text:
    Jimmy Lee CONEY, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1413.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.

      Bennett H. Brummer, Public Defender and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

The defendant Jimmy Lee Coney appeals his conviction of involuntary sexual battery with the use of actual physical force likely to cause serious injury (Count I), robbery with the use of a deadly weapon (Count II), burglary while being armed with a deadly weapon and the commission of an assault therein (Count III), and attempted premeditated murder while engaged in the perpetration of involuntary sexual battery, robbery, or burglary (Count IV). The defendant was tried before a jury and adjudicated guilty on all four counts. He was sentenced to 130 years imprisonment.

It is not necessary to recite the sordid details of defendant’s acts except to recite that the testimony at trial revealed that the defendant borrowed a car that belonged to another at his job site. The defendant then drove to a residence in Dade County, Florida, and sexually assaulted a child twelve years of age. The defendant then robbed the house of jewelry. He tied a macrame cord around the child’s neck, causing her to lose consciousness. Defendant has presented six points for our consideration.

Point one claims error because the trial court denied defendant’s pretrial motion for a psychiatric examination of the defendant. At the arraignment on April 13, 1976, a trial date of May 17, 1976, was set. On May 17, 1976, the proposed trial date, the trial judge granted defendant’s motion for a continuance. Nothing was mentioned to the court relating to the defendant’s alleged defense of insanity. The case was next set for trial on May 24,1976.

On May 24,1976, defense counsel presented a motion for psychiatric examination of the defendant. The court stated that it was the trial date and asked why the motion was filed on 4:20 p.m., the Friday afternoon before Monday of trial. Defense counsel made the naked assertion that the defendant had over-assessed his chances of being acquitted and, therefore, the court should grant a sanity hearing pursuant to Fla.R.Crim.P. 3.210.

Fla.R.Crim.P. 3.210(b) provides as follows:

“(b) At Time of Offense. When in any criminal case it shall be the intention of the defendant to rely upon the defense of insanity, no evidence offered by the defendant for the purpose of establishing such insanity shall be admitted in such case unless advance notice of such defense shall have been given by the defendant as hereinafter provided.
If the defendant upon arraignment, or prior thereto, notifies the court that he will rely upon insanity as one of his defenses, then the court will hear the parties and require the defendant to file, within such time as may be fixed by the court, a statement of particulars showing as nearly as he can the nature of insanity he expects to prove and the names and addresses of the witnesses by whom he expects to prove such insanity.
Upon the filing of said statement of particulars by the defendant, upon motion of the prosecution, the court may cause the defendant to be examined, in the presence of attorneys for the State and for the defendant, if they choose to be present, by one or more disinterested qualified experts, not exceeding three, appointed by the court, at such time and place as may be designated in the order of the court, as to the sanity, or insanity, of the defendant at the time of the com mission oí the alleged offense and subsequent thereto.
Upon good cause shown for the omission of the notices and procedure as to the defense of insanity, as here set forth, the court may in its discretion permit the introduction of evidence of such defense.”

The defendant did not comply with the notices and procedure as to the defense of insanity. The defendant, however, states that these requirements are not necessary where good cause has been shown and where the court in its discretion permits. Defense counsel did not present any factual basis for his motion. Insanity at the time of trial is governed by Fla.R.Crim.P. 3.210(a). We hold that the vague and unsubstantial assertion of the need for psychiatric evaluation just before trial was not sufficient to show error upon the court’s refusal of the examination. See Acree v. State, 153 Fla. 561,15 So.2d 262 (1943); and Robinson v. State, 256 So.2d 29 (Fla.3d DCA 1971). Cf. Grissom v. Wainwright, 494 F.2d 30 (5th Cir. 1974).

Point two claims reversible error upon the sustaining of the State’s objections to two questions propounded by the defense attorney upon cross-examination of the victim. An examination of the record shows that the defendant was not deprived of meaningful examination of the child on the issue of identification. No reversible error appears. See Dabney v. Yapa, 187 So.2d 381 (Fla.3d DCA 1966).

Point three asserts error upon the failure of the trial court to conduct a hearing on the claimed issue of defendant’s competency to be sentenced. Fla.R.Crim.P. 3.740(a) provides:

“(a) When the cause alleged for not pronouncing sentence is insanity, if the Court has reasonable ground to believe that the defendant is insane, it shall postpone the pronouncement of sentence and shall immediately fix a time for a hearing to determine the defendant’s mental condition. The Court may appoint not exceeding three disinterested qualified experts to examine the defendant and testify at the hearing as to his mental condition. Other evidence regarding the defendant’s mental condition may be introduced at the hearing by either party.”

Nothing appears in the record to indicate that the defendant was insane nor does the record show facts or a proffer of facts which would indicate a question concerning defendant’s sanity. See Gray v. State, 310 So.2d 320 (Pla.8d DCA 1975). Cf. Grissom v. Wainwright, 494 F.2d 30 (5th Cir. 1974). No error appears.

Point four claims error upon the court’s denial of defendant’s motion for a mistrial during the presentation of evidence. During the examination of Miss Rivers, who was a friend of the defendant, the State, without objection from the defendant, elicited testimony of the witness that after the day of the commission of the crime, defendant had asked the witness to leave town with him, “When he gets out of jail.” Later, after a conference outside the presence of the jury, the prosecutor next asked, “What did you tell the police, Miss Rivers, concerning your discussions with Mr. Coney about leaving town with him?” Defense counsel objected and stated, “He’s gone over that, Your Honor. This is repetitive.” The objection was overruled and the prosecutor then asked:

“Q. [By Mr. Woodard] What did you tell the police, Miss Rivers, on the 24th of March, 1976, with regard to Jimmie Coney’s discussions with you about leaving town with him?
A. He was saying that he wanted to leave town, you know, and he told me, you know, how much time he had in jail. I asked him, you know, why he wants to leave now.”

Defense counsel moved for a mistrial. The court denied the motion and the defendant rejected the court’s suggestion of a curative instruction.-

We hold that reversible error has not been shown. The question and answer added nothing that was not before the jury without objection. Further, the question and answer indicated contemplated flight which was relevant to the issue being tried. See Daniels v. State, 108 So.2d 755 (Fla.1959).

Point five claims error upon the court’s ruling restricting repetitious questions to the prospective jurors upon voir dire examination. The court made an opening statement to the prospective jurors and asked them some preliminary questions. The court exhaustively explained and asked for an audible answer upon the question of whether the prospective jurors understood the presumption of innocence and the requirement of proof beyond a reasonable doubt. Defendant was allowed a full examination of the prospective jurors except that he was precluded from the repetitive questions concerning their understanding of the law upon the presumption of innocence. We find no error upon the trial court’s ruling. See Mizell v. New Kingsley Beach, Inc., 122 So.2d 225 (Fla.1st DCA 1960); and Barker v. Randolph, 239 So.2d 110 (Fla.1st DCA 1970).

The defendant was permitted by order of this court to file a supplemental brief raising the question:

“Whether the trial court erred in sentencing the defendant without having first complied with the mandatory provisions of the Child Molester Act, Chapter 801, Florida Statutes.”

The point urged is that the trial judge was required, sua sponte, to order a psychiatric evaluation of the defendant because the victim was a child twelve years of age.

There is no doubt on this record but that the defendant was proved guilty of the common law crime of rape. The Supreme Court of Florida has held in Huckaby v. State, 343 So.2d 29 (Fla.1977):

“Although it has been argued that Huc-kaby should have been committed for treatment pursuant to the Child Molester Act, Chapter 801, Fla.Stat. (1973), that Act does not apply when the crime charged or proved is rape. Section 801.-041, Fla.Stat. (1973).” 343 So.2d 29 at 32, footnote 7.

See also Beatty v. State, 332 So.2d 365 (Fla.2d DCA 1976). Therefore, no error appears on the point presented by the supplemental brief.

Having examined each of defendant’s points and having found that no prejudicial error appears, the judgment is affirmed.

Affirmed.

      .Defense counsel stated at argument of the motion:
      sfc sg ;}: % s£ ‡
      “I have discussed this case several times with the Defendant. Informed one time, both by the Defendant and his mother that the case would be dismissed and then also was informed that the complaining witness was not, in fact, raped. Was told by the Defendant that she was not raped which is contrary to the evidence as submitted at the various depositions.
      On the evaluations of the Defendant there is a strong case against the Defendant and I have talked to the Defendant. He exhibited an attitude of euphoria with regard to his chances. He seems to have — he is a quiet man. He seems to be consistent in talking; seems to be coherent in talking. But, in evaluation of the situation he seems to be very out in space as far as the evaluation as to what the various situations that occur as to what happened and as to his chances before the Court, as to the fact that the case might be dismissed. Nobody has ever told me that this case would be dismissed and I am sure Mr. Woodard has never made any type of recommendation. But, there has been' — I have been told by the Defendant that the case will be dismissed; that the case was weak. Even after he had an evaluation of some of the factual situations which leads me to believe that he may be suffering from a — I am no psychiatrist. I am basing my representations to the Court in regard to my opinion as to this fact.”

      . “Rule 3.210. Insanity
      “(a) At Time of Trial.
      “(1) If before or during trial the court, of its own motion, or upon motion of counsel for the defendant, has reasonable ground to believe that the defendant is insane, the court shall immediately fix a time for a hearing to determine the defendant’s mental condition.”

      . “Q. Susan, have you ever mistaken one friend for another, even momentarily?

      Q. [By Mr. Beller] Susan, have you ever been mistaken by somebody who you thought was somebody you knew?”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Howard Terry SCIPPIO, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1484.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.
    Carr & Emory, Miami, and Vello Viski, for appellant.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

This cause having been orally argued before the court, the briefs and record on appeal having been read and given full consideration, and the appellant having failed to demonstrate reversible error, the judgment and sentence appealed are affirmed. See Treverrow v. State, 194 So.2d 250 (Fla.1967); State v. Crawford, 257 So.2d 898 (Fla.1972); Pickrell v. State, 301 So.2d 473 (Fla. 2d DCA, 1974); Jackson v. State, 307 So.2d 188 (Fla. 3d DCA 1975); State v. Davis, 308 So.2d 539 (Fla. 3d DCA 1975); Hawkins v. State, 312 So.2d 229 (Fla. 1st DCA 1975).

Affirmed.


text:
    Robert J. BUTLER, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1485.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.
    Bennett H. Brummer, Public Defender and Karen Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Athony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. State v. McCauley, 258 So.2d 453 (Fla. 1st D.C.A. 1972); Fla.R.Crim.P. 3.191(c).


text:
    Joyce C. ROSENFELD and Mary Radecki, Appellants, v. H. E. NASON, INC., a Florida Corporation, Appellee.
    No. 76-1508.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.
    Robert W. Stern, Miami, for appellants.
    Steve G. Morrow, Jr., Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Affirmed. Hernandez v. Travelers Insurance Company, 331 So.2d 329 (Fla. 3d DCA 1976); Jones v. Nichol, 300 So.2d 67 (Fla. 1st DCA 1974); Cuna Mutual Insurance Society v. Adamides, 334 So.2d 75 (Fla. 3d DCA 1976); Strawgate v. Turner, 339 So.2d 1112 (Fla.1976).


text:
    Josefa APODACA, Appellant, v. OLD SECURITY CASUALTY INSURANCE COMPANY, Appellee.
    Nos. 76-1590, 76-1764.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.
    Horton, Perse & Ginsberg, Luis Stabinski & Associates, Miami, for appellant.
    Vernis & Bowling, Coconut Grove, and Stephen N. Montalto, North Miami, for ap-pellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

The appellant Josefa Apodaca appeals from a final summary judgment precluding her from proceeding to arbitration against the appellee Old Security Insurance Co. on an uninsured motorist claim. She contends that it was unnecessary for her to proceed to judgment against the negligent tort-feasor before she could arbitrate her uninsured motorist claim because the tort-feasor’s liability insurance limits on bodily injury were less than the limits applicable under the uninsured motorist coverage. The law is clear that an injured plaintiff who has available uninsured motorist coverage may compel arbitration on an uninsured motorist claim without first proceeding to judgment against the negligent tort-feasor where the tortfeasor’s liability insurance limits are less than the limits applicable under the uninsured motorist coverage. Arrieta v. Volkswagen Insurance Co., 343 So.2d 918 (Fla. 3d DCA 1977). We, accordingly, reverse the final summary judgment and remand with directions to enter a judgment in which the appellant may compel arbitration on her uninsured motorist claim without first proceeding to judgment against the negligent tortfeasor.

Reversed.


text:
    Dr. David CASTANEDA, Marta Manzanilla Castaneda, and Marta Elena Castaneda, Appellants, v. PAN AMERICAN LAND DEVELOPMENT CORPORATION, a Florida Corporation, and General Accident Fire & Life Assurance Corporation, Ltd., a Foreign Corporation, Appellees.
    No. 76-1591.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.
    Stabinski, Funt, Tucker & Levine, P. A., and Norman D. Funt, Miami, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Knight and Fred R. Ober, Miami, for appellees.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Hinton v. Iowa National Mutual Insurance Company, 317 So.2d 832 (Fla.2d DCA 1975).


text:
    John Merrill BROWNE, Appellant, v. Catherine Virginia BROWNE, Appellee.
    No. 76-1631.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.
    Milton M. Ferrell, Miami, for appellant.
    High, Stack, Davis & Lazenby and Alan R. Dakan, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

The issue raised on this appeal was fully tried by consent of the parties and must be affirmed upon authority of Shaw v. Shaw, 334 So.2d 13 (Fla.1976), and Herzog v. Herzog, 346 So.2d 56 (Fla.1977).


text:
    Enrique RIVERA, a minor, by and through his mother and next friend, Jacinta Montes De Oca, Appellant, v. SOUTH CAROLINA INSURANCE COMPANY, a corporation licensed to do business in the State of Florida, Appellee.
    No. 76-1642.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.
    Grover, Ciment, Weinstein & Stauber, Miami Beach, and Allan S. Friedman, Miami, for appellant.
    Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. See: Sections 631.50 — 631.68, Florida Statutes (1975).


author: HUBBART, Judge.

text:
    Jack W. GIACALONE, Appellant, v. Austin BERNSTEIN, Appellee.
    No. 76-1866.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.
    Williams, Salomon, Kanner & Damian and Alan H. Lubitz, Miami, for appellant.
    Aronovitz & Weksler and Anne-Lise Gus-tafson, Miami, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   HUBBART, Judge.

In an action to recover on a promissory note, the defendant [James E. Giacalone] appeals from a summary final judgment rendered against him in favor of the plaintiff who was the payee on the note [Austin Bernstein], The defendant contends that he is not individually liable on the note because he signed the note with the word “by” preceding his name and the extrinsic evidence in the cause presents a genuine issue as to whether he signed the note in a representative capacity on behalf of a corporation. We cannot agree and affirm.

The law is clear under the Uniform Commercial Code that “[a]n authorized representative who signs his own name to an instrument [i]s personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity.” Section 673.403(2)(a), Florida Statutes (1975). Extrinsic evidence is admissible to show that the maker of a negotiable instrument signed in a representative capacity and is therefore not personally obligated on the note “if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the person signed in a representative capacity.” Section 673.403(2)(b), Florida Statutes (1975).

In the instant case, the defendant signed the promissory note in an individual capacity as a maker and is personally obligated thereon. The note neither names the person represented nor shows that the defendant signed in a representative capacity. The word “by” preceding the defendant’s signature on the note, without more on the face of the note, does not show that the defendant signed in a representative capacity. Dynamic Homes, Inc. v. Rogers, 331 So.2d 326 (Fla. 4th DCA 1976); Imperial Trading Co. v. Crescent City Restaurants, Inc., 230 So.2d 748 (La.App.1970). The defendant’s extrinsic evidence was therefore inadmissible to show that he signed as a representative for a corporation. Summary judgment was properly entered on the note against the defendant.

Affirmed.


text:
    Marvin James BENNETT, Appellant, v. STONEWALL INSURANCE COMPANY, Appellee.
    No. 76-1869.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.
    Abramson, Scremin, Mendigutia & Lib-man, Miami, and Sidney Z. Brodie, for appellant.
    Fleming, O’Bryan & Fleming and Ricardo J. Cata, Fort Lauderdale, for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

The plaintiff in a personal injury action appeals an order of equitable distribution entered pursuant to Section 627.736(3)(b), Florida Statutes (1975). The burden of appellant’s argument is that the trial court was too liberal with the insurance company and thereby abused its discretion. Our review of the record indicates that the trial court earnestly endeavored to follow the directions of the Supreme Court of Florida as set out in Williams v. Gateway Insurance Company, 331 So.2d 301 (Fla.1976). See also Stonewall Insurance Company v. Valbuena, 344 So.2d 603 (Fla. 3d DCA 1977). No misapplication of the law or abuse of discretion appearing on this record, the order appealed is affirmed.

Affirmed.


text:
    Clarence SIMPSON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1907.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1977.

      Clarence Simpson, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See State v. Matera, 266 So.2d 661 (Fla.1972) and Fulford v. State, 311 So.2d 203 (Fla.3d DCA 1975); Stullings v. State, 319 So.2d 640 (Fla.1st DCA 1975); Section 945.09(4), Florida Statutes (1974).


text:
    Marie Smith GIBSON, Appellant, v. Edward SMITH, Appellee.
    No. DD-426.
    District Court of Appeal of Florida, First District.
    Aug. 10, 1977.
    John M. Davis, Milton, for appellant.
    No Appearance for appellee.
   PER CURIAM.

The trial court’s order stating “The ar-rearage in the amount of $1,680 is forgiven” is in error. The court is without authority to forgive or dissolve an indebtedness for alimony unpaid under the court’s prior and unmodified order, although “by virtue of the general power of a court to control its own processes the court may, for strong equitable reasons, growing out of radically changed circumstances, refuse to enforce its decree by issuance of execution or by contempt . . ..” Pottinger v. Pottinger, 133 Fla. 442, 446, 182 So. 762, 763 (1938). See also Van Loon v. Van Loon, 132 Fla. 535, 182 So. 205 (1938); Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977). Although the order before us is without findings of circumstances which would justify denial of judgment and execution, the record is also unclear concerning an application for such relief. The order is therefore VACATED and the case REMANDED for proceedings consistent with this decision.

McCORD, C. J., and RAWLS and SMITH, JJ., concur.


author: RAWLS, Acting Chief Judge.

text:
    Johnnie JONES (Willie Felton), Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION and Louie L. Wainwright, Director of the Department of Offender Rehabilitation, Appellees.
    No. EE-440.
    District Court of Appeal of Florida, First District.
    Aug. 10, 1977.

      Kenneth S. Feldman, Halpern, Shenberg & Langer, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellees.
   RAWLS, Acting Chief Judge.

This appeal is from the trial court’s order denying a petition for writ of habeas corpus directed to appellees, Florida Parole and Probation Commission and Louie L. Wainwright, Director of Offender Rehabilitation. After conducting an evidentiary hearing, the Commission found that appellant Jones had violated the terms of his parole by participating in the robbery of certain named individuals.

Necessitating a reversal is the lack of evidentiary climate present in the course of the revocation hearing, which was cogently summed up at the outset of same by one of the commissioners who stated: “ . . . [W]e are not bound by any rules of evidence . . ..” The transcript of the proceedings confirms this statement. In the order denying the petition, the trial judge correctly found that revocation of parole may not be based solely on hearsay. Hampton v. State, 276 So.2d 497 (Fla.3rd DCA 1973). He incorrectly held that a sworn statement which had been given by appellant’s alleged girlfriend was not of hearsay character, and thus sufficient to sustain the action of the Commission. The record in this proceeding does not reflect one iota of evidence that is not hearsay. We are fully cognizant that a revocation hearing is- not a traditional adversary criminal trial, and evidentiary proof is not required to follow strict rules of evidence. Singletary v. State, 290 So.2d 116 (Fla.4th DCA 1974). Yet, some valid legal evidence must be adduced prior to hearsay testimony being admitted.

Reversed and remanded without prejudice to the Commission to conduct further proceedings upon the alleged violation.

SMITH and ERVIN, JJ., concur.


author: SUMMERS, J.,

text:
    STATE of Louisiana v. John Paul KIMBLE.
    No. 60371.
    Supreme Court of Louisiana.
    July 28, 1977.
   In re: John Paul Kimble applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied as to Assignment of Error No. 1 (trial judge’s denial of motion to quash subpoena). In regard to Assignment of Error No. 2 (production of Photographs prior to trial), trial is stayed until further orders of this court so that matter can be considered by a full court unless the district attorney elects to make the photographs available to the defense under supervision of the court prior to trial.

SUMMERS, J.,

dissents. This dubious decree is a bald faced attempt by the court to intimidate the prosecutor into granting pretrial discovery in this child abuse case which will certainly degenerate if delayed. By this decree the court takes no affirmative position in the matter.


text:
    STATE of Louisiana v. Claude J. BREAUX.
    No. 60379.
    Supreme Court of Louisiana.
    July 29, 1977.
   In re: Claude J. Breaux applying for writs of certiorari, prohibition, mandamus and stay order.

Writ granted. Cancellation of relator’s bail bond is set aside and the bond is reinstated.


author: DENNIS, J.,

text:
    George J. FRANCE, Robert Brown and Walter B. Sauter v. CITY CIVIL SERVICE COMMISSION OF NEW ORLEANS et al.
    No. 60391.
    Supreme Court of Louisiana.
    Aug. 1, 1977.
   In re: George J. France, Robert Brown and Walter B. Sauter applying for supervisory writs of certiorari, prohibition or mandamus.

Writ denied. Inadequate showing to warrant the exercise of our supervisory jurisdiction at this time.

DENNIS, J.,

is of the view the continuance should be granted but concurs in the writ denial at this time because applicants may without prejudice renew their motion for continuance in the event the exception to unauthorized use of summary process is not sustained.


text:
    David T. SHIVELY et al. v. Peter PICKENS et al. Peter PICKENS v. State of Louisiana through DEPT. OF HIGHWAYS. Robert RICHARD v. ZURICH INSURANCE CO. et al. Floyd THIERRY v. Peter PICKENS et al. Whitney CHARLES v. Peter PICKENS et al.
    No. 60321.
    Supreme Court of Louisiana.
    Aug. 8, 1977.
   In re: State of Louisiana through Dept, of Highways, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of LaSalle.

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


text:
    STATE of Louisiana v. Richard E. FAULKNER.
    No. 60415.
    Supreme Court of Louisiana.
    Aug. 8, 1977.
   In re: Richard E. Faulkner, applying for writs of certiorari, prohibition, mandamus and stay order.

Writ refused. There is no merit in the application, since all documents have been authenticated by the Governor of Florida.


text:
    STATE of Louisiana ex rel. Robert James MILLER v. Ross MAGGIO, Warden Louisiana State Penitentiary.
    No. 60418.
    Supreme Court of Louisiana.
    Aug. 8, 1977.
   In re: Robert James Miller, applying for remedial writs.

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


author: HEARD, Judge.

text:
    William S. MADDOX, Plaintiff-Appellee, v. SOUTHERN CASUALTY INSURANCE COMPANY et al., Defendants-Appellants.
    No. 6035.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearings Denied Aug. 1, 1977.
    Writ Refused Sept. 27, 1977.
    See also, La.App., 348 So.2d 687.
    Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for defendant-appellant.
    Martin S. Sanders, Winnfield, for plaintiff-appellee.
    Before HOOD, FORET and HEARD, JJ.
   HEARD, Judge.

This is a workmen’s compensation suit wherein the plaintiff, William S. Maddox, born in 1900, seeks recovery of benefits for total and permanent disability plus penalties and attorney’s fees. The trial court awarded benefits of $65.00 per week for 21 weeks, subject to a credit for benefits already paid, plus a $34.00 credit for a physician’s fee that was also paid by defendants. From this judgment, defendants appealed.

Made defendants are Frank G. Terral and his insurer, Southern Casualty Insurance Company.

Plaintiff injured his leg on July 13, 1975, while cutting paperwood. He was treated by Dr. Sirikul for a cellulite and an ulcer at the site of the wound on September 14, 1975. The wound was healed about December 8, 1975. Due to other illnesses unrelated to the accident, i.e., angina pectoris, arte-riosclerotic cardiovascular disease and coronary insufficiency, the plaintiff was unable to return to work.

The trial court determined that if the leg wound was plaintiff’s only problem, he would have been able to return to work. Therefore, plaintiff was not entitled to compensation for permanent disability.

Defendant contends that the trial court committed error in finding that the evidence presented was sufficient to show that plaintiff suffered an accident within the course and scope of his employment. Alternatively, defendant claims that the trial court erred in finding that the plaintiff was disabled after benefits were terminated, and in finding that plaintiff was entitled to $65.00 per week in benefits.

Where there is proof of an accident and of a following disability without intervening cause, it is presumed that the accident caused the disability. Thompson v. Natchitoches Parish Hospital Service District, 335 So.2d 81 (La.App. 3rd Cir. 1976). The testimony of an employee alone may establish a work related accident where such testimony is corroborated by surrounding circumstances and nothing discredits the employee’s account of the accident. Webert v. Associated Indemnity Corporation, 330 So.2d 331 (La.App. 2nd Cir. 1976). The trial court’s decision in this case rested on evaluation of plaintiff’s credibility, and since there is no finding of manifest error in this determination, his findings of fact will not be disturbed. Canter v. Koehring, 283 So.2d 716 (La.1973).

Defendant, secondly, argues that plaintiff was not disabled after termination of benefits, however, the doctor’s testimony showed that plaintiff was not able to return to work due to the leg injury for some 21 weeks. Therefore, the court was correct in awarding benefits for that length of time.

Defendants’ third argument is that the award of $65.00 per week is too high. Under LSA-R.S. 23:1021, if an employee is employed on a unit basis, his gross earnings from the employer for the 26 week period immediately preceding the accident, divided by the number of days the employee actually worked for the employer during the 26 week period and multiplied by four is the wage or average weekly wage at the time of the accident. Defendants claim that plaintiff did not introduce any past records, and so an average wage cannot be determined and compensation paid. However, defendants introduced a pay schedule for plaintiff, and plaintiff testified that he cut about three cords of wood per day. From this evidence plus testimony as to the custom of the industry, the trial court was able to determine a just compensation under the reasoning of this court in Burgess v. Southern Casualty Insurance Company, 203 So.2d 434 (La.App. 3rd Cir. 1967).

The trial court did not award penalties and attorney’s fees in this case because there existed a genuine dispute as to whether the disability was the result of the accident, or the plaintiff’s age. We fail to find any manifest error in the court’s finding.

For the reasons assigned, judgment of the trial court is affirmed. All costs of the appeal are assessed to defendants-appellants.

AFFIRMED.


text:
    Lela Mae MADDOX, Plaintiff-Appellee, v. SOUTHERN CASUALTY INSURANCE COMPANY et al., Defendants-Appellants.
    No. 6036.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Sept. 27, 1977.
    Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for defendants-appellants.
    Martin S. Sanders, Winnfield, for plaintiff-appellee.
    Before HOOD, FORET and HEARD, JJ.
   HEARD, Judge.

Plaintiff, Lela Mae Maddox, instituted this suit to recover workmen’s compensation benefits for an inguinal hernia resulting from an injury suffered in the course and scope of her employment. Made defendants are Frank G. Terrall and his insurer, Southern Casualty Insurance Company. The trial court awarded benefits for twelve weeks disability, plus penalties and attorney’s fees. Defendants appealed.

Defendants contend that the trial court committed error in finding the evidence presented was sufficient to show that plaintiff suffered an accident within the course and scope of her employment. Alternatively, defendants claim that the trial court erred in finding that the plaintiff was disabled after benefits were terminated, and in finding that plaintiff was entitled to $65.00 per week in benefits. Finally, defendants claim that the trial court erred in awarding penalties and attorney’s fees.

Plaintiff, a 71-year-old, 95 pound woman, is a timber cutter. She testified that she was injured on July 22, 1975, when she was struck by the butt end of a short stick of pine timber being loaded into her truck. The blow caused an inguinal hernia that disabled plaintiff until it was surgically repaired and she recovered from the surgery. The operation was performed on July 30, 1975 and it was healed 12 weeks later, according to the testimony of Drs. Sirikul and Williams.

Where there is proof of an accident and of a following disability without intervening cause, it is presumed that the accident caused the disability. Thompson v. Natchitoches Parish Hospital Service District, 335 So.2d 81 (La.App. 3rd Cir. 1976). The testimony of an employee alone may establish a work related accident where such testimony is corroborated by surrounding circumstances and nothing discredits the employee’s account of the accident. Webert v. Associated Indemnity Corporation, 330 So.2d 331 (La.App. 2nd Cir. 1976). The trial court’s decision in this case rested on evaluation of plaintiff’s credibility, and since there is no finding of manifest error in this determination, his findings of fact will not be disturbed. Canter v. Koehring, 283 So.2d 716 (La.1973).

Defendant, secondly, argues that plaintiff was not disabled after termination of benefits, for three weeks. The doctors testified that the injury was healed and plaintiff was ready to return to work 12 weeks after the surgery was performed. Therefore, defendant’s second contention is without merit.

Defendant’s third argument is that the award of $65.00 per week is too high. Under LSA-R.S. 23:1021, if an employee is employed on a unit basis, his gross earnings from the employer for the 26 week period immediately preceding the accident, divided by the number of days the employee actually worked for the employer during the 26 week period and multiplied by four is the wage or average wage at the time of the accident. Defendants claim that plaintiff did not introduce any pay records, and so an average wage cannot be determined and compensation paid. However, defendants introduced a pay schedule for plaintiff, and plaintiff testified that she and her husband cut about three cords of wood per day. From this evidence, plus testimony as to the custom of the industry, the trial court was able to determine a just compensation under the reasoning of the court in Burgess v. Southern Casualty Insurance Company, 203 So.2d 434 (La.App. 3rd Cir. 1967).

Lastly, defendants argues that the court erred in awarding penalties and attorney’s fees because there was a genuine dispute as to whether the injury was work related.. Since the physician’s report reflects that the hernia was caused by plaintiff’s being hit with the end of a pine stick, in the course and scope of her employment, it would seem defendants were arbitrary in terminating benefits.

For the above assigned reasons, the judgment of the trial court is affirmed. All costs of the appeal are assessed to defendants-appellants.

AFFIRMED.


author: REDMANN, Judge.

text:
    HENICAN, JAMES AND CLEVELAND, a partnership v. Mrs. Mildred Chiasson, divorced wife of Zachary A. STRATE.
    No. 8255.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Oct. 26, 1977.

      Joseph P. Henican, III, Henican, James & Cleveland, New Orleans, for plaintiff-appel-lee.
    Valerie Fontaine, New Orleans, for defendant-appellant.
    Before REDMANN, GULOTTA and BEER, JJ.
   REDMANN, Judge.

Plaintiff law firm was discharged by defendant client after two days of trial of an action in federal district court. It was discharged after it wrote defendant a four-page letter which prompted defendant to ask a conference with the judge, at which plaintiff sought to withdraw as counsel but was refused by the judge (who allowed, as a “constitutional” right, defendant to discharge plaintiff). The result was that much of the time that plaintiff spent in preparation for trial and presumably all of the time spent in trial was a complete loss to defendant. Plaintiff nevertheless sued for payment for all time spent at the agreed rate of $50 an hour, and the trial judge gave judgment on that basis.

We conclude that a lawyer who quits a client without reasonable justification in mid-trial is not entitled to be paid for his time which has been made worthless by his quitting; and that the same conclusion applies to a lawyer who is discharged by the client after the lawyer’s attempt to quit without reasonable justification is refused by the trial judge.

The agreement by a lawyer to litigate a matter for a client for a fee of an hourly rate is, of its essence, an agreement by the lawyer to litigate the matter to its conclusion (at least to the end of trial). It is not an agreement for the hiring of labor by the hour; the hourly rate merely establishes the fee to be paid for trying the case. The lawyer, unlike the typical hourly wage earner, does not leave all of his valuable work behind him when he quits; he has much of it in his head, undeliverable to the client except by performing his undertaking in its entirety. The bricklayer, on the contrary, howsoever his craftsmanship and art may have required the exercise of his internal faculties, leaves outside of himself at the end of each day a work product that merits his pay for that day’s hours. Even a bricklayer who has undertaken to lay the bricks of a whole house (designed by another) for an hourly wage, but who quits prior to its completion, leaves his external product, the partially completed structure, which another competent bricklayer can complete in approximately the same number of hours the first bricklayer would have taken; and if the second can be employed at the same hourly wage, the first’s quitting prior to completion of the entire contract would not have caused the owner any excess cost of completion. The quitting bricklayer may therefore be entitled to be paid for all the hours worked because the owner gets full value for all those hours.

Not so the lawyer who undertakes to litigate. • His pleadings, memoranda and depositions have real value and can be used by subsequent counsel, but they do not contain all of the product of his hours of work, and subsequent counsel cannot complete the litigation in the same number of hours that first counsel would have taken. The hours that the first lawyer spent familiarizing himself with the evidence and constructing factual and legal contentions must to a large extent be spent again by later counsel; and the hours of an aborted jury trial must be entirely repeated.

We therefore conclude that the lawyer employed on an hourly fee basis to litigate a matter cannot recover on that fee basis when he unjustifiably terminates or gives the client cause reasonably to terminate the employment prior to completion. He can recover only for the enrichment, within La.C.C. 1965, which his services have afforded the client, because otherwise the client would be unjustly enriched.

The Trial Court’s Error

The trial judge placed too narrow a construction on the pleadings and adopted the position that defendant’s only defense was in the nature of a set-off in the amount of the costs defendant had to pay for the aborted jury trial.

Defendant’s answer denied that it owed plaintiff the $9,225.40 claimed, and alleged “plaintiff’s representation was terminated because of its failure and refusal to represent petitioner at trial of her case in Federal Court, which refusal to continue to represent Petitioner came after two days of trial, at which time it was impossible for her to obtain further representation and which further obligated her to pay substantial court costs in excess of $8,000, all to respondent’s damage and prejudice.” (In fact, the testimony indicated, defendant did not have to pay those costs because the order to pay was set aside on appeal.) The trial court, upon reading this wording, ruled that defendant’s evidence of the cost of employing another lawyer to try the case was inadmissable: “The answer speaks for itself, and it addresses itself to court costs and not attorney fees and I would have to maintain the objection.”

The parties did not request written findings of fact and reasons for judgment as C.C.P. 1917 authorizes. However, it appears from the trial judge’s rulings of record that he viewed defendant’s answer as accepting liability for the $50 hourly fees and as seeking credit only for costs imposed (when, as it turned out, costs were not imposed on defendant). This view is incorrect because defendant was not asserting an affirmative defense that C.C.P. 1005 required be pleaded; defendant’s “negative defense” was but a denial of the alleged indebtedness, and it was therefore plaintiff’s burden to prove its allegations, especially when defendant alleged she discharged plaintiff for cause. The substance of defendant’s answer is that she denies liability because plaintiff itself breached their contract. “Every pleading shall be so construed as to do substantial justice”; C.C.P. 865. Understandable though the trial judge’s construction of the answer be, we conclude that it was erroneous, and that it caused an erroneous judgment.

Plaintiff’s Attempted Termination Unjustified

Termination of an attorney-client relationship to the client’s prejudice will inevitably raise questions of the propriety of the attorney’s action. Termination by the client may also present, in substance, the same questions because the lawyer who unjustifiably provokes the client into a prejudicial termination of the relationship must also be answerable for his action.

Plaintiff did, by its attempted termination during trial, provoke defendant’s reasonable reaction of discharging plaintiff. The question is whether plaintiff’s behavior was justified.

The beginning of the end was a single-spaced four-page letter by plaintiff through its senior partner, hand-delivered to defendant on the second day of trial, reurging acceptance of a compromise. The letter was written “to preserve certain facts concerning my relationship with you” and its topic paragraph was:

It is still my considered opinion that the best possible way for me to serve you in this case is to reurge your acceptance of the compromise proposal, and I am recording this fact so that at some future date you will not try to blame me, as you have tried to blame me for so many other things, for not having forced you into the compromise.

The letter set forth the partner’s initial unwillingness to have defendant as a client even for consultation, except that defendant “pleaded with me ... to make myself available to you on a consultative basis, and I agreed.” The letter recited lack of cooperation by defendant in pursuing her cause, and noted “I know that I have offended you by telling you that in my opinion you are incompetent to make this decision [to compromise or not] on your own; but you insist that it is your case and that you have a right to do . whatever you wish with it.” On the merits of the compromise plaintiff partner averred that, from his then more knowledgeable evaluation of the case,

It is my considered opinion . that you will be lucky to get the settlement that is now being offered you. I have recommended it to you before, since, and right now, and I want it to be plainly understood that if you end up with a serious disappointment in this case, you will have forfeited what I consider to be a very good compromise.
Nor am I prepared to take the full responsibility if the case is not won to your satisfaction.

Plaintiff partner testified that at the time of writing the letter “I had begun to realize that Mrs. Strate was what I considered to be an unstable person, she was highly emotional and she was a difficult client and I had recommended to her what I considered to be a very favorable compromise settlement.” He wrote the letter to protect himself against possible charges of malpractice.

The letter provoked defendant into seeking a conference with the federal district judge before whom the jury trial was being conducted. “She wanted a conference and the judge wouldn’t give it to her and I sat there with her and Rudy [co-counsel] and she began to abuse me and I said, Mrs. Strate, I am going back to the judge and ask him to give me a release ... I had no intention of withdrawing from the case until they abused me .” The judge called a conference with all counsel “and we went to the conference and she was mad about me writing the letter and I asked the judge to release me from the further trial of the case. . . .”

Although plaintiff’s senior partner at one point answered “No, never . . .’’to the question whether disagreement over compromise versus trial was the irritant to the attorney-client relationship, he later answered affirmatively to “But, the abuse or the disagreement was the real bone of contention, the fact that she did not want to settle despite your advice, she wanted to go forward with the trial?”: “Yes, she accused me of having a negative attitude and I guess it meant that she didn’t agree with me — I have no objection to you saying it was over a compromise. She was the one that was ugly. I was not the one that was ugly. I was firm, but not ugly. . . . ”

The record as a whole creates the unmistakable impression of an irreconcilable disagreement over whether to compromise or try the case. “I thought she needed to have her head examined not to accept that settlement. . . . ”

Yet it was not defendant’s refusal to accept the settlement, but her request for a conference with the judge concerning plaintiff’s mid-trial letter, that provoked plaintiff into asking to withdraw as counsel. A client’s direct request for a conference with the judge trying the client’s case, however inappropriate, is not justification for the attorney’s quitting the client in mid-trial. His attempt to quit, however, especially in the light of his written pessimism over her case, did justify the client’s terminating their relationship. Plaintiff did not perform its contract and therefore cannot recover the pay that that contract promised only for performance; plaintiff can only recover on a theory of unjust enrichment.

Unjust Enrichment Quantum

Unjust enrichment quantum in our case is complicated by the circumstance that when first employed, about mid-May of 1973, plaintiff expressly declined to actually try the matter, and was employed only to consult with defendant and to attempt to negotiate a compromise of a lawsuit already filed by defendant. Being reasonably prepared to go to trial is a reasonable if not indispensable means towards negotiating a fit compromise, and we conclude that plaintiff is therefore entitled to be paid at the agreed hourly rate for all the time he spent while employed exclusively to negotiate a compromise, including time characterizable as spent in preparation for trial. A contract to litigate obliges the lawyer to litigate to end of trial at least; but a contract to attempt to negotiate a compromise obliges only a reasonably exhaustive attempt to compromise. Plaintiff surely discharged that obligation and is entitled to the agreed pay for the period of his employment only to compromise.

It occurred, however, that compromise could not be effected and trial became unavoidable (although a compromise was available; but rejected by defendant, even at time of trial). On August 28, 1973, plaintiff’s itemized statement shows, plaintiff did agree to try the lawsuit.

Many charges thereafter were for counsel in other matters for which plaintiff is entitled to pay at the agreed rate. But for those services related to the ongoing lawsuit we must fix the amount by which they have enriched defendant within C.C. 1965 and which she should therefore pay.

Plaintiff had billed and been paid $3,337.90 (all fees except $17.40 billed as costs) by about mid-October. Thus all of the fees now sued for are for work after plaintiff undertook to try the federal court lawsuit, although we find that $295 of fees are billed for services other than in that lawsuit and are therefore recoverable in full.

The other $7,288.50 is not recoverable under the agreement, for the reasons we have previously set forth. The last $1,062.50 charged, which was principally for the two days of the aborted actual trial, is not recoverable at all because, as far as this record shows, it did not enrich defendant. The other $6,226.00 is for about 125 hours from which various depositions, pleadings and memoranda did result, and those items represent an enrichment to defendant because she could use them in the further pursuit of the lawsuit plaintiff was handling. We can be certain that they are not worth zero to defendant, and that they are not worth the 100% of its regular charge that plaintiff claims. We cannot be certain of our rough estimate of their value, but we can be certain that our rough estimate will be more correct than either zero or 100%. Perhaps a successor lawyer would save far more than half of the time he would otherwise have had to spend preparing for, taking and reviewing depositions, since he would need only to review them (although that would presumably take him longer than counsel who had prepared for and taken the depositions). But the successor lawyer might save comparatively little time in studying the case on account of the first lawyer’s similar efforts — perhaps far less than half of the time the successor would otherwise have had to spend. We conclude, from reviewing the amounts of time spent in specific areas, that because of the availability of plaintiffs work products successor counsel should probably have had to repeat only about half of the time that plaintiff spent prior to trial in reaching plaintiff’s level of preparation for trial. We assume that a competent successor could have been employed at a fee based on the same reasonable hourly rate. Thus the work products of plaintiff would enrich defendant by saving her about half of the time successor counsel would otherwise have to charge her for. Since competent successor counsel would presumably otherwise have used as much time as plaintiff did to prepare for trial, the measure of plaintiff’s recovery is half of the time that plaintiff spent. We thus allow half of $6,226, or $3,113.

Costs

Defendant client’s agreement with plaintiff was to “reimburse you for out-of-pocket expenses.” Court reporter charges of $979.50 for depositions and charges totaling $41.15 for long-distance telephone calls and $35.00 for court and other actual out-of-pocket costs are not contested, although they were never separately billed. Defendant does dispute plaintiff’s charge of $1,092.60 for 3,642 photocopies made on plaintiff’s office copier.

If plaintiff had actually paid $1,092.60 to a third party for photocopies connected with defendant’s matters, plaintiff would be entitled to recover such an out-of-pocket expense. But the expense entailed in having an office with a copying machine and its supplies and employees to operate it is not an “out-of-pocket expense”.

Webster’s Third New International Dictionary defines the adjective “out-of-pocket”, when applied to “expenses” or “costs”, as “consisting of or requiring an actual cash outlay”. Words and Phrases lists no case discussing “out-of-pocket” in our context. We adopt the quoted dictionary definition, as the “common and usual signification” in “general and popular use” which La.C.C. 1946 requires in interpreting the words of a contract. It is an expense for a lawyer to pay for extra space in his office for a copying machine, for the machine itself, for its supplies, and for its operator. But plaintiff presumably already had those expenses before defendant became its client and — without detracting from the absolute fairness of attributing part of those expenses to the cost of representing defendant — plaintiff did not outlay or commit itself to outlay 30 cents every time it made a copy of some sheet of paper related to defendant’s affairs. Therefore plaintiff’s ultimate expenses in making copies of documents for defendant were not reimbursable “out-of-pocket expenses” which alone defendant agreed to pay, and they are not recoverable.

Decree

The judgment is amended to award fees of $295 with legal interest from December 6, 1973 (30 days after billing) and $3,113 with interest from date of judgment, plus expenses of $1,055.65 with interest from judicial demand. Plaintiff is to bear all costs of appeal.

      . The opinion that one party “abused” the other, although asserted by each party, is not supported by any recital of the facts constituting the abuse.

      . We have not commented further on the trial court’s exclusion of evidence of the actual cost of employing another lawyer to try the case because lawyer’s charges may vary widely.


author: LANDRY, Judge.

text:
    George E. VICKNAIR et al. v. WATSON-PITCHFORD, INC.
    No. 11397.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Cyrus J. Greco, Baton Rouge, for plaintiffs appellees.
    George R. Covert, Baton Rouge, for defendants appellants.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

Defendant - (Appellant) appeals from judgment ordering its eviction from certain real property situated in West Baton Rouge Parish. We affirm.

Appellant’s sole assignment of error is the claim that the trial court improperly decreed its eviction because of Appellant’s failure to purchase subject property pursuant to an offer to purchase made by Appellant under date of October 2,1975, and duly accepted by Appellees as owners.

The purchase agreement obligates Appellant to buy an 11.6 acre tract of land from Appellees for the sum of $120,000.00 cash, the sale to be closed on or before January 31, 1976. As part of the purchase price, Appellant deposited a check for $5,000.00, which sum was not regarded as earnest money inasmuch as the parties expressly reserved the right to specific performance. The contract further provides that if Appel-lees’ title was not valid and could not be cured within a reasonable time, the agreement would be null and void and the deposit returned.

Additionally, the agreement contains the following pertinent lease provision:

“It is further agreed that until January-31, 1976 owners shall lease unto Watson-Pitchford, Inc., the batture adjoining the above described property for the sum of TWO HUNDRED FIFTY AND NO/lOO ($250.00) DOLLARS per month commencing September 1, 1975.”

Following confection of the agreement, Appellant took possession of the premises pursuant to the foregoing lease arrangement. Due to the death of one of the owners, the sale could not be completed by January 31, 1976, but this obstacle was removed shortly after the demise. Thereafter, Appellant declined to pass the sale on the ground that a title investigation disclosed a flaw or flaws regarding one or more boundaries of subject tract. Efforts were made to solve this difficulty, during which interval the lease was reconducted from month to month until May 15, 1976, when Appellees gave Appellant due formal notice of lease termination. Appellant paid all rent due through May, 1976. Appellees returned all rental checks tendered thereafter.

At trial, Appellant offered, over Appel-lees’ objection, evidence to establish that it was ready, willing and able to consummate the sale but was justified in refusing to do so because of the title deficiencies disclosed upon examination of title, and also because of Appellees’ alleged refusal to correct said flaws. In essence, Appellant contended at trial, and reurges on appeal, that Appellees defaulted on their obligation to furnish good title, consequently Appellant should not have been evicted.

Appellees objected to Appellant’s offering evidence of title deficiency on the ground that title defects are foreign to the issue involved in a summary proceeding for eviction. In this regard, Appellees contended at trial, and reurge here, that Appellant’s right to occupancy and possession of subject property is not dependent upon the merchantability of Appellees’ title or the date of passage of the proposed sale. Stated otherwise, Appellees maintain that under the agreement, Appellant occupied the premises merely as lessee from September 1, 1975 through May, 1976, when the lease was cancelled by proper notice given by Appellees. In addition, Appellees argue that evidence of merchantability of their title enlarged the pleadings and injected foreign issues into this summary eviction procedure, thereby converting the matter from a summary proceeding into an ordinary proceeding. We find Appellees’ position well taken.

LSA-C.C.P. Articles 4701-4705, inclusive, provide a summary process for eviction of a lessee by a lessor and of an occupant by an owner, because the lease has ended due to expiration of its term, or for other lawful cause, or where the purpose of the occupancy has ceased in the case of an occupant.

It is well settled that a summary action for eviction of a tenant or lessee (formerly authorized by LSA-R.S. 13:4911-4926, inclusive), presently, LSA-C.C.P Articles 4701-4705, involves the single issue of whether the lessor is entitled to possession of the leased premises. Roussel v. Dal che, 158 La. 742,104 So. 637 (1925), and authorities therein cited. See also Smith v. Smith, 156 So.2d 278 (La.App. 4th Cir. 1963). Equally well settled is the rule that a lessee cannot defeat his lessor’s right to summary action for eviction by injecting therein issues foreign to the one issue involved, and thereby convert the summary proceeding into an ordinary proceeding. Roussel v. Dal che, above.

In this instance, it is clear that the lease privilege granted Appellant pursuant to the purchase agreement involved is separate, distinct from and independent of Appellant’s right to purchase. A separate consideration is recited for the lease, totally unrelated and independent of the purchase price. The term of the lease is for a specific period. The agreement does not make the right to purchase dependent upon the lease in any way whatsoever. When the specified term expired, the parties recon-dueted the lease monthly until May, 1976, when Appellees gave due and proper notice of cancellation. Said cancellation terminated Appellant’s lease privileges and entitled Appellees to possession. Any flaws or defects in Appellees’ title are foreign to the relationship of lessor and lessee which existed between the parties. It is well settled that a lessee may not question his lessor’s title so long as lessor maintains lessee in possession. Pino v. Dufour, 174 La. 227,140 So. 31 (1932); Harvin v. Blackman, 112 La. 24, 36 So. 213 (1904).

Under the pleadings and procedural posture of this case, the trial court erred in admitting testimony to show an alleged defect in Appellees’ title. The error is of no consequence, however, inasmuch as the title court reached the proper result despite the error.

The judgment is affirmed at Appellant’s cost.

AFFIRMED.


text:
    STATE of Louisiana In the Interest of Charles JORDAN, Juvenile.
    No. 11398.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    John N. Gallaspy, Asst. Dist. Atty., Boga-lusa, for the State.
    Herbert R. Alexander, Jr., Bogalusa, for the Minor.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

Charles Jordan (Appellant), a juvenile, appeals from judgment adjudicating him a delinquent juvenile for having committed the crime of attempted murder. We affirm.

Appellant urges error in the State’s failure to allege and prove intent to kill, an essential element of the crime of attempted murder.

The petition filed against Appellant pertinently recites:

“The petition of John N. Gallaspy, Assistant District Attorney, who upon information and belief, with respect represents:
1. That Charles Jordan age 16, address (Bogalusa, La.) is a juvenile delinquent and is in violation of the criminal laws of Louisiana; whose mother is Rebecca Jordan, and which said child is (are) within the jurisdiction of the Juvenile Court for the Parish of Washington, State of Louisiana, in that on or about September 22, 1976, Charles Jordan fired a pistol into a crowd of young people, with intent to kill or seriously injure the said young people to any ones or one of them (sic), in violation of the Louisiana Criminal' Laws, said intended victims including: 1. Evelyn McCray; 2. Gary Mangrum; 3. Christopher Lewis; 4. Carl McCray.
Wherefore, the premises considered, petitioner shows that a preliminary inquiry has been made by an Officer of this Court and it now appears that the interests of the public and of the child_ require that further action be taken, therefore, petitioner prays that formal jurisdiction be taken by this Honorable Court and that the Court render such judgments and orders as to the Court may deem just, proper or necessary for the safety and protection of the public and for the welfare of the said child-."

At the conclusion of the hearing, Counsel for Appellant moved for a directed verdict on the ground the State failed to establish specific intent to kill, an indispensable element of the offense of attempted murder. Counsel argued that no proof was offered to establish that the gun which Appellant fired contained live ammunition as distinguished from blanks or bad shells. In his brief filed in this court, Counsel for Appellant attacks the sufficiency of the petition and asserts its alleged fatal defectiveness in failing to properly charge the crime of attempted murder.

Assuming counsel’s claim of defectiveness of the charge to be well founded, such circumstances is a matter of no moment under the procedural posture of this case. This matter was fully tried on its merits without objection by counsel as to the sufficiency of the charge. It conclusively appears that counsel understood the charge was attempted murder and conducted his cross-examination of the State’s witnesses on this basis. Where an accused goes to trial on a defective information or indictment (in this juvenile proceeding a petition), and a full and fair trial on the merits is held without any surprises or prejudices to the accused, such defect may not be initially asserted on appeal. State v. James, 305 So.2d 514 (La.1974).

Appellant is correct in contending that the crime of attempted murder requires proof of specific intent to kill and not merely intent to commit serious bodily harm. State v. Butler, 322 So.2d 189 (La. 1975).

The following facts are established by the State’s witnesses: On the day in question, Appellant went to the home of Mrs. Evelyn McCray to see Mrs. McCray’s younger brother, Gary Mangrum, about a $50.00 debt Mangrum owed Appellant. When Mrs. McCray informed Appellant her brother was not home, Appellant apparently did not believe her. Appellant left, nevertheless, but returned later and found Mrs. McCray and her brother in the back yard of the McCray home. Appellant brandished a gun with which he threatened Gary Mang-rum. An argument ensued between Mrs. McCray and Appellant and progressed to the point that Appellant offered to fight her. Mrs. McCray and her brother went into the house after Mrs. McCray stated she was going to call the police although she did not intend then to do so. Later, Mrs. McCray, her brother, her three year old son Carl, and Christopher Lewis, a two year old she was attending, went out on the front porch of the house. Appellant appeared on the street and started toward a nearby corner as if to leave the area. He then turned, started back toward the house at which time Mrs. McCray again stated her intention to call the police, although at this time she still did not intend to do so. As she was leaving as if starting toward a telephone, Appellant fired a shot in the direction of the porch. Mrs. McCray then decided she would call the police which she did. The investigating officer found a bullet hole in the wall of the porch near a corner. Gary Mangrum testified the officer removed a bullet from the porch wall.

Although the crime of attempted murder requires an act accompanied by specific intent to kill, as distinguished from mere intent to commit serious bodily harm, the firing of a shot aimed at the intended victim is some evidence on which the trier of fact could infer such specific intent. State v. Lee, 275 So.2d 757 (La.1973); State v. Butler, above.

Specific intent cannot be seen or photographed, it must be inferred from all circumstances established at trial. State v. Jones, 315 So.2d 650 (La.1975); State v. Vines, 245 La. 977, 162 So.2d 332 (1964).

Appellant’s assignment of error is tantamount to the contention his conviction is contrary to the law and evidence. In disposing of such a contention, the appellate court is limited to a determination of whether, as a matter of law, the record contains no evidence to support the conviction. State v. Coleman, 322 So.2d 195 (La. 1975).

Our review of the record discloses evidence upon which the conviction can be supported.

The judgment is affirmed.


author: EDWARDS, Judge.

text:
    Albert J. BROWN, Jr. v. Clara W. BROWN.
    No. 11403.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.

      Walter C. Dumas, Baton Rouge, of counsel for plaintiff-appellant, Albert J. Brown, Jr.
    Walton J. Barnes, Baton Rouge, of counsel for defendant-appellee, Clara W. Brown.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

Plaintiff, Albert J. Brown, filed this rule against his ex-wife, Clara W. Brown, to reduce his alimony payments from $150.00 per month to $50.00 per month. The trial court rendered judgment reducing the alimony to $50.00 per month as prayed for in the rule. Mr. Brown has appealed, contending that the alimony award should have been revoked in toto.

The Browns were divorced by judgment dated July 8,1976. This judgment provided that Mr. Brown pay $150.00 per month to Mrs. Brown as permanent alimony.

On October 28, 1976, Mr. Brown filed a “Motion for Rule Nisi” to reduce the alimony payments from $150.00 per month to $50.00 per month based on a change in his circumstances. The motion also contained a prayer for “all other orders and decrees necessary and proper in the premises, which law, equity and the nature of the case may permit.”
The evidence presented at the hearing on the rule demonstrated that there had been no change in circumstances with regard to Mr. Brown warranting a reduction in the alimony award.

However, at the hearing the pleadings were expanded when evidence, beyond the scope of the original pleadings, was offered and admitted without objection. This evidence consisted of Mrs. Brown’s testimony to the effect that she had obtained employment since the rendition of the divorce judgment; and was presently earning approximately $300.00 per month.

The trial court held that there had been a change in circumstances insofar as Mrs. Brown was concerned sufficient to warrant an alimony reduction. The trial judge then stated:

“Now, the rule for a reduction prays that it be reduced to the sum of fifty dollars per month, and so the Court will not go beyond the scope—
Mr. Dumas: Your Honor,—
The Court: No, sir, I—
Mr. Dumas: Wait, Your Honor.
The last paragraph of the rule states for any other necessary and proper relief the law and equity of the case may permit. That is the last paragraph of the rule.
THE COURT: I am going to limit it to the amount you specifically prayed for, fifty dollars a month.”

Mr. Brown contends that the trial court erred in refusing to revoke the alimony award in its entirety. He bases this contention on his plea for all general and equitable relief and cites several cases predating the Code of Civil Procedure in support thereof.

The cases involving prayers for general and equitable relief prior to the enactment of the Code of Civil Procedure held that such a prayer authorized all ordinary decrees which the pleadings might justify. Le Goaster v. Lafon Asylum, 159 La. 855, 106 So. 329 (1925); Kinder v. Scharff, 125 La. 594, 51 So. 654 (1910); Stark v. Howcott, 118 La. 489, 43 So. 61 (1907); Newman v. Fidelity Mutual Insurance Co., 86 So.2d 404 (La.App. 1st Cir. 1956).

The necessity for the prayer for general and equitable relief was eliminated by LSA-C.C.P. art. 862, as the article automatically performs the function of such a prayer. The purpose of the article is to suppress the “theory of the case” doctrine and permit a court to grant the relief warranted by the averments contained in the pleadings and the evidence.

In the instant case, we find that the only relief supported by . the averments in the body and prayer of the petition and by the evidence in the record is that granted by the trial court, i. e., the reduction of the alimony award to $50.00 per month. We find no basis, in either the body and prayer of the petition or in the evidence, to support a decree under a general and equitable remedy theory granting relief beyond that specifically prayed for in the petition. There is nothing in the record to give notice that Mr. Brown was seeking any relief beyond the reduction of the alimony award to $50.00 per month.

Accordingly Mr. Brown’s contention is without merit.

The law is settled that a trial judge is vested with much discretion in fixing the amount of an alimony award. Such an award will not be disturbed by a reviewing court absent a clear showing of an abuse of said discretion. Holloway v. Holloway, 296 So.2d 435 (La.App. 1st Cir. 1974); Guilbeau v. Latour, 270 So.2d 328 (La.App. 3rd Cir. 1972). We find no abuse of discretion in this case.

For the reasons assigned, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

      . “Except as provided in Article 1703, a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.”


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    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Clino B. RUCKSTUHL et al.
    No. 11404.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.

      Alvin J. Liska, New Orleans, Johnie E. Branch, Jr., Baton Rouge, for plaintiff-appellee.
    Richard W. Brown, Dale E. Branch, Bogalusa, for defendants-appellants.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

The Department of Highways, pursuant to LSA-R.S. 48:441 et seq., instituted this proceeding on May 26, 1969, to acquire approximately seven and one-half acres of land owned by the defendants for use in the relocation and improvement of La. Highway 41 near Talisheek in St. Tammany Parish. The defendant-owners answered and filed a reconventional demand seeking an increase in the compensation for the property taken and an award for severance damages. After trial on the merits, the trial court rendered judgment sustaining the amount of $5,401.00 previously deposited as just and adequate compensation for the property expropriated; and rejecting the defendants’ reconventional demand. Prom this judgment, the defendants have appealed, contending that the trial court committed manifest error in denying severance damages. The adequacy of compensation for the property taken is not before us on this appeal.

The expropriated property consists of a strip of approximately seven and one-half acres taken from a tract of approximately 160 acres. The 160 acre tract is located on old La. Highway 41, the Bush-Talisheek Highway, just north of the trading center in Talisheek. The original entrance to the property was off old La. 41.

Prior to the taking, the property was used primarily for cattle raising and timber operations, though, at one time, gravel operations were also conducted on a portion of the property.

The improvements on the property included a large plantation-type home surrounded by a well landscaped yard and a number of auxiliary buildings, including a barn, carport, tool shed, etc. The entirety of the tract was fenced and cross-fenced because of the cattle raising operation. No improvements other than fencing, were on the property taken.

After the taking, the property was split by the new highway into two remainders; a southern remainder of approximately 38 acres including the house and auxiliary buildings, and a northern remainder of approximately 114 acres, primarily woodlands.

The trial court found that an award of $550.00 per acre for wooded land taken, $750.00 per acre for pasture land taken, $0.30 per foot for fencing taken and $20.00 for a construction servitude was just and adequate compensation for the property taken. This amounted to a total of $5,363.00. However, the trial court citing State, Department of Highways v. Baddock, 170 So.2d 5 (La.App. 1st Cir. 1964), held that the Department was bound by the amount of its original deposit ($5,401.00) as it did not file amended pleadings prior to trial estimating a lower amount; and that the property owners were entitled to the amount of the original deposit. The trial court did not find any severance damages.

The defendants contend that the trial court committed manifest error: (1) in denying severance damages, and (2) in failing to award the cost of fencing the new right-of-way.

Severance damages are defined as damage to the remaining property because of its separation from the expropriated property. State, Department of Highways v. Ponder, 345 So.2d 106 (La.App. 1st Cir. 1977). These damages are calculated as the difference between the market value of the remaining property immediately before and the market value immediately after the taking. State, Department of Highways v. Hoyt, 284 So.2d 763 (La.1973).

The burden is on the property owner to prove with legal certainty by a preponderance of the evidence that the remaining property has sustained severance damages. State, Department of Highways v. Ross Continental Motor Lodge, Inc., 328 So.2d 883 (La.1976).

Once severance damages have been proven, the expropriating authority may show that the property has received special benefits from the taking. These special benefits may offset the severance damages sustained by the property. State, Department of Highways v. Nisbet Properties, Inc., 309 So.2d 398 (La.App. 2nd Cir. 1975).

In the instant case, the defendants maintain that the remaining property has suffered severance damage in three respects:

(1) The location of the new highway has destroyed the seclusion and privacy of the south remainder and greatly increased the noise at the residential site thereby reducing the value of the south remainder;

(2) The new highway has segregated the auxiliary agricultural buildings on the south remainder from the agricultural operations on the north remainder and thereby reduced the utility of these buildings; and

(3) The location of the highway has reduced the value of the north remainder for agricultural operations because the support buildings are across the highway on the south remainder.

The two appraisers who testified on behalf of the Department stated that they found no severance damages. Both testified that the location of the new highway 220 feet from the residence on the south remainder did not diminish the value of the property, as houses set back as much as 220 feet from the street were the exception rather than the rule in that vicinity. Both felt that the auxiliary buildings had not suffered any loss of value because of the taking, as they could still be used, as previously, for agricultural purposes with but a small amount of inconvenience or could be used purely for storage. Both appraisers stated that the highest and best use of the north remainder after the taking had been changed from that of an agricultural operation to that of a small acreage rural subdivision. Based on this highest and best use demonstrated by comparables, they stated that the north remainder had not suffered any diminution in value. Rather, they opined that the north remainder had received a special benefit because of the taking, as the new highway provided easy access to this property which had been previously rear land.

The landowners’ two appraisers testified that the property had suffered the severance damages alleged by the defendants. One of the experts fixed the amount of damage at 20% ($23,400.00) and the other set damages at 25% ($31,513.93). Both appraisers testified that the amount of damage was calculated without the aid of com-parables and constituted solely a reasoned opinion. Additionally both appraisers discounted any special benefit to the north remainder because they felt a rural subdivision was not feasible, and that the highest and best use remained an agricultural operation. They stated that the additional access and frontage did not benefit such a farming operation.

The trial judge stated in his written reasons that he accepted the testimony of the Department’s appraisers as correct in not finding any severance damage.

The law is well settled that in expropriation proceedings the trial court’s factual determinations as to severance damages and his evaluation of, and the weight given to, the testimony of expert witnesses will not be disturbed on review absent a showing of manifest error. State, Department of Highways v. Wax, 295 So.2d 833 (La. App.lst Cir, 1974); State, Department of Highways v. Wiiliam T. Burton Industries, Inc., 219 So.2d 837 (La.App.3rd Cir. 1969).

We find no manifest error in the trial court’s acceptance of the Department’s experts’ testimony.

Defendants also contend that the trial court erred in failing to award the cost of fencing the new right-of-way.

Counsel for the Department argues that this issue of special damage is not properly before this Court as it was not alleged in defendants’ pleadings; and that objections were timely raised to any enlargement of the pleadings at trial.

Additionally, counsel states that the highway department has placed a fence on the new right-of-way as it does in every case when a new highway is erected.

An examination of the defendants’ recon-ventional demand reveals that the only mention of a claim for fencing is concerning the fencing actually taken by the highway department. Defendants did not assert a claim for the cost of fencing the new right-of-way. We believe that the Department’s argument is well founded. Accordingly, we do not reach defendants’ second contention.

For the reasons assigned, the judgment appealed is affirmed at appellants’ cost.

AFFIRMED.


text:
    Succession of Ivy Murphy CURRIE and Corine Murphy Decker v. James L. CURRIE.
    No. 11405.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.

      Mike J. Balen, Covington, for petitioner-appellant, Ivy Murphy Currie.
    William Y. Courtney, Covington, for petitioner-appellee, James L. Currie.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

This is an appeal by Mrs. Corine Murphy Decker, the opponent of an olographic will, from a judgment ordering the will of Ivy Murphy Currie, a/k/a Iva Gae Currie, to probate.

Ivy Murphy Currie, the testatrix, died on July 12, 1971, survived by her parents, five brothers and sisters, and her husband, James L. Currie. On September 19, 1974, Corine Murphy Decker, the decedent’s sister and curator of their parents, filed a petition for possession seeking to be made adminis-tratrix of her sister’s succession. Thereafter, Mrs. Decker commenced an inventory of the succession.

On February 5,1976, James Currie filed a petition for probate of an olographic testament dated November 12, 1954, purportedly written, dated and signed by his deceased wife, Ivy Murphy Currie. Since an opposition to the probate of the testament had been previously filed by Mrs. Decker, a contradictory hearing was held to determine the authenticity of the testament. After hearing all the evidence, the trial court ordered the will admitted to probate.

Mrs. Decker contends that the will was not proved by the testimony of two credible witnesses as required by LSA-C.C.P. art. 2883; and that the will is a forgery.

The sole issue presented for review is whether or not there was sufficient proof presented to authenticate the will.

The applicable provisions of our law concerning the proof needed to authenticate an olographic testament are:

LSA-C.C. art. 1588:
“The olographic testament is that which is written by the testator himself.
“In order to be valid, it must be entirely written, dated and signed by the hand of the testator. It is subject to no other form, and may be made anywhere, even out of State.”
LSA-C.C.P. art. 2883
“The olographic testament must be proved by the testimony of two credible witnesses that the testament was entirely written, dated, and signed in the testator’s handwriting. The court must satisfy itself, through interrogation or from the depositions of the witnesses, that the handwriting and signature are those of the testator, and must mention these facts in its procés verbal.”
LSA-C.C.P. art. 2903
“At the contradictory trial to probate a testament, its proponent bears the burden of proving the authenticity of the testament, and its compliance with all of the formal requirements of law.”

At the hearing, James Currie, the testatrix’s husband of almost nineteen years, testified that he was very familiar with his wife’s handwriting. He identified the handwriting on various postcards and on the back of certain photographs as that of his wife. He identified the signature on a cemetery deed as being his wife’s handwriting. He stated unequivocally that the will was entirely written, dated and signed in his wife’s handwriting.

Daniel Currie, a young man raised by the testatrix and Mr. Currie from infancy, corroborated the identification of the handwriting on the postcards and photographs as that of his “mother” Ivy Murphy Currie.

Additionally, Bobby G. Foley, the manager and document examiner at the North Delta Crime Laboratory, was qualified, without objection, as an expert in the field of questioned documents and testified on behalf of the proponent of the will. Foley stated that he had made a detailed study of the decedent’s handwriting by comparing known specimens of her handwriting on the postcards, photographs and the cemetery deed, all admitted into evidence, with the handwriting in the will. He testified at length concerning the similarities and innate variations in the formation of individual letters on the postcards, photographs and cemetery deed when compared with the same letters in the will. He produced a photographic enlargement of handwriting exemplars taken from the known specimens of the decedent’s writing and from the will. Based on his extensive investigation, Mr. Foley concluded that the person who wrote the postcard, wrote on the back of the photographs and signed the cemetery deed was the same person who wrote, dated and signed the olographic will, i. e., Ivy Murphy Currie.

However, Mrs. Decker contends, citing Succession of White, 132 La. 890, 61 So. 860 (1913), that a handwriting expert’s testimony does not satisfy the requirements of LSA-C.C.P. art. 2883, supra.

However, the Supreme Court in Succession of White also stated on page 865:

“Article 325 of the Code of Practice, reads as follows:
‘If the defendant deny his signature in his answer, or contend that the same has been counterfeited, the plaintiff must prove the genuineness of such signature, either by witnesses who have seen the defendant sign the act, or who declare that they know it to be his signature, because they have frequently seen him write and sign his name.
‘But the proof by witnesses shall not exclude the proof by experts or by a comparison of writing, as established by the Civil Code.’
“The Civil Code, however, does not provide for proof by experts or by comparison. But it has become the practice to admit such proofs in all cases in which issues of forgery vel non of written instruments are raised.”

The Court in White then proceeded to evaluate the conflicting testimony of two expert witnesses.

Though the dictum in Succession of White indicates the general uncertainty surrounding the testimony of handwriting experts because of the inaccuracies in the science of chirography, we have not found, nor has opponent cited, any case refusing a handwriting expert’s testimony to prove a will.

Indeed the only proof required by the Code of Civil Procedure to probate an olographic will is the testimony of two credible witnesses that the will was entirely written, dated and signed in the decedent’s handwriting. This requirement was satisfied in the instant case by the testimony of James Currie and Bobby Foley.

Accordingly, opponent’s first contention is without merit.

On the issue of forgery, the only evidence offered to prove forgery was the testimony of the opponent, Mrs. Decker, and Emma Joiner, a woman raised by the testatrix. Both testified that they did not believe that the will was written by Ivy Murphy Currie.

Both based their conclusions on the asserted fact that the decedent’s penmanship was much worse than that contained in the will.

We find that the preponderance of the evidence in the record supports the trial court’s conclusion that the olographic will in question was entirely written, dated and signed by the testatrix.

For the reasons assigned, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


text:
    Elouise Donahue HALL v. Jeremiah E. HALL.
    No. 11409.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    James H. DuPont, of DuPont, DuPont & DuPont, Plaquemine, for plaintiff-appellee.
    Patrick W. Pendley, of Freeman & Pend-ley, Ltd., Plaquemine, for defendant-appellant.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

This is a suit by Mrs. Elouise Donahue Hall against Jeremiah E. Hall for a separation from bed and board on the grounds of abandonment. Mr. Hall filed a reconven-tional demand seeking a separation on the grounds of mental anguish and cruelty. The trial court rendered judgment in favor of Mrs. Hall, and fixed alimony pendente lite at $75.00 per month. Mr. Hall has appealed from the trial court’s award of alimony pendente lite.

The sole issue assigned for review is whether or not Mrs. Hall presented sufficient proof of need to justify the award of $75.00 per month alimony pendente lite.

The applicable Civil Code provision for alimony pendente lite is Article 148, which provides:

“If the wife has not a sufficient income for her maintenance pending the suit for separation from bed and board or for divorce, the judge shall allow her, whether she appears as plaintiff or defendant, a sum for her support, proportioned to her needs and to the means of her husband.”

The purpose espoused by this article is the maintenance of the wife at a standard of living comparable to that which she enjoyed prior to her separation from her husband. Shepard v. Shepard, 334 So.2d 745 (La.App. 3rd Cir. 1976). In essence, alimony pendente lite is no more than a judicial enforcement of the husband’s obligation to support his wife. Nelson v. Nelson, 311 So.2d 268 (La.App. 1st Cir. 1974); amended 318 So.2d 68. This alimony must be gauged in proportion to the needs of the wife and the means of the husband. Hartley v. Hartley, 336 So.2d 291 (La.App. 1st Cir. 1976).

In the instant case, Mrs. Hall testified that she is employed and earns $218.00 per month. She then testified regarding her expenses. She stated that she does not pay monthly rent as she lives with her daughter, but she does pay the food and utility bills. She testified that she has currently due medical bills in the amount of $940.00 and that she must make monthly payments on these bills as her husband has refused to pay them. Finally she testified that she pays a monthly car note on an automobile purchased by her in her name from a previous marriage.

Mr. Hall testified that he earns $328.00 per month. He also testified, in detail, regarding his monthly expenses.

The trial court concluded, after hearing all the testimony, that Mrs. Hall had demonstrated sufficient need for the awarding of alimony pendente lite. We agree.

The alimony award was fixed by the trial court at $75.00 per month.

It is well settled that trial judges are vested with much discretion in fixing awards for alimony pendente lite. A reviewing court will not disturb such an alimony award in the absence of a clear showing of an abuse of said discretion. Shipp v. Shipp, 180 La. 881, 158 So. 5 (1934); Fuori v. Fuori, 316 So.2d 803 (La.App. 1st Cir. 1975).

We find no abuse of the trial court’s discretion in this instance.

For the reasons assigned, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


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    Flora KORVER v. The CITY OF BATON ROUGE, Through the DEPARTMENT OF PUBLIC WORKS et al.
    No. 11410.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.

      L. D. Sledge, Baton Rouge, of counsel, for plaintiff-appellant Flora Korver.
    Sam A. Bacot, Baton Rouge, of counsel, for defendant-appellee City of Baton Rouge through Dept, of Public Works.
    Ashton L. Stewart, Baton Rouge, of counsel, for defendant-appellee Mrs. Ellen Bryan Moore.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

This is a suit by Flora Korver to recover damages for personal injuries sustained in a trip and fall accident on a public sidewalk. Named as defendants are the City of Baton Rouge, the Parish of East Baton Rouge and the abutting property owner, Ellen B. Solomon Moore.

After trial on the merits, judgment was rendered in favor of the defendants dismissing the plaintiffs suit. From this judgment, plaintiff has appealed.

The accident occurred about 10:30 p. m. on October 22,1974, on a sidewalk adjoining an apartment building, owned by defendant Moore, located at 2202 South 22nd Street in the city of Baton Rouge.

Plaintiff had just returned to the apartment building following a date and had been “let out” of a vehicle by her escort. As the vehicle pulled off, plaintiff, standing on the sidewalk, realized that she had left her purse in the car. She called out to her date, and he stopped his vehicle about one car’s length from where the plaintiff was standing. As plaintiff walked to the car to retrieve the purse, she stumbled on a cracked portion of the sidewalk which had been pushed up approximately two inches by a root from a large oak tree located alongside the walk on Mrs. Moore’s property. Plaintiff fell forward, struck her chin and mouth on the concrete, and fractured several teeth.

The trial judge stated in his written reasons that the crack in the sidewalk was caused by the roots from the oak tree and constituted an obvious defect. However, the trial court held, citing Youngblood v. Newspaper Production Co., 135 So.2d 620 (La.App. 2nd Cir. 1961) and Toppi v. Arbour, 119 So.2d 621 (La.App. 1st Cir. 1960), that Mrs. Moore, the abutting property owner, was under no duty to repair or maintain the public sidewalk and was therefore, not liable to persons injured by defects in or obstructions on the sidewalk. Further, the court held that under the city-parish plan of government and Toppi v. Arbour, above, the parish and not the City is responsible for the maintenance of the sidewalks in the City of Baton Rouge. Accordingly, the City may not be held liable for injuries sustained in accidents resulting from the failure to repair and maintain the City’s sidewalks. But, the court held that the Parish was negligent in failing to remedy the obvious defect in the sidewalk.

The court then stated:

“It appears that while Miss Korver had visited the apartment on two or three occasions where her sister resided, for all practical purposes she was not extremely familiar with the area, particularly concerning the existence of the defect at issue. However, considering the reasonable good lighting conditions which prevailed at the time, the Court finds that had she been giving any care and attention toward the area where she was walking she would have been able to avoid the crack and would not have fallen. Her failure in this respect constitutes contributory negligence barring her claim.”

The central issue presented for review is the contributory negligence, vel non, of the plaintiff.

The standard of care which must be exercised by pedestrians on public sidewalks is succinctly stated in White v. City of Alexandria, 216 La. 308, 43 So.2d 618, 620 (1949), as follows:

“. . . Such ways of passage are intended for public, use, of course, and a pedestrian is entitled to assume that they are not dangerous. Further, he is not required to constantly observe the surface of the walk or to exercise the care that would be necessary in traversing a jungle. However, he cannot be completely oblivious of its condition; he must exercise ordinary care when using it, having in mind the well recognized fact that throughout every city of any size in this state there exist irregularities in the walkways brought about by natural causes such as rains, expansion, soil erosion and tree roots.”

The trial court found that the elevated portion of the sidewalk was an apparent defect. He further found, based on “the testimony of the respective witnesses, as well as a personal on the scene inspection made at night” that the area of the accident was sufficiently well lighted that a person exercising reasonable care would have seen the crack, avoided it, and would not have fallen.

Plaintiff contends that the trial court’s finding that the area was well lighted is not supported by the evidence; and that it was error for the trial judge to rely upon his “on the scene” observations in determining the lighting conditions of the accident area.

An examination of the record indicates that there is sufficient independent evidence contained in the testimony of the witnesses to support the factual finding that the accident area was well lighted. Accordingly, we do not reach the propriety of the trial judge’s “on the scene” inspection.

The record discloses that there is a street light on the northside of Government Street which is approximately 125 feet from the broken sidewalk. There is another street light located on the same side of South 22nd Street as the accident and about 75 feet from the broken sidewalk. Additionally, the apartment building has a small porch-type light a short distance from the broken concrete.

Ken Chandler, a senior at the LSU School of Architecture, testified that he observed the accident scene and prepared a plat or diagram, which was admitted into evidence, depicting the area of plaintiff’s fall. He also testified, based on his personal observation of the scene, that the crack in the sidewalk was well illuminated by both street lights in the vicinity. He also stated that even at ground level there was sufficient illumination. He stated that he got down on the ground and held his head against the crack. From this position, he stated that he could see the entire glow of the street light.

Ann Smith, a tenant in the same apartment building that plaintiff was entering, testified that she had lived in the building for over eight years and had often walked along that sidewalk at nighttime. She stated that there was “plenty of lighting” along the sidewalk from the two street lights. She also stated that she had observed strangers and non-tenants using the sidewalk on numerous occasions and that she has never heard of anyone falling.

Both Haywood Moore and his wife, the defendant, Mrs. Moore, testified that there is ample lighting on the sidewalk to enable pedestrians to see the crack in the sidewalk. Both testified that no one had previously tripped over the cracked sidewalk.

John Dupont, plaintiff’s date on the night of the accident, testified that the area of the accident was dark, though not in total darkness. He stated that in his opinion the area was insufficiently lighted.

The plaintiff, Flora Korver, also testified that the area was dark, but not total blackness. However, she stated that there was enough light for a person looking at the surface of the sidewalk to observe the crack. In fact, she stated: “If I had looked directly down, I probably would have been able to see it (the defect).”

The trial court concluded based on the foregoing testimony that the area of the accident was sufficiently lighted that a person exercising reasonable care would have seen the defect in the sidewalk. We find ample support for this finding in the record. Additionally, we agree that the failure of the plaintiff to observe the cracked sidewalk was due to her inattentiveness to where she was walking. This inattention constituted contributory negligence which is a bar to her claim.

Plaintiff also contends that the abutting property owner should be held liable under the principles of LSA-C.C. art. 2317 as interpreted in Loescher v. Parr, 324 So.2d 441 (La.1975). We do not reach this contention in view of our above holding regarding plaintiffs contributory negligence as Loescher recognizes that liability can be avoided by a showing that the damage was caused by the fault of the victim. See Woodward v. First of Georgia Ins. Co., 333 So.2d 709 (La.App. 2nd Cir. 1976), writ denied 338 So.2d 295 (La.).

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

AFFIRMED.

      . We note that the trial judge visited the scene at the request of counsel for plaintiff, who now attacks his visit as error. See p. 126 of the trial transcript.