text:
    Grover HARBIN v. CITY OF HUNTSVILLE.
    8 Div. 744.
    Court of Criminal Appeals of Alabama.
    June 15, 1976.

      Culver & Miller, Huntsville, for appellant.
    David C. Craddock, Huntsville, for ap-pellee.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

The only question raised on this appeal is as to the admissibility of evidence as to the alcoholic content of a sample of blood taken from defendant promptly after his arrest on a charge of driving an automobile while intoxicated, for which there was a conviction from which this appeal is taken.

Appellant urges that the evidence shows that the sample of defendant’s blood was purportedly taken by authority of the Alabama Chemical Test for Intoxication Act, Code of Alabama 1940 (1973 Cumulative Pocket Part), T. 36, §§ 154 — 158, and that there was not strict compliance with some of the provisions of said Act. It is argued that there was a failure to comply with Section 155(b) but it is chiefly contended that there was a failure to comply with sub-section 155(c). They provide as follows :

“(b) Chemical analyses of the person’s blood, urine, breath to be considered valid under the provisions of this section shall have been performed according to methods approved by the state board of health and by an individual possessing a valid permit issued by the state board of health for this purpose. The state board of health is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the state board of health.
“(c) Only a physician, registered nurse or duly licensed clinical laboratory technologist or clinical laboratory technician acting at the request of a law-enforcement officer may withdraw blood for the purpose of determining the alcoholic content therein. This limitation shall not apply to the taking of breath or urine specimens.”

As to (b), the evidence was that the person who made the chemical analysis of the sample of defendant’s blood was an employee of the State of Alabama Department of Toxicology in Huntsville, holding a B.S. degree in laboratory technology and a B.S. degree in medical technology from Auburn University. Defendant objected to her testimony on the ground that there was “no testimony that she possesses a valid permit, issued by the State Department of Health, for certifying her ability to take a chemical analysis of blood as is required by the statute.” On this point, the evidence afterwards showed that she did have a valid permit issued by the State Department of Health certifying that she was qualified to do chemical analyses of a person’s blood. The evidence further showed that the series of tests employed by her, which she clearly explained, was generally accepted procedure for measuring ethyl alcohol in the blood. She had a most impressive record of experience. She had made over fifteen hundred analyses for ethyl alcohol in human blood. She had lectured on alcohol physiology at the Highway Intoxication Seminar and on the same subject at the Huntsville Police Academy. She was fully authorized to make the test which she described and such test fully met the requirements set forth in § 155(b).

As to § 155(c), the lady that took the blood samples from defendant was a nurse in the emergency room of the Huntsville Hospital. The officer who took defendant to the hospital for that purpose testified that he saw the nurse draw the blood from him, and there is no question that the blood was taken from defendant and that it was the same sample of blood that was analyzed by the employee of the Department of Toxicology. The officer testified that the lady was a registered nurse, but upon cross-examination, he said, “I don’t know it to be a fact.” On further cross-examination he said he had had dealings with her before in the emergency room, that the reports were filled out at the desk, that the lady that drew the blood had on “a white uniform with a name tag on as a Registered Nurse.”

Before the witness, the employee of the Department of Toxicology, testified as to her quantitative findings from her analysis of the sample of defendant’s blood, defendant moved to exclude all evidence pertaining to the blood sample on the ground that the law quoted above states, “Only a physician, registered nurse or duly licensed technician acting at the request of a law enforcement officer may withdraw blood.” The court overruled the motion and permitted the witness to testify in detail as to the tests and her findings. Appellant relies largely upon Myrick v. Montgomery, 54 Ala.App. 5, 304 So.2d 247, involving a breath test for intoxication by means of an intoximeter, in which it was held that as the section of the Alabama Chemical Test for Intoxication Act making the analysis admissible in evidence is contrary to the common law, it must be strictly construed and such a construction would require that the test and the operator have been approved as required by § 155(a)2 and (b).

Appellant seeks to extend Myrick to a holding that would invalidate the test and make inadmissible the evidence of the results thereof by reason of the alleged failure of the evidence to show that the nurse who drew the sample of blood from defendant’s arm was a registered nurse. We do not arrive at that conclusion for two reasons, (1) that the evidence is sufficient to support the inference that the nurse was a registered nurse and (2) the requirement that the blood be taken by specified professional personnel is for a purpose unrelated to the question of the admissibility of evidence of the results of a chemical analysis of the blood.

From the clear reason in Myrick that the statutory procedure by a statutorily authorized individual must be observed in order to insure the admissibility of evidence of the results of a test, it does not follow that the failure to have the blood, sample taken by a statutorily authorized individual makes inadmissible the results of the test. In the one there is a logical relationship between the statutory requirement and the reliability of the evidence of the results of the test; in the other there is not. The reason for the requirement that specified individuals only procure the sample of the blood is vivified by § 155(g) as follows:

“(g) No physician, registered nurse or duly licensed clinical laboratory technologist or clinical laboratory technician shall incur any civil or criminal liability as a result of the proper administering of a blood test when requested in writing by a law-enforcement officer to administer such a test.”

Although, as stated above, the results of the blood test analysis were admitted in evidence, over the stated objection or motion to exclude of defendant, the trial judge had a change of mind and after the jury had retired to deliberate and attempt to reach a verdict, it was learned that the jury wished to ask a question of the court, and the following occurred:

“THE COURT: Ladies and gentlemen, I have your question as I understand it. Have you elected a Foreperson?”
“JUROR: Yes, sir.
“THE COURT: Let me phrase the question as I understand it. You asked as to whether or not a blood alcohol content test is legally admissible in Alabama?
“JUROR: Yes, sir, I believe it was similar to that.
“THE COURT: As a general rule, yes. Let me instruct you, ladies and gentlemen, at this time in this case that you are not to consider the taking or the results of a blood alcohol test in this case at all. Put it out of your minds and do not consider it in your deliberations in this case. Disregard the testimony pertaining to a test of blood alcohol that was taken at the Huntsville Hospital and to which the Toxicologist testified. That for the reason it has not been shown that the person who drew the blood was a physician, or a registered nurse or a licensed clinical laboratory technologist. Any further from the City?
“MR. CRADDOCK: No, sir.
“THE COURT: Anything further from the defendant?
“MR. CULVER: No, sir.
“THE COURT: Does that answer your question?
“JUROR: Yes, sir.”

No further comments were made. The jury returned to the jury room, and thereafter it was dismissed for the night to return the next morning for further deliberations, and there were no further developments until the jury returned the verdict about midmorning, finding the defendant guilty.

As previously indicated, we do not think the court was in error in admitting the evidence as to the findings on the analysis of the blood, but even if there were error in this respect, it was cured by the change in the ruling of the court in the particular respect or it was waived by defendant in his failure to ask for action by the court of a more curative nature, for which he was given full opportunity. We can come to no conclusion other than that defendant was pleased with the action of the court, that it apparently afforded defendant an unexpected hope of a favorable verdict, and defendant knowingly took his chance on the odds as they then stood, and after the verdict, had no just cause for complaint.

It should also be said that there was ample evidence, aliunde the chemical analysis of defendant’s blood, that he was driving a motor vehicle while intoxicated, even though he testified to the contrary and his testimony was to some extent corroborated by other witnesses. See, Holloway v. Birmingham, 56 Ala.App. 545, 323 So.2d 726. Furthermore, it should be stated that on the trial of this case the City was not given the benefit of instructions of the court as to the rebuttable presumptions set forth in Title 36, § 155.

We find no error that probably injuriously affected the substantial rights of defendant, and the judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

TYSON, HARRIS, DeCARLO and BOOKOUT, JJ., concur.


source: Caselaw Access Project

author: LEE, Justice:

license: Public Domain

text:
    Mrs. Veda T. BRITT v. ALL AMERICAN ASSURANCE COMPANY OF LOUISIANA.
    No. 48649.
    Supreme Court of Mississippi.
    May 4, 1976.

      Bryan, Nelson, Allen & Schroeder, Gulf-port, Emmett R. Cox, J. F. Janecky, Mobile, for appellant.
    Aultman, Pope, Aultman, Van Slyke & Tyner, Jon Mark Weathers, Hattiesburg, for appellee.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   LEE, Justice:

This is an appeal by Mrs. Veda T. Britt from a jury verdict and judgment entered thereon by the Circuit Court of Pearl River County, Mississippi, in favor of All American Assurance Company of Louisiana.

On September 17, 1956, appellee issued an insurance policy in the face amount of ten thousand dollars ($10,000.00) on Solon W. Britt, Jr., the deceased husband of appellant, which policy also had a double indemnity provision for accidental death. Appellant was beneficiary in the policy, and upon the death of Britt, appellee paid the face amount of ten thousand dollars ($10,000.00), declined to pay the ten thousand dollars ($10,000.00) under the accidental death clause, and this suit was brought to recover same.

The facts are largely without dispute. Britt lived in Picayune, Mississippi, and was under treatment of Dr. James Henry, a psychiatrist in New Orleans. He had a drinking problem and was treated for same at DePaul Hospital during January, 1971, and at Mississippi State Hospital, Whitfield, Mississippi, about the middle of 1971, On Friday, December 17, 1971, Britt left Picayune for a 1:00 P.M. appointment with the doctor in New Orleans. His wife assumed that he traveled by bus since the car was in the garage. When she returned home from work at 6:30 P.M. her husband was not there, and when he had not returned by the next morning, she notified the police. About noon the following Monday, she learned that her husband had been found in a ditch of water near Slidell, Louisiana.

Britt saw Dr. Henry at 1:00 P.M. on December 17, and was examined by the doctor for forty-five minutes to an hour. At the trial, Dr. Henry testified that Britt was logical and coherent when he examined him.

Britt’s whereabouts were unaccounted for from the time he left Dr. Henry’s office until about 6:00 P.M. on that date when he was seen by Bryce Haynes at Jerry’s Bar, Pearl River, Louisiana, about fifteen (15) miles south of Picayune. He attempted to drive off in Haynes’ car, but Haynes stopped him by pulling the keys out of the ignition. Haynes testified that Britt seemed normal, that he did not appear to be under the influence of alcohol, and that there was nothing unusual about the way he was dressed. Britt apologized to Haynes about the car incident and then walked past the front of Jerry’s Bar onto the highway. This was the last time he was seen until he was found in a hole of water on the following Monday morning approximately one and one-half (U/2) miles from Jerry’s Bar.

About 7:45 A.M. on Monday, December 20, Jesse McClain, an employee of Tropical Radio Station, came to work and his attention was attracted by his dog’s barking and rearing up on the fence at the back of the station. He went to the dog and saw Britt lying in a hole of water about fifty (50) feet away. It was raining at the time and Britt’s eyes were open and staring; he had a black oily substance on him; he was dressed in dark grey pants, had on cowboy boots, but was not wearing a shirt. A T-shirt, which appeared to be soaked in an oily substance, was by his side. He could only mumble words which sounded like “Help me.” He appeared to have an oily black substance on his body and red ants were crawling over him. McClain moved Britt’s head out of the water to prevent him from drowning, and notified the police. He lay in that position until about 10:00 A.M. when the police arrived, and he was taken to New Orleans Charity Hospital about 11:00. Appellant obtained his transfer from Charity Hospital to Ochs-ner’s foundation. He died at 8:00 P.M. on December 21, and the cause of his death was exposure.

The accidental death benefits provision of the policy is as follows:

“The Company will pay to the beneficiary an additional amount of Ten Thousand Dollars upon receipt at its Home Office of due proof (1) that the Insured’s death resulted directly from bodily injury caused solely by external, violent, and accidental means and independently of all other causes, . . . ”

Appellant first contends that the trial court erred in refusing to direct the jury to return a verdict in her favor since Britt’s death resulted from external, violent means, and that a presumption arises such injury was sustained through accidental means.

We are of the opinion that death from exposure is death resulting from bodily injury caused by external and violent means under the accidental death provision of the policy.

In Metropolitan Life Insurance Co. v. Main, 383 F.2d 952 (C.A.5th 1967), the Court said:

“A cause which has an external source or origin is not rendered internal by the fact that its effect is internal. Hence, if the means which causes the death of an insured comes from outside his body, it is external, although it acts internally to cause such death.” 383 F.2d at 959.

44 Am.Jur.2d Insurance § 1220, at 66 (1969), defines “external” and “violent” as follows:

“In order to constitute a death or injury as one which is produced by ‘external’ means, it is not necessary that the external means should itself cause such death or injury; it is only necessary that the cause of death shall be external to the person although it acts internally. ‘Violent’ refers to some act not occurring in the ordinary run of things and may be fulfilled by any force whatsoever, however slight.”

Also, 45 C.J.S. Insurance § 754, at 784 (1946), defines the terms:

“The words ‘external, violent, and accidental means’ refer to the cause of the injury and not the injury itself, and any injury which is caused by means coming from outside the body of the insured is within such a provision.
The term ‘violent,’ in such provision, signifies merely that a physical force, however slight, is efficient in producing the injury.”

Appellant says that since Britt’s death resulted from external, violent means, there is a presumption that such means and death resulted from accidental means.

In Taylor v. Insurance Company of North America, 263 So.2d 749 (Miss.1972), we said:

“It is true that where an injury causing death appears to have been sustained through external and violent means, a presumption arises that such injury was sustained through accidental means. American National Insurance Company v. Craft, 222 Miss. 847, 77 So.2d 679 (1955); Metropolitan Life Insurance Co. v. Williams, 180 Miss. 894, 178 So. 477 (1938); Continental Casualty Company v. Daniels, 173 So. 302 (Miss.1937); Continental Casualty Company v. Meadows, 242 Ala. 476, 7 So.2d 29 (1942).
Although it is sometimes said that the burden of proof shifts to the defendant, strictly speaking, the burden of proof never shifts to the defendant. Where a plaintiff has made out a prima facie case of ‘accidental death’ the defendant is then required to go forward with the proof to show that the prima facie testimony of an accident is not the true facts.” 263 So.2d at 751.

In Metropolitan Life Insurance Company v. Williams, 180 Miss. 894, 178 So. 477 (1938), this Court said:

“[T]he rule is well settled under numerous authorities construing insurance policies covering death by accidental means where an injury appears to have been sustained through external and violent means, the injury is presumed to have been sustained through accidental means. ...” 180 Miss. at 909, 178 So. at 479.

While it is true that when death occurs through violent, external means the presumption arises that it also occurred through accidental means, because of the peculiar circumstances of this case, the evidence and inferences flowing therefrom constitute an issue for the jury to determine under proper instructions.

Appellant next contends that the trial court erred in refusing her requested Instructions Nos. 1 and 6, and in granting Instructions Nos. 3, 4, 5 and 6 for appel-lee.

We are of the opinion that the trial court committed error in refusing and granting instructions, and that the case must be reversed and remanded for a new trial.

The last five lines of Instruction No. 1 [Appendix I] present to the jury the real issue in this particular case, and it was error to refuse the instruction.

44 Am.Jur.2d Insurance § 1219, at 64, and § 1220, at 65 (1969) discuss the significance of “accident” and “accidental

“The words, ‘accident’ and ‘accidental’ have never acquired any technical signification of law, and when used in an insurance contract are to be construed and considered according to the ordinary understanding and common usage and speech of people generally. The definitions of these words in insurance cases have been many and varied in form. In substance, however, the courts are practically agreed that the words ‘accident’ and ‘accidental’ mean that which happens by chance or fortuitously, without intention or design, and which is unexpected, unusual, and unforeseen. The definition that has usually been adopted by the courts is that an accident is an event that takes place without one’s foresight or expectation — an event that proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected.” 44 Am.Jur.2d at 64-65.
“ ‘Accidental means,’ as used in an insurance policy, signifies a happening by chance and without intention or design, which happening is unforeseen, unexpected, and unusual at the time it occurs. While there is a distinct difference of opinion as to the exact scope of the term ‘accidental means,’ the authorities are agreed that where the death or injury is caused by some act of the deceased or insured not designed by him, or not intentionally done by him, it is death or injury by accidental means. ...” 44 Am.Jur.2d at 66-67.

The Instruction No. 6 [Appendix II] contains a correct statement of the law, but it is embodied in appellant’s requested Instruction No. 1, and had No. 1 been granted, refusal of No. 6 would have been proper.

Appellee’s Instruction No. 3 [Appendix III] required appellant to prove by a preponderance of the evidence that Britt’s death resulted directly from bodily injury caused solely by external, violent and accidental means. Appellant was entitled to a peremptory instruction that Britt’s death resulted from external, violent means, and it was erroneous to grant this instruction and to refuse appellant’s requested Instruction No. 1.

Instruction No. 4 [Appendix IV] granted to appellee is erroneous like No. 3 for the reason that it required the plaintiff to prove how the injury occurred and that it was accidental, and Instruction No. 5 [Appendix V] is erroneous for the same reason.

There is no evidence, nor inference therefrom, that Britt voluntarily exposed himself to the elements, and Instruction No. 8 [Appendix VI] is erroneous, although on a retrial of the case it may be a proper instruction.

It is not necessary to pass upon appellant’s third assigned error, that the verdict of the jury is contrary to the weight of the evidence, since the case must be reversed and remanded for errors in the instructions.

Appellant assigns as Error No. 4 that the trial court erred in striking a portion of the hospital records, which appears in Appendix VII.

Mississippi Code Annotated § 41-9-61 (1972) defines “hospital records” as “without restriction, those medical histories, records, reports, summaries, diagnoses and prognoses, records of treatment and medication ordered and given, notes, entries, X-rays, and other written or graphic data prepared, kept, made or maintained in hospitals that pertain to hospital confinements or hospital services rendered to the patients admitted to hospitals or receiving emergency room or out-patient care”

Section 41-9-111, Mississippi Code Annotated (1972), provides that the copy of the record be admissible in evidence to the same extent as though the original were offered and the custodian had been present and testified to the matter stated in the affidavit.

In City of Bay St. Louis v. Johnston, 222 So.2d 841 (Miss.1969), in holding that the hospital records were properly admitted into evidence, the Court said:

“We think the findings and conclusions, particularly with reference to diagnoses and prognoses, would constitute a part of the hospital record, and this Court having held that the record, which the law requires to be kept shall be admissible, the law makes all the data, which the Legislature says constitutes the record, admissible.” 222 So.2d at 847.

However, we are of the opinion that here the trial court was correct in striking the objectionable part of the hospital record. That entry goes far beyond a proper medical history taken upon the admission of a patient to the hospital. It is vague, speculative, without basis, does not indicate from whom the information was received, and a part of same is contrary to positive testimony introduced by the appellant. If any statement or entry is admissible under the guise of a medical history, conceivably a patient could, with some cooperation, prove his entire case by hospital records. In so holding, we do not place restriction upon proper medical histories, records, reports, summaries, diagnoses and prognoses, and records of treatment as set forth in Mississippi Code Annotated § 41-9-61(b) (1972).

Appellant lastly contends that the trial court erred in refusing to admit into evidence certain portions of the deposition of Dr. James W. Henry, and in striking certain portions of that deposition.

The trial court sustained objections to hypothetical questions asked Dr. Henry by appellant, and we are of the opinion that the objections were properly sustained. The questions were vague and confusing and did not properly set forth the facts upon which the questions were based. Dr. Henry stated in his answer to the principal question that he was not sure what appellant was asking him, and the answer was not responsive to the hypothetical question.

Appellant offered in evidence a part of Dr. Henry’s deposition on cross-examination when appellee declined to offer same into evidence.

The court should have permitted the introduction of all or any part of the deposition by either party, except for specific objection to the competency thereof.

“Depositions taken, certified, and returned in pursuance of law shall he admissible as evidence in the cause. . . . The introduction in evidence of the deposition, or any part thereof, for any purpose other than that of contradicting or impeaching the deponent shall make the deponent the witness of the party introducing the deposition . . . .” (Emphasis added) Miss.Code Ann. § 13 — 1— 47 (1972).

For the reasons stated, this case is reversed and remanded for a new trial.

REVERSED AND REMANDED.

GILLESPIE, C. J„ PATTERSON and INZER, P. JJT., and SMITH, ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.

APPENDIX I

“INSTRUCTION NO. 1 FOR PLAINTIFF

The Court instructs the jury for the Plaintiff that the decedent, Solon W. Britt, Jr., died as a result of exposure, and you are instructed as a matter of law that such death by exposure was death resulting directly from a bodily injury, caused solely by external and violent means, and if you further find from a preponderance of the evidence that such exposure was accidental in that it was undesigned, unintended, unexpected and unpremeditated, then it would he your sworn duty to return a verdict for the Plaintiff" (Emphasis added)

APPENDIX II

“INSTRUCTION NO. 6 FOR PLAINTIFF

The Court instructs the jury for the Plaintiff that death caused by exposure is death caused by ‘external’ means.”

APPENDIX III

“INSTRUCTION TO THE JURY NO. 3 DEFENDANT

The Court instructs the Jury for the Defendant that the Plaintiff has the burden of proving to you by a preponderance of the evidence that the insured, Solon Wilson Britt, Jr.’s death resulted directly from bodily injury caused solely by external, violent, and accidental means and independently of all other causes, and unless the Plaintiff has so proved to you by a preponderance of the evidence that the insured met his death as above stated, then it is your sworn duty to return a verdict for the Defendant.”

APPENDIX IV

“INSTRUCTION TO THE JURY NO. 4 DEFENDANT

The Court instructs the jury for the Defendant that the Plaintiff has the burden of proving to you by a preponderance of the evidence that the insured, Solon Wilson Britt, Jr.’s death resulted directly from bodily injury caused solely by external, violent and accidental means and independently of all other causes, and further, Plaintiff must show by affirmative proof as to how the injury occurred and that such injury was accidental and caused through accidental means; therefore, unless the Plaintiff has so proved to you by a preponderance of the evidence that the insured met his death as above stated, then it is your sworn duty to return a verdict for the Defendant.”

APPENDIX V

“INSTRUCTION TO THE JURY NO. 5 DEFENDANT

The Court instructs the jury for the Defendant that the term 'accidental means’, as used in the policy of insurance on which the above styled and numbered cause is founded, does not insure against death or injury by accident or as an accidental result in that death or injury is not incurred by ‘accidental means’ merely because the effect or result is accidental in the sense that it is unforeseen, undesigned, unusual, unexpected, unintended and unpremeditated; and the Court further instructs you that the term ‘accidental means’ refers to the occurrence or happening which produces the results and not to the results; and, therefore, in meeting the burden of proof in this case, it is not sufficient for the plaintiff to merely show to you that the deceased, Solon Wilson Britt, Jr., may have died as a result of an unforeseen, undesigned, unexpected, unintended, unusual and unpremeditated occurrence, but plaintiff must show by affirmative proof as to how the injury or occurrence happened and that such injury or occurrence was accidental and caused through accidental means; and, therefore, if Plaintiff fails to meet his burden of proof, then it is your sworn duty to return a verdict for the De-' fendant.”

APPENDIX VI

“INSTRUCTION TO THE JURY NO. 8, DEFENDANT

The Court instructs the Jury for the Defendant that if you believe from a preponderance of the evidence that deceased, Solon Wilson Britt, Jr., voluntarily exposed himself to the elements and as a result thereof met his death, then under the terms and provisions of the policy of insurance the plaintiff is not entitled to recover at your hands.”

APPENDIX VIII

“(The family reported that he had not been allowed to have any large sums of money because of his propensity to spend this on liquor.) His exact movements are not very clear but it is probable that he was at several local bars on the morning of Saturday, the 18th, was robbed and thrown into a ditch in the Slidell area. The exact time of this is not certain — probably Saturday night, December 18, but also possibly Sunday night December 19 — at any rate the weather was moderately cool on the night of December 18, quite cold the night of December 19 but not freezing, maybe about 45 or 50°. The patient was found semiconscious with only a rather light jacket on.”


author: PER CURIAM.

text:
    STATE of Louisiana v. James Monroe GRANGER, Jr.
    No. 57625.
    Supreme Court of Louisiana.
    June 4, 1976.
    Johnny S. McGary, Amite, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard E. Yokum, Dist. Atty., William M. Quin, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant James Monroe Granger, Jr. was charged by grand jury indictment with murder in violation of La.R.S. 14:30. He was alleged to have shot and killed one Darryl Summers at the Red Lion Tavern in Plammond, Louisiana, on February 27, 1973. The trial was held on December 3 and 4, 1973, with the jury returning a responsive verdict of guilty of manslaughter. Defendant was thereafter sentenced to serve twenty-one (21) years at hard labor. Relying on two assignments of error, he now appeals his conviction and sentence.

By assignment of error number one, defendant argues that certain remarks made by the assistant district attorney during his opening statement and closing and rebuttal arguments were unduly prejudicial to defendant. By assignment of error number two, defendant contends that the trial court erred in overruling an objection (on the grounds of relevancy) posed after the prosecutor had elicited from a defense witness on cross-examination several responses with respect to her marital status, the last response, prior to the single belated objection, being that she had divorced her second husband on a given date.

Wc have studied these alleged errors, as well as the record and transcript presented in connection therewith, and conclude that the assignments of error lack merit. With respect to assignment of error number one, we additionally note that no objection was entered by defense counsel at the time the remarks were made. La.C.Cr.P. art. 841. Furthermore, we find no errors which are discoverable by a mere inspection of the pleadings and proceedings. La.C.Cr.P. art. 920.

Accordingly the conviction and sentence are affirmed.

      . There appear in the record five perfected bills of exception and two, subsequently filed, assignments of error. The substance of only one of the five bills coincides with one of the assignments. As four of the bills of exception were neither briefed nor argued before this Court, they will not be considered on appeal. State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).


author: DIXON, Justice.

text:
    STATE of Louisiana v. Norman J. CLARK.
    No. 57438.
    Supreme Court of Louisiana.
    June 21, 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. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

On the application of Robert F. Fleming, this case is remanded to the district court for a hearing to determine whether Fleming is defendant’s attorney. In the event it is determined that Fleming is defendant’s attorney, he will be allowed to perfect additional assignments of error, to perfect this appeal anew, and to have the case placed on the docket of this court for re-argument.

Remanded.


text:
    STATE of Louisiana, Appellee, v. Albert DAWSON, Appellant.
    No. 57442.
    Supreme Court of Louisiana.
    June 4, 1976.
    W. Glenn Soileau, Ville Platte, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. William, Pucheu, Dist. Atty., A. Bruce Rozas, First Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

The defendant was convicted of manslaughter, La.R.S. 14:31, and sentenced to 21 years at hard labor.

Although the case was vigorously tried in the district court, the appointed counsel has failed to assign errors as required by La.C.Cr.P. art. 844 (as amended in 1974) ,

This court may not consider errors not so designated, La.C.Cr.P. art. 920(1) (1974), except for patent error — i. e., error “discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence”, La.C.Cr.P. art. 920(2) (1974). We find no such patent error.

Accordingly, we affirm the conviction and sentence.

AFFIRMED.

      . Repeated efforts to have counsel make assignments of error and file a brief finally resulted in a one-page brief, which concludes: “Defendant therefore incorporates and makes a part hereof the entire record of these proceedings and refers to objections made therein to errors committed which should reverse the conviction of the indigent defendant herein.” (The record contains over five hundred pages.) This general statement is inadequate even to disclose what errors are relied upon on appeal, aside from counsel’s complete failure to comply with the mandatory statutory procedure for assignments of error for review.


text:
    STATE of Louisiana, Appellee, v. Norman R. SULLIVAN, Appellant.
    No. 57460.
    Supreme Court of Louisiana.
    June 4, 1976.
    Rehearing denied June 30, 1976.
    Vincent Wilkins, Jr., Director, Appellate Counsel, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Warren Hebert, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

The defendant was convicted of armed robbery, La.R.S. 14:64, and sentenced to thirty-five years at hard labor.

He urges four assignments of error upon his appeal:

Assignment 1 relates to a denial of a motion for a new trial. The principal ground urged concerned an alleged conversation among the jurors after they had retired for their deliberations. The trial court properly held that testimony of the jurors as to the matter was inadmissible to impeach the verdict. La.R.S. 15:470; State v. Ledet, 298 So.2d 761 (La.1974).

Assignment 2 relates to the denial of a motion to quash the indictment because of the alleged denial of a speedy trial. No prejudice is shown as to the defendant resulting from the failure for explained reason to try the defendant until February 13, 1975, a little more than four months after the information was filed on October 2 (amended October 16), 1974. See trial court’s reasons, pp. 6-13 trial transcript. The defendant was not denied a speedy trial. See State v. Moore, 300 So.2d 492 (La.1974).

Assignment 3 relates to the admission of alleged hearsay. The trial court correctly overruled the defendant’s objection. See La.R.S. 15:496, 497.

Assignment 4 relates to the denial of the defendant’s motion for a directed verdict. The motion was correctly denied, there being some evidence that the defendant committed the crime charged and proving every essential element of it.

Decree

Accordingly, we affirm the conviction and sentence.

AFFIRMED.


text:
    STATE of Louisiana v. Albert Jennings MALVO.
    No. 58271.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Albert Jennings Malvo, applying for writs of certiorari, prohibition, mandamus and for Stay Order.

Granted. Transcript Ordered.

MARCUS, J., dissents from the grant of this writ.


text:
    STATE of Louisiana v. Herbert “Nap” SENEGAL.
    No. 57423.
    Supreme Court of Louisiana.
    June 4, 1976.

      G. Bradford Ware, Ware & Bertrand, Rayne, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Robert Thomas Cline, Asst. Dist. Atty., for plaintiff-appel-lee.
   PER CURIAM.

The defendant was convicted of manslaughter, La.R.S. 14:31, and sentenced to 13 years at hard labor. On appeal four assignments of error are urged.

ASSIGNMENT OF ERROR NO. 1

This assignment of error relates to a denial of a challenge for cause of a prospective juror. Essentially, the defendant argued that the prospective juror should have been excused because he had gone to school with the deceased and used to drink beer with him. Nevertheless, considering the entirety of the voir dire examination, we conclude that the trial court acted within its discretion in finding the relationship between the juror and the person injured by the offense was not such that it was reasonable to conclude that it would influence the juror in arriving at a verdict. Accordingly, a challenge for cause was not required, and this assignment is without merit. La.C.Cr.P. art. 797.

ASSIGNMENT OF ERROR NO. 2

This assignment relates to the overruling of defendant’s objection to the introduction of X-rays on the ground that a proper foundation had not been laid. Although the doctor who produced the X-rays in court had not actually taken them, his testimony that they were X-rays taken of the deceased after the crime was supported by his physical examination of the deceased, the doctor’s presence at the hospital while the X-rays were taken and developed, and the hospital’s X-ray identification system. The trial judge properly decided that it was more probable than not that the X-rays were those of the deceased and consequently admissible as evidence in the case.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 3

Neither the minutes nor the transcript of the proceedings indicate whether the defendant was present at all stages of the proceeding as required by La.C.Cr.P. art. 831. In his per curiam, the trial judge states that the defendant was present at all times during the trial. Under these circumstances, we conclude that a contradictory proceeding should be held in the trial court to determine if the defendant was in fact present at the times required by La. C.Cr.P. art. 831 or if any absence which may have occurred constituted a temporary voluntary absence as provided by La. C.Cr.P. art. 832.

ASSIGNMENT OF ERROR NO. 4

This assignment relates to the trial court’s instruction to the jury that it could return either a verdict of guilty or not guilty. The instruction was correctly given as required by La.C.Cr.P. art. 814. However, after the jury retired, defense counsel stated:

“I have an objection to make to the charge to the jury that there were only two verdicts responsive to manslaughter. It is my contention that attempted manslaughter is also possible under Article 31, is also responsive, too, under certain conditions and under the conditions of this case, responsive to the charge of manslaughter.”

In this Court, defense counsel now urges for the first time that La.C.Cr.P. art. 814 is unconstitutional setting forth reasons which were never made known to the trial judge.

Defendant’s objection was actually a request for a special instruction to the jury not provided by law. Such charges may be submitted of right by the defendant before argument, but may be received by the court only in its discretion after argument has begun. Therefore, the defendant’s request was clearly untimely and properly rejected by the trial court.

Even if viewed as an objection to the court’s instruction, defense counsel’s action was untimely and insufficient. La.C.Cr.P. art. 841 provides that an error cannot be availed of after verdict unless it was objected to at the time of occurrence and the grounds therefor made known to the court. State v. Marcell, 320 So.2d 195 (La.1975).

This assignment is without merit.

Since we find no trial error except for the deficiencies in the trial court minutes noted in Assignment of Error No. 3, it is not necessary at this time to reverse the conviction and order a new trial, because the error might be eliminated upon a contradictory proceeding below. We reserve to the trial judge the power to grant a new trial should he determine that the defendant was not present at all stages of the proceeding as required by La.C.Cr.P. art. 831. If, on the other hand, the trial judge determines, after a contradictory hearing that the defendant was present as required by La.C.Cr.P. art. 831, or temporarily absent as provided by La.C.Cr.P. art. 832, the right to appeal from such ruling is reserved to the defendant. In the absence of such an appeal, the conviction and sentence will be affirmed.

The case is, therefore, remanded to the district court for further proceedings in accordance with this opinion.


author: TATE, J.

text:
    STATE of Louisiana ex rel. John FULFORD v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 58205.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: John Ful ford, applying for writ of certiorari, mandamus and habeas corpus.

Writ refused. Most of the assignments of error were considered on appeal. There is no merit in the other assignments. ,,

TATE, J.

With particular reference to the alleged Brady violation because of a denial of pre-trial access to the police report, the trial record shows that the defendant’s counsel had secured a copy of it before trial. See Volume 24, pp. 2375-89, our docket No. 56,371.


text:
    STATE of Louisiana v. Freddie MORGAN.
    No. 57587.
    Supreme Court of Louisiana.
    June 4, 1976.
    Frank E. Beeson, III, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant Freddie Morgan was charged with armed robbery of the co-owner-cashier of a small grocery store in New Orleans. R.S. 14:64. As he left the store he was pursued by the other co-owner who shot him with an M-l rifle. He was tried by jury, found guilty, and sentenced to serve twenty years at hard labor. He appeals this conviction and sentence on the basis of five assignments of error.

In assignment of error number one, defendant argues that the trial court should have allowed him to ask the robbery-victim if she were insured for the stolen money. In assignment of error number five, defendant complains that when the trial judge sustained, without futher comment, an objection made by the prosecutor to the defense attorney’s “leading his witness now through this entire line of questioning” defendant was prejudiced by the inferential acquiescence of the court in the prosecutor’s reference to an entire line of questions when the ruling actually should have referred only to the last-posed question. In assignment of error number six the defendant contends that he should have been allowed to state whether he felt he had been shot on purpose. Rabun argues in his seventh assignment of error that, when the trial judge required the defendant to put on a particular shirt at the trial, defendant’s privilege against self-incrimination was violated. In assignment number eight defendant complains that his motion for a new trial should have been-granted because the verdict was contrary to the law and the evidence.

We have studied these alleged errors, as well as the record and transcript presented in connection with them, and we find no merit in any of these asserted errors. With respect to assignment of error number seven, we note for the purpose of accuracy that the basis of the objection was merely that the shirt was “filthy,” not that the state’s action violated defendant’s fifth amendment privilege, and also that the defendant had admitted before he put on the shirt that it belonged to him. With respect to the fifth amendment and nonverbal acts, see Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); State v. Wilson, 329 So.2d 680 (La.1976). Furthermore, we find no errors which are discoverable by a mere inspection of the pleadings and proceed-dings. C.Cr.P. art. 920.

Accordingly, defendant Morgan’s conviction and sentence are affirmed.

      . Although three other assignments were perfected, they were not argued either in brief or orally but were merely submitted for the Court’s consideration. We deem these assignments abandoned. State v. Domingue, 298 So.2d 723 (La.1974).


author: DIXON, J.,

text:
    STATE of Louisiana v. Ruby GARDNER.
    No. 57408.
    Supreme Court of Louisiana.
    June 15, 1976.
   In re: Ruby Gardner, applying for writs of certiorari, review, prohibition, mandamus and for Stay Order.

Writ refused. Upon the assignments of error made, there is no error in the rulings of the trial judge.

DIXON, J.,

is of the opinion that trying two cases against different people, in which the complaining witness in each case is the defendant in the other, over the objection of one, is probable error discoverable by inspection of the pleadings and proceedings and the writ should be granted.

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


text:
    STATE of Louisiana v. Cyrus RUSH, Jr.
    No. 58270.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: State of Louisiana through District Attorney, Harry F. Connick, Parish of Orleans applying for writ of Certiorari.

Writ denied.

No error in the ruling of the trial judge.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., are of the opinion that the writ should be granted.


text:
    STATE of Louisiana v. George SIMMONS.
    No. 57493.
    Supreme Court of Louisiana.
    June 4, 1976.
    Robert J. Zibilich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rugledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

George Simmons was indicted by the Orleans Parish grand jury for the second degree murder of Joseph Holmes on August 7, 1974, in violation of La.R.S. 14:30.1. After trial by jury, he was found guilty as charged and was thereafter sentenced to life imprisonment at hard labor. On appeal, defendant relies on one assignment of error for reversal of his conviction and sentence.

Defendant contends that the trial judge erred in not requiring the state to furnish certain information and evidence requested in his prayer for oyer. Pretrial discovery is not allowed to the defendant in criminal cases except in certain limited exceptions not present here. Hence, we find no error in the ruling of the trial judge.

DECREE

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


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. David E. GERALD.
    No. 57426.
    Supreme Court of Louisiana.
    June 21, 1976.
    Sonny Stevens, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., Steven A. Hansen, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

Defendant, David E. Gerald, was convicted of jumping bail, a violation of LSA-R.S. 14:110.1 and sentenced to serve two years at hard labor.

No assignments of error were filed pursuant to Article 844 of the Louisiana Code of Criminal Procedure. Therefore, under Article 920 of the Louisiana Code of Criminal Procedure, we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. We have reviewed the record and find no such error.

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


text:
    STATE of Louisiana v. Richard LENSEY.
    No. 57439.
    Supreme Court of Louisiana.
    June 4, 1976.
    Steven N. Cowel, Shreveport, for defendant-appellant.
    William J, Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., B. Woodrow Nes-bitt, Jr., Asst. Dist. Atty., for plaintiff-ap-pellee.
   PER CURIAM.

Defendant Richard Lensey was charged by bill of information with attempted armed robbery. La.R.S. 14:27; La.R.S. 14:64. He attempted to rob Mrs. Lurline Vinci at the Vinci Grocery in Shreveport, Louisiana, and, while fleeing, fired a weapon at the victim. On June 25, 1975 defendant withdrew his original plea of not guilty and entered a plea of guilty to the offense charged. Subsequently he was sentenced to serve twenty (20) years at hard labor, without benefit of parole, probation or suspension of sentence. Relying on one assignment of error, defendant appeals from the imposition of this sentence.

Defendant contends that his sentence to twenty years at hard labor is unconstitutionally cruel and unusual by virtue of its excessiveness. U.S.Const, amend. VIII; La. Const. art. I, § 20 (1974). There is no merit to this assignment. See State v. McClinton, 329 So.2d 676 (La.1976). Furthermore, we find no errors which are discoverable by a mere inspection of the pleadings and proceedings. La.C.Cr.P. art. 920.

Accordingly defendant’s sentence is affirmed.


text:
    STATE of Louisiana ex rel. Phillip BERGERON v. DIRECTOR OF CORRECTIONS.
    No. 58140.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Phillip Bergeron, applying for writ of mandamus and remedial writs.

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

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


author: LEMMON, Judge.

text:
    CUTE TOGS OF NEW ORLEANS, INC. v. RAILWAY EXPRESS AGENCY, INC.
    No. 6898.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.

      Shushan, Meyer, Jackson, McPherson & Herzog, Donald A. Meyer, New Orleans, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, Paul B. Deal, New Orleans, for defendant-appellee.
    Before REDMANN, LEMMON and BEER, JJ.
   LEMMON, Judge.

Plaintiff, a manufacturer of children’s clothing, sued defendant, an air carrier, for damages allegedly sustained when plaintiff’s shipment was not received by the consignee in New York. Plaintiff’s employee had delivered the packages to defendant’s agent and specified on the form receipt that the “declared value” was $50.-00.

The trial court’s judgment on the merits effectively sustained defendant’s contention that its liability was limited to the $50.00 declared value of the shipment and a refund of the shipping charge. Plaintiff has filed this appeal, seeking damages in excess of these amounts.

Defendant contends its liability was limited by the provisions of the Official Air Express Tariff filed with the Civil Aeronautics Board. The particular tariff, filed pursuant to 49 U.S.C. § 1373, contained general and specific commodity rates and charges, as well as rules and regulations applying on property transported between specified points. Rule 8 of the Tariff provided for a declared value of $50.00 for shipments weighing less than 100 pounds (and 50 cents per pound for shipments of greater weight), but also specified additional transportation charges when the value declared by the shipper exceeded $50.00. Rule 28, entitled Terms and Conditions of Transportation, further provided that the carrier shall not be liable for more than $50.00 for any shipment of less than 100 pounds unless a greater value had been declared by the shipper.

Plaintiff concedes that the tariff limits the liability of the carrier as to damages for the replacement value of the lost packages, but contends the tariff does not limit the liability of the carrier for consequential damages sustained because of the shipper’s failure to deliver the packages.

The Supreme Court of the United States considered this argument in Southeastern Express Co. v. Pastime Amusement Co., 299 U.S. 28, 57 S.Ct. 73, 81 L.Ed. 20 (1936), which involved a similarly worded tariff. That suit sought damages for the interruption of business caused by a delay in shipping allegedly due to the carrier’s negligence. The court concluded the wording was comprehensive enough to embrace all damages resulting from a carrier’s failure to discharge its duty with respect to any part of the transportation, and held the limitation was thus applicable to damages caused by delay in making delivery. The court further stated:

“The underlying principle is that the carrier is entitled to base rates upon value and that its compensation should bear a reasonable relation to the risk and responsibility assumed. The broad purpose of the federal act is to compel the establishment of reasonable rates and to provide for their uniform application. Special contracts are not permitted to give any advantage to a particular shipper.
“The liability in this instance is thus governed by the provisions of the applicable tariff and no recovery could be had in excess of the amount permitted by its terms.” (Citations omitted)

While the Southeastern Express case involved a tariff filed by another type of carrier under a different federal statute, the reasoning applies with equal force to a tariff filed by an air carrier pursuant to 49 U.S.C. § 1373. Thus, in interstate air transportation where federal law controls, a carrier’s total liability may be limited by a tariff filed by the carrier and approved by the Civil Aeronautics Board, even if such a limitation is against public policy in the forum state.

There is an additional basis for denial of the claim in this particular case. The shipment consisted of finished garments which were prepared as samples of plaintiff’s fall line of merchandise and were sent to a national retailer in anticipation of a large manufacturing order. Since the retailer was one of plaintiff’s principal customers, plaintiff’s designers, cutting hands and other employees had expended considerable time and effort in preparing the samples. When the shipment did not arrive in New York as scheduled, it was too late for plaintiff to prepare new samples before the deadline. Thus, the costs incurred by plaintiff during the two months of preparation were lost entirely, because the shipment was lost. These costs constitute virtually all of plaintiff’s claim.

Damages due to the loss of these expended costs cannot reasonably be classified as consequential damages. These costs had already accrued prior to the shipment of the packages, and it was because these expenses had been incurred that the item of clothing had value as merchandising samples rather than bare retail value as items of clothing. In this respect the full intrinsic value of the items could have been declared at the time of shipment and their loss thus insured against, just as an architect might declare the intrinsic value of a one-of-a-kind set of plans and specifications in which many hours had been invested. Plaintiff chose instead to declare the lower retail value and obtained a lower shipping rate. We conclude that plaintiff’s failure to declare a higher value and pay the higher rate precludes an award of damages in excess of the declared value.

The judgment is affirmed.

AFFIRMED.

      . Buie 28(A)(2) reads as follows:
      “In consideration of the rate charged for carrying said property, which is dependent upon the value thereof and is based upon an agreed valuation of not exceeding fifty dollars for any shipment of 100 pounds or less, and not exceeding fifty cents per pound, actual weight, for any shipment in excess of 100 pounds, unless a greater value is declared at the time of shipment, the shipper agrees that the carrier shall not be liable in any event for more than fifty dollars for any shipment of 100 pounds or less, or for more than fifty cents per pound, actual weight, for any shipment weighing more than 100 pounds, unless a greater value is stated herein. Unless a greater value is declared and stated herein the shipper agrees that the value of the shipment is as last above set out and that the liability of the carrier shall in no event exceed such value.”

      . Other tariffs, such as the one filed by the air carrier in Blair v. Delta Air Lines, 344 F.Supp. 360 (S.D.Fla.1972), aff’d., 5 Cir., 477 F.2d 504, contain specific provisions excluding liability for consequential or special damages.

      . The claim for loss of profits was abandoned in the trial court.

      . This record does not support plaintiff’s argument that it was not afforded a fair opportunity to choose between higher and lower liability by paying a correspondingly greater or lesser charge, as occurred in New York, N. H. & Hartford R. Co. v. Nothnagle, 346 U.S. 128, 73 S.Ct. 986, 97 L.Ed. 1500 (1953).


author: SCHOTT, Judge. BEER, Judge

text:
    Giselle BROWN and Lorance Evans v. Alexander ZITO et al.
    No. 7526.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
    Charles J. Ferrara, Metairie, and Edward P. Comeaux, New Orleans, for plaintiffs-appellees.
    Law Office of Emile L. Turner, Jr., (Emile L. Turner, Jr.), New Orleans, for defendants-appellants (The Hertz Corp. and Alexander Zito).

      Sessions, Fishman, Rosenson, Snellings & Boisfontaine (James Ryan III), New Orleans, for intervenor-appellee (State Farm Mut. Auto. Ins. Co.).
    Before STOULIG, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

Defendants, Alexander Zito and The Hertz Corporation have appealed from a judgment in favor of plaintiffs for damages for personal injuries sustained by them in an automobile accident which occurred on December 6, 1973, in New Orleans, and in favor of State Farm Automobile Insurance Company which intervened to enforce subrogation. By consent before trial the suit was dismissed by plaintiffs against defendant Automobile Club of Southern California. Although liability was contested at the trial the only questions raised by defendants on appeal are as to the amounts of the awards to the two plaintiffs and the intervenor’s right to sub-rogation.

Plaintiffs both consulted Dr. Sam C. Macaluso, a general surgeon on December 7, 1973, and were both discharged from treatment on March 13, 1974, after five examinations and 25 diathermy treatments for each. They both saw the doctor on the same dates for the stated reason that this was a matter of convenience to them.

As to Brown, Dr. Macaluso diagnosed a moderate lumbar sprain for which he prescribed muscle relaxants and restricted activities in addition to the diathermy treatments. On January 28, 1974, he found that she had muscle spasms. When he next saw her on March 13, after intervening diathermy treatments, she had no spasms and was released from further treatment.

As to plaintiff Evans, Dr. Macaluso diagnosed both lumbar and cervical sprains for which he prescribed muscle relaxants, pain relievers and restricted activities in addition to the diathermy treatments. Evans, like Brown, was found to have muscle spasms on January 28, but they were no longer present on the next examination on March 13.

Brown testified that she discharged herself from Dr. Macaluso’s treatment because she felt that he had done as much for her as he could but that she was still hurting at the time of the trial, which prompted her to see a chiropractor one month before the trial.

Evans testified that he went back to work as a millwright immediately after the accident but was given light duties by his employer for one month. He likewise discontinued seeing Dr. Macaluso because he felt that the doctor had done as much for him as possible, but shortly after his discharge he began seeing a chiropractor because of continued difficulties.

The trial judge awarded to Brown $3700 and to Evans $4800, with $2400 allocated to each of the lumbar and cervical sprains. He commented that he was impressed with both plaintiffs and with Dr. Macaluso and explained that he awarded only $2400 for each sprain to Evans as opposed to $3700 to Brown because he classified Evans’ sprains as mild and Brown’s as moderate.

The thrust of defendants’ argument is best illustrated by the following quotation from the brief filed by their counsel in this Court:

“This record is devoid of much of the circumstances which took place on the day of trial. After several extended pretrial conferences, the case could not be settled, even for the amounts recommended by the lower court. This set the stage for the demeanor of the court throughout the trial.
“The record will reflect several exchanges between the court and counsel of appellants. It is unfortunate, but not all comments of the court, some derogatory in nature, were recorded. At one point during cross-examination, the court yelled a commentary befitting of its attitude and thinking. There is no doubt in this writer’s mind that the foundation was laid throughout this record to punish the defendant, The Hertz Corporation, for failing to settle.
“Looking at the injuries sustained, the length and type of treatment, the mere coincidence of each having the same number of treatments, examinations, complaints at the time of discharge and the use of chiropractors thereafter, the awards are punitive in nature and grossly excessive.”

In oral argument counsel for defendants again contended that the awards were punitive because of his clients’ failing to settle the cases.

Although there were some rather pointed exchanges between the court and counsel during the trial these are insufficient to support the serious charge which counsel makes. It is said that many of the statements made at the trial do not appear in the transcript but we are unable to decide cases beyond the four corners of the record. If the record supported counsel’s charge there would be a basis for us to remand and order a new trial, but we cannot take this action on the basis of what is before us.

In conclusion, we are unable to say that the awards constitute an abuse of the much discretion accorded to trial-judges in assessing damages for personal injuries.

The judgment in favor of State Farm on its intervention was for $1429, consisting of $836 for automobile damage paid to Brown under the policy insuring against property damage and collision, and $298 and $295 paid to Brown and Evans respectively under the medical payments portion of the policy.

In support of its claim, State Farm filed in evidence subrogation receipts signed by plaintiffs referring to State Farm’s policy and expressly subrogating all of their rights to State Farm to the extent of the payments.

Defendants’ attack on the subrogation is based on the failure to place in evidence the policy and/or the drafts. Their argument is that the following requirements of LSA-C.C. art. 2160 were not met:

“1. When the creditor, receiving his payment from a third person, subrogates him in his rights, actions, privileges, and mortgages against the debtor; this sub-rogation must be expressed and made at the same time as the payment.” (Emphasis supplied)

In Cooper v. Jennings Refining Co., 118 La. 181, 42 So. 766 (1907), the Court said:

“When article 2160, Civ.Code, says of conventional subrogation that ‘it must be made at the same time as the payment,’ it does not mean that the agreement of subrogation cannot be entered in before, or in anticipation of, the payment, but simply that it cannot be entered into after the payment. . . . The reason why it cannot be agreed to after the payment is that the debt is then extinguished, and can no longer be the subject or basis of an agreement.”

Thus, defendants’ somewhat novel argument is that in the absence of the policy there is no proof that plaintiffs were required to subrogate along with the other rights and obligations assumed by the parties to the contract and in the absence of the drafts there is no proof that they were not paid before the subrogation receipts were signed, in which case there might be no consideration given for the subrogation. Expressed in another way, if the payments were made solely in consideration for the premiums paid but without any contractual obligation on plaintiffs’ part to subrogate no consideration was given by State Farm for its right of subrogation and the contract of subrogation cannot stand.

Undoubtedly, the far better procedure would have been for State Farm to place in evidence its policy and cancelled drafts, but this deficiency is not fatal to its case. The testimony and exhibits compel the conclusion that the policy provided as usual for subrogation. State Farm’s adjuster testified as to how he investigated the loss and arrived at a value of Brown’s automobile. Photographs of the vehicle taken by him, a bill for wrecker service, a “total loss settlement report” completed by him referring to Brown as the “Policyholder” and the subrogation receipts were received in evidence without objection. Brown testified that she was covered for “everything” including medical pay and collision insurance by State Farm and that following the loss she was paid $860 for the loss of her car and $313 for her medical payments, and she identified the subro-gation receipts which she signed.

This testimony also indicates the probability that the drafts and receipts were exchanged simultaneously. Furthermore, the wording of the receipts is that “for the consideration aforesaid and to the extent of said payment the undersigned further subrogates to said company . . . ” clearly connoting that the exchange of draft and receipt occurred simultaneously and that the parties both acknowledged that the subrogation was supported by consideration.

Finally, defendants’ argument was specifically rejected in Stephens v. Dore, 281 So.2d 889 (La.App.2nd Cir. 1973).

Accordingly the judgment appealed from is affirmed at defendants’ cost.

AFFIRMED.

BEER, Judge

(dissents).

I respectfully dissent, for I am unable to sign an affirmation of that portion of the opinion which awards damages to Giselle Brown and Lorance Evans in the amounts of $3,700 and $4,800, respectively.

I disagree with the majority conclusion that the record is insufficient to support the contentions set forth by counsel for Hertz Corporation.

Just a few examples of what took place in this trial are noted:

(1) When counsel for Hertz Corpora^ tion sought to challenge the alleged qualifications of a police patrolman who sought to testify as an expert in accident investigation, the court caustically observed: “Turner wants to play the whole game.” Moments later, in response to counsel’s continuing objection, the court observed: “I am sure if we had a Hertz guy here, you wouldn’t be objecting.”

(2) During an exchange between counsel for Hertz Corporation and plaintiff Evans, there was some repartee which could have been material, touching on the question of whether or not Evans had gone to bed and to sleep in his apartment on the night following the accident. When counsel asked a question seeking to clarify the fact that Evans had gone to bed and to sleep, the court observed: “I don’t know what he is going to do in bed unless have intercourse.”

(3) After various instances where the court took over the questioning with respect to the injuries allegedly suffered by Mr. Evans, the court observed: “What you should have done was stayed home for three months and then they will say you were hurt; you shouldn’t have been too honest;- you should have stayed home.” This statement was soon followed by: “ . . . you should have stayed home for three months and fooled around, making out all this. That is what you should have done and they wouldn’t be asking these questions, see. The mistake you made was being honest and going to work and trying to hustle.”

Various efforts of counsel for Hertz Corporation to see that the record was complete in order to form a proper basis for the relief he now seeks caused the court to respond: “Let the record reflect that counsel for Hertz is sort of indicating to the Court that it feels like it is like down in the old days in Plaquemines Parish where he is wanting to make a record for the Fourth Tribunal to review.”

The record reflects various examples of the deterioration of the proceedings and, when considered as a whole, indicates the lack of judicious impartiality so necessary for there to be a fair hearing.

Necessarily considering quantum of the awards in this light and taking in account the other factors that result in the ultimate determination of whether or not there has been an abuse of discretion, I am obliged to conclude that there has been.

For the impartial trier of the facts — to whom we are mandated to accord “great discretion” in setting quantum — to remark to a plaintiff testifying in his own behalf that he should, in fact, have calculated to deceive the defendant and that he was mistaken in being honest describes a situation more devastating than the remark itself. It describes a courtroom climate unsuitable for the judicious resolution of disputes and, in my opinion, effectively destroys the presumption that “much discretion” is being brought to the deliberations. It is manifest that error will be committed under such circumstances.

Having concluded that the trial court has, in this instance, forfeited its entitlement to the presumption of much discretion and also being of the view that the awards are manifestly erroneous, I would reduce them to $1,500 in each instance.

      . Query: When an intermediate appellate court concludes that a trial court has failed to exercise discretion in quantum awards, should that court conclude “au bout du compte” that a blank has been created into which it must insert its own quantum determination? Recent pronouncements by the Supreme Court in Gonzales v. Xerox, 320 So.2d 163 (La., 1975), and Couto v. Oms, 323 So.2d 128 (La., 1975), would seem to indicate an answer in the affirmative.
      Further query: Is discretion breached by way of percentages or by way of dollar amounts, or in both ways? Is the abuse just as needful of correction when the trial court awards $4,800 to compensate a $1,500 injury as when it awards $100,000 to compensate a $30,000 injury? Such errors should, I believe, be corrected in either instance just as, conversely, they must be corrected when they signal a clear abuse by being far too low, regardless of whether it is a “big” case or a “little” case.


author: SAMUEL, Judge. LEMMON, Judge

text:
    Succession of Velma Hindelang, widow of Harold P. DRUMM.
    No. 7371.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.

      Victor H. Hess, New Orleans, Jacob L. Karno, Metairie, and Leonard A. Washof-sky, New Orleans, for Mrs. Grace Drumm Lawson, opponent-appellant.
    A. Charles Mulla, and Racivitch & Weg-mann, Oliver P. Carriere, Jr., New Orleans, for Mrs. Carol Lee Drumm Maness and Mrs. Florence Velma Drumm Maness, appellees.
    Harold Molaison, Gretna, for Testamentary Executrix-appellee.
    Before SAMUEL, LEMMON and STOULIG, JJ.
   SAMUEL, Judge.

The executrix of this succession filed a final tableau of distribution and sought its homologation. One of the decedent’s three children, Grace Marion Drumm Lawson, opposed the homologation of the tableau insofar as it attempted to give effect to a legacy of $14,000 to each of the decedent’s other two children, Carol Lee Drumm Maness and Florence Velma Drumm Maness. The trial court rejected the opposition and homologated the tableau. Mrs. Lawson has appealed from that judgment.

On July 28, 1969 decedent executed a testament in statutory form. She made a special bequest to two daughters, Carol Lee Drumm Maness and Florence Velma Drumm Maness, in the amount of $14,000 each. The remainder of her property was bequeathed to her three daughters, Carol Lee Drumm Maness, Florence Velma Drumm Maness, and opponent Grace Marion Drumm Lawson, in equal one-third portions.

The decedent survived her husband, the father of the three children named above, and in the husband’s succession decedent was recognized as the owner of her one-half community interest together with an undivided one-third of her husband’s property. The three daughters were each bequeathed an undivided one-third of the remaining two-thirds of their father’s estate.

Prior to the date of decedent’s testament, opponent and her husband borrowed approximately $14,000 from opponent’s mother and father. This sum had not been repaid at the time decedent executed her testament.

On November 10, 1972, approximately six weeks prior to decedent’s death, she and her three daughters sold twelve acres of ground in Jefferson Parish for $420,000, the net amount received being $399,201.57. Four days later decedent opened two checking accounts, one being called “usu-fruct account” and the other “personal account”. On the same day the accounts were opened, she issued two checks from her personal account to Florence Velma Drumm Maness and Carol Lee Drumm Maness, each in the amount of $59,000. On the same day, the decedent also issued a check for $44,355.73 from the usufruct account to opponent, Mrs. Lawson.

Opponent’s opposition is based on the theory that the special legacies of $14,000 to each of her two sisters constituted an attempt by the decedent to make the three daughters equal. She argues that, taking into consideration the fact that she had not repaid the $14,000 loan previously made to her, the November 10, 1972 gift to the other two daughters of a sum approximately $14,000 more than the sum given to the opponent accomplished the purpose for which the special legacies were made, thereby revoking the special legacies. Opponent relies on the following facts in support of her revocation argument: (1) the special cash legacies to opponent’s sisters in the amount of $14,000 each; (2) the additional $14,000 given to opponent’s two sisters by decedent on November 14, 1972; and (3) the fact that the decedent issued the check to opponent from the “usufruct account”.

Opponent relies on Civil Code Article 1695 to support her argument that a donation inter vivos prior to the death of the testatrix in approximately the same amount of a special legacy contained in the decedent’s testament tacitly revoked the special legacy. Article 1695 provides:

“A donation inter vivos, or a sale made by the testator of the whole or a part of the thing bequeathed as a legacy, amounts to a revocation of the testamentary disposition, for all that has been sold or given, even though the sale or donation be null, and the thing have returned into the possession of the testator, whether by the effects of that nullity, or by any other means.” LSA-C.C. Art. 1695.

The trial judge interpreted Article 1695 to apply only to the special legacy of a “thing” and not to a special legacy of rr on-ey. The trial court’s interpretation is correct.

The donation inter vivos of a particular thing under the proper circumstances could imply a tacit revocation of a legacy previously made. Upon the alienation of a particular thing the legacy becomes impossible to execute and the intent to revoke would thereby be made obvious. However, cash is a fungible commodity and an alienation thereof does not bear the same implications or characteristics of an alienation of a non-fungible thing. Since money or cash is fungible, by definition it is interchangeable with other cash so that its alienation does not make execution of a legacy of cash impossible and thereby imply an intent to revoke.

Planiol reaches basically the same conclusion in his treatise. In discussing the corresponding article of the Code Napoleon he disposed of the problem of tacit revocation as follows:

“This type of revocation applies only to particular bequests of determined objects.”

The Louisiana Supreme Court has treated the fungible commodity of cash in a similar fashion. In Succession of Simo, the court rejected an argument that particular legacies of cash in a testament were tacitly revoked because the testatrix died leaving no cash. The court summarily rejected the argument as containing “no merit”.

With regard to the issue of the so-called extinction of the motive for the testatrix’s legacy of an extra $14,000 to opponent’s two sisters, there is no merit to opponent’s argument that the extinction of the motive for the legacy implies a change of intent to make the special legacies. In Succession of Cunningham, the Supreme Court held a legacy in favor of a wife was not revoked when she obtained a divorce after the bequest was made, and rejected the contention of certain heirs that this change of circumstances created a reasonable presumption of the decedent’s intention to change his bequest. The court in this case stated:

“A change of intention of the testator from that expressed in his will must be made by the testator. The court cannot presume a change of intention for him, when he has done no act which supposes a change of will.”

In Succession of Rusha, the Supreme Court stated the proposition as follows:

“Testamentary dispositions can be made only in writing in the form and manner prescribed by law for wills. Hence testamentary dispositions can never be established, as such, by any amount of parol evidence as to the verbally declared intentions of the deceased. And it is but one step from the explaining of a written testamentary disposition by proof of the verbal declarations of the testator, to the establishing of a verbal testamentary disposition-, . . .”

It is therefore clear that the oral testimony offered during the trial should in no way be used to alter or interpret the clear and unambiguous bequest contained in the testament now before us.

In the present case the testatrix made no revocation, express or tacit, of the special bequest of $14,000 to each of her two daughters. The bequests were for fungible items, equivalent amounts of which can be substituted with no implication of an intent to revoke. The testatrix left sufficient funds to execute the bequests and there is no evidence to indicate in any way, other than through innuendo and coincidence, that revocation was intended. To hold otherwise would result in a judicial confection of the decedent’s will. To allow clear and unambiguous provisions of a will to be amended by implication or by the heirs’ interpretation of the decedent’s motive would be a destruction of the traditional duty of a court to give effect to the will of a deceased person after his demise.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

LEMMON, J., concurs with written reasons.

LEMMON, Judge

(concurring).

Since the share of each child in the sale proceeds was exactly $44,355.73 (1/3 and '2/3 of 1/2 of $399,201.57), opponent’s two sisters each received approximately $14,000.00 more than a child’s share. Thus, the decedent did make a donation inter vivos of $14,000.00 to each of the two sisters. This donation, however, does not constitute the donation of “the thing bequeathed” so as to revoke tacitly the earlier testamentary disposition. (Emphasis supplied)

The apparent purpose of C.C. art. 1695 is to provide for tacit revocation when the testator’s subsequent act is inconsistent with the earlier will. This article in effect precludes the legatee of particular property (which is sold or donated subsequent to the testament but prior to the testator’s death) from claiming the value of the special legacy in the succession proceeding.

In the present case the testator’s inter vivors donations was not incompatible with or contrary to the earlier testamentary provision and therefore did not constitute a tacit revocation under C.C. art. 1695.

      . 3 Planiol, Traité Elementaire de Dorit Civil, § 2843(2).

      . 205 La. 592, 17 So.2d 889.

      . 142 La. 701, 77 So. 506, 510.

      . 158 La. 74, 103 So. 515, 516.

      . See also 3 Planiol Traité Elementaire de Droit Civil, § 2843, footnote 262: “But a tacit revocation could not result from material facts merely leading to an inference that the testator intended to revoke his disposition.”