author: CALOGERO, Justice. DIXON, Justice SANDERS, Chief Justice

text:
    Mrs. Virginia West KARMGARD v. SOUTHLAND MORTGAGE AND TITLE COMPANY.
    No. 58177.
    Supreme Court of Louisiana.
    Jan. 24, 1977.

      C. Ellis Henican, Jr., Joseph P. Henican, III, Henican, James & Cleveland, New Orleans, for plaintiff-applicant.
    Franklin V. Endom, Jr., Polack, Rosenberg, Rittenberg & Endom, New Orleans, for defendant-respondent.
   CALOGERO, Justice.

Plaintiff Mrs. Virginia West Karmgard has been unsuccessful so far in her suit for the recovery of interest collected by the defendant lender, Southland Mortgage and Title Company, on the ground that the interest was subject to forfeiture because of usury. 331 So.2d 118 (La.App. 4th Cir. 1976). We granted writs to review the judgment of the Court of Appeal which affirmed the trial court’s dismissal of plaintiffs suit. 334 So.2d 220 (La.1976).

Defendant, Southland Mortgage and Title Company, advanced plaintiff Mrs. Karmgard $35,000 on October 31, 1972. She signed a promissory note, and, as security executed a collateral (second) mortgage on certain improved real property (a motel in New Orleans) and its movable contents. Her negotiable hand note provided for the payment of a principal sum of $41,300 with interest at the rate of eight percent per annum payable only after maturity and the following schedule of twelve consecutive monthly payments:

Installments l through 5 $ 700.00 each,
Installment 6 10, 200.00,
Installments 7 through 11 350. 00 each,
Installment 12 17, 850. 00.

The first installment came due on November 81, 1972.

Departing temporarily from the historical chronology, we note that the discounted or capitalized interest on the face of the note was exactly two percent per month on the anticipated unpaid principal balance. Two percent of $35,000 equals $700, and $700 was payable each of the first six months, with half of the principal ($17,500) due at month six along with the $700 interest payment for that month (the month six payment was an $18,200 balloon). For the seventh through twelfth months it was anticipated that a second $17,500 portion of the principal .would remain outstanding, so the note provided for six $350 monthly payments (each exactly two percent of $17,500), for months seven through twelve, the twelfth being coupled with the $17,500 remaining principal (that twelfth payment was an $18,200 balloon). A “Federal Disclosure Statement” relative to plaintiff’s loan reflects an annual percentage interest rate of 25.75%. The obvious reason why two percent per month on the unpaid principal balance is equivalent to a 25.75% annual percentage rate, rather than 24%, is the compounding effect of commencing payment one month after date of execution, rather than having the full principal and interest fall due at the end of the year.

Although she received no additional cash advance (or loan), plaintiff signed a second note dated October 31, 1973 for a principal sum of $43,400 with interest from maturity at eight percent per annum. This note provided for twelve consecutive monthly payments: eleven payments of $700 each and a final balloon payment of $43,400.

From date of execution of the first note until a final payout of the second note, Mrs. Karmgard made payments totaling $50,400. She brought this suit for the recovery of all interest paid, a total of $15,400, the sum she paid in excess of the $35,000 principal amount borrowed, alleging that because usurious interest was charged and collected, in violation of Louisiana Civil Code Article 2924, she is entitled to the recovery of all interest as provided in La.R.S. 9:3501.

The legal issues in this case revolve around the amount of interest charged and collected on the two notes (a total of $15,-400), whether all such interest was capitalized in the respective notes, and if not, whether interest collected, in addition to the capitalized interest, exceeded permissible nonusurious interest of eight percent per annum. Louisiana law permits recovery of discounted or capitalized interest, regardless of amount, included within the face amount of the note, provided such obligation shall not bear interest at more than eight percent per annum from maturity until paid. La.C.C. art. 2924; Thrift Funds of Baton Rouge, Inc. v. Jones, 274 So.2d 150 (La.1973).

The capitalized interest in note number one is simple to determine. It was $6,300, i. e., face amount of $41,300 less $35,000 advanced. The capitalized interest in note number two is not so simple to ascertain. The computation of that amount depends upon what principal amount was due at execution of the second note. If all payments prior to execution of the second note were credited to the face amount of the first note and the remaining balance (on that first face amount) constituted the consideration or fictional advance incident to the second note’s execution, then there would be no usury charged or collected incident to either note, regardless of what portion of the second note’s face amount may have constituted newly capitalized interest, and even, for instance, should that sum have exceeded the 25.75% per annum (or two percent per month) which was charged on the first note. On the other hand, if one or more of the payments prior to execution of the second note were credited to non-capitalized interest, it is likely that such interest charges were usurious.

Thus, determination of the capitalized interest (and, correspondingly, the balance due on the first note’s face amount) upon execution of the second note is important to the resolution of the case.

The Court of Appeal found that the trial court had erred in excluding evidence as to an oral modification at month six during the term of the first note. It had been alleged that defendant agreed not to call the note due upon non-payment óf the first balloon, but agreed instead to accept increased payments of interest during months seven through eleven, interest which had not been capitalized in the face amount of the note, and which, because it exceeded eight percent per annum, was purportedly usurious.

While we are able, in part at least, to resolve the case without relying upon parole evidence (as will be shown hereinafter) we do note that whether the evidence is properly directed toward an oral agreement relative to supplemental interest charges incident to payment extension (an agreement entered after signing of the note), or simply toward proof, absent agreement, tending to establish actual interest charges collected, parole evidence is admissible. It is, of course, true that conventional interest which cannot exceed eight percent must be fixed in writing, and that testimonial proof of the agreed-upon conventional interest at variance with that written expression is not admissible. La. C.C. art. 2924. However, this proscription does not bar proof, of whatever, character, tending to show historically just what occurred as to interest charge and collection.

Before recounting plaintiffs parole evidence, which incidentally the Court of Appeal found “unrealistic and impractical” and thus not borne out, we will recite herein the payment history relative to the payment of the two notes in question.

There is no essential inconsistency between plaintiffs exhibit number five, a payment history statement obtained from defendant’s collection agent Mr. Plaia before the litigation was instituted, and defendant’s answer to interrogatories. Taken together, these documents reveal the following:

FIRST note dated October 31, 1972
Payment # DUE DATE DATE PAID AMOUNT
1. November 30, 1972 December 5, 1972 $700.00
2. December 31, 1972 Ja.'.uary 7, 1973 $700.00
3. January 31, 1973 February 1, 1973 $700.00
4. February 2 8, 1973 March 2, 1973 $700.00
5. March 31, 1973 May 9, 1973 $700.00
6. April 30, 1973 May 9, 1973 $700.00
7. May 31, 1973 June 20, L973 $700.00
8. June 30, 1973 JuLy 20, 1973 $700. 00
9. July 31, 1973 August 17, 1973 $700. 00
10. August 31, 1973 September 20, 1973 $700.00
11. September 30, 1973 October 18, 1973 $700.00
12. October 31, 1973 November 20, 1973 $700.00
SECOND note dated October 3L, 1973
Payment # DUE DATE DATE PAID AMOUNT
1. ' November 30, 1973 December 18, 1973 $700.00
2. December 31, 1973 January 16, 1974 $700.00
3. January 3L, 1974 February 18, 1974 $700. 00
4. February 28, 1974 March 12, 1974 $700.00
5. March 31, 1974 April 19, 1974 $700.00
Payment # DUE DATE DATE PAID AMOUNT
6. April 30, 1974 May 27, 1974 $700. 00
7. May 31, 1974 June 19, 1974 $70 .00
8. June 30, 1974 July 3, 1974 $700. 00
9. July 31, 1974 August 14, 1974 $700. 00
L0. August 31, 1974 August 28, 1974 $35, 700
TOTAL $50,400

A study oí the foregoing schedule of payments and due dates indicates that over a twenty-two month period plaintiff had paid in full the principal sum she had borrowed, $35,000, as well as $15,400, an amount precisely equal to $700 (or two percent of $35,-000) for each of the twenty-two months she held defendant’s $35,000. She was, of course, late oh each of twenty-one $700 payments (anywhere from one to twenty-seven days on twenty of them, thirty-nine days on one of them) and two months, three days early on the $35,000 principal portion of the twenty-second and concluding payment.

What we are called upon to determine is whether the full $15,400 which she paid over and above the $35,000 borrowed (less any properly charged eight percent per an-num interest from maturity incident to the twenty-one late payments) was capitalized or discounted interest in the face amounts of the two notes.

Since we know that only $6,300 of capitalized interest was included in note number one, for defendant’s position to prevail we would have to find that $9,100 of capitalized interest was included in note number two. This would be possible only if at execution of the second note (face amount $43,400) the first note’s face amount balance would have been $34,300. According to the payment history reflected above, however, no less than eleven $700 payments had been made prior to October 31, 1974 (the date of the second note) which would have left a balance due of only $33,600. Thus, at least $700 of the $7700 paid by plaintiff prior to October 31, 1974 would have had to be noncapitalized interest, of which no more than $27.44 (see footnote 7) could possibly have been charged plaintiff as eight percent per annum interest on late payments.

It is thus evident, without relying on plaintiff’s testimony, that defendant collected usurious interest of not less than $672.56.

More realistic, however, and consistent with plaintiff’s testimony, is the fact that defendant simply charged plaintiff two percent per month on the unpaid principal for the full twenty-two months, a total of $15,-400 as earlier shown hereinabove. And this included two percent per month during months seven through twelve of the first note on the $17,500 first balloon which plaintiff was unable to pay at month six. This $2,100 of interest was not capitalized in note number one, yet it was collected and is usurious.

As we view the evidence, what happened was this. After making the first four payments and being late on payment number five, plaintiff told defendant’s agent of her difficulty and the likelihood of her being unable to meet the $17,500 balloon due at month six. Defendant agreed to accept full interest payments of $700 for months seven through twelve. Plaintiff thereupon (on May 9, 1973) made two $700 payments due respectively March 31 and April 30, 1973 (months five and six), and then made $700 interest payments each a few days late for months seven through eleven, the eleventh payment on October 18, 1973. The final payment, interest and balloon (originally $17,500 but as restructured $35,000) was due October 31,1973. Her late payment on each of the eleven earlier payments had been tolerated, so it was apparently not unexpected that she would go beyond October 31st, particularly inasmuch as her eleventh monthly payment, due September 30, had just been paid on October 18, 1973. She then negotiated execution of the second $35,000 note, made her twelfth $700 payment on note number one on the same date that she signed the new note, November 20, 1973. The note was prepared for October 31, 1973, the anniversary of, and due date of twelfth payment on, the first note.

Full $700 interest payments (two percent per month on $35,000) having been made over twelve months (on note number one), the new note face amount was for $43,400, comprising $35,000 principal and $8,400 interest (which covers the two percent per month, $700, for the twelve months during which the $35,000 on the second note was to remain unpaid). Defendant thereupon made nine $700 payments beginning December 18, 1973, as required by the second note, each less than a month late, and on August 28, 1974 paid $35,700 representing the $35,000 principal and the month ten $700 interest payment, due August 31,1974. Her payments on that second note come to $42,000 rather than $43,400, the $1,400 difference attributable to a two-month early payout of the $35,000.

We conclude that defendant collected usurious interest. We believe that it amounted to $2,100 and that it was two percent per month on the first note’s first $17,500 balloon during months seven through twelve, an interest sum which was not capitalized in the face amount of note number one.

With respect to the second note, at the time of its execution there was due and owing by plaintiff the full $35,000, all principal, which she had borrowed initially. She signed a note for $43,400 which we conclude incorporated the $35,000 principal due and $8,400 of capitalized interest (again two percent per month, $700, for each of twelve consecutive months). As we stated earlier, our law permits recovery of discounted or capitalized interest, regardless of amount, included within the face amount of the note. On that second note defendant collected only that which was legally due, and in fact properly afforded plaintiff a $1,400 interest rebate because the note was paid in full two months early.

Plaintiff’s contention that this second note itself reflects usurious interest because the schedule of payments, in sum (eleven payments at $700 plus one at $43,400), exceeds the face amount ($43,400) was properly found nonmeritorious by both lower courts. Those two courts reformed the amount of final payment from $43,400 to $35,700 on the basis of testimony from defendant’s agent that the final $43,400 payment was a stenographic error, in view of defendant’s having marked the account paid in full when plaintiff paid the final installment of $35,700, and in light of testimony of plaintiff herself that she believed the last payment was intended to be the amount which defendant in fact accepted when she tendered it, $35,700.

We agree with the findings below that there was no usurious interest charged or collected relative to note number two.

We have found that defendant collected $8,400 of interest on note number one, $2,100 of it usurious (because not capitalized and in excess of eight percent per annum), and $7,000 of interest on note number two, none of it usurious (because fully capitalized).

Defendant seeks recovery of the entire $15,400 on the strength of R.S. 9:3501. See note three. She is due recovery of the full $8,400 interest she paid on note number one, not simply the usurious portion of it. Thrift Funds of Baton Rouge, Inc. v. Jones, supra.

However, the interest as to note number two does not in our view arise from the same contract. See language in R.S. 9:3501, quoted in footnote three. While the second note immediately succeeded the first, and while the consideration for execution of the second note was a novation of the principal outstanding at conclusion of the first note, we believe that there were here separate and distinct contracts, certainly at least with respect to the capitalized interest charges on the second being untainted by the usurious interest charges collected on the first.

For the foregoing reasons the judgment of the Court of Appeal dismissing plaintiff’s suit is reversed and set aside, and there is rendered judgment herein in favor of plaintiff, Mrs. Virginia Karmgard and against defendant Southland Mortgage and Title Company, in the full sum of $8,400. Additionally, defendant must pay legal interest on each of the twelve $700 payments on the October 31, 1972 promissory note from the date of each payment until paid, and for all costs of these proceedings.

DIXON, J., assigns additional concurring reasons.

SUMMERS and MARCUS, JJ., dissent.

SANDERS, C. J., dissents with written reasons.

DIXON, Justice

(concurring).

While I do not disagree with the majority’s treatment of the parol evidence, for reasons expounded by the majority and supported in the record, even without relying on plaintiff’s parol evidence, defendant was shown to have collected usurious interest.

SANDERS, Chief Justice

(dissenting).

The defendant, Southland Mortgage and Title Company, advanced the plaintiff, Mrs. Karmgard, $35,000 on October 31,1972. As security, Mrs. Karmgard executed a collateral mortgage on certain real estate. Her negotiable hand note provided for the repayment of a principal sum of $41,300 with interest at a rate of 8% per annum from maturity until paid, and the following schedule of twelve consecutive monthly principal and interest payments:

Installments 1 through 5 - $700 each,
Installment 6 - $18,200,
Installments 7 through 11 - $350 each,
Installment 12 - $17,850.

The first installment became due on November 31, 1972.

Mrs. Karmgard paid the first four installments. However, she was unable to meet payments five and six. (Southland did not exercise its rights under the note’s acceleration clause.) The parties then re-negotiated and entered into an oral agreement which modified the terms of the original hand note.

Pursuant to this subsequent agreement, Mrs. Karmgard remitted $7,700 toward the installments, but at maturity was unable to pay the balance due. The note was refinanced. On October 31, 1973, Southland cancelled the 1972 promissory note, and Mrs. Karmgard executed a second note for the principal sum of $43,400 with interest from maturity until paid at 8% per annum. This note provided for twelve consecutive monthly interest and principal payments: eleven payments of $700 each and a final balloon payment of $43,400. Mrs. Karm-gard paid ten installments totaling $7,000 and a final payment of $35,700 prior to maturity. The defendant marked the note paid in full, thereby giving the plaintiff a $700 credit for early payment.

Mrs. Karmgard brought this suit for the recovery of usurious interest in the amount of $15,400, the sum paid in excess of $35,-000, the principal amount borrowed. She contends that both notes are usurious, in violation of Louisiana Civil Code Article 2924, and therefore, she is entitled to the recovery of the interest as provided in LSA-R.S. 9:3501.

The October 31, 1972 Note

Mrs. Karmgard offered evidence of a subsequent oral agreement which modified the original promissory note to support her allegation of usury. The trial court disallowed this evidence, but the Court of Appeal held it admissible.

Louisiana Civil Code Article 2924 states in pertinent part:

“The amount of the conventional interest cannot exceed eight percent. The same must be fixed in writing; testimonial proof if it is not admitted in any case.
“Provided however where usury is a defense to a suit on a promissory note or other contract of similar character, that it is permissible for the defendant to show said usury whether same was given by way of discount or otherwise, by any competent evidence.”

This article prohibits the admission of parole evidence to prove the amount of conventional interest. The exception in the article applies only when a defendant attempts to prove usury as a defense to a suit on a promissory note or other contract. Hence, the plaintiff here is subject to the general prohibition against parole evidence.

Moreover, under Article 2276 of the Louisiana Civil Code, this Court has held that parole evidence is inadmissible to prove a subsequent oral agreement modifying a written contract when the original contract is required to be in writing. Di Cristina v. Weiser, 215 La. 1115, 42 So.2d 868 (1949); Davidson v. Midstates Oil Corporation, 211 La. 882, 31 So.2d 7 (1947); Conklin v. Caffall, 189 La. 301, 179 So. 434 (1938); Salley v. Louviere, 183 La. 92, 162 So. 811 (1935). The 1972 promissory note is a negotiable instrument. Louisiana law requires all negotiable instruments to be in writing. See former LSA-R.S. 7:1; LSA-R.S. 10:3-104. Therefore the trial court properly excluded the parole evidence.

The Court of Appeal relied primarily on this Court’s decision in Converse v. Dicks, 173 La. 707, 138 So. 515 (1931), as authority for admitting the parole evidence.

There the holder sued the maker on two promissory notes, one for $6,500 and the other for $3,000. The $6,500 note was given in settlement of the balance due on six prior notes. The defendant pleaded lack of consideration as to the $6,500 note, payment in full as to the $3,000 note, and filed a reconventional demand alleging overpayment. The defendant introduced several checks into evidence to prove that he had not only paid the principal and interest on the six notes, but had also overpaid any money due. The plaintiff attempted to then prove by parole evidence that the payments made were only for interest, and therefore, the principal of the six notes served as consideration for the $6,500 note. The Court allowed the evidence, stating that “he [the plaintiff] had a right to establish the circumstances surrounding the payments.” At no time was the use of parole evidence to substantiate a claim of usury on the note sued upon at issue. Thus, the case is distinguishable.

In my opinion, this Court is restricted to a consideration of the original note, as written, to determine if the plaintiff’s usury claim has merit. The 1972 note provided for capitalized interest, or discount, in the amount of $6,300 and interest at the rate of 8% per annum from maturity until paid. Such a note is free of usurious interest. LSA-C.C. Art. 2924; Thrift Funds of Baton Rouge, Inc. v. Jones, La., 274 So.2d 150 (1973), U.S. cert. denied, 414 U.S. 820, 94 S.Ct. 115, 38 L.Ed.2d 53 (1973); International Harvester Credit Corp. v. McGill, La.App., 297 So.2d 272 (1974), writ denied, La., 300 So.2d 841 (1974).

The majority does not squarely confront the parole evidence rule. Instead, after making an ambiguous reference to Article 2924 of the Louisiana Civil Code, the majority proceeds to consider parole evidence. In so doing, the holding does violence to well-established principles of law.

The October 31, 1973 Note
The second promissory note provides in pertinent part:
“FOR VALUE RECEIVED, I, we, or either of us, in solido, promise to pay to the order of BEARER, the principal sum of Forty-Three Thousand Four Hundred and NO/100...($43,400.00) DOLLARS, with interest from Maturity until paid at the rate of Eight (8%) per centum per annum; interest and principal payable as follows, to-wit:
By 12 consecutive monthly payments— The first installment to begin one month after date as follows:
11 monthly payments of $700.00
12th monthly payment $43,400.00 interest and principal are payable at the place designated by the holder or holders hereof in lawful money of the United States of America.”

Mrs. Karmgard asserts that this note is usurious on its face.

A court may reform a contract to reflect the true intent of the parties when it contains a mutual error. Weber v. H. G. Hill Stores, Inc., 210 La. 977, 29 So.2d 33 (1946); Rougeau v. State Farm Mutual Automobile Insurance Co., La.App., 262 So.2d 803 (1972); Humble Oil and Refining Co. v. Chappuis, La.App., 239 So.2d 400 (1970).

I find that the lower courts properly reformed the amount of the final payment from $43,400 to $35,700. The last and final installment should not equal the entire face amount of the note. Obviously, it represents the balance due after subtracting the amount remitted ($7,000) and the amount rebated for early payment ($700) from the face value of the note ($43,400). The correct figure is $35,700. Further, an officer of the defendant corporation testified that the amount in the note was a stenographic error. The defendant’s ledger card indicated $35,700 as the balance and also reveals that the defendant marked the account paid in full when Mrs. Karmgard paid $35,700. The Notary Public who handled the cancellation of the note testified that an officer of Southland told him that $37,500 was the amount of the final installment. Moreover, Mrs. Karmgard testified that she believed the last payment to be $37,500. Thus the evidence fully supports the reformation of the promissory note to reflect the true intent of the parties.

As reformed, the 1973 note provided for $8,400 in capitalized interest and interest after maturity until paid, at the rate of 8% per annum. As Louisiana Civil Code Article 2924 authorizes such charges, the interest contained in this note is not usurious. Thrift Funds of Baton Rouge, Inc., v. Jones, supra; International Harvester Credit Corp. v. McGill, supra; Clasen v. Excel Finance Causeway, Inc., La.App., 170 So.2d 924 (1965), cert. denied, 247 La. 619, 172 So.2d 702 (1965).

For the reasons assigned, I respectfully dissent.

      . This statement was signed by Mrs. Karmgard and a copy was furnished her coincident with the execution of the original loan on October 31, 1972.

      . The disparity in this note between the face amount, $43,400, and the payment schedule, which, of course, exceeds $43,400, was made the subject of an allegation by plaintiff that this second note was usurious on its face. This allegation is considered later in this opinion.

      . Article 2924 of the Louisiana Civil Code provides for rates of legal and conventional interest and usury: “. . . The amount of the conventional interest cannot exceed eight percent. . . .”
      Louisiana Revised Statute 9:3501 provides for forfeiture of interest: “Any contract for the payment of interest in excess of that authorized by law shall result in the forfeiture of the entire interest so contracted.”

      . Louisiana Civil Code Article 2924 states in pertinent part:
      “, . . The amount of the conventional interest cannot exceed eight per cent. The same must be fixed in writing; testimonial proof of it is not admitted in any case.’’ (emphasis added)

      . The first column, payment number, has been supplied by this Court.

      . The DATE PAID column above is taken verbatim from the Answer to Interrogatories. In six instances (payments one, two, three and seven on note number one, and payments four and six on note number two); Exhibit P-5 reflects payment dates several days earlier than given in the Answer to Interrogatories. There is, however, a major discrepancy between the essentially-coinciding information furnished in P-5 and the Answer to Interrogatories on the one hand, and the two ledger cards introduced at trial by defendant’s agent, marked P-6 and P-6 (proffer), on the other. That major difference is that the agent’s ledger card reflects only one payment on May 9, 1973 for $700, rather than two, and two November 20, 1973 $700 payments (one each on the cards relative to the two notes), rather than one. It is evident to us that the payment information furnished plaintiff prior to suit, P-5, and that given by defendant’s attorney in Answer to Interrogatories prior to trial, is more accurate and trustworthy information. It was apparently the information on the two ledger cards mentioned which misled the Court of Appeal and the trial court in their respective computations and analyses. That information, pertinently, was that by the final due date on note number one, i. e., October 31, 1973, plaintiff had only made ten $700 payments for months one through four, and for months six through eleven. (In fact there were eleven payments before October 31,1973, not ten.)

      . Eight percent per annum from maturity applied to the twenty-one late monthly payments for the respective delays comes to only $52.64 by our computation, made up of $27.44 on the first twelve $700 payments, and $25.20 on the nine succeeding $700 payments.

      . Counsel for plaintiff in argument in the district court stated that the first note as drawn called for capitalized interest amounting to two percent per month. And neither he nor his client’s agent, Mr. Plaia, nor anyone else on behalf of defendant, testified that the discounted Interest on the second note had been increased from two percent per month, although they did take the position that the discounted interest on note number two was $9,100, which of course does come to more than two percent per month.

      . Plaintiff's testimony was that when defendant agreed to allow $700 interest payments in months six through eleven that he also agreed that she could pay the entire principal balance of $35,000 at any time and preclude the need for further monthly interest payments. Adding support to her contention is her undisputed testimony that six $350 post-dated checks intended for use as payment of months seven through eleven and given defendant's agent at the beginning of the note were returned to her and destroyed by her in the presence of the agent when he agreed to permit delay of the first balloon payment.

      .While this analysis of what occurred might seem a bit speculative on our part, there are, besides the logic of our analysis, two bits of evidence in the record which support it. One of the exhibits presented at trial by defendant’s agent (P 6) reflects a November 20, 1973 payment credited to the first note, last payment on which had been scheduled for October 31, 1973. Additionally, in answer to interrogatories defendant says the second note was signed on October 31, 1973 or “within two or three days thereafter to the best of defendant’s recollection of the matter.”

      . Defendant’s agent testified that plaintiff did indeed receive rebate of interest for early payment on the final balloon, although his testimony is less than clear as to the basis of the computation. The Federal Disclosure Statement alluded to hereinabove states that “if a contract is prepaid in full the borrower shall be rebated 90% of the unearned portion of the discount . . Plaintiff was thus due a rebate of not less than 90% of the unearned portion of the discount and she apparently was allowed a full 100% rebate of the unearned portion of discount attributable to the final two months of the note period.

      . Even without relying at all on parole evidence, it is nonetheless evident for the reasons we have recited earlier herein that no less than $672.56, which could not have been included as capitalized interest in either note number one or note number two, was collected (as interest) from plaintiff, and that such was collected during the existence of note number one.

      . Although Article 2924 was amended by Act 315 of 1970 and Act 454 of 1972, these acts made no change in the language quoted.


source: Caselaw Access Project

author: SUMMERS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Webster L. JAMERSON.
    No. 58484.
    Supreme Court of Louisiana.
    Jan. 24, 1977.

      James B. Gardner, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Stephen A. Glassell, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

In a bill of information filed February 9, 1976 the District Attorney of Caddo Parish charged that Webster L. Jamerson committed aggravated burglary on January 16, 1976, as set forth in Article 60 of the Criminal Code. The bill alleged that, with intent to commit a felony and theft therein, he made an unauthorized entry of an inhabited dwelling at 1246 Oakland Street, Shreveport, the residence of Betty Jean Gilbert, and while there armed himself with a dangerous weapon.

In a jury trial Jamerson was convicted as charged. Charged thereafter as a multiple offender, he was sentenced to eighteen years at hard labor.

On this appeal Jamerson contends there was no evidence to prove that he entered the Gilbert residence at 1246 Oakland Street, or that he armed himself with a rifle there or removed a rifle from that residence, facts bearing on essential elements of the crime and defendant’s guilt or innocence.

I.

Although assignments of error were filed in keeping with these contentions on appeal, no motion for a new trial was made in the trial court.

For errors to be included in the assignment of errors reviewable on appeal, the requisite procedures prescribed in Articles 841, 842, 844, 845, 851 and 859 of the Code of Criminal Procedure must have been followed. See Comments, La.Code Crim. Pro. art. 920.

In the context of this case, where the issue raised on appeal is the total lack of evidence of the crime charged or an essential element thereof, a motion for a new trial must be made setting forth the essential element or elements of the crime which are not supported by any evidence. La.Code Crim.Pro. arts. 851-58. When this is done a question of law is presented if there is no evidence of the crime or an essential element thereof. For our law does not permit a conviction when there is no evidence to prove the crime or an essential element thereof.

As a general rule, a motion for a new trial is unnecessary to present a ruling for appellate review which has been objected to in the trial court. However, the motion for a new trial, based upon a total lack of evidence of the crime or an element thereof, is provided to permit appellate review of that issue. Without a denial of such a motion there is no objection, ruling or other basis which would enable a trial judge to correct the defense complaint of no evidence by granting a new trial. In effect, without an erroneous ruling on the motion for a new trial, there is no error presenting a question of law on appeal. And it is fundamental that this Court’s jurisdiction on appeal is limited to questions of law. La.Const. art. 5, § 5(C) (1974); State v. Ackal, 290 So.2d 882 (La.1974); State v. Burgy, 320 So.2d 175 (La.1975); State v. Celestine, 320 So.2d 161 (La.1975). See also State v. Skelton, 340 So.2d 256 (La.1976). These are predicates to the granting of a motion for a new trial, which on appeal can only be granted on questions of law. La. Code Crim.Pro. art. 858. This Court will not indulge in the presumption that a motion for a new trial would have been denied by the trial judge.

While this Court may review errors discoverable by a mere inspection of the pleadings and proceedings, not ruled on in the trial court, the issue raised by these assignments does not fall into this category. La.Code Crim.Pro. art. 920(2) . The authority for reviewing errors patent on the face of the record does not apply to those errors requiring an “inspection of the evidence”. Ibid. In the case at bar an inspection of the evidence would be necessary to answer the defense contention.

This assignment is not properly presented.

II.

For the first time in brief, defense counsel claims error in the trial judge’s charge to the jury because the trial judge instructed that “the person in the unexplained possession of property recently stolen is the thief.” La.Rev.Stat. 15:432. Such a charge, the defense contends, is improper and reversible under the recent decision of this Court in State v. Searle, 339 So.2d 1194 (La.1976).

Aside from the fact that no contemporaneous objection was made to this portion of the charge, La.Code Crim.Pro. art. 841, the trial judge did not charge that one in the unexplained possession of recently burglarized property is presumed to be the burglar as the judge did in State v. Searle. The charge in the case at bar merely recited.the pertinent portion of Section 432 of Title 15 of the Revised Statutes defining legal presumptions, stating one such presumption to be that the person in the unexplained possession of stolen property is the thief.

Such an instruction is not contrary to this Court’s majority opinion in State v. Searle, as the defense contends. There the majority of this Court overruled State v. McQueen, 278 So.2d 114 (La.1973) a decision which had approved a jury charge in a burglary prosecution to the effect that a person in the unexplained possession of stolen property is presumed to be the burglar. The case did not hold that the person in the unexplained possession of stolen property could not be presumed to be the thief as Section 432 declares. Therefore, the defense contention that the charge in this case was erroneous is not well-founded.

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

DIXON, J., concurs.

      . La.Code Crim.Pro. art. 920(2)
      “The following matters and no others shall be considered on appeal:

      “(2) Any error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”


text:
    Robert SIMPSON et ux. v. KELLY SERVICES, INC.
    No. 59094.
    Supreme Court of Louisiana.
    Feb. 9, 1977.
   In re: Robert Simpson, et ux., applying for certiorari, or writ of review, to the Court of Appeal, 339 So.2d 490, Second Circuit, Parish of Caddo.

Writ denied. The judgment of the Court of Appeal is correct.

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

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


text:
    William M. BROYLES et al. v. BATON ROUGE MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD.
    No. 59130.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: William M. Broyles and Christopher R. Schroeder, applying for certiorari, or writ of review, to the Court of Appeal, 340 So.2d 349, First Circuit, Parish of East Baton Rouge.

Writ refused. No error of law.

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


text:
    Harris A. RESWEBER v. LIBERTY MUTUAL INSURANCE COMPANY.
    No. 58506.
    Supreme Court of Louisiana.
    Aug. 27, 1976.
   In re: Liberty Mutual Insurance Co. applying for writs of certiorari, mandamus, prohibition and review. 341 So.2d 556.

Writ denied. Finding no palpable error or irreparable injury, we will not exercise our supervisory jurisdiction.


text:
    STATE of Louisiana ex rel. Warren HARVEY v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 59103.
    Supreme Court of Louisiana.
    Feb. 9, 1977.
   In re: Warren Harvey applying for writ of habeas corpus.

Writ granted. Evidentiary hearing ordered on issues of (1) whether relator was charged with forgery and armed robbery and permitted to plead guilty to both with an understanding he would receive concurrent sentences of five years on each offense; and (2) if so, was there a breach of the plea bargain; and (3) if so, was a conviction resulting from the breached plea bargain used in the enhancement of penalty against the relator.


text:
    STATE of Louisiana v. Levi MARTIN.
    No. 59267.
    Supreme Court of Louisiana.
    Feb. 9, 1977.
   In re: Levi Martin applying for writs of certiorari, prohibition, mandamus and stay order.

Writ granted. The trial judge is ordered to grant defendant a continuance in either this case or in State v. Williams, La., 341 So.2d 1122, no later than 2:00 p. m. this date. Upon failure to do so within said time limit, it is ordered that the Levi Martin matter be continued.


text:
    STATE of Louisiana v. Frank WILLIAMS.
    No. 59268.
    Supreme Court of Louisiana.
    Feb. 9, 1977.
   In re: Frank Williams applying for writs of certiorari, prohibition, mandamus and stay order.

Writ granted. The trial judge is ordered to grant defendant a continuance in either this case or in State v. Martin, La., 341 So.2d 1122, no later than 2:00 p. m. this date. Upon failure to do so within said time limit, it is ordered that the Levi Martin matter be continued.


text:
    George RENAUDIN et al. v. ZAPATA DEVELOPMENT CORPORATION.
    No. 59081.
    Supreme Court of Louisiana.
    Feb. 9, 1977.
   In re: Zapata Development Corporation, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 339 So.2d 942.

Writ denied. Result is correct.


text:
    Edwin WERNER, Jr. v. PATRIOT GENERAL INSURANCE COMPANY and Ellau Sheppard.
    No. 59085.
    Supreme Court of Louisiana.
    Feb. 9, 1977.
   In re: Edwin Werner, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 339 So.2d 948.

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


text:
    Janice Lynn Houck MAYS v. PICO FINANCE COMPANY, INC.
    No. 59089.
    Supreme Court of Louisiana.
    Feb. 9, 1977.
   In re: Janice Mays, applying for certiora-ri, or writ of review, to the Court of Appeal, Second Circuit, Parish of Ouachita. 339 So.2d 382.

Writ denied. Under the facts found, no error of law.


text:
    Sidney E. COOK et al. v. The METROPOLITAN SHREVEPORT BOARD OF APPEALS et al.
    No. 59090.
    Supreme Court of Louisiana.
    Feb. 9, 1977.
   In re: Sidney Cook et al., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 339 So.2d 1225.

Application denied. No error of law in the judgment, of the Court of Appeal.


text:
    George TIMS et al. v. GOVERNMENT EMPLOYEES INSURANCE CO. et al.
    No. 59095.
    Supreme Court of Louisiana.
    Feb. 9, 1977.
   In re: United Pacific Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Bossier. 339 So.2d 508.

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


text:
    SOUTH CENTRAL BELL TELEPHONE COMPANY v. LOUISIANA PUBLIC SERVICE COMMISSION et al.
    No. 59096.
    Supreme Court of Louisiana.
    Feb. 9, 1977.
   In re: Louisiana Public Service Commission, applying for supervisory writ of review.

Writ refused. The service order has since been modified and application is moot.


text:
    Richard INZER et ux. v. Kelly Ray HOLLIS.
    No. 59097.
    Supreme Court of Louisiana.
    Feb. 9, 1977.
   In re: Richard Inzer applying for certio-rari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 339 So.2d 522.

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


text:
    Reginald D. WATSON v. HARTFORD ACCIDENT AND INDEMNITY CO. et al.
    No. 59098.
    Supreme Court of Louisiana.
    Feb. 9, 1977.
   In re: Reginald D. Watson applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Morehouse. 339 So.2d 480.

Writ denied. Under the facts found, we find no error of law in the court of appeal judgment.


text:
    STATE of Louisiana ex rel. Russell HOLLIES v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 59102.
    Supreme Court of Louisiana.
    Feb. 9, 1977.
   In re: Russell Hollies applying for writ of habeas corpus.

Writ denied. Ruling of the trial judge is correct.


text:
    Mrs. Mabel SKINNER v. MALLARD TRUCK LINES, INC., et al.
    No. 59107.
    Supreme Court of Louisiana.
    Feb. 9, 1977.
   In re: Mrs. Mabel Skinner, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 340 So.2d 872.

Writ denied. The result is correct.


text:
    Mabel SKINNER v. MALLARD TRUCK LINES, INC., et al.
    No. 59179.
    Supreme Court of Louisiana.
    Feb. 9, 1977.
   In re: Trinity Universal Insurance Company (Intervener) applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 340 So.2d 372.

Writ denied. The result is correct.


text:
    Mabel SKINNER v. MALLARD TRUCK LINES, INC., et al.
    No. 59180.
    Supreme Court of Louisiana.
    Feb. 9, 1977.
   In re: Trinity Universal Insurance Company applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 340 So.2d 372.

Writ denied. The result is correct.


text:
    Mrs. Jennie Ribaul MARTINEZ v. Humberto MARTINEZ, Jr.
    No. 59253.
    Supreme Court of Louisiana.
    Feb. 9, 1977.
   In re: Humberto Martinez, Jr. applying for writs of certiorari, mandamus and prohibition.

Writ denied. Considering the application and exhibits, we are of the opinion that the relator’s remedy is by appeal.


text:
    Ronald Thomas MONSOUR, Sr. v. Roxie Ann Louis MONSOUR.
    No. 59100.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: Roxie Ann Louis Monsour, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 339 So.2d 488.

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:
    ANDREW DEVELOPMENT CORPORATION et al. v. WEST ESPLANADE CORPORATION.
    No. 59125.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: Andrew Development Corporation, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 339 So.2d 962.

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:
    R. Randolph RICHMOND, Jr. v. ZAPATA DEVELOPMENT CORPORATION.
    No. 59127.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: R. Randolph Richmond, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 339 So.2d 939.

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:
    A. W. WILLIAMSON v. VILLAGE OF BASKIN et al.
    No. 59091.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: Village of Baskin, Hon. C. W. Looney, Sr., Robert Davis, W. L. Browder, John K. Zumbro and Herman Turbeville applying for Certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Franklin. 339 So.2d 474.

Writ denied. No error in the result.


text:
    STATE of Louisiana ex rel. Wilbert R. STEVENSON v. Robert T. FARR, Judge, and William Norris, Judge, 4th Judicial District, et al.
    No. 59101.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: Wilbert R. Stevenson applying for writ of mandamus and habeas corpus.

Writ denied. No merit in the application.


text:
    STATE of Louisiana ex rel. Donald BRIGGS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 59105.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: Donald Briggs applying for writ of habeas corpus.

Writ denied. The allegations of fact do not warrant the relief sought.


text:
    Jack D. BARNETT v. Margaret Dell Collins BARNETT.
    No. 59113.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: Jack D. Barnett applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Bossier. 339 So.2d 495.

Writ denied. There is no error of law in the judgment and opinion of the Court of Appeal.


text:
    Robert HENRY v. Michael SVEBEK.
    No. 59114.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: Robert Henry, applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides. 339 So.2d 895.

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


text:
    Succession of Marie Anselmus MAYEUX, and Malcolm A. Coco, et al. v. Armando FUOCO. Succession of Marie Sydonia MAYEUX, et al. v. Armando FUOCO.
    No. 59115.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: Armando Fuoco, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Avoyelles. 339 So.2d 1236; 339 So.2d 1247.

Writ denied. The result is correct.


text:
    Mrs. Doris STROTHER v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    No. 59119.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: Mrs. Doris Strother applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of West Baton Rouge. 340 So.2d 321.

Writ denied. On the facts found by the courts below, the result is correct.


text:
    Cylde BEL, Sr., Constable, First City Court v. Nat GROS, Clerk of Court, First City Court.
    No. 59120.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: Nat Gros applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 339 So.2d 964.

Writ denied. There is no error in the ruling of the court of appeal.


text:
    STATE of Louisiana v. Jerry GHORAM.
    No. 59124.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: Jerry Ghoram applying for writ of habeas corpus.

Writ denied. There is no merit to this application.


text:
    Karl ERMERT v. UNION LABOR LIFE INSURANCE CO.
    No. 59123.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: Karl Ermert applying for certiora-ri, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 339 So.2d 927.

Writ refused. No error of law.


text:
    RELIABLE CREDIT SERVICE, INC. v. Anthony C. BERNARD and Mrs. Rosemary L. Bernard.
    No. 59132.
    Supreme Court of Louisiana
    Feb. 11, 1977.
   In re: Anthony C. Bernard and Mrs. Rosemary L. Bernard applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 339 S.2d 952.

Writ denied. No application for rehearing having been made by this applicant, no writ for certiorari can be issued.


text:
    Succession of Marie Sydonia MAYEUX et al. v. Armando FUOCO.
    No. 59134.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: Armando Fuoco, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Avoyelles. 339 So.2d 1236; 339 So.2d 1247.

Writ denied. The result is correct.


text:
    Palace Mae Guilfou BLANCHARD, Individually and as the Natural Tutrix of Joseph Carroll Blanchard, et al. v. Paul RODRIGUE et al.
    No. 59136.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: Interstate Fire and Casualty Company applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Ascension. 340 So.2d 1001.

Writ denied: No error of law.


text:
    Nolton LEDOUX, Individually and as Administrator of the Estate of his minor child, Frances Ledoux v. SOUTHERN FARM BUREAU CASUALTY INSURANCE CO. et al.
    No. 59137.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: Ronald Dale Thibodeaux and Lela Thibodeaux Manuel applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry. 339 So.2d 966.

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


text:
    Palace Mae Guilfou BLANCHARD, Individually, etc., et al. v. Paul RODRIGUE et al.
    No. 59181.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: General Accident Fire & Life Assurance Corp., Ltd. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Ascension. 340 So.2d 1001.

Writ denied. No error of law.


text:
    Palace Mae Guilfou BLANCHARD, Individually, etc., et al. v. Paul RODRIGUE et al.
    No. 59186.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: Bituminous Casualty Corporation applying for certiorari or writ of review, to the Court of Appeal, First Circuit, Parish of Ascension. 340 So.2d 1001.

Writ denied: No error of law.


text:
    Kenneth AUBERT et al. v. CHARITY HOSPITAL OF LA. et al.
    No. 59278.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: Charity Hospital of Louisiana, applying for writ of certiorari.

Writ denied. Adequate remedy by appeal.


text:
    J. W. JONES v. Robert R. LaBARBERA and Caddo Parish Democratic Executive Committee.
    No. 59294.
    Supreme Court of Louisiana.
    Feb. 14, 1977.
   In re: Robert R. LaBarbera applying for writ of certiorari or review.

Writ denied. Based upon the stipulation of facts and allegations in relator’s application, the result is correct.


text:
    STATE of Louisiana ex rel. Michael MILLER v. Ross MAGGIO, Jr., Warden.
    No. 59145.
    Supreme Court of Louisiana.
    Feb. 16, 1977.
   In re: Michael Miller applying for habeas corpus.

Granted. The trial judge is ordered to grant an out of time appeal.


text:
    STATE of Louisiana v. Roy J. NEAL.
    No. 59153.
    Supreme Court of Louisiana.
    Feb. 16, 1977.
   In re: Roy J. Neal applying for writ of certiorari, prohibition and mandamus.

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 Ashby W. Pettigrew, Jr., Judge of the 32nd Judicial District Court for the Parish of Terre-bonne, to transmit to the Supreme Court of Louisiana, on or before the 1st day of March, 1977, 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 20th day of May, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Roma Gail STELLY v. Richard Keith MONTGOMERY.
    No. 59162.
    Supreme Court of Louisiana.
    Feb. 16, 1977.
   In re: Roma Gail Stelly, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry. 339 So.2d 956.

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 ex rel. Sam BUIE v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56726.
    Supreme Court of Louisiana.
    Feb. 16, 1977.
   In re: Sam Buie applying for writ of certiorari and habeas corpus.

Writ denied. On the showing made there is no error in the trial court judgment.


text:
    E. J. DUGAS v. William A. SUMMER, III and Caliste Beard, Jr.
    No. 59141.
    Supreme Court of Louisiana.
    Feb. 16, 1977.
   In re: E. J. Dugas applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 339 So.2d 934.

Writ denied. No error of law.


text:
    STATE of Louisiana ex rel. Joel MORRISON v. C. Paul PHELPS, Secretary, Dept. of Corrections.
    No. 59147.
    Supreme Court of Louisiana.
    Feb. 16, 1977.
   In re: Joel Morrison applying for writs of habeas corpus, mandamus, certiorari.

Application denied. There is no error of law in the ruling complained of.


text:
    John H. ARTIGUE v. LOUISIANA FARM BUREAU MUTUAL INSURANCE CO.
    No. 59152.
    Supreme Court of Louisiana.
    Feb. 16, 1977.
   In re: Louisiana Farm Bureau Mutual Insurance Company applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette. 339 So.2d 880.

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


text:
    Willie PALMER et ux. v. Shirley Jarvis, wife of/and Frank JARVIS et al.
    No. 59157.
    Supreme Court of Louisiana.
    Feb. 16, 1977.
   In re: Willie Palmer and his wife, Mrs. Fannie Palmer applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 340 So.2d 356.

Writ denied. On facts found by the courts below, the result is correct.


text:
    STATE of Louisiana v. James Rodney HORTMAN.
    No. 59159.
    Supreme Court of Louisiana.
    Feb. 16, 1977.
   In re: James Rodney Hortman, applying for writs of review.

Writ denied. Applicant has adequate remedy by review in the event of conviction.


text:
    A. J. THIBODEAUX v. Eugene D. LANIER, d/b/a Acadian Toyota and Gulf States Toyota, Inc.
    No. 59164.
    Supreme Court of Louisiana.
    Feb. 16, 1977.
   In re: A. J. Thibodeaux applying for writs of certiorari, mandamus prohibition and/or review.

Application denied. No error of law in the ruling complained of.


text:
    STATE of Louisiana v. Michael BICKHAM.
    No. 59310.
    Supreme Court of Louisiana.
    Feb. 16, 1977.
   In re: State of Louisiana through Leon A. Picou, Jr., District Attorney applying for writs of certiorari, mandamus and prohibition.

Writ denied. Since the defendant has pleaded guilty and been sentenced, the application is moot.


text:
    Sylvester WATSON v. J. L. MORRISON et al. Acey L. ALLEN et al. v. Sylvester WATSON et al. J. L. MORRISON v. DEPT. OF HIGHWAYS of the State of Louisiana et al.
    No. 59155.
    Supreme Court of Louisiana.
    Feb. 16, 1977.
   In re: Acey L. Allen, Individually, et al. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa. 340 So.2d 588.

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


text:
    Sylvester WATSON v. J. L. MORRISON et al. Acey L. ALLEN et al. v. Sylvester WATSON et al. J. L. MORRISON v. DEPARTMENT OF HIGHWAYS of the State of Louisiana.
    No. 59194.
    Supreme Court of Louisiana.
    Feb. 16, 1977.
   In re: Sylvester Watson, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa. 340 So.2d 588.

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


text:
    Sylvester WATSON v. J. L. MORRISON et al. Acey ALLEN et al. v. Sylvester WATSON et al. J. L. MORRISON et al. v. DEPARTMENT OF HIGHWAYS et al.
    No. 59172.
    Supreme Court of Louisiana.
    Feb. 16, 1977.
   In re: State of Louisiana, Department of Highways applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa. 340 So.2d 588.

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


author: LANDRY, Judge.

text:
    Sharon MORAN v. Frank L. THORNTON et al.
    No. 10953.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Henry L. Klein, New Orleans, Hugh C. Uhalt, New Orleans, for defendant Sharon Moran, appellant.
    David W. Robinson, Baton Rouge, for defendants G.E.I.C.O., appellants.
    Robert F. Kennon and John S. White, Jr., Baton Rouge, for plaintiffs Frank Thornton, and others, appellees.
    James E. Moore, Baton Rouge, for defendant Price A.K., Inc., appellee.
    Dermot S. McGlinchey and Frederick B. Alexius, New Orleans, for defendant Chrysler Corp., appellee.
    Paul H. Due and Richard J. Dodson, Baton Rouge, for Government Employees Ins. Co., appellant.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Defendants-Appellants Frank L. Thornton and Government Employees Insurance Company (Movers) have moved to supplement the record in this matter by the inclusion therein of certain requested jury instructions and entreated jury interrogatories together with an allegedly filed, but misplaced, pre-trial order agreement. We grant the motion to supplement.

In essence Movers aver the requested jury instructions, jury interrogatories and pre-trial order agreement were all filed with the trial judge during the course of trial, but were inadvertently omitted from the record prepared by the trial court clerk for submission to this court on appeal.

Only one adverse party, namely, defendant-appellee Price A.K. (respondent) has appeared in response to Movers’ motion to supplement. Said Respondent in effect concedes the proposed supplemental materials and items were all probably entered of record during the course of the trial, and offered no opposition to their requested inclusion in the record on appeal, based on procedural grounds.

La.Code of Civ.Pro.Art. 2132 pertinently provides:

“Art. 2132. A record on appeal which is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court. All other questions as to the content and form of the record shall be presented to the appellate court.”

We deem the absence of procedural objection to subject motion tantamount to a stipulation by the parties within the purview of Article 2132, above.

It appears the requested jury instructions in question, were not given by the trial court precisely as suggested, but were either denied or incorporated in the general instruction given by the trial court. For purposes of this motion, we assume Movers will argue on appeal that the trial court erred in failing to give the jury instructions exactly as requested and also erred in failing to require the jury to answer specifically each requested interrogatory.

Appearer’s concession that the omitted material was in fact introduced in evidence, is qualified only to the extent that Appearer does not hereby agree, suggest or infer, in any manner whatsoever, that the requested instructions should have been given or the requested jury interrogatories required specific answer. We are in total agreement with Appearer’s reservation and do not construe Appearer’s acquiescence in subject motion to constitute an admission of any position or result which may be urged by Movers predicated upon the ordered addenda.

It is ordered, adjudged and decreed that the record in this case be supplemented by inclusion therein of the requested material attached to Movers’ motion filed in this court on June 16, 1976.


author: SARTAIN, Judge.

text:
    Frank L. THORNTON et al., Plaintiffs-Appellees, v. Sharon MORAN et al., Defendants-Appellants. Sharon MORAN, Plaintiff-Appellee, v. Frank L. THORNTON et al., Defendants-Appellants.
    Nos. 10952, 10953.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writs Granted March 31, 1976.

      Arthur H. Andrews and James E. Moore, Baton Rouge, of counsel for Price A. K., Inc.
    Dermot S. McGlinchey and Frederick Alexius, New Orleans, of counsel for Chrysler Corp.
    Henry L. Klein, Hugh C. Uhalt, New Orleans, of counsel for Sharon Moran.
    David W. Robinson, Michael C. Palmintier, Paul H. Due and Richard Dodson, Baton Rouge, for G. E. I. C.
    Robert F. Kennon and John S. White, Baton Rouge, of counsel for Frank Thornton et al.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

The accident giving rise to these suits occurred at approximately 5:20 p. m. on the Airline Highway near Gonzales, Ascension Parish, Louisiana, when a 1966 Volkswagen ran into the rear of a 1972 Chrysler automobile. The Volkswagen was owned and operated by Sharon Moran. The Chrysler automobile was owned and operated by Frank L. Thornton. Mrs. Thornton was a guest passenger in the vehicle operated by her husband.

Mr. and Mrs. Thornton filed suit against Sharon Moran (who was uninsured); their liability insurer, Government Employees Insurance Company (GEIC) under the uninsured motorist provisions of their policy; Price-A.K., Inc.; and Chrysler Corporation. The suit against Miss Moran is grounded on specified acts of negligence. The charges against Price-A.K., Inc. and Chrysler Corporation are based on negligence and breach of warranty. Miss Moran filed a general denial and a reconventional demand, adopting by reference allegations contained in her suit, below. GEIC filed an answer in the nature of a general denial, admitted UM coverage, but alleged that the accident was the result of a malfunction in the Chrysler vehicle and asserted a third party demand against Price-A.K., Inc. and Chrysler Corporation. These latter two defendants filed general denials and set forth the claim that the accident was the sole result of the negligence of Thornton. This suit bears No. 164,596 on the docket of the district court and will be hereinafter referred to as the Thornton Suit.

Miss Moran’s suit is against Frank L. Thornton; his liability insurer, GEIC; Price-A.K., Inc.; its liability insurer, United States Fire Insurance Company; and Chrysler Corporation. Thornton and GEIC filed general denials and third party claims against Price-A.K. and Chrysler Corporation on identical grounds to those set forth in the Thornton Suit, above. In her petition, Miss Moran asked for trial by jury. Her suit bears No. 172,065 on the docket of the district court and will be hereinafter referred to as the Moran Suit.

These two suits were consolidated for trial. The Thornton Suit was tried to the judge. The Moran Suit was tried to the jury. It was stipulated that the third party demands in the Moran Suit would also be tried to the judge.

In the Thornton Suit the trial judge, for written reasons assigned, found that Mr. Thornton was negligent but that Miss Moran had the last clear chance to avoid the accident. The judge a quo also found in favor of the defendants, Price-A.K., Inc. and Chrysler Corporation, and dismissed all third party demands. Accordingly, judgment was rendered and signed in favor of Mr. Thornton and against Sharon Moran and GEIC, in solido, in the sum of $750.00 for personal injuries, and against Sharon Moran, individually, in the sum of $1,993.50 for special damages. Judgment was rendered in favor of Mrs. Thornton for personal injuries in the amount of $7500.00 against Sharon Moran and GEIC limiting the latter’s liability to $5,000.00, the amount of its UM coverage. Judgment was further rendered in favor of GEIC against Sharon Moran in the sum of $5,750.00, representing the awards to Mr. and Mrs. Thornton for their respective personal injuries. GEIC was further awarded judgment in the amount of $1,491.14, against Mr. Thornton, but payable out of the $1,993.50 awarded to the latter.

In the Moran Suit, the jury reached the opposite result with respect to negligence on the part of Miss Moran. It, like the trial judge, found Mr. Thornton to be negligent; but unlike the trial judge, it found Miss Moran to be free of negligence. It entered a general verdict in her favor for general damages in the amount of $90,000.00. The jury also found that Price-A.K., Inc. and Chrysler Corporation were not negligent. In conformity with these findings judgment was signed in her favor against Frank L. Thornton and GEIC, in solido, in the amount of $90,000.00 together with legal interest thereon from date of judicial demand until paid, but limiting GEIC’s liability to $50,000.00, the amount of its policy limits and interest on the excess from date of judgment until paid, and for all costs.

In both suits all defendants cast have appealed. In addition, Mr. and Mrs. Thornton have answered the appeal in their suit seeking an increase in the amounts awarded to them for personal injuries, the stacking of uninsured motorist protection of the GEIC policy as to Mrs. Thornton’s award, and for the modification of the interest due on the amount awarded Miss Moran in the event that the same is affirmed or amended if the same is in excess of their policy limits.

We now turn to the facts in the case and quote the testimony considered relevant as set forth by the trial judge in his written reasons for judgment: viz.

“Frank L. Thornton:

He purchased a Chrysler automobile from Price-A.K., Inc., on August 8, 1972 after driving it; he went back on the 9th to pick up the automobile. He checked all the lights, turn signals and blinkers; then he started the automobile, drove it to a gas pump and started it again after it was filled with gasoline. He drove it to the edge of the highway, stopped, looked both ways, saw nothing coming, and then drove across the two Gonzales bound lanes and the neutral ground, turned toward Baton Rouge and had got straightened out when the engine died, bringing him to a stop about fifty feet from the neutral ground he had just traversed. He put the automatic transmission into neutral and tried to restart the engine while his wife turned on the caution blinkers. He had put on the lights prior to driving off. He estimates that he had been stopped thirty seconds before he was struck in the rear by Miss Moran’s vehicle, which he never saw prior to the impact. He heard no horn or squealing of brakes nor had any other warning of the impending accident. He never looked back either directly or through his mirrors, his attention being directed to restarting of the vehicle. He had reached a maximum speed of fifteen miles per hour prior to the stalling. He estimates the distance between the point of impact and the final resting place of his car to be 165 feet.

Mrs. Myrtis Thornton:

She was a passenger in the automobile both when the car was test driven on August 8,1972, and on the day of the accident. The car’s lights were put on prior to driving away from Price-A.K., Inc. Her husband stopped before entering the highway; both he and she looked for traffic. She saw none approaching. Her husband drove across the southbound lanes and the neutral ground and turned left toward Baton Rouge in the left lane, never attaining any fast rate of speed. The car stopped and her husband said, ‘It stopped.’ She turned on the caution flashers because she saw the button. He kept trying to start the car; she could hear it turning over. She agrees with the estimate of thirty seconds between the stopping and the impact.

Sharon Moran:

She left her mother’s home in Gonzales about 5:00 or 5:15 P.M. and was driving a 1966 Volkswagen station wagon toward Baton Rouge at about fifty-five miles per hour in the left lane. She saw the Thornton vehicle crossing the southbound lanes and entering the neutral ground. She assumed he would stop but ‘let up’ on the accelerator ‘just for caution.’ However, Thornton just kept coming on out in front of her. She had time to apply the brakes but the impact occurred right after she slammed on the brakes. She was conscious of traffic to her right; so, just after the rear end of the Thornton vehicle cleared the neutral ground she veered to the left toward the neutral ground. The Thornton car was not stopped, ‘not to my knowledge.’ She saw no car lights or blinkers on. Just as he got straightened out from the neutral ground, T hit him.’ The accident occurred at sundown, ‘in the process of going down.’ She was facing the sun. She admitted that in her deposition taken previously she had stated she saw the Thornton car while a couple of blocks or a quarter of a mile away, ‘far enough away to be conscious of the situation,’ and that the Thornton car stopped in the neutral ground but now she thinks he did not stop. She doesn’t think she lost any speed, or at least very much, by taking her foot from the accelerator. After she resumed her speed the Thornton car just travelled through the neutral ground and out into the highway. She started applying the brakes before Thornton got into her lane.

Stanley Frederic:

He was approaching the Toyota building from Baton Rouge, intending to turn right. He saw the Chrysler come out. After looking to the right he looked back and saw the Chrysler hit, even though he never saw the Volkswagen. The Chrysler was just straightened out in the highway and he did not see the Chrysler stall. It was just a matter of seconds between the Chrysler entering the Baton Rouge bound lanes and the impact. He saw no lights at all. He remembers the weather as misting and the time as dusk.

Russell Sentilles:

An employee of Price-A.K., Inc., on the day of the accident, he wasn’t aware of any allegation that the engine had died until a week or ten days after the accident. The wrecked Chrysler was taken in trade on another vehicle, was repaired and used as a demonstrator. The repairs consisted of body repairs, but no mechanical work or adjustments.

Benny Drago:

He was in charge of new car preparation in the service department on the day of the accident. He test drove the vehicle on that day and found nothing wrong. He was not aware of any mechanical repairs made on the wrecked vehicle which was used several months as a demonstrator after body repairs were made.

Donald E. Balhoff:

He is the present operator of the 1972 Chrysler which was purchased about April, 1973. He has had only one instance of the car stalling, about August, 1973. He had to have help in getting it restarted but no mechanical adjustments were made.

James Robinson:

As new car service manager for Price-A.K., Inc., in August, 1972, he checked the car visually and test drove it prior to delivery to the customer and found no indication of any defect. No mechanical repairs were made on the car after the accident.

Dr. Leonard C. Adams:

Accepted as an expert, he testified to numerous possibilities as to causes of stalling, but frankly admitted he had not examined the car and so had no opinions as to what occurred.

Herman B. Ferguson:

As a salesman for Price-A.K., Inc., he drove the Chrysler three to four months as a demonstrator and had no difficulties with it.

Donald C. Firby:

Qualified as an expert in automotive wiring, he testified in regard to possibilities, but he too had not examined the car and could add little to the evidence in the case.

Price LeBlanc’s testimony added little. A trooper, Ira B. Sappington, also testified but could testify to little. Unfortunately, Aaron Duke, the investigating officer, was deceased at the time of trial.”

The trial judge then concluded:

“After considering all the evidence, above summarized, the Court has little hesitancy in finding that Sharon Moran was negligent under the circumstances. By her own testimony she saw the Thornton car while some distance, whether 600 feet or a quarter of a mile is immaterial, and admitted that she was made aware of the situation. It is immaterial, too, whether or not the Thornton car stopped in the neutral ground. It was established to the Court’s satisfaction that the Thornton’s car attained a maximum speed of fifteen miles per hour. The Court finds that Miss Moran was driving at about fifty miles per hour. The point of impact, the Court finds to be no less than fifty feet from the break in the neutral ground. Thus while the Thornton car was travelling the fifty feet, the Moran car was travelling a distance of between 167 and 350 feet depending upon the average speed ascribed to the Thornton car. The absence of skid marks or accepting her testimony that she did apply the brakes but hit the Thornton car simultaneously with the effectiveness of the brakes convinces the Court that she was guilty of negligence.

The Court, however, also has little hesitancy in finding that Mr. Thornton was guilty of negligence. The Court cannot accept as freedom of negligence his failure to stop in the neutral ground to see if there was approaching traffic. It is true that he stopped before entering the highway, but the two southbound lanes and the neutral ground constitute a considerable distance which, by his own testimony, he was traversing at a slow speed.

The Court cannot accept the testimony that the car stalled and was stopped for a period of thirty seconds. If it stalled at all, on which the Court does not feel required to make a definite finding, it could not have been for such a period of time to constitute an intervening cause sufficient to free Mr. Thornton of liability for negligence in entering the highway in front of oncoming traffic near enough to alert him to the danger therefrom. The stall, if any, would not be a cause of the accident.

This leaves for consideration the question of application of the doctrine.of last clear chance. Study of the testimony above summarized convinces the Court that Miss Moran was presented with an opportunity to avoid the collision when she saw or should have seen the dangerous situation at a time when Thornton was unable to extricate himself therefrom.

This finding obviates any necessity of inquiring into the possible contributory negligence of Mrs. Thornton.”

>f!#****

These cases present a novel situation. There were two triers of fact in the trial court, the jury (Moran) and the judge (Thornton). Based on common issues of law and facts the results reached are contradictory. Appellate review under these circumstances is rendered more difficult because in the cause tried to the judge we have his findings of fact and conclusions of law; whereas, in the cause presented to the jury there are no findings of fact but only conclusions. Confronted with this problem, we are resolved not to be influenced by what would appear to be a tendency to seek uniformity. A consistent result is expected from a single trier of fact. In delictual matters inconsistent results from separate triers of fact, while most unusual, are not beyond the realm of possibility. The mythical “reasonable man” is just that diverse. Lawsuits are won and lost on personalities and often crucial determinations hinge on a matter of seconds, inches or feet. Accordingly, we shall view these consolidated eases separately and the decision reached in each shall not be disturbed absent a finding of manifest error. Canter v. Koehring, 283 So.2d 716 (La.1973); Ashley v. Nissan Motor Corporation in U. S. A., 321 So.2d 868 (1st La.App., 1975), writs refused, La., 323 So.2d 478. If the results reached in these cases after our review remain contradictory or should they conform one to the other, so be it.

In this context, we wish to note that the following language from Canter, above, is now appearing in practically every case involving contested issues of fact. 283 So.2d 716, 724:

“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.” (citations omitted)

It is argued that Canter espouses a new doctrine of manifest error, even to the extent that “if there is any evidence in the record over which reasonable men may disagree” an appellate court should not reverse. We do not construe Canter as effecting any change in the traditional concept of manifest error. We do construe Canter as being a reminder to the appellate bench that where the record contains facts upon which one or more reasonable conclusions may be reached the conclusion reached by the trier of fact should not be substituted by an equally reasonable conclusion of a reviewing court. This is particularly true in matters involving the credibility of witnesses.

Returning to the matter before us: The controversy here could be readily resolved if a reasonably clear factual situation could be determined from the evidence. The issue is the negligence vel non of the two drivers. The divergence of opinion between the two triers of fact reflects their difference in the evaluation of and the weight given to the same testimony.

We do not find that a factual situation can be established by us to the extent that the same would be more reasonable than that urged by either one of the drivers or that we should under the circumstances here presented adopt one of the versions to the exclusion of the other’s version. Our review of the record and the testimony, above, satisfies us that the record contains sufficient evidence to furnish a reasonable factual basis to support the conclusions reached by each trier of fact. Canter, above.

R.S. 32:124 imposes a duty on a motorist who is about to enter a highway from a driveway (break in the median) “shall yield the right of way to all approaching vehicles so close as to constitute an immediate hazard.” The highway at the scene of the accident consists of four lanes, two for northbound and two for southbound traffic. The north and southbound lanes are separated by a grass median as wide or wider than two traffic lanes. The break in the median is directly across from the driveway leading to Price-A.K., Inc. Mr. Thornton looked to the north and south as he left the driveway to cross the southbound traffic lanes. But by his own admission he did not again look to the south (his right) as he traversed the median or just before he turned north. His counsel argues that the Moran vehicle at this juncture presented no hazard to him. The jury thought differently. Miss Moran’s vehicle was as equally visible to Thornton as was his vehicle to her.

Counsel for Mr. Thornton contends that the trial judge erred in his failure to specifically find that the Chrysler had stalled. Our appreciation of the trial judge’s conclusion on this point is that if the Chrysler vehicle had stalled, it had not remained immobile for thirty seconds. Additionally, Mr. Frederic’s testimony, above, that the accident occurred “seconds” after the Chrysler entered the northbound lanes substantially reduces the time interval between the left turn maneuver and the collision. Based on these factors, we do not find manifest error in the conclusion reached by the trial judge as to Mr. Thornton’s negligence.

With respect to Miss Moran’s negligence and the applicability of last clear chance doctrine, our law is very clear. For this doctrine to apply three essential elements must exist: (1) the person (Thornton) invoking the doctrine was in a position of peril from which he was unaware or from which he was unable to extricate himself; (2) that the person (Moran) against whom the doctrine is invoked actually discovered or could and should have discovered the other’s peril; and (3) that following discovery of the peril there remained sufficient time for the person against whom the doctrine is invoked to have avoided the accident by the exercise of reasonable care. Travelers Indemnity Company v. Ben, 269 So.2d 553 (1st La.App., 1972).

While the trial judge in his reasons for judgment did not “feel required” to make a definite finding as to whether the Chrysler actually stalled, he did conclude that (1) the Thornton vehicle was in a position of peril after it had turned into the northbound lanes; (2) that Miss Moran was “aware” of the situation; and (3) that she had sufficient time to avoid the accident. We concede that Miss Moran had every right to expect that the Thornton vehicle would stop in the break in the median before executing a left turn. Nonetheless, after the execution of this maneuver and during the period of time it took the Chrysler vehicle to travel fifty feet, Miss Moran’s vehicle had traveled a distance of 167 to 350 feet. The judge a quo also reasoned that the absence of skid-marks from the Moran vehicle was indicative of inattention on her part. We find this to be a reasonable conclusion. The presence of skidmarks has been considered as evidence tending to show that a driver took appropriate action to avoid a collision but had insufficient time in which to do so. Musco v. General Guaranty Insurance Company, 181 So.2d 881 (4th La.App., 1966); Carter v. Connecticut Fire Insurance Co., 189 So.2d 724 (1st La.App., 1966).

Also relevant to the issue of Miss Moran’s lack of attention to the roadway ahead of her and her failure to see that which she should have seen are the prior inconsistent responses she made during pretrial discovery to the effect that the Thornton vehicle had stopped in the neutral ground. Considering the above factors we are not disposed to say that the trial judge committed manifest error in his conclusion that Miss Moran could have avoided the accident and therefore the judgment based on the doctrine of last clear chance should be permitted to stand.

With respect to the liability of Price-A.K., Inc. and Chrysler Corporation, the jury and the district judge found that the parties claiming a defect in the Thornton vehicle failed to prove the presence of such a defect. With these conclusions we concur.

We turn now to the various awards for personal injuries.

Mr. and Mrs. Thornton contend that the awards of $750.00 and $7,500.00, respectively for personal injuries sustained by them are manifestly inadequate and should be increased to $2500.00 to Mr. Thornton and $15,000.00 to Mrs. Thornton. We concede that the injuries as set forth in the above written reasons are somewhat understated and the awards are possibly on the low side. However, we do not find these awards to be so inadequate as to constitute an abuse of the discretion accorded the trial judge in his assessment of damages. C.C. Art. 1934(3).

It is urged that the award of $90,000.00 to Miss Moran is grossly excessive and should be reduced to the sum of $30,000.00. Her injuries may be described as follows: Immediately following the accident she was taken to a hospital in Gonzales, Louisiana, and then to the Baton Rouge General Hospital in Baton Rouge. She was seen by Dr. Herbert K. Plauché, an orthopedic surgeon. He described her injuries as a moderately severe (more than two pieces) comminuted fracture of the right femur (thigh bone), a fracture of both bones of the right forearm just above the wrist, and a fracture of both bones of the right ankle.

Immediate attention was directed towards combating shock from loss of blood and fluid. She was given Demerol for pain.

The fracture of the femur was immobilized by traction to correct or prevent any overriding or angulation of that structure. This was accomplished by drilling a threaded stainless steel pin through the shin bone just below the knee and applying twenty-five pounds of weight in the long direction of the pull of the leg. She remained in traction until August 15,1972 when surgery was performed. During this period of time she received constant dosages of Demerol. During the surgical procedure on August 15, 1972, an incision was made over the outer portion of the thigh, the fracture site was actually visualized and the fracture itself was “transfixed by an intramedullary rod,” that is a stainless steel “nail” which is placed in the marrow of the bone, which extended from a point just below the fracture upwards through the head of the femur into the right buttock. It was ultimately removed under general anesthetic on January 31, 1974 (17 months from insertion) when a surgical incision was made in the right buttock and the tip of the rod was secured and pulled out.

The fractures to the arm and ankle were immobilized by casts.

Miss Moran was discharged from the hospital on August 23, 1972, at which time Demerol was discontinued and Tylenol # 4 was prescribed. Dr. Plauché could not recall specifically but acknowledged that he may have also prescribed Talwin, an analgesic, a synthetic pain killer. While Demerol is a narcotic and habit forming, Tylenol and Talwin are not.

Dr. Plauché testified that Miss Moran complained of pain throughout the period of treatment, namely, from the date of the accident, August 9, 1972, until March of 1974. He conceded that the presence of the rod in the femur could produce pain on walking. On his last examination and upon discharge he detected signs that Miss Moran had developed a drug dependency problem and recommended that she see Dr. F. A. Silva, a psychiatrist.

Dr. Plauché’s prognosis of Miss Moran’s orthopedic injuries was that all of the fractures had healed in good position. Very little, if any, future difficulty should be expected from the femur. It would not be unreasonable to anticipate difficulty with the right wrist, particularly in performing a task requiring a strong grip, heavy lifting or a lot of manual dexterity. When he saw her in March of 1974, he observed some residual stiffness of the wrist. He anticipated a minimum of difficulty from the right ankle injury. His opinion concerning the wrist injury was confirmed by Miss Joy W. Bonvillion, a licensed physical therapist, who assisted Miss Moran between July and December of 1974.

In April of 1973, Dr. Lewis Krust, a plastic surgeon, described the surgical scar on Miss Moran’s right thigh as measuring approximately nine inches in length with a depression of one to one and one-half inches. Plastic surgery was performed on the 24th of that month by removing abdominal fat and placing it in the depressed thigh area. Photographs in evidence clearly depict the need for and success of this surgical endeavor. Still remaining is the surgical scar on the right buttock, occasioned by the removal of the rod from the femur, mentioned above.

As to the drug dependency problem experienced by Miss Moran, it suffices here to say that the medical testimony is to the effect that the Demerol prescribed by Dr. Plauché was not taken over such an extensive period of time so as to effect an addiction. The record further reflects that for a period of a year following her discharge from the hospital she obtained various prescriptions from other doctors in response to her complaints of pain and need for relief.

Dr. Silva agreed that the original prescription of a habit forming pain relieving drug would not have occasioned a drug dependency problem in the average person but that because of certain basic emotional traits Miss Moran was predisposed to drug dependency. He opined that absent any prior drug dependency problem of a similar nature, the accident and subsequent pain, disfiguration of the thigh, and general disabilities precipitated her compulsive desire for relief. On two occasions following her discharge from Dr. Plauché and while being treated by Dr. Silva she voluntarily submitted herself to treatment at a private institution. At the time of the trial her problem had abated and seemed to be under control. The medical testimony regarding the drug problem stands uncontradicted. It then remains a question of the degree of weight that is to be given the testimony adduced in support of drug dependency. We find a causal relation between the accident and Miss Moran’s drug problem.

Considering all of the above, including the special damages (which we do not find necessary to particularize here), it cannot be said that the award of $90,000.00 is so excessively high as to constitute an abuse of the jury’s discretion when it fixed the same.

Counsel for Mrs. Thornton argues that the judgment of the trial court limiting her recovery against GEIC is in error for the reason that the provisions of the policy are such that she is entitled to “stack” the limits of $5,000.00 for two vehicles and that her entire judgment should be against GEIC and Miss Moran, in solido. GEIC responds with the argument that this particular issue can not be raised for the first time on appeal. Supportive of this argument is the stipulation in the record which expressly states that the uninsured motorist coverage afforded the Thorntons by GEIC is in the amount of $5,000.00. Also filed in the record is the policy itself. The policy period therein shown is August 30, 1971 to August 30, 1972. Two vehicles are described in the policy, namely a 1969 Chevrolet pickup truck and a 1972 Chrysler. The limits of liability for each of these vehicles insofar as uninsured motorist protection is afforded is $5,000.00 for each per-sonólo,000.00 for each accident.

Notwithstanding the fact that the above stipulations were entered into and are a part of the record, we are of the opinion that Mrs. Thornton may now raise the issue of the stacking. We do not feel that the above stipulations should preclude Mrs. Thornton from endeavoring to claim additional coverage under the policy for the reason that the stipulation is an obvious oversight of the terms of the policy and the law as it then existed with respect to the stacking of uninsured motorist provisions. A resolution of this issue relates solely to a question of law based on facts contained in the record.

During the effective policy period, noted above, the authorities governing the stacking of uninsured motorist coverage were Elledge v. Warren, 263 So.2d 912 (3rd La.App., 1972), Graham v. American Casualty Company, 261 La. 85, 259 So.2d 22 (1972) and Deane v. McGee, 261 La. 686, 260 So.2d 669; Wilkinson v. Fireman’s Fund Insurance Company, 298 So.2d 915 (3rd La.App., 1970); Brister v. American Indemnity Company, 313 So.2d 335 (1st La.App., 1975). These cases stand for the proposition that a plaintiff is entitled to stack uninsured motorist coverage where he pays premiums for two or more automobiles and sustains damages in excess of the mandatory minimum coverage. The accident giving rise to these cited authorities occurred prior to Act No. 137 of 1972. Accordingly, Mrs. Thornton is entitled to have her judgment against GEIC increased to the sum of $7,500.00.

Mr. Thornton contends that the judgment in the Moran case is in error in that it assesses legal interest against GEIC on only the $50,000.00 from date of judicial demand and on the excess only from the date of judgment until paid, whereas GEIC should be liable for the interest on the entire amount from date of judicial demand: that is, that he should not be responsible for interest on the excess from date of judicial demand until date of judgment. We find no merit in this contention. See Doty v. Central Mutual Insurance Co., 186 So.2d 328 (3rd La.App., 1966), writs denied, 249 La. 486, 187 So.2d 451.

Relative to the issue of damages to the Chrysler, it was stipulated that they amounted to $1,591.14. The record reflects that this amount less the $100.00 deductible portion was paid to Thornton by GEIC. Included in the sum for special damages awarded to Mr. Thornton of $1,993.53 is the item of $1591.14. As shown above the trial judge rendered judgment against Mr. Thornton in the amount of $1,491.14 but limited it to the amount of Mr. Thornton’s judgment against Miss Moran. Thornton contends that this was error because GEIC failed to file in evidence a copy of the receipt and subrogation agreement pertaining to this particular loss. We note that the policy is in the record and it contains subrogation rights in favor of GEIC on its payment of any collision loss. GEIC, in its reconventional demand in the Thornton Suit, asserted its claim for this amount.

We do not feel that the absence of the subrogation agreement in the record under these circumstances should preclude GEIC’s right to reimbursement. However, we fail to see any reason to interpose Mr. Thornton in this portion of the judgment. His award for special damages should be reduced by the amount he received from GEIC and the latter’s judgment for the same should be only against Miss Moran.

Accordingly, the judgment in the Thornton suit (# 10,952) is amended to grant judgment in favor of Mrs. Myrtis Thornton in the amount of $7,500.00 against Sharon Moran and Government Employees Insurance Company, in solido, and to Mr. Frank L. Thornton by reducing the award of $1,993.50 against Miss Sharon Moran for special damages to the sum of $502.46; and in favor of GEIC against Sharon Moran by increasing the same from $5,750.00 to $8,250.00; and in favor of GEIC and against Sharon Moran in the amount of $1,491.14, deleting from this portion of the judgment Frank L. Thornton. Legal interest to run on each of the above judgments from date of judicial demand until paid. In all other respects the judgment is affirmed.

In the Moran Suit (# 10,953), the judgment is affirmed in all respects.

The costs in these suits are to be borne three-fourths by GEIC and Frank L. Thornton, in solido, and one-fourth by Sharon Moran.

JUDGMENT AMENDED IN PART AND AS AMENDED AFFIRMED.

      . Released on motion for summary judgment.

      . In the Thornton suit, counsel for Miss Moran has stated in her appeal that the same was really perfected for the purpose of maintaining the status quo. Manifest error on the part of the district judge in the Thornton suit is not seriously urged.

      . R.S. 22:1406 D.