author: TATE, Justice.

text:
    Delma WEST, Plaintiff-Appellant-Relator, v. BAYOU VISTA MANOR, INC., et al., Defendants-Appellees-Respondents.
    No. 63587.
    Supreme Court of Louisiana.
    May 21, 1979.

      John M. Shaw, Lewis & Lewis, Opelousas, for defendants-respondents.
    John Saunders, Ville Platte, for plaintiff-applicant.
   TATE, Justice.

We granted certiorari to review the denial of an employee’s claim for workmen’s compensation.

The plaintiff, Mrs. West, sues her employer (Bayou Vista) and its insurer for workmen’s compensation injuries. The trial court essentially found that the plaintiff’s uncontradicted testimony did not prove the accident occurred at work, for reasons we find insufficient.

The court of appeal noted the trial court’s reasons for refusing to accept the plaintiff’s uncontradicted testimony of the work-accident. Without reviewing the sufficiency of the trial court’s reasons, the court of appeal affirmed the trial court’s dismissal of the claim as a merely factual determination not reviewable in the absence of manifest error.

We granted certiorari, 366 So.2d 913 (La.), because the intermediate court (in deeming this to be a merely factual dispute) had failed to review the plaintiff’s contentions, which indicated that, under applicable legal principles, the trial court erred in refusing to accept the employee’s uncontra-dieted testimony proving the accident, corroborated by medical examinations immediately subsequent thereto which proved continuous disability.

General Principles Applicable

In a workman’s compensation suit, the employee must establish the work-accident causing the injury by a preponderance of the evidence — i. e., “the testimony, as a whole, must show that more probably than the employment accident caused the disability.” Gradney v. Vancouver Plywood Co., Inc., 299 So.2d 347, 349 (La.1974). The causal relationship may be inferred when there is proof of an accident and an ensuing disability without an intervening cause. Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973).

In evaluating the evidence, the trier of fact should accept as true the uncontra-dicted testimony of a witness, even though the witness is a party, at least in the absence of circumstances in the record casting suspicion on the reliability of this testimony. Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967); Farley v. Ryan Stevedoring Co., 238 La. 1048, 117 So.2d 587 (1960); Bonanno v. Decedue, 186 La. 1041, 173 So. 756 (1937). (In each of these instances, the trial court’s finding of fact was reversed due to its failure to observe this principle.)

The Facts

At the time of the accident alleged, Mrs. West was employed as a nurse’s aid at a nursing home for elderly citizens operated by her employer, Bayou Vista. Her duties included lifting heavy patients, making beds, and other manual labor. At the time of the accident, she had been so employed and had performed her duties without difficulty or complaint for some fourteen months.

No evidence contradicts her testimony of the work-accident(s). It is as follows:

On March 17, 1977, while lifting an elderly patient, Mrs. West suffered a twisting injury to her back. Her back hurt, but she did not then feel she had sustained a serious injury. However, her back started hurting worse when she continued working. She mentioned her complaints to her co-workers, but she continued performing her duties on that day and on the following (the 18th) day with the assistance of one of them.

She took several days off from work, in addition to the two days to which she was entitled, to give her back time to get better. She returned to work on March 29 and again on March 30, performing her duties as well as she could. Finally, however, on the morning of the 30th, her back became subject to great pain when subjected to the weight of an old lady she was helping to stand, and she dropped the lady. She then punched the time clock and went home.

She returned to work on April 2, 3, 4, and 5, suffering pain but performing her duties, the heavier ones with the assistance of a co-worker. She was off on April 6 and 7. However, since her back was still hurting and seemed to becoming worse, she reported to her family physician, Dr. John Tassin. She has never worked since.

Dr. Tassin examined Mrs. West on that date. Then, she complained of an injury to her lower back sustained in picking up a patient. He found objective symptoms of disability, including muscle spasm, positive straight leg raising, and decreased reflexes in both Achilles and knee jerks on the left. He gave her some medicine. When she returned on April 25 with continued complaints, he referred her to a neurosurgeon. After this specialist diagnosed the cause of Mrs. West’s pain and disability as a ruptured intervertebral disc, Dr. Tassin has continued to treat her for low back pain, with physical therapy and medication.

The neurosurgeon, Dr. William Foster, examined Mrs. West on April 28. Her subjective complaints of low back pain radiating into the legs were corroborated by a scoliosis (pelvic tilt to the left) and by positive results to leg-raising tests, as well as by the absence of or diminished ankle jerks. Suspecting a disc involvement, the specialist ordered x-rays and a myelogram. After reviewing same, Dr. Foster was of the definite opinion that Mrs. West had sustained a ruptured disc in the lower back. The physician recommended surgery as the only method of alleviating the disability caused by the ruptured disc. He also felt the ruptured disc had resulted from lifting a patient or straining.

The substance of the testimony of these two doctors is that, since the first medical examination on April 7 (shortly after Mrs. West alleges to have had a work-accident causing injury to her back), Mrs. West has been disabled by the painful effects of a ruptured disc, and that this disabling injury is consistent with Mrs. West’s history of having suffered back pain while lifting a patient on March 17 or so, shortly before their first examinations. The nature of the injury (a ruptured disc) is regarded by them as almost conclusively established by the myelogram, as well as the objective symptoms indicated to them on their examinations.

(We may say, here, that if this virtually undisputed disability resulted from an accident at work is correct, the record reflects that the claimant — a lady aged 48 years, with a fourth grade education and employable only in manual labor — is totally and indefinitely disabled from any gainful employment and is thus entitled to compensation for permanent and total disability, La. R.S. 23:1221(2) (1975), during disability.)

Trial Court’s Reasons for Judgment

As we understand the trial court’s reasons for judgments, it did not reject the medical testimony that the plaintiff is presently disabled from any gainful employment by reason of a ruptured intervertebral disc in her lower back. Rather, in holding that the plaintiff had not proved her case by a preponderance of the evidence, the trial court noted certain factors which gave it concern as to whether the undoubted disability had resulted from an accident at work.

We note these factors, and the reasons why they were insufficient under the circumstances to discount the plaintiff’s un-contradicted and unsuspicious testimony of her accident, as follows:

1.Mrs. West had prior back problems. This statement was based upon the x-rays showing that she had a more or less congenital back defect (at a place other than the ruptured disc) of a non-disabling nature, as well as upon a statement in the alleged history given by her to an examining neurosurgeon that, five years earlier she had sustained a straining injury to her back which had kept her off work for eight months.

Aside from circumstances indicating that the history was incorrectly transcribed, the uncontradicted testimony shows that Mrs. West had worked at nursing aid jobs and manual labor without difficulty or complaint prior to the claimed accident of March 17,1977. Even if there were a pre-existing latent back disability, nevertheless workmen’s compensation benefits are payable when a work-accident aggravates or accelerates it, producing disability. Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973). “A claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.” Lucas v. Insurance Company of North America, 342 So.2d 591, 596 (La.1977).

2. In August, 1977, Mrs. West was involved in an automobile accident in which she injured her back. However, the August accident occurred after the April, 1977 medical examinations which found that, by reason of a ruptured intervertebral disc, Mrs. West was totally and indefinitely (i. e., without major surgery, which might alleviate her disability somewhat) disabled from any heavy work. Further, without contradiction, her attending physician (Dr. Tassin) for both the work-accident(s) and the automobile accident, negatived any connection of the latter (automobile) accident with the plaintiff’s present disability.

3. Mrs. West’s original petition alleged the first accident of March 17, without reference to the second lifting accident of March SO to which she testified at trial. However, the plaintiff’s back complaints commenced with the first lifting incident of March 17, which is connected in continuous sequence with the second precipitating incident of March 30 (see footnote 4). We are unable to see any reason to doubt her credibility as to either incident because of her consistent ascription of her disability as resulting from the first incident, following which she suffered her first complaints of back pain (although they became much more aggravated following the second incident).

4. Mrs. West did not report her back injuries to her supervisors as they occurred. In the answer to the plaintiff’s interrogatories, which were introduced into evidence, the defendants admitted that the plaintiff had on March 31, 1977 (the day after the second incident) reported to the director of nursing and to co-workers that she had sustained a lifting accident on March 17 or 18. Assuming this is so (the plaintiff testified she had mentioned the lifting incident earlier, right after the first one occurred), the circumstance is more corroborative of her initial unawareness of the seriousness of the injury resulting from the first incident than it is any cause to doubt her credibility about its occurrence.

5. Mrs. West did not call as witnesses the co-workers to whom she had reported or mentioned her injuries. As noted above, the defendant in answer to interrogatories had admitted that the plaintiff had so reported to her co-workers. We see no adverse inference that can be drawn from the circumstance relied upon. Further, even without this stipulated fact, we are cited to no authority which would permit an adverse inference to be drawn against an employee-claimant for failing to call as witnesses her co-employees (who moreover would seem more likely to have been called by the employer-defendant for whom they worked, if their testimony would be adverse to that of the claimant, their former co-employee).

Conclusion

In summary, by reason of the legal principles enunciated in the decisions previously cited, the plaintiff’s uncontradicted testimony of the accident at work, corroborated by the doctors’ testimony concerning medical observations and treatment commencing immediately afterwards, is sufficient to prove the work-accident(s) by a preponderance of the evidence (i. e., more probably than not). Under the circumstances reflected by the present record, the trial court’s stated reasons for holding that the plaintiff has not met this burden are not in accord with the legal principles above-stated as applicable, and they in effect placed a duty upon this compensation claimant to prove her case greater than that required by the jurisprudence.

It is true that “The reviewing court must give great weight to the factual conclusions arrived at by the trier of fact, and reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Cadiere v. West Gibson Products Company, 364 So.2d 998, 999 (La.1978) (Italics ours). However, the appellate court is not required by this principle to affirm the trier of fact’s refusal to accept as credible uncontradicted testimony (Johnson, cited below), or greatly preponderant objectively-corroborated testimony (Arceneaux, cited below) where the record indicates no sound reason for its rejection and where the factual finding itself has been reached by overlooking applicable legal principles. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973).

Thus, in Johnson (cited above) as here, the trial court had dismissed an employee’s claim for workmen’s compensation, and the intermediate court had affirmed this dismissal. There, as in the present case, the trial court found the employee’s uncontra-dicted evidence of disability residual from the accident insufficient to prove his claim, based partly on its ascription of any residual disability to a pre-existing arthritis— even though (as here) the uncontradicted testimony showed that the employee had, prior to the accident, performed his duties without complaint or difficulty. We reversed and awarded compensation, pointing out the legal principles applicable which the trial court had overlooked in failing to hold that the claimant’s testimony of continuous disability following a work-accident sufficiently proved a causal relationship between the work-accident and the present disability-

Under principles similar to those represented by Johnson, we here reverse the trial court’s finding that the work-accident was not proved by a preponderance of the evidence, because applicable legal principles (cited above) were overlooked by it in reaching this determination and because the record reflects no sound reason for rejecting the plaintiff’s uncontradicted testimony, corroborated by the circumstances and the medical testimony reflected by the record.

We therefore find that the plaintiff’s disability was caused by the accident(s) suffered by her at work. As earlier noted, the claimant’s present disability is total and permanent; she is therefore entitled to an award of compensation benefits during disability at the rate of two-thirds of her weekly wages, La.R.S. 23:1221(2) (1975). Her weekly wages are stipulated at $92.00 per week (40 hours at $2.30, Tr. 104), i. e., a weekly compensation rate of $61.33.

Without objection, the plaintiff introduced a number of receipts and bills for medical services, physician-prescribed therapy, medicines, etc., as necessitated by her injuries. We total them as amounting to $3,463.80. The record indicates that the claimant will have a continuing need for more medical services and supplies to treat her injury, and our decree will reserve her right to recover them.

Decree

For the reasons set forth, we reverse the judgments of the previous courts dismissing the plaintiff’s suit, and we order, adjudge, and decree that there will be judgment in her favor and against the defendants, Bayou Vista Manor, Inc. and Commercial Union Insurance Company, holding them solidarily liable to the plaintiff Delma West for weekly compensation during disability at the rate of Sixty-One and 33/100 ($61.33) Dollars per week, commencing March 17, 1977, with (legal) interest at the rate of seven per cent per annum on each weekly installment from date of delinquency until paid. The plaintiff is also awarded medical expenses proven incurred to date of trial in the sum of Three Thousand Four Hundred Sixty-Three and 80/100 ($3,463.80) Dollars, with legal interest thereupon from date of judicial demand until paid; and her right to recover unpaid medical expenses resulting from her work-caused injuries, previously incurred and to be incurred, is reserved. The defendants are cast with all costs of these proceedings.

REVERSED AND RENDERED.

BLANCHE, J., dissents. The opinion of the trial court is correct.

      . See also: Pugh, Louisiana Evidence Law 138-39 (1974); Cockrell v. Penrod Drilling Co., 214 La. 951, 39 So.2d 429 (1949); Miller v. Hartford Live Stock Insurance Co., 165 La. 777, 116 So. 182 (1928).

      . The defendant introduced into evidence the deposition of Dr. Richard Levy, a neurosurgeon, who examined the plaintiff once, some four months after the accident. His examination was limited to “clinical” examination of the patient, without reference to myelogram x-rays. He concluded that, from a purely neurological standpoint based solely on his clinical examination, the plaintiff was not disabled.
      His opinion is far outweighed by that of the other physicians to the contrary, based upon their more extended observation and upon the myelogram x-rays; for reasons detailed more fully in an appendix to this opinion. (The appendix is part of the public records of this court, but it will not be published because of its factual detail and its lack of interest to other than the parties.)

      . Mrs. West denied that the doctor had correctly understood her history about minor back trouble five years earlier. Her version is corroborated by the testimony of her attending physician, Dr. Tassin, Tr. 125, that he had treated minor back complaints by prescribing pills only twice in 1972 and once in 1973, Tr. 52. There is no evidence whatsoever of the nature or severity of these prior back complaints.

      . When the defendants objected to testimony as to this second incident, the plaintiff’s counsel, explained that the sequence of events has commenced on the 17th and that “it is an impossibility to distinguish medically exactly which event, or to what degree, caused her injury, but certainly the injury began on the 17th, her complaints. . . . [The further precipitating incident of March 30] is admissible and certainly part of one history of an accident, rather than two distinctive, separate accidents, since . . the injury “apparently began on the 17th and finished on the 30th, but those events, some combination of the two, rather than one distinctive event is what caused her injury.” Tr. 116-17.
      When the trial court nevertheless sustained the defendants’ objection, the plaintiff amended her petition so as to allege the “second” accident (March 30) also.

      . In the plaintiffs brief, without itemization, a larger figure is set forth. In the event we are in mathematical error or have overlooked some items in the record, the plaintiff’s right to recover unpaid medical expenses will be protected by our decree.


source: Caselaw Access Project

author: DENNIS, Justice. MARCUS, Justice

license: Public Domain

text:
    STATE of Louisiana v. Sherman WISHAM.
    No. 63640.
    Supreme Court of Louisiana.
    May 21, 1979.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Warren Hebert, Mary V. Gilli-land, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
    Joseph B. Olinde, Jr., Baton Rouge, for defendant-appellant.
   DENNIS, Justice.

The defendant, Sherman Wisham, was convicted by a jury of attempted armed robbery, La.R.S. 14:27, 64, and sentenced to fifteen years imprisonment at hard labor.

By assignments of error numbers 2 and 5, the defendant asserts that the trial court erred in denying him a new trial and by excluding evidence proffered in support of his motion for a new trial. The ground asserted for the motion is that prejudicial conduct occurred in the presence of jurors outside the courtroom which made it impossible for the defendant to obtain a fair trial.

During the trial defendant’s brother-in-law, Ray Banks, testified that the defendant was residing and working with him in Houston, Texas at the time the crime was committed in East Baton Rouge Parish. In cross-examining Banks about his testimony, the State questioned closely his understanding of the crime of perjury. After some off the record discussion, the trial court ordered Banks not to leave the courtroom until discharged. Shortly after testifying, Banks was arrested for perjury by law enforcement officers in the hallway of the courthouse just outside of the courtroom where defendant’s trial was in progress.

During the hearing on the motion for a new trial defense counsel called two jurors who had participated in the defendant’s trial. Defense counsel alleges in his motion that these jurors would have testified that while they were in the hallway during a recess Banks was arrested, and that after they told the other jurors about the incident, the arrest was discussed at length during the jury’s deliberations. Defense counsel did not discover these facts until some time after the verdict had been rendered, when one of the jurors informed him. The trial judge, however, sustained an objection by the State, refused to permit any of the jurors called by the defendant to testify, and denied defendant’s motion for a new trial.

In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The defendant’s constitutional due process right to fair trial by jury is violated if the trial jurors are subjected to influences through the attending bailiffs of the state which may cause their verdict to be influenced by circumstances other than the evidence developed at the trial. State v. Marchand, 362 So.2d 1090 (La.1978). See, Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1964); Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954).

We think it clear that reversible error occurred if the jurors were exposed to the spectacle of the arrest of Banks, defendant’s alibi witness, which closely followed the prosecutor’s in-court interrogation of Banks, strongly implying an accusation of perjury, and the judge’s instruction that Banks should not leave the court until discharged. Accordingly, evidence of the alleged prejudicial conduct was relevant and material to defendant’s motion and its exclusion by the trial court was clearly erroneous unless there was good cause to prevent the jurors from testifying about the incident.

The State, however, contends that the trial judge’s ruling was a correct application of La.R.S. 15:470, which provides that a juror is incompetent to testify as to his own misconduct or his fellows’ misconduct, or to give evidence to explain, qualify or impeach any indictment or any verdict found by the body of which he is or was a member.

The answer to the State’s contention was given in State v. Marchand, 362 So.2d 1090 (La.1978) where this Court, when presented with an analogous question, stated:

“However, despite the state’s contrary contention that La.R.S. 15:470 bars it, we find to be admissible the testimony of the jurors in proving the unauthorized and prejudicial communication made to the jury by their bailiff, i. e., the testimony by the jurors as to their conversation with the deputy in the hall, as well as their testimony that they related this information to the other jurors.
“The testimony admitted did not relate to alleged juror misconduct, as to which their testimony is incompetent, see State v. Durr, 343 So.2d 1004 (La.1977). Instead, it dealt with the overt act of a third person which caused extraneous prejudicial information to be considered by the jury in reaching its verdict.” 362 So.2d at 1093.
“Louisiana decisions have held that jurors are competent to establish an overt act independent of the jury deliberations, if this overt act is in violation of law or of the statutory formalities designed to assure the impartiality of the jury finding and the jury’s freedom from influences extraneous of the evidence presented to it for its consideration. State v. Kifer, 186 La. 674, 173 So. 169 (1937) (prohibited-presence of prosecutor with grand jury during its deliberations and voting); State v. Riggs, 110 La. 509, 34 So. 655 (1903) (illegal intimidation of a juror within the juryroom); Hawkins v. New Orleans Printing & Publishing Co., 29 La. Ann. 134 (1877) (misconduct of the officer in charge of the jury, who bribed a juror).
“In Kifer, where juror evidence was held admissible to prove an overt act (the presence of the prosecutor) exerting extraneous influence upon the jury deliberations in contravention of statute, this court held that the public policy of the statute prohibiting improper influence upon jury deliberations outweighed the policy of the prohibition by the statute (now La.R.S. 15:470) designed to prohibit jurors from impeaching the finding of their jury.” 362 So.2d at 1094.

As in Marchand and the cases discussed therein, we conclude that the statutory prohibition against jurors impeaching their verdict was not legislatively intended to defeat the equally valid statutory prohibition against unauthorized communications or prejudicial conduct tantamount to unauthorized communications to the jury which might influence their verdict, i. e., by preventing proof of it through the only means possible, the testimony of the jurors who witnessed the prejudicial conduct and reported it to the other jurors.

Accordingly, the assignment of error has merit. For the reasons assigned, if the defendant should prove that the alleged conduct occurred in the jurors’ presence and that they related the event to the other jurors, the conduct will be deemed presumptively prejudicial. Remmer v. United States, supra; State v. Marchand, supra. However, since the defendant may be unable to prove the facts alleged or the State may have evidence which would overcome the presumption, the conviction and sentence will not be set aside at this time. Instead, the case will be remanded for a further hearing on defendant’s motion for a new trial in accordance with the views expressed in this opinion.

REMANDED FOR FURTHER PROCEEDINGS.

SUMMERS, C. J., and BLANCHE, J., dissent.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

La.R.S. 15:470 provides that: “No juror is competent ... to give evidence to explain, qualify or impeach any verdict . . .” I consider that the testimony by the jurors as to their presence in the hallway during the witness’ arrest as well as their testimony that they related this information to the other jurors and that the arrest was discussed during their deliberations, is clearly prohibited by this statutory provision. Rule 606 of the Federal Rules of Evidence sets forth a similar prohibition but provides “except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jur- or’s attention or whether any outside influence was improperly brought to bear upon any juror.” In my view, any change in the rule in Louisiana addresses itself to the legislature. See also my dissent in State v. Marchand, 362 So.2d 1090 (La.1978). Accordingly, I respectfully dissent.

      . La.R.S. 15:470 provides:
      “No juror, grand or petit, is competent to testify to his own or his fellows’ misconduct, or to give evidence to explain, qualify or impeach any indictment or any verdict found by the body of which he is or was a member; but every juror, grand or petit, is a competent witness to rebut any attack upon the regularity of the conduct or of the findings of the body of which he is or was a member.”

      . The trial court was correct, however, in disallowing testimony by the jurors as to the effect of the prejudicial conduct upon the jury deliberations and the votes of individual jurors. State v. Marchand, 362 So.2d 1090, 1093 (La.1978); State v. Abney, 347 So.2d 498 (La.1977); State v. Durr, 343 So.2d 1004 (La.1977).


author: DIXON, Justice.

text:
    STATE of Louisiana v. Jimmy C. JOHNSON.
    No. 63669.
    Supreme Court of Louisiana.
    May 21, 1979.
    Percy A. Ford, Jr., Ford & Avants, West Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Kenneth A. Rains, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Lynn Wiggins and Gene Allen were working in the Oak Ridge Bank in Oak Ridge, Louisiana at noon on June 5, 1978 when a young black man entered the building and at gunpoint ordered Mrs. Wiggins to give him all the money in her teller drawer. Mrs. Wiggins complied with the robber’s request but also slipped a stack of marked bills and two disguised tear gas canisters into the brown paper sack supplied by the gunman. As soon as the robber left, Allen pressed an alarm which automatically notified the sheriff’s office in Bastrop of the robbery. He then went outside to tell others about the robbery and to discover whether anyone had seen the robber’s escape.

News of the crime quickly reached the local cafe where William McDuffie was eating lunch. Only moments earlier McDuffie (who knew nearly everyone and his car in Oak Ridge) had seen a strange cream colored 1978 Thunderbird on a parking lot and had been writing down its license plate number when he saw a young black man get into the car and drive off quickly. McDuffie told this information to Jeff McCain, who then telephoned the More-house Parish sheriff’s department and gave a description of the car and its plate number.

In the meantime, Deputy Lyle Hopkins left Bastrop to investigate the robbery. Driving south on Highway 139, he first stopped at Bankston’s Grocery to see if the owner had noticed the car in question. He then drove south into Ouachita Parish but quickly turned around to follow a cream colored 1978 Thunderbird traveling in the opposite direction. Hopkins contacted the radio dispatcher in Bastrop and learned that the plate numbers matched for the suspected getaway vehicle and this car. The Thunderbird pulled over at Bankston’s Grocery and Hopkins arrested its occupants, Jimmy C. Johnson and Frederick Wilson. While Mr. Bankston held the two at gunpoint outside the automobile, Hopkins obtained a key to the locked glove compartment and discovered a .22 caliber pistol inside. A subsequent search of the Thunderbird unearthed two small round disks which resembled parts of a tear gas canister. Sheriff’s officers subsequently found a brown paper sack containing the money in a ditch beside a nearby country road.

After support units arrived, Johnson and Wilson were taken to the Oak Ridge Bank where Allen identified Johnson as the robber. The two men were then transported to Bastrop and were booked with armed robbery at the parish jail. Johnson’s clothes were taken from him, and five .22 caliber bullets were found in the right front pocket of his trousers. On the following day both men gave statements to the police.

Johnson and Wilson were thereafter charged by bill of information with armed robbery, a violation of R.S. 14:64. A motion to suppress the statements and certain items of physical evidence was heard on September 18, 1978. The trial judge suppressed the pistol and metal disks seized from the automobile but otherwise denied the motion. Thereafter the State obtained a severance and brought Johnson to trial alone on September 26, 1978. He was convicted as charged and was subsequently sentenced to eighteen years at hard labor without benefit of parole, probation, or suspension of sentence. The defendant now appeals his conviction and sentence, placing reliance on five of seven assignments of error filed below.

Assignment of Error No. 1

In this assignment of error, the defendant contends that the trial judge was in error to deny the defense motion to suppress the confession. The defense argues that the statement was not freely and voluntarily made because the prosecution failed to make a sufficient showing that Johnson was advised of his rights and understood their meaning.

Deputy Hopkins testified at the suppression hearing that he read Johnson and Wilson their Miranda rights when he arrested them. His testimony on this point was corroborated by Mr. Bankston, who stated at trial that he had heard the deputy inform the suspects of their rights. Hopkins also testified that he repeated the rights to Johnson on the following day and gave him a copy of the waiver form so that he could follow along as his rights were read to him. As the deputy began to record the statement, Johnson asked about the meaning of one phrase on the waiver form:

“Q Have I read these rights to you?
A Yes.
Q Do you understand these rights?
A No.
Q What is it that you don’t understand?
A Like what I say can be used as evidence, the rights, what I saw can and will be used against me.
Q That’s correct, that’s what it says right there on that waiver.
A If I say something to you right now, that goes down in Court?
Q Everything that you say will be recorded and can be presented in the Court of Law on charges pending against you. That’s correct.
A I’ll have one charge?
Q That’s all.
A That’s armed robbery, right?
Q That’s armed robbery. Any other questions?
A Go ahead.”

The prosecution also introduced a waiver form signed by the defendant.

The State has the burden of affirmatively proving that a confession was made freely and voluntarily and not as a result of fear, duress, intimidation, menaces, threats, inducements, or promises. R.S. 15:451; State v. Weinberg, 364 So.2d 964 (La.1978); State v. Hollingsworth, 337 So.2d 461 (La.1976). Moreover, if a defendant confesses during a period of custodial interrogation, the prosecution must establish that he was first advised of his Miranda rights. State v. Rankin, 357 So.2d 803 (La.1978); State v. Hutto, 349 So.2d 318 (La.1977).

In the instant case the prosecution introduced evidence that Miranda warnings were given and demonstrated that Johnson understood the meaning of the rights read to him. In addition the prosecution introduced the waiver form signed by the defendant. On the other hand, the defendant did not testify at the suppression hearing and therefore raised no specific allegations of coercion or promises which the prosecution was required to rebut specifically. See State v. Hills, 354 So.2d 186 (La.1977). In light of these considerations, the trial court was correct to deny the defense motion to suppress the confession.

This assignment of error is without merit.

Assignments of Error Nos. 2, 3 and 6

By these assignments of error, the defense contends that the trial judge was in error to deny the motion to suppress certain items of physical evidence. The defense bases these allegations on the argument that the arresting officer did not have probable cause to stop the defendant’s automobile and to arrest him. In the alternative the defense contends that certain prosecution exhibits were inadmissible because they had no connection with the defendant and were therefore highly prejudicial.

As we said in State v. Johnson, 363 So.2d 684, 689 (La.1978): “. . . When a crime has been committed and the police know it, they only have to determine whether there is reasonably trustworthy information to justify a man of ordinary caution in believing the person to be arrested has committed the crime. . . . ”

The arresting officer had a radio report from his dispatcher that the suspects were two young black men in a 1978 cream colored Thunderbird, who were seen leaving Oak Ridge immediately after the robbery. The officer noted the license number of the Thunderbird, radioed his dispatcher, and the number matched that of the suspected vehicle. There was probable cause to arrest.

With respect to the items that the defense contends were erroneously admitted in evidence, the record establishes that only the defendant’s clothes and the five .22 caliber bullets found in his pocket were the objects of a search and seizure. These items were properly admitted; securing of the arrested person’s property during booking is a reasonable incident to the arrest. State v. Taylor, 347 So.2d 172 (La.1977); State v. Green, 282 So.2d 461 (La.1973), cert. denied, 415 U.S. 985, 94 S.Ct. 1580, 39 L.Ed.2d 882 (1973). The other items of evidence either had been abandoned, such as the paper sack containing the stolen money (see State v. Washington, 364 So.2d 949 (La.1978)) or were never subject to the defendant’s control, such as the list of the stolen bills’ serial numbers which the bank supplied to the prosecution.

The defense has also alleged that the items admitted in evidence were unconnected to the defendant and were therefore highly prejudicial. However, our jurisprudence is clear that demonstrative evidence is admissible if the foundation laid establishes that it is probably connected with the case. State v. Demouchet, 353 So.2d 1025 (La.1977); State v. McMorris, 343 So.2d 1011 (La.1977). In the instant case the record reveals that this standard was followed by the trial court.

These assignments lack merit.

Assignment of Error No. 4

By this assignment the defense argues that the trial court erred by allowing witnesses to testify concerning the pistol seized from the automobile, since it was excluded from evidence at the suppression hearing. The testimony to which the defense assigns error was given by the bank employees, who both stated that they had seen the robber armed with a gun.

In State v. Marshall, 359 So.2d 78 (La.1978), this court held that the “fruit of the poisonous tree” doctrine required the exclusion of evidence obtained from an unlawful search and seizure, but did not prevent introduction of testimony which referred, at a time before any illegal seizure, to evidence which had been suppressed because of a subsequent illegality. The defense states no reason why the policies underlying the exclusionary rule and the “fruit of the poisonous tree” doctrine would be advanced by forbidding the victims of the armed robbery to testify that they saw a pistol in Johnson’s hand at a time before the unconstitutional search and seizure.

This assignment lacks merit.

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

      . The defense contends that the automobile was headed south on Highway 139, but this argument is not supported by the record.

      . The defense argues that the confession is invalid because it is unclear whether the defendant signed the form which Hopkins read or the form which Hopkins handed him to read along while his rights were read to him. However, the objection is meritless, since it is clear from the record that the forms were identical.


author: CALOGERO, Justice. DIXON, Justice

text:
    STATE of Louisiana v. Rickey Ronell DURIO and Lawrence Lee Cooper, a/k/a Pete Montgomery.
    No. 63670.
    Supreme Court of Louisiana.
    May 21, 1979.

      Claude R. Sledge, Indigent Defender, Mansfield, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James Lynn Davis, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Gretna, for plaintiff-appellee.
   CALOGERO, Justice.

Defendants’ principal complaint in this appeal is that the trial court erred in refusing to grant a motion for continuance filed twenty days following arraignment and five days prior to trial. For the reasons we relate hereinafter, and because defendants’ other two arguments are also non-meritorious we affirm defendants’ convictions and sentences.

Defendants Rickey Durio and Lawrence Cooper, Jr. were charged by indictment with second-degree murder, a violation of R.S. 14:30.1. Tried by a jury of twelve, they were found guilty as charged and sentenced to life imprisonment.

Testimony at trial established that on the evening of December 17, 1977, three men drove to the general store in the Mount Zion Community in Sabine Parish. The store was closed, but two of the men approached the house behind the store in which Lucille and Henry Davidson lived. After they knocked on the door and Mrs. Davidson answered, the two men forced their way inside and demanded money. When the amount produced proved insufficient, they beat Mrs. Davidson. The third man, who had been acting as a lookout, ran into the house. Although he was there only for an instant the Davidsons identified the third man as a long-time neighbor and customer at their store.

Within several hours Kenneth Ray “Jake” Smith was arrested in the nearby town of Pleasant Hill, trying to exchange some of the silver coinage taken in the robbery for bills. Smith was identified as the lookout. He confessed to the police, implicating the defendants Durio and Cooper. Lawrence Cooper was arrested in Baytown, Texas, about February 16, 1978; Durio was arrested in April, 1978, at a location not given in the record.

Several days after the robbery Mrs. Davidson began to experience violent headaches, and was admitted to Schumpert Hospital in Shreveport. Doctors there found blood pooling around the brain (a subdural hematoma) and drained the area. Mrs. Davidson was then transferred to Confederate Memorial Hospital in Shreveport where she contracted bronchial pneumonia and died on February 9, 1978. Defendants Du-rio and Cooper were indicted on September 13, 1978 for second-degree murder. Kenneth Smith, the third man, was allowed to plead to a lesser offense in return for his testimony at trial.

ASSIGNMENT OF ERROR NO. 1

Denial of Defendants' Motion for Continuance

The defense motion for a continuance related solely to counsel’s need for adequate time to review medical evidence and prepare to defend against the state contention that Mrs. Davidson’s death resulted from the beating inflicted upon her by the defendants when she was robbed.

The prosecution on the instant charge began when defendants were indicted for second degree murder on September 13, 1978. On September 19th, defense counsel was notified of his appointment. Defendants were arraigned September 20th, at which time trial was set for October 16, 1978.

Counsel filed discovery motions on September 22nd, and was promised on September 28th copies of whatever he wanted from the state’s file. On October 4th, when he had an opportunity to view the state’s file, he found that it contained no medical records. Nonetheless, on October 6th he was put in touch with Dr. George McCormick a forensic pathologist from whom he learned, by telephone, the conclusions reached as to the cause of death in the autopsy report. Dr. McCormick mailed a copy of his report to defense counsel. It was apparently not received until sometime between October 11th and October 13th. Counsel also learned from Dr. McCormick that the victim had been operated on and had received care at Confederate Memorial Hospital in Shreveport in connection with the beating she had received. Counsel did not review the victim’s records at the hospital and when the hospital refused to release the records to him without a subpoena, he filed a request for a subpoena and a motion for a continuance on October 11th. The motion for a continuance was denied at a contradictory hearing on October 13th and trial commenced on October 16th.

Article 712 of the Louisiana Code of Criminal Procedure provides that:

“[a] motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor.”

The general rule is that the denial of a continuance is not ground for reversal absent an abuse of discretion. State v. Hammontree, 363 So.2d 1364 (La.1978); State v. Lukefahr, 363 So.2d 661 (La.1978).

This Court has generally declined to reverse convictions absent a showing of specific prejudice caused by denial of a continuance. See e. g., State v. Hopkins, 351 So.2d 474 (La.1977); State v. Kenner, 336 So.2d 824 (La.1976); State v. Smith, 322 So.2d 197 (La.1975); and State v. Brewer, 301 So.2d 630 (La.1975) in which this Court found no abuse of discretion when the trial court denied the motions for continuance when there were three months, thirty-five working days, ninety days and three weeks respectively for counsel to prepare for trial and where there was no showing of specific prejudice.

Only where preparation time was so minimal as to call into question the basic fairness of the proceeding has the Court excused the failure to allege specific prejudice. In State v. Winston, 327 So.2d 380 (La.1976), for instance, we reversed the defendant’s conviction for distribution of heroin when defense counsel was given only three days in which to prepare for trial. For a similar result, see United States v. Millican, 414 F.2d 811 (5th Cir. 1969), in which the Fifth Circuit reversed defendant’s conviction for causing stolen goods to be placed in interstate commerce because defense counsel, working on his first criminal case, had only two days in which to prepare for trial.

Similarly in the recent case of State v. Benson, 368 So.2d 716, (La.1979), this Court reversed a conviction for denial of a continuance even without a showing that exculpatory evidence would have been presented, and without a specific allegation or showing of prejudice, where counsel, whose diligence was not seriously questioned, had only three days (over a weekend) to evaluate the importance of a note given the bank teller by an armed robber and to obtain expert opinion concerning the note, in a case where identity of the robber was seriously in dispute. The decisions in Winston and Benson suggest that when preparation time is unreasonably short, counsel has been diligent, and there is a general allegation of prejudice, denial of a motion for continuance is an abuse of discretion and constitutes reversible error.

In the present case, while a grant of a continuance would certainly not have been unwarranted, we cannot conclude that the trial judge abused his discretion, nor that defendants were so prejudiced by the denial as to require reversal of their convictions.

Counsel, aware a full twelve days prior to trial that the state’s file lacked medical records, learned from Dr. George McCormick, the forensic pathologist who performed an autopsy on the victim, his conclusions as to the cause of the victim’s death. (Dr. McCormick testified at trial that the cause of death was bronchial pneumonia). Counsel also learned in that conversation that the victim had undergone cranial surgery at Schumpert Hospital. He was or should have been alerted at that time to the possible significance to his defense that defendant died post-operatively from bronchial pneumonia, and to the need to explore that avenue. •

An equally significant factor influencing our decision that defendants were not prejudiced by denial of the continuance is the medical testimony at trial. Dr. McCormick, called by the state, testified as to the cause of death. He stated that the autopsy performed on Mrs. Davidson indicated that she had died of bronchial pneumonia, that the probable cause of the pneumonia was hospitalization and varying degrees of unconsciousness secondary to the subdural hemorrhage, and that the pneumonia was a direct result of the beating.

Dr. Randolph Taylor, the admitting physician at Confederate Memorial, testified essentially the same as Dr. McCormick: that while in the hospital recovering from the blows to her head, Mrs. Davidson contracted bronchial pneumonia and died, but had she not been required to lie down in bed for such a prolonged period, it is unlikely that she would have contracted pneumonia.

The stipulated testimony of Dr. Frederick Boykin, the surgeon who had operated to relieve pressure from the hematoma, was to the effect that Mrs. Davidson had no reason to be in the hospital other than the damage occasioned to her brain. He conceded that chances for a complete recovery following surgery had been good.

In this context, counsel’s contention that he might have prepared a better medical case is unconvincing. There is no merit to this assignment.

ASSIGNMENT OF ERROR NO. 2

Defendant, Cooper, moved to quash the indictment of second degree murder based upon grounds that “the court failed to have defendant Lawrence Lee Cooper, Jr., appear in court pursuant to La.C.Cr.P. art. 230.1 paragraphs A and B.” The trial court’s denial of the motion is the basis of this assignment.

There is no merit to this assignment. Section D of Article 230.1 provides that “the failure of the sheriff to comply with the requirements herein shall have no effect whatsoever upon the validity of the proceedings thereafter against the defendant.”

ASSIGNMENT OF ERROR NO. 3

In this assignment defendant, Cooper, contends that the trial court erred in refusing to hold Section D of Article 230.1 of the Code of Criminal Procedure unconstitutional. He contends that Section D violates the defendant’s right to due process and equal protection of the laws and also denies him the right to counsel.

In State v. Gibson, 357 So.2d 1092 (La.1978), the Court stated that the primary goal of Article 230.1 is the prompt appointment of counsel. The very statute which is designed to accomplish that plausible goal specifically provides in Section D that the failure to comply shall have no effect whatsoever upon the validity of the proceedings thereafter against the defendant. The statute taken as a whole is designedly of limited effect: “if the arrested person is not brought before a judge . . ., he shall be released forthwith.”

Section D does not violate the due process and equal protection clauses of either the United States or Louisiana Constitutions. Any violation of due process or denial of effective assistance of counsel (guaranteed by Powell v. Alabama and its progeny) occurring during the period defendant is held beyond seventy-two hours and until counsel is appointed which is of sufficient magnitude to require reversal of defendant’s conviction is independent of defendant’s being denied the statutory right to a hearing within seventy-two hours as provided by Article 230.1. Therefore Section D of that statute is not unconstitutional.

ASSIGNMENT OF ERROR NO. 4

In this assignment defendant, Cooper, contends that because he was not brought before a judge for the appointment of counsel within seventy-two hours of his arrest, he should have been released from custody in accordance with Article 230.1(C). The fact that defendant had been held beyond seventy-two hours without the appointment of counsel was not brought to the trial court’s attention until defense counsel filed a motion to have defendant released on October 11, 1978, nearly a full month after counsel had in fact been appointed and only five days before the commencement of trial. While the trial court’s denial of the motion to have defendant released may have been error, and may have prompted this Court to order him released had he sought supervisory writs to review the ruling at the time, we review this ruling after defendant has been convicted and sentenced. The issue at this point in the proceeding is now certainly moot.

ASSIGNMENT OF ERROR NO. 6

Defendants contend that the trial court erred in denying their motion for a new trial. They argue that because the medical testimony introduced at trial indicated that Mrs. Davidson died of bronchial pneumonia and not from head injuries sustained as the result of a beating, the verdict finding them guilty of second degree murder is contrary to the law and the evidence.

In State v. Wilson, 114 La. 398, 38 So. 397 (1905) a similar argument was raised. In that case defendant was found guilty of murder when the victim he shot subsequently died from pneumonia. Based on medical testimony which indicated that the victim would not have contracted pneumonia but for the gunshot wound, this Court held that causation had been established. The court found that if the defendant “hastened the termination of life, or contributed, mediately or immediately, to the death, in a degree sufficient to be a clearly contributing cause, that is sufficient.” A similar standard for determining causation in fact is approved by LaFave and Scott in their treatise on criminal law. The test adopted there is “Was the defendant’s conduct a substantial factor in bringing about the forbidden result.” LaFave and Scott, Criminal Law, § 35, p. 250 ff. See also Focht, Proximate Cause in the Law of Homicide, 12 Cal.L.Rev. 19, 27 (1938).

It is clear from the testimony produced by the state that the legal cause of the victim’s death was the injuries inflicted on the victim at the time of the beating. All three medical experts testified that Mrs. Davidson died of bronchial pneumonia but stated that the probable cause of the pneumonia was the depressed state of her defense systems due to the head injuries and the operation necessitated by them. In his testimony Dr. McCormick explained that the contraction of pneumonia is a common result of a patient’s position and comatose state following traumatic injury.

A motion for a new trial based on the lack of evidence to support the verdict does not raise a reviewable question of law unless there is a total lack of evidence to prove the crime or an essential element thereof. State v. Williams, 310 So.2d 513 (La.1975). A review of the testimony at trial indicates that there was substantial evidence presented that the legal cause of the victim’s death was the injuries inflicted by the defendant. This assignment therefore lacks merit.

Decree

For the foregoing reasons the convictions and sentences of defendants are affirmed.

AFFIRMED.

DIXON, J., concurs and assigns reasons.

DIXON, Justice

(concurring).

I respectfully concur, but only because the record does not support the claim of prejudice from the denial of the continuance.

      . Defendants rely upon eight assignments of error, five of which are consolidated into three arguments in defense brief. The remaining three which were neither briefed nor argued are considered abandoned.

      . This was defense counsel’s first request for a continuance, made just twenty-six days after indictment and twenty-one days after counsel was notified of his appointment.

      . Louisiana Code of Criminal Procedure Article 230.1 provides:
      “A. The sheriff having custody of an arrested person shall bring him promptly, and in any case within seventy-two hours from the time of the arrest, before a judge for the purpose of appointment of counsel. Saturdays, Sundays, and legal holidays shall be excluded in computing the seventy-two hour period referred to herein.
      B.At this appearance, if a defendant has the right to have the court appoint counsel to defend him, the court shall assign counsel to the defendant. The court may also, in its discretion, determine or review a prior determination of the amount of bail.
      C. If the arrested person is not brought before a judge in accordance with the provisions of Paragraph A of this Article, he shall be released forthwith.
      D. The failure of the sheriff to comply with the requirements herein shall have no effect whatsoever upon the validity of the proceedings thereafter against the defendant.”

      . It should be noted that at least one Justice of this Court, my brother Justice Tate, believes that the remedy for violation of the article is exclusion of any statement secured when counsel should have been but was not afforded. Justice Tate in that case concurred in a majority determination on a writ application concluding that the right to be released was moot' where counsel had been provided, however late. Justices Dixon, Dennis and the author, in that case, were of the view that Article 230.1 was unequivocal and required the immediate release of the defendant. See State v. Daigle, 353 So.2d 287 (La.1977).


author: PER CURIAM.

text:
    STATE of Louisiana v. Alton J. BATISTE.
    No. 63865.
    Supreme Court of Louisiana.
    May 30, 1979.
    Allen R. Ingram, Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Byron P. Legendre, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant was convicted of aggravated rape, La.R.S. 14:42 (1942), and was sentenced to life imprisonment at hard labor, without benefit of parole, probation, suspension or commutation of sentence. We have reviewed the assignments of error presented on his behalf, and find them to be without merit.

We find, however, an error patent in the sentence imposed. At the time the offense was committed (1970), death was the statutory penalty for rape. The jury was authorized to return a verdict of either guilty, guilty without capital punishment, guilty of attempted aggravated rape, guilty of simple rape, or not guilty. La.C.Cr.P. art. 814 (1950). The defendant was not tried until 1973, however, after the Supreme Court had declared unconstitutional the procedure by which the death penalty was imposed in Louisiana. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). In the defendant’s case the jury returned a verdict of guilty as charged. As the death penalty could not be imposed, the proper sentence is life imprisonment. State v. Quinn, 288 So.2d 605 (La.1974); State v. Franklin, 263 La. 344, 268 So.2d 249 (1972). We note that this will restore to the defendant the possibility of parole, probation, suspension or commutation of sentence.

Accordingly, the defendant’s conviction is affirmed, but the sentence is vacated and the case remanded to the trial court for resentencing.


text:
    STATE of Louisiana v. WRESTLE, INC. and Daniel W. Burch.
    No. 61342.
    Supreme Court of Louisiana.
    May 31, 1979.
    Jack Peebles, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiffs-appellees.
   PER CURIAM.

Defendants Wrestle, Inc. and Daniel W. Burch were jointly charged in two counts with exhibition and display of obscene hardcore sexual conduct. La.R.S. 14:106. The six-member jury unanimously convicted defendant Wrestle, Inc. and, by vote of 5-1, likewise convicted defendant Burch of both counts. This Court affirmed the convictions on appeal. State v. Wrestle, Inc., 360 So.2d 831 (La.1978). The United States Supreme Court granted certiorari, affirmed the conviction of Wrestle, Inc., which had been convicted by a unanimous jury, but reversed the conviction of Burch, holding unconstitutional, as violative of the right of an accused to trial by jury guaranteed by the Sixth and Fourteenth Amendments, the provisions of Louisiana law which permit conviction by five out of six jurors. Burch v. Louisiana, —- U.S. -, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979). The High Court has now remanded the case to this Court with the following mandate:

ON CONSIDERATION WHEREOF, it was ordered and adjudged on April 17, 1979, by this Court that the judgment of the Supreme Court of Louisiana in this cause be reversed in part, with one half of the total costs to be taxed against the respondent therein, and affirmed in part; and that this cause be remanded to the Supreme Court of the State of Louisiana for further proceedings not inconsistent with the opinion of this Court.
IT WAS FURTHER ORDERED that Daniel Burch recover from the State of Louisiana Seventy-five Dollars ($75) for his costs herein expended.
NOW, THEREFORE, THE CAUSE IS REMANDED to you in order that such proceedings may be had in the said cause, in conformity with the judgment of this Court above stated, as accord with right and justice, and the Constitution and Laws of the United States, the said writ notwithstanding.

Accordingly, the conviction and sentence of defendant Wrestle, Inc. is affirmed, the conviction and sentence of defendant Burch is reversed, and the case is remanded to the Criminal District Court for the Parish of Orleans for further proceedings not inconsistent with the opinion and mandate of the Supreme Court of the United States.

      . La.Const. Art. 1, § 17 (1974); La.C.Cr.P. arts. 779, 782.


text:
    STATE of Louisiana v. Phil PHILLIPS.
    No. 63941.
    Supreme Court of Louisiana.
    May 31, 1979.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., W. Gregory Ar-nette, Jr., Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Asst. Dist. Atty., for plaintiff-relator.
    David J. Dennis, New Orleans, for defendant-respondent.
   PER CURIAM.

On December 19, 1978, the state charged by bill of information that “Phil Phillips” had committed the crime of unauthorized use of moveables in violation of La.R.S. 14:68. Defendant was arraigned under the indictment and pleaded not guilty. On January 9, 1979, the case was brought to trial. After the state had concluded its case-in-chief, defendant was called to the stand. Upon his testifying that his real name was Phillip Batiste and that “Phil Phillips” was an alias, the state moved to amend the name charged in the indictment in conformance with defendant’s testimony. However, the trial court sustained a defense objection, disallowed the amendment and dismissed the prosecution. We granted the state’s application for writs to review the ruling.

We find that the trial court’s refusal to permit the proposed amendment contravened the terms of La.C.Cr.P. Art. 466, which provides:

In an indictment it is sufficient for the purpose of identifying the defendant to state his true name, or to state the name, appellation, or nickname by which he is known, or if no better way of identifying him is practicable, to state a fictitious name, or to describe him as a person whose name is unknown, or in any manner. In stating the true name or the name by which defendant is known or a fictitious name, it is sufficient to state a surname and one or more given names, or a surname and one or more abbreviations or initials of a given name or names.
If the true name of a defendant identified in the indictment otherwise than by his true name is discovered, the court shall cause the indictment to be amended to show his true name, and the proceedings shall continue against the defendant in his true name.
In no ease is it necessary to aver or prove that the true name of the defendant is unknown to the grand jury, complainant, or prosecuting officer, (emphasis supplied)

In the instant case, the defense made no argument that the indictment was not “sufficient for the purpose of identifying the defendant.” Indeed, the contrary appears from the record: defendant responded to the indictment and was arraigned under it. When there is no question as to the identity of the accused as the person charged with the commission of the crime, the trial court should cause the indictment to be amended to show the accused’s true name, and the proceedings should continue against him. La.C.Cr.P. Art. 466, supra; State v. Neal, 231 La. 1048, 93 So.2d 554 (1957). See also, State v. Sneed, 328 So.2d 126 (La.1976); State v. Pierre, 39 La.Ann. 915, 3 So. 60 (1887).

Because the trial court’s ruling flowed from a defense objection, the constitutional protection against double jeopardy does not apply in this case to bar defendant’s reprosecution. See, U.S.Const., Amend. V, Amend. XIV; La.Const., Art. I, § 15; La.C.Cr.P. Art. 591; United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); State v. Wesley, 347 So.2d 217 (La.1977).

Accordingly, the ruling of the trial court is reversed, and the case is remanded for further proceedings consistent with this opinion.


author: GULOTTA, Judge.

text:
    Mr. and Mrs. Alfred L. LAMBERT, Sr. v. DONALD G. LAMBERT CONSTRUCTION COMPANY, Donald G. Lambert, Charles R. Bell and Prestige Casualty Company.
    No. 9309.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 20, 1978.

      Wayne Douglas Mancuso, Metairie, for plaintiffs-appellees.
    Young, McMahon & Levert, Robert J. Young, Jr., New Orleans, for defendants-appellants.
    Before GULOTTA, BEER and GAR-SAUD, JJ.
   GULOTTA, Judge.

Plaintiff, Alfred Lambert, while driving his automobile in a northerly direction on Colonial Club Drive in Jefferson Parish was struck on the left front by defendant’s truck, traveling in an easterly direction on Jefferson Highway as plaintiff was attempting to cross the traffic light-controlled intersection. The trial judge, concluding that plaintiff was favored by a green light, rendered judgment against defendants. The truck driver did not testify nor appear at the trial.

In this appeal, defendants contend that 1) plaintiff, Alfred Lambert, was negligent in not maintaining a lookout and in not looking to his left or right before entering the intersection; and 2) the automobile, damaged in the accident, for which Lambert was awarded $6,000.00 was not in fact owned by him but by either “Lambert’s in' Metairie, Inc.” or “Lambert’s Datsun” and Lambert is not the proper party to seek damages to the vehicle.

In answer to the appeal, plaintiffs complain of the inadequacy of the $10,000.00 general damage award for injuries sustained by Alfred Lambert, the $1,319.00 special damage award and the $6,000.00 award for loss of the vehicle. Plaintiffs also seek reversal of the dismissal of Mrs. Lambert’s claim for damages. Although not a passenger in the vehicle at the time of the accident, her claim is based on an “interruption of daily activities and life-style & emotional and mental duress”.

LIABILITY

In written reasons incorporated in the judgment, the trial judge concluded the defendant truck driver “was negligent and that such negligence was the proximate cause of the accident”. The record supports the trial court’s conclusion. Lambert testified that he had stopped at the intersection in obedience to a red light, waited until the light turned green and then proceeded to cross the intersection. His testimony was corroborated by two independent eyewitnesses. No evidence was offered contradicting plaintiff’s testimony that he proceeded across the intersection, favored by a green light, and that defendant’s truck “ran the red light”.

We reject defendants’ contention that because Lambert failed to look either to his left or right before entering the intersection he was contributorily negligent. One eyewitness, who was stopped at the red light while headed in a westerly direction on Jefferson Highway, testified that plaintiff had come across the intersection in the normal flow of speed from a stopped position and “was in no hurry to get across”. There exists no evidence in the record indicating that plaintiff, by an inordinate burst of speed, carelessly entered the intersection oblivious to his surroundings. We conclude the trial judge’s finding of negligence on the part of the defendant truck driver is correct.

AUTOMOBILE LOSS

We do find merit, however, to defendants’ contention that the trial judge erred when he awarded to plaintiff the purchase price for the loss of the automobile damaged in the accident. Notwithstanding plaintiff’s testimony that the automobile was purchased for his personal use and was used by him, the documentary evidence clearly establishes that the automobile was invoiced to “Lambert’s Datsun” from Pontchartrain Motor Company, Inc. on May 14, 1975, the date of the purchase; that an assignment of title was made on the same date from Pontchartrain Leasing Company, Inc. to Pontchartrain Motor Company, Inc. and a reassignment of title, on that date, from Pontchartrain Motor Company, Inc. to Lambert’s Datsun. Furthermore, Lambert testified the automobile was purchased with a check from “Lambert’s in Metairie, Inc.” Plaintiff did state, however, that he owned Lambert’s; that Lambert’s Datsun was nonexistent and was “just a figment”; that his personal funds and corporate funds were cómingled in Lambert’s in Metairie, Inc. and that in reality he was the owner of the vehicle. Despite Lambert’s uncorroborated testimony to the contrary, the ownership of the damaged automobile was either in Lambert’s Datsun or Lambert’s in Metairie, Inc. The automobile was owned by the Lambert company, the corporate entity, and not by Lambert personally. We conclude, under the circumstances, Lambert individually is not the proper party to assert a claim for loss of the damaged vehicle. Plaintiff, therefore, is not entitled to recover for this loss.

QUANTUM

We fail to find support for plaintiffs’ contention that the $10,000.00 general damage award in favor of Alfred Lambert is inadequate. Lambert sustained a commi-nuted fracture of the left collarbone and a hematoma of the right ankle secondary to a contusion. Immediately after the July 8, 1975 accident, plaintiff was taken to the emergency room at Southern Baptist Hospital. His left shoulder was placed in a “figure of eight bandage” and sling, and he was administered muscle relaxants and pain medication. Approximately one week post-accident, swelling of his previously polio-afflicted left leg was evidenced and an elastic stocking was prescribed. Plaintiff was required to wear the shoulder “strap” and sling for approximately four weeks and the sling alone for an additional two weeks. Because of loss of mobilization in the left extremity, Lambert undertook physical therapy and an exercise program for the shoulder over an approximate period, off and on, of 15 months’ duration. The permanent partial disability referable to the left upper extremity was evaluated by one physician between 5-10% and by his treating physician as 15%. Lambert’s injuries considered, we cannot say the $10,000.00 general damage award constitutes an abuse of the trial court’s discretion.

Our examination of the record reveals, however, that the $1,319.00 special damage award is in error. The stipulated amount of the damages totals $1,369.00. Accordingly, in conformity with the stipulation, the special damage award is increased by the sum of $50.00.

MRS. LAMBERT’S CLAIM

Finally, we find no error in the trial court’s dismissal of Mrs. Lambert’s $5,000.00 claim for damages for “interruption of daily activities and life-style & emotional and mental duress”. Other than her testimony that her husband’s injuries required the exercise of solicitous wifely care and the discontinuance of her card games and bowling during her husband’s convalescence, we find no evidentiary support for this claim.

DECREE

Accordingly, for the foregoing reasons, that part of the judgment awarding plaintiff, Alfred Lambert, $6,000.00 for the loss of the vehicle is reversed and set aside. That part of the judgment awarding plaintiff special damages in the sum of $1,319.00 is increased to the sum of $1,369.00. That part of the judgment awarding plaintiff, Alfred Lambert, $10,000.00 in general damages for injuries sustained- and that part of the judgment dismissing Mrs. Alfred Lambert’s claim for damages is affirmed.

REVERSED IN PART; AMENDED IN PART AND AS AMENDED IN PART AFFIRMED.


author: PONDER, Judge.

text:
    Nile L. MACK, Plaintiff and Appellee, v. Mabel S. MACK, Defendant and Appellant.
    No. 12549.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.
    W. D. Atkins, Sr., Baton Rouge, for plaintiff and appellee.
    A. W. Wambsgans, Metairie, for defendant and appellant.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Defendant appealed from the judgment making executory a foreign judgment of divorce and decreeing plaintiff the owner of an undivided one-half interest in all community property within the jurisdiction of the court.

The issues are: the propriety of overruling a plea to the venue and of proceeding to an immediate trial on the merits after the overruling of the plea without any answer or preliminary default.

We reverse and remand with instructions.

Plaintiff, a resident of Livingston Parish, filed a petition asking for recognition of a judgment of divorce obtained in Arkansas and for a decree that plaintiff is the owner of one-half of all community property “within the jurisdiction of this Court.”

Defendant filed an exception to the jurisdiction over the person of the defendant and a plea to the venue. The exceptions were set for hearing. The judge to whom the case was allotted recused himself and the case was continued without date.'

Evidently, before the recusal, however, a written stipulation was entered into that defendant was domiciled in Jefferson Parish, that plaintiff owned no property in Livingston Parish and that the immoveable community property was in Jefferson Parish.

Later, the exceptions were reassigned. On the date of the hearing, however, attorneys for the defendant failed to appear, whereupon the court overruled the exception of lack of jurisdiction over the person and the plea to the venue and granted judgment recognizing and making executo-ry the Arkansas judgment of divorce, decreeing a judgment of absolute divorce between the parties, decreeing plaintiff to be the owner of an undivided one-half of all the community property lying “within the jurisdiction of this court,” and making the rule absolute in favor of the plaintiff.

The overruling of the plea to the venue was improper. This is not a suit for a divorce nor is it one for partition of community property. The proper venue is that of the domicile of defendant. C.C.P. Art. 42.

Defendant cites Smith v. Dendinger, 349 So.2d 907 (1st Cir. 1977), for the proposition that the court was justified in overruling the exception and plea. The case stands for the proposition that the court is justified in ruling on the exception even if counsel fails to appear. Here the court had a stipulation in the record to facts that made it clear that venue was not proper. The plea should have been maintained.

The error was compounded when the court proceeded to trial on the merits without an answer, without a preliminary default, without notice of trial on the merits and without presence of counsel. C.C.P. Art. 1001 allows ten days for filing an answer when an exception has been overruled. Evidently, because of the statement that the rule is made absolute, the court was under the mistaken impression that a rule had been issued. This is incorrect and would have been improper use of summary proceedings, had it been used.

For these reasons the judgment is reversed and the case is remanded with instructions to transfer the case to the proper venue.

REVERSED AND REMANDED.


text:
    Frank V. MOISE, Jr. v. LOUISIANA STATE EMPLOYEES’ RETIREMENT SYSTEM.
    No. 12540.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.
    Writ Refused June 11, 1979.

      William V. Courtney, Covington, of counsel, for plaintiff-appellant, Prank V. Moise, Jr.
    William T. Reeves, Jr., Asst. Atty. Gen., Baton Rouge, of counsel, for defendant-ap-pellee, Louisiana State Employees’ Retirement System.
    Before COVINGTON, PONDER and SARTAIN, JJ.

       Serving by appointment of the La.Sup.Ct.

   PONDER, Judge.

Plairitiff appealed from the denial of his petition to require defendant to refund his contributions to a retirement system.

The sole issue is the propriety of that holding.

We affirm.

As Deputy Judicial Administrator of the Louisiana Supreme Court, plaintiff, while a member of the Louisiana State Employees’ Retirement System, made contributions to that system.

Act 518 of 1976 set up a Retirement Plan for Judges and Officers of the Court in the Louisiana State Employees’ Retirement System. The judges and specified court officers in office were allowed to join the system. The Act had a provision allowing plaintiff the option to avail himself of the provision of the Act “as though he were not such a member.” Another provision allows the transfer to the plan from any other state, municipal, parochial or other statewide or local retirement system. This requires the transfer of the contributions, both employee’s and employer’s, to the Louisiana State Employees’ Retirement System. Any person who elects to come under the Plan shall be eligible for credit for prior service as a judge or court officer “without contribution therefor on his part.” Any person becoming a member “shall be immediately vested with all the benefits, emoluments and conditions of the system and also with the additional benefits provided by this Part.”

Plaintiff has elected to be covered by the Plan. In another suit, No. 12,367 on the docket of this Court, he has been declared to be eligible to retire under the requirements of his prior system but to have the survival benefits of the Plan. He now seeks to have returned all his contributions.

We believe that the issue narrows down to the very restricted one of whether the Legislature intended that he be given a refund. We agree with the lower court in its conclusion that the Legislature did not so intend.

Plaintiff asserts he comes under a provision, § 23, that covers him alone, in allowing him to enter the new Plan. Even if more come within the ambit, the number would be very restricted. Had the Legislature intended to require that he, or they, be given refunds, it would have been very easy to so state. Yet in § 17, the Legislature is very explicit in requiring the transfer of all prior contributions. Section 21 does speak of receiving credit for any service “creditable,” in the Louisiana State Employees’ Retirement System, without contribution. We believe that the Legislature was attempting to cover those who had not been members of any system and had not made any contributions therefor even though they might have been eligible to do so. The requirement of Section 17 for the transfer of funds leads us to believe it intended that if any had already secured “credit” for service and had also paid for that credit the contributions were to be utilized in the new Plan. Plaintiff’s situation is much more like those who were members in other retirement systems than to those who had not been making contributions to any system. Plaintiff has been credited in a retirement system; his service is not just creditable.

Plaintiff’s argument that the Plan is a totally new retirement plan distinct from the Louisiana State Employees’ Retirement System, with the latter simply serving as an administrator, runs counter to the statute which has provisions for judges and judicial officers to become members of the Louisiana State Employees’ Retirement System.

Plaintiff argues that the vesting of “all the benefits, emoluments, and conditions of the system and also with the additional benefits provided by this Part,” allows him to secure credit for all prior service and a refund of all his contributions. This would render inane the provisions of § 17 for the transfer of credit and funds, since those transferring from those systems would also be so vested. We therefore conclude that these benefits, emoluments and conditions do not include a refund of all contributions.

The State was under a constitutional mandate to pay judges retirement benefits without contribution of their part. The State’s obligation to plaintiff for retirement benefits was through the Louisiana State Employees’ System for which he had to make contributions. ■ Act 518 was passed to provide for a funded retirement system and to reduce the cost to the State. It recognized the State’s continuing obligation to those who had been under the constitutional provision, not requiring contribution. The State had no such obligation to plaintiff. It would be anomalous to ascribe to the Legislature the intent to provide a refund to plaintiff when the purpose was to require contributions where none had been required before and to reduce costs. A refund to plaintiff would be counter to the very purpose of the act.

For these reasons we affirm the judgment at appellant’s costs.

AFFIRMED.

      . LSA-R.S. § 13:14A:
      “A. Each judge and court officer described in R.S. 13:13 who is in office on the effective date of this Part is hereby granted the option to become a member of the Louisiana State Employees’ Retirement System for a period of one hundred twenty days from said date by electing to avail himself within said time of all the benefits, emoluments, and conditions of said system as presently provided by R.S. 45:541 through R.S. 42:699, and of all benefits, emoluments, and conditions otherwise applicable to said system by the statutory laws of Louisiana, including the provisions of this Part.”

      . LSA-R.S. § 13:23:
      “Any person covered by this Part who on the effective date hereof is a member of the Louisiana State Employees’ Retirement System shall have the option to avail himself of the provisions of this Part as though he were not such a member.”

      . LSA-R.S. § 13:17:
      “Notwithstanding any other provision of law to the contrary, any person covered by this Part who elects to become a member of the Louisiana State Employees’ Retirement System, shall, for a period of ninety days after the date on which he addresses a letter to the board advising it of such election, have the right to transfer to the Louisiana State Employees’ Retirement System his total accredited years of service from any other state, municipal, parochial, or other statewide or local retirement system which he leaves or has left. Transfer shall be effective upon the certification of total service credit by the retirement system transferring the member to the Louisiana State Employees’ Retirement System. The retirement system transferring the member also shall transfer the employee and employers contributions to the account of the transferee in full to the Louisiana State Employees’ Retirement System.”

      . LSA-R.S. § 13:21 A:
      “A. Any other provisions of law to the contrary notwithstanding, any person who elects hereunder to become a member of the Louisiana State Employees’ Retirement System shall be eligible to receive credit in the system for service rendered as a judge of any court in this state or as a court officer prior to becoming a member, or for any service creditable in the Louisiana State Employees’ Retirement System. Any such person in office on the effective date of this Part shall receive the creditable service for time served as a judge or court officer without contribution therefor on his part. Other such persons who take office after the effective date of this Part and who elect to become members shall receive the credit in accordance with the provisions of Chapter 10 of Title 42 of the Louisiana Revised Statutes of 1950.”

      . LSA-R.S. § 13:24:
      “Any person covered by this Part who elects to become a member of the Louisiana State Employees’ Retirement System shall be immediately vested with all the benefits, emoluments, and conditions of the system and also with the additional benefits provided by this Part.”


author: CHIASSON, Judge.

text:
    Richard R. BRASSEAUX, Plaintiff and Appellant, v. STAND-BY CORPORATION d/b/a Plantation Inn and Home Indemnity Company, Defendants and Appellees.
    No. 12579.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.

      Chris J. Roy, Gravel, Roy & Burnes, Alexandria, for plaintiff and appellant.
    Rudolph R. Schoemann, New Orleans, for defendants and appellees.
    Before CHIASSON, EDWARDS and SARTAIN, JJ.
   CHIASSON, Judge.

Plaintiff-appellant, Richard R. Brasseaux, sued for injuries sustained on June 3, 1976. The appellant was injured while in the process of showering when several bees stung him causing him to lose his balance, slip and fall injuring his left wrist. The defendants-appellees are the owner and operator of the motel and its insurer where the accident occurred. Judgment was rendered in favor of plaintiff-appellant in the trial court.

This appeal was taken by the appellant and the appellees answered the appeal.

We will discuss only one error, which we notice, since its disposition will pretermit our responding to the specifications for error made by the appellant and appellees.

We believe the trial judge was in error in failing to grant appellant’s motion for new trial.

The case was partially tried on December 6, 1977, and was fixed for completion on April 4, 1978. Following the first day of trial, at the request of the defendants, the plaintiff agreed to submit to a medical examination by Dr. Dan C. Rior-dan. The plaintiff submitted to the examination on January 17, 1978. Dr. Riordan issued a written report dated January 18, 1978. Counsel for the plaintiff executed an affidavit which stated that plaintiff agreed to be examined by Dr. Riordan under the express agreement that the report rendered by Dr. Riordan would be made available to plaintiff’s counsel upon receipt. The record also discloses a letter from plaintiff’s counsel to defendants’ counsel dated February 3, 1978 requesting a copy of Dr. Riordan’s report. On the morning of the second day of trial, April 4, 1978, plaintiff was furnished with a copy of Dr. Riordan’s report. When plaintiff attempted to introduce the report into evidence, the defendants objected and the trial court ruled it was not admissible. Plaintiff proffered Dr. Rior-dan’s report. We believe the trial court’s ruling as to the admissibility was correct because the report was hearsay.

Plaintiff made a motion for new trial limited to obtaining the deposition of Dr. Riordan for introduction into evidence of the case. The trial court denied the motion for new trial on the basis that the plaintiff “had plenty of time to secure the doctor’s presence or deposition or move for a continuance but did not.”

We find the trial court erred in failing to grant a partial new trial to the plaintiff. We do so for a number of reasons. The discovery provisions of the Louisiana Code of Civil Procedure which are analogous to the federal provisions are grounded on the principles of fairness and judicial efficiency. One of the reasons for providing for court ordered discovery and sanctions for noncompliance is to promote the purposes of discovery. A side effect of the discovery provisions is the exchange of information between litigants without having to utilize the courts. The net effect is an enhancement of the comity and custom between attorneys toward the end of expeditiously handling litigation. Thus, if discovery can be made by means of a court order, it encourages the exchange of information without a court order. This custom is to be encouraged to promote the effectiveness of the judicial system and prevent the unreasonable delay of its function. Evidence of these intentions is found not only in our constitution, Article I, Section 22 of the Louisiana Constitution of 1974, but also in the Louisiana State Bar Association’s Ethical Considerations and Disciplinary Rules. See DR 1-102(A), EC 7-38, DR 7-106(C). We believe adherence to the principles discussed above is the duty of every attorney. We believe that good faith is required of opposing counsels. We realize that certain decisions require a careful evaluation of client’s rights. However, in the instant case we believe defendants’ counsel had acted improperly in not providing the report to plaintiff’s counsel within sufficient time for plaintiff to evaluate the report and either secure the doctor’s presence or obtain his deposition.

We can not fault plaintiff’s counsel for not moving for a continuance on the second day of the trial when the report was given to him, considering the length of time taken to complete these proceedings and plaintiff’s impecunious circumstances.

For these reasons, we find that plaintiff should have been granted a partial new trial. We remand this case to the trial court solely for the purposes of obtaining the testimony of Dr. Dan C. Riordan and the trial court’s reconsideration of quantum in view of this additional medical testimony. By this decision we in no way limit the litigants’ rights to future appeal. Costs of this appeal are assessed against appellees.

REMANDED.

      . Stand-By Corporation d/b/a Plantation Inn. The .defendants’ insurer is Home Indemnity Company, also made a defendant in this suit.

      . We have pretermitted the liability question because of our conviction that piecemeal appeals should not be encouraged.


text:
    Andaline Marie DAY v. Albert Lawrence DAY.
    No. 12673.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.

      William D. Grimley, Baton Rouge, for defendant-appellant.
    Donna W. Lee, Baton Rouge, for plaintiff-appellee.
    Before CHIASSON, EDWARDS and SARTAIN, JJ.
   CHIASSON, Judge.

On September 22, 1978 and October 31, 1978, two judgments were entered via minute entries by the Family Court, East Baton Rouge Parish. On November 10, 1978, a motion for new trial was filed by the defendant-appellant which was denied by the court on December 7, 1978. An appeal was granted on December 13, 1978, and a written judgment was signed on January 3, 1979. Another appeal was granted from this judgment on February 15, 1979. On February 15, 1979, this court ex proprio motu issued an order to show cause why this appeal should not be dismissed for prematurity or untimeliness.

We believe the rule requiring a signed judgment before an appeal can be taken is one which is in the best interest of fairness to the litigants and judicial efficiency. Without a signed judgment, confusion and complications can easily arise which could result in an unfair advantage being given to a litigant. We particularly note the potential problems involved with an appeal taken with no signed judgment in relationship to the Louisiana Code of Civil Procedure, Articles 1913 and 1974, relating respectively to notice of the signing of judgments and the delay for applying for new trials.

While we disagree with the holding, we had understood Nomey v. State, Department of Highways, 325 So.2d 732 (La.App. 2nd Cir. 1976) to be limited in its application. The court in Nomey held:

“We believe it more in keeping with the spirit behind the Code of Civil Procedure to achieve an equitable and just result, that we adopt and follow the reasoning, authorities and rationale of the cases cited in the footnote denying the dismissal of the appeal. Appeals are favored under the law and the signing of the judgment appealed from at a point close in time to the time the judgment was orally stated, cures the alleged defect of a premature appeal, especially where the judgment as signed is not substantially different from the oral judgment; where the adverse party (the appellee) is not prejudiced and is given fair notice (see Paxton v. Ballard, 289 So.2d 85 (La.1974); Townsend v. Cleve Heyl Chevrolet, 318 So.2d 618 (La. App. 2d Cir. 1975) of the aim and purpose of the appellant’s oral or written request to appeal, the court’s granting of the appeal and the perfection of the appeal. These factors are present here and we respectfully choose not to follow our learned brothers of the First Circuit by dismissing the appeal under these circumstances.” (Emphasis supplied).

We do not know how many days elapsed between the time the judgment was orally stated and when the judgment was signed in Nomey. However, we understood the court to mean by its phrase “a point close in time” that a very short time span was involved.

We wish to emphasize that we read No-mey to say that if a judgment is signed at a point close in time to when it was orally stated, then an appeal taken before the judgment was signed would not be premature.

The court in Nomey also stated the following:

“In this case, as in the case of Namie v. Department of Highways, La.App., 325 So.2d 734, orders of appeal were sought, granted and perfected from a judgment of the lower court but before the judgment was signed. The judgment in each case was signed six days after the appeal and is in the record of each case.” (Emphasis supplied).

Nomey might be read to mean that any defect in prematurity of an appeal taken from an unsigned judgment would be cured if the judgment is signed at a point close in time to the granting of the appeal. We believe the Supreme Court used this interpretation when deciding Palmer v. Wren, 361 So.2d 1206 (La.1978). Using the above reading of Nomey any defect of prematurity is cured because only fourteen (14) days elapsed between the order of appeal (January 23, 1978) and the signing of the judgment (February 6, 1978). Fourteen (14) days was interpreted by our Supreme Court to be a “point close in time.”

We believe the Supreme Court read No-mey as we have just described because under our reading of Nomey as applied to Palmer, the defect in prematurity would not be cured since 138 days elapsed between the rendering of the judgment (September 21, 1977) and the signing of the judgment (February 6, 1978). We would have interpreted 138 days as not being a “point close in time.”

In the instant case, under what we believe to be the Supreme Court’s interpretation of Nomey, 21 days elapsed between the granting of the appeal (December 13, 1978) and the signing of the judgment (January 3, 1979). We find that 21 days is also a “point close in time.”

For these reasons the appeal is timely.

RULE RECALLED AND VACATED.


author: EDWARDS, Judge.

text:
    Louis David PORCHE v. Jacquelyn Turner PORCHE. Jacquelyn Marie PORCHE v. Louis David PORCHE, Sr.
    Nos. 12566, 12567.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.
    Writ Refused June 11, 1979.
    Johnnie A. Jones, Baton Rouge, for plaintiff-appellant Louis David Porche.

      Stephen M. Irving, Baton Rouge, for defendant-appellee Jacqueline Turner Porche.
    Before CHIASSON, EDWARDS and SARTAIN, JJ.
   EDWARDS, Judge.

Louis David Porche appeals a judgment of the trial court which awarded his divorced wife, Jacquelyn Turner Porche, the sum of $150 per month as child support for their minor son, Louis David Porche, Jr.

The contention on appeal is that the trial court erred in awarding the child support from November 7, 1977, in accordance with a previous stipulation of counsel, rather than from the date of judgment, September 12, 1978.

These two cases were consolidated prior to trial. The first case was a suit for separation from bed and board filed by Mr. Porche on April 23, 1974. Mrs. Porche answered and reconvened seeking child support for their minor child. Subsequently, Mrs. Porche filed the second suit on May 31, 1977, seeking inter alia a judgment of divorce.

A hearing was held on the consolidated cases on November 7,1977. At the hearing, counsel for Mr. Porche informed the court that the parties wished 1) to dismiss the separation suit, 2) to maintain the recon-ventional demand for child support, and 3) to submit evidence on the suit for divorce. Counsel for Mr. Porche stated:

“And at this hearing, there will be no evidence offered with regard to child support, but, by stipulation, we will appear to contest child support at a later date, and by consent make that retroactive to today.”

The judgment of divorce expressly reserved Mrs. Porehe’s right “to have the amount of the child support fixed at a later date”. No appeal was taken from this judgment.

On July 18, 1978, Mrs. Porche petitioned the trial court to fix the amount of child support. At the hearing on August 2, 1978, counsel reminded the court that it had been stipulated that child support would be made retroactive to November 7, 1977. The judgment awarding child support in the amount of $150 recognized and incorporated the stipulation by making the award due from November 7, 1977.

The record in this case clearly demonstrates that counsel for both parties agreed and stipulated on two separate occasions that the award for child support should begin as of November 7, 1977.

A hearing was held on the issue of child support on August 2, 1978, at which time the needs of the child and the ability of Mr. Porche were determined. Thereafter, the trial court fixed the amount due for child support and commenced the payments from the date agreed upon by both parties, November 7,1977. We do not find that this was error. A trial court is allowed discretion in determining the time alimony and child support awards shall begin. Richard v. Richard, 359 So.2d 696 (La.App. 1st Cir. 1978); Vetter v. Vetter, 299 So.2d 899 (La. App. 2nd Cir. 1974).

Regarding the amount of the award, we believe that such is supported by the record and well within the much discretion afforded trial courts in setting child support.

For the above reasons, the judgment appealed is affirmed at appellant’s cost.'

AFFIRMED.