author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. August JONES.
    No. 58115.
    Supreme Court of Louisiana.
    Dec. 13, 1976.
    Thomas J. Ford, Jr., Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Geraldine S. Veazey, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State by bill of information jointly charged August Jones and Barbara Williams with possession with the intent to distribute heroin, in violation of LSA-R.S. 40:966. Both defendants were arraigned and pleaded not guilty. On April 17, 1975, the date set for trial, Barbara Williams did not appear in court and the trial court granted the State’s oral motion for a severance so that the proceedings against defendant would not be delayed. After a bench trial, the trial court judge found the defendant guilty and sentenced him to ten-years imprisonment.

The defendant appeals his conviction and sentence, relying upon two assignments of error.

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, defendant argues that the trial court erred in denying his request for a continuance based on the absence of witness Barbara Williams. The motion was made orally.

The Louisiana Code of Criminal Procedure Articles 707, 709, and 712 provide, respectively, that:

LSA-C.Cr.P. Art. 707:
“An application for a continuance shall be by written motion alleging specifically the grounds upon which it is based, and when made by a defendant, must be verified by his or his counsel’s affidavit.”
LSA-C.Cr.P. Art. 709:
“A motion for a continuance based upon the absence of a witness must state:
(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3) Facts showing due diligence used in an effort to procure attendance of the witness.”
LSA-C.Cr.P. Art. 712:
“A motion for continuance, if timely filed, may be granted, in the discretion of the court, in. any case if there is good ground therefor.”

Defendant’s oral request for a continuance does not meet the requirements set forth above. A motion for a continuance shall be by written motion alleging specifically the grounds upon which it is based. When no written motion for continuance appears of record, the denial thereof will not be considered. State v. Bullock, La., 329 So.2d 733 (1976); State v. Brown, La., 322 So.2d 211 (1975); State v. Jarrow, La., 331 So.2d 1 (1976).

Moreover, the record reflects that the trial court did grant the defendant relief in that he delayed his judgment for five days to allow defendant to locate his witness. Therefore, although the judge did not delay the normal progress of the trial and the taking of evidence, essentially he granted defendant an additional five days in which to locate his witness and present her testimony for consideration.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant reserved Assignment of Error No. 2 to the court’s overruling of the objection which he made when the State offered the heroin recovered from Barbara Williams into evidence as Exhibits 1 and 2.

At the time of defendant’s trial, LSA-C. Cr.P. Art. 703(A) provided:

“A. A defendant aggrieved by an unconstitutional search or seizure may move to suppress for use as evidence at the trial on the merits, any tangible objects or other property, or documents, books, papers or other writings, on the ground that they were so obtained. A motion filed under the provisions of this paragraph must be filed no later than three judicial days before the trial on the merits begins, unless opportunity therefor did not exist or the defendant was not aware of the ground for the motion. The court in its discretion may permit the filing of such a motion to suppress at any time before or during the trial.”

Defense counsel objected at the trial to the reception of the evidence on the grounds that it was illegally seized and “ought to be suppressed.”

We find nothing in the record to show that the defendant did not have an opportunity to file a motion to suppress prior to trial. Hence, under Article 703, objection to the admission of the tangible evidence was waived. See State v. Womack, La., 283 So.2d 708 (1973); State v. Cormier, La., 272 So.2d 686 (1973); State v. Franklin, 263 La. 344, 268 So.2d 249 (1973).

Moreover, we find no merit in the contention that the evidence was unconstitutionally seized.

At approximately 2 o’clock a. m., on June 23,1974, Officers Samuel Huntley and Raymond Reed of the New Orleans Police Department Felony Action Squad drove past an intersection and observed money changing hands in what appeared to be a drug transaction. Officer Reed parked the unmarked police car in the next block and set up surveillance of the corner through a pair of binoculars, while Huntley positioned himself across the street posing as a drunk. On seven or eight separate occasions, the officers observed different subjects, some of whom were known to the officers as narcotics addicts, approach defendant and give him money in exchange for small foil packets which defendant produced from his right sock. Huntley testified that Williams occasionally served as a go-between in these transactions.

According to a pre-arranged signal, the officers simultaneously moved in on defendant, but were apparently recognized in advance of their arrival because as they approached, defendant removed a cellophane envelope from his sock and shoved it into Ms. Williams’ brassiere. The officers placed defendant and Ms. Williams under investigation and advised them of their rights. Officer Reed informed Ms. Williams that she would either be taken to Central Lockup, or if she preferred, a policewoman could be summoned to conduct a field frisk of her person. She then voluntarily gave him the cellophane packets which she had concealed, and both she and the defendant were placed under arrest. While the officers were questioning the two suspects, several men approached defendant and asked if he had any “stuff” for sale; he responded in the negative. The three packets recovered from Ms. Williams were subsequently tested and found to contain heroin.

The officers had probable cause to search defendant’s companion. Therefore, as the officers advised her of her constitutional rights, the surrender of the evidence violated no constitutional safeguard.

Assignment of Error No. 2 is without merit.

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

      . Although defendant filed three assignments of error, we will consider only Assignments of Error Nos. 1 and 2. Assignment of Error No. 3 was neither briefed nor argued and is, therefore, considered abandoned. State v. Blanton, La., 325 So.2d 586 (1976); State v. Carlisle, La., 315 So.2d 675 (1975); State v. Richmond, La., 284 So.2d 317 (1973).


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Frank BAKER.
    No. 58240.
    Supreme Court of Louisiana.
    Dec. 13, 1976.

      L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Frank Baker was tried before a jury in Criminal District Court for the Parish of Orleans and convicted for the March 8,1975 armed robbery of one Roosevelt James. He was sentenced to thirty years at hard labor. He appeals that conviction and sentence and relies on two assignments of error.

In his first assignment, he complains of the trial court’s denial of his motion for directed verdict presented at the conclusion of the state’s case.

At the time of the trial, May 1975, Article 778 of the Code of Criminal Procedure permitted the trial court to direct a verdict in jury cases if the evidence was insufficient to sustain a conviction. Sufficiency of evidence to sustain a conviction under Article 778, in terms of appellate review of the trial court's denial of the motion, has been construed by this Court to mean any evidence or some evidence to prove the crime or an essential element thereof. State v. Douglas, 278 So.2d 485 (La.1973). We are therefore limited in our review of the record in this case to determine whether the state failed to present any evidence at all to prove the crime or an essential element thereof.

Armed robbery is a theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64. The evidence upon which the state relied in the presentation of its case in chief was as follows: at about seven a. m. on March 8, 1975, the robbery victim Roosevelt James went to a gas station to fill his car with gas. Because the gas station attendant was unable to cash the bill with which James wished to pay for the gas, he went to a nearby barroom on St. Bernard Avenue, had two beers, obtained his change, and proceeded to his automobile which was nearby. As James approached his car, a man whom James had moments earlier seen standing on the street corner came up behind him, put a knife to his throat, and robbed him of seventy dollars. The victim viewed his assailant both at the time he saw him on the street corner and as the man retreated after seizing his money. James went to the home of his daughter nearby, persuaded his son-in-law to join him, and returned to the scene of the crime. There James observed the same man who had earlier robbed him walking into the barroom. He called the police and when they arrived he gave a description of the perpetrator, who was then inside the barroom. The officers entered, found the man and required him to accompany them outside where the victim identified him. A search of the man, defendant Frank Baker, revealed a curved knife which James identified as being the knife held on him during the course of the robbery.

It is apparent therefore that there was before the trial judge and the jury some evidence of each element of the crime charged.

Appellant’s argument in brief, that the victim was at the time intoxicated, a fact which precluded his ability to give an accurate identification at the scene or, as so tainted, thereafter at trial, as well as his supportive argument that the victim first claimed the incident had occurred at four a. m. and had testified at trial that the time was seven a. m., were properly matters for presentation to the jury whose province it was to determine guilt or innocence. Defendant’s argument falls significantly short of establishing for our present review purposes that there was no evidence whatever presented to prove the crime charged or an essential element thereof.

There is consequently no merit to the argument that this Court should upset defendant Baker’s conviction on the ground that the trial judge erred in denying his motion for a directed verdict.

In his second assignment of error defendant claims that the trial judge erred in permitting the state to amend its answer to bill of particulars by asserting that the incident occurred at seven o’clock in the morning rather than at four in the morning.

During the trial the victim asserted that the incident occurred at seven a. m. on March 8, 1975 and that his earlier assertion that it had occurred at four a. m. was erroneous, prompted by his nervousness at the time.

Thereafter, the defense presented its case which consisted exclusively of the testimony of defendant’s friend Mrs. Martin, who established an alibi for defendant at four a. m.

When the defense rested, the state moved to “amend the time to read seven a. m.” Whereupon defendant’s counsel objected to the amendment without stated reasons.

Article 488 of the Code of Criminal Procedure provides that when there is a variance between the allegations of a bill of particulars and the evidence offered in support thereof, the court may order the indictment or bill of particulars amended in respect to the variance and then admit the evidence.

Defendant contends that the court’s ruling prejudiced him and was not made in conformity with Article 488 because the amendment followed admission of the evidence and came after the defense had rested its case. Defendant further contends that the fact that the amendment was allowed after defendant had rested his case denied him his federal and state constitutional rights to present a defense and to compel the attendance of witnesses in his own behalf as well as his right to be notified of the nature of the charge against him.

The state urges that this Court should not review the error because defendant failed to state the grounds for his objection, citing Article 841 of the Code of Criminal Procedure. We believe that this contention is without merit. Defendant timely objected, and his reason for doing so, tardiness of the state’s amendment, was apparent to the trial judge. The grounds of the objection were thus made known (Article 841) to the court.

Alternatively, the state argues that defendant’s objection was without merit because he made no showing that the lateness of the amendment prejudiced his case. Procedural opportunity to make such showing is made available by Article 489 of the Code of Criminal Procedure. That article provides that the trial court must grant defendant’s request for a continuance upon his showing that he has been prejudiced in his defense on the merits by an amendment to the indictment or answer to bill of particulars. Although the Code makes this procedure available to defendants in situations similar to this defendant’s, the Code does not require that a defendant request a continuance or recess and attempt to make a proper showing.

The fact that defendant here chose not to avail himself of the remedy made available by Article 489 does not, standing alone, mean that the trial judge correctly overruled defendant’s objection to the tardy amendment. Nevertheless we find no merit to defendant’s assignment of error. When defendant’s attorney chose not to object to the state’s admission into evidence of the seven a. m. testimony, and when he did not request a continuance or recess pursuant to Article 489, he made the decision to use this discrepancy in his argument to the jury. The variance in the time was brought out by counsel in an attempt to discredit the chief prosecution witness’ credibility, and formed the basis of defense strategy throughout the trial. It ill behooves defendant to make the tactical decision which he did, fail in his effort at acquittal, and now complain that reversible error occurred. Nor do we find merit in his contention that the trial judge improperly admitted the evidence before the amendment was made, although the better practice, had there been an objection, would have been to amend the answer before such admission. State v. Champagne, 251 La. 849, 206 So.2d 518 (1968). We do not find in this instance any abridgment of the rights of this defendant.

Finding no merit in either of defendant Baker’s assignments of error, we affirm his conviction and sentence.

      . An amendment to that article did not become effective until September 12, 1975 and therefore did not affect this trial. See C.Cr.P. art. 778 amended by Acts 1975, No. 527, § 1.


text:
    STATE of Louisiana v. Paul A. GUILLORY.
    No. 58353.
    Supreme Court of Louisiana.
    Dec. 13, 1976.
    Gerald H. Schiff, Opelousas, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Gou-deau, III, Dist. Atty., Robert Brinkman, First Asst. Dist. Atty., for plaintiff-appel-lee.
   CALOGERO, Justice.

Appellant was charged with armed robbery. He was tried by jury on September 10, 1975 and convicted of simple robbery. He was sentenced to serve four years in the St. Landry Parish jail.

On February 7, 1975 defendant and his companion, one Bobby Joe Vidrine, were drinking at Flossie’s Bar. Defendant began talking to the victim, Burt Olivier, concerning the possibility of his procuring a girl for Olivier for fifteen dollars. Olivier, Vidrine and defendant then left the bar in Vidrine’s car allegedly to pick up the girl. After a short time Vidrine, the driver, pulled off the main road onto a side road, stopped the car and then pulled a knife. Vidrine demanded and received Olivier’s money. It amounted to approximately seventy dollars. After driving some distance Olivier was let out of the car. Vidrine and defendant then drove to another bar where the two of them split the money.

Defendant gave an inculpatory statement to the police after his arrest and booking in which he admitted essentially all of the foregoing facts with the insignificant exception that it was not him but his companion Vidrine who proposed to Burt Olivier that they find him a woman. At the trial, defendant took the stand and testified essentially as hereinabove related. He contended, however, that he made no prearrangement to rob Olivier; that he was unaware of Olivier’s intentions in this regard until Olivier turned off the main road; that he in effect was not a party to Vidrine’s robbing Olivier; that he said nothing during the course of the robbery except that at its conclusion he gave Olivier helpful advice about how to find his way back to Flossie’s. He acknowledged, just as he had admitted in the statement given to the police, that he received half of the money taken from the victim. In his testimony on direct and on cross-examination, he seemingly gave two differing reasons, or excuses, for having done so: that Vidrine had the knife (inferentially that he feared for his safety) and that he was intoxicated.

On appeal defendant relies upon two assignments of error for reversal of his conviction.

ASSIGNMENT OF ERROR NO. 1.

Defendant was arrested in Lafayette at his place of employment by Detective Donald Rills who, coincident with the arrest, read him his Miranda rights. Detective Rills apparently did not attempt to question defendant then or during the trip from Lafayette to Opelousas. While Detective Rills was having him booked at the St. Landry Parish Sheriff’s Office, Rills again read him his rights at which time, while signing a “waiver of rights” form (actually simply an acknowledgement that his rights had been read to him) defendant advised Detective Rills that he did not want to talk to him or discuss anything with him. Defendant did not express a desire to have counsel. Officer Rills then desisted from questioning defendant, but apparently when the booking was completed, turned defendant over to Detective Larry Ze-rangue. Zerangue thereupon read him his rights and took him into his office where within the ensuing thirty minutes defendant gave the statement which he later repeated at trial, in substantially all significant particulars.

There seems to be no question but that the written and signed statement given to Officer Zerangue by defendant was entirely free and voluntary.

Detective Zerangue testified that he had not been told of the Miranda reading at the time of the booking nor of defendant’s response thereto. Defendant moved to suppress the inculpatory statement.

Only the testimony of Officers Rills and Zerangue was presented in connection with the statement’s admissibility both on the motion to suppress prior to trial and on the predicate at trial outside the presence of the jury.

Appellant relies upon language contained in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,1627-28,16 L.Ed.2d 694 (1966) and the recent United States Supreme Court decision, Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). He contends that he expressed a desire to remain silent to Detective Rills and that accordingly the subsequent interrogation by Detective Zerangue was impermissible. In Miranda the Supreme Court said:

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point, he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.

In Michigan v. Mosley, supra, the Supreme Court had to construe the foregoing Miranda language and did so by concluding first of all that Miranda had not established a pro se proscription of indefinite duration upon any further questioning once a person in custody has indicated a desire to remain silent. They went on to conclude that “the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” And, of course, in that case they found that Mosley’s right to cut off questioning had been scrupulously honored, notwithstanding that a second officer, several hours after a refusal to give a statement, quizzed the defendant relative to a different crime.

Were we to conclude that the defendant Guillory had, upon being advised of his Miranda rights, invoked his fifth amendment privilege by expressing to Detective Rills that he wished to remain silent and give no statement to the police concerning the matter which prompted his arrest, we would be inclined to find this case distinguishable from Michigan v. Mosley, supra, and the statement constitutionally impermissible. The two readily apparent differences between these facts and those in Mosley are that the second officer’s interrogation came almost immediately after the witness’ response to the first officer, and the inquiry of each of the officers focused on the same criminal incident.

However, as we view the evidence of the in-custody interrogation in the instant case, we conclude that defendant did not in fact, in response to the Miranda warnings, invoke his fifth amendment privilege by expressing a desire not to make a statement or a desire to remain silent. The only testimony on this point, the testimony of Officer Rills, was to the effect that defendant did not desire to speak with Officer Rills about anything.

In effect we are here agreeing with the state’s contention that defendant quite willingly gave a statement to Officer Zerangue, whom he had known for some three years, but insisted upon not speaking with Officer Rills. The state’s apparent effort to develop more specific reasons for this attitude on the part of defendant was foreclosed when the Court maintained a defense objection (“irrelevant and immaterial”) to a question put to Officer Rills.

Defendant’s assignment of error number one is without merit.

ASSIGNMENT OF ERROR NO. 2.

Bobby Joe Vidrine, defendant’s alleged accomplice (he had earlier pled guilty to the same armed robbery), was testifying about a conversation he overheard between defendant and the victim Olivier at Flossie’s Bar. He said that he overheard defendant tell Olivier that he could fix him up with a woman for fifteen dollars and that the woman was in Opelousas. At that point the prosecutor asked, “What at that time did you understand that statement to mean?” Vidrine responded, “get the boy out of there and get his money.” The prosecutor then asked why, and he said “because I know him. He’s that way.”

At this point defense counsel asked for a mistrial because “he’s calling for an opinion.” He also argued that the witness’ statement was totally improper and that an admonition to the jury would be insufficient to overcome the improper remark.

The court refused to grant a mistrial but nonetheless did admonish the jury at great length to disregard the witness’ response.

Pretermitting whether the witness’ response was impermissible — there is little doubt that it was prejudicial for at the least it represented a communication by defendant to his companion indicating complicity — an admonition under Article 771 of the Code of Criminal Procedure if deemed by the trial judge sufficient to assure defendant a fair trial is adequate response to defendant’s mistrial motion. The trial judge did not abuse his discretion in responding as he did to the motion.

Assignment of error number two is not meritorious.

For the foregoing reasons, defendant Guillory’s conviction and sentence are affirmed.

      . He did, however, confirm Vidrine’s trial testimony by stating that he had done the talking with Olivier inside the bar.

      . Officer Rills testified “he didn’t want to talk to me, said he didn’t want to discuss anything with me, so that was it.”

      . The question was “Is it not common practice, Mr. Rills, that some defendants or some suspects will talk to one detective and not another?”


author: SUMMERS, J.,

text:
    STATE of Louisiana ex rel. John SAUCER v. Lemmie O. HIGHTOWER, Judge, Fourth Judicial District Court, State of Louisiana.
    No. 58900.
    Supreme Court of Louisiana.
    Dec. 17, 1976.
   In re: John Saucer applying for Supervisory writs of prohibition, mandamus, and/or certiorari.

Writ Granted in Part; Denied in Part:

All printed materials not including explicit pictorial depiction of sexual acts ordered released as beyond the scope of the warrant; as to other specifications, the application is denied, there being an adequate remedy for review in the event of conviction.

SANDERS, C. J., dissents from the order releasing the alleged obscene material.

SUMMERS, J.,

dissents from the in chambers order releasing the material, found to be obscene by the trial judge, without viewing the contested material, upon the unilateral allegation of applicant.


author: PER CURIAM.

text:
    STATE of Louisiana, Appellant, v. Leland PATTERSON, Appellee.
    No. 58433.
    Supreme Court of Louisiana.
    Dec. 22, 1976.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Geraldine S. Veazey, Asst. Dist. Atty., for plaintiff-appellee.
    Robert J. Zibilich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   PER CURIAM.

We have reviewed the assignments of error presented by the defendant’s appeal, and we find no reversible merit to them. Accordingly, we affirm the conviction and sentence.

AFFIRMED.


text:
    STATE of Louisiana v. Carlton ARDOIN.
    No. 58439.
    Supreme Court of Louisiana.
    Dec. 22, 1976.
    Robert J. Zibilich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant was charged with aggravated rape which occurred on February 15, 1976. The jury returned a responsive verdict of forcible rape and defendant was sentenced to fifteen years at hard labor on June 4, 1976.

On appeal he raises one assignment of error, concerning the answer to a motion for a bill of particulars and a prayer for oyer. We have examined the record and find no merit in the assignment of error, and there is no error discoverable by an inspection of the pleadings and proceedings.

The conviction and sentence are affirmed.


text:
    STATE of Louisiana v. Alan MUHLEISEN.
    No. 58460.
    Supreme Court of Louisiana.
    Dec. 22, 1976.
    Robert J. Zibilich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant Muhleisen was indicted by the Orleans Parish Grand Jury for having committed the crime of first degree murder of a seven year old girl, in violation of La.R.S. 14:30. After trial, the jury unanimously found defendant guilty as charged and he was subsequently sentenced to death. From the conviction and sentence, he appeals relying upon four assignments of error.

We have carefully reviewed the assignments of error, and we find them to be nonmeritorious. And since there are no errors discoverable by mere inspection of the pleadings and proceedings, we affirm defendant’s conviction.

However, for the reasons stated in our decision in State v. Jenkins, 340 So.2d 157 (La.1976), we must set aside defendant’s death sentence and remand the case to the district court for imposition of the most serious penalty imposable for the lesser included offense, viz., life imprisonment without eligibility for parole, probation or suspension of sentence for a period of forty years.

Accordingly, defendant’s conviction is affirmed, but his sentence is annulled and set aside and the case is remanded to the district court for resentencing with instructions to the trial judge to sentence defendant to life imprisonment without eligibility for parole, probation or suspension of sentence for a period of forty years.


text:
    STATE of Louisiana v. Tyronne JEFFERSON.
    No. 58462.
    Supreme Court of Louisiana.
    Dec. 22, 1976.
    John M. Blanchard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Geraldine S. Veazey, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Leonard BASHFUL.
    No. 58465.
    Supreme Court of Louisiana.
    Dec. 22, 1976.
    Robert B. Nolan, Adams & Reese, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana, Appellee, v. Mary Jane JARREAU, Appellant.
    No. 58474.
    Supreme Court of Louisiana.
    Dec. 22, 1976.
    D’Amico & Curet, Lewis 0. Unglesby, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen,, Ossie Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

The single assignment of error raises a double jeopardy issue. The defendant contends that a previous prosecution and conviction for a drug distribution offense bars the prosecution and conviction for the present drug distribution. The defendant argues that the present transaction is part of the continuous offense for which she was previously convicted.

We have reviewed the record and conclude that the assignment of error is without merit: The prosecutions and convictions concern two entirely separate and distinct distributions by the defendant, albeit the first did occur within an hour of the second. See: State v. Nichols, 337 So.2d 1074 (La. 1976); State v. Richmond, 284 So.2d 317 (La.1973).

Accordingly, we affirm the conviction and sentence.

AFFIRMED.


text:
    STATE of Louisiana v. Douglas KNIGHTEN.
    No. 58475.
    Supreme Court of Louisiana.
    Dec. 22, 1976.
    Vincent Wilkins, Jr., Director & Appellate Counsel, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Bobby Dale WELLS.
    No. 58479.
    Supreme Court of Louisiana.
    Dec. 22, 1976.
    William L. Crull, III, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Regina C. Cooper, Research Atty., Metairie, for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Willie FOX.
    No. 58481.
    Supreme Court of Louisiana.
    Dec. 22, 1976.
    Arthur A. Lemann, III, Supervising Atty., New Orleans, Loyola Law School Clinic, Suzette Powers, Student Practitioner, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Milton GREEN.
    No. 58487.
    Supreme Court of Louisiana.
    Dec. 22, 1976.
    Leslie J. Clement, Jr., Porteous, Toledano, Hainkel & Johnson, Thibodaux, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen.,. Francis Dugas, Dist. Atty., Walter K. Naquin, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Albert BROWN.
    No. 58488.
    Supreme Court of Louisiana.
    Dec. 22, 1976.
    John T. Bourgeois, Thibodaux, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst.. Atty. Gen., Francis Dugas, Dist. Atty., Walter K. Naquin, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Everett CLARK et al.
    No. 58494.
    Supreme Court of Louisiana.
    Dec. 22, 1976.
    Milton P. Masinter, J. Daniel Rivette, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Geraldine S. Veazey, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Eugene RILEY.
    No. 58521.
    Supreme Court of Louisiana.
    Dec. 22, 1976.
    James G. Derbes, Derbes & Derbes, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Geraldine S. Veazey, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Walter NEWSON, Jr.
    No. 58535.
    Supreme Court of Louisiana.
    Dec. 22, 1976.
    Eugene J. Coen, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., William L. Goode, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Sheppard Lee KELLY.
    No. 58549.
    Supreme Court of Louisiana.
    Dec. 22, 1976.
    James W. Berry, Rayville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Don K. Carroll, Dist. Atty., William R. Coenen, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Percy JOHNSON.
    No. 58551.
    Supreme Court of Louisiana.
    Dec. 22, 1976.
    Barry F. Viosca, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Tommie L. JOHNSON.
    No. 58552.
    Supreme Court of Louisiana.
    Dec. 22, 1976.
    Lyall Shiell, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Geraldine S. Veazey, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    Wade O. MARTIN, Jr. v. The LOUISIANA STADIUM AND EXPOSITION DISTRICT et al.
    No. 59048.
    Supreme Court of Louisiana.
    Jan. 4, 1977.
   In re: Hon. Edwin W. Edwards, Governor, Charles E. Roemer, II, Commissioner of the Division of Administration & Wade 0. Martin, Jr. applying for Supervisory Writs.

Writ denied. The parties may apply for an expeditious hearing in the court of appeal.

SUMMERS, J.,

is of the opinion this writ should be granted. The opinion of the district court is erroneous and the public interest overrides other considerations, such as the inordinate delays involved in the prosecution of this suit.

CALOGERO, J., recused.


author: SANDERS, C. J., and SUMMERS, J., SUMMERS, J.,

text:
    STATE of Louisiana v. Jessie BROWN.
    No. 59049.
    Supreme Court of Louisiana.
    Jan. 4, 1977.
   In re: District Attorney for the Parish of Orleans applying for writ of certiorari.

Writ denied: No abuse of discretion in trial court granting a new trial to consider additional evidence.

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

are of the opinion that a writ should be granted. The trial judge has applied an erroneous standard for the value of stolen property.

SUMMERS, J.,

is of the additional opinion the issue is res nova and should be decided by this court.


text:
    STATE of Louisiana v. Willard F. GUILLOT.
    No. 58689.
    Supreme Court of Louisiana.
    Jan. 5, 1977.
   In re: State of Louisiana applying for writ of certiorari, prohibition and mandamus.

Writ denied. No abuse of discretion.

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

are of the opinion that a writ should be granted.

SUMMERS, J.,

adheres to the majority American view stated in State v. Anselmo, 260 La. 306, 256 So.2d 98.


author: SANDERS, C. J., SUMMERS, J.,

text:
    STATE of Louisiana v. Robert J. BURCH.
    No. 58810.
    Supreme Court of Louisiana.
    Jan. 5, 1977.
   In re: State of Louisiana applying for writs of certiorari

Writ denied. We find no error in the trial court’s ruling.

SANDERS, C. J.,

is of the opinion that a writ should be granted.

SUMMERS, J.,

is of the opinion the writ should be granted.


author: DENNIS, J.,

text:
    Priscilla Joy Everhart Bourgeois, wife of/and Albert John BOURGEOIS, III v. Dr. Julius DAVIS, Jr., et al.
    No. 58840.
    Supreme Court of Louisiana.
    Jan. 5, 1977.
   In re: Dr. Julius Davis, Jr., et al, applying for Certiorari, or writ of review, to the Court of Appeal, 337 So.2d 575, Fourth Circuit, Parish of Orleans.

Writ denied. Under the facts found by the Court of Appeal, we find no error of law.

DIXON, J., dissents from denial.

DENNIS, J.,

is of the opinion the writ should be granted.


author: DIXON, J., DENNIS, J.,

text:
    STATE of Louisiana v. John Albert JOHNSON.
    No. 58906.
    Supreme Court of Louisiana.
    Jan. 5, 1977.
   In re: John Albert Johnson, applying for writ of mandamus.

Writ denied. There is no showing in this application that applicant has exhausted his remedies in the trial court. Moreover, the rules of this Court have not been complied with in this application.

DIXON, J.,

concurs in denial. Applicant must apply to district court for relief. C.Cr.P. 916.

DENNIS, J.,

concurs in denial of the writ for the reasons stated by DIXON, J.


author: LANDRY, Judge.

text:
    Theo L. GALLOWAY v. James C. GASPARD.
    No. 10934.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.

      Doris Gates Rankin, Baton Rouge, for the plaintiff-appellant.
    C. James Carville, Jr., Baton Rouge, for the defendant-appellee.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

Plaintiff, Theo L. Galloway (Appellant), appeals from judgment rejecting his claim to be recognized as owner of an Alaska Malamute canine and declaring the animal to be the property of defendant James C. Gaspard (Appellee). We affirm.

In essence Appellant urges the following errors on the part of the trial court: (1) Finding that Appellant did not adequately establish the identity of the animal in dispute; (2) Failing to accept the testimony of Appellant’s expert despite Appellee’s omitting to produce any expert testimony whatsoever; and (3) Denying Appellant the right to cross-examine witnesses whom Ap-pellee summoned, but did not call to testify, and as to whom Appellee stipulated their testimony would be cumulative of that given by other Appellee witnesses who were called to testify on Appellee’s behalf and who were subject to cross examination by Appellant.

In about mid August, 1971, Appellant, who resides at 390 Marian Drive, Baton Rouge, Louisiana, purchased an Alaska Malamute dog, which animal was whelped approximately six weeks previously, on July 31, 1971. From the date of its purchase until May 5, 1974, the dog remained at Appellant’s home except for four or five instances in which the animal strayed for a day or two and returned. On May 5, 1974, Appellant’s dog disappeared and did not return until July, 1975, when the animal allegedly began following Appellant’s son home while the youth was still about five blocks from the Galloway residence.

From early 1973, until June, 1975, Appel-lee lived at 734 Highland Park Drive, Baton Rouge, approximately five or six miles from Appellant’s residence. In March, 1974, Ap-pellee acquired a male Siberian Husky from Appellee’s brother who resided in Colorado. Appellee’s dog, whelped January 31, 1974, was approximately 86 weeks old when this action was instituted. In June, 1975, Ap-pellee moved to 229 Ardenwood, Baton Rouge, which is only a few blocks from Appellant’s home. Prior to Appellee’s moving to the Ardenwood address, his dog disappeared twice. The first time for three days following which the animal was found about three miles from Appellee’s residence. The second time, the dog was gone for two hours and was found running back toward home. After moving to Ardenwood, Appel-lee’s dog disappeared twice, the first time occurring about a week after Appellee moved. The dog disappeared again in June, 1975, and, when the animal did not return after several days, Appellee ran a lost dog advertisement in the local newspaper. Appellant responded to the ad by calling Ap-pellee and advising that Appellant had a dog which answered the description of the dog advertised by Appellee but that the animal was in fact Appellant’s dog which had been missing for quite some time.

Appellant claims the animal on the grounds that the dog followed his son home; the general appearance and markings on the animal in question are the same as those on the Alaska Malamute which Appellant raised; the animal in question has only one testicle due to the surgical removal of an undescended testicle, which operation Appellant had performed on his dog; and, the presence of a scar or lesion in the general vicinity of the surgery performed on Appellant’s dog.

Appellee’s assertion of ownership rests on the ground that since its whelping, his dog was missing only a total of about one and one-half weeks; that the animal had only one testicle, but that no surgery was performed on this portion of his dog’s anatomy; and that the unique facial markings on the dog in question are those on his dog, especially the two unsymmetrical lines running down both sides of the animal’s snout.

To establish the age of subject animal at considerably more than 86 weeks at the time this action was begun, Appellant introduced the testimony of Dr. Charles Robert Root, Professor, Louisiana State University, Department of Veterinary Clinical Sciences, who qualified as an expert in the field of veterinary radiology. He concluded that because of the age differences in the dogs involved, the only method of determining the age of the animal in dispute with any degree of accuracy was by radiographic studies of the animal’s skeletal system. Dr. Root explained that such studies are predicated on the elapsed time from birth to the time of closure of the major growth center of a dog’s skeletal system. He noted that bones in the pelvic area fuse latest in the life of a canine. On July 16,1975, Dr. Root took lateral radiographies of the pelvis and lower spine of the dog in question and found no evidence of a cleft at the iliac crest, which would indicate the presence of cartilage tissue that had not ossified. Because the growth center of the animal in question was found to be completely ossified and fused, he concluded the animal was at least 130 weeks of age at the time of his examination. He was of the opinion that the possibility of complete fusion at earlier than 130 weeks was most remote. He testified that in cases which he had handled involving dogs of known age, he had not observed such fusion at less than 130 weeks. His opinion was based on charts contained in the 1967 edition of Dr. Carlson’s book, a standard reference used in the field of veterinary science and generally accepted in the profession. The chart entitled “Fusion of Epiphysis” indicates that fusion commences at 53 weeks and the epiphyseal closure is complete at 130 weeks. Dr. Root admitted the chart does not purport to indicate whether 130 weeks is the maximum, minimum or average age of full fusion. He also conceded he did not know the breed or breeds of dogs used in the preparation of the chart. He was of the opinion the dogs used in compiling the chart data were not of an extreme breed and that the chart accurately represents the age of an average dog, plus or minus some standard deviations.

Dr. Gordon Pirie, Veterinarian, was well acquainted with Appellant’s Alaska Malamute and recalled treating the animal approximately two years prior to trial. He performed a cryptorchid operation on the dog, which involved the surgical removal of an undescended left testicle from the subcutaneous area of the flank. An examination by Dr. Pirie prior to trial disclosed a disturbance on the skin of subject animal, similar iii appearance to the surgical scar left from the incision he made at the time of the surgical operation on Appellant’s dog. Dr. Pirie conceded, however, the scar or disturbance noted could have been due to some other cause than surgery.

Appellee’s Siberian Husky was treated by Dr. Clarence B. Hackett, Veterinarian, from March 2, 1974, until July 17, 1975, during which interval Dr. Hackett saw the animal approximately 14 times. Treatment administered included distemper vaccinations, tra-chial bronchitis, possible snake bites and a bilateral pectineal myotomy for hip dyspla-sia. Dr. Hackett’s last examination was incident to the disputed ownership. Dr. Hackett had no reason to believe the animal he examined preparatory to trial was not the same dog he had seen previously. He conceded, however, he could not be absolutely certain it was the same animal. He also stated that so far as he knew the only distinction between an Alaska Malamute and a Siberian Husky is that a Malamute is a larger breed of dog.

Appellee’s brother, Guy Gaspard, testified he owned a Siberian Husky bitch while he resided in Colorado. His dog whelped on January 31, 1974, and he gave one of the litter to Appellee. He noted some distinguishing marks on the dog, primarily that as a puppy it had a cloverleaf mask on its face, the line of which coming down the right side of its nose was longer than that on the left side. From photographs taken at the time of whelping and later photographs, which were offered in evidence, he identified the markings on subject animal to be similar. He further testified to having seen Appellee’s dog on several occasions and was certain the animal in question was the same dog given Appellee.

Appellee called three teenage witnesses, all friends of Appellee’s children and who frequently visited \ in Appellee’s home. Each testified substantially that they were familiar with Appellee’s dog having known the animal a long time and having seen it frequently. In essence, each testified they thought the animal was Appellee’s dog and none could say the animal did not belong to Appellee.

The trial court concluded that Appellant had not borne the burden of establishing his case (in this instance, the identity of the animal in question) by a preponderance of the evidence as required by law. The court so found because the testimony of Appellant’s expert concerning canine ages as reflected on the chart in-question, was based on the assumption the chart represented an average age of epiphyseal closure, and considering all of the testimony, Appellant failed to establish that more probably than not the dog belonged to Appellant.

The trier of fact is not required to accept the testimony of an expert as decisive merely because the opposing party failed to produce an expert witness. The effect to be given expert testimony is the weight accorded it by the trier of fact. The weight such testimony is entitled to receive is determined by the professional qualifications and experience of the witness and the circumstances and materials on which the opinion is based. State Through Department of Highways v. McPherson, 261 La. 116, 259 So.2d 33 (1972); Middle Tennessee Council, Inc. v. Ford, 274 So.2d 173 (La. 1973); 31 Am.Jur.2d, Expert and Opinion Evidence, Section 183, page 748.

The evidence of an expert witness is received by a trial court pursuant to the same manner as evidence of non-experts, and is to be weighed by the trier of fact the same as other evidence. The trier of fact is not bound by expert testimony.

We find no merit in Appellant’s contention that the testimony of Appellee’s witnesses is not entitled to the same weight as that of Appellant’s expert because Ap-pellee’s witnesses were friendly to Appellee. Interest does not disqualify a witness, or render his testimony ipso facto unworthy of belief. Rather the testimony of an interested witness is to be weighed in the light of the interest disclosed in the record. The trial court considered the testimony of all the witnesses; it weighed the evidence in the light of the circumstances on which the expert testimony was predicated and that of Appellee and his witnesses in the light of their interest and/or acquainteneeship with Appellee. We reiterate that a trier of fact is not required to accept the unrefuted testimony of an expert witness; he may substitute his own common sense and judgment for that of an expert where, in the opinion of the trier of fact such substitution appears warranted by the evidence as a whole. Webster v. Offshore Food Service, Inc., 5 Cir., 434 F.2d 1191, cert. denied, 404 U.S. 823, 92 S.Ct. 44, 30 L.Ed.2d 50.

The trial court was obviously impressed with Dr. Root’s expertise. However, because Dr. Root’s opinion was based on what Dr. Root believed to be the average age for fusion of canine bone structure, the possibility existed that the bones of the dog in dispute could have fused at an earlier age. As we noted in Bogasky v. Falsetta, 189 So.2d 98 (La.App. 1st Cir. 1966), “proof that something is impossible serves to contradict, but proof that it is possible has little or no probative value as to the ultimate issue of fact unless all other alternatives are proved to be impossible”.

It is axiomatic that the party with the burden of proof must establish his cause beyond mere probability and conjecture. He must prove his case by a preponderance of credible evidence meaning evidence which is of greater weight and more convincing than that offered by his opponent, and which, because it best accords with reason and probability, or because of its more convincing nature and quality, best tips the scales of justice upon whom the burden rests. Alexander v. St. Paul Fire & Marine Insurance Co., 312 So.2d 139 (La. App. 1st Cir. 1975).

We find no merit in Appellant’s contention that the trial court committed reversible error in refusing to allow Appellant to cross examine witnesses whom Appellee had summoned and who did not testify upon Appellee advising the court their testimony would be cumulative of that of other friends and acquaintances of Appellee and his family.

Appellee offered to stipulate as to the testimony of these witnesses but Appellant refused to join in the stipulation. In civil cases it is presumed that the testimony of a subpoenaed but uncalled witness would be unfavorable to the party who has summoned the witness. However, the adverse presumption does not apply when failure to call the witness is explained. Veillon v. Sylvester, 174 So.2d 189 (La.App. 3rd Cir. 1965); White v. Plodzik, 213 So.2d 68 (La. App. 1st Cir. 1968); Barrois v. Service Drayage Co., 250 So.2d 135 (La.App. 4th Cir. 1971).

The trial court found the failure of Appellant to stipulate as to the testimony of the uncalled witnesses was a matter of no particular moment inasmuch as their testimony would be merely cumulative as to the identity of the animal. In this regard the record shows that the three acquaintances called by Appellee testified in general terms concerning their knowledge and acquaintanceship with the dog in question. It also appears that of the three such witnesses called, only two were cross-examined by Appellant and that the testimony elicited on cross-examination did not detract from the quality of their testimony.

In large measure the decision herein by the trial court involved a credibility determination. We find the rule which mandates affirmation of a factual determination not shown to be manifestly erroneous, is peculiarly appropriate in this instance. Cantor v. Koehring Co., La., 283 So.2d 716 (La.1973).

The judgment is affirmed at Appellant’s cost.


author: EDWARDS, Judge.

text:
    Ronald Lloyd STEVENS v. Linda Sue Wilder STEVENS.
    No. 10914.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    Rehearing Denied Dec. 20, 1976.

      Jas. D. Thomas, Baton Rouge, of counsel, for plaintiff-appellee.
    Andrew J. Bennett, Jr., Baton Rouge, of counsel, for defendant-appellant.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

This is a child custody proceeding.

Ronald Lloyd Stevens and Linda Sue Wilder Stevens were separated by judgment of the Family Court dated September 18,1970. The judgment awarded custody of the three minor children — Karen (then age 5), Katherine and Kristine (then ages 4) — to Ronald Lloyd Stevens. On October 15, 1971, Ronald Lloyd Stevens was granted a divorce from Linda Sue Wilder Stevens, which judgment continued custody of the children to their father, Mr. Stevens.

Linda Stevens filed a rule for change of custody on August 26, 1975. After a hearing on the matter, the Family Court rendered a decision on March 3, 1976 denying the rule and continuing custody in the father. From this ruling, Linda Stevens has appealed.

The issue presented for our consideration, although simply stated, is not simply resolved: Did the lower court err in denying the mother custody of her three minor female children?

From a careful review of the record, we summarize the following facts:

Linda Stevens left the marital domicile in August of 1970. Prior to this time, she had become involved twice with other men, the second incident occurring just before her leaving and precipitating same. Ronald Stevens told his wife to leave, and she voluntarily complied. The suit for separation filed by Ronald Stevens alleged as grounds the abandonment. Linda Stevens did not contest the separation nor the grant of custody. The divorce proceedings were likewise uncontested. Linda Stevens testified in this rule for change of custody that her reason for allowing her husband the custody of the children was that she was experiencing some emotional problems at the time and, because of the situation, needed time to pull herself together. Further, she did not want to subject herself, her children, and others involved to the exposure and embarrassment of litigation as threatened by her husband should she have sought custody.

Following his wife’s departure in August, 1970, Ronald Stevens began looking for a housekeeper to help him with the task of rearing three young girls. In the meantime he left the children with his mother in Gladewater, Texas, making the 650 mile round trip every two weeks to visit for the weekend. In February, 1971, he hired a housekeeper and brought the children home.

The record reflects that Ronald Stevens has been a good father to his children and that there is a reciprocal love between him and them. He has devoted much of his spare time to activities with the children and, whenever he could, even included them on his dates and parties and barbeques with friends. He remarried in February, 1975. Diane Foret Stevens, his new wife, has two children of her own, likewise girls, and works fulltime now as a housewife and mother of five children. Diane Stevens helps Ronald’s children with their homework, confers with their teachers, enrolled them during the summer in tennis and swimming lessons, supervises daily routines of household chores for all the children, and generally does an overall outstanding job of raising 5 young girls.

Linda Stevens has maintained a close relationship with her children since the separation. She has arranged parties for the children on their birthdays; taken them shopping for school clothes, Easter dresses, and for presents at Christmas; had Christmas for them with her family after they returned from Texas; split the cost with Ronald Stevens of their Christmas presents; conferred with their teachers; taken them to the doctor and procured medicine for them. When the children stay with her on alternate weekends, she has them do household chores.

Mrs. Stevens admitted that she had in the past voluntarily sought and received psychiatric and psychological counseling for emotional problems. However, she maintained that she had overcome those earlier problems and no longer suffered any such disabilities. In this connection, Dr. Linda Marie Floyd, clinical psychologist qualified as an expert, testified that she had interviewed Mrs. Stevens on two occasions. She concluded that Mrs. Stevens has a positive, optimistic and realistic outlook in general, that she has good emotional control, that she is well-adjusted in her opinions and attitudes concerning family interaction, and that she had a comfortable relationship with children. Although she noted that Mrs. Stevens at times employed denial or avoidance as a defense mechanism, she found no problems warranting psychiatric or psychological treatment. She noted finally that Mrs. Stevens seemed not to seek permanent relationships with men and opined that married men might for this reason be attractive to her. The record further reflects that Mrs. Stevens, since the separation, was involved with a married man, though that relationship has been discontinued.

The three children testified that they would rather live with their mother than with their father and that they did not want to move to Alexandria (where Mr. Stevens had been transferred recently) because of the distance from their mother. Dr. Tommy Stigall, clinical psychologist, examined the children separately, two visits each. He concluded that the children more closely identified with their mother and , that they were specific in their desire to be . with her.

He further found that Karen, the oldest, suffers some emotional disturbance from frustration at not being with her mother. Lastly, he stated that there was no indication that their being moved to their mother’s neighborhood would cause any disturbance, particularly since they had made many friends there in their past visits. However strong their desire to live with their mother, the children exhibited no antagonism toward Diane Stevens.

LAW:

The legal principles applicable to child custody cases were set forth in Fulco v. Fulco, 259 La. 1122, 254 So.2d 603, 605 (La.1971):

“(1) The paramount consideration in determining to whom custody should be granted is always the welfare of the children. Drouin v. Hildenbrand, 235 La. 810, 105 So.2d 532 (1958) and jurisprudence therein cited; see also Moosa v. Abdalla, 248 La. 344, 178 So.2d 273.
(2) The general rule is that it is in the best interest of the children of the marriage to grant custody to the mother especially when they are of tender years. Such paramount right of the mother to custody should not be denied unless she is morally unfit or otherwise unsuitable, and it is only in exceptional cases that the better interest of the children is served by changing their custody from the mother to the father. Messner v. Messner, 240 La. 252, 122 So.2d 90 (1960); Drouin v. Hildenbrand, 235 La. 810, 105 So.2d 532 (1958); Boatner v. Boatner, 235 La. 1, 102 So.2d 472 (1958); Tullier v. Tullier, 140 So.2d 916 (La.App.1962) (citing numerous decisions of this court to such effect).
(3) When the trial court has made a considered decree of permanent custody in the light of the above principles, even though such custody is subject to modification at any time when a change of conditions demands it, the party seeking the change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed. Tiffee v. Tiffee, 254 La. 381, 223 So.2d 840 (1969); Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955); Guillory v. Guillory, 221 La. 374, 59 So.2d 424 (1952); Nugent v. Nugent, 232 So.2d 521 (La.App. 1970) (citing numerous court of appeal decisions to such effect).
(4) Upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight. He is in a better position to evaluate the best interest of the children from his total overview of the conduct and character of the parties and the children and of community standards. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof. Messner v. Messner, 240 La. 252, 122 So.2d 90 (1960); Salley v. Salley, 238 La. 691, 116 So.2d 296 (1959); Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955); Guillory v. Guillory, 221 La. 374, 59 So.2d 424 (1952).”

For purposes of our review, we initially must determine whether there had ever been rendered a “considered decree” on the issue of custody prior to the trial of the matter herein. As earlier noted, neither the separation proceeding nor the divorce was contested by the wife; both resulted in default judgments. Further, the record on appeal does not contain the separation and divorce proceedings.

Where a trial of the issue of custody is had and a decision rendered based on the pertinent law as applied to the facts adduced, this would clearly constitute a considered determination of custody. Gulino v. Gulino, 303 So.2d 299 (La.App. 1st Cir. 1974).

Likewise, a judgment by default may be a “considered decree” of custody, depending upon what evidence is taken at the proceedings prior to the rendition of judgment. If there is evidence taken at the default proceedings in regard to the defendant’s fitness to have the care, custody, and control of the children, then the judgment rendered would be a “considered decree.” Southern v. Southern, 308 So.2d 424 (La. App. 3rd Cir. 1975). Where no evidence of fitness for custody is offered at the default proceedings, the judgment granting custody is not a “considered decree.” Lemons v. Lemons, 325 So.2d 734 (La.App. 1st Cir. 1976); Swann v. Young, 311 So.2d 617 (La. App. 3rd Cir. 1975).

Finally, there is the question of whether or not a judgment, default or otherwise, is presumed to be a “considered decree.” Because, as a matter of practice, custody awards are often rendered incidental to the rendition of the judgment of separation or divorce, with no evidence being offered on the issue of custody, we will not presume, in the absence of any evidence in the record on appeal, that such an award of custody was a considered decree. Thus the party alleging the applicability of the double burden rule must show, through introduction of the transcript of the default proceedings or otherwise, that the custody issue was “considered” in the prior proceeding. See Lynn v. Lynn, 316 So.2d 445 (La. App. 3rd Cir. 1975). Hence, we hold that the double-burden test does not apply here, and we treat this as a review of an original custody determination.

Because of the trial court’s distinctly advantageous position for making custody determinations (as recognized by the Court in Fulco, supra), our touchstone of review is whether his discretion was clearly abused in making the award.

Appellant contends that discretion was abused by awarding the custody to the father in disregard of the maternal preference rule and without any showing of unfitness of the mother.

The proper guideline for the trial court in custody determinations is, of course, the welfare and best interests of the children, Fulco, supra. The maternal preference rule is explanatory of, rather than distinct from, this general principle and, in most cases, follows naturally therefrom.

In the instant case, several factors were presented to counter the application of the maternal preference rule:

(1) The children have been living with the father for a period of some five years since the separation;

(2) The father has since remarried and established a stable and salutary home environment;

(3) The mother, unmarried, has since the separation become involved with another married man (though at the time of the hearing had discontinued that relationship), which type of superficial relationship may be attractive to the mother because of her psychological profile.

From a reading of the record in this case, we are impressed with the remarkable relationship between the mother and the children, a relationship that leaves no doubt of the love harbored therein. However, the record also reflects a father eminently qualified and just as devoted to rearing these children. The three young girls are beautiful proof of the efforts, attention, and love of both parents.

This case painfully illustrates the hard choices in custody proceedings. Nevertheless, the trial court’s duty was to determine custody, and our duty is to review that determination.

Our thorough review of this record satisfies us that the trial court had a sufficient basis for this result.

Our judicial system imposes the awesome duty on trial judges to decide these custody cases, and to function properly they must have authority and discretion commensurate with that responsibility. There has been no abuse of discretion, and for that reason, the judgment is affirmed at appellant’s cost.

AFFIRMED.


author: COLE, Judge.

text:
    Sylvester WATSON v. J. L. MORRISON et al. Acey L. ALLEN et al. v. Sylvester WATSON et al. J. L. MORRISON v. DEPARTMENT OF HIGHWAYS of the State of Louisiana, et al.
    Nos. 10904-10906.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    Rehearing Denied Dec. 20, 1976.
    Writs Refused Feb. 14,1977.

      Joshua A. Tilton, Tillery, Cooper & Tilton and Byron Magbee, Baton Rouge, for Sylvester Watson, plain tiff-appellant.
    Robert L. Kleinpeter, Baton Rouge, for Dixie Auto Ins. Co., instead of and in place of Mid-Continent Underwriters, Inc., defendant-appellee and for John L. Morrison, individually and as administrator of estate of minor child, Susan M. Morrison Babb and Mid-Continent Underwriters, Inc., defendant-appellee.
    H. A. Mentz, Jr., Hammond, for J. L. Morrison, individually and as administrator of estate of Susan Morrison, defendant-ap-pellee.
    Ronald S. Macaluso, Dept, of Highways, Hammond, for Department of Highways of State of Louisiana, third party defendant-appellant.
    John W. Anthony, Bogalusa, for Sylvester Watson, Amite Milling Co., Inc. and Continental Casualty Co., third party defendants-appellees.
    John L. Avant, Baton Rouge, for Acey L. Allen, etc., plaintiff-appellant.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

A head-on collision occurred on May 12, 1971, on Louisiana Highway 1054 in Tangi-pahoa Parish involving a truck and an automobile. The following few facts are undisputed: Louisiana Highway 1054 is a narrow, two lane, hard surface road, twenty feet wide in the general area of and at the place of the accident. At approximately 9:35 A. M. on the morning of May 12, 1971, Sylvester Watson was driving a truck owned by his employer, Amite Milling Company, north on Louisiana Highway 1054. The road was wet, as it had been raining intermittently that morning. At the same time Susan Morrison was driving her father’s automobile south on the same road on her way home from school after taking an exam that morning. With her in the car were two sisters, Sharon and Joyce Allen. She was giving them a ride home. Susan Morrison rounded a curve in the road and was proceeding along a straight section of the road going up a slight hill. Sylvester Watson was proceeding up the same hill from the opposite direction in the northbound lane. As Susan Morrison gained view over the hill of the truck proceeding toward her, she drove her car to the right, causing her right wheels to leave the paved surface of the road on the western side. The wheels of her vehicle dropped off into a rut in the shoulder of the highway approximately five inches deep and six to eight inches wide. As a result, she lost control of her vehicle and the car veered back onto the highway, crossed the center line, and collided with Watson’s truck. The point of impact occurred approximately three to five feet from the center line in the northbound lane of traffic and near the crest of the hill. All three girls in the Morrison vehicle suffered extensive injuries as a result of the collision.

As a result of this accident, the following suits were filed: (1) Sylvester Watson sued J. L. Morrison as the father of his minor daughter, Susan Morrison; and Morrison’s insurer, correctly impleaded as Dixie Auto Insurance Company (10,904). (2) Acey Allen, father of Sharon and Joyce, sued Sylvester Watson; Watson’s employer, Amite Milling; Amite’s insurer, Continental Casualty Company; J. L. Morrison; Dixie; and the State through the Department of Highways (No. 10,905). (3) J. L. Morrison sued Sylvester Watson; Amite Milling; Continental; and the Department of Highways (No. 10,906). Numerous incidental demands were made among the parties.

Before trial of any of the above-mentioned suits commenced, Susan Morrison and Sharon Allen obtained majority and were substituted as proper parties where applicable. The foregoing suits were then consolidated for trial.

The trial court in written reasons found that Sylvester Watson was negligent in driving his vehicle over the center line and thereby creating a sudden emergency for Susan Morrison which caused her to respond by steering her vehicle to the right to avoid the truck. The Department of Highways was also found to be negligent in failing to maintain the road, specifically in failing to repair the drop-off along the edge of the highway which caused Susan Morrison to lose control of her vehicle. The trial court absolved Susan Morrison of any negligence in leaving the driving surface of the highway which might bar her recovery or make her liable to any of the parties.

Judgment was rendered by the trial court in No. 10,904 relieving Susan Morrison and Dixie of any liability to Watson because of his contributory negligence. In No. 10,905 judgment was rendered by the trial court holding Sylvester Watson, Amite Milling, Continental, and the Department of Highways liable in solido to Susan Morrison for injuries sustained and to J. L. Morrison for medical expenses and property damage. In No. 10,906 judgment was rendered in favor of Acey Allen for medical expenses and on behalf of his daughter, Joyce, for her personal injuries.

Numerous appeals were taken from the lower court’s judgments, each involving basically a factual dispute as to how the accident occurred. Watson, Amite Milling, and Continental appeal those portions of the judgments rendered in Nos. 10,905 and 10,-906 holding them liable based on the negligence of Watson in supposedly driving over the center line. Watson also appeals the judgment rendered in No. 10,904 holding him contributorily negligent and holding Susan Morrison not negligent, thereby barring any recovery by Watson. The Department of Highways appeals the judgments rendered in Nos. 10,905 and 10,906 holding the Department negligent and in No. 10,906 absolving Susan Morrison of contributory negligence.

Aside from the issues of liability, various parties appeal the awards made. Sharon and Joyce Allen claim their awards of general damages are insufficient and seek to have their awards increased. Defendants-appellants in No. 10,906 seek to have the award of general damages to Susan Morrison decreased on the basis that the award exceeded the prayer.

This Court will not attempt to address every contention of fact and law made by all of the parties on an individual basis, nor will we attempt to address each suit individually, as that would lead to a multiplicity of discussion. Furthermore, the suits were consolidated and treated at trial as one. Instead, we will address the major areas of dispute which we feel call for discussion.

Firstly, a serious question exists as to the respective negligence of the parties based upon factual disputes. Secondly, serious questions exist with regard to the awards of general damages made. On the one hand, it is alleged that certain such awards are insufficient. On the other, it is alleged that an award of general damages exceeding the amount of the prayer should be decreased.

ISSUES OF NEGLIGENCE

The question of which party or parties involved are legally culpable depends upon a resolution of the factual dispute based upon who bears the burden of persuasion. The trial judge obviously adopted Susan Morrison’s version of the events leading up to the accident in concluding that Sylvester Watson was negligent in driving over the center line, thereby creating a sudden emergency. This finding is based solely upon the testimony of Joyce Allen and Susan Morrison.

Susan Morrison was seventeen years of age at the time of the accident and had been a licensed driver for approximately one year. According to her testimony, she was driving about forty to forty-five miles per hour. As she rounded the curve and started up the hill, she saw the Watson truck with its wheels on her side of the center line. Consequently, she steered her vehicle to the right to give the truck clearance and when she did, her wheels fell into a drop-off. At this point, she stated that she was afraid she would hit the trees to her right, so she attempted to steer back onto the paved surface. Her fears were reasonable, as the photographs of the scene indicate that the road had no appreciable shoulder. Instead, it dropped almost directly into a ditch, with the edge of a heavily wooded area very close to the highway. In attempting to return to the paved surface, she lost control of her vehicle and veered into the on-coming vehicle. She admits that the collision occurred in Watson’s lane (northbound).

When cross-examined, Susan Morrison explained that she first saw the truck approximately 500 feet away. When pressed, she would not say that she saw the center line at that distance, but only that the truck appeared to be on her side about one to one and a half feet.

Susan Morrison’s testimony is subject to close scrutiny because she supposedly had no recollection of the accident from its date until she visited Dr. Joseph L. Palotta, a psychiatrist, on September 14, 1972, and September 19, 1972, and underwent hypnosis. According to Dr. Palotta, Susan came to him and said that she had no recollection about how the accident occurred. Under hypnosis, Dr. Palotta says that Susan was able to recall the event. The accuracy of her reconstructed memory, if accepted, must at least be subject to careful review and probative evaluation for several reasons. First, whether hypnosis produces truthful recollections is at best a controversial question, as even Dr. Palotta admits. Next, whether Susan’s recollections under hypnosis were uncontaminated by information she had acquired from other sources since the accident is questionable. In this regard, Dr. Palotta did not question her in the hypnotic state as to what independent information she had acquired about the accident. Further, during her recollection of the events under hypnosis, she stated that she saw a “feed truck” coming over the hill. If the recitation of events by Susan under hypnosis had been a spontaneous, uncontaminated recollection, there would have been no way for her to know this was, in fact, a feed truck, as it was clearly established that from the front the truck had no such distinguishing features. Such an identification would have had to be based on supposition or speculation. Also, while Susan claims to have talked to no one about how the accident happened, it should be noted that her recalled memory under hypnosis conforms to the petition filed in her behalf several months before she claims to have had any recollection.

Opposing parties objected strenuously to Dr. Palotta’s testimony. Dr. Palotta testified as to the manner in which the treatment was accomplished and as to the scientific validity of such procedures. As a qualified expert, such testimony is admissible. However, Dr. Palotta’s recitation of events recalled by Susan under hypnosis and offered by her to corroborate her testimony is hearsay and is inadmissible. We are unaware of any exception to the hearsay rule under which such testimony would be admissible.

Joyce Allen was a passenger in the Morrison vehicle on the right side of the back seat. She testified that she saw the Watson truck come over the hill about 350 feet away and that he was one and a half to two feet across the center line. Upon cross-examination, she was not clear whether she, in fact, saw the wheels in relation to the center line and pointed out herself that there was water on the road and the accident happened in a matter of a few seconds. She also testified that the truck never got back in thg proper lane and the collision occurred in Morrison’s lane (southbound). This response is directly contradicted by the weight of the evidence, both physical and testimonial.

The testimony of both Susan and Joyce is called into question as to whether they saw the Watson truck’s wheels cross the center line. Dr. Olin K. Dart, a civil engineer and certified surveyor, testified at trial and in deposition that the point of impact, based on gouge marks in the highway,, was past the crest of the hill going from north to south. In other terms, the truck never actually rounded the crest. Therefore, the line of sight made it impossible for the girls in the Morrison vehicle to ever really see the center line next to the wheels of the vehicle, because they would only be able to see the center line to the crest of the hill.

Sharon Allen, who was occupying the front seat of the Morrison vehicle, only testified that Susan was driving about forty to forty-five miles per hour and that after they went around the curve, she jerked the wheel to the right, hit a drop-off and went back into the road. Sharon did not see the Watson truck and did not know where the accident occurred.

Sylvester Watson had been driving trucks since 1946. He testified that he was driving in a northerly direction on Louisiana Highway 1054 at thirty to forty miles per hour when he came upon a car ahead of him turning right into a gravel road at the foot of the hill where the accident occurred. After the car turned off, he claimed that he put the truck into second gear to gain momentum to go up the incline. The physical evidence at the scene substantiates this claim, as his truck was locked in second gear following the accident and the maximum speed of the truck in second gear would be approximately twenty-five miles per hour. Watson insisted that he never left his lane of traffic. Instead, he claimed that the Morrison vehicle veered off the western side of the road (southbound lane), then lost control and came back across the highway, colliding with his truck in its lane.

Watson’s testimony as to the point of collision being approximately five feet in the northbound lane is substantiated by the physical evidence at the scene and the conclusions drawn from this evidence by the state trooper who responded to the accident call and by Dr. Dart.

The burden of proving that Watson negligently came over the center line rests upon those seeking to recover based on his negligence, namely Sharon and Joyce Allen and Susan Morrison. No physical facts or impartial witnesses were offered to substantiate their claims. Even the testimony of the parties offered to prove this claim is questionable. Susan Morrison had no recollection of the accident for approximately a year and four months from its occurrence and only recalled the events under hypnosis. Joyce Allen’s testimony was not entirely accurate in that she claimed to be able to see the center line where the truck’s wheels crossed it, although a survey of the scene shows this was a physical impossibility. Further, Joyce claimed that Watson’s truck never returned to its proper lane and the accident occurred in the southbound lane, although the physical evidence directly contradicts this possibility. On the other hand, Watson claimed never to have left his lane of traffic, and the physical evidence establishes that the collision occurred in his own lane. Therefore, Watson’s negligence was not established by a preponderance of the evidence as is the burden. The contrary result reached by the trial court is manifestly erroneous.

Having determined that the burden of proof of Watson’s negligence was never carried by the proper parties, it is next necessary to review the finding of the trial court that the Department of Highways “was guilty of negligence in that it allowed an admittedly dangerous road condition to remain for at least 6 months after it knew or should have known of the existence of said condition.”

The basis of the contention that the Department of Highways is liable is the existence of the so-called “rut” or “drop-off” at the edge of the highway. The existence at the time of the accident of this five-inch deep, six to eight inch wide rut directly next to the western edge of the paved surface is firmly established by the evidence. Furthermore, Charles F. Lee, educational director for Amite Academy, testified that six months prior to the accident he ran off the road surface into the identical rut while meeting a car on Louisiana 1054 and almost lost control of his vehicle. Lee testified that prior to the accident he advised two different Highway Department working crews of the existence of the rut. When nothing was done to remedy the situation, he testified that he called the District Office of the Department of Highways in Hammond to get the rut fixed. That the rut was the same one that Susan Morrison encountered is substantiated by Lee’s testimony that he visited the scene the next day, identified it from the accident photographs and was well acquainted with the road as he traveled it at least once or twice a day.

M. K. Johnson was employed by the Department of Highways as an assistant engineer in charge of maintenance. Louisiana Highway 1054 was within his jurisdiction. He testified in his deposition that it is normally assumed that the shoulders should tie into the road surface approximately an inch below the existing surface. He also testified that erosion in the shoulder which' would be detrimental to the traveling public is normally attempted to be corrected as soon as detected. He further stated that a rutted place approximately five inches deep is such a defect as should be repaired.

The duty of the Department of Highways to maintain the public highways is founded in statute and recognized in our jurisprudence. La.R.S. 48:21; Hopkins v. State, 167 So.2d 441 (La.App. 1st Cir. 1964), and cases cited therein.

Maintenance is defined by La.R.S. 48:1(13) as follows:

“ ‘Maintenance’ is the operation, activity, and continuing process of repairing and preserving an existing highway or any part thereof to keep it at or near its original level or standard of usefulness.”

Highway is defined by La.R.S: 48:1(11) as follows:

“ ‘Highway’ means a public way for vehicular, mounted, and pedestrian traffic, including the entire area dedicated thereto and the bridges, culverts, structures, appurtenances, and features necessary to or associated with its purposes.”

It is well recognized that the “shoulders” of highways are included within the duty. Hopkins v. State, supra; Willis v. State ex rel. La. Department of Highways, 321 So.2d 819 (La.App. 1st Cir. 1975).

However, the duty to repair and maintain the highways does not extend to every possible risk encountered on the highways by the traveling public. As stated in Doucet v. State, Department of Highways, 309 So.2d 382 (La.App. 3rd Cir. 1975):

“ * * * The duty of the Department of Highways is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. It is liable for damages only when the evidence shows (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver, and (2) that the department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it. [Citations omitted]” (309 So.2d at 385)

In the instant case, the defect in the highway was clearly of the nature warranting repair. In his deposition the Department of Highway’s supervisor, M. K. Johnson, recognized the duty of the Department to correct defects hazardous to the driving public. Moreover, he recognized that this particular defect was one which warranted repair. Furthermore, the testimony of Charles Lee established that the Department of Highways had actual knowledge of this particular defect several months prior to the accident and failed to repair it.

We conclude that the trial court was entirely correct in finding the Department of Highways causatively negligent. It is next necessary to determine whether Susan Morrison exercised the reasonable care of a prudent driver or whether she was guilty of contributory negligence barring her recovery. Whether Susan Morrison is barred from recovering against the Department of Highways depends upon whether her conduct in driving her vehicle to the right and in leaving the paved surface was reasonable under the circumstances.

While it was not established by a preponderance of the evidence that Watson, in fact, drove into Susan Morrison’s lane, it was established that as Watson’s vehicle became visible to Susan Morrison over the crest of the hill it appeared to her to encroach into her lane creating an apparent danger. The road in question is narrow, being only twenty feet wide in the general vicinity and at the point of collision. Furthermore, it is curving and hilly and at the time of the accident was wet. Photographs offered at trial clearly indicate that the view in the southbound lane over the hill can be misleading as to the positioning of approaching vehicles. This situation of an apparent emergency was strongly corroborated by the expert analysis of Dr. Dart, as evidenced by a stipulation entered into by all parties. Aggravating the situation is the fact that the truck was fairly wide when compared to the narrowness of the road. Also, it was necessary for Susan to exercise her judgment in a matter of a very few seconds as the vehicles approached each other at a closing speed of approximately 100 feet per second from the point of first perception testified by Susan to be 500 feet and by Joyce Allen to be 350 feet. Given such circumstances, it was not unreasonable for Susan Morrison to move abruptly to the right of her lane in response to the apparent problem encountered in approaching the wide truck on the narrow, hilly, rain-soaked road. Her speed of forty to forty-five miles per hour was not excessive for such a maneuver. We conclude that the actions of Susan Morrison, within the aforesaid factual context, were those of a reasonably careful and prudent driver.

ISSUES OF DAMAGES

In Suit No. 10,906 J. L. Morrison prayed for special damages of $1,925.00 in property damages, $3,000.00 in medical expenses, $20,000.00 in future medical costs. On behalf of his daughter he prayed for general damages for pain, suffering, and disfigurement in the amount of $50,000.00 Subsequently, Susan Morrison was substituted as party plaintiff. The trial court awarded J. L. Morrison $1,925.00 for property damage to his automobile and $8,082.35 for medical expenses as stipulated. Susan Morrison was awarded $75,000.00. Her extensive injuries were detailed by the trial court and have raised no contention that they do not fully support an award of $50,-000.00. Defendant-appellant, Department of Highways, argues, however, that the trial court erred in awarding general damages over and above the amount requested in the plaintiff’s petition. We agree.

Susan Morrison’s contention in support of the award is that La.C.C.P. art. 1841 authorizes the trial court to award any amount that may be justified. C.C.P. art. 1841 provides, in part:

“A judgment * * * may award any relief to which the parties are entitled. * * * ”

However, this provision is essentially the same as C.C.P. art. 862. As reporter’s comment (b) to that article explains, the intendment of these provisions was to suppress the unduly technical “theory of the case” doctrine. La.C.C.P. arts. 1841 and 862 were not intended to allow the trial court to award general damages in excess of the prayer.

The general rule is that a litigant may not recover an amount greater than that for which he prayed in his petition. Alumaglass Corporation v. Administratrix of Succession of Kendrick, 303 So.2d 911 (La.App. 1st Cir. 1974), and cases cited therein.

The only exception to this rule of which we are cognizant involves elements of special damages in situations when otherwise inadmissible evidence is admitted without objection and the pleadings are enlarged to this extent. La.C.C.P. art. 1154; Sterkx v. Gravity Drainage District No. 1 of Rapides Parish, 214 So.2d 552 (La.App. 3rd Cir. 1968).

Appellees, Acey Allen and Sharon Allen, in answer to the appeal contend that the awards of $20,000.00 for Joyce Allen and $50,900.00 for Sharon Allen are inadequate. The trial court in written reasons accurately characterized and itemized the injuries received by both Sharon Allen and Joyce Allen; therefore, we will not reiterate. Suffice it to say, we find no abuse of discretion by the trial court in making these awards.

We now address the individual judgments rendered by the trial court as they relate to our foregoing reasons.

The judgment of the trial court in Suit No. 10,904 is affirmed. Although this Court has determined that Watson was not negligent and, therefore, not barred from recovery by his own negligence, the negligence of his defendant Susan Morrison has not been proved and Watson failed to sue the Department of Highways either by original or amending petition.

The judgment of the trial court in Suit No. 10,905 insofar as it pertains to the liability of Watson, Amite Milling Company, Inc., and Continental Casualty Company is reversed; in all other aspects the judgment is affirmed.

The judgment of the trial court in Suit No. 10,906 insofar as it pertains to the liability of Watson, Amite Milling Company, Inc., and Continental Casualty is reversed. The judgment in No. 10,906 is amended by reducing the award of damages to Susan Morrison to $50,000.00, and in all other aspects, as amended, it is affirmed.

The costs of these consolidated appeals, insofar as permitted by law, are assessed to the Louisiana Department of Highways.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

EDWARDS, J., concurs, but dissents only from the holding as a matter of law that a trial judge cannot award general damages, in excess of the prayer, although factually supported by the evidence in the record. C.C.P. 862.