author: DENNIS, Justice.

text:
    STATE of Louisiana v. Stanley J. BARON.
    No. 81-KA-2626.
    Supreme Court of Louisiana.
    June 21, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, John Sinque-field, Asst. Dist. Attys., for plaintiff-appel-lee.
    William D. Grimley, Baton Rouge, for defendant-appellant.
   DENNIS, Justice.

Defendant, Stanley J. Baron, was convicted by a judge of conspiracy to commit aggravated arson, La.R.S. 14:26; 51, and sentenced to a suspended four-year term of hard labor imprisonment subject to five years’ probation conditioned upon his incarceration for one year in jail. Defendant appeals and files six assignments of error.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the evidence was constitutionally insufficient to support a conviction. We reject this argument as being wholly without merit. There was abundant evidence that the defendant conspired with two other persons to fire bomb the house trailer in which his wife was residing with her parents and that defendant’s co-conspirators actually set fire to the trailer while people were inside. Although the defendant was not present when the fire was set, he knew that his wife and her parents resided in the trailer and that there was a good possibility they would be inside when the fire was set.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the statute defining the crime of aggravated arson is unconstitutionally vague. This assignment is without merit.

At the time of the offense, La.R.S. 14:51 provided that aggravated arson is “ * * * the intentional damaging by any explosive substance or the setting fire to any structure ... or movable whereby it is foreseeable that human life might be endangered.” La.R.S. 14:2(5) provides that, in the criminal code, the word “foreseeable” refers to “that which would ordinarily be anticipated by a human being of average reasonable intelligence and perception.” This is the sense in which the word foreseeable is commonly understood. Accordingly, the criminal code makes punishable as aggravated arson the intentional setting fire to any structure or movable whereby a person of reasonable intelligence and perception would anticipate that human life might be endangered. These terms are not too vague to serve as a constitutionally adequate definition of a crime. The constitutional guarantee that an accused shall be informed of the nature and cause of the accusation against him requires that penal statutes describe unlawful conduct with sufficient particularity and clarity that ordinary persons of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto. State v. Payton, 361 So.2d 866 (La.1978). The aggravated arson statute complies with this safeguard.

ASSIGNMENT OF ERROR NO. 3

Defendant contends that this court in State v. Bonfanti, 254 La. 877, 227 So.2d 916 (La.1969) construed the aggravated arson statute to require that the offender must be present at the setting of the fire in order to be guilty of the crime. Defendant’s interpretation of the opinion is incorrect. In Bonfanti this court held that aggravated arson includes “acts of setting fire to a building or movable ... which is either occupied or so located that persons might be physically present in or near it when the fire commences and their lives endangered; and that it was not the intention of the legislature by the most recent enactments to enlarge coverage to those who might voluntarily come to the scene of the fire after it has been started.” Id. 227 So.2d at 917. The limiting construction of the statute relates to the proximity of possible victims at the time the fire is set, not to the whereabouts of the arsonist.

ASSIGNMENTS OF ERROR NOS. 4, 5 and 6

We have reviewed these assignments and find that they lack any merit. Defendant failed to preserve assigned error number four for our review by his failure to object to the trial court’s ruling. The sentence is clearly not excessive, and the trial judge’s sentencing choice is clearly illumined by the record. The defendant’s complaint of ineffective assistance of trial counsel, assigned as error number six, is not considered in this review, but defendant may urge it in seeking a post-conviction remedy.

NEW TRIAL MOTION

After oral argument in this court the defendant filed a motion for a remand of the case to the trial court for its consideration of a motion for a new trial based on newly discovered evidence. Defendant filed the new trial motion as part of his request for remand.

We reject the motion to remand because the new trial motion is clearly without merit. A new trial shall be granted when new and material evidence that, notwithstanding the exercise of reasonable diligence by defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it probably would have changed the verdict or judgment of guilty. La.C.Cr.P. art. 851. In his new trial motion, defendant asserts that he has discovered since trial that his co-conspirators made two statements prior to trial inconsistent with their testimony and that he has discovered a new witness who will provide an alibi for his co-conspirators. It is alleged that the co-conspirators first said the defendant "had nothing to do with the arson and later claimed he actually accompanied them to the scene before testifying that he conspired to commit arson without participating in the actual setting fire to the trailer. Even assuming the exercise of reasonable diligence, it is clear that if the evidence had been introduced at trial it is not probable that it would have changed the judgment of guilty. The evidence is overwhelming that the defendant instigated the aggravated arson as a means of vengeance against his wife and her parents. The co-conspirators, who had no motive for the offense other than compensation by the defendant, confessed to the crime, pleaded guilty to aggravated arson, and testified convincingly against the defendant at his trial. Our review of the entire record convinces us that it is highly improbable the alleged newly discovered evidence described in defendant’s motion would have caused the trial judge to acquit the defendant.

The defendant’s conviction and sentences are affirmed.

AFFIRMED.

       Judges Israel M. Augustine, Jr. and Philip C. Ciaccio of the Court of Appeal, Fourth Circuit, and H. Charles Gaudin of the Court of Appeal, Fifth Circuit, participated in this decision as Associate Justices pro tempore, joined by Justices Calogero, Dennis, Watson and Lemmon.


source: Caselaw Access Project

author: H. CHARLES GAUDIN, Justice Pro Tempore.

license: Public Domain

text:
    STATE of Louisiana v. Jessie GREEN.
    No. 81-KA-2661.
    Supreme Court of Louisiana.
    June 21, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., William Weatherford and Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
    Frank Saia, M. Michele Fournet, David Randall Buckley, Baton Rouge, for defendant-appellant.
   H. CHARLES GAUDIN, Justice Pro Tempore.

Jessie Green was convicted of first degree murder of his common law wife, Katie Riley, and sentenced to life imprisonment without benefit of probation, parole or suspension of sentence.

He had tried unsuccessfully to convince a 12-person jury that there had been sufficient provocation to justify a verdict of manslaughter.

Green bases this appeal on several remarks made by the prosecutor during rebuttal argument.

The facts are these:

Green and Ms. Riley lived together in Baton Rouge for approximately 11 years. On May 25,1979, Ms. Riley and three of her children, along with her brother and his girlfriend and another man named J. C. Moore, left in Moore’s automobile on a three-day trip to Ronleville, Mississippi, to visit Ms. Riley’s ill sister.

Moore was paid for the use of his car and he assisted with the driving.

The group returned to Baton Rouge on May 28th, and dropped Moore off at a community center before proceeding to the apartment where Green and Ms. Riley lived. Green was waiting in the doorway, holding a pistol.

Kayree Riley, the victim’s 14-year-old daughter, described the confrontation:

“He told my momma, he said, ‘I heard about you and your nigger,’ like that. And my momma said, ‘who told you them damn lies?’ And so he said, ‘who told you your damn lies?’ So he started shooting my momma.”

The first shot struck Ms. Riley in the abdomen and she fell. She rose and stumbled from the apartment but she was shot several more times, in her back and in a leg. She continued to the balcony where she was shot for the final time.

A total of thirteen witnesses testified during the trial, including the defendant.

The prosecutor spoke first during closing arguments pointing out to the jury the nature of the evidence tending to show first degree murder. He also downplayed Green’s manslaughter contention, saying that there had been no proof of any misconduct or provocation on Mrs. Riley’s part.

Green’s attorney, Frank Saia, argued that Ms. Riley, upon reaching the apartment, had told Green that she was having an affair with another man and that Green “blew up.” A heated argument ensued, Green had said, and then he shot Ms. Riley.

Referring to the fact that the State’s witnesses had given very similar versions of the shooting incident, Green’s attorney said:

“... Kitty, Kay, Marie, Dorothy Holiday, Johnny, their stories are remarkably consistent right down the line like little ducks, you know, in a row.”

He then pointed out that there had been a two-year delay before Green’s case came to trial, and only after the matter had been submitted to two grand juries. “We know,” defense counsel said, “that this is not the normal course when you’ve got a gut cinch first degree murder case with a cold-blooded murderer to run and take it to two grand juries, but I’ve got evidence of that, why this case is not your normal average cold-blooded first degree murder case because they waited two years to prosecute. They run these people in and out of her fast when they’ve got good cases ...”

In rebuttal, the prosecuting attorney said this:

“Mr. Saia says that all the State’s witnesses are lying because they all say the same thing. I tell you what I will challenge him to do. I’ve got a tape I made of every one of these witnesses the afternoon of that crime on May 28th. If he wants to join with me and let’s play that tape — let’s see how it compares with what they testified to in court ...”

Defense counsel objected and, out of the jury’s presence, requested a mistrial because the prosecutor was “. .. intentionally arguing evidence that is not before this jury.”

In response, the prosecutor stated that he had “... the right to rebut whatever he (Saia) said in his closing argument.”

The trial judge denied the motion for a mistrial, and after the jury returned to the courtroom they were told by the judge:

“Ladies and gentlemen of the jury, prior to continuing in this matter you will hear me repeat later but you should keep in mind preliminary instructions I gave you prior to trial that the remarks that these attorneys make are not evidence. They are merely intended to help you in understanding their contentions.”

Later in the rebuttal argument, the prosecuting attorney tried to explain why it had taken two years to bring the defendant to trial.

The prosecutor said:

“He (Saia) then said that the State does not think much of this case because it took them two years to prosecute it. That’s the biggest laugh in the world. This man has had three different lawyers. The record reflects it has been set for trial on about four times, three times his own lawyer didn’t show up for court. We couldn’t find him. We had the sheriff out for him one time. We had a warrant for him. Finally he was convicted of some crime over in New Roads somewhere, stealing money or something. I don’t know what it was. And finally Mr. Saia and them were appointed to represent him.”

Objection was made and Mr. Saia again asked for a mistrial. Following argument outside the jury’s presence, the trial judge denied the mistrial request and, when the jury was again seated, said:

“Ladies and gentlemen of the jury, you are once more reminded that the remarks of these attorneys are not evidence, and when you consider your verdict you shall consider only the evidence.”

While this Court has never condoned improper closing arguments, we recognize the fact that there was serious first degree murder evidence against Green and we are not convinced that the prosecutor’s comments contributed to the verdict. See State v. Dupre, 408 So.2d 1229 (La.1982), State v. Monroe, 397 So.2d 1258 (La.1981) and State v. Hicks, 395 So.2d 790 (La.1981).

We also acknowledge the common sense and fairmindedness of jurors and their ability to distinguish meaningful evidence from unwarranted comments.

Nonetheless, as this Court has repeatedly stated, prosecutorial misconduct that affects verdicts will not be tolerated and will result in reversals of convictions.

Each case concerning alleged impropriety during closing arguments is different from all others and must be individually evaluated. What we are saying in the instant case is that the prosecuting attorney’s remarks, considering the trial in its entirety and the comments themselves, were not of such inflamatory nature as to have a prejudicial impact on the jury. Otherwise stated, the verdict would have been the same had not the prosecutor made the remarks complained of.

Although the trial judge’s admonitions following both of the objected-to comments were not as strong as defense counsel contend they should have been, they did inform the jury that the remarks were not evidence.

The trial judge was of the opinion that Green received a fair trial, and so are we. Therefore, the defendants conviction and sentence are affirmed.

       Judge H. Charles Gaudin of the Court of Appeal, Fifth Circuit, and Judges Israel M. Augustine, Jr. and Philip C. Ciaccio of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Ad Hoc joined by Justices Calogero, Dennis, Watson and Lem-mon.

      . LSA-R.S. 14:30

      . LSA-R.S. 14:31

      . See State v. Wilson, 404 So.2d 968 (La.1981).


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Steven Glenn HOLLIE.
    No. 81-K-2703.
    Supreme Court of Louisiana.
    June 21, 1982.
    Kenneth E. Badon, Gerald J. Casey, Lake Charles, for relator-defendant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard Knapp, Dist. Atty., Abbott J. Reeves, George Perez, Eugene Bouquet, Asst. Dist. Attys., for respondent.
   CALOGERO, Justice.

In this matter, defendant Steven Glenn Hollie attacks his conviction on two counts of cruelty to animals. He claims that the state introduced insufficient evidence for the trial judge to have found him guilty. Because we agree that the totally circumstantial evidence does not exclude every reasonable hypothesis of innocence, we reverse defendant’s convictions and sentences and order him released.

By bill of information the state charged defendant with two counts of cruelty to animals in violation of La.R.S. 14:102. Following a bench trial, the judge found defendant guilty as charged, sentenced him to ten days in the Calcasieu Parish Jail and imposed a fine of $100.00 for each count with the sentences to run concurrently. We granted defendant’s application for review. 409 So.2d 652 (La.1982).

This misdemeanor prosecution required four days to try and involved testimony from fifteen state and six defense witnesses. Among the witnesses were firearm experts and a special agent for the United States Fish and Wildlife Service. The complainant (and state’s principal witness) and the defendant are related (cousins) and apparently had some prior differences. The case was vigorously tried by both sides.

The incident which led to this prosecution happened when defendant, his brother and a Houston doctor friend were hunting ducks in Calcasieu Parish. It involved the shooting of three hunting dogs owned by David Wayne Gillis. The prosecution’s chief testimony came from Gillis, the complainant and owner of the slain dogs. It is Gillis’ testimony, coupled with some physical evidence, which makes out the best case for the state. Since, as will be seen, this case involves only circumstantial evidence and defendant questions the sufficiency of that evidence (Jackson v. Virginia, 443 U.S. 309, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we will proceed to discuss Gillis’ testimony first with an eye toward determining whether, accepting this testimony and the other evidence, the state has proven enough to support a conviction under Jackson v. Virginia.

At trial Gillis related that he had gone hunting deer on the morning of December 27, 1980, taking with him four dogs trained to trail deer. One dog, Pooch, “hit a hot trail ... and bellowed.” The other dogs joined in the chase and began following the deer. Gillis estimated that he was three to four hundred yards from the dogs when he heard shooting. He first heard two shots quickly followed by three more shots. According to Gillis the dogs became silent and he presumed that someone had killed a deer. Gillis said that the area was rather brushy and as he came out into an open area he saw two men standing fairly close to one another. Gillis called out to inquire whether the men had gotten the deer. As Gillis approached the men, he recognized them as defendant Steven Hollie and defendant’s brother Ronald Hollie.

Gillis testified that he informed the Hollie brothers that his dogs had been “running” the deer and Ronald Hollie responded that the three of them would therefore share the deer. Gillis suggested that they skin the deer in the woods and the Hollies instructed him to “go off over yonder,” and they would skin the deer. Gillis protested that he would not leave the area and instead began looking for his dogs. He found one of his dogs lying dead about fifteen feet from the deer. Gillis said that he shifted his gun from one hand to another when he saw the dead dog and then looked up to see both of the Hollie brothers pointing their guns at him. Gillis accused them of shooting his dogs and continued to look for his other dogs. He located Pooch behind a tree. At this point, Ronald Hollie said that they were leaving and the Hollie brothers backed out of the area. Gillis remained with the dogs for a while and then went to the weigh station at Starks to call the law. When he arrived at the station, he met the authorities, who were coming to locate him after having been informed by the Hollie brothers that Gillis had stolen their deer and threatened their lives.

Ronald Hollie, called by the state, said that he, his brother and Dr. Farrell had been hunting ducks on December 27. After reaching their limit of ducks, they heard dogs running a deer and Ronald and Steven took up a “stand” to await the deer. Ronald related that the deer came past and he heard three shots as Steve shot the deer. Ronald said that he was about sixty yards from Steve and that he (Ronald) did not shoot at the deer. After the shooting of the deer, Ronald no longer heard the dogs which had been chasing it. Ronald testified that he arrived at the location of the deer approximately the same time as did Gillis. Ronald denied seeing any dead dogs in that area and initially stated that Gillis had not accused them of killing his dogs. After his attention was directed to a statement made shortly after the incident, Ronald remembered that Gillis “might have said something about dogs when we were backing off.”

Defendant testified in his own behalf. He stated that he and his party heard the dogs chasing the deer and decided to take a “stand” in hopes that one of them could “get a shot at a deer.” The three men positioned themselves in different locations and, when the deer came through the woods, defendant shot the animal. Defendant said that he shot three times rapidly and the deer fell with the third shot. Defendant denied seeing any dogs other than his own Labrador. Defendant related that, as Ronald was trying to get their dog to stop chewing on the deer, Gillis came through the woods with his gun pointed in their direction. According to defendant, Gillis threatened to “kill us and leave us out there in the swamps ...” Defendant and his brother backed away from the encounter. As they were leaving, Gillis asked which way his dogs had gone. Defendant replied that he had not seen Gillis’ dogs. Defendant, his brother and Dr. Farrell left the area, went to defendant’s house, and then informed the sheriff of the threat. Defendant denied that Gillis had ever accused him or his brother of killing the dogs.

Dr. Farrell, the third member of defendant’s hunting party, testified that the three of them had gone duck hunting on December 27. On the way back from the hunt, the three heard what the doctor termed “a large group of dogs” which he supposed was “running a deer.” The three separated because the Hollie brothers wanted to see if they could get a shot at the deer should it come by. The barking got louder and then the doctor heard a volley of three to four shots. The witness stated that then he heard Steve Hollie yell that the deer was down. Next the witness heard a loud argument about whose deer it was. At no time did the doctor hear anything said about dogs, either during the encounter in the woods or as the three were returning to the Hollie home. When questioned about the sequence of shots and the barking of the dogs, the doctor stated that the barking stopped before the shots were fired and that he did not hear the dogs barking again after the shots.

After Gillis related to the sheriff that his dogs had been killed by the Hollie brothers, he accompanied law enforcement officials back to the site of the shooting. On this trip Gillis found another of his dogs lying dead in the branches of a fallen tree. The fourth dog was never found.

Defendant contends that the state’s evidence was insufficient for the trial judge to have found him guilty of killing the dogs beyond a reasonable doubt. Under Jackson v. Virginia, supra, an appellate court is to view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. In this case the state presented only circumstantial evidence, there being no eyewitness testimony account of the shooting. Regarding circumstantial evidence, La.R.S. 15:438 sets forth the rule that, in order to convict, the evidence must exclude every reasonable hypothesis of innocence.

As we said in State v. Austin, 399 So.2d 158, 160 (La.1981):

when we review a conviction based upon circumstantial evidence we must determine that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded.

As already noted, there was no eyewitness testimony or other direct proof that defendant shot the dogs, nor even that anyone in his party did. This latter statement, however, might be countered by Gillis’ testimony that, as he ran, he heard a series of two and then three shots which is concededly consistent with felling the deer and shooting three dogs. Even if we assume that this evidence proves that someone in the Hollie party shot the dogs (and even this is conjectural at best), we find that the circumstantial evidence is still insufficient.

The state’s evidence does not establish that defendant is the only person who reasonably could have shot the dogs. Gillis stated that when he found the two dead dogs both defendant, Steven Hollie, and Steven’s brother Ronald were in the vicinity and both were holding shotguns which they later pointed at him. Dr. Farrell had also been hunting with the Hollie brothers and Gillis referred to having seen another man as he followed the barking of the dogs to the location where he found the felled deer. Additionally, Gillis and the others all testified that there were a number of hunters in the general area that day. That Ronald Hollie, or another person other than defendant, might have shot the dogs, is a reasonable hypothesis. The circumstantial evidence accepted most favorably to the state was simply not sufficient for a rational trier of fact to have concluded beyond a reasonable doubt that every reasonable hypothesis of the innocence of defendant Steven Hollie had been excluded. Jackson v. Virginia, supra; State v. Austin, supra.

Decree

For the foregoing reasons, defendant’s convictions and sentences are reversed and the defendant ordered released.

REVERSED.

DIXON, C. J., concurs.

      . In this regard, it is important to note that all members of the Hollie party carried shotguns and were using number four buckshot. A ballistics expert testified that one fragment removed from one dog’s head weighed 37.5 grains which is heavier than the 20.5 grain weight of number four buckshot.

      . Nor can the state validly argue that minimally defendant Steven Hollie was guilty as a principal, in the event Ronald Hollie did the shooting. A principal “directly commit[s] the action ... aid[s] and abet[s] in its commission or directly or indirectly counsel[s] or procure[s] another to commit the crime.” La.R.S. 14:24. If Ronald Hollie did shoot the dogs, it is at least as plausible, if not moreso, that the senseless killing of the dogs was Ronald’s individual act rather than an act urged by, or done in complicity with his brother, Steven, the defendant.


author:
H. CHARLES GAUDIN, Justice Pro Tern.

      CALOGERO, J.,

text:
    STATE of Louisiana v. Charles Richard PARKER.
    No. 81-KA-2734.
    Supreme Court of Louisiana.
    June 21, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Abbott J. Reeves, Herbert R. Alexander, Peter J. Garcia, Asst. Dist. Attys., for plaintiff-appellee.
    Julian J. Rodrique, Covington, for defendant-appellant.
   H. CHARLES GAUDIN, Justice Pro Tern.

Charles Richard Parker, also known as Richard Parker, was charged by grand jury indictment with second degree murder in violation of LSA-R.S. 14:30.1. He entered pleas of not guilty and not guilty by reason of insanity.

On June 10, 1981, following a three-day trial, he was found guilty as charged by an 11-1 jury verdict, and sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

He has appealed his conviction and sentence, asserting 11 assignments of error.

FACTS

During the early morning hours of November 2,1980, defendant was playing poker at Dave’s Bar in Bush, Louisiana, with his brother, Maurice “Scotty” Parker Jr.; his father, Maurice Parker Sr.; and two others, Dwight Jones and Louis “Johnny” Fitzmorris.

Scotty, a paraplegic because of wounds received in a previous gun battle, was seated in a wheelchair at the card table.

An argument broke out between Richard and Fitzmorris over a suggestion that defendant was cheating. Scotty intervened, grabbing Richard with his left hand and striking him in the mouth with his right. The blow bloodied defendant’s mouth and loosened several teeth.

Richard pulled a .38 caliber Smith and Wesson pistol from his right boot and fired several shots into the floor, after which defendant and Scotty were involved in an altercation and Scotty’s wheelchair was tipped over. Richard left the poker room, returning in approximately 10 minutes.

Defendant’s father described what happened next:

“They commenced arguing then Richard says ... ‘Boy, look what you have done to my mouth,’ he says, ‘as much money as I have spent on you’ ... Scotty said, ‘why don’t you shoot me?’ ... And he also said, ‘Just blow my brains out.’ ” Richard then shot Scotty in the face three

times, killing him.

ASSIGNMENT OF ERROR NO. 1

By this first assignment of error, defendant contends that the trial court erred in limiting the scope of the voir dire examination.

Counsel for defendant, attempting to tell prospective jurors about how Scotty had become a paraplegic, said:

“By the way, his brother was a paraplegic. This will come out in the evidence. His brother had become a paraplegic several months before because of another gun battle that...”

The State objected at this point and the trial court sustained the objection.

In State v. Murray, 375 So.2d 80 (La.1979), cited favorably in State v. Robinson, 404 So.2d 907 (La.1981), this Court stated:

“Voir dire examination is designed to test the competency and inpartiality of prospective jurors and may not serve to pry into their opinions concerning evidence to be offered at trial.”

Further,

“It is well established that the scope of the voir dire examination is within the sound discretion of the trial judge and his rulings thereon will not be disturbed in the absence of a clear abuse of discretion.”

We find no abuse of discretion, and note that defense counsel was otherwise afforded wide latitude in questioning jurors regarding their competency and impartiality.

Also, in his opening argument, defense counsel spoke at length of Scotty’s violent propensities and the cause of his paralysis.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant argues that the trial judge should have ordered a mistrial after the prosecutor asked this question:

“Mr. Fitzmorris, have you ever heard Richard Parker’s reputation discussed in the community?”

Evidence of bad character can be introduced only in rebuttal of testimony showing good character, and defendant had made no effort to establish his good character. Defense counsel objected to the question and requested a mistrial.

The trial judge sustained the objection and was prepared to admonish the jury “... to disregard the question as if it was never asked.”

Defense counsel, however, wanted a mistrial not an admonition because the latter only “. .. gives the jury the impression we are trying to hide something from them...”

The trial judge would not declare a mistrial, and said to defense counsel that “... since you have requested the Court not to admonish the jury, the Court will accede to that request...”

While the inquiry concerning Richard’s reputation was improper, the question was not answered; and we cannot conclude either (1) that the trial judge abused his discretion in denying the motion for a mistrial and agreeing to admonish the jury or (2) that merely because the question was asked that defendant was prejudiced to the extent that he did not receive a fair trial.

The trial court’s ruling on a motion for a mistrial must reflect an abuse of its discretion before it will be disturbed on appeal. State v. Douglas, 389 So.2d 1263 (La.1980).

Here, we find no abuse.

ASSIGNMENT OF ERROR NO. 3

Defendant objected to the introduction of four photographs, contending they were inflammatory, gruesome, prejudicial and redundant, especially since there was no question as to the identity of the victim and the fact that the defendant killed him.

The photographs, three and one-half inches by three and one-half inches each, show Scotty slumped over in his wheelchair. They also show the card table, the smallness of the room in which the game took place and the arrangement of the chairs, and thus substantiate the testimony of prosecution witnesses.

The photographs are not particularly inflammatory or gruesome, in our judgment, even though they do show the bullet wounds, and trial judge did not abuse his discretion when he decided that their probative value outweighed any possible prejudicial effect.

ASSIGNMENT OF ERROR NO. 4

It is asserted in this assignment that the trial judge erred by allowing the State to introduce oral statements made by the defendant after the prosecution denied (1) the existence of any such statements and (2) that it intended to offer any such statements into evidence.

The defendant filed a motion for discovery and inspection and thereby asked for “... any oral confession or statement of any nature made by the defendant which the District Attorney intends to offer in evidence at the trial, with the information as to when, where and to whom such oral confession or statement was made.”

Also, the defendant requested “. .. any oral statement which the State intends to offer in evidence made by the defendant, whether before or after arrest, in response to interrogation by any person then known to the defendant to be a law enforcement officer...”

These requests track the wording of LSA-C.Cr.P. Art. 716. In response, the State said:

“We have none at this time.”

At trial, in rebuttal of defendant’s intoxication defense, the State produced an arresting police officer to testify about the defendant’s condition and state of mind while being booked at the Covington jail at approximately 5 a. m. The shooting had occurred between 3 and 4 a. m., according to the defendant’s father.

The prosecutor argued that at the time the response was made to the motion for discovery and inspection, he was unaware of the intoxication defense and did not intend to offer as evidence any colloquy between the booking officers and the defendant.

Further, the State contended that the conversation was not a part of any police interrogation, and that the statements of the defendant were neither inculpatory nor exculpatory.

Referring to the booking conversation, the prosecuting attorney said:

“. .. we did not intend to use those at the time, because we did not think there was any relevance to them, and could see no genuine purpose for bringing this information out.”

He said that the State did not know of the intoxication defense “... until we were brought into court yesterday, and during opening statements were informed that there was going to be a defense of intoxication.

The trial judge ruled the conversion admissible, and the officer described how the defendant had quickly and accurately counted out the sum of $2,289.00 he had on his person.

In making his ruling, the trial judge said, . . First of all, there was no interrogation.

Further:

“At the time this was answered, the intoxication was not a defense, and it was not relevant at the time. It would fit under the broad category of statements of any nature, which this Court doubts very seriously. The Court does not feel like the Legislature would put this type of burden on the State...”

We conclude, as did the trial judge, that the State was not bound to include the booking utterances in response to the motion for discovery and inspection because:

(1) That at the time the answer to the motion for discovery and inspection was prepared, the State did not intend to use this evidence at trial; and

(2) The statements by defendant while being booked were not in response to police interrogation.

ASSIGNMENT OF ERROR NO. 5

The defendant requested the trial judge to read this special charge:

“Manslaughter, as defined in the law, and as it is applied to this case is defined as a homicide committed with the specific intent to kill or inflict great bodily harm, and further committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that an offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed.
“I charge you that you may consider the defendant’s state of intoxication in light of the degree of the provocation in considering whether his blood had actually cooled or an average persons blood would have cooled.”

It is admitted, in defendant’s brief, that the general charge sufficiently covered the first paragraph.

The trial judge disallowed the second paragraph, stating that it was an incorrect statement of the law, and instead gave this instruction:

“The fact that the defendant was in an intoxicated condition at the time of the commission of the crime is usually no defense.
“However where the circumstances indicate that the defendant voluntarily became intoxicated and that his intoxicated condition precluded the presence of a specific criminal intent required in a particular crime, this fact constitutes a defense to a prosecution for that crime.
“In order to convict the defendant of the offense charged, you must find beyond a reasonable doubt that he had a specific intent to kill or inflict great bodily harm. “Thus, if you find that the defendant was in such an intoxicated condition that he did not have the specific intent to kill or inflict great bodily harm required to commit second degree murder or manslaughter, you must find the defendant not guilty.”

The district judge’s instruction embodied the particulars of LSA-R.S. 14:15, which reads:

“The fact of an intoxicated or drugged condition of the offender at the time of the commission of the crime is immaterial, except as follows:
“(1) Where the production of the intoxicated or drugged condition has been involuntary, and the circumstances indicate this condition is the direct cause of the commission of the crime, the offender is exempt from criminal responsibility.
“(2) Where the circumstances indicate that an intoxicated or drugged condition has precluded the presence of a specific criminal intent or of special knowledge required in a particular crime, this fact constitutes a defense to a prosecution for that crime.”

This assignment is without substance.

ASSIGNMENT OF ERROR NO. 6

The defendant believes that insanity at the time the offense was committed had in fact been proved, mainly by competent medical evidence; and that, accordingly, the trial judge should have granted the motion for a new trial.

Three physicians testified, Drs. Samuel Andrews, Kenneth Ritter and Arthur Epstein.

Dr. Andrews, board certified in internal medicine, endocrinology and metabolism, examined the defendant on April 29, 1981, approximately six months after Scotty was shot, and concluded that defendant could have been suffering from hypoglycemia— an abnormally small concentration of glucose in the blood—in the early morning hours of November 2, 1980.

Dr. Ritter, a psychiatrist, saw the defendant for “... an hour to an hour and a half...” on May 21, 1981. In his opinion, based primarily on what the defendant told him, “... it’s certainly possible that the man did not know the difference between right and wrong at the time.”

Asked on cross examination if he can “... say for sure what condition...” defendant was in, Dr. Ritter said:

“No, sir, I can not. It’s only from history that I obtained...”

The “history” Dr. Ritter relied on, as provided by the defendant, was that he (the defendant) had been drinking for at least 12 hours, that he had been smoking marijuana, that he had not eaten and that he was a diabetic and had not taken his prescribed medicine.

Dr. Epstein, an expert in psychiatry and neurology, also saw the defendant only one time, on May 25, 1981, for two hours. In response to an elongated hypothetical question, Dr. Epstein stated “... that the probability is that he did not know right from wrong.”

However, on cross examination, Dr. Epstein said that if the defendant was neither intoxicated nor in a hypoglycemic state on November 2, 1980, “... I think he would know what he was doing.”

To be exempted from criminal responsibility on the grounds of insanity, a defendant must persuade the jury that he had a mental disease or defect which rendered him incapable of distinguishing right from wrong with reference to the conduct in question.

Here, the jury considered the medical evidence along with the lay testimony and the remainder of the evidence, and decided that the defendant had failed to prove by the necessary preponderance that he was insane or even intoxicated at the time of the offense. The trial judge agreed with this conclusion, as evidenced by his denial of the motion for a new trial.

After reviewing the record, we cannot say that the jury and trial judge were wrong. A rational, objective fact-finder could well have concluded that the medical testimony,; while scholarly, was largely based on defendant’s self-serving revelations, and that it did not support the defendant’s insanity plea.

None of the testifying physicians had actually treated the defendant for any mental, emotional or physical ailment. They were consulted only for the purpose of appearing as expert medical witnesses.

Apparently, 11 of the 12 jurors were not impressed.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 7

The trial judge erred, this assignment contends, in not granting a new trial because one of the jurors, Malger Stilwell, originally denied knowing the defendant or his family but later admitted that he knew Maurice Parker Sr., defendant’s father.

Stilwell said at the motion for a new trial that he did not become aware that the defendant was Maurice Parker Sr.’s son until after he was sworn. He also stated that at the time the judge asked the jurors on voir dire if they knew the defendant, he was unaware of the relationship.

He further testified:

Q. The fact that you knew the Parkers, I mean, you knew the Parker family, is that—
A. No, huh-uh. You got it wrong.
Q. All right. Okay.
A. I knew Maurice. I didn’t know his family.
Q. All right.
A. I didn’t even know the man was married. I didn’t knew he had kids. And so, I didn’t have no relation with the family. Because, I tended to my business and got my drinks and I didn’t fool around Sun.
Q. When did you realize that Richard Parker was one of the Parkers, was related to Maurice?
A. The day that I sat right there in that chair.

Also, he testified that the fact that the defendant was Maurice Parker Sr.’s son had no effect on the way he judged the case.

As in State v. Prejean, La., 379 So.2d 240, the defendant could not show that the juror had answered falsely on voir dire. In the absence of such evidence, a new trial is not justified.

ASSIGNMENT OF ERROR NO. 8

Defendant contends that the trial judge should have advised him of his right to waive trial by jury, in accord with LSA-C. Cr.P. Art. 780.

However, lack of technical compliance with Art. 780 will not constitute reversible error, as this Court held in State v. Sharp, 338 So.2d 654 (La.1976).

As in Sharp, the defendant does not claim that he was unaware of this right, only that it was not properly explained.

Defendant had the assistance of effective counsel who was presumptively aware of the right to waive a jury, and chose not to do so.

ASSIGNMENTS OF ERROR NOS. 9 AND 10

Defendant contends that the mandatory imposition of a sentence of life imprisonment at hard labor without benefit of probation, parole or suspension of sentence for second degree murder constitutes cruel and unusual punishment.

This assertion has been consistently rejected by this Court. State v. Landry, 388 So.2d 699 (La.1980); State v. Daniel, 378 So.2d 1361 (La.1979); and State v. Brooks, 350 So.2d 1174 (La.1977).

Defendant further asserts that the mandatory sentence unconstitutionally denies the defendant the right to have the trial court exercise its discretion in imposing sentences under LSA-C.Cr.P. Arts. 893 and 894.1. The decision to assess mandatory life sentences for certain felonies is within the prerogative of the legislature. State v. Prestridge, 399 So.2d 564 (La. 1981).

These assignments lack merit.

ASSIGNMENT OF ERROR NO. 11

Finally, defendant contends that the responsive verdict scheme for second degree murder unconstitutionally deprives him of the right to have the jury consider verdicts of attempted second degree murder, attempted manslaughter and negligent homicide. The verdicts responsive to second degree murder are guilty, guilty of manslaughter and not guilty, reference LSA-C.Cr.P. Art. 814.

As the “Official Revision Comments” following Art. 814 suggest, the legislature carefully considered various responsive verdicts for each of the enumerated offenses, and specifically omitted “attempt” from the second degree murder responsive verdicts.

With regard to negligent homicide, the elements are not the same as those of second degree murder; therefore negligent homicide was not listed as responsive.

We find no constitutional problem with these legislative determinations, and dismiss this assignment of error.

As this Court said in State v. Marse, 365 So.2d 1319 (La.1979), a defendant’s ultimate protection is that if the State fails to prove the necessary elements of the offense charged or any of the offenses listed as responsive verdicts, the defendant is entitled to an acquittal.

Here the defendant could have been found not guilty, not guilty by reason of insanity or guilty of manslaughter if the jury chose to compromise.

CONCLUSION

For the reasons assigned, we are of the opinion that defendant Charles Richard Parker received a fair trial, and we affirm his conviction and sentence.

CALOGERO, J.,

concurs with respect to assignments of Error # 4 defendant’s statement was not introduced for its substantive content.

       Judge H. Charles Gaudin of the Court of Appeal, Fifth Circuit, and Judges Israel M. Augustine, Jr. and Philip C. Ciaccio of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Ad Hoc joined by Justices Calogero, Dennis, Watson and Lem-mon.

      . Actually from seven to 11 minutes, according to witnesses.

      . LSA-R.S. 15:481.

      . LSA-R.S. 14:14.

      . See LSA-C.Cr.P. art. 652.


author: H. CHARLES GAUDIN, Justice Pro Tem.

text:
    STATE of Louisiana v. Walter Hiram ALLEN, Jr.
    No. 81-KA-2752.
    Supreme Court of Louisiana.
    June 21, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Duncan S. Kemp, Dist. Atty., J. Mark Rolling, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    John I. Feduccia, Baton Rouge, for defendant-appellant.
   H. CHARLES GAUDIN, Justice Pro Tem.

Walter Hiram Allen Jr. was indicted by a Tangipahoa Parish grand jury for second degree murder and subsequently tried before a 12-person jury and unanimously convicted of manslaughter, a lesser responsive verdict. He had entered pleas of not guilty and not guilty by reason of insanity.

After being sentenced to 12 years at hard labor, he appealed both his conviction and sentence to this Court on the basis of five assignments of error.

FACTS

On September 13, 1980, defendant shot and killed Elmore McCarroll on a street in Independence, Louisiana.

Four and a half years earlier, on March 13, 1976, McCarroll had shot Allen in the head with a shotgun and left him for dead. Allen survived, and McCarroll was sentenced to five years at hard "labor for the incident.

The defendant said that when he saw McCarroll on September 13th “... it scared me ... I could tell by the way he was walking and the way he swaggered ... I can tell he was drinking ...”

Allen stated that McCarroll then “. .. jumped behind a car and he whirled around there ... and he used foul language at me

From the transcript:

Q. What foul language?
A. Well, I wouldn’t want to say what it was in court.
Q. I think you better go ahead and say it.
A. Well, he called me a hard name.
Q. I think you better go ahead and tell us what he said.
A. Uh, well, he said, “Hey, Mother Fucker”, that is what he said.
Q. Uh-huh. And what happened then?
A. He wheeled — he was wheeling — he had done wheeled around towards me and when he did that, I figured he was going to shoot me and I just threw my shotgun out and shot him.

ASSIGNMENT OF ERROR NO. 1

In his first assignment, defendant contends that the trial judge erroneously restricted voir dire examination.

Defense counsel asked a prospective juror this:

“Do you have any fears? Phobias? If you had been shot, could you understand the fear of being shot again?”

The prosecutor voiced an objection and it was sustained.

In State v. Murray, 375 So.2d 80 (La.1979), cited favorably in State v. Robinson, 404 So.2d 907 (La.1981), this Court stated:

“Voir dire examination is designed to test the competency and impartiality of prospective jurors and may not serve to pry into their opinions concerning evidence to be offered at trial.”

Also,

“It is well established that the scope of the voir dire examination is within the sound discretion of the trial judge and his rulings thereon will not be disturbed in the absence of a clear abuse of discretion.”

Here, we find no abuse of discretion.

ASSIGNMENT OF ERROR NO. 2

Defendant tried to introduce a photograph of himself prior to the time he was shot by McCarroll in 1976. The trial judge refused to admit it, saying it would not “... serve a specific purpose.”

Apparently, Allen’s counsel sought to use the photograph to help establish the insanity defense.

The State argued that the five-year-old photograph would only serve to arouse sympathy with the jurors.

While the photograph may help show the emotional trauma that defendant sustained, its probative value was questionable, particularly in view of the fact that defendant did not seriously try to show insanity at the time of McCarroll’s shooting. No medical witnesses were called.

The trial judge did not abuse his discretion, and this assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

By these assignments defendant argues that the trial judge erred in restricting his inquiry into McCarroll’s allegedly dangerous character.

Allen had two defenses, insanity and self-defense.

Defense counsel first tried to inquire into McCarroll’s character when questioning Curtis Haynes, a state probation and parole officer. The trial court said that there had been no showing of a hostile demonstration or overt act and he sustained the prosecutor’s objection.

LSA-R.S. 15:482 reads:

“In the absence of evidence of hostile demonstration or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible.”

Defense counsel, trying to convince the trial judge that the requirements of LSA-R.S. 15:482 had been satisfied, interrupted Curtis’ testimony and called the defendant to the stand and eventually asked him if he had “... ever received any threats or harassment ...” from McCarroll.

The State objected, again saying that there had been "... absolutely no showing of an overt act or hostile demonstration

The trial judge, outside of the jury’s presence, carefully considered the objection and overruled it, telling defense counsel he could proceed.

Defendant then told the jury at length how and why he felt threatened by McCar-roll, testimony that tended to establish McCarroll’s bad and/or dangerous character. Allen told about threats made by McCarroll and how McCarroll had stalked him.

Later in the trial, the judge permitted the defense to call a deputy sheriff who testified from records showing that McCar-roll had had two charges of aggravated assault filed against him, one with a .20 gauge pump shotgun. There were no convictions, only charges.

Still later, the trial judge allowed defendant’s mother to testify about threatening telephone calls made by McCarroll, and he (the judge) permitted another witness, Esco Sharp, to testify about an altercation he had been in with McCarroll, during which Sharp shot McCarroll.

After first ruling that the defense could not inquire into McCarroll’s character without first meeting the LSA-R.S. 15:482 test, the trial judge permitted Allen and subsequent witnesses to testify freely about McCarroll’s behavior and character traits.

However, the defense, as aforesaid, did not produce any physicians to give expert testimony concerning the possibility that defendant, due to a mental or emotional condition caused by McCarroll’s threats or hostility, was unable to distinguish between right and wrong at the time he shot McCar-roll.

This failure likely caused or at least contributed substantially to the breakdown of the insanity defense.

Regardless, the assignments of error based on trial judge’s restricting the inquiry into McCarroll’s character are without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial court failed to comply with the requirements of LSA-C. Cr.P. Art. 894.1 in imposing sentence, and he also argues that the sentence imposed is excessive.

Allen was sentenced to serve 12 years at hard labor. The maximum sentence which could be imposed for a violation of La.R.S. 14:31 is imprisonment at hard labor for 21 years.

During sentencing, the trial judge stated that he had carefully reviewed the presen-tence investigation report and the numerous petitions from citizens requesting the defendant be given a suspended sentence. He noted that the jury did not accept the defense of insanity and it obviously took into consideration the circumstances surrounding the commission of the offense in making its decision to return the responsive verdict of manslaughter.

The trial judge noted that the defendant’s parents are widely known and the defendant helps care for his father who is ill. He then added that a grievous wound had been inflicted upon defendant several years ago by McCarroll.

The trial judge also stated that defendant had decided to take the law into his own hands and that a suspended sentence would deprecate the seriousness of the crime. He stated that others may construe a suspended sentence in this case as an open invitation to take the law into their own hands to revenge crimes committed upon them or their loved ones. He then sentenced defendant to serve 12 years at hard labor.

Regarding the length of the sentence, we cannot say that the trial judge abused his discretion. We note that the jury rejected not only the insanity defense but also the self-defense contention, meaning that the jurors were not convinced that McCarroll was about to inflict bodily harm on Allen or that McCarroll had given the impression that he was, at that point in time, a threat to defendant’s person.

CONCLUSION

The record indicates that Walter Hiram Allen received a fair trial and we affirm his conviction and sentence.

       Judge H. Charles Gaudin of the Court of Appeal, Fifth Circuit, and Judges Israel M. Augustine, Jr. and Philip C. Ciaccio of the Court of Appeal, Fourth Circuit, participated in this de-cisión as Associate Justices Ad Hoc joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.

      . LSA-R.S. 14:30.1.

      . LSA-R.S. 14:31.


author: PER CURIAM.

text:
    STATE of Louisiana v. Randy DURAL.
    No. 81-KA-2204.
    Supreme Court of Louisiana.
    July 2, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Abbott J. Reeves, William R. Alford and Margaret A. Coon, Asst. Dist. Attys., for plaintiff-appellee.
    Joseph J. Piccione, Indigent Defender Office, Lafayette, for defendant-appellant.
   PER CURIAM.

Affirmed. Defendant’s right to reurge, in post-conviction proceedings, La.C.Cr.P. Art. 924 et seq., his motion alleging ineffective assistance of trial counsel, is expressly reserved.


text:
    STATE of Louisiana v. Keith Douglas HORN.
    No. 82-K-I256.
    Supreme Court of Louisiana.
    June 11, 1982.
   In re State of Louisiana, through the Asst. District Attorney Eugene A. Bouquet, applying for writ of review. Parish of Cal-casieu. No. 9943-81 and 9944-81.

Denied.


text:
    Walter R. ROARK v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, et al.
    No. 82-C-1336.
    Supreme Court of Louisiana.
    June 11, 1982.
   In re Walter R. Roark, applying for writ of certiorari, or review, Second Circuit, Court of Appeal. Parish of Ouachita. 415 So.2d 295.

Denied.


text:
    FIREMEN’S CHARITABLE AND BENEVOLENT ASSOCIATION OF NEW ORLEANS, et al., v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 82-C-1107.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re New Orleans Public Service, Inc., applying for reconsideration of denied writ of May 28, 1982, Court of Appeal, 4th Circuit. Parish of Orleans. 414 So.2d 1253.

Denied.


text:
    STATE of Louisiana, ex rel. Eddie FOREMAN, Jr. v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary, Angola, Louisiana.
    No. 82-KH-0629.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Eddie Foreman, Jr., applying for writs of certiorari, and habeas corpus, and remedial writs. Parish of East Baton Rouge. No. 65685.

Granted. The judgment of the district court setting aside relator’s death sentence and re-sentencing relator is set aside. Relator is ordered re-sentenced in open court and represented by counsel in accordance with law. Art. I Sec. 13, La.Const.1974 State v. White, La., 325 So.2d 584.


author: EDWARDS, Judge.

text:
    BRUNSON BONDING & INSURANCE AGENCY, INC. v. FLOYD ELECTRIC COMPANY, INC., George Robertson and Guy W. Miller.
    No. 14752.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Rehearing Denied July 22, 1982.
    R. Loren Kleinpeter, Baton Rouge, for plaintiff-appellee Brunson Bonding & Ins. Agency, Inc.
    Richard C. Cadwallader, Baton Rouge, for defendant-appellant George A. Robertson, Jr.
    John S. Campbell, Jr., Baton Rouge, for defendant-appellee Guy W. Miller and Floyd Electric Co., Inc.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   EDWARDS, Judge.

Plaintiff, Brunson Bonding & Insurance Agency, Inc. (“Brunson”), is a general insurance agency which handled the business of the defendant, Floyd Electric Company, Inc. (“Floyd”). In August and September of 1976, Brunson issued four insurance policies to Floyd with United States Fidelity & Guaranty Company. Premiums on the four policies totaled $45,288.00.

In order to finance the premiums on the policies, Floyd and Brunson executed a promissory note to the order of Capital Bank & Trust Company. That note, a copy of which is included in the attached appendix, reflects that Floyd made a cash down payment of $4,528.00, leaving a balance due of $40,760.00. After execution of the note, Capital Bank advanced to Brunson the sum of $40,760.00 to pay the premiums on the four insurance policies.

The note also reflects that the finance charge on the loan was $1,901.01, resulting in a total due of $42,661.01. This amount was to be paid in seven consecutive monthly installments of $6,094.43. On the same date that the note was executed, a continuing guaranty was signed by the defendants, Guy Miller and George Robertson, guaranteeing the debts of Floyd to Brunson up to the amount of $40,760.00.

Floyd made only one of the monthly payments on the note. Brunson was required to make the remaining six payments totaling $36,556.58. Thereafter, Brunson filed suit against Floyd and Robertson. This suit, styled as an action on open account, sought the sum of $40,760.00 alleged to be due for the four insurance policies issued by Brunson. Brunson later amended its petition, adding Guy Miller as a defendant and alleging that there were other debts, arising after the continuing guaranty was signed, which Floyd owed to Brunson. The defendants answered plaintiff’s suit, raising a number of defenses. Additionally, Robertson filed third-party demands against Floyd and Miller. The third-party demand against Miller was later voluntarily dismissed.

The district court rendered judgment on open account in favor of Brunson and against Floyd and Robertson in the sum of $36,566.38, representing the total of the six monthly payments which Brunson made to Capital Bank. The court dismissed Brun-son’s claim against Miller, holding that Miller signed the continuing guaranty in his official capacity as a representative of Floyd and, therefore, incurred no personal liability. Finally, the court rendered judgment for Robertson on his third-party demand against Floyd, for all sums that he pays as a guarantor of Floyd.

Robertson has appealed the judgment of the district court, making numerous specifications of error. Only one specification of error will be treated, however, because of our conclusion that it requires reversal of the district court’s judgment. No appeals have been taken by the other parties and, therefore, the judgment is final with respect to them.

-As stated above, Brunson’s suit was styled as one on open account, seeking recovery for the amount alleged to be owed on the four insurance policies. The trial transcript reflects that the plaintiff tried to introduce, and the trial court refused to allow, evidence which would have expanded the pleadings beyond the claim on open account. Whether or not Brunson has a right to recover from Floyd as a result of having been called upon to pay the note is not at issue. Because of the manner in which Brunson chose to proceed, the sole issue presented for our consideration is whether Floyd owed to Brunson a debt on open account attributable to the four insurance policies listed in plaintiff’s petition.

As previously noted, the total amount of premiums on the four policies was $45,-288.00. This amount was charged to Floyd’s open account with Brunson. When the note to Capital Bank was executed, Floyd made a cash down payment of $4,528.00, leaving an open account debt of $40,760.00 attributable to the four policies. After execution of the note, Capital Bank advanced to Brunson, on behalf of Floyd, the sum of $40,760.00. That payment is attributable to the open account debt owed on the four insurance policies.

LSA-C.C. art. 2130 provides that one method of extinguishing obligations is by payment. Floyd’s open account debts which arose out of the four insurance policies issued by Brunson in August and September of 1978 were extinguished by payment. The trial court erred in holding that Floyd owed Brunson $36,566.58 on open account and that Robertson, as guarantor, was liable to Brunson for that amount.

Brunson’s payments on the note on Floyd’s behalf did not revive the open account debts which were previously paid. That is not to say, however, that Brunson was left with no cause of action for recovering those sums. Brunson had other remedies available to it for recovering the money which it paid to Capital Bank on behalf of Floyd. Brunson erred in attempting to collect that sum by way of a suit on open account.

For the foregoing reasons, that portion of the district court’s judgment, rendered in favor of Brunson Bonding & Insurance Agency, Inc. and against George A. Robertson, Jr. for the sum of $36,566.68 plus legal interest and costs, is reversed. The remainder of the district court’s judgment is affirmed. All costs of this appeal are to be paid by plaintiff-appellee.

REVERSED IN PART AND AFFIRMED IN PART.

      . During the course of the trial, the trial judge ruled that this amendment did not expand the pleadings beyond the claim for the premiums alleged to be owed in the original petition. Inasmuch as Brunson has not appealed that ruling, it is now final.

      . See LSA-C.C. arts. 2106, 3052 and 3053. We are likewise not called upon to decide whether the continuing guaranty would make Robertson liable for any obligation which Floyd might owe to Brunson under these articles.

      .It is of no moment that, at the time this payment was made, Floyd’s open account with Brunson included charges for other policies and services. LSA-C.C. art. 2163 provides that a debtor who is liable for several debts has a right to declare which debt he is discharging when he makes a payment. In the instant case, the manner and amount of payment, as well as the enumeration of the insurance policies in the promissory note, clearly evidence Floyd’s intent to apply the payment to that portion of its open-account debt attributable to the four insurance policies.

      . See footnote 2, supra.


author: COLE, Judge.

text:
    John A. DURRETT v. STATE of Louisiana, et al. John A. DURRETT, Jr., et al. v. STATE of Louisiana, et al. FIREMAN’S FUND INSURANCE COMPANY v. STATE of Louisiana, et al. WRIGHT LEASING COMPANY v. STATE of Louisiana, et al.
    Nos. 14766-14769.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Rehearing Denied July 13, 1982.

      David W. Robinson, Baton Rouge, for John A. Durrett, et al.
    Peter T. Dazzio, Baton Rouge, for John A. Durrett, Jr., et al.
    Charles Raymond, Asst. Parish Atty., Baton Rouge, for City of Baton Rouge and Parish of East Baton Rouge.
    William J. Doran, Jr., Baton Rouge, for State of Louisiana, Dept, of Transp. and Development (Office of Highways).
    Robert E. Couhig, Jr., New Orleans, for Lexington Ins. Co.
    William C. Kaufman, III, Baton Rouge, for Fireman’s Fund Ins. Co.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

THE FACTS

At approximately 6:30 p. m. on November 11,1977, plaintiff John A. Durrett was driving a 1978 Buick Estate Wagon in a westerly direction on Old Hammond Highway (La. 426) in Baton Rouge, Louisiana. Passengers in the car were Durrett’s wife, Marjory H. Durrett; his two sons, John A. Durrett, Jr., and Andrew Durrett; his daughter, Marjory Lois Durrett; and his daughter-in-law, Marguerite Durrett. As Mr. Durrett approached the 10200 block of Old Hammond Highway, the right front and right rear tires of his vehicle struck potholes in or near the roadway, causing him to lose control of the vehicle. The car swerved over the center line into the eastbound lane, then swerved to the right, left the roadway and overturned. Lois Durrett, age 20, was killed instantly and the other passengers received injuries of varying degrees of severity. The vehicle was damaged badly.

THE PARTIES

Several suits were filed against the State of Louisiana through the Department of Transportation and Development and against the City of Baton Rouge and the Parish of East Baton Rouge, alleging Old Hammond Highway was part of the state highway system by virtue of La.R.S. 48:191. As a state highway, the State was responsible for maintenance under La.R.S. 48:193(A) and by contract this maintenance had been delegated to the City. The parties alleged the accident was caused by the negligence of the State and City in failing to maintain the streets in a safe condition.

The various suits against these defendants were set forth as follows. John Dur-rett sued for his own personal injuries and for the wrongful death of his daughter. Johnny Durrett, Marguerite Durrett and Andrew Durrett sued for their personal injuries and Mrs. Marjory Durrett joined them for her personal injuries and for the wrongful death of her daughter. The suit by this group of plaintiffs also contained an alternative demand against Fireman’s Fund and Lexington Insurance Company (alleged to be the insurers of the Buick station wagon), arguing if John Durrett was proven negligent these plaintiffs were entitled to recover under the liability insurance policies.

Fireman’s Fund sued to recover the $9,231.70 they had paid under their policy for the property damage sustained to the car. Wright Leasing & Company (the owner of the car driven by Durrett) filed suit to recover the $250.00 deductible they had paid in connection with the insurance claim on the damaged car.

The State filed a third party demand against the City in all four suits, alleging the City was bound by contract to indemnify them. Numerous other third party demands were filed by and between the parties, none of which are pertinent to our decision here.

ACTION BY THE TRIAL COURT

After a lengthy trial on the merits the court rendered judgment in favor of all plaintiffs on the main demands and against the State and the City. Judgment was rendered in favor of the Parish of East Baton Rouge, Fireman’s Fund and Lexington, dismissing plaintiffs’ demands against these defendants. Judgment was further rendered in favor of third party plaintiff, the State, and against the City on the indemnity claim. All other third party demands were dismissed.

Damages awarded the Durrett plaintiffs were as follows:

John A. Durrett
Wrongful death of daughter_$ 40,000.00
Personal injuries_$ 750.00
Medical Expenses for family_$ 3,238.82
Marjory Durrett
Wrongful death of daughter_$ 40,000.00
Personal injuries...$ 25,000.00
Johnny Durrett
Personal injuries_$ 80,000.00
Loss of earning capacity.- -$100,000.00
Medical expenses_$ 4,774.88
Marguerite Durrett Personal injuries_$ 1,500.00
Andrew Durrett Personal injuries_$ 500.00

In the cases filed by the Fireman’s Fund and by Wright Leasing, judgment was rendered in favor of the plaintiffs for the amount prayed for, i.e., $9,231.70 and $250.00 respectively.

APPEALS TAKEN

The City and the State have filed appeals in all four suits. John Durrett answered the appeal, seeking an increase in the wrongful death award to $100,000. Marjory Durrett also answered the appeal, seeking the same increase for the wrongful death claim and an increase in her own personal injury award to $50,000. Johnny Durrett answered the appeal seeking an increase in his damages to $300,000. A separate answer to the appeal was also filed by all plaintiffs because all had filed third party claims seeking indemnity and contribution from the State and from the City. They answered the appeal because these third party claims were dismissed. In the event the judgments were amended or reversed these parties sought to preserve their claims for indemnity and contribution.

ISSUES PRESENTED

Issues raised by both appellants can be divided into two categories: liability and quantum. As to liability, appellants contend there was no negligence on their part, plaintiffs’ recovery from appellants should be barred because of the negligence of John Durrett, and they should not be held strictly liable.

As to quantum, appellants maintain the following awards were excessive in amount or should not have been granted at all: Mrs. Durrett’s award for multiple sclerosis aggravation; Johnny’s award for future earnings; Marguerite’s, Andrew’s, and John’s awards for personal injuries.

The City raises a third issue which relates to the independent negligence of the State, a matter they contend is not covered under the contract.

By answer, appellees have raised the issue of the sufficiency of the wrongful death awards, Mrs. Durrett’s personal injury award, and Johnny Durrett’s loss of earning capacity award.

LIABILITY OF THE CITY AND THE STATE

Appellants contend the court erred in finding them liable on the basis of negligence and/or strict liability. They further contend John Durrett was contributorily or primarily negligent.

Negligence of Appellants

Appellants argue plaintiffs failed to prove they hit a pothole and that the pothole caused the accident. The following facts are fully supported. Mr. Durrett was driving at a reasonable rate of speed down Old Hammond Highway; his new car was in good working condition; the right wheels of the car hit something on or near the roadway that caused a severe jolt to the passengers and the car then went out of control. There were numerous potholes and ruts on the roadway extension, ranging in depth from 8 inches to 3 inches and no other obstructions were found in the area. The right rear rim of the tire was damaged in a way consistent with a vehicle hitting a pothole and the right rear tire had been damaged and would not hold air. Aside from having an eyewitness testify he saw the car hit the pothole, this clearly is the best possible evidence one could put forth to show the car in fact hit the pothole. We find it totally immaterial that plaintiffs were not able to identify which pothole they hit. Three potholes of substantial size were identified in the vicinity of the accident and no further identification is necessary.

In answer to appellants’ contention that plaintiffs failed to prove the striking of the pothole is what caused the car to go out of control, we can only say this hypothesis is the most probable one advanced by either party. Where a new (nondefective) car driven by a presumably competent driver strikes a pothole and immediately moves out of its own lane of traffic, common sense dictates it was the pothole which caused the car to move in that manner.

Therefore, we agree with the trial court that but for the pothole the accident would not have occurred. Having found the pothole to be a caus in fact of the accident our next inquiry is whether or not the city had a duty to maintain the road in a manner which would eliminate potholes such as the ones in this case.

It has been held repeatedly by courts the public body responsible for maintaining a road is not a guarantor of the safety of the travelers but does owe a duty to keep the highway and its shoulders reasonably safe for non-negligent motorists. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980), rehearing denied 1980. The Sinitiere court laid down the following rule:

“Liability based upon negligence is imposed when the Department is actually or constructively aware of a hazardous condition and fails to take corrective action within a reasonable time.”

In the instant case, the City, through its employee, did have knowledge of this dangerous condition. On the same day as the Durrett accident, a Mr. Roy Morgan struck a pothole while traveling west in the same vicinity of Old Hammond Highway. He was able to regain control of his vehicle and avoid an accident but the rim of his right rear tire was damaged and his tire “blew-out.” Mr. Morgan called the city police to report the accident and Officer Michael Gagliano investigated.

Officer Gagliano testified he knew this part of Old Hammond Highway was in disrepair and after investigating the accident attempted to call Mr. Canfield (the city traffic engineer) to report the hazard. Because November 11th was a holiday, Mr. Canfield could not be reached. Officer Gagliano stated he knew he could have called a 24-hour service number to report the problem to the City, but admitted he forgot to do so. He said he did not attempt to find the exact pothole which the Morgan car struck because there were several in the area.

We conclude the court was correct in imputing the knowledge of Officer Gagli-ano to the City and agree it was clearly negligent for the City to fail to take immediate action to correct this hazardous situation either by repairing the holes or by putting up some type of a barricade or warning sign.

It was pointed out at trial these potholes had been repaired only two days earlier. Testimony by city maintenance workers established potholes such as the ones in this case were not considered to be on the main roadway and were filled with cold asphalt rather than hot asphalt. It was conceded this type asphalt is of an inferior quality and depending upon the traffic and weather conditions, potholes so filled could require repair in only a few days. This evidence corroborates previous evidence showing the City failed to properly maintain the roadway or the extension.

Having found the defective highway condition to be a cause in fact of the accident, and concluding the City breached its duty to maintain the street (or shoulder) in a reasonably safe condition, our final query is whether or not the failure to properly maintain the road was the “legal or proximate” cause of the accident. Legal cause requires a proximate relation between the actions of the defendant and the harm which occurs and such relation must be substantial in character. Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962), rehearing denied 1962. We find there is a substantial proximate relation between the defendants’ failure to correct the defective condition and the harm which fell upon plaintiffs. The danger encountered by the plaintiffs, the loss of control of a vehicle which had hit a pothole, is precisely the type danger one expects from such road conditions and is precisely the reason such conditions must be corrected promptly. Therefore we agree with the trial court’s conclusion appellants are liable for their negligence.

Negligence of John Durrett

Appellants make several allegations concerning the negligence of John Durrett so we will address each separately. Appellants contend the court erred in failing to accept the testimony of their expert, Dr. Don Ivey, who concluded Mr. Durrett was driving at a rate of speed from 52 to 64 miles per hour when he struck the pothole. Dr. Ivey stated he believed driver error caused the accident in that Mr. Durrett overreacted when attempting to right his vehicle. The trial court, after considering the evidence offered by both accident reconstruction experts, accepted the testimony of plaintiffs’ expert, Dr. Olin Dart. Dr. Dart estimated Mr. Durrett to have been driving 35 to 40 miles per hour at the time the car hit the pothole. After examining the testimony of each expert we cannot say the court abused its great discretion by choosing one expert over the other.

The crux of appellants’ argument concerning the negligence of John Durrett is that Mr. Durrett was negligent for leaving the main portion of the road and traveling on the shoulder for no apparent reason. In the first place, we do not necessarily agree the pothole was located on the “shoulder” of the road. Dr. Dart testified he had measured the width of Old Hammond Highway at the scene of the accident and found the eastbound lane to be at least 10 feet wide but the westbound lane to be between 8.2 and 8.7 feet wide. Photographs offered as exhibits showed the part of the road containing the potholes was somewhat of a hybrid between the main road and the shoulder, having some characteristics of each. The area in question, an asphalt extension which varied in width from 1.5 feet to 2 feet, made the westbound lane approximately the same width as the eastbound lane. No one at trial could offer an explanation as to why the center line was placed so that one lane was more narrow than the other. Therefore, we feel certain this asphalt extension was added to widen the westbound lane rather than as a shoulder. Our final conclusion on this issue is Mr. Durrett was not negligent for traveling on the extension because even if this area is technically not a part of the main roadway, the narrow width of the lane made it entirely reasonable that he should be traveling on this portion of the road.

We note, however, appellants’ position would not be improved even if we were to consider this area of the road as the shoulder. The jurisprudence states clearly the public entity is responsible for the damage to those who stray inadvertently onto the shoulder and strike ruts or potholes. Sinitiere, supra. Prior jurisprudence had held it was negligent for a motorist to be on the shoulder unless faced with a real emergency. Hopkins v. State, 167 So.2d 441 (La. App. 1st Cir. 1964), writ refused 1964. This doctrine was later relaxed to say such action was negligence unless there was a perceived or apparent danger. Watson v. Morrison, 340 So.2d 588 (La.App. 1st Cir. 1976), writ refused 1977. In Rue v. State Department of Highways, 372 So.2d 1197 (La.1979), rehearing denied 1979, the Supreme Court overruled Hopkins and stated although it may be substandard conduct for a plaintiff to stray inadvertently onto the shoulder this action will not bar recovery because a motorist has the right to assume the shoulder will be maintained in a condition safe for travel. In Sinitiere, supra, the motorist inadvertently steered his car onto the shoulder of the road but the court concluded that absent some actual or constructive knowledge of the defects on the shoulder, this action would not “per se constitute negligence.”

In light of this jurisprudence we find no merit in appellants’ argument that Mr. Durrett should be barred from recovery simply because he drove onto the “shoulder.” See Ishee v. State, 413 So.2d 1362 (La.App. 1st Cir. 1982).

Finally, appellants conclude Mr. Durrett was negligent for failing to steer properly back onto the main road. Subject to our reservations about the pothole being on the shoulder of the road at all, we find no evidence showing he was negligent in this respect. Unlike the driver in the Sinitiere case, and in others cited by appellants, Mr. Durrett was not presented with a situation where he left the roadway, traveled along the shoulder, and then lost control of the car while maneuvering back onto the highway. In all of these cases it was found the plaintiff had acted negligently in his method of re-entering the highway. The facts of this case are entirely different because after hitting the pothole Mr. Dur-rett’s car was knocked immediately out of control. He had no opportunity to “re-enter the main portion of the highway” because the car went amuck upon impact. Therefore, it is inappropriate to speak of his “negligence upon re-entry.”

Appellants contend Mr. Durrett’s negligence is proven by the fact Mr. Morgan hit the same or a similar pothole earlier in the day and managed to maintain control of his car. This fact hardly classifies as evidence in a legal sense. Because one person is able to avoid injury when confronted with a dangerous condition by no means implies the next person is negligent if he fails to do the same. Innumerable factors contribute to the final result in each case such as lighting conditions; speed of the vehicle; weight of the vehicle; condition; size and type of the tires; differences in steering responsiveness; variations in shock absorbers; the angle the ear impacted the pothole and so on. We find no merit to this argument.

Strict Liability

Because we have found the City to be negligent we need not discuss the issue of strict liability at any length but we address it simply because it is raised by appellants as an error. We are satisfied plaintiffs have shown the defective thing (the highway) was in the custody of appellants and that the damage was caused by the defective thing. Loescher v. Parr, 324 So.2d 441 (La.1975), rehearing denied 1976. Once these elements are proved the custodian can escape liability only by showing the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force. None of these defenses were proven, therefore strict liability attaches.

QUANTUM

Appellants and appellees contend the court erred as to quantum in the following respects.

Award to Mrs. Marjory Durrett

The trial court acknowledged Mrs. Durrett’s main injury was a “flare-up” of her multiple sclerosis (MS) and then awarded her $25,000 for “all her injuries.” Appellants allege no award should have been made because Mrs. Durrett failed to prove the flare-up was caused by the accident. In addition to the MS, Mrs. Durrett complained of contusions and lacerations to her left hand which hurt her for “a long time.” She stated at trial she had been diagnosed as having MS in 1965, some twelve years before the accident, but had been in remission since approximately 1974. Her symptoms worsened two or three months after the accident and were quite aggravated for two years. She testified that as of the date of the trial (November 1980) she was once again in remission and was able to do all the things she could do before the accident.

Her treating physician, Dr. Gordon McHardy, testified by deposition he believed the aggravated symptoms were accident related and caused by the extreme physical and emotional stress she endured during and after the accident. When he treated her after the accident he found her symptoms to have worsened to the extent she needed a cane to walk.

Although Dr. McHardy believed the flare-up to be accident related he also stated it was entirely normal for an MS patient to have flare-ups and in fact it was unusual for a patient to go more than 12 months without such a recurrence. Appellants offered no evidence to contradict Dr. McHar-dy’s conclusions.

We agree with the trial court Dr. McHardy’s uncontroverted testimony established Mrs. Durrett’s worsened condition was more probably than not caused by the accident, but we find an abuse of discretion in the amount awarded. We note at the time of trial Mrs. Durrett admitted she had recovered completely from the flare-up so any award must be limited to the two-year period in which her symptoms were aggravated. Under the guidelines of Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), rehearing denied 1977, as a reviewing court we can only lower the award to the highest figure the trial court could have granted without abusing its discretion. Based on the evidence in the record we feel this amount is $15,000 and we amend the judgment accordingly.

Award to Johnny Durrett For Loss of Earning Capacity

After trial was concluded the court reopened the case for arguments concerning an award for loss of earning capacity for Johnny Durrett. The original award of $80,000 was for the loss of an eye. The court reconsidered the matter and rendered judgment for $100,000 for the loss of earning potential. Appellants contend there was no evidence to support this award and appellee Johnny Durrett contends the amount should be raised to $300,000.

Testimony by Johnny showed before the trial he had some visual impairment but was generally able to get around on his own. He was an athlete in high school and graduated from L. S. U. without any major visual help. Although his eye doctor informed him he was “legally blind” before the accident, he was employed by the State Department of Education doing financial requisitions. This job required a good bit of reading and he was able to perform the work without difficulty.

During the course of the accident his right eye was struck by a mail box, causing severe injury. The eye was removed several weeks after the accident. Various complications developed in his left eye and he testified that as a result of the accident he was not really able to read at all now. He has difficulty getting around by himself unless he is in a familiar place and described everything as being a “blur” now. In order to accommodate his very limited visual capacity, the Department of Education transferred Johnny to a position that required little or no reading, that of interviewing personnel. Now, as before, he is an unclassified civil service employee and his job is subject to the whims of the administration. He makes more money in his new position than he did in his old.

Dr. Randal Caffarel, an ophthalmologist, testified he treated Johnny in the emergency room the night of the accident. The right eye was seriously injured and after several weeks the left eye became increasingly infected. On December 21st the right eye was removed in an attempt to arrest the infection in the left eye. (The left eye had developed “sympathetic uveitis which is a reaction of a fairly health eye to an eye that is in a diseased state.) Medical records show that when last tested in 1972 Johnny’s vision was 20/200 in the left eye and 20/400 in the right eye. His history indicated he had severe chorioretinitis which began at a very early age. After the accident the vision in his remaining eye was 20/800. Dr. Caffarel said his condition could worsen and it was possible he could completely lose his eyesight. At the very best the condition will remain at the status quo.

We find no merit to appellants’ contention there was no evidence Johnny would suffer a loss in earning potential. It was clearly established that before the accident he had a visual impairment but was basically able to function as a “seeing person” both in his work and in his ability to get around. After the accident his vision was much worse; he is now limited to jobs that require no reading or use of the eyes whatsoever. Clearly one suffers a loss of earning potential when one is relegated to the quite limited occupational field of jobs which do not require any visual capacity.

Johnny Durrett admits he is earning presently more than he was before the accident and appellants contend this counters his claim he has suffered a loss of earning potential. The Supreme Court discussed this issue in Folse v. Fakouri, 371 So.2d 1120 (La.1979) as follows:

“What plaintiff earned before and after the injury does not constitute the measure. Even if he had been unemployed at the time of the injury he is entitled to an award for impairment or diminution of earning power. And while his earning capacity at the time of the injury is relevant, it is not necessarily determinative of his future ability to earn. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). Damages should be estimated on the injured person’s ability to earn money, rather than what he actually earned before the injury.”
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“Earning capacity in itself is not necessarily determined by actual loss; damages may be assessed for the deprivation of what the injured plaintiff could have earned despite the fact that he may never have seen fit to take advantage of that capacity. The theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily.”

We find no abuse of discretion in the trial court’s award of $100,000 for the loss of future earnings, therefore, we decline to alter the amount of the award in either direction.

Wrongful Death Award

The trial court awarded each parent $40,000 for the wrongful death of their 20 year old daughter, Lois. The Durretts contend this amount is too low. We agree and therefore raise the quantum to $60,000 for each parent.

As we have said repeatedly, the trial court has a great deal of discretion in determining the amount of an award for any given injury and unless there is an abuse of discretion we will not disturb this award. According to the principles enunciated in Reck v. Stevens, 373 So.2d 498 (La.1979), the court of appeal must give an articulated analysis of the facts and if after such analysis an abuse of discretion is disclosed, the award may be adjusted to an appropriate amount.

Considering all the facts of this case, we conclude the award of $40,000 per parent for the loss of this 20 year old daughter is an abuse of discretion. Mrs. Durrett testified the family was very close and that Lois, her only daughter, lived on the L. S. U. campus during the week but came home on weekends to be with the family. At the time of this fatal accident she was accompanying her family to a high school football game to watch her younger brother, Steven, play football. Because of Mr. Durrett’s emotional state, attorneys at trial did not question him as to his relationship with his daughter but instead stipulated there was the normal abundance of love and affection between them.

Again, Coco, supra, mandates we raise the award only to the lowest amount the trial court could have granted without abusing its discretion. While there is no magic formula for arriving at this figure we feel the record reflects the sum of $60,-000 for each parent is the lowest amount the court could have given. Therefore, we amend the judgment to reflect this increase in quantum.

Awards to Marguerite Durrett, Andrew Durrett and John Durrett for their Personal Injuries

Appellants argue there was no evidence to justify the awards to these plaintiffs for their personal injuries. Marguerite Durrett testified she cut her head and bruised and cut her fingers. She said both injuries hurt her for several weeks. Hospital records indicated she had been treated for these injuries in the emergency room on the night of the accident. We find no abuse of discretion and will not disturb the award.

Andrew Durrett did not testify but his father stated Andrew suffered a blow to the right flank and the hospital records corroborated this. We find no abuse in the court’s award of $500 for this injury.

John Durrett did not testify directly as to his various injuries, allegedly because of his emotional state at the time of trial. However, while discussing another matter he mentioned he “took a hell of a blow on the head in the car.” Although the award of $750 may seem generous based on this minimal amount of evidence, we do not find it to be an abuse and therefore will not disturb the award.

STATE’S LIABILITY UNDER THE CONTRACT

The City admits the contract dictates they are responsible for maintenance of Old Hammond Highway and must indemnify the State for all negligence attributed to the failure to properly maintain. They allege, however, the State was responsible for the center line striping and was negligent for placing the stripes off-center. Therefore, they argue the State is responsible for this independent negligence.

While we concede the off-center striping may have been a cause in fact of the accident (but for the lane being so narrow Mr. Durrett may not have had to drive onto the extension), we do not find it to be the proximate cause of the accident. As discussed previously, the proximate cause of the accident was the defective condition of the road, i.e., the potholes. Such condition is a matter of maintenance which under the terms of the contract is the responsibility of the City. Therefore, we reject the City’s argument that the State’s independent negligence caused the accident.

CONCLUSION

For the foregoing reasons, we amend the judgment in favor of plaintiff, John A. Durrett, Sr., by increasing the amount from $43,988.82 to the sum of $63,988.82; we amend the judgment in favor of plaintiff, Marjory H. Durrett, by increasing’ the amount from $65,000.00 to the net sum of $75,000.00; and, in all other respects the judgments appealed are affirmed.

Costs are to be paid by appellant, City of Baton Rouge, as permitted by law.

AMENDED AND, AS AMENDED, AFFIRMED.

      . Because the similarity of names of family members could cause confusion, we will refer to John Durrett, Sr. as John; to John Durrett, Jr. as Johnny; to Mrs. Durrett as Marjory; and to Marjory Lois as Lois.

      . Hereinafter referred to as the State and the City, respectively.

      .The original award was for $80,000. After trial the matter was reargued and the court stated the $80,000 should be considered compensation for the pain, suffering and disfigurement and granted an additional $100,000 for loss of earning capacity.

      . Although many parties have appealed we will refer to the City and the State as the appellants and to the other parties as the appellees.

      . The City contends John Durrett was contribu-torily negligent while the State contends his negligence was the proximate cause of the accident. Although we need not reach this issue we note the City’s approach would not necessarily bar recovery by the other plaintiffs if the City and John Durrett were both found to be negligent.

      . The car had only 200 miles on it.

      . Dr. Gerald Whitehouse, professor of mechanical engineering, testified he had examined the vehicle after the accident and concluded the car was free of any discernible defects.

      . There was no evidence offered to show that Mr. Durrett was incapacitated in any way.

      . The posted speed limit was 45 miles per hour.

      . Knotts v. State, Dept, of Highways, 395 So.2d 419 (La.App. 3d Cir. 1981), writ denied 1981; Godwin v. Government Employees Insurance Co., 394 So.2d 751 (La.App. 3d Cir. 1981).

      . This term was defined by Dr. Caffare! as describing a person whose best corrective vision in either eye is 20/200 or less.