could learn the information through friends or relatives, but made no allegation that any of the jurors had already learned of the information. Although the judge stated that he would entertain a renewed motion for mistrial the next day if it could be shown that any of the jurors had received impermissible information, he denied this motion because prior to that time no juror had read the paper or heard the radio report. No further motion for mistrial was made.

We find no error in the judge’s overruling defendant’s motion for mistrial. The defendant prior to or after recess did not move for sequestration of the jury, but instead moved only for a mistrial based on the newspaper article. Defendant produced no testimony to show that the news article had any effect on any juror, that any juror had read the article or had even had the opportunity to do so. See State v. Monk, 315 So.2d 727 (La.1975).

The other error allegedly occurred when the arresting officer was on the stand and was asked to explain what the defendant did when the policeman went to his apartment. The officer answered, “Through investigative means we identified information this man was a fugitive from justice from the State of Illinois.” Defense counsel objected, his objection was sustained, and the jurors were admonished by the judge to disregard the witness’ statement. Defense counsel, believing that the admonition was not sufficient to cure the prejudice, moved the court to grant a mistrial. The court, at the end of a lengthy discussion outside the presence of the jury, warned the state that no further questions could be asked which might involve defendant’s past criminal activities, ordered the witness to make no further reference to the matter, and admonished the jury a second time to disregard the answer. The court, however, refused to grant the requested mistrial. The judge additionally agreed to allow defense counsel the opportunity to probe the witness, outside the presence of the jury, so as to explore whether the answer was actually unresponsive, or a part of a prearranged plan between the witness and the prosecutor. Defense counsel, however, refused such an inquiry.

Although we find defendant’s argument to be a serious one, we conclude . that it has no merit. We have held that the unsolicited, unresponsive remark of a witness as to another crime is not the comment of a “court official” which would mandate a mistrial under Article 770 of the Code of Criminal Procedure. State v. Hardy, 344 So.2d 1018 (La.1977); State v. Jones, 332 So.2d 466 (La.1976); State v. Thorson, 302 So.2d 578 (La.1974); State v. Howard, 283 So.2d 197 (La.1973) but see State v. Foss, 310 So.2d 573 (La.1975). Under Article 771 of the Code of Criminal Procedure it is within the trial court’s discretion to grant a mistrial if it believes that an admonition is insufficient to assure the defendant a fair trial when someone other than a judge, district attorney, or a court official has made a prejudicial remark. State v. Gabriel, 308 So.2d 746 (La.1975). We believe that the trial court’s admonition was sufficient to assuage any prejudice against the defendant, and that the court’s refusal to grant a mistrial under these circumstances was not error.

Accordingly, we affirm defendant’s conviction and sentence.

      . Five other assignments have been abandoned on appeal for specific reasons stated in brief.

      . Defendant argues in brief that he bases part of this assignment on a question by the state asking the officer if he felt defendant fit the description of the robber which he had been given. We do not consider this contention because it was not made a part of the assignment of error. In any event, the objection was sustained, and an admonition given. See our discussion of assignment of error number seven.'


source: Caselaw Access Project

author: DENNIS, Justice. MARCUS, Justice

license: Public Domain

text:
    STATE of Louisiana v. Billy S. MONROE.
    No. 58931.
    Supreme Court of Louisiana.
    May 16, 1977.
    Arthur A. Lemann, III, Supervising Atty., New Orleans, John M. Standridge, Student Practitioner, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

At approximately 5:30 a. m. on May 18, 1974, the victim of the crime in this case, a woman who lived alone in an apartment, awoke with a man on her back. As she attempted to rise, he placed a knife at her chest, then instructed her to close her eyes and get out of bed. He blindfolded her with the valance from a curtain, helped her to take off her nightgown, and, holding the knife to her chest, raped her. Subsequently she heard him in her living room ransacking her purse. Once it became apparent the intruder had departed, she began to scream and sought assistance from a neighbor in an adjoining apartment. As her phone wire had been severed, the victim’s neighbor drove her to a telephone to call the police. Latent fingerprints of a suspect were found on two articles from the woman’s purse and on her telephone. There were no identifiable fingerprints on a knife found under the rug in the apartment. Beyond recalling that the rapist had an unpleasant, strong body odor, the woman could not provide any means of describing him.

Nevertheless, the fingerprints led the police to arrest the defendant, Billy S. Monroe. They found in his pocket a piece of clothes hanger or wire similar to a piece of wire found in the alleged victim’s apartment, and one officer testified he had a very strong body odor.

Defendant, Billy S. Monroe, was charged by grand jury indictment with aggravated rape. La.R.S. 14:42. On October 22, 1974, he was found guilty as charged by a jury of twelve. Subsequently, defendant was sentenced to death.

Defendant appealed, and we find that the trial court committed reversible error by allowing the introduction of hearsay evidence pertaining to a medical examination of the alleged victim by an assistant coroner who was not called as a witness at the trial. By assignment of error number six, defendant complains that the trial court overruled his objection to the testimony of the coroner in which he described the examination and related the findings of the absent physician. By assignment of error number seven, defendant argues that the trial court erred in permitting the introduction of two documents identified by the coroner as reports pertaining to the examination by his absent assistant. Finding merit in these two related assignments we will not consider the other errors complained of by defendant.

During presentation of its case in chief, the State called Dr. Frank Minyard, the Orleans Parish Coroner, who testified, over defendant’s objection, to the results of a medical examination of the alleged rape victim conducted by Dr. Ralph Lupin, an assistant coroner, some three hours after the alleged rape. According to Dr. Min-yard, he appeared in place of Dr. Lupin who was delivering a baby at the West Jefferson Hospital on the day of trial. As Dr. Minyard had not been present during the examination, his testimony was based solely on the information contained in two documents which he said were prepared in conjunction with Dr. Lupin’s examination. The two documents were introduced over timely objection by the defendant that the evidence was inadmissible hearsay, and that defendant was being denied the right “to cross examine the man who actually made the tests.” The trial judge, upon being informed by the coroner that the reports were official and permanent records of his office, overruled defendant’s objections.

Dr. Minyard informed the jury that Dr. Lupin had conducted two separate tests for the presence of seminal fluid in the vagina of the alleged rape victim — one for sperm, the other for acid phosphatase, a chemical present in prostatic fluid. Dr. Lupin, according to Dr. Minyard, found the results of both tests to be positive, indicating conclusively that the woman had engaged in sexual intercourse, or had been artificially inseminated. Further, Dr. Minyard testified the sperm cells were found to be motile (active) by Dr. Lupin, indicating that they recently were deposited in her vagina.

The basis of defendant’s objection at trial, and his argument before this Court, is that the reports and Dr. Minyard’s testimony were inadmissible hearsay evidence. Hearsay is evidence of an unsworn out-of-court assertion, whether oral or written, made by a person other than the testifying witness and offered to prove the truth of the matter asserted. State v. Launey, 335 So.2d 435 (La.1976); State v. Junegain, 324 So.2d 438 (La.1975); State v. Hayes, 306 So.2d 705 (La.1975). Unless it satisfies the requirements of one of the recognized hearsay exceptions, such evidence is inadmissible. State v. Launey, supra; State v. Lockett, 319 So.2d 420 (La.1975); State v. Smith, 285 So.2d 240 (La.1973).

It cannot be doubted that the assistant coroner’s reports, and Dr. Minyard’s testimony based thereon, constituted hearsay evidence. The extrajudicial assertions contained in the reports indicated the presence of sperm in the alleged victim’s vagina. The evidence was offered to prove precisely this fact. Thus, the determinative question presented in this appeal is whether the coroner’s testimony and the examination reports were admissible despite their hearsay character, under any recognized exception to the hearsay rule.

I.

The trial court relied on La.C.Cr.P. art. 105 in admitting the hearsay evidence. Article 105 provides inter alia:

“A coroner’s report and a procés verbal of an autopsy shall be competent evidence of death and the cause thereof, but not of any other fact." (Emphasis supplied.)

By its express terms, Article 105 does not authorize admission of coroner’s reports to prove any facts other than death and cause of death. See Official Revision Comment (c) to La.C.Cr.P. art. 105. Therefore, La.C. Cr.P. art. 105 does not authorize the introduction of the extrajudicial statements objected to by defendant in this case.

II.

The State argues that the legislative exception to the hearsay rule embodied in La.R.S. 13:3714, which authorizes introduction into evidence of certified hospital records, permitted the admission of the examination reports and the coroner’s testimony in the present case. La.R.S. 13:3714 provides:

“Whenever a certified copy of the chart or record of any hospital in this state, signed by the director, assistant director, superintendent or secretary-treasurer of the board of administrators of the hospital in question, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the record is sought to be used may summon and examine those making the original of said record as witnesses under cross-examination.”

Although introduction of evidence under this statute against criminal defendants was not found to be reversible error in two cases, State v. O’Brien, 255 La. 704, 232 So.2d 484 (1970) (criticized in Work of the Louisiana Appellate Courts, 1969-70 Term —Evidence, 31 La.L.Rev. 388 (1971)); State v. Kelly, 237 La. 956, 112 So.2d 674 (1959), the assistant coroner’s examination reports clearly are not certified copies of the charts or records of a hospital. There is no evidence that Dr. Lupin’s examination of the alleged rape victim was conducted in a hospital, rather than another place, such as the coroner’s office. The documents were offered as permanent and official records of the coroner’s office, and were not certified to be hospital records by a hospital director or other statutorily authorized hospital official.

III.

The State has urged that the coroner’s testimony and the examination reports may be regarded as admissible under the juris-prudentially recognized “business records” hearsay exception.

The so-called business records exception to the hearsay rule had its genesis in this state in civil rather than criminal law. Comment, Business Records in Louisiana as an Exception to the Hearsay Rule, 21 La.L. Rev. 449 (1961). Despite some early decisions to the contrary, State v. Savage, 213 La. 1011, 36 So.2d 20 (1948); State v. Goldstein, 187 La. 353, 174 So. 873 (1937), the business records exception to the hearsay rule has been recognized by this Court in a number of criminal cases. State v. Roche, 341 So.2d 348 (La.1977); State v. Corey, 339 So.2d 804 (La.1976); State v. Launey, 335 So.2d 435 (La.1976); State v. Junegain, 324 So.2d 438 (La.1975); State v. Hodgeson, 305 So.2d 421 (La.1975); State v. Lewis, 288 So.2d 348 (La.1974); State v. Graves, 259 La. 526, 250 So.2d 727 (1971) (criticized in Work of the Louisiana Appellate Courts, 1971-72 Term — Evidence, 33 La.L.Rev. 318 (1972)).

Having no statutory formulation of the business records exception, this Court has in previous opinions quoted with approval the following statement of the common law “regular entries in the course of business” exception:

“A permanent record made in the ordinary course of business, by a person unavailable for testimony, from personal knowledge of the facts recorded or from information furnished by one having a business duty to observe and report the facts, is admissible as proof of the facts recorded, in the absence of a strong motive to misrepresent, if the record is the first collected and recorded memorial.” (Emphasis supplied.)

This Court has recognized that the applicability of the business records hearsay exception in criminal prosecutions depends, among other things, upon the unavailability of the person making the record. State v. Launey, supra (failure to establish unavailability of maker of one record held harmless, where the unavailability, “for all practical purposes,” of the party making another record containing the same information was unquestioned); State v. Junegain, supra (the party making the record — an investigator — was known and available to testify; the investigative report could not be properly admitted as a business record). Other cases, while not specifically addressing the question, present factual situations in which the party making the business entry could not, as a practical matter, be identified, making him “unavailable” for trial purposes. State v. Roche, supra (business records of a Las Vegas casino made at a time when the casino was under different management held admissible on proper foundation; the identity of the party actually making the business entries was apparently unknown); State v. Hodgeson, supra (telephone company computer print-out admitted as a business record upon proper foundation respecting reliability of the records; method of record keeping itself suggests that the identity of the individual who made each entry is unascertainable); State v. Lewis, supra (retail company inventory records admitted upon proper foundation of reliability; identity of the particular employee who made the entry apparently not determinable).

In two cases it appears we may have mistakenly approved the introduction of evidence under the exception in the absence of a showing that the record had been made by a person unavailable for testimony. Introduction of telephone slips from motels implicating the defendant in the crime was condoned in State v. Corey, supra, but the opinion fails to discuss whether or not the motel employees who filled out the slips were identifiable or available as witnesses. Likewise, in the earlier case of State v. Graves, supra, this Court sanctioned the admission of a “Firearms Record” as a regular entry made in the course of business. The identity of the employee who made the record was known, yet this Court failed to discuss whether this person was unavailable for testimony at trial.

Professor George Pugh, criticizing the decision in State v. Graves, made the following comments:

“The propriety of recognizing a business records exception to the hearsay rule in criminal cases, especially in circumstances such as this, seems very questionable. The business records exception is not expressly provided for by statute in criminal cases in Louisiana; in fact a literal interpretation of the statutes would appear to preclude its recognition. Similarly, the propriety of the business records exception in civil cases, and if so, its appropriate ambit, is a matter of considerable doubt.
“It is a fundamental principle of Anglo-Saxon law that a defendant should not be sent to prison on unsworn testimony, and that he should have the right to full cross-examination of all persons who give evidence against him. To the extent an out-of-court statement is admissible on behalf of the state in a criminal case as an exception to the hearsay rule, this principle is abridged. Unquestionably, certain exceptions to the hearsay rule are clearly desirable. Although some business records should be admissible in criminal cases under narrow, restricted, well-defined circumstances, the writer seriously doubts whether in criminal cases Louisiana should embrace a broad regular course of business exception. To do so might well violate defendant’s constitutional right of confrontation.” 33 La.L. Rev. at 318-19 (footnotes omitted).

The criticism is well taken. Both federal and state constitutions provide that an accused is entitled to confront the witnesses against him. U.S.Const. amend. YI; La.Const. of 1974, art. I, § 16; see also, La.Const. of 1921, art. I, § 9. This guarantee has been enhanced in our State’s present constitution by its specific statement that an accused is also entitled to cross-examine the witnesses against him. La.Const. of 1974, art. I, § 16. Although the right of confrontation is not absolute, it is generally accepted that any qualification of the right must be justified by necessity and attended by strong assurance that evidence admitted thereunder will be reliable. E. g., State v. Hodgeson, 305 So.2d 421 (La.1974); Comment, Preserving the Right to Confrontation — A New Approach to Hearsay Evidence in Criminal Trials, 113 U.Pa.L.Rev. 741, 748-49 (1965); McCormick, Evidence, §§ 304-312 (2d ed. 1972).

Admittedly in employing the business records exception in civil cases, the trend has been to disregard the requirement of necessity altogether or to subordinate it to the demands of mercantile convenience. McCormick, Evidence, § 306 at 720; Comment, Business Records in Louisiana as an Exception to the Hearsay Rule, 21 La.L. Rev. 449 (1961); Comment, Preserving the Right to Confrontation — A New Approach to Hearsay Evidence in Criminal Trials, 113 U.Pa.L.Rev. 741, 762-64 (1965). In criminal trials, however, the accused’s constitutional rights to confront and cross-examine the witnesses against him are of paramount concern. Therefore, in our view, use of the business records exception against the accused in criminal prosecutions should be limited to situations in which the person making the record is genuinely unavailable for trial, either because his identity is unknown or because diligent efforts have failed to procure his attendance as a witness. See, Baker, The Right to Confrontation, The Hearsay Rules, and Due Process — A Proposal for Determining When Hearsay May Be Used in Criminal Trials, 6 Conn.L.Rev. 529, 544-55 (1974). Accordingly, we will adhere to our original conservative formulation of the business records exception in this and other criminal cases. Before the exception may be invoked by the State against the defendant, allowing introduction of a permanent record made in the ordinary course of business from personal knowledge of the facts recorded, or from information furnished by one having a business duty to observe and report the facts, it must be shown that the person who made the record is genuinely unavailable for testimony, that he had no strong motive to misrepresent, and that in all probability the evidence is trustworthy. Insofar as any of the expressions in State v. Corey, supra, and State v. Graves, supra, are in conflict with this view, they are expressly rejected.

Applying these principles to the instant case, we conclude there was insufficient showing that Dr. Lupin, the examining physician, was unavailable to give testimony at trial, and that as a consequence, the reports prepared in conjunction with Dr. Lupin’s medical examination of the alleged victim, as well as Dr. Minyard’s testimony based upon the reports, do not come within the business records exception to the hearsay rule. If application of a hearsay exception is contingent upon the unavailability of a witness, the State must prove that the witness is truly not available for trial despite diligent and good-faith efforts to produce him, or it cannot invoke the exception. State v. Jones, 325 So.2d 235 (La.1976); State v. Johnson, 261 La. 620, 260 So.2d 645 (1972). Simply because Dr. Lupin was to deliver a baby on the day of the trial does not mean that he was absolutely unavailable for testimony during the trial. Due to the gravity of the offense and the importance of the evidence to the State’s ease, the prosecution was obliged to exert great efforts in compelling attendance of the witness who was the source of the evidence. These efforts should have included, at least, seeking a recess if the witness’ attendance could have been procured after a brief delay, taking the witness out of order, or even requiring that Dr. Lupin, an assistant coroner, prefer his public duty to his private practice by arranging for another physician to deliver the baby. The record fails to disclose that these or any other steps were taken by the State to obtain Dr. Lupin’s attendance at trial.

Rather than allowing the easy admission of such documentary evidence in a case of this nature, it is imperative that assiduousness be demanded of the State to produce the witness who prepared the document, in order to avoid the very evils our constitutions are designed to prevent.

Many years ago the United States Supreme Court stated that

“[T]he primary object of the [confrontation clause of the Sixth Amendment] * * * was to prevent depositions or ex parte affidavits * * * being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895).

In the present case the only evidence which strongly tended to corroborate the woman’s testimony to the occurrence of sexual penetration, an essential element of the crime, were the hearsay medical examination reports and double hearsay testimony of Dr. Minyard based thereon. Thus, an unsworn out-of-court statement by a person the defendant could not confront and cross-examine was admitted to prove a crucial issue in the case. We have no way of knowing if the jury would have returned the same verdict had the accused been given an opportunity to confront and cross-examine Dr. Lupin. Thus, the proceeding bore too great a resemblance to the trials by ex parte affidavit which the framers of our constitutions sought to abolish with the requirements of confrontation and cross-examination.

Consequently, we are compelled to the conclusions that the evidence in question was clearly hearsay, that it was admitted in violation of statutory law because it did not come within any exception to the rule against hearsay, that such introduction probably violated the confrontation clauses of both our federal and state constitutions, and that these errors by the trial court were definitely prejudicial to substantial rights of the accused.

For the foregoing reasons, defendant’s conviction and sentence are set aside, and the case is remanded for a new trial consistent with the views herein expressed.

SANDERS, C. J., and SUMMERS, J., dissent.

MARCUS, J., dissents and will assign reasons.

MARCUS, Justice

(dissenting).

In my view, the documents and coroner’s testimony in regard thereto were admissible under the business records exception to the hearsay rule. Even assuming that the testimony and documents were hearsay and did not technically fall within one of the exceptions to the hearsay rule, they were offered merely for the purpose of establishing the presence of sperm in the victim’s vagina, inferring that the victim had recent sexual intercourse, a fact which had been testified to by the victim of the rape. As such, the documents and the coroner’s testimony were simply corroborative and cumulative of the victim’s testimony. Accordingly, I consider the alleged error harmless. La.Code Crim.P. art. 921. I respectfully dissent.

      . Neither document, however, bears the signature of Dr. Lupin. One appears to have been prepared for his signature as “Examining Physician,” but it is unsigned. The other is a laboratory report to Dr. Lupin signed by a medical technologist.

      . La.R.S. 15:434 provides:
      “Hearsay evidence is inadmissible, except as otherwise provided in this Code.”

      . The examination reports were hearsay; Dr. Minyard’s testimony, based on the contents of these reports, amounted to “double hearsay.” State v. Bray, 292 So.2d 697 (La.1974).

      .In his “answer to assignment of error number seven,” the trial judge stated:
      “ * * * Article 105 of the Code of Criminal Procedure provides that the coroner’s reports are admissible into evidence. Under Article 8-1 [sic], the coroner includes any deputies and assistants. Their findings are similarly admissible.”

      . State v. Launey, supra and State v. Hodgeson, supra, quoting Comment, Business Records in Louisiana as an Exception to the Hearsay Rule, 21 La.L.Rev. 449, 451 (1961), which cited McCormick, Evidence, 596-613, §§ 281-90 (1954); 5 Wigmore, Evidence, 374-94, §§ 1517-33 (3d ed. 1940).


author: SUMMERS, J.,

text:
    LOUISIANA CONSUMER’S LEAGUE, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 59819.
    Supreme Court of Louisiana.
    May 20, 1977.
   In re Louisiana Consumer’s League, Inc. applying for supervisory writs and a stay order.

Writ granted. As provisional relief, the Louisiana Public Service Commission is ordered to permit the relator, Louisiana Consumer’s League, Inc. to intervene in the pending rate proceeding. This case will be assigned for argument on this court’s docket without staying the hearing by the Louisiana Public Service Commission.

SUMMERS, J.,

is of the opinion a stay order should be issued and a writ should be granted to hear the issues presented by this application. The provisional relief granted by the court is neither authorized or permitted by any law. Such a procedure can only result in confusion and impairment of the rights of the parties involved.


text:
    J. George NOMEY et al. v. JACKSON PARISH POLICE JURY et al.
    No. 59730.
    Supreme Court of Louisiana.
    May 25, 1977.
   In re: J. George Nomey et al., applying for certiorari, or writ of review to the Court of Appeal, 345 So.2d 993, Second Circuit, Parish of Jackson.

Writ denied. The judgment of the court of appeal is correct.

DENNIS, J., is of the view the application presents sufficient legal question to require consideration of oral arguments and briefs by all parties.


author: TATE, J.,

text:
    In re Grand Jury Subpoena Duces Tecum for Bank Records of Joseph Neves MARCAL, III.
    No. 59893.
    Supreme Court of Louisiana.
    May 25, 1977.
   In re: Joseph Neves Marcal, III, applying for writs of certiorari, mandamus and prohibition.

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

SUMMERS and CALOGERO, JJ., are of the opinion the writ should be granted.

TATE, J.,

concurs.

While Article I, Section 5, La. Constitution requires probable cause for a search and seizure, a grand jury’s right to subpoena non-privileged testimony deemed relevant by it is not so limited.

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


text:
    STATE of Louisiana v. Lloyd L. GOINS, Jr.
    No. 59914.
    Supreme Court of Louisiana.
    May 25, 1977.
   In re: State of La. through the District Attorney, Harry F. Connick, Parish of Orleans, applying for writs of certiorari, mandamus and prohibition.

Writ denied: No abuse of discretion.

SUMMERS, J., is of the opinion the writ should be granted. The trial judge abused his discretion by ordering pre-trial production of an F.B.I. “rap sheet” contrary to decisions of this Court.


text:
    Fred WOMACK v. DAY SANITARY SERVICE, INC.
    No. 59760.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: Fred Womack applying for certio-rari, or writ of review, to the Court of Appeal, 343 So.2d 231, First Circuit, Parish of East Baton Rouge.

Not considered. Not timely filed.

TATE, J.,

concurring.

The U. S. postmark shows that the application was mailed on the day following expiration of the delay.


text:
    HOME FURNITURE AND APPLIANCE v. RED BALL MOTOR FREIGHT, INC.
    No. 59737.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: Red Ball Motor Freight, Inc., applying for certiorari, or writ of review, to the Court of Appeal, 343 So.2d 319, Second Circuit, Parish of Jackson.

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

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


text:
    George W. WYATT, d/b/a Wyatt’s Firestone Store v. RED BALL MOTOR FREIGHT, INC.
    No. 59738.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: Red Ball Motor Freight, Inc. applying for certiorari, or writ of review, to the Court of Appeal, 343 So.2d 324, Second Circuit, Parish of Jackson.

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

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


text:
    George W. WYATT, d/b/a Wyatt’s Firestone Store v. RED BALL MOTOR FREIGHT, INC.
    No. 59739.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: Red Ball Motor Freight, Inc. applying for certiorari, or writ of review, to the Court of Appeal, 343 So.2d 325, Second Circuit, Parish of Jackson.

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

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


text:
    Mrs. Roseline Duplantis LAPEYROUSE et al. v. Percy LECOMPTE, Horace Chauvin and Firemen’s Insurance Co. of Newark, New Jersey.
    No. 59741.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: Mrs. Roseline Duplantis Lapey-rouse et al. applying for certiorari, or writ of review, to the Court of Appeal, 343 So.2d 1117, First Circuit, Parish of Terrebonne.

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

DIXON, J., dissents, being of the opinion the driver of the left-turning car was negligent in turning left on the highway whether or not the fog obscured her vision.

CALOGERO, J., is of the opinion the writ should be granted. This guest passenger applicant is clearly entitled to recover from her host driver.


text:
    Dr. David A. SPRING v. STEVENS READY-MIX CONCRETE, INC.
    No. 59754.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: Stevens Ready Mix Concrete, Inc., applying for certiorari, or writ of review, to the Court of Appeal, 343 So.2d 256, First Circuit, Parish of East Baton Rouge.

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

DIXON, J., dissents from the denial.


text:
    STATE of Louisiana ex rel. Edward James ARMSTEAD, Jr. and Larry S. Perkins v. C. Paul PHELPS, Secretary and Ross D. Maggio, Jr., Warden, Louisiana State Penitentiary.
    No. 59773.
    Supreme Court of Louisiana.
    May 27, 1977.
   In re: Edward James Armstead, Jr. and Larry Steven Perkins applying for writ of certiorari, and/or mandamus and/or habeas corpus.

Application denied: Habeas corpus is not the proper remedy for this complaint.

DIXON and TATE, JJ., concurring in the denial, being of the opinion the administrative procedure act applies to the situation in this case, and appeals from final administrative decisions are governed by R.S. 49:964 (petition to be filed in district court, etc.)

SANDERS, C. J., also agrees with the concurring views of DIXON, J.

MARCUS, J., is of the opinion that the writ should be granted ordering an eviden-tiary hearing to determine the merit of relator’s assertions for habeas relief.

DENNIS, J., dissents from the denial of a writ. I have serious doubt that the administrative procedures act applies to prisoners asserting violations of constitutional rights. This ruling also may amount to an undue restriction upon the writ of habeas corpus in contravention of La.Const. art. I, Sec. 21 and art. V, Sec. 2. I would grant the writ and order an evidentiary hearing.


author: HALL, Judge.

text:
    Griffin E. VAUGHN, Plaintiff-Appellee, v. Mrs. Carrie DeMoss Williams, wife of/and Hayden WILLIAMS, Defendants-Appellants.
    No. 13224.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.
    Rehearing Denied May 23, 1977.

      Pugh & Nelson by Robert G. Pugh, Shreveport, for defendants-appellants.
    Gahagan & Gahagan by Russell E. Gaha-gan, Natchitoches, for plaintiff-appellee.
    Before BOLIN, HALL and MARVIN, JJ.
   HALL, Judge.

Statement of the Case

Plaintiff, Griffin E. Vaughn, sued to enjoin defendant, Carrie DeMoss Williams, and her husband from blocking an alleged public gravel road by placing a gate across the road. The road connects property which plaintiff leases and on which he resides with a blaektopped parish road. Defendants answered alleging the road is a private road. Defendants also filed an exception pleading the unconstitutionality of LSA-R.S. 48:491. After trial, the district court held the road to be public based on a 1934 dedication, work done on the road by the Police Jury from 1969 to 1975, and public use of the road. From a judgment declaring the road to be public, enjoining defendants from interfering with use of the road, and overruling the exception of unconstitutionality, defendants appeal. We affirm.

Specification of Errors

Defendants specify the district court erred:

(1) In finding that an authentic act of dedication in 1934 by the then owners of the property was intended to dedicate that portion of the road traversing the land owned by defendant.
(2) In holding that sufficient work had been done by the Police Jury for the road to become public under R.S. 48:491.
(3) In dismissing appellants’ exception challenging the constitutionality of 48:491 on the grounds that defendant’s property is being taken without due process of law and without just and adequate compensation.

Findings of Fact

(1) The following is a schematic drawing of the property and road in question:

(2) Plaintiff leased property in Section 33 from Walter DeMoss in 1969, for agricultural purposes and has resided on Paps Hill since 1973.

(3) The road in dispute runs from Paps Hill across property owned by DeMoss, Joan Yarbrough Gresham, Reimer Calhoun and defendant, Mrs. Carrie D. Williams, to Parish Road 608. The gate erected by defendant is at the intersection of the gravel road with Parish Road 608.

(4) There has been a road running easterly from Paps Hill across the S/2 of Sections 33 and 34 since at least 1917.

(5) This road was formally dedicated as a public road by instrument dated in 1934, executed by John C. Yarbrough and Mrs. Jimmie DeMoss King, mother and ancestor in title of Walter DeMoss and Carrie De-Moss Williams.

(6) The dedication described the eastern end of the road as running easterly across the DeMoss property to the Grand Bayou Road, which ran north-south along the east section lines of Sections 33 and 34, and which no longer exists.

(7) The extension of the road which runs southerly through the Carrie DeMoss Williams property in Section 3 to Parish Road No. 608 was built in 1937 along the course of an old wagon road, and has been in use since that time.

(8) The road from Paps Hill to Parish Road No. 608 has been maintained and kept up by the Red River Parish Police Jury to some extent, at least since 1969.

(9) The Police Jury has worked the road from one to three times a year since 1969. It has occasionally graded the road and occasionally placed gravel on the road. It ditched the road in 1975. At the time of trial, the road was well ditched and there was substantial gravel in the roadbed.

(10) Plaintiff and defendant have both done maintenance work on the road. Plaintiff has worked it about three times a year. Defendant has worked and put gravel on the part of the road between her home and Road 608.

(11) The road was open to and used by the public until the gate at the intersection of the road with Parish Road 608 was put up by defendant in late 1975.

(12) Defendant protested use of the road by the public at a Police Jury meeting in 1967. However, she thereafter made no further protests until erection of the gate. She saw the Police Jury grader working on the road on several occasions, knew the Jury placed gravel on the road, and expressly consented to some work done in 1969 and the ditching in 1975. She was aware of the road’s use by the public.

Specification of Error No. 1 — Formal Dedication

The 1934 act of dedication described the road as beginning at the west extreme of the DeMoss property in Section 33, running west and east through that property, continuing easterly through the Yarbrough property, and further continuing easterly through the DeMoss property to intersect the Grand Bayou Public Road.' The part of road in dispute runs virtually due south through defendant’s property and connects with Parish Road 608 rather than the Grand Bayou Road, which no longer exists.

It must be concluded that the act of dedication did not cover or include the southerly extension of the public road, which was built a few years later and apparently took the place of the easterly extension which led to the later abandoned Grand Bayou Road. The southerly extension in dispute is not a public road by virtue of the 1934 act of dedication.

Specification of Error No. 2 — Informal Dedication

The jurisprudence divides informal dedication into two categories: implied dedication and tacit dedication. Implied dedication, nonstatutory in nature, requires both the landowner’s intent to create a public road and the public’s acceptance of the landowner’s offer. Such intention to dedicate may be manifested by the actions of the landowner, while the acceptance by the public may be evidenced by public use.

Tacit dedication is founded upon statute and its existence is determined by application of LSA-R.S. 48:491, which provides in pertinent part:

“All roads . . . which have been or are hereafter kept up, maintained or worked for a period of three years by authority of any parish governing authority in its parish . . . shall be public roads . . . ”

An occasional “brushing up” or token maintenance of a private road does not establish a tacit dedication. Jackson v. Town of Logansport, 322 So.2d 281 (La.App.2d Cir. 1975), and authorities cited therein.

In Boynton v. Bertrand, 309 So.2d 769 (La.App.3d Cir. 1975), it was held that regular grading approximately three times a year and occasional cleaning of ditches by the Police Jury was more than token maintenance and was sufficient to constitute a tacit dedication under the statute, even though the property owners also participated in maintenance. In Latour v. Dupuis, 164 So.2d 620 (La.App.3d Cir. 1964), a tacit dedication was found where the Police Jury graded the road two or three times a year, put gravel on the road on one occasion, and trimmed trees in the ditches alongside the road. See also Foshee v. Longino, 236 So.2d 870 (La.App.3d Cir. 1970); Mouton v. Bourque, 253 So.2d 689 (La.App.3d Cir. 1971); and Police Jury, Parish of Catahoula v. Briggs, 291 So.2d 472 (La.App.3d Cir. 1974).

Tacit dedication does not result where active opposition is directly communicated by the landowner to the governing body. Town of Eunice v. Childs, 205 So.2d 897 (La.App.3d Cir. 1967), writ refused 251 La. 937, 207 So.2d 540 (1968). However, protests not made directly to the governing body or made after the road has been maintained by the governing body for three years do not prevent a tacit dedication under the statute. Wyatt v. Hagler, 238 La. 234, 114 So.2d 876 (1959); Winn Parish Po lice Jury v. Austin, 216 So.2d 166 (La.App.2d Cir. 1968).

The work done by the Police Jury in the instant case amounted to more than token maintenance. At least since 1969, and particularly since 1973, the Police Jury has worked on the road several times each year, grading, ditching and adding gravel. It is significant that the southerly part of the road crossing defendant’s property in Section 3 is a continuation of or extension of a dedicated public road, and that the road has been used by the public for many years. Although defendant asserted the private nature of the road at a Police Jury meeting in 1967, she thereafter consented to work done by the Jury in 1969 and 1975, and allowed other maintenance to be done without protest.

Our conclusion is that the trial court was correct in finding the road to be a public road by reason of maintenance by the Police Jury for more than three years. There was a tacit dedication under LSA-R.S. 48:491.

Specification of Error No. 3 — Constitutionality

Appellants contend LSA-R.S. 48:491 is unconstitutional in that it violates Article 1, Sections 2 and 4 of the Louisiana Constitution of 1974, which provides in part:

“Section 2. No person shall be deprived of life, liberty, or property, except by due process of law.”
“Section 4. Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.
“Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit. * * * ”

The statute, interpreted as applying only where the landowner has knowledge of and acquiesces in maintenance of a road by the public authority, and as not applying where the landowner opposes and protests such maintenance, does not offend the constitutional provisions. Knowledge, acquiescence, and usually acceptance of the benefits of public maintenance for a period of time under the statute amounts to a tacit dedication by the landowner — a giving by the landowner rather than a taking by the public authority. The landowner impliedly or tacitly gives his consent to the establishment of a public road. The statute establishing the public character of a road after maintenance by the governing authority for a period of three years, as interpreted, does not amount to a taking of private property without due process of law or without payment of just and adequate compensation.

The constitutionality of the statute is also supported by Article VI, Section 24 of the Louisiana Constitution of 1974 which provides:

“Section 24. The public, represented by local governmental subdivisions, may acquire servitudes of way by prescription in the manner prescribed by law.”

The acquisition of a servitude by the public under LSA-R.S. 48:491 is closely akin to prescription. Compare Frierson v. Police Jury of Caddo Parish, 160 La. 957, 107 So. 709 (1926); Goree v. Midstates Oil Corporation, 205 La. 988, 18 So.2d 591 (1944).

The district court correctly overruled defendants’ exception of unconstitutionality.

Decree

For the reasons assigned, the judgment of the district court is affirmed at appellant’s costs.

Affirmed.

      . The distinction between implied and tacit dedication is not clearly made in all of the reported cases. The terms are sometimes used interchangeably and some cases seem to consider tacit dedication as a form of implied dedication. See, for example, Wyatt v. Hagler, 238 La. 234, 114 So.2d 876 (1959).


author: LANDRY, Judge.

text:
    Yvonne Ward STOKES v. CONTINENTAL INSURANCE COMPANY and Stupp Corporation.
    No. 11255.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Arthur Cobb, Baton Rouge, of counsel, for plaintiff Yvonne Ward Stokes appellant.
    Peter T. Dazzio, Baton Rouge, of counsel, for defendant Continental Ins. Co. and Stupp Corp. appellee.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

Plaintiff (Appellant), whose left arm was seriously injured in the course of her employment as computer operator by defendant Stupp Corporation, appeals from judgment awarding her minimum workmen’s compensation for 200 weeks (for impairment of a physical function), and rejecting her demands for alleged total permanent disability benefits, penalties and attorney’s fees. We affirm.

This appeal presents two issues. First, whether Appellant is entitled to compensation benefits for total permanent disability. Second, whether Appellant is entitled to penalties and attorney’s fees because of defendants’ alleged arbitrary and capricious discontinuance of compensation payments.

The following pertinent facts are either stipulated or conclusively established in the record. Appellant was injured during the course and within the scope of her employment when she fell into a deep pit or hole while assisting in the taking of an inventory. As a computer operator, Appellant was paid a salary of $550.00 per month for a normal 40 hour work week, which amounted to a wage of $3.17 per hour. The accident occurred February 1, 1975. Appellant was paid compensation at the rate of $65.00 weekly until she resumed work for Stupp in mid-March, 1975. By the end of March, Appellant was working full time. Appellant continued to work for Stupp as a computer operator until May 27,1975, when she resigned, allegedly because while working, she was unable to perform hourly exercises recommended by her physician to strengthen her injured arm. On or about June 4, 1975, Appellant obtained employment as a secretary with another firm for whom she worked in this capacity until September 30, 1975. During this latter employment, Appellant earned more than she did while employed by Stupp. On September 30, 1975, Appellant underwent corrective surgery on her arm. At this time, defendants resumed compensation payments, which were still being paid at the time of trial on January 15, 1976. As of the date of trial, Appellant was paid $1,560.00 in compensation.

The trial court found that Appellant suffered a 13% permanent disability of the left arm. On this basis, he awarded Appellant minimum compensation of $17.50 weekly for 200 weeks, or a total of $3,500.00, from which he deducted compensation paid, and rendered judgment for Appellant in the sum of $1,940.00.

As computer operator, Appellant’s duties consisted primarily of operating an L-shaped console device from a seated position. With her right hand she operated a typewriter and a standard 10-key key pad, the precise nature of which is not clear from the record. With her left hand she dropped cards into the computer. She was also required to pull files and insert tapes into the computer. The position required a considerable degree of manual dexterity coordinated with thought processes.

On the day of the accident, Appellant was seen by Dr. Kenneth C. Cranor, who diagnosed Appellant’s injury as an open and comminuted fracture of the proximal portion of the left ulnar shaft, below but sufficiently near the elbow to affect that joint. Dr. Cranor inserted a plate, secured by four screws to stabilize the fracture, which proved to be slow in forming a union. Following this initial surgery, Dr. Cranor saw Appellant on numerous occasions. The fracture continued to knit slowly. Motion in Appellant’s arm was restricted to what Dr. Cranor considered an unsatisfactory degree, which caused Dr. Cranor to remove the plate on September 30, 1975, because he felt the plate was contributing to the restriction. At trial, Dr. Cranor noted that Appellant possessed complete pronation in her left hand, meaning she could turn her palm downward in a normal manner. He found, however, that Appellant has a complete lack of supination in her left hand, meaning she can turn her palm upward only to the neutral position, which is thumb pointing up. Dr. Cranor rated Appellant’s condition as a 13% permanent restriction of use of her left upper arm. He expressed the view that surgery could reduce this disability to a rating of 0 to 5% impairment. Dr. Cranor was of the opinion that Appellant could drop cards into a machine with her left hand, and that she could perform secretarial work and similar duties with some modification of movement.

Appellant testified she returned to work for Stupp due to economic pressure. She was given some help while on the job, but never could fully perform her duties. She left Stupp in May, 1975, because she could not take time out while working to perform hourly exercises recommended by Dr. Cra-nor to strengthen her arm. After leaving Stupp, she accepted a secretarial position because she needed the extra money. She stated she could perform secretarial duties with some inconvenience, and she could retain this other employment because she discontinued the recommended exercises when she realized they were not producing beneficial results. In essence, she stated she now lacks the manual dexterity required of a computer operator.

While employed by Stupp, Appellant’s immediate supervisor was Terrence W. Doud, Jr. Mr. Doud testified in effect that when Appellant returned to work following her injury, Appellant appeared to perform all the duties of a computer operator without difficulty. He noted no appreciable difference between her performance after the accident than before.

Howard J. LaBauve, Jr., Comptroller, Stupp Corporation, testified he was head of the department in which Appellant worked. He stated he had somewhat limited supervision of Appellant, but that he did frequently see her at work after the accident. He noted no difference in her working ability after the injury.

Whether an injured employee is totally and permanently disabled is a matter of fact.

Plaintiff in a suit for workmen’s compensation benefits bears the burden of proving the essential elements of his claim by a preponderance of evidence, the same as a plaintiff in any other civil action. Alfred v. Travelers Insurance Company, 322 So.2d 872 (La.App. 3rd Cir. 1975); Freeman v. Standard Materials, Inc., 246 So.2d 258 (La.App. 1st Cir. 1971).

The trial court resolved the disability issue in favor of defendants. It is well settled that the findings of a trial court on factual issues are entitled to great weight and are not to be disturbed except on a showing of manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973). We find no manifest error in this instance. On the contrary, we are in agreement with the conclusion of the trial court.

Concerning Appellant’s claim for penalties and attorney’s fees, we note that on April 14, 1975, Dr. Cranor issued a report narrating his treatment of Appellant’s injury and her progress as of that date. He was then of the view that Appellant might have some permanent restriction of motion in her left arm but that, nevertheless, she should be able to resume almost any type of employment in about 4 months. In a report dated May 26, 1975, Dr. Cranor indicated he felt Appellant’s condition was essentially the same, but that he was considering removing the plate in about 4 months, after further improvement in the fusion of the fracture. He again expressed the view that Appellant could then engage in secretarial and other similar duties, although some such activities might require modification of movement due to continued limitation of supination of Appellant’s left forearm. On July 15, 1975, Dr. Cranor rendered a report in which he noted continuation of the limitation of supination, and again indicated he felt it best to remove the plate as soon as fusion of the fracture allowed.

We find no error in the trial court’s denial of penalties and attorney’s fees, which can be awarded only when discontinuance of payments is found to be arbitrary, unreasonable or capricious. Appellant left her employment with Stupp and accepted similar work with another concern, where she remained employed until she was laid off due to a reduction in force. As of the date of Appellant’s second operation in September, 1975, Dr. Cranor’s reports contained no indication that Appellant was suffering from a 13% permanent restriction of movement of her left upper arm, or that Appellant was unable to resume her former employment. Conversely, the reports indicated that Appellant should be able to resume the duties of computer operator. It is significant that when Appellant underwent surgery for removal of the plate, defendants resumed compensation payments and continued to pay to the date of trial. In view of Dr. Cranor’s reports, which is all the medical evidence defendants had, and the fact that Appellant left Stupp for similar employment with another firm, we find that discontinuance of compensation payments was neither arbitrary, unreasonable nor capricious, as did the trial court.

The judgment is affirmed at Appellant’s cost.

AFFIRMED.


text:
    Dwight JEFFERSON et al. v. Lewis STEELE et al.
    No. 11282.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Orlando G. Bendana, New Orleans, for plaintiffs.
    John W. Anthony of Talley, Anthony, Hughes & Knight, Bogalusa, for defendants.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

This appeal concerns only the question of the amount of damages due for cervical and lumbosacral strain sustained by plaintiff (Appellant) in an automobile accident. Appellant was awarded $2,000.00 for pain and suffering and has appealed seeking an increase in the amount of his judgment. We affirm.

The accident occurred April 2, 1974. Appellant, guest passenger, was injured when his host’s vehicle was struck from the rear by an automobile being driven by defendant Steele. At the time of the accident, Appellant was a student in college. On the day of the accident, Appellant reported to a hospital where he was seen by Dr. Richard T. Hortman, General Surgeon.

Dr. Hortman testified that plaintiff complained of pain only in the neck area. Examination disclosed no objective symptoms of injury. He diagnosed Appellant’s condition as cervical strain and prescribed pain medicine and heat treatments to the affected area. On April 5, 1974, Appellant returned and upon Dr. Hortman noting that Appellant was holding himself rigid, Dr. Hortman did not examine Appellant, but referred Appellant to an orthopaedist. Dr. Hortman explained that in view of Appellant’s posture, he felt he could do nothing for Appellant. On April 26,1974, Appellant returned to Dr. Hortman, complaining of back pain and wearing a lumbar corset. Dr. Hortman prescribed pain medication and again referred Appellant to an ortho-paedist. Appellant was last seen by Dr. Hortman on October 19, 1974. Examination disclosed no objective symptoms and no limitation of back motion, despite Appellant’s complaint of low back pain. Dr. Hortman again suggested that Appellant consult an orthopaedist. In Dr. Hortman’s opinion, Appellant was suffering from mild back strain.

Appellant was seen by Dr. Roland Rocca, Orthopaedist, on April 18, 1974. Dr. Rocca noted complaints of pain in the lumbosacral area. Examination disclosed slight muscle spasm and some tenderness in the affected area. On May 4, 1974, Appellant returned with the same complaints, and Dr. Rocca prescribed a lumbar corset. Dr. Rocca saw Appellant again on May 24, 1974, at which time he found Appellant essentially the same. At one point in his deposition, Dr. Rocca testified that he considered Appellant to have sustained an acute ligamental injury to the lumbosacral spine. At another point, Dr. Rocca indicated he believed Appellant was suffering from muscle strain in the lumbosacral area. After Appellant’s first visit, it was Dr. Rocca’s opinion that Appellant should be fully recovered in about 8 weeks.

Dr. Daniel S. Sinclair, Orthopaedist, saw Appellant on July 12, 1974. Appellant related complaints of low back pain which Dr. Sinclair could not verify by any objective symptoms whatsoever. Dr. Sinclair found no limitation of motion and no muscle spasm. Dr. Sinclair suggested that Appellant attend a local health unit for a recommended course of progressive back exercises. Dr. Sinclair also recommended that Appellant return for further evaluation after three weeks, but Appellant did not return.

In essence, Appellant testified he has been troubled with his back continuously since the accident. He has worn the corset prescribed by Dr. Rocca, and continues to wear it when his back aches. He also stated his condition has limited his activities to a considerable degree.

Relying primarily upon Dr. Rocca’s diagnosis of acute ligamental injury, Appellant contends the award is inadequate, and should be increased to $6,000.00. It suffices to state that we deem the entirety of Dr. Rocca’s testimony indicates he did not consider Appellant to have been seriously injured, and that Appellant should have fully recovered in about 8 weeks of the accident. We believe this to be in accord with the other medical evidence which characterizes Appellant’s injuries as mild strain.

Appellant cites numerous cases in which considerably larger awards were made for what Appellant deems substantially similar injuries. Conversely, defendants cite several cases in which the same or smaller awards were granted for what defendants consider comparable injuries. No useful purpose would be served by a factual review of the cited authorities in view of the jurisprudence applicable herein. -

It is well settled that awards for damages for personal injuries lie within the sound discretion of the trial judge or jury. LSA-C.C. Article 1934(3); Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971).

An awarding damages for personal injuries, awards in other cases involving similar injuries serve only as an aid in determining whether the trial judge or jury abused its discretion in the assessment of damages. Awards for similar injuries are not intended to necessarily achieve rigid uniformity inasmuch as, although cases may be factually similar, no two cases are identical insofar as physical pain and suffering are concerned. Miller v. Thomas, above.

An award of damages for personal injuries may not be disturbed on appeal, except on a showing of an abuse of the much discretion vested in the trial judge or jury. Miller v. Thomas, above.

The judgment of the trial court is affirmed at Appellant’s cost.

AFFIRMED.


text:
    Cecilia E. HARRIS v. STATE FARM AUTOMOBILE INSURANCE CO. et al.
    No. 11439.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Morgan J. Goudeau, III, Opelousas, for appellant.
    Anthony J. Clesi, Jr., and Joseph F. Keogh, Baton Rouge, for appellees.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

State Farm Mutual Automobile Insurance Company and other defendants (Movants), have moved dismissal of the de-volutive appeal taken herein by Cecilia E. Harris (Appellant), for alleged failure of Appellant to timely appeal and file the required appeal bond. We grant the motion to dismiss and dismiss the appeal.

Appellant’s suit was dismissed by judgment of the trial court signed July 29,1976. On July 30, 1976, Appellant timely applied for a new trial. Judgment denying Appellant’s application for new trial was rendered November 15, 1976, and signed November 26, 1976. On February 11, 1977, Appellant moved for and was granted a devolutive appeal conditioned upon her furnishing bond in the amount of $600.00, which bond was posted that same day. Appellant did not make a written request for notice of rendition or signing of judgment disposing of her application for new trial.

The delay for applying for devolutive appeal and posting bond therefor is governed by LSA-C.C.P. Article 2087. Said Article was recently amended by Act 201 of 1976, which became effective October 1, 1976. As thus amended, Article 2087, above, states that except as otherwise provided by law, a devolutive appeal must be taken and security therefor furnished within sixty days of: (1) the expiration of the delay for applying for a new trial, if an application for new trial is not timely filed; (2) the court’s denial of a timely filed application for new trial; and (3) the date of mailing notice of refusal to grant a timely filed application for new trial when applicant is entitled to such notice pursuant to LSA-C. C.P. Article 1914. Notice of rendition of judgment denying an application for new trial is required only when written request is made for such notice. LSA-C.C.P. Article 1914.

Appellant’s application for new trial was timely in that it was filed within 7 days of signing of judgment. LSA-C.C.P. Article 1974. Because Appellant did not request in writing that she be notified of the judgment disposing of her application for a new trial, no notice of rendition or signing of said judgment was required. LSA-C.C.P. Article 1914. Consequently, the delay for taking a devolutive appeal herein commenced November 16, 1976, the day after rendition of judgment rejecting Appellant’s application for new trial. Article 1914, above. It follows that the sixty day delay period for taking and perfecting a devolu-tive appeal herein expired January 14,1977. Since Appellant did not appeal and post bond until February 11, 1977, the taking of this appeal and posting bond therefor are both untimely.

Failure to timely apply for a devolu-tive appeal necessitates dismissal of the appeal. LSA-C.C.P. Article 2087. Untimely posting of a devolutive appeal bond is fatal to an appeal. LSA-C.C.P. Article 2087; Safeco Insurance Company v. J. D. Blackwell, d/b/a Blackwell Body Shop, et al., 288 So.2d 85 (La.App. 1st Cir. 1973).

The appeal is dismissed at Appellant’s cost.

Appeal dismissed.


author: EDWARDS, Judge.

text:
    CITY OF HOUMA v. TERREBONNE PARISH POLICE JURY.
    No. 11235.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Eddie N. Pullaro, Houma, for plaintiff and appellee.
    Norval J. Rhodes, Dist. Atty., Kenneth Watkins, Houma, for defendant and appellant.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

The city of Houma, Louisiana, brought this suit against the Terrebonne Parish Police Jury seeking a declaratory judgment and injunctive relief concerning the question of whether or not the city may extend its gas utility lines outside its corporate limits without obtaining the consent of the Police Jury. The trial court rendered judgment in favor of the City of Houma declaring that the city could extend its gas utility lines beyond its corporate boundaries without the Police Jury’s permission, and enjoined the Police Jury from interfering with the city’s gas lines as extended. From this judgment, the Police Jury has appealed.

In its reasons for judgment the Trial Court set forth the following facts:

“For the record, the City of Houma is a municipal corporation organized and existing under the laws of the State of Louisiana, and the Terrebonne Parish Police Jury is a political subdivision of the State of Louisiana and is the governing body of Terrebonne Parish. Each public body engages in furnishing and supplying gas utility services to customers in Terre-bonne Parish.
“The facts which precipitated this controversy are as follows.
“Houma Home Builders, Inc. is the developer of a subdivision known as Summer-field Place Subdivision, Addendum Number Four (4), Terrebonne Parish, Louisiana, which subdivision is located in Terre-bonne Parish just outside the corporate limits of the City of Houma. The developer of the subdivision, desiring gas service, made a request of the City of Hou-ma for said service. The request for utility service to the subdivision was granted by the City on July 9, 1975. After payment of a construction charge or cost in the amount of $17,150.00, the City of Houma extended its gas service lines into the subdivision as requested by the developer, and the City did so without the consent or permission of the Police Jury. “Addendum Number Four (4) to Sum-merfield Place Subdivision is located a very short distance outside the corporate limits of the City of Houma, and is adjacent to a subdivision known as South-down West Subdivision. Southdown West is presently being served by gas utilities of said plaintiff municipality. Additionally, Addendum Number Four (4) to Summerfield Place is directly across the street and on the opposite side of the public highway known as St. Charles Avenue Extension, from a subdivision designated as Summerfield Place Subdivision, Addendum Number One (1), a subdivision also being served by plaintiff municipality with utility service. The City extended its gas lines into Addendum Number One (1) to Summerfield Place and Southdown West Subdivision without objection from and without having obtained the consent and permission of the Police Jury to do so.
“After installation of the utility service into Addendum Number Four (4) by the City of Houma, the developer then sought approval of the subdivision from the Police Jury, which approval is necessary in order for the developer to obtain Police Jury maintenance of the streets and drainage in said subdivision. At first the Police Jury refused to accept said subdivision on the basis that the City of Houma would be servicing gas customers in Addendum Number Four (4) to Summerfield Place Subdivision without having obtained permission and authority of the Police Jury to do so. Later, the subdivision was accepted and approved by the Jury. However, the Police Jury has taken the position that the City of Houma could not and cannot legally service Addendum Number Four (4) by extending its utility lines into said subdivision without the express consent of the Police Jury. As a result of this controversy, the City fears that the Police Jury will cut, tap, attach or in some other way connect its gas distributing system into the lines installed by the City in Addendum Number Four (4) to Summerfield Place. Accordingly, the City seeks a declaration of its legal rights and injunctive relief to prohibit the Police Jury from taking this type of injurious action, and a judicial determination of the validity of its actions in extending its gas utility lines into the subdivision.
“It is stipulated that the Police Jury had in the area or vicinity of the subdivision in question a gas line which could be used to service the resident customers in said subdivision, but the gas line is not now being used by the Police Jury to service any customer in that immediate area including adjacent subdivisions
“The legal question giving rise to this controversy involves three factual situations as follows:
(1) Can a municipality without the consent and permission of the police jury extend its utilities outside of its corporate boundaries into an area which is not now and has never been serviced by the facilities of the police jury ?
(2) Can a municipality without the consent and permission of the police jury extend its utilities outside of its corporate boundaries into an area which is not now being served by the police jury, but is an area where the policy jury has a gas line which could be used to service customers if the police jury desired to do so ?
(3) Can a municipality without the consent and permission of the police jury extend its utilities outside of its corporate boundaries into an area of the parish where the police jury has facilities and is operating and servicing the customers of that area, the city acting in competition with the enterprise being conducted by the police jury ?”

The trial court in rendering judgment for the City answered all three questions in the affirmative. We agree.

A city, such as the one in the instant ease, operating a gas utility system is granted express authority to extend the service, either within or without its corporate boundaries, by LSA-R.S. 33:1326, 33:4162, 33:4163 and 33:4281. These statutes provide in pertinent parts:

La.R.S. 33:1326: “Any parish or municipality operating a gas, water, or electric light or power system, sewerage plant, or transportation system, may extend such services to persons and business organizations located outside its territorial bounds, or to any other parish or municipality. Such extension shall be in accordance with the terms of service agreements entered into by the parish or municipality supplying the service and the persons, business organizations, parishes, or municipalities receiving the service.” (emphasis supplied).
La.R.S. 33:4162: “Any municipal corporation or any parish or any other political subdivision or taxing district authorized to issue bonds under Section 14 of Article 14 of the Constitution of Louisiana of 1921, may construct, acquire, extend or improve any revenue producing public utility and property necessary thereto, either within or without its boundaries, and may operate and maintain the utility in the interest of the public . . . (emphasis supplied)
La.R.S. 33:4163: “The municipal corporation, parish, political subdivision, or taxing district may sell and distribute the commodity or service of the public utility within or without its corporate limits and may establish rates, rules and regulations with respect to the sale and distribution.” (emphasis supplied)
La.R.S. 33:4281: “Any municipality having a population in excess of twenty-five thousand and less than two hundred fifty thousand owning and operating its electric power plant, waterworks, motor coach transportation, and sewerage system, may construct, maintain, extend, rehabilitate, enlarge or improve any municipally owned public utility either within or without its boundaries . . . ”
(emphasis supplied)

The broad right granted by the foregoing statutes is limited for the purposes of the instant case, only by LSA-R.S. 33:1328. There it is provided:

“No parish shall extend services into the bounds of another parish without the consent of such parish; and no city, town or village shall extend services into another city, town or village without the consent thereof.”

A careful reading of this and the previously quoted statutes leads to the unmistakable conclusion that the Police Jury’s permission is not a prerequisite to the extension by the City of its gas utility outside of its corporate boundaries. However, the Police Jury contends that LSA-R.S. 33:1326, providing that an extension of a utility be in accordance with a service agreement, should be interpreted to require its approval before the City extends its gas lines into the surrounding parish.

We find no support for the Police Jury’s position in LSA-R.S. 33:1326. The “service agreements” provided for by this provision are accords reached by the entity supplying the utility and the receiver of the utility service. The surrounding parish, into which the utility lines are extended, is not a necessary party to any such agreement.

Regarding the public policy argument put forth by the Police Jury, we adopt the views expressed by the trial judge:

“It may well be better public policy to limit the activity of a municipality since competition between public bodies in a situation of this kind perhaps may not be in the best interest of either public entity or the public who must ultimately suffer the consequences of any damage or loss which may occur. But public policy is not a matter which addresses itself to the court in a controversy of this kind. Rather, it is a matter to be resolved by the legislature of our state. The question of whether or not public bodies should compete or be allowed to compete against each other in utility service is a matter that addresses itself to the discretion of the legislature and not to the court. Apparently the legislature has not seen fit to restrict the activities of the municipality since the above cited statutory law satisfies this court that there is no such restriction against the city expanding its utility lines into the parish domain, and the city may do so without the consent or permission of the police jury.”

We do not reach the Police Jury’s contention regarding the illegality of the utility right of way since this issue was not raised in the trial court and is not properly before this Court.

For the reasons assigned the judgment of the trial court is affirmed. Appellant is liable only for those costs provided for by law.

AFFIRMED.


text:
    Norman Joseph BICKHAM et al. v. Herman BRUMFIELD et al.
    No. 11253.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      Charles M. Cassidy, of Watts & Cassidy, Franklinton, for plaintiffs.
    Delos R. Johnson, Jr., of Johnson & Kuhn, Franklinton, for defendants.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

Plaintiffs brought this suit to be recognized as the owners of an undivided one-fourth (Vi) interest in certain real estate. The trial court rendered judgment for plaintiffs and the defendants have appealed.

An examination of the record discloses the following facts.

The property in question, located in Washington Parish, Louisiana, was originally owned by Charley Bickham and Victoria Brumfield Bickham who had four (4) children: Alberta Bickham, Ophelia Bickham, Lucious Bickham and Angus Bickham.

Victoria Bickham died first, then Angus Bickham died survived by three children, who are the plaintiffs in this case; and then Charley Bickham died. The Successions of Charley and Victoria Bickham were opened on February 25,1944, and their three living children were placed in possession of the disputed property. The children of Angus Bickham, the pre-deceased child, were omitted from the succession.

On January 19,1945, the three children of Charley and Victoria Bickham sold the disputed property to William Brumfield, Sr., defendants’ ancestor. At the time of this sale, it was realized that the children of Angus had an interest in the property, as the following clause was included in the deed:

“Vendors further declared ... it has been made known that there are surviving children of a predeceased brother, Angus Bickham, and that said children of the said Angus Bickham, also own an interest in said property.”

Therefore Mr. Brumfield, the vendee, was clearly aware of the outstanding interest in the property.

On May 19, 1968, the succession of William Brumfield, Sr., was opened and his children, the defendants, were placed in possession of the disputed property. The property was subsequently partitioned among the defendants.

On January 19, 1973, plaintiffs instituted the present suit for recognition of their ownership of an undivided one-fourth interest in the disputed property. The Trial Court found that the plaintiffs were entitled to the Vith interest in the disputed property by way of representation of their deceased father, Angus.

The defendants have appealed contending that there has not been sufficient proof introduced to establish plaintiffs’ title to the property, and that the trial court erred in refusing their plea of acquisitive prescription.

LSA-C.C.P. art. 3653 provides in pertinent part;

“To obtain a judgment recognizing his ownership of the immovable property or real right, the plaintiff in a petitory action shall:
(1)Make out his title thereto, if the court finds that the defendant is in possession thereof . . . ”

In the instant case, the plaintiffs proved their “title” to the property through proof of their heritage.

Mrs. Ophelia Bickham Amacker, testified that Angus Bickham was her brother and that their parents were Charley and Victoria Bickham. Two of the defendants also testified that Angus Bickham was a child of Charley and Victoria Bickham. Additionally, plaintiffs introduced the application which Angus Bickham filed for a marriage license. There he clearly stated that he was the son of Charley and Victoria Bickham. We believe that this evidence is sufficient to prove that Angus Bickham was the child of Charley and Victoria Bickham.

In order to show that they are the children of Angus Bickham, plaintiffs introduced the marriage license issued to Angus Bickham and Florence Thomas, the birth certificate of one of the plaintiffs, Norman Joseph Bickham, and the testimony of Mrs. Ivy Bickham Christoph and Mrs. Ophelia Bickham Amacker.

The birth certificate of Norman Bickham, clearly states that his father was Angus Bickham. The birth certificates for the other two plaintiffs could not be located, but Mrs. Ivy Christoph testified that Angus Bickham was her father and that she is the sister of Norman Bickham and Roberta Bickham. Additionally Mrs. Ophelia Amacker, Angus’ sister, testified that the plaintiffs are known to her as children of Angus Bickham. We agree with the trial court that this evidence amply establishes that the plaintiffs are the children of Angus Bickham.

The trial court concluded that this was sufficient for the plaintiffs to establish their title to the disputed property. We agree.

Additionally, the defendants contend that the present action is defeated by either the ten-year acquisitive prescription or the thirty-year acquisitive prescription applicable to immovable property.

We find that the defendants cannot claim the ten-year acquisitive prescription since the deed whereby William Brumfield, Sr., purchased the property, and through which the defendants claim the property, contained a recognition and reservation of the interest of Angus Bickham in the property. This deed in no way attempted to transfer Angus Bickham’s interest in the property. Therefore, the defendants lack the essential elements of good faith and a title sufficient to transfer the property, necessary for the ten-year acquisitive prescription to apply. LSA-C.C. articles 3478 and 3479. Cf. Dinwiddie v. Cox, 9 So.2d 68 (La.App. 2nd Cir. 1942).

Also we find that the defendants have not fulfilled the requirements of the thirty-year acquisitive prescription since the present suit interrupted the running of prescription before the defendants had attained the necessary thirty years possession. LSA-C.C. art. 3499.

Therefore, we find that the trial court properly overruled defendants’ peremptory exception of prescription.

For the reasons assigned, the judgment of the trial court is affirmed at appellants cost.

AFFIRMED.

      . The defendants’ possession began in January 1945, when William Brumfield, Sr., acquired the property. This suit was filed on January 19, 1973. Consequently, prescription was interrupted before the defendants had had thirty years possession.