text:
    Jesse BICKFORD et al. v. L. A. JONES et al.
    No. 13456.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Rehearing Denied Sept. 4, 1980.

      Maurice Robinson, Jr., Hammond, for plaintiffs.
    Tom H. Matheny, Hammond, for defendants, L. A. Jones, Daniel Jones and Triangle Timber Co.
    H. A. Mentz, Jr., Hammond, for defendant, Crown Zellerbach Corp.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Plaintiffs filed suit for damages for trespass upon their property. Third party defendant, Crown Zellerbach Corporation, defended in both the main and third party demands on the basis of its ownership of the property. Only the third party defendant appealed the judgment. The issue is the propriety of the judgment.

The relevant parts of the judgment read as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that the Third-Party Demand of L. A. Jones, Daniel Jones and Triangle Timber be recognized.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be Judgment in favor of the Plaintiffs, Jesse Bickford and Estate of Hillery Bickford and against the Third-Party Defendants, Crown Zellerbach in the sum of $414.65 for the costs of the timber removed.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be Judgment in favor of the Plaintiffs, Jesse Bickford and Estate of Hillery and against the Third-Party Defendants, Crown Zellerbach Corporation in the sum of $1,000.00 for damages to the property.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the (sic) be Judgment in favor of the Plaintiffs, Jesse Bickford and the Estate of Hillery Bickford, that they be declared to be the owners of the ten acres in question by virtue of either prescription of ten or thirty years.”

We find the judgment incorrect. Plaintiffs did not sue Crown Zellerbach originally and never amended their petition so as to seek recovery from third party defendant. The judgment in favor of plaintiffs and against Crown Zellerbach is improper.

Furthermore, the title was at issue only incidentally to the question of trespass; the action was not converted into a petitory action. The judgment as to title is therefore also improper.

However, we find ourselves unable to grant relief. Only the third party defendant appealed. We cannot amend the judgment so as to grant relief in favor of plaintiffs or defendants-third party plaintiffs.

We therefore reverse and set aside the judgment.

REVERSED.


source: Caselaw Access Project

author: PONDER, Judge.

license: Public Domain

text:
    SHERWIN-WILLIAMS COMPANY v. Lyman CROVETTO.
    No. 13463.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Rehearing Denied Sept. 4, 1980.
    Jesse L. Wimberly, III, Mandeville, for plaintiff, appellant.
    Martha L. Jumonville, Mandeville, for defendant, appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Defendant reconvened for damages for wrongful issuance of a writ of attachment. The trial court awarded $1,500.00 including attorney’s fees. Plaintiff appealed the award and defendant answered, requesting damages for frivolous appeal.

We amend and affirm.

Defendant, a debtor of plaintiff, was in the process of selling a piece of property when plaintiff filed suit for the debt and requested that a writ of attachment issue.

The property was sold before the writ was issued. Plaintiff’s witnesses testified they believed that the debt would not be paid from the proceeds of the sale. Defendant’s witnesses testified he intended to pay the debt and did not intend to place his property beyond the reach of creditors. Defendant’s wife testified to being embarrassed when told that a writ was being issued and again when the writ was served on her. Defendant did not testify. There was no proof of any actual damages other than attorney’s fees or of any embarrassment to defendant.

The court may allow damages for wrongful issuance of a writ of attachment. C.C.P. 3506. No malice was proved on plaintiff’s part; therefore only actual damages can be recovered by defendant. Baham v. Sutherland, 197 So.2d 345 (La.App. 4th Cir.).

Furthermore, we note that Lyman Crovetto was the sole defendant; that he filed an answer; that the plural “defendants” is used only in the “Motion to Dissolve Attachment; ” that the “Judgment Dissolving Writ of Attachment and Granting Damages for Wrongful Attachment” refers only to Lyman Crovetto, plaintiff in rule. Yet the sole testimony of any embarrassment is that of the wife. No damages should have been awarded to Mr. Crovetto for the embarrassment suffered by his wife. R.C.C. 2402; Pisciotta v. Du Saules, 125 So.2d 181 (4th Cir. 1960).

Defendant’s attorney testified that she had spent 4V2 hours outside court and 8 hours in court on the case and that her fee was $55.00 per hour outside court and $65.00 per hour in court. We therefore award $767.50 for attorney’s fees.

For these reasons the judgment of the trial court is amended to reduce the award from $1,500.00 to $767.50. The costs of this appeal are to be divided equally between the appellant and the appellee. The request for damages for frivolous appeal is denied.

AMENDED AND, AS AMENDED, AFFIRMED.


text:
    Earl D. RAINEY et al. v. Patsy M. RILEY.
    No. 13466.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Richard P. Reina, Denham Springs, for plaintiffs.
    William Brumfield, Baton Rouge, for Defendant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Defendant appealed from a confirmation of default judgment arising from a listing and offer to purchase of real estate.

We reverse and render.

Defendant owned two lots and a house which she wished to sell. She received an offer from plaintiff, Rainey, through Maxwell Realty. Acting upon the advice of Maxwell Realty’s saleswoman as to the value of the property, she signed a purchase agreement and mailed it to Maxwell Realty. When she immediately visited the property, however, she determined the value to be higher than she had been advised; she then went to Maxwell Realty and orally retracted the acceptance before the purchase agreement had been delivered, which delivery occurred after the offer had expired under its own terms. Despite Mr. Maxwell’s assurances, the acceptance was given to Mr. Rainey.

Plaintiffs, the prospective purchaser and the realtor, filed suit. A default judgment was taken and confirmed.

Appellant has devoted much time and effort in attacking the default judgment because of the absence of a minute entry. On an unnumbered page contained in the record between pages 1 and 2 we find a minute entry ordering the entry of a preliminary default. In the absence of further information, we reject appellant’s contention.

“In order to confirm a judgment by default, the plaintiff must prove the essential elements of the claim by competent evidence with legal certainty, as fully as though each allegation was specifically denied by the defendant.” Bonfouca Investment Corp. v. Eubanks, 347 So.2d 1277, 1278 (1st Cir. 1977).

We find a number of legal errors necessitating reversal.

The exhibits, for the most part hearsay, were allowed to be introduced without any identification other than the attorney’s de-

scription in making the offers. Thus nearly all plaintiffs’ exhibits were clearly incompetent. Even if plaintiffs’ exhibit 1, the purchase offer and acceptance, be otherwise admissible, defendant’s signature thereon was never proved except, maybe, by inference from statements made in the exhibits found to be incompetent and inadmissible. Exhibit 9 contains expert opinion of Mr. Maxwell, who never took the stand and was never qualified as an expert. It also is hearsay.

There is no allegation, even less proof, of “James F. Maxwell, d/b/a Maxwell Realty, Inc.,” being a licensed real estate broker, an essential element of any suit for commission. La.R.S. 37:1445.

When the unqualified hearsay opinion, Exhibit 9, is eliminated there is insufficient proof of any amount of damages on the part of the prospective purchaser, Mr. Rai-ney.

The acceptance of the offer was retracted before delivery to Mr. Rainey, and in fact was delivered only by the negligence of Mr. Maxwell, Mr. Rainey’s agent. The offer submitted by Mr. Rainey, through Maxwell Realty, had been altered by Mrs. Riley before signing and therefore constituted a counteroffer which also was retracted before communication to Mr. Rainey.

For these reasons, the judgment appealed from is reversed and there is now judgment in favor of defendant and against the plaintiffs, dismissing the suit. All costs are assessed against the plaintiffs.

REVERSED AND RENDERED.

      . La.C.C. Arts. 1809, 1819. See Litvinoff, Obligations, § 176. Cf. Travelers Indem. Co. v. Ducote, 380 So.2d 10 (La. 1979).


author: EDWARDS, Judge.

text:
    Henry Howard WILLIE v. Raymond KIMBALL et al.
    No. 13423.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    H. Matthew Chambers, Baton Rouge, for plaintiff-appellee Henry Howard Willie.
    Billy 0. Wilson, Baton Rouge, for defendant-appellant Ambulance Service Company of Baton Rouge, Inc.
    David W. Robinson, Baton Rouge, for defendant-appellee The Fidelity and Casualty Company of New York.
    Carey J. Guglielmo, Baton Rouge, for defendant-appellee The Aetna Casualty & Surety Co.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Henry Howard Willie, plaintiff, filed suit against Raymond Kimball, Johnny Dixon, Jr., Barbara D. Dixon, Stephen C. Howard, Ambulance Service Company of Baton Rouge, Inc., and their insurers, seeking $780,000 in damages for injuries suffered when he was shot through the head while attempting to leave “Nut’s Place.”

The Ambulance Service Company (Ambulance) was named as a defendant on the ground that, while transporting Willie to the hospital, the ambulance driver made a wrong turn and delayed plaintiff’s arrival.

Ambulance filed third party demands against its insurers, The Fidelity & Casualty Company of New York and Aetna Casualty and Surety Company (Aetna). Ambulance sought, inter alia, $7,500 in attorney fees and $7,500 for “severe mental anguish, worry and grief” because the insurers would not discharge their obligations to defend Ambulance against the suit by Willie.

The Fidelity & Casualty Company of New York, general liability insurer for Ambulance, answered and denied policy coverage for any liability arising out of the use, operation or maintenance of motor vehicles.

Aetna answered and urged that the automobile liability policy issued to Ambulance excluded coverage in this case because 1) there was no accident as defined by the policy, 2) the injury to Willie did not arise out of the ownership, maintenance or use of a vehicle, and 3) the policy did not insure against intentional conduct. Aetna subsequently filed a motion for summary judgment which was granted. From the summary judgment dismissing Aetna as a third party defendant, Ambulance appeals. We reverse.

Aetna’s insurance policy provides that

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use . of an owned automobile(.)”

“Occurrence” is defined as

“an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected not intended from the standpoint of the insured(.)”

For Aetna to be liable following a trial on the merits, any injury, or aggravation of an existing injury, must have 1) been caused by an occurrence and 2) arisen out of the ownership, maintenance or use of the ambulance.

For Aetna to be granted a summary judgment there must be no genuine issue of material fact and it must be clear as a matter of law that any injury, or aggravation of an existing injury, either 1) was not caused by an occurrence or 2) did not arise from the ownership, maintenance or use of the ambulance.

We cannot say that what happened in the ambulance was not an occurrence as defined in the policy. In addition, whether what transpired arose from “use” of the ambulance is also in doubt. What is clear, however, is that there are genuine issues of material fact in dispute on these points. Furthermore, based on the jurisprudence, it is not clear that Aetna is entitled to judgment as a matter of law. Baudin v. Traders & General Insurance Company, 201 So.2d 379 (La.App. 3rd Cir. 1967).

We do not find that Aetna is liable based on defendant’s use of the ambulance. Aet-na’s liability, if any, will be determined by the trial court. We merely hold that summary judgment based on the facts presently in the record was improper.

For the foregoing reasons, the trial court judgment is annulled and reversed. The case is remanded for further proceedings not inconsistent with law and this opinion. All costs of this appeal are to be paid by Aetna Casualty and Surety Company.

REVERSED AND REMANDED.


text:
    Clyde E. ADKINS v. DEPARTMENT OF TRANSPORTATION, State of Louisiana, Formerly the Department of Highways.
    No. 13507.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.

      Haley M. Carter, Franklinton, for plaintiff.
    David K. Balfour, Baton Rouge, for defendant.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Clyde E. Adkins brought suit against the Department of Transportation seeking $200,000 in damages allegedly suffered because of the Department’s negligence in constructing and/or maintaining ditches and culverts along Louisiana State Highway 10 in Franklinton. From a judgment denying his claims and dismissing his suit, Adkins appeals. We affirm.

Plaintiff owns a home and land near the south side of Hwy. 10 which runs east-west. During rainfall, runoff from the high ground immediately north of Hwy. 10 is channeled into a 3' X 4' culvert passing under the highway and emerging on the south side. At that point, the water may go south along a ditch or west along a ditch and through progressively smaller culverts. Whenever the rainfall is heavy, the ditches and culverts cannot handle the flow and the resulting overflow floods plaintiff’s land in depths of up to several inches.

Mr. Adkins testified that his plumbing and flooring rotted, that dirt surrounding his turnips and cucumbers was washed away, and that his wife was hospitalized with concern over the problem. In addition, plaintiff wrote letters of complaint to Governor Edwards, Senator Russell Long and Congressman Henson Moore.

We sympathize with Mr. Adkins regarding his obvious drainage problem. It is clear, however, that plaintiff’s problems are not the fault of the Department of Transportation and Development.

The area in which plaintiff resides is lower than the area north of Hwy. 10 and has always suffered flooding. Mr. Adkins was aware of this fact prior to purchasing his house in 1976.

When the Department of Transportation constructed the large culvert under Hwy. 10 some thirty years ago, it did nothing more than track the natural stream which had always existed. Thus, when floodwaters emerge from the southern end of the culvert and overflow plaintiff’s lands, nature, and not the Department, is to blame.

While it might be possible for the Department to build large drainage canals which would completely protect plaintiff’s property, such is not defendant’s duty. Testimony elicited showed that the Department, when constructing culverts to remove rainwater from the highways, strives to change the natural flow as little as possible.

For the foregoing reasons, the trial court judgment is affirmed. All costs, both trial and appellate, are to be paid by Clyde E. Adkins.

AFFIRMED.

      . Suit was defended and third party demand made by the Department of Transportation and Development (DOTD).


text:
    John G. HAZLEY, Sr. v. STATE of Louisiana, Through the DEPARTMENT OF PUBLIC SAFETY.
    No. 13514.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Ralph Tureau, Tureau & Mire, Gonzales, for plaintiff and appellee.
    Foye L. Lowe, Jr., Associate Gen. Counsel, Legal Section, Baton Rouge, for defendant and appellant.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

The State of Louisiana, through the Department of Public Safety, appeals a trial court judgment granting John G. Hazley, Sr., a restricted driver’s license.

Hazley’s driving record in the past five years includes three convictions for driving while intoxicated. In each case, his license was suspended for one year. In addition, Hazley was convicted of both reckless driving and a revoked license violation. He was certified to be an habitual offender.

Clearly, Hazley does not qualify for a restricted driver’s license under LSA-R.S. 32:415.1. Nor, pursuant to LSA-R.S. 32:1479, as amended by Acts 220 and 347 of 1979, can plaintiff be granted a restricted license as was formerly possible under Smith v. State, through Department of Public Safety, 366 So.2d 1318 (1978). See also Wheeler v. State, Department of Public Safety, License Control and Drivers Improvement Division, 377 So.2d 539 (La.App. 3rd Cir. 1979).

For the foregoing reasons, the trial court judgment granting plaintiff a restricted driver’s license is annulled and reversed and plaintiff’s petition is hereby dismissed. All costs of these proceedings, both trial and appellate, are to be paid by John G. Hazley, Sr.

REVERSED AND RENDERED.


text:
    Morris ROUBIQUE, Jr. v. Nelda Stewart ROUBIQUE.
    No. 13534.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    C. Jerome D’Aquila, New Roads, for plaintiff-appellee.
    James C. Dewey, Olind, Lowrey & Dewey, New Roads, for defendant-appellant.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Morris Roubique, Jr., alleging that his wife, Nelda Stewart Roubique, had abandoned him, filed suit for a separation from bed and board. Nelda Roubique reconvened and claimed that she had been abandoned by Mr. Roubique.

Following trial, judgment was signed in favor of Morris Roubique granting him a separation. Mrs. Roubique was awarded alimony pendente lite of $150.00 per month but her reconventional demand was otherwise dismissed. She has appealed. We affirm.

LSA-C.C. Art. 143 specifies the elements of abandonment:

“Separation grounded on abandonment by one of the parties can be admitted only in the case when he or she has withdrawn himself or herself from the common dwelling, without a lawful cause, has constantly refused to return to live with the other, and when such refusal is made to appear in the manner hereafter directed; provided, however, that separation grounded on abandonment may be the object of a reconventional demand in any suit for separation from bed and board.”

The party seeking a separation grounded on abandonment must prove each element. Bergeron v. Bergeron, 372 So.2d 731 (La. App. 4th Cir. 1979).

Counsel for appellant urges that the trial court erred in finding a constant refusal of Mrs. Roubique to return to the common dwelling.

A careful review of the entire record convinces us that the trial court’s findings of fact were correct. Mrs. Roubique did indeed abandon plaintiff.

Even though he was successful in the trial court, Mr. Roubique was assessed with all costs. He has chosen not to appeal that portion of the judgment.

For the foregoing reasons, the trial court judgment is affirmed. All costs in the trial court are to be paid by Morris Roubique, Jr. All costs of this appeal are to be paid by Nelda Stewart Roubique.

AFFIRMED.


author: LEAR, Judge.

text:
    Thaddeus Eugene MOSES v. VULCAN MATERIALS COMPANY et al.
    No. 13422.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    As Amended July 28, 1980.
    Writ Refused Oct. 20, 1980.
    Walter C. Dumas, Baton Rouge, for plaintiff-appellant Thaddeus Eugene Moses.
    Vincent Fornias, Baton Rouge, for defendant-appellee Transportation Insurance Company.
    Stephen Vogt and Emile C. Rolfs, III, Baton Rouge, for defendant-appellee Vulcan Materials Company.
    Before EDWARDS, LEAR and WATKINS, JJ.
   LEAR, Judge.

We are confronted with the question of whether plaintiff-appellant, Thaddeus Eugene Moses, is the statutory employee of defendant-appellee, Vulcan Materials Company, and thereby precluded from bringing a tort action based upon an industrial accident.

The pleadings, affidavit and deposition before us reveal no dispute as to any material fact. The trial court granted summary judgment in favor of the defendant-appel-lee. We affirm.

Appellant was an employee of ICI Janitorial Service which entered into a contract with defendant to perform janitorial services on a daily basis except Sundays and holidays. Vulcan expressly reserved the right to remove any ICI employees from work, whom Vulcan considered incompetent, insubordinate, or otherwise objectionable. Further, Vulcan required that ICI maintain workmen’s compensation and other insurance on its employees. Vulcan picks up the cost of this insurance.

Vulcan Materials Company manufactures and transports chlorinated solvents at its plant at Geismar, Louisiana. On May 10, 1978, appellant, Moses, while working within the scope of his employment at the Geis-mar plant, suffered bodily injury when an equalizing line used to transport chlorine gas burst, causing an explosion.

Appellant filed an action in tort naming as defendants Vulcan and certain unknown entities who manufactured, designed and constructed the equalizing line. Also sued were certain unknown insurance companies.

The parties deposed George A. Vlacos, the plant manager for Vulcan’s Geismar operation. That testimony was to the ef-feet that Vulcan contracts for vital services for the operation of its facilities, including the Geismar plant. Such services include not only janitorial services, but also plant mechanical maintenance, electrical maintenance, painting maintenance, installation maintenance, secretarial help and instrument repair services. Vulcan supplements work being done by its direct employees with contracted services and direct employees perform minor janitorial services also.

The affidavit of Kay Babin established the contractual relationship of the parties as set out hereinabove. Both the affidavit and deposition were uncontroverted. The trial judge granted Vulcan’s motion for summary judgment and dismissed as to that defendant.

R.S. 23:1061 provides:

“Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.
“Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.”

As correctly noted by the trial court below, at least two tests have been articulated by our courts when seeking to apply R.S. 23:1061: (1) Whether the work which the employee is performing is part of the trade, business or occupation of the principal and is a necessary or an essential part of the principal’s business, and/or (2) whether the work was the type customarily done by the principal or other employers similarly situated. These tests are distilled from Reeves v. Louisiana and Arkansas Ry., 282 So.2d 503 (La.1973) and Lushute v. Diesi, 354 So.2d 179 (La.1978).

This court has applied the Reeves test in Brown v. Kaiser Aluminum and Chemical Corporation, 289 So.2d 524 (La.App.1973), writ denied 293 So.2d 171 (La.1974), and more recently we have applied the Lushute test in Boudreaux v. Boudreaux, 369 So.2d 1117 (La.App.1979), writ denied 371 So.2d 615 (La.1979).

We believe the trial court was correct in concluding that the maintenance work which appellant was performing was part of the “trade, business or occupation” of the defendant, Vulcan, and that Vulcan was thereby immune from tort liability to appellant. See also Barnes v. Sun Oil Company, 362 So.2d 761 (La.1978) and Leger v. Amerada Hess Corp., 479 F.2d 1250 (CCA 5, 1973).

For the above and foregoing reasons, the judgment of the lower court is affirmed. Plaintiff-appellant is to bear the costs of this appeal.

AFFIRMED.


text:
    Philip W. DUNN v. The AMERICAN INSURANCE COMPANY et al.
    No. 13434.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Lewis 0. Unglesby, Baton Rouge, for plaintiff-appellant Philip W. Dunn.
    Henry D. Salassi, Baton Rouge, for defendants-appellees James L. Ward d/b/a Ward Refrigeration Company and American Insurance Company.
    James E. Moore, Baton Rouge, for inter-venor-appellee Fireman’s Fund American Insurance Company.
    Arthur Cobb, Baton Rouge, for defendant-appellee John Flowers.
    Thomas H. Watts, Baton Rouge, for defendants-appellees Capital Crane Rental, Inc., and Thomas Michael Guillory.
    W. Steven Mannear, Baton Rouge, for intervenor-appellee Peggy Bozman Dunn.
    Before EDWARDS, LEAR and WATKINS, JJ.
   LEAR, Judge.

Philip W. Dunn appeals from an adverse judgment which dismissed his claim for damages for personal injuries sustained when he fell from atop a two-story building. The trial court held that the plaintiff, Dunn, acted unreasonably and denied relief. We affirm.

Philip W. Dunn, appellant, and Jack Flowers were employed by James Ward doing business as Ward Refrigeration Company to install air conditioning units. Flowers was a foreman and Dunn worked directly under his supervision. On February 16, 1976, Ward undertook the installation of two large units at Capitol Business Machines, Inc. in Baton Rouge, Louisiana. In this connection, Capital Crane Rentals, Inc. provided an operator, Guillory, and a crane to lift these units onto the building.

During the course of lifting these units, Flowers positioned himself on top of one of them and “rode” the unit to the roof. There was testimony to the effect that Flowers and Guillory utilized this procedure quite regularly on other jobs and that Dunn was not only familiar with that fact, but also had witnessed the same.

As Guillory was lifting the second unit with Flowers on it, Dunn, who was standing on top of the roof, thought that Flowers was in danger. He immediately ran towards the edge of the building to give warning to Guillory, the crane operator. In his haste, he rushed over the edge and fell to the ground, severely injuring himself.

The issue presented is whether the trial court committed manifest error when it held that plaintiff-appellant had acted unreasonably.

The evidence shows that although appellant thought Flowers to be in danger while being hoisted by Guillory, neither Flowers nor Guillory perceived any such danger. Further, Dunn’s testimony admits of no verbal contact nor attempt at verbal contact with Flowers. That he mistakenly interpreted Flowers’ behavior as a sign of danger.is clear from his (Dunn’s) testimony:

“Q Go ahead and tell us exactly what it was that precipitated your going off the building, and then we’ll work backwards.
“A Well, in the procedures of me being on the second story, I was watching Mr. Flowers and Mr. Ward hooking up the unit, and I turned about to walk to my-to the first level-and while I was doing this, and my back was turned and all, I heard the boom coming up with the machinery; and then, right prior to me getting to the ladder to go to the first story, I glanced to the right, looked up at about a 45 degree angle, saw Mr. Flowers on top of the headache ball, and he looked, he was like so (demonstrating), and he looked up also and during this the ball was going up; and he looked at me, kinda with a look on his face What’s gonna happen? Is this man gonna run me up? and, you know, all this flashed in my mind, and he looked back down at me and he kinda did his shoulders like this, like well, This is it or like Somebody do something. So, in seeing this, I automatically, first thing that pops into my mind, was to get the operator and to flag him to stop the lift, and in so doing, and it’s such a short distance between myself and the edge of the building, maybe ten feet or fifteen feet at the most, I was watching Jack instead of where I was going and in doing so, I ran off the building.”

There is just no other testimony of record to support appellant’s claim of impending danger to Flowers. Flowers’ testimony is not only not supportive of appellant, it is plainly contrary. In Callais v. Furniture Showrooms, Inc., 213 So.2d 537 (La.App. 1st Cir. 1968), plaintiff sustained injuries when she accompanied her friend to defendant’s showroom. Negligently placed were several rugs which caused plaintiff’s companion to stumble. Plaintiff reacted by lunging forward and preventing her companion from falling. However, in so doing she fell and sustained injuries. She was permitted to recover under the “rescue” or “good Samaritan” doctrine. The court held:

“ . . . one who acts upon sudden impulse as a ‘rescuer’ ... in coming to the aid of another in danger, peril or distress, is not guilty of contributory negligence in exposing himself to a known or obvious danger, if under similar circumstances an ordinarily prudent person might have done likewise, or if the attempted rescue was not such as to make the effort rash and reckless in the judgment of an ordinarily prudent person. Coulton v. Caruso, La.App., 195 So. 804.” [At Page 540.]

The facts of this case as found from the record fail to establish any actionable negligence or fault on the part of Flowers or Guillory. Plaintiff has not established his burden of proving that a danger existed, thereby activating the emergency risk doctrine. The trial court found that no reasonable grounds existed to believe Flowers was in danger. It held that the appellant simply overreacted. We will not disturb the findings of the lower court unless manifestly erroneous. Canter v. Koehring, 283 So.2d 716 (La.1973). Appellant has failed to carry his heavy burden.

It should further be noted that in the instant case, the danger, if it existed, was not created by a third person as in Callais v. Furniture Showrooms, Inc., supra. Neither was the person to be rescued in a position of immediate danger as in Calíais.

For the foregoing reasons, the decision of the trial court is affirmed at appellant’s cost.

AFFIRMED.


text:
    Ray H. LEWIS v. TOLEDO NATIONAL INSURANCE COMPANY et al.
    No. 13509.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Johnnie A. Jones, Baton Rouge, for plaintiff.
    Robert E. Palmer, Ponchatoula, for Elias Sandel, Jr. and Troy E. Sandel, defendants.
    Charles A. O’Brien, III and John E. Castle, Baton Rouge, for Credit General Insurance Co.
    Jimmy Hammer in pro. per.
    Before EDWARDS, LEAR and WATKINS, JJ.
   LEAR, Judge.

Plaintiff-appellant is appealing the ruling of the lower court dismissing his suit in tort.

Succinctly, the facts are that plaintiff was driving his 1968 Chrysler automobile northbound along a section of U.S. 51 in Tangipahoa Parish. The time was approximately 11:00 p. m. At the same time defendants, Elias Sandel and Jimmy Hammer, who were operating a 1972 Ford automobile and a 1968 Chevrolet automobile, respectively, were involved in an accident which caused an obstruction of the northbound lane of U.S. 51. In addition to these circumstances, there was testimony of some slight precipitation.

Two totally conflicting versions were given of the events which followed and which form the basis of this lawsuit. Appellant contends that as he approached that section of the highway where defendants’ vehicles were stopped across the highway, he was unable to discern the presence of vehicles because there were no warnings whatsoever; that it was under these circumstances that his vehicle collided with a vehicle which was blocking the northbound lane. He testified that he was knocked out momentarily, but after regaining consciousness he got out of his car and walked around the scene; that he was unable to ascertain the presence of anyone at the scene; and that he returned to his car and departed.

Defendants-appellees on the other hand testified that after the collision involving their two cars they took precautions to warn other motorists. This included turning their emergency flashers on and opening a car door so that the car’s interior would be lighted. Defendant, Troy Sandel, further testified that his sister remained in the car at all times to assure that the flashers were operating and that he positioned himself between the stalled car and the northbound traffic to give additional warning by waving to oncoming traffic. His testimony was corroborated by that of his sister, Cynthia Sandel.

Appellant instituted this action against the named defendant, Elias Sandel, who was the owner of the Chevrolet vehicle, and against his uninsured motorist insurer, Toledo National Insurance Company.

The only issue presented by this case, based upon the conflicting testimony, is whether the trial court committed manifest error.

Our reading of the record reveals only the sometimes difficult but always necessary duty that the trial court must discharge in weighing the evidence and pronouncing judgment. We are not to question the wisdom of the trial judge, but rather, it is our duty to adhere to and apply the rule of law enunciated by Justice Tate in Carter v. Koehring Company, 283 So.2d 716, 724 (La. 1973):

“[8,9] When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

Therefore, our duty discharged, we are unable to say the trial court erred in dismissing plaintiff’s suit, for as we recently said in Usie v. Bonvillian, 348 So.2d 728, 730 (La.App. 1st Cir. 1977):

“[2] Conclusions of fact by a trial judge are entitled to great weight; they are not to be disturbed on appeal in the absence of manifest error, especially when predicated on evaluation of the testimony of conflicting witnesses.”

Accordingly, the judgment of the trial court is affirmed. The costs of this appeal are to be paid by the appellant.

AFFIRMED.


text:
    Mrs. Ruby WHITE et vir. v. Dr. E. Edward McCOOL et al.
    13516.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Rehearing Denied Sept. 4, 1980.

      Arthur Cobb, Baton Rouge, for plaintiffs-appellants, Mrs. Ruby White and Stafford White.
    W. Luther Wilson, Baton Rouge, for defendant-appellee, Dr. E. Edward McCool.
    Before EDWARDS, LEAR & WATKINS, JJ.
   LEAR, Judge.

Defendant, Dr. E. Edward McCool, performed gall bladder surgery on plaintiff, Ruby White, and during the operation there was either a laceration or tear of the liver. Defendant, McCool, sutured the wound and being satisfied that the bleeding had stopped closed the incision. Some five hours later plaintiff was found to be suffering from internal bleeding. Defendant reopened the incision and found the liver to be bleeding. Defendant resutured the liver and closed the incision. Plaintiff’s recovery was thereafter uneventful. The plaintiff sued defendant and his insurer alleging malpractice. The trial court found for defendant and dismissed plaintiff’s suit. We affirm.

LSA-C.C. art. 2315, in pertinent part, provides that every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

LSA-C.C. art. 2316 states that, “Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.” In 1975 the legislature (by Act 807 of 1975 which became LSA-R.S. 9:2794 and which applied as here to all acts occurring prior to the passage of Act 545 of 1979), in an apparent attempt to set forth standards of conduct and skill in suits brought against dentists and physicians, enacted legislation setting forth the burden of proof to be borne by plaintiff. This statute reads, in pertinent part, as follows:

“(A) In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., or a dentist licensed under R.S. 37:751 et seq., the plaintiff shall have the burden of proving:
“(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians or dentists practicing in the same community or locality to that in which the defendant practices; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians or dentists within the involved medical specialty-
“(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill, and
“(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.”

The intent of the legislature was to indicate how the basic principle of article 2315 as amplified by article 2316 should apply to this class of cases.

As the trial judge correctly stated, the standard required by the Civil Code and LRS 9:2794 is that degree of care, knowledge or skill possessed by physicians within [a given] medical specialty.

Appellant contends that the doctrine of res ipsur loquitur should apply to the facts of this case. If we assume this to be true, the trial court found that defendant had exercised due care and skill which effectively rebuts any presumption so raised. We find no abuse of discretion or manifest error in the record.

The judgment of the trial court is affirmed, appellant to pay all costs.

AFFIRMED.


text:
    Richard CLAFLIN et al. v. Hazen S. FINNERTY.
    No. 13533.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    James 0. Ervin, Baton Rouge, for plaintiffs-appellees, Richard Claflin and Denise Claflin.
    Leo J. Berggreen, Baton Rouge, for defendant-appellant, Hazen S. Finnerty.
    Before EDWARDS, LEAR and WATKINS, JJ.
   LEAR, Judge.

This is an action in quanti minoris involving defects in a residence purchased by plaintiffs from defendant. Most of the defects involved the heating, air conditioning and the electrical wiring of the house. The air conditioner had been installed and wired by defendant.

In addition to a reduction in the cost of the property, plaintiffs ask for attorney fees on the basis of LSA-C.C. 2545 which provides for attorney fees when the seller knows of the vice in the thing he sells.

In financing the property, the parties entered into a sale and resale whereby defendant sold to a savings and loan association who, in turn, resold to plaintiffs on the same date. Defendant filed an exception of no right of action alleging that defendant was not plaintiffs’ vendor as required by LSA-C.C. 2520.

LSA-C.C. art. 2520 reads as follows:

“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

The trial judge correctly overruled the exception. Paragraph 3 of the act of sale from the savings and loan association to plaintiffs subrogated to plaintiffs all rights and actions in warranty against all former owners of the property.

After a trial on the merits the court awarded plaintiffs $1,240.00 as damages, plus $310.00 as attorney fees. Defendant appealed.

The trial judge in his reasons for judgment awarded plaintiffs $810.00 for electrical wiring and $430.00 for replacing the heater and coils, plus attorney fees in the sum of $350.00. Plaintiffs answered the appeal asking only for an increase in attorney fees for handling the appeal.

Defendant argues that no attorney fees should be allowed under LSA-C.C. art. 2545 since defendant was in good faith.

LSA-C.C. art. 2545 reads as follows:

“The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of the price and repayment of the expenses, including reasonable attorneys’ fees, is, answerable to the buyer in damages.”

There was a conflict in the testimony concerning whether or not defendant told plaintiffs of having problems with the heater after defendant installed a new air conditioning coil improperly; however, the court was of the opinion that defendant did not so declare and we cannot say that the trial judge committed manifest error.

The attorney fees will be increased to $500.00 and in all other respects the judgment of the trial court is affirmed, appellant to pay all costs.

AMENDED AND AFFIRMED.


author: WATKINS, Judge.

text:
    Velvina RAPPELET et al. v. Joey P. VINING et al.
    No. 13508.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Lester J. Waldmann, of Tooley, Gardner & Waldmann, Gretna, for plaintiff s-appellants Velvina Rappelet, et al.
    Dominic J. Gianna, of Hammett, Leake, Hammett, Hulse & Nelson, New Orleans, for defendant-appellee Lumbermen’s Mutual Casualty Co.
    George J. Ledet, Jr., of LaPlante & Le-det, Cut Off, for defendant-appellee Earl Vining.
    Lloyd T. Bourgeois, of Porteous, Toleda-no, Hainkel & Johnson, Thibodaux, for defendant-appellee State Farm Mutual Insurance Co.
    Gordon Hackman, Boutte, for plaintiff Velvina Rappelet, et al. in Suit No. 37939.

      Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is an appeal from a judgment dismissing plaintiff’s suit without prejudice for failure of plaintiff’s counsel to attend a pre-trial conference. The action was brought by the Tutrix of a minor who was allegedly injured in an automobile accident. The pretrial conference was set for October 22,1979, at 10:30 a. m., after a prior continuance. Plaintiff was represented by two counsel, Lester J. Waldmann, Gretna, and Gordon Hackman, Boutte. Neither one was present at the pre-trial conference. Wald-mann’s excuse, in his brief, basically is that Waldmann’s secretary telephoned the Judge’s secretary and told her that Wald-mann would not be able to attend the pretrial conference because he had a commitment to appear in Federal Court that day, and that the Judge’s secretary agreed that this was all right and insisted that no pleading was necessary. (This version seems to be entirely inconsistent with the facts that were recited in the Motion for New Trial filed after the suit was dismissed as non-suit for failure of plaintiff’s attorneys to appear at the pre-trial conference.) However, although plaintiff’s counsel’s conduct was clearly discourteous to the Court, plaintiff’s counsel’s position is sound that a suit cannot be dismissed for failure to appear at a pre-trial conference. It was held in Boudreaux v. Yancey, 256 So.2d 340 (La.App. 1st Cir. 1971), that a suit could not be dismissed as a non-suit for failure to attend a pre-trial conference. The court based its decision upon art. 1672 of the Code of Civil Procedure, which provides that a suit may be dismissed if plaintiff fails to appear at trial, which the court found constituted the only instance in which dismissal was permitted for failure of counsel to appear. That article has not been amended since the decision in Boudreaux v. Yancey, and that decision has not been overruled. The dismissal of plaintiff’s suit without prejudice was, therefore, improper.

The judgment of the trial court is reversed, at appellee’s cost, and the case remanded for further proceedings.

REVERSED AND REMANDED.

      . At 319 So.2d 806 (1975), we see that after trial on the merits, judgment was rendered for plaintiff. Plaintiff appealed as to quantum, and as to the parties against whom judgment should be rendered. Judgment was affirmed.


text:
    Jasper BROWN v. TRIANGLE TIMBER, INC. et al.
    No. 13511.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.

      Russell K. Zaunbrecher, Crowley, for plaintiff.
    Iddo Pittman, Jr., Hammond, for defendants.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is an action brought by Jasper Brown against Triangle Timber, Inc., his employer, and its workmen’s compensation insurer, Aetna Life & Casualty Insurance Company. Plaintiff alleges that he was injured on or about May 21, 1978, in the course and scope of his employment. He seeks compensation benefits for total and permanent disability. After trial on the merits, the trial court rendered judgment for the defendants. In written reasons, the trial court found it had “serious doubts that there was any real serious injury . .”, or “if there was actually any serious injury .”, that the injury “occurred while plaintiff was employed by defendants”. We agree. We have read the record and depositions very carefully, including the medical reports, and agree that there is serious doubt (1) that plaintiff was injured, and (2) that if plaintiff was injured, whether he was injured in the course and scope of his employment. In any event, there is no manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973). We, therefore, affirm the judgment of the trial court. As the suit was filed in forma pauperis, we do not assess costs.

AFFIRMED.


text:
    CITY OF PLAQUEMINE v. Honorable Joseph B. DUPONT, Sr.
    Nos. 13601, 13602.
    Court of Appeal of Louisiana, First Circuit.
    July 9, 1980.
    Patrick W. Pendley, Freeman & Pendley, Plaquemine, for plaintiff-appellant City of Plaquemine.
    William C. Dupont, Dupont, Dupont & Dupont, Plaquemine, for defendants-appel-lees Hon. Joseph B. Dupont, Sr. & Richard Medien.

      Before EDWARDS, LEAR and WATKINS, JJ.
   LEAR, Judge.

This is an action to remove from office the Judge of the City Court, City of Plaque-mine. The defendant filed exceptions of lack of jurisdiction and no cause or right of action. The exceptions of no cause or right of action were upheld, and by supplementary written reasons, the exception to the district court’s jurisdiction was likewise held. Plaintiff City appeals. Defendant filed a motion to dismiss the appeal.

The City of Plaquemine admits on appeal that because the recent decision of the Louisiana Supreme Court in Small v. Guste, 383 So.2d 1011 (La.1980) interpreting Art. 5, Sec. 25 of the Louisiana Constitution of 1974, holds the cited Constitutional provision, in permitting the removal of judges by the Louisiana Supreme Court, affords the sole way in which a judge can be removed from office, this Court is without jurisdiction to remove defendant.

Plaintiff contends, however, that this Court is vested with the jurisdiction to limit the territorial jurisdiction of the Plaquemine City Court. We have examined the record quite thoroughly, and find that the question of the territorial jurisdiction of the Plaquemine City Court was never raised in the trial court, in pleadings or otherwise. Consequently, that question is not at issue before this Court.

The appeal is dismissed for want of jurisdiction, at plaintiff’s cost.

APPEAL DISMISSED.


text:
    E. J. MARTIN et al. v. Michael ESPONGE et al.
    No. 13513.
    Court of Appeal of Louisiana, First Circuit.
    July 25, 1980.
    Bernard L. Knobloch, Jr., Thibodaux, for plaintiffs-appellants E. J. Martin, et al.

      Stanley L. Perry, Galliano, for defendants-appellees Michael J. Esponge, La-Fourche Flying Service, Mavis Orgeron & Monteo, Inc.'
    Johnny X. Allemand, Thibodaux, for defendants-appellees Abraham J. Smith & Leonise C. Smith.
    Before EDWARDS, LEAR and WATKINS, JJ.
   LEAR, Judge.

This is a suit by several of the co-owners in indivisión of a tract of land in Lafourche Parish against the lessees of another co-owner in indivisión seeking a money judgment against lessees for the difference between $300 per year (the rental charge in the lease) and the alleged fair market rental value of the leased property of $250 per month.

Plaintiffs do not seek eviction of the lessees, nor do they seek an accounting from their co-owner (lessor) for their pro-rata share of the rent.

The trial court rendered judgment dismissing plaintiffs’ suit and they have appealed.

The evidence shows that Mr. and Mrs. A. J. Smith, owners of a minority undivided interest in the property in question, had occupied the property for many years as a home and had built and operated a commercial establishment on the property. In 1974, defendant, Esponge, entered into a written lease with the Smiths. Based upon this lease, defendants constructed hanger and docking facilities for seaplanes. Plaintiffs contend that they are entitled to rent from the lessees. The defendants contend that defendants’ liability for rent is fixed by their lease agreement with the co-owner, Smith.

In his written reasons for judgment in favor of defendants, the trial judge ruled that plaintiffs’ claims are without legal or evidentiary basis, stating as follows:

“In deriving fruits and revenues from, property held in indivisión, a co-owner acts not only for himself but also as the agent of his other co-owners.” LSA-CC 494; Juneau v. Laborde, 228 La. 410, 82 So.2d 693 (1955), Moreira v..Schwan, 113 La. 643, 37 So. 542 (1904).
“Further, the remedies of a co-owner out of possession against the co-owner in possession are for one or more of the following:
“1) to maintain an action for damages due to his co-owner’s exclusive occupancy when he has been deprived of the right of possession;
“2) to maintain an action for partition and;
“3) to maintain an action for an accounting of rents or revenues derived from the property.” LSA-C.C. 494; Juneau v. Laborde, supra; Moreira v. Schwan, supra.

The court observed that although the petition was styled “Class Action For Damages” there was neither a claim nor any proof adduced at the trial for damages. Also, no claims were asserted against the co-owner who leased to defendants. Although the Smiths were cited as defendants in a supplemental petition, there was no prayer for an accounting or a monetary judgment against them.

We must, therefore, conclude, as did the trial court, that the Smiths, who were co-owners in possession, acted as agents for the other co-owners and plaintiffs’ remedy lies against these co-owners and not against lessees. The result would be otherwise, had there been a showing of waste of the property. Ree Corporation v. Shaffer, 246 So.2d 313 (La.App. 1st Cir. 1971).

In addition to the issue previously mentioned, plaintiffs question the right of a trial judge to limit a proffer, under article 1636 of the Code of Civil Procedure, to a verbal statement rather than permitting the litigant to make a complete record of the excluded evidence. C.C.P. art. 1636 reads in pertinent part as follows:

“When a court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence.”

This article vests in the court discretion to determine the procedure to follow.

The appellant is not prejudiced by a trial judge’s limiting his proffer to a statement setting forth the nature of the evidence rather than allowing him to make a complete record thereof, since the appellate court will remand for completion of the record if, in the former case, the evidence excluded is ruled admissible. Tri Parish Heating & Air Conditioning v. Brown, 338 So.2d 126 (1st Cir. 1976). Plaintiffs also question the trial judge’s ruling that Thomas Guzzetta, who appeared in proper person as well as co-counsel for other plaintiffs, was disqualified to act as co-counsel after he testified as a witness. Pertinent parts of L.R.S. 37:218, Canon 5, read as follows:

“DR 5 — 102 Withdrawal as Counsel When the Lawyer Becomes a Witness.
“(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(l) through (4).
“EC 5-9. Occasionally a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate. If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.

However, as stated by counsel, this issue is not of prime importance to the case and in our opinion his testimony as an expert on land rental values would not affect the outcome of this case.

For the reasons above stated, the judgment of the trial court is affirmed, appellants to pay all costs.

AFFIRMED.


text:
    Roy MICHEL v. STATE of Louisiana, Through the DEPARTMENT OF PUBLIC SAFETY.
    No. 13515.
    Court of Appeal of Louisiana, First Circuit.
    July 25, 1980.

      John A. Lieux, Gonzales, for plaintiff and appellee.
    Foye L. Lowe, Jr., Associate Gen. Counsel, Legal Section, Baton Rouge, for defendant and appellant.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is an appeal brought by the Department of Public Safety of the State of Louisiana from a judgment granting Warren Michel a restricted drivers license upon his application under LSA-R.S. 32:415.1.

The record reveals that Mr. Michel (ap-pellee) was involved in an accident in March of 1977 in which there was a fatality; although it does not indicate that he was at fault, appellee testified that his driver’s license was suspended as a result. The record further reveals that while appellee’s driver’s license was still under suspension he was convicted once for driving while intoxicated and three times for driving while his license was under suspension, as a result of which the initial suspension was extended four times under the authority of LSA-R.S. 32:415. On August 22,1979, subsequent to the last extension of the suspension of appellee’s driver’s license, he filed the petition for restricted driving privileges under LSA-R.S. 32:415.1.

LSA-R.S. 32:415 reads as follows:

“A. It shall be unlawful for any person to operate a motor vehicle upon any public highway of this state during the period of suspension, revocation or cancellation of any license- which may have been issued to him by this state or by any other state.
“B. Any period of suspension or revocation shall automatically be extended for a period of one year from the date the licensee would otherwise have been entitled to apply for a new license upon his conviction for any offense involving the operation of a motor vehicle committed during such period. No driver shall use a license issued to him in another state for the purpose of operating a vehicle in this state while his license from this state is under suspension. The department is authorized to suspend or revoke the license of any resident of this state or the privilege of a nonresident to drive a motor vehicle in this state, upon receiving notice of his conviction, or of the entry of a plea of guilty and sentence thereupon, or of the forfeiture of bail in another state or federal jurisdiction for any offense, which if committed in this state, would be grounds for suspension or revocation of the license.”

The first sentence of LSA-R.S. 32:415.1 reads as follows:

“A. (1) Upon suspension, revocation, or cancellation of a person’s drivers license, for the first time only as provided for under R.S. 32:414 (B), (C), (D), (E), and R.S. 32:415 said person after initial notice from the department shall have the right to file a petition in the district court of the parish in which the applicant is domiciled alleging that revocation of his driving privileges will deprive him or his family of the necessities of life or will prevent him from earning a livelihood.”

The Department of Public Safety contends that because the suspension of Mr. Michel’s license has been extended under the authority of LSA-R.S. 32:415 he is not entitled to a restricted license under LSA-R.S. 32:415.1, since the latter section applies only to a “suspension ... for the first time only . . . ”. The statute does not speak of an extension of an existing suspension, and we assume that the trial court did not consider the extension of an existing suspension as an additional or another suspension and, therefore, a limitation on the court’s power to grant a restricted drivers license in the present case. We cannot agree with this construction because it produces the effect that a driver who is convicted of an offense which subjects him to a suspension while his license is under suspension could obtain a restricted license, where a driver who completes the service of the initial suspension and has his unrestricted license returned to him and then is convicted of a subsequent offense for which he could receive another suspension of his drivers license could not obtain a restricted license under the statute. We, therefore, hold that the extensions of suspension of appellee’s drivers license after convictions for offenses while under suspension constitute additional suspensions under LSA-R.S. 32:415.1, and he is clearly not entitled to a restricted drivers license.

The judgment of the trial court is reversed and appellee’s petition is dismissed. All costs of the trial court and this appeal to be paid by appellee.

REVERSED.


author: REDMANN, Judge.

text:
    Donald R. TOSO v. Clayton J. BORNE, III.
    No. 11051.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 12, 1980.

      Michael A. Dessommes, New Orleans, for plaintiff.
    Clayton J. Borne, III, Metairie, in pro. per.
    Before SAMUEL, REDMANN and SAR-TAIN, JJ.
   REDMANN, Judge.

Does the erection of a building above a “servitude of driveway” violate the servitude? We answer that it does not, if it leaves sufficient clearance for the passage of the vehicles intended by the servitude. We therefore affirm the declaratory judgment appealed from by plaintiff.

Defendant’s lot fronts on Veterans highway and plaintiff’s lot abuts its rear, fronting on Quincy street. Prior owners created a 15-foot servitude along one side of both properties for a driveway between Veterans and Quincy.

Plaintiff’s complaint about defendant’s building nine feet above the surface of the servitude is not that the driveway will be less passable. When he first saw the plans “the first thing I noticed was the fact of the view from Veterans Highway . . .” “I think it’s a visual problem of getting to my property, ... it does not really look like an access to my property. . [F]rom a visual standpoint I feel that it would be a detriment . . . .”

Plaintiff asks too much of a servitude of passage. The servient estate is bound by such a servitude only to suffer the passage of the contemplated vehicles. The servitude of passage of course includes the right to prevent buildings which interfere with the agreed-upon passage, Hymel v. St. John the Baptist P. Sch. Bd., La.App. 4 Cir. 1974, 303 So.2d 588, writ denied 307 So.2d 370. But the servitude of passage does not include a servitude of view, La.C.C. 701 (as amended, Acts 1977 No. 514) which alone “includes the right to prevent the raising of constructions on the servient estate that would obstruct'the view.” Plaintiff’s servitude gives him the right, for himself and others whom he invites to his lot, to drive automobile or truck across defendant’s land. But it does not give him the right to have his building visible from Veterans highway; it does not give him the right of view with the right to prevent buildings that interfere with the view to and from his property.

Nor does the clearance of only nine feet infringe on the servitude of passage. It will prevent taller trucks from passing, but at the time of the original grant of servitude and for years thereafter a substantial canopy existed, only 8'3" high. The servitude evidently intended no right in plaintiff to require demolition of that canopy and therefore gave no right of passage for vehicles over 8'3" tall. On this basis we distinguish Kaffie v. Pioneer Bank & Tr. Co., La.App. 2 Cir. 1966, 184 So.2d 595.

Similarly, despite the servitude’s express grant of 15 feet (“as will more fully be seen” on an attached survey), the supporting wall along the side property line does not infringe on the servitude. The canopy’s foundation towards that side line was 3.38 feet from the line, according to the servitude’s survey, and the servitude did not prevent the canopy’s foundation. Nor does it prevent the less-infringing side wall now proposed.

Defendant would violate the servitude, however, by parking automobiles along the length of the servitude, effectively taking away from the servitude the seven foot strip along the property line. The former canopied passage was 13 feet in width. The new driveway would be 17 feet wide, but to use seven feet for parking would reduce it to ten feet. Defendant may not thus reduce the width of the servitude; C.C. 748 (formerly 777); see Hymel, above.

The judgment appealed from is therefore amended to add the declaration that defendant may not use any part of the servitude for parking of vehicles that would reduce its usable width to less than 13 feet. Costs to be divided equally..

      . Former art. 716 (1870) contained similar language.


author: PRICE, Judge.

text:
    Jo Ann G. USSERY, Plaintiff-Appellant, v. STATE of Louisiana Through the DEPARTMENT OF PUBLIC SAFETY, Defendant-Appellee.
    No. 14199.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.
    Guerriero & Anzalone, by Rick C. Anza-lone, Monroe, for plaintiff-appellant.
    Michael C. Barron, Baton Rouge, for defendant-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   PRICE, Judge.

Plaintiff appeals a judgment denying her demand for a restricted driver’s license under La. R.S. 32:415.1. We affirm.

In the latter part of 1979 plaintiff was convicted of second offense driving while intoxicated and subsequently received notice of a one-year suspension of her driver’s license under R.S. 32:414B(2). She had been convicted on the same charge in 1974 and had received a prior one-year license suspension at that time.

After receiving notice of the suspension plaintiff filed a rule to show cause why she should not be issued a restricted driver’s license under R.S. 32:415.1. The trial court ruled she was not entitled to the relief sought since under R.S. 32:415.1 a restricted license may only be issued in connection with a first — time suspension.

Plaintiff appeals contending R.S. 32:415.1 is unconstitutional in that it makes no distinction as to the type of previous suspension which would bar the granting of a restricted license and because the statute sets no time limitation between the prior suspension and the latest suspension which is the basis for the application for the restricted license.

Since this plea of unconstitutionality was not raised in the district court and since it would gain appellant nothing to have the statute under which she seeks relief from the mandatory suspension required by R.S. 32:414B(2) declared null, we find it unnecessary to consider these contentions. See Rankin v. State of La. Through the Dept. of Public Safety, 385 So.2d 894 (La.App.2d Cir. 1980).

The Judgment is affirmed at appellant’s costs.


text:
    William R. CRAIN, Plaintiff-Appellant, v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, LICENSE CONTROL AND DRIVER IMPROVEMENT DIVISION, Defendant-Appellee.
    No. 14200.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.
    Guerriero & Anzalone by Rick C. Anza-lone, Monroe, for plaintiff-appellant.
    Michael C. Barron, Baton Rouge, for defendant-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   PRICE, Judge.

This case was tried in connection with Ussery v. State of Louisiana Through the Department of Public Safety, 388 So.2d 134 (La.App.2d Cir. 1980). Plaintiff’s demand for a restricted driver’s license under La.R.S. 32:415.1 was rejected upon a finding that he had received a prior license suspension under R.S. 32:414B(2). Since the issues involved are identical to those raised in Ussery, we affirm the judgment for the reasons stated in that opinion.


text:
    Ricky L. WALKER, Plaintiff-Appellant, v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY LICENSE CONTROL AND DRIVER IMPROVEMENT DIVISION, Defendant-Appellee.
    No. 14201.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.
    Guerriero & Anzalone by Rick C. Anza-lone, Monroe, for plaintiff-appellant.
    Michael C. Barron, Baton Rouge, for defendant-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   PRICE, Judge.

Plaintiff appeals a judgment denying his demand for a restricted driver’s license under La. R.S. 32:415.1. The trial court rejected his demand on a finding that he had received a prior license suspension under R.S. 32:414 B(2) and was therefore not entitled to the relief sought.

Since the issues involved on this appeal are identical to those raised in Ussery v. State of Louisiana Through the Department of Public Safety, 388 So.2d 134 (La. App.2d Cir. 1980), we affirm for the reasons set forth in that opinion.


text:
    Ernest D. PAULIN v. DEPARTMENT OF SANITATION.
    No. 11123.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 19, 1980.
    J. Courtney Wilson, New Orleans, for plaintiff.
    Michael Starks, Marc G. Shachat, New Orleans, for defendant.
    Before REDMANN, SCHOTT and SAR-TAIN, JJ.
   REDMANN, Judge.

Ernest Paulin appeals from the City Civil Service’s upholding his dismissal from the New Orleans Sanitation Department.

The record supports the commission’s findings, first, that appellant refused to work the “rough” garbage collection route assigned him when he arrived an hour or two late for work, and, second, that the following day, when he was told he could not return to work until he cleared it with the superintendent at City Hall, appellant threatened to “bust someone’s head” if he and his brother Lawrence (also fired but later rehired) were suspended or fired. (Appellant denied the threat but admitted cursing because he felt the supervisor was “aggravated” and was treating him unfairly and in an abusive tone of voice.)

There are some inconsistencies in the evidence. The hearing examiner expressed belief in appellant’s testimony that he did report to City Hall the second day but someone told him the superintendent was not in; the superintendent testified he did not even leave for lunch. (This may be explained by appellant’s earlier handwritten statement that he asked someone in the office whether the director or superintendent wanted to see him and his brother, and was told they did not.)

Another inconsistency is the direct conflict between appellant’s brother and the supervisor regarding the brother’s having telephoned the supervisor the first morning to advise they had awakened late and would arrive late.

One other inconsistency is that argued by appellant’s brother in his testimony:

I been with the city for four years, make no sense for me to call up there and go to the yard and refuse to go on a route. It’s easy for me to call up there sick and get a goose egg. You don’t get paid for the day and you can go the next day and pull a double [two routes of garbage collection], . . . All the time I double. . It don’t make no sense for me to jeopardize my job, you understand, to refuse to go on a route. I have been there too long.

Nevertheless, the conclusion is well supported by the testimony of the supervisor and two other witnesses that appellant did threaten to “bust someone’s head” or “bust some heads,” in response to his supervisory officers’ justifiable initiation of some administrative procedure which appellant feared might result in his suspension or discharge. If we were the department head we might have imposed a penalty other than firing-especially if we thought that appellant was as good a worker, as proud of his good work, as his brother appears to be. But we cannot say that a supervisor must tolerate threats of physical violence and we therefore cannot say that appellant’s firing was without sufficient cause, which is all that is required by La.Const. art. 10 § 8(A); Branighan v. Department of Police, La.App. 4 Cir. 1978, 362 So.2d 1221.

Affirmed.


text:
    Jessie L. Domingo, wife of/and Calvin J. NUNEZ v. STATE of Louisiana through DEPARTMENT OF TRANSPORTATION.
    No. 10980.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 25, 1980.
    Manuel A. Fernandez, Chalmette, for plaintiffs.
    Robert H. Marve, David K. Balfour, Dept, of Transportation and Development, Office of Highways of the State of Louisiana, Baton Rouge, for defendant.
    Before REDMANN, BOUTALL and CHEHARDY, JJ.
   REDMANN, Judge.

Afraid of colliding with a large trailer-truck, plaintiff edged off a narrow two-lane highway, driving 480 feet after first leaving the road on the north shoulder, returning to the roadway, back on to the north shoulder, then to the south shoulder and again back onto the south shoulder, coming to rest against a light pole. One might well conclude that plaintiff’s driving was not the most skillful. Nevertheless the conclusion is unassailable that the accident would not have happened if the road had smooth shoulders at the same level as the concrete road, as apparently required by Rue v. State, Dept. Hwys., La.1979, 372 So.2d 1197, which we follow in affirming the judgment appealed from.

The Department’s contention that the record does not support the factual conclusion concerning the condition of the shoulders is incorrect.

Affirmed.


author: BROOM, Justice, for the Court:

text:
    MISSISSIPPI POWER COMPANY v. Clarence E. McDONALD and wife, Ruth T. McDonald, et al.
    No. 52132.
    Supreme Court of Mississippi.
    Sept. 10, 1980.
    Tally D. Riddell, Riddell & Dabbs, Quit-man, for appellant.
    Robert E. Covington, Jr., Quitman, for appellees.
    Before BROOM, LEE and BOWLING, JJ.
   BROOM, Justice, for the Court:

Eminent domain proceedings were instituted by Mississippi Power Company (MPC) against Clarence E. McDonald and Ruth T. McDonald, husband and wife, in a Special Court convened in Clarke County, Mississippi. MPC took from the McDonalds a right of way easement 100 feet in width across two forties of land. During the trial, the entire court including the jury viewed the property after which the McDonalds were awarded a verdict and judgment for $20,-000. MPC has appealed contending (1) the jury award is excessive and against the overwhelming weight of the evidence and (2) the trial court erred in admitting the testimony of appraiser Jack Pogue whose testimony is unrelated to any comparable sale. We reverse.

The main part of the easement taken is a strip of land 100 feet in width extending 2,433.6 feet across two forties. MPC is to have a right to keep the 100-foot strip clear and cut danger trees from adjacent property. Upon the strip MPC is to have the right to erect certain structures: poles, wires, etc.

Consisting of 185 acres, the property of the McDonalds, according to them, is a highly developed homestead upon which 35 acres is devoted to bahia grass as improved pasture. Most of the remaining 150 acres appears to be given over to growing pine trees. The testimony shows that other improvements situated upon the property in the main are the following: (1) a 7 — year old residence; (2) a water well approximately IV2 years old; (3) a 560 square foot workshop; (4) a 420 square foot storehouse; (5) a 1,120 square foot pole shed; (6) a two-story 28 by 40 foot hay barn; (7) a mobile home; (8) a 220 square foot crib; (9) a IV2 acre cattle and fish pond; (10) a dam (broken in 1974) which created a 13 to 15 acre lake, and (11) approximately 6 miles of fencing and cross-fencing. A paved road bounds the property on the South, and there is another public road to the West. Testimony of the McDonalds is that the land, about four miles from Quitman, is largely high, dry and beautiful land suitable for recreation and rural homesites. Churches, schools, a community water system, and electric power are in the area.

Not counting the right to cut danger trees adjacent to the 100-foot strip, approximately 5.58 acres of land are involved. Although Mr. McDonald will not be permitted to grow trees on the strip or construct buildings on it, he may continue to use the surface of the land to a substantial degree. Apparently no fences are to be built along the right of way and it does not appear to cut off or divide the property.

The Farmers Home Administration has a deed of trust on the property, and the parties have stipulated that an agreement has been made as to the disposition of funds derived from this action.

Testifying as an expert witness for MPC was H. M. Brunson, a real estate broker with thirty years experience-twenty-five years as an appraiser. He said that the highest and best use of the property was as a farmstead which includes a home, a place for a garden, stock pond, a source of firewood, open land to raise cattle, timber for a cash product, and everything that a farmer could desire as a small farmstead without having a big operation. After making his appraisal, he arrived at a before and after value, taking into consideration all improvements and everything else on the property. In summarized fashion, his evaluation and estimate of damages appear subsequently herein along with that given by other witnesses.

Brunson’s testimony was related to comparable sales of land, and he valued the land generally at about $800 per acre. A nice stand of timber is on the land according to McDonald. Brunson opined that the McDonald property would cost too much to develop for a subdivision in order to build homesites thereon.

Also testifying for MPC was Frank A. McLendon, an experienced appraiser, who had appraised for governmental agencies in the past. This witness related his testimony to recent comparable sales and stated that the power line would not affect the lake which had previously existed on the property before the dam deteriorated. According to him, some of the land would be suitable for homesites along the paved highway but parts of the land were unsuitable.

The landowner, Mr. McDonald, testified. In general, he established the physical attributes of the property, and stated that he cleared some of the land and planted pines. Marion Phillips, a graduate forester, testified for the McDonalds. His testimony was mostly general in nature and did not get at the value proposition. The main testimony given on behalf of appellee as to value was that of Jack Pogue, a bank vice-president who appraises real estate for the bank. He testified that the highest and best use of the property would be to divide it into three-acre homesites. He said the land could feasibly be divided into such home-sites valued at $7,500 each. In computing his values, he said that he was not considering the land as 5.58 acres but was considering 16.5 acres because the guy lines extend 30 feet off the right of way and he also bases his value on the danger tree aspect of the case.

Summarized, the testimony of the chief witnesses concerning value and damages may be stated as follows:

For MPC:

Value Before Value After Resulting Damage

H. M. Brunson, Appraiser

$180,500.00 $173,737.00 $6,770.00

(Rounded off)

Frank A. McLendon, Appraiser and Local Landowner

$150,000.00 $144,368.80 $5,631.20

For Appellees:

Clarence E. McDonald, Owner

$491,000.00 $424,000.00 $67,000.00

Jack Pogue, Local Bank Vice-President

$450,000.00 $400,000.00 $50,000.00.

Our view upon the whole record is that the amount of the verdict is excessive and not responsive to the evidence. It is undisputed that in taking the easement, MPC will not destroy or cause to be destroyed any of the improvements upon the Mc-Donalds’ property. Apparently, the use of any of the improvements will not be substantially hindered or impaired. The expert testimony given on behalf of MPC is based upon logic and is related to comparable sales giving due consideration to the entire context of the case presented by the testimony. We think the record is clear that only 5.58 acres will actually be taken by MPC for its fight of way to be cleared of all timber and trees although MPC will continue to have the right to cut danger trees from adjacent land. Landowner McDonald and his witness Pogue indicated that MPC was actually taking a strip 300 feet wide or 16.5 acres and not 5.58 as was insisted upon by the MPC witnesses. MPC’s witness Brunson gave the highest and best use of the property as a place for a home, garden, and cattle and timber raising activities. Its witness McLendon considered timber growing, cattle grazing, and farming as the highest and best use of the property. Landowner McDonald did not give precise testimony as to the highest and best use of the property while on the witness stand, but his statement of value filed indicated his highest and best use would be for rural homesites and recreational purposes. His witness Pogue testified that the highest and best use would be for three-acre homesites valued at $7,500 each.

It is highly significant that neither landowner McDonald nor his witness Pogue adequately related their evaluations to comparable sales within the area. We are unable to find, and the landowner has failed to point out testimony in the record, as to how their witnesses arrived at the evaluations they gave on the property so far as comparable sales and relevant information are concerned.

Similar questions were at issue in Miss. State Hwy. Comm. v. Valentine, 239 Miss. 890, 894-5, 124 So.2d 690, 692, 693 (1960). Valentine states:

The witnesses for the Commission were qualified and experienced appraisers, and gave a reasoned analysis of the basis of their valuations. On the other hand, the witnesses for appellees had relatively little experience in property appraisals, and failed to give any substantial reasons to support their extremely high estimates of the value of this 138-aeres cattle farm before the taking, or of the damages.
* * * * * *
However, the test is the fair market value of the land before and after the taking, and does not include the highly speculative and uncertain profits which may be derived from a business. Mississippi State Highway Commission v. Rogers, 236 Miss. 800, 112 So.2d 250 (1959); Mississippi State Highway Commission v. Ellzey, 237 Miss. 345, 114 So.2d 769 (1969). Neither of appellees’ witnesses could give any comparable sales of reasonably comparable property in the area to support their appraisals.
* * * * * *
The gross excessiveness of these figures and the jury’s verdict becomes particularly apparent when it is noted that no improvements whatever are taken, except some undescribed fences; and appel-lees’ witnesses could give no comparable sales to support their appraisals. (Emphasis added).

Also in point in Miss. State Highway Comm. v. Baker, 241 Miss. 738, 742, 133 So.2d 277, 278 (1961). There the Highway Commission was condemning land outright but taking none of the improvements situated upon the land although it would be necessary to construct some new fences. Pertinent here is language of Lee, P. J., from Baker:

[B]ut it must be remembered that this land is 3V¡> miles from town. Consequently it cannot be viewed as townsite property. Moreover, the value of this acreage must be determined from the uses to which it is adaptable, namely, farming, raising cattle, and growing timber. The evidence did not show that the productivity of this land for its adaptable purposes warranted the values which were placed on it by the landowners’ witnesses.
******
■However, the witnesses for the landowners advanced no sound reasons to justify their astronomical figures either as to the value of the property or as to the damage which will result from this taking.

Based upon the scarcity of appropriate evidence as to values and damages on the part of the McDonalds’ witnesses, we think the amount of the verdict was not justified by the evidence, and retrial is necessary. At retrial care should be exercised to the end that expert witnesses on land values will relate their testimony to comparable land sales. Mississippi State Highway Commission v. Saulters, 195 So.2d 505, 506 (Miss.1967).

REVERSED AND REMANDED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE, BOWLING and COFER, JJ., concur.

PATTERSON, C. J., takes no part.


author: LEE, Justice, for the Court:

text:
    Ricky Allen BAUGH v. STATE of Mississippi.
    No. 52094.
    Supreme Court of Mississippi.
    Sept. 17, 1980.
    John M. Sekul, Lawrence Semski, Biloxi, for appellant.
    Bill Allain, Atty. Gen. by Wayne M. Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, BROOM and LEE, JJ.
   LEE, Justice, for the Court:

Ricky Allen Baugh was indicted and tried in the Circuit Court of the Second Judicial District of Harrison County, Honorable Kosta N. Vlahos, presiding, for the capital murder of William Ross Raney. The jury found Baugh guilty of capital murder, but, on the sentencing phase of the trial, was unable to agree upon a death penalty verdict. The trial judge sentenced him to life imprisonment in the state penitentiary, from which sentence and judgment he has appealed.

I.

Appellant first contends that the evidence was not sufficient to support the guilty verdict.

William Ross Raney lived in Bossier City, Louisiana and was a Master Sergeant in the United States Air Force. He left home on February 16,1979, in a green Dodge pickup truck with the destination of Mississippi Gulf Coast. He met the appellant and they were seen together drinking at Chris’s Lounge in Gulfport. They were joined by two other persons, one of whom was Ra-ney’s friend by the name of Dennis Stone-street. It developed that Raney had picked up appellant as a hitchhiker.

The men went to another bar, the Wildfire Lounge, where they had additional drinks, and Raney eventually left the group. In his truck were certain personal effects of the appellant, who became angry when he discovered that Raney had left. Appellant returned to Chris’s Lounge in search of Raney.

The next morning, Raney’s body was discovered lying face down in a vacant lot in Biloxi. There were deep cuts, abrasions and lacerations on Raney’s face, a bullet wound in the left side of the neck, which severed the jugular vein, and a severe wound on the back of the skull. According to a pathologist, the gunshot wound was the primary cause of death with the skull injury listed as a contributing cause. Ra-ney was highly intoxicated at the time of his death.

On February 18, 1979, a sheriff’s deputy in Valdosta, Georgia, saw appellant parked in the green Dodge pickup truck in an open field, and he questioned appellant about his presence there. Appellant was not arrested, but, after the sheriff’s office checked the identification of the pickup truck and found that it was stolen, the deputy returned to the place where appellant was and took him into custody. A search of the truck revealed items of personal property, consisting of a watch, necklace, a .38 caliber Smith & Wesson revolver, and considerable blood in the truck. Appellant also had a billfold which was subsequently identified as that of the deceased. The items of personal property belonged to the deceased, and the bullet removed from Raney’s body was identified as having been fired from the .38 caliber Smith & Wesson. There were three live shells in the cylinder and another shell which had been fired.

Under the above assignment, the appellant argues that the body was not identified as that of Raney. However, in questions throughout the trial, both by the prosecutor and defense counsel, the body was referred to as William Ross Raney, and was identified as such by witnesses quoting from other persons (hearsay evidence), which was not objected to. In oral argument before the jury, defense counsel referred to the body as that of Raney. Also, circumstantial evidence was overwhelming in identifying the deceased as William Ross Raney. Circumstantial evidence is sufficient to prove the identity of a deceased. Dooley v. State, 238 Miss. 16, 116 So.2d 820 (1960).

The evidence for the State (appellant introduced only one witness, Arthur Morrison, who simply testified that he recovered a suitcase of personal effects near Chris’s Lounge during the month of February, 1979, and the suitcase was identified as belonging to the appellant) was ample to support the jury verdict of guilty of capital murder. Warn v. State, 349 So.2d 1055 (Miss.1977).

II.

Appellant contends that the lower court erred in overruling his motion for a mistrial on the ground that he was denied cross-examination of State witness Duna-gan.

The State filed a motion in limine to prohibit defense counsel from questioning witnesses concerning an exculpatory statement given by appellant to Officer Duna-gan en route from Georgia to Biloxi. The statement was excluded by the lower court, but, at trial, defense counsel sought to question Dunagan as to the existence of the statement without going into the contents of same. The court refused to permit defense counsel to show the existence of the statement, since it held that the contents were not admissible. Counsel did not make a proffer of the evidence, and the record does not indicate what he intended to show by the existence of the statement. In Jones v. State, 342 So.2d 735 (Miss.1977), Jones contended that the trial court erred in refusing to admit in evidence an exculpatory statement to the police. This Court held that the statement was a self-serving declaration and was inadmissible. See also Cone v. State, 271 So.2d 453 (Miss.1973). The statement being inadmissible as a matter of law, reference to the statement was also inadmissible.

III.

Appellant next contends that the lower court erred in declining to grant a mistrial when the prosecution commented on the failure of the accused to testify.

The closing argument was not taken in shorthand by the court reporter. A tape recorder was used, but most of the argument was inaudible. That part which could be transcribed is questionable as to whether or not it constituted a comment on appellant’s failure to testify, and it appeared to be in answer to argument of appellant’s counsel. In Aldridge v. State, 180 Miss. 452, 177 So. 765 (1938), the Court held that such a comment must clearly appear from the record. There was no request for, or attempt to construct, a special bill of exceptions to show what was said and done. On the record, there is no way for this Court to consider that assignment, it not having been preserved for our consideration. Rhodis v. State, 349 So.2d 1046 (Miss.1977); Yates v. State, 342 So.2d 312 (Miss.1977); Saucier v. State, 328 So.2d 355 (Miss.1976).

There being no reversible error in the trial below, the judgment of the lower court is affirmed.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.

PATTERSON, C. J., took no part.


text:
    Billy Dale HILL v. STATE of Mississippi.
    No. 51863.
    Supreme Court of Mississippi.
    Sept. 17, 1980.

      Billy Dale Hill by William E. “Bill” Ware, Legal Intern, Parchman, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Sp'. Asst. Atty. Gen., Jackson, for appellee.
    Before BROOM, LEE and COFER, JJ.
   BROOM, Justice, for the Court:

Coram nobis relief was denied the appellant, Billy Dale Hill, by the Circuit Court of Calhoun County after Hill entered guilty pleas to indictments charging him with murder and forcible rape. Consecutive life term sentences without parole and probation were ordered. On appeal, Hill argues that (1) his attorney was incompetent and lacked proper interest in the case, (2) his sentences, “without parole and probation,” were erroneous, and (3) the court erred in its failure to inform Hill of the number of years he would have to serve before he would be eligible for parole and/or the severity of the two life sentences.

On September 5, 1974, Hill was charged with murder of 87-year old Minnie Hamilton for which he was tried, convicted and sentenced to death. On his appeal here, we reversed and remanded for a new trial. Hill v. State, 339 So.2d 1382 (Miss.1976). At the October 1977 term of the Circuit Court of Calhoun County, he was indicted for murder in Cause No. 3137 and forcible rape in Cause No. 3138. During that term, he (accompanied by his attorney who advised him) petitioned the court to accept his guilty pleas to the charges and enter pleas of guilty to both the murder and rape indictments. He was sentenced to life imprisonment for each of the two offenses which were ordered to run consecutively. Both orders stated that the sentence was to be “without probation or parole.”

Hill sought post-conviction relief by way of his petition for writ of error coram nobis. After an evidentiary hearing, the lower court denied Hill the relief he sought. The state here on this appeal waives any procedural irregularities with respect to the perfection of the appeal and Rule 38 requirements [Baker v. State, 358 So.2d 401 (Miss. 1978)].

We find no merit to Hill’s contention that he was without effective counsel. “[0]ne accused of crime has as much right to confess his crime as he has to' conceal it by silence, provided he has competent advice.” Yates v. State, 189 So.2d 917, 921 (Miss.1966). As was true in Yates, at 920: “It is apparent to this Court that the plea of guilty was part of the strategy to save applicant’s life.” Months before Hill was last convicted upon his guilty pleas, he received a letter from his court-appointed counsel which reads:

This is just a note to let you know that Mr. Chandler, Mr. Crocker and I will be coming to Parchman to talk to you about your case on Monday morning, January 31, 1977. We will probably try to arrive at approximately 10:30 in the morning.
It is my understanding that the state’s attorney is willing to waive his right to seek the death penalty against you if you will enter a plea of guilty to murder and rape separately and accept two life sentences, to run consecutively. I am aware of the feelings which you expressed in your last letter to me. I think you should be very much aware of the possibility that, if you do not agree with this proposal, you will be retried, reconvicted, and resentenced to death.
Please think about this so that we can discuss it with you very, frankly and fully on Monday morning.
(Emphasis supplied).

Stewart v. State, 229 So.2d 53, 55 (Miss. 1969) held that “where a prisoner is being tried for his life he is entitled to effective assistance of attorneys . . . .” In Stewart, Justice Rodgers quoted from Judge Taylor’s opinion in Smotherman v. Beto, 276 F.Supp. 579, 586 (5th Cir. 1967):

When the adequacy of a defense rendered by an attorney is subjected to attack, the relevant consideration is not whether the case was lost where it could have been won, but whether counsel “stood still and did nothing, . . .” to the extent that his representation failed to render reasonably effective assistance to the accused. .

Attorney Robertson was astute and active in defense of Hill prior to the October 1977 trial date and filed the following petitions and motions: a pleading styled “Plea of Not Guilty by Reason of Insanity”; a “Motion for Special Venire” and a “Motion for Change of Venue.”

Attorney Robertson demonstrated very adequate dedication and professionalism in his representation of Hill. By making Hill aware of the realistic possibility that the jury might find him guilty of capital murder, Attorney Robertson impressed upon Hill that he should carefully weigh his alternatives. Hill faced two real alternatives: a life sentence or death in the gas chamber. As noted by this Court in Hill v. State at 1385, supra:

This 18-year-old defendant was charged with the commission of a horrible and heinous crime, the crime of murdering an 87-year-old woman by stabbing her five times while committing the crime of rape. Her home had been broken into and her completely nude body was found early the next day in a pool of blood. The defendant could suffer death for this crime .

On the occasion of Hill’s guilty pleas, his attorney stated:

MR. ROBERTSON: This morning, Mr.. Newlin, and I visited with the Defendant, Billy Dale Hill, in Oxford in the Lafayette County Jail, for a substantial period of time and discussed this entire matter with him at length. Then this afternoon, after he was frought [sic] here to the Courthouse, we met with him and we also met with his parents and discussed the matter again. We have, on prior occasions to today, discussed the various alternatives that he has before him, and I can state for myself, and I am satisfied Mr. Newlin will join in this, that its [sic] our opinion that the Defendant fully understands the consequences of the plea he is entering and that the plea is being entered freely and voluntarily.
THE COURT: Call 3137, State versus Billy Dale Hill, charge of murder.
MR. ROBERTSON: Your Honor, the Defendant wishes to offer a plea of guilty to the charge, and we have a written petition prepared and signed by the Defendant, and Mr. Newlin and I as his attorneys, ahve [sic] also joined in the petition. Like to present that to the Court at this time.
THE COURT: All right, sir. Mr. Hill, did you go over this petition with your lawyers?
MR. HILL: Yes, sir.
THE COURT: Do you feel that you fully understand-
MR. HILL: Yes, sir.
THE COURT: -The proceedings that’s going on?
MR. HILL: Yes, Sir; I do.
THE COURT: Do you have any question that you desire to offer or ask the Court about concerning the matter?
MR. HILL: No, sir; I don’t.
THE COURT: Now back in August 26th of his [sic] year, 1977, you were formally arraigned and entered a plea of not guilty to this charge. Now you have petitioned the Court today to accept a plea of guilty to the charge.
MR. HILL: Yes, sir.
THE COURT: Now if the Court accepts your plea of guilty, then there is [sic] some things that the Court wants to understand concerning this. Now if the Court accepts your plea of guilty, you are [w]aiving certain constitutional rights; have your lawyers advised you of this?
MR. HILL: Yes, sir; they have.
THE COURT: That you are entitled to the right of trial by jury with the aid of your lawyers, and it takes a unanimous verdict in order to bring in a verdict of conviction, and you understand you are waiving that?
MR. HILL: Yes, sir.
THE COURT: And they fully explained to you the constitutional rights set out in the petition?
MR. HILL: Yes, sir;' they did.
THE COURT: Now has anyone forced you to do this?
MR. HILL: No, sir; no one.
THE COURT: No one; has anyone made you any promises to induce you to do this?
MR. HILL: No, sir; no one.
THE COURT: And you are doing it freely and voluntarily?
MR. HILL: Yes, sir; I am.
(Emphasis supplied).

Upon this record, there can be no merit to Hill’s argument that his attorney was “incompetent and had no interest. . . .”

The state in its brief concedes that “the portions of the judgments that read ‘without probation or parole’ are of no legal effect.” Cain v. State, 337 So.2d 935 (Miss. 1976); Miss.Code Ann. § 47-7-3 (Supp. 1979). Accordingly, we hold that the “without probation or parole” language of the orders appealed from are lacking in legal effect in this case and will be deleted by order of this Court to be entered here.

Hill seems to take the position that his guilty pleas were coerced on account of the fact that his attorney advised him that another jury trial could again result in a guilty verdict and death penalty. This proposition is totally lacking in validity. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

In conclusion, we note that the trial judge was careful to explain to Hill that he was waiving “constitutional rights.” Clearly developed by the judge’s questioning of Hill is the fact that Hill was not forced or induced to plead guilty. Hill clearly stated to the sentencing judge that he freely and voluntarily pleaded guilty, and we find no reversible error in the record although the “without probation or parole” language will be deleted from the orders of conviction before us.

AFFIRMED; ORDER TO BE ENTERED HERE DELETING LANGUAGE FROM ORDERS OF LOWER COURT.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE, BOWLING and COFER, JJ., concur.

PATTERSON, C. J., took no part.