text:
    Charles PAINTER v. CONTINENTAL UNION ASSURANCE COMPANY.
    No. 14863.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Douglas R. Cyrex, Gonzales, for plaintiff & appellant.
    Dan Edward West, Bell, Faller & West, Baton Rouge, for defendant & appellee.

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

This court, ex proprio motu, issued a rule directed to plaintiff-appellant, Charles Painter, to show cause why his appeal should not be dismissed.

The chronology of events leading to the issuance of the rule on September 2, 1981 are as follows:

1. As shown by the transcript of the proceedings, the trial judge at the conclusion of the trial on May 28, 1981, stated: “that the plaintiff’s suit be dismissed at plaintiffs costs, and formal judgment will be signed, when presented to the Court.”
2. The motion and order of appeal was signed on June 2,1981, and filed on June 10, 1981.
3. Judgment was read and signed on June 16, 1981.
4. Notice of the signing of judgment was mailed on June 18, 1981.

Plaintiff’s appeal was taken before the signing of judgment in contravention of Code of Civil Procedure, Article 1911 which reads, after its amendment in 1979, as follows:

“Except as otherwise provided by law, every final judgment shall be signed by the judge. For the purpose of an appeal as provided in Article 2083, no appeal may be taken from a final judgment until the requirement of this Article has been fulfilled.”

There was no final judgment from which an appeal could be taken, thus the order of appeal was a nullity.

The jurisdiction of this court did not attach and the trial court continued to have jurisdiction until a valid order of appeal was granted or until the lapse of the delays for appealing had expired. La.C.C.P. arts. 2087 and 2088.

Appellant contends he was sent an unsigned copy of the judgment which he thought was notice to him of the signing of the judgment. We find no merit in this claim because the notice of judgment sent to appellant clearly informs him that the judgment was signed on June 16, 1981.

We are cognizant of the fact that in a ease very similar to this one, our Supreme Court has recently reinstated the appeal. In the Matter of Parker, 399 So.2d 607 (La.1981). Because no written reasons were given, the import or effect of this decision is unknown. Parker, supra, can be distinguished from this case on the basis that in Parker the judge had at least signed a document purporting to be a judgment prior to signing the order of appeal. See also Schiro v. Viola, 398 So.2d 1294 (La.App. 1st Cir. 1981).

For these reasons, the appeal of Charles Painter is dismissed at his costs.

APPEAL DISMISSED.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    FLOOR-N-WALL DISTRIBUTORS, INC. v. E. H. HIRTS.
    No. 14975.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.

      Peter J. Garcia, Covington, for plaintiff-appellee.
    Frank E. Beeson, III, New Orleans, for defendant-appellant.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   LOTTINGER, Judge.

Plaintiff-appellee filed a motion seeking the dismissal of this appeal because of no prosecution by appellant for one year. La. C.C.P. art. 2165. Pursuant to said motion this court issued a show cause order as to why this appeal should not be dismissed.

From the briefs filed in support of and in opposition to the motion, we glean the following facts. Judgment was signed on December 22, 1978; a suspensive appeal motion was granted on January 4, 1979; and bond was filed on January 18, 1979. The transcript of the testimony was never filed in the office of the trial court clerk due to the disappearance of the court reporter. Plaintiff-appellee filed a narrative of facts on November 29, 1979, and the defendant-appellant on December 19, 1979. These narratives differed. No narrative has ever been filed by the trial judge, and the record has not been lodged in this court.

Plaintiff-appellee argues that the failure to lodge the appeal record with this court properly belongs with appellant. It is suggested that appellant could have taken sufficient steps to have the record lodged.

Though in Webre v. Heard, 207 So.2d 880, 882 (La.App. 1st Cir. 1968) this court held that “it is not the duty of the trial court to furnish a narrative of facts until formally requested to do so by appellant who must first demonstrate the inability of counsel to agree upon such a statement as required by LSA-C.C.P. Articles 2130 and 2131,” in Willis v. Gulf Building Services of Baton Rouge, Inc., 372 So.2d 635 (La.App. 1st Cir. 1979) we held that La.C.C.P. arts. 2130 and 2131 were not applicable where the testimony of witnesses had been taken down but could not be transcribed because of mechanical failure. We are of the opinion that the Willis case controls here, and under the authority of La.C.C.P. arts. 2132 and 2161 we remand this case for the limited purpose of correcting the record by either the parties stipulating to the facts presented at the original trial, the trial judge filing a narrative of facts, or the taking the testimony of those witnesses, either in open court or by deposition, who testified at the original trial.

Therefore, for the above and foregoing reasons the motion to dismiss is denied, and this matter is remanded to the trial court for the purposes expressed hereinabove. Appellant has sixty days from the finality of this judgment within which to have the record so corrected. The costs of this motion are assessed to plaintiff-appellee.

MOTION DENIED, CASE REMANDED.


author: WATKINS, Judge. COVINGTON, Judge,

text:
    Barbara P. JORDAN v. Luther A. HONEA, et al.
    No. 14,401.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Writ Denied Jan. 18, 1982.
    Robert L. Kleinpeter, Baton Rouge, for plaintiff-appellant Barbara Jordan.
    Horace C. Lane, Baton Rouge, for defendant-appellee State Farm Mut. Ins.
    Donald O. Collins, New Orleans, for defendant-appellee Browning-Ferris Industries, Inc.
    Sheila Moore Gordon, Baton Rouge, for defendant-appellee State of La., Dept, of Health & Human Resources.
    Paul H. Spaht, Baton Rouge, for defendant-appellee Continental Cas. Co.
    H. S. H. Verlander, New Orleans, for defendants-appellees Walbrook Ins. Co., Ltd., “Winterthur” Swiss Ins. Co., et al.
    Before COVINGTON, PONDER and WATKINS, JJ.
   WATKINS, Judge.

This is an action for personal injuries sustained by Barbara P. Jordan while a passenger in an automobile driven by Charles A. Bearden and owned by Browning-Ferris Industries, Inc. That automobile was struck by a truck driven by Luther A. Honea, who was uninsured. Plaintiff alleges and all parties except Honea concede that the accident occurred at approximately 1:30 a. m. on January 1, 1977, on U. S. Highway 61, in West Feliciana Parish.

As a result of the accident, Barbara P. Jordan is alleged to have sustained serious injuries to her head, body and limbs, totally incapacitating her for the rest of her life.

Browning-Ferris had obtained a certificate of self-insurance from the Financial Responsibility Division of the Louisiana Department of Public Safety. Also, Browning-Ferris held a policy of automobile liability insurance issued by Continental National American Insurance Company (actually the Continental Casualty Company of this group) to the extent of $500,000, above retained limits of $100,000. Above $500,000 Browning-Ferris held a policy of automobile liability insurance with Combined Insurance Companies (which bore an unspecified connection with Lloyd’s) to the extent of $5,000,000. Also, Barbara P. Jordan held a policy of automobile liability insurance from State Farm Mutual Insurance Company with limits not stated in the pleadings.

In her petition, as amended (Third Supplemental and Amending Petition), plaintiff seeks $2,000,075.00 in damages. Named as defendants in the suit are Honea, CNA (Continental), State Farm, Browning-Ferris, and Underwriters of Lloyd’s (Combined Insurance Companies). Honea never filed an answer. All of the other defendants denied liability.

The appeal comes from the granting of a summary judgment sought by CNA, Combined Companies, and Browning-Ferris dismissing them as parties defendant on the ground that uninsured motorist coverage did not exist. We affirm the judgment of the trial court insofar as it dismisses Browning-Ferris, but hold that CNA and Combined Companies should not have been discharged.

LIABILITY OF BROWNING-FERRIS INDUSTRIES, INC.

Plaintiff contends that Browning-Ferris, as a certified self-insured, afforded uninsured motorist coverage by virtue of its qualification as a self-insured. We hold, after having considered the applicable statutes, that a certified self-insured does not afford uninsured motorist coverage. Under the terms of LSA-R.S. 22:1406(D) (which, as we shall explain in the discussion of the liability of CNA and Combined Companies, has been amended with respect to the form required to effect a rejection of UM coverage), UM coverage is afforded by an automobile liability insurer unless that coverage is rejected in proper form. The version of LSA-R.S. 22:1406(D) that was in effect on January 1, 1977, was that version enacted by Louisiana Act No. 494 of 1975, which reads as follows:

“The following provisions shall govern the issuance of uninsured motorist coverage in this state.
(l)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject the coverage or selects lower limits. Such coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer.”

The statute, it will be noted, used the words “delivered or issued” in its requirement that there be UM coverage unless properly rejected. Obviously in using that language, the statute contemplates that there be a policy of insurance, as self-insurance can neither be “delivered” nor “issued” but rather, simply, exists apart from any issuance or delivery. Thus, it was not intended by the legislature that self-insurance should entail UM coverage.

The mere obtaining of a certificate of self-insurance should not cause a change in the requirement that there be a policy of insurance in order for there to be UM coverage. The statute which provides for self-insured status is LSA-R.S. 32:1042, which reads in pertinent part as follows:

“A. Any person in whose name more than twenty-five motor vehicles are registered or who owns property in Louisiana assessed in his name having a value of fifteen thousand dollars or more after deducting any encumbrances thereon from its assessed valuation may qualify as a self-insurer by obtaining a certificate of self-insurance issued by the commissioner as provided in Subsection B of this Section.
B. The commissioner may, at his discretion, upon the application of such a person, issue a certificate of self-insurance when he is satisfied that such person is possessed and will continue to be possessed of ability to pay judgments obtained against such person.”

This statute provides one of the methods for establishing proof of financial responsibility under the Louisiana Safety Responsibility Law in lieu of a Motor Vehicle Liability Policy as defined by LSA-R.S. 32:900, which, simply stated, is an automobile liability insurance policy. The statute does not provide that self-insured status carries with it as a matter of statutory law or public policy the automatic conferring of UM coverage, as we find that there must be an insurance policy for there to be the requirement of UM coverage, unless rejected.

Were we to hold that the UM coverage requirements of LSA-R.S. 22:1406(D) are applicable to a self-insured, the UM rejection provision of the statute would become impracticable for the reason that there is no person, office, agency, or other legal entity provided for by statute to whom rejection could be communicated. Thus, if we were to accept plaintiff’s position, UM coverage would become mandatory and thereby even broader if there were self-insurance than if there were a basic automobile liability insurance policy. Such an anomalous result could not have been intended by the legislature.

There are no reported cases in this state that deal with the question of UM coverage by a self-insured. However, the problem was considered by the Supreme Court of Pennsylvania in Johnson v. Yellow Cab Co., 456 Pa. 256, 317 A.2d 245 (1974). The Pennsylvania statute requiring UM coverage, unlike Louisiana, used the word “policy”, However, as we have seen, the use of the words “delivered or issued” in the Louisiana statute clearly indicates that an insurance policy is contemplated. The following language in Johnson reaffirms our reasoning:

“The Uninsured Motorist Act provides that ‘No motor vehicle liability policy of insurance . . . shall be delivered or issued for delivery in this State ... unless coverage is provided therein . . .’ for the protection of persons against uninsured motorists. It further provides that a motor carrier under the jurisdiction of the Public Utility Commission, such as Yellow Cab, ‘. . . shall have the right to reject such coverage in writing .. .. ’ Act of August 14, 1963, P.L. 909, § 1, as amended, 40 P.S. § 2000 (emphasis added). The appellants have alleged that the appellee is self-insured but they have not alleged the existence of any liability policy of insurance. This precludes any cause of action under the Uninsured Motorist Liability Act since that Act applies only when a liability policy of insurance is delivered or issued for delivery. If no liability policy of insurance exists, that Act, does not apply. One who is self-insured does not have a liability policy of insurance. Such a policy is a contact involving at least two parties — an insurer and an insured. The allegation that the appellee is self-insured negates any possible inference that a liability policy of insurance exists.
******
The appellants have suggested that the appellee, a self-insurer, should have sent a rejection of uninsured motorist coverage to the Commonwealth of Pennsylvania. None of the agencies of the Commonwealth of Pennsylvania, however, have ever offered a liability policy of insurance to the appellee. The Public Utility Commission of Pennsylvania issued a certificate which permitted the appellee to be a self-insurer. The issuance of that certificate, however, was not the delivery or the issuance for delivery of a liability policy of insurance.”

If we were to hold that as a matter of public policy UM coverage should be afforded by a self-insured, as was done in a South Carolina case, Southern Home Insurance Co. v. Burdette’s Leasing Service, Inc., 268 S.C. 472, 234 S.E.2d 870 (1977), we would in our view be usurping a function more properly reserved to the legislature. The statutory laws of our state afford no ground upon which to find that UM coverage would automatically be conferred for the protection of the general public by a self-insured. Indeed, they indicate that UM coverage is required only if there is an insurance policy which is “delivered or issued”. Hence, we find that Browning-Ferris was properly discharged by summary judgment, as it did not afford UM coverage.

LIABILITY OF CNA AND COMBINED COMPANIES

CNA (Continental Casualty Company) issued a liability insurance policy to Browning-Ferris Industries, Inc. for the period September 30, 1976, to September 30, 1977. This policy afforded coverage for Comprehensive Automobile Liability Insurance and Protection against Uninsured Motorists Insurance in addition to other coverages. The policy issued to Browning-Ferris by Combined Companies (Lloyd’s) was effective from December 14, 1975, through September 30, 1978. Both policies covered the national (U.S.A.) and worldwide operations of Browning-Ferris.

Both CNA and Combined Companies contend UM coverage in Louisiana was rejected by Browning-Ferris. They argue that under the provisions of LSA-R.S. 22:1406(D) as it stood on January 1, 1977 rejection of UM coverage by the insured was not required to be in writing. They argue further that even if a written rejection was required, Browning-Ferris complied by rejecting UM coverage on its Insurance Proposal submitted to CNA prior to the issuance of the CNA policy. The Insurance Proposal set forth the specifications of coverage required by Browning-Ferris and contained the following language:

“Uninsured Motorist and Personal Injury Protection (No Fault) required by law— otherwise rejected.”

The Insurance Proposal document filed in evidence is contained in what appears to be a report of the Risk Management Department of Browning-Ferris to its Board of Directors or top management, and we note that the coverage in several respects of the CNA policy does not conform with the specifications in the proposal, but since the proposal was not attached to either the CNA or the Combined Companies policy there is no need to consider the effect of this UM rejection for reasons which we will express later.

In support of the contention that Browning-Ferris orally rejected UM coverage, CNA and Combined Companies filed in evidence the affidavits of Ed Ludwig, Regional Director for the Southern Region, National Accounts, CNA; of Quill Healy, president of the insurance brokerage firm that obtained the policy for Browning-Ferris from CNA; and C. P. J. Mooney, III, Insurance Manager for Browning-Ferris, which state that Browning-Ferris indicated it did not desire UM coverage in any state where the law did not make the coverage mandatory. To the same effect is the deposition of John A. Lindquist, Director of Risk Management and Loss Control for Browning-Ferris.

It does appear from the affidavits and deposition that Browning-Ferris did not want to have UM coverage in Louisiana since our law permitted the company to reject the coverage.

However, the expression of a desire not to have UM coverage, however clear, does not necessarily constitute a valid rejection if the expression of rejection does not meet the formal requirements of law. Under Louisiana law, uninsured motorist coverage is provided for by statute and embodies a strong public policy.

We have quoted LSA-R.S. 22:1406(D) as it stood on January 1, 1977, before it was amended by Act No. 438 of 1977, which took effect September 9, 1977. The 1977 Act amended R.S. 22:1406(D)(l)(a) to read as follows:

“The following provisions shall govern the issuance of uninsured motorist coverage in this state.
(l)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage or selects lower limits. Such coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer. Any document signed by the named insured or his legal representative which initially rejects such coverage or selects lower limits shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto.”

Also, pertinent to our decision is LSA-R.S. 22:628, which is the general statutory provision regulating amendment of policy coverage and which, in part, provides:

“No agreement in conflict with, modifying, or extending the coverage of any contract of insurance shall be valid unless it is in writing and physically made a part of the policy or other written evidence of insurance, or it is incorporated in the policy or other written evidence of insurance by specific reference to another policy or written evidence of insurance.”

The recent Louisiana Supreme Court case of A.I.U. Insurance Co. v. Roberts, 404 So.2d 948 (1981), which reversed our decision reported in La.App., 395 So.2d 375, took the following line of reasoning: The requirement that there be UM coverage is an implied amendment of any automobile liability insurance policy which does not expressly provide UM coverage, as UM coverage will be read into the policy, unless rejected. Thus, rejection of UM coverage is an amendment or modification of the policy, and the formal requirements of LSA-R.S. 22:628 applied before Act No. 438 of 1977 took effect on September 9,1977. Act No. 438 of 1977 is a particular statute, while R.S. 22:628 is a general statute, but the formal requirements of Act No. 438 apply only after the Act took effect on September 9, 1977. The version of LSA-R.S. 22:1406(D) which was in effect earlier contained no formal requirements for rejection. Hence, prior to September 9, 1977, the effective date of Act No. 438 of 1977, which amended LSA-R.S. 22:1406(D), rejection of UM coverage had to be in writing and physically attached to the policy, as was provided in the general requirements of R.S. 22:628.

None of the acts of attempted rejection of UM coverage by Browning-Ferris mentioned above met these requirements as to form. The setting forth in writing in the insurance proposal of a desire to have UM coverage only in states where such coverage was legally required and indicating that otherwise such coverage was rejected did not constitute an effective rejection of UM coverage, as such written rejection would have had to be attached to the policy. Nor were the indications verbal or written adverted to in the affidavits and deposition mentioned above a legally effective rejection of UM coverage as they were not attached to the policy.

Also attached to the CNA policy is a standard insurance form rejecting UM coverage in Louisiana. This form is signed by C. P. J. Mooney, an official of Browning-Ferris, the insured, and is dated 2-9-77. We believe that this particular written rejection of UM coverage meets the formal requirements of Louisiana law for the rejection of UM coverage, but it could not be effective until February 9, 1977, the date it was signed, several weeks subsequent to the accident of January 1, 1977, out of which this lawsuit arises.

Although, as stated in A.I.U. Insurance Co. v. Roberts, supra, “Uninsured motorist coverage is to be determined not only by the provisions of the contract but also by applicable statutes”, the CNA policy on its face clearly contained UM coverage in Louisiana. The policy contained several endorsements pertaining to UM coverage in various states including an endorsement with respect to UM coverage in Louisiana. This endorsement dealt principally with defining uninsured motorists to include underinsured motorists. If there was no UM coverage under the policy, there would have been no need for an endorsement to more specifically set forth coverage.

Further confirming our view that UM coverage in Louisiana was afforded by CNA is the fact that annexed to the CNA policy is a rejection of UM coverage in Kentucky, dated “9-30-76” signed by C. P. J. Mooney. Thus, it is obvious there was no valid rejection of UM coverage in Louisiana until the Louisiana rejection dated “2-9-77” was signed.

There is nothing in writing and annexed to the policy that could conceivably be considered to reject UM coverage in the policy issued by Combined Companies. As under A.I.U. Insurance Co. v. Roberts, supra, UM coverage is afforded unless rejected in valid form. Combined Companies likewise extended UM coverage.

The CNA policy afforded automobile liability coverage up to $500,000 above retained limits of $100,000. We can find no setting forth of retained limits under the CNA policy insofar as it affords UM coverage. However, on the present motion for summary judgment, the extent of the UM coverage afforded under the CNA policy is not at issue, but merely the existence vel non of such coverage. Hence, we do not decide the extent of the UM coverage afforded by CNA.

The judgment of the trial court is affirmed in discharging Browning-Ferns as a party defendant, and reversed insofar as it discharges CNA and Combined Companies, and remanded for further proceedings as to CNA and Combined Companies, consistent with this opinion, all costs to be paid one-half by plaintiff, and one-half by CNA and Combined Companies.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

COVINGTON, Judge,

dissenting in part and concurring in part:

I dissent in part, and concur in part. I can not agree with the majority opinion that the language “delivered or issued” in LSA-R.S. 22:1406(D) indicates that there must be an insurance policy for UM coverage, or that it was not intended by the legislature that self-insurance should entail UM coverage. I can not accept the argument that by opting to be self-insured one can evade the obligation of UM coverage.

The statute in effect requires uninsured motorist protection be provided by all motorists in this state in not less than the limits described in the Motor Vehicle Safety Responsibility Law, unless rejected in writing. The statute provides for broad coverage and protection from harm caused by an uninsured motorist. See Earl v. Commercial Union Insurance Company, 391 So.2d 934 (La.App. 2 Cir. 1980); Bourgeois v. United States Fidelity and Guaranty Company; 385 So.2d 584 (La.App. 4 Cir. 1980), writ denied, 393 So.2d 736 (La.1980).

The certificate which Browning-Ferris obtained from the Financial Responsibility Division of the Louisiana Department of Public Safety permitting it to act as a self-insurer was in lieu of the insurance policy which it otherwise would have had to obtain. Such a certificate (as substitute for an insurance policy) is a “policy” for purposes of the Uninsured Motorist law. A self-insured is required, under LSA-R.S. 22:1406(D), to take the affirmative steps to reject uninsured motorist coverage that any other insured must take. A self-insured is not exempt under the statute from taking the requisite positive action. A self-insured is expected to provide coverage for at least the same risks that other motorists are required by law to cover. See LSA-R.S. 32:1042.

By qualifying as a self-insurer, Browning-Ferris chose to insure itself for all automobile liability coverage, including UM coverage. I would reverse the judgment appealed insofar as it dismissed Browning-Ferris as a party defendant, rather than affirming.

I concur in that part of the majority opinion which reversed the judgment of the trial court which discharges CNA and Combined Companies.


author: CHEHARDY, Judge.

text:
    Stephen REBOUL v. The NEW ORLEANS POLICE DEPARTMENT.
    No. 12883.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 23, 1981.
    Bach & Wasserman, Sidney M. Bach, New Orleans, for appellee.
    Salvador Anzelmo, City Atty., Charles J. Willoughby, Asst. City Atty., New Orleans, for appellant.
    Before GULOTTA, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Appellant, the New Orleans Police Department, requests, due to the alleged impropriety of the procedures utilized by the Civil Service Commission in rendering a decision in the case of Stephen Reboul v. The New Orleans Police Department, that it be allowed to appeal suspensively rather than devolutively the decision of the Commission ordering the New Orleans Police Department to reinstate appellee, Stephen Reboul, for back pay and other emoluments lost by virtue of his dismissal from the New Orleans Police Department.

The City argues that the decision of the Civil Service Commission was rendered by a three member panel of the Commission rather than by the entire Commission as required by applicable law. Appellee argues that even if the City were correct in this allegation, pursuant to Rule 4.5 of the City Civil Service Rules the time allowed for the Commission to render a decision (90 days after the hearing) would have now run, resulting in automatic reversal of the disciplinary action complained of.

Rule 16 of the Uniform Rules — Courts of Appeal, Section 4 states that no appeal shall stay execution of the decision of the commission unless otherwise ordered by the Court of Appeal. Section 5 of Rule 16 also states that all other rules and all laws regulating appeals, not inconsistent with the foregoing rules, shall be applicable to appeals from such commissions.

Our interpretation of the above sections of Rule 16 leads us to conclude that it is within our discretion to grant or deny a suspensive appeal from a Civil Service Commission decision. We find no showing by mover sufficient to warrant the granting of a suspensive appeal by this court.

For the reasons assigned, therefore, the motion for suspensive appeal filed by the New Orleans Police Department is denied.

MOTION DENIED.


author: REDMANN, Judge.

text:
    Linda DAY v. Maxie CASTILOW et al.
    No. 12309.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 30, 1981.

      Gerald E. Meunier, Kierr, Gainsburgh, Benjamin, Fallon & Lewis, New Orleans, for Linda Day.
    Steven B. Witman, Johnston & Duplass, New Orleans, for defendant Robert Van Langendonck.
    Joseph W. Rausch, Edward N. George, III, Stassi & Rausch, New Orleans, for defendants Maxie Castilow et al.
    Before REDMANN, SCHOTT and KLEES, JJ.
   REDMANN, Judge.

On this appeal from a summary judgment, the question is whether, as a matter of law, a lessor is not liable for violence against the lessee of one of two first-floor apartments by an intruder who hid in the unlockable, other first-floor apartment, after gaining access to the side patio through a gate whose lock was defective. The facts appear to be that the lessor knew of the undependability of the gate lock, and the lessor herself kept the vacant first-floor apartment unlocked, with no lock on it, for some period while she was moving things from that apartment to a second-floor apartment; and the lessor had also been told by a former tenant of the second-floor apartment that she had been assaulted in the second-floor apartment.

We cannot say, as a matter of law, that the lessor did not, under the circumstances, owe to the lessee a duty both to inform her of the alleged second-floor incident and to keep the other first-floor apartment and patio gate secure against intruders. The fulfillment of those duties would have doubly protected the lessee against the violence that befell her: it would have impeded access of and ambush by the intruder, and it would also have made the lessee herself more cautious about leaving the safety of her own apartment at night to investigate noise in the patio. (When she did, she was accosted by the intruder who had hidden in the unlocked apartment.)

The Louisiana law of tort is very broad: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” C.C. 2315. If the lessee can prove the facts set forth above, she shows that the lessor both facilitated the concealed presence of violent intruders upon the premises and failed to warn the lessee that such an intruder had previously assaulted a tenant. In our opinion that is fault within C.C. 2315 and a cause of the lessee’s injury.

A lessee’s obligation to maintain locks on leased premises, C.C. 2716, held controlling in Shelp v. National Surety Corp., 333 F.2d 431 (5 Cir. 1964), is not controlling here because the locks here were not locks of the portion of the lessor’s premises leased to plaintiff but of other portions of the lessor’s premises.

Accordingly a possibility of liability on the part of the lessor exists, and the summary judgment in favor of the lessor was erroneously granted.

Plaintiff also appeals from the judgment’s holding she had no cause of action against the owner of the adjacent building. The allegations are that that building and the lessor’s building had patio gates next to each other on the street without any dividing fence within to separate the properties as a result of a boundary dispute; that frame removal by the neighbor to facilitate painting deprived the gates of their normal support and caused plaintiff’s lessor’s gate not to lock properly, to the neighbor’s knowledge. We agree that those allegations do not state a cause of action; they show no duty owed by the neighbor to plaintiff to resolve the boundary dispute and repair the gate and build the missing fence in common. We therefore affirm the dismissal as to the neighbor.

Summary judgment reversed; otherwise affirmed.


text:
    Stephen R. PEREZ v. ALLSTATE INSURANCE CO. et al.
    No. 12406.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 30, 1981.
    Stephen R. Perez, Chalmette, in pro. per.
    Daniel L. Dysart, Law Offices of Manuel A. Fernandez, Chalmette, for Allstate Ins. Co.
    Ralph S. Whalen, Jr., Oestreicher & Whalen, New Orleans, for Lynne Burbano filed brief amicus curiae on behalf of Allstate Ins. Co.
    Before REDMANN, SCHOTT and KLEES, JJ.
   REDMANN, Judge.

A 15-year-old, insured by defendant under the “family liability” coverage of his mother’s homeowner’s policy, lost while playing football a $15,000 diamond ring he had taken to show to his mother. The plaintiff owner of the ring is the child’s father, the mother’s divorced husband. The insurer appeals from a judgment for the ring’s value plus $5,000 for mental anguish. We eliminate the latter award as unsupported by any substantial evidence but otherwise affirm.

The insurer argues over whether the divorced father or the custodial mother should be vicariously liable for the child during the child’s visits to the father (on one of which the child took the ring). But that question is immaterial because it is not only the mother (the custodial parent) who is an insured, but any resident relative of herself or her spouse. Thus the child is an insured and the insurer is liable for his (non-intentional) torts irrespective of whether the mother may also be liable.

The insurer also argues that the loss is excluded from coverage as “damage either expected or intended from the standpoint of the insured.” This argument is founded on the fact that the taking of the ring from the father’s house was intentional (and the insurer is not liable for any damages from the taking), but it ignores the question of whether the damage was intended. The damage was the loss of the ring, and not its mere taking. It is far more probable than not that the ring would have been returned, and there would have been no damages, had it not been for the child’s losing the ring. And there is no evidence that would reasonably support the inference that the child intended to lose the ring. Thus the damage was not expected or intended by the insured.

Amended in quantum to $15,000; costs of appeal to be divided between plaintiff and Allstate.


text:
    Isabel JACONNE v. SCHWEGMANN BROTHERS GIANT SUPER MARKETS, INC.
    No. 12461.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 30, 1981.
    Writ Denied Jan. 25, 1982.
    Occhipinti, Grace & Berger, William E. Mura, Jr., New Orleans, for plaintiff-appel-lee.
    Beard, Blue, Schmitt, Mathes, Koch & Williams, George R. Blue, Jr., New Orleans, for defendants-appellants.
   REDMANN, Judge.

Defendant self-service supermarket appeals from a $14,000 jury verdict for damages to the 83-year-old plaintiff from falling over a six-inch-high platform.

The platform was about 15 feet long and was used to stack bags of sugar. Toward each end the sugar was stacked high. Defendant’s security chief testified “In the center [for an area about three feet wide] there was no sugar at all except two or three small bags left on the bottom. They [store employees] either started stacking or removing to sweep and clean to reshelf.”

Plaintiff testified she thought the three-foot-wide opening a passageway. As she walked into it, she hit her leg and fell across the platform, breaking her left arm and suffering other minor damage.

We cannot substitute our reasonable inferences for those of the jury. Canter v. Koehring Co., La.1973, 283 So.2d 716. We cannot reverse their apparent finding that it is fault within C.C. 2315 to leave a six-inch-high display platform in such a condition that, to a shopper distracted by the business of shopping and by the store’s deliberately attractive displays (see Gonzales v. Winn-Dixie, La.1976, 326 So.2d 486), it appears to be two displays with an aisle between them. It is understandable that the shopper, even the reasonably prudent shopper, may be deceived by the aisle-like appearance and may walk into the platform. That conclusion was within the province of the jury.

Nor can we substitute our views on quantum in the absence of an abuse by the jury of its much discretion, C.C. 1934(3), Coco v. Winston Ind. Inc., La.1977, 341 So.2d 332. The broken arm was a serious injury, aggravated by the age of plaintiff, and we simply cannot say it was an abuse of the jury’s discretion to award her $14,000 damages (which included a modest amount of medical expenses).

Affirmed.


author: SCHOTT, Judge. REDMANN, Judge,

text:
    Wanda JOHNSON v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 12731.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 30, 1981.
    Jack Dunn, Dunn & Rasch, Ltd., Metairie, for plaintiff-appellant. •
    . A. R. Christovich, Jr., New Orleans, for defendant-appellee.
    Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

This is a suit by Wanda Johnson against New Orleans Public Service, Inc. for damages from a bruise she allegedly sustained when her foot was pushed by an opening door on a bus into the front wall of the bus as she was preparing to make her exit. The issue is whether the trial judge failed to make a proper assignment of burden of proof in the case and whether defendant’s evidence was sufficient to exculpate itself from liability.

Plaintiff was a passenger on the bus preparing to make her exit through the front door when the accident occurred. She was standing on the first step from the top as the door opened. This door consists of two panels on each side which open toward the inside of the bus on hinges so that the panels fold against each other on each side of the door. The operation of the door takes up space on the bottom step but there is a distance of two or more inches between the second step and the door when it is in an open position. Thus, plaintiff’s foot had to be protruding some distance in front of the second step in order for it to get caught in the door. There is also evidence that the air-operated door’s opening movement “wasn’t enough force” to push one’s foot against the front wall.

In dismissing plaintiff’s suit the trial judge gave the following reasons:

“Notwithstanding the fact that the defendant, New Orleans Public Service, Inc., is legally obligated to safely carry its passengers to their destinations and holding them strictly liable for injuries suffered by a passenger, there must be some form of evidence to establish some fact which would indicate negligence, no matter how slight, on the part of New Orleans Public Service, Inc., in order for plaintiff to prevail in her claim for damages suffered while on a N.O.P.S.I. bus. In the instant case, the Court is of the opinion that no negligence on the part of New Orleans Public Service, Inc. has been established; no defect in construction has been shown which would have caused the claimed injury to plaintiff.”

Plaintiff argues that these reasons contain an error of law which requires a reversal of the judgment in this court since the reasons are inconsistent with Galland v. New Orleans Public Service, Inc., 377 So.2d 84 (La.1979). There the court held that once the passenger proves that she was injured the burden shifts to the carrier to show that it is free from negligence. In order to recover plaintiff need not prove some incident, occurrence or condition attributable to the carrier, but simply that she failed to reach her destination in safety establishing a prima facie case of negligence and imposing the burden on the carrier to exculpate itself from liability.

However, the trial judge did specifically find that there was no negligence on the part of defendant and no defect in the construction of the door which caused the injury to plaintiff. In effect he made the proper allocation of the burden of proof and concluded that defendant did exculpate itself from liability. This factual conclusion is borne out by the record and is not clearly wrong.

The bus driver and a claims adjuster both testified that there was nothing wrong with this door and because of the distance between the door on the bottom step and the second step on which plaintiff was standing she could not get her foot caught in that door unless she somehow stuck her foot in the door. There is no negligence on the part of the carrier if the passenger chooses to place her foot between the moving door and the door frame. Yet, this seems to be the only way this accident could have happened.

We deem the trial judge’s reasons to be a finding that defendant did carry its burden of proof to show that it was free of negligence, that there was no manifest error in this finding, and the judgment is affirmed.

AFFIRMED.

REDMANN, J., dissenting with assigned reasons.

REDMANN, Judge,

dissenting.

Although from this insufficient record it appears that this could be a case of injury so slight as not to deserve any court’s attention, it does not appear to be a case of no liability.

The driver testified that he did not “look over at her before [he] opened the door. * * If you’re [a passenger] on the ground step I usually say step up on the next step before the door opened because [but?] she seemed to be clear of the door.” Newer buses have signs warning passengers to stay out of the door well. The carrier owes and here breached a duty to a passenger not to operate an inward-opening door when the passenger is in a position to be hit by the door.

The judgment should be reversed on liability and remanded to allow medical testimony omitted from evidence through no fault of plaintiff, because that evidence could possibly show that plaintiff’s foot was in fact injured.


author: SCHOTT, Judge.

text:
    George HOFFMAN v. SABRE MARINE, INC., William H. Critchfield, Harold M. Hunt, Jr., & Fun Unlimited, Inc.
    No. 12710.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1981.
    Kenneth J. Berke, A Professional Law Corp., New Orleans, for defendant-appellee Fun Unlimited, Inc.
    Albert S. Dittmann, Jr., Kronlage, Ditt-mann & Maselli, New Orleans, for plaintiff-appellant.
    Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

This is a suit for redhibition and damages by plaintiff George Hoffman against Sabre Marine, Inc. (Sabre), William H. Critchfield, Harold M. Hunt, Jr., and Fun Limited, Inc. (Fun), growing out of a sale of a boat to plaintiff. The trial court granted Fun’s motion for summary judgment dismissing plaintiff’s suit against Fun and plaintiff has appealed. The issue is whether Fun’s relationship to Sabre and its involvement with plaintiff prior to the purchase of the boat were sufficient to provide plaintiff with a case against Fun under C.C. Arts. 2315 and 2316 based on negligent misrepresentation and fraud. The pleadings, affidavits and deposition of plaintiff established the following facts:

1. In March, 1980, plaintiff attended a boat show in New Orleans where he became interested in purchasing a commercial vessel known as a “Critchfield 33” on display at the show.
2. Such vessel was manufactured by Sabre whose exclusive agent and dealer for new boats in New Orleans was Fun.
3. Plaintiff had received at the boat show a brochure picturing and describing the “Critchfield 33,” which brochure stated that the boat would speed in excess of 30 miles per hour and which identified Fun as Sabre’s exclusive New Orleans dealer.
4. At the boat show plaintiff was first shown the boat by Hunt, an officer of Sabre.
5. A few days later plaintiff returned to the show to look at the boat again and he met Fun’s general manager, David Strickland, who first stated that he didn’t know much about the boat but who did hand him another copy of the brochure and showed him around the boat, offering to “tell you all the good features about it.” While on the tour of the boat Strickland told plaintiff that this was Sabre’s “number one boat and he was the dealership for Sabre Marine and any problems that I got, he would take care of them.”
6. In April, 1980, plaintiff went to Florida where he purchased a “Critchfield 33” from Hunt and Critchfield, both officers of Sabre. The boat was a “demonstrator” which had been used for 52 hours.
7. Before his purchase plaintiff was taken for a ride in the boat but it was never operated at top speed because of the problem of “wake” in the small canals where it was operated, but Hunt and Critchfield assured plaintiff that it would go 30 miles per hour with no problem.
8. Fun was in no way involved in the sale itself, had no interest in the boat sold, and got no commission on the sale.
9. The boat was shipped from Florida to Fun’s yard in New Orleans where plaintiff took delivery and paid the $31,000 purchase price with a check payable to Hunt and Critchfield.
10.One of the principal reasons for plaintiff’s purchasing the boat was his belief that it would speed at 30 miles per hour, but he learned later that it could not travel over 19 miles per hour.

In granting Fun’s motion for summary judgment the trial court stated there was no duty owed by Fun to plaintiff because of the absence of a showing of pecuniary interest on Fun’s part. The court cited Restatement (Second) Torts, Sec. 552, and Devore v. Hobart Mfg. Co., 367 So.2d 836 (La.1979).

In this court plaintiff assigns error in the trial court’s concluding 1) no duty to exercise reasonable care to supply correct information was owed plaintiff by defendant absent a showing of pecuniary interest on defendant’s part in the sale of the boat; 2) no genuine issue of material fact existed as to whether defendant had a pecuniary interest in the sale of the boat; and 3) no genuine issue of material fact existed with respect to plaintiff’s allegations of fraud.

Restatement (Second) Torts, Sec. 552, provides:

“(1) One who, in the course of his business, profession or employment or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.”

Comment d. provides:

“The defendant’s pecuniary interest in supplying the information will normally lie in a consideration paid to him for it or paid in a transaction in the course of and as a part of which it is supplied. It may, however, be of a more indirect character. Thus the officers of a corporation although they receive no personal consideration for giving information concerning its affairs, may have a pecuniary interest in its transactions since they stand to profit indirectly from them and an agent who expects to receive a commission on a sale may have such an interest in it although he sells nothing.”

In Devore v. Hobart Mfg. Co., supra, plaintiff had been injured while on the job with the school board, when boiling water spewed from a steamer. In response to a letter from her attorney the board’s food service director advised that the manufacturer of the steamer was Cleveland Manufacturing Company. Suit was filed against that entity but it was later (after prescription date) learned that the manufacturer was Cleveland Range Company. A supplemental petition against that entity was dismissed on prescription and plaintiff sued the board and its food service director.

The trial court dismissed the suit and the Court of Appeal affirmed on the basis that, assuming the theory of negligent misrepresentation to provide a cause of action to plaintiff, her suit was properly dismissed because the defendants had no pecuniary interest in the incident where the manufacturer was mis-identified. 359 So.2d 1108 (La.App. 3rd Cir. 1978). Affirming on other grounds, the Supreme Court said at page 839:

“We are in agreement with the trial and intermediate appellate courts’ conclusions set forth in White v. Lamar Realty, Inc., 303 So.2d 598 (La.App. 2nd Cir. 1974) that Civil Code articles 2315 and 2316. ‘.. . afford a broad ambit of protection for persons damaged by intentional and negligent acts of others ... ’ sufficient to encompass a cause of action for negligent misrepresentation. However, we are not required in the resolution of this case to determine fully the extent to which and the conditions under which our law affords a cause of action for such a tort. We find it sufficient to conclude that here plaintiff has not stated a cause of action against defendants.”

The court concluded that the board had no duty to supply plaintiff with correct information.

Appellant argues that the Supreme Court declined to adopt the restatement principle of pecuniary interest so that it has no application. We disagree. The Supreme Court simply did not reach the question because it was unnecessary to do so. That is not the equivalent of abrogating or repudiating the principle. It seems only logical to hold that Fun must have some interest in plaintiff’s purchase of the boat from Hunt and Critchfield in order to become liable to plaintiff for damages he incurred from his purchase.

Next, plaintiff argues that there are genuine issues as to the material fact of Fun’s pecuniary interest in the boat sale, but we see none. Fun had the franchise for new boat sales from Sabre in New Orleans. Plaintiff went to Florida to buy a used boat from Sabre’s officers. The fact that Fun may, in the'future, be able to provide equipment, parts and service to plaintiff does not mean that Fun had a financial interest in the transaction out of which this suit arose.

Finally, plaintiff contends that there are issues of material fact with respect to his allegation of fraud against Fun. Pre-termitting the question of whether plaintiff’s petition was sufficient to allege fraud with the particularity required, plaintiff’s own deposition implicates Fun only to the extent that its manager showed him around the boat and gave him a brochure after the preface that he, the manager, “didn’t know much about the boat.” This is scarcely the kind of an introduction for a fraudulent misrepresentation on which plaintiff relied when he bought the boat. Rather, it is clear from the deposition that plaintiff did not rely on the brochure or Fun’s manager at all. Instead, he went to Florida where he was taken for a ride in the boat by Hunt and was told by him and Critchfield that it would easily and properly go 30 miles per hour.

We have concluded that the summary judgment was properly granted and it is affirmed.

AFFIRMED.


author: KLEES, Judge.

text:
    Barbara Norkin, wife of Ilee Magee JOSEPH v. Ilee Magee JOSEPH.
    No. 12318.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1981.
    Writ Denied Jan. 25, 1982.
    Rollin W. Cole, Jr., Cole, Holladay & Stol-zle, Baton Rouge, for plaintiff-appellee.
    Alonzo T. Stanga, III, Metairie, for defendant-appellant.
    Before REDMANN, SCHOTT and KLEES, JJ.
   KLEES, Judge.

On March 24, 1980, plaintiff filed suit against defendant for separation from bed and board. The defendant answered and sought custody of the one child born of the marriage, Ilee Magee Joseph, Jr. From a judgment denying a change of custody, defendant appeals.

The issue presented on appeal is whether the trial court abused his discretion in denying defendant’s motion for custody of his minor child. A review of the record reveals that defendant was the only witness at the hearing. He testified that he was gainfully and steadily employed in a five day a week job. Defendant further testified that he would keep the child with his mother and at a nursery on the days when his mother was not able to take care of the child. This child was one of six born to his wife, five from two previous marriages and that all of the children were presently in California. When questioned by the trial court regarding what would be best for the child, if the child was in defendant’s custody, rather than the mother’s custody, the defendant replied, “because I would take care of him. I work five days a week. I would do what I have to do to raise my son and take care of him, and make a home for him, and give him the best education I know how.”

When further asked by the Court if defendant had any reason to believe that was not being done now, he indicated that although he feels his wife cares about the child, she leaves him in California to come back to Baton Rouge to see another man, and he had seen her in a lounge one particular night.

Other than some unsupported self-serving statements to the effect that his wife was seeing another man and leaving her children in California with relatives while she was traveling to Baton Rouge, defendant provided the court with information that only proved that he loved his child; and as a matter of fact admitted that his wife cared for the child. He produced no positive evidence which would indicate that it was in the best interest of the child to live with him rather than live with the mother. The procedure for appellate review is to give great weight to the determination of the trial judge, and to and to overturn a determination only when there is a clear abuse of discretion. Bordelon v. Bordelon, 390 So.2d 1325 (La.1980); citing Fulco v. Fnlco, 259 La. 1122, 254 So.2d 603 (1971). This test is substantially similar to the rule applied by the Appellate Court which prevents the upsetting of the trial court determination of fact unless it is “clearly wrong”. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). Under these rules, a conclusion reached by a trial court derived from the facts is entitled to just as must weight as a conclusion that certain evidence establishes a fact.

Here even though defendant was the only witness to testify at the custody hearing and obviously was quite truthful and candid at the custody hearing, we conclude that the trial court did not abuse its discretion accorded it by law.

Accordingly, the judgment of the lower court is affirmed.

AFFIRMED.


author:
KLEES, Judge.
      REDMANN, Judge,

text:
    William M. THOMAS, Individually and as the Administrator of the estate of his minor daughter, Eleanor Ann Thomas v. WINN DIXIE LOUISIANA, INC.
    No. 12476.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1981.

      Sherman F. Raphael, J. D., New Orleans, for plaintiff-appellant.
    Robert E. Peyton, Christovich & Kearney, New Orleans, for defendant-appellee.
    Before REDMANN, SCHOTT and KLEES, JJ.
   KLEES, Judge.

On August 22, 1977, at approximately 3:00 P.M., Eleanor Ann Thomas entered a self-service supermarket owned and operated by the defendant. It was raining intermittently during the day and was raining hard at the time she entered the store. Upon entering the store Eleanor turned left and proceeded to take about 10 paces when she slipped on some water which was on the floor and was injured.

The testimony of Eleanor Ann Thomas and the defendant’s store manager indicates that there were only small puddles of water similar to “umbrella drippings” and the usual amount of water which can be tracked into a store by customers and shopping cart wheels on a rainy day.

The store manager, Thomas A. Rickerson, Jr., testified that the normal procedure on a rainy day was to keep the entranceway and the aisles free from debris, to place a mat at the entranceway and to mop this area to keep it dry. Mr. Rickerson testified that on this day he made sure the mat was in place, and he, in fact, mopped the area just five (5) minutes prior to her fall.

Mr. Rickerson declared that he was notified about the accident by his office girl and immediately reported to the accident scene where he stated that he observed only small drippings on the floor which were probably brought in from clothing and shopping carts.

The trial court although sympathetic to the young girl’s accident, was obviously impressed with the testimony of the store manager who had himself mopped the accident area just five minutes prior to the accident and placed a mat in the entrance-way to guard against just this type of occurrence. Additionally, the trial court noted that it would be reasonable for customers to realize that the floor might be slippery upon coming in from a rain. The victim in this case when asked what caused her to fall stated, “Well, really they had water on the floor, I noticed after I fell but I didn’t bother about looking when I walked in the store because usually they didn’t have water on the floor.”

Thus, the trial court concluded that there was a foreign substance on the floor, i.e., the drippings and that the plaintiff did slip and fall as a result of the foreign substance. This conclusion required the defendant to exculpate itself by showing it exercised reasonable care for the safety of its customers.

Later the trial judge found that the defendant did act substantially in accordance with Gonzales v. Winn Dixie, 326 So.2d 486 (La.1976) and dismissed the plaintiff’s suit; although the court expressed the opinion that it did not agree with Gonzales and the store should be the insurer of the safety of its customers.

The present case is analogous to the decision of this court in Smith v. Winn Dixie, 389 So.2d 900 (La.App. 4th Cir. 1980). The only difference between the present case and Smith is that in the present case the plaintiff slipped and fell about 10 paces from the entranceway of the store (but still in the vicinity of the entrance) and in Smith the plaintiff fell after her initial steps into the store. Beyond this the facts are almost identical and we can find no error in the trial judge’s findings. The judgment of the trial court should be affirmed.

Appellant avers that since two of his witnesses could not attend the trial that he was entitled as of right to a continuance under the latter part of C.C.P.Art. 1602.

However a careful review of the arguments propounded by appellant discloses no abuse of discretion by the trial court.

It would appear that the testimony of these two witnesses, assuming it would be most favorable to the plaintiff, would merely be cumulative and would not alter the results of the trial. Mid South Contractors, Inc., v. Ratcliff, 325 So.2d 375 (La.App. 3rd Cir. 1975) Writ Denied 329 So.2d 463 (La.1976).

Finally it is important to note that the appellant’s attorney was aware of the trial for months and there is no indication in the record that he even attempted to subpoena any of these witnesses.

Generally, it is within the wide discretion of the trial judge to determine that the failure of an unsubpoenaed witness to appear, absent compelling grounds for nonappearance, is not a basis for a continuance.

Finally the appellant claims that the case should have been held open to give the plaintiff-appellant time to take the oral depositions of the two witnesses. This would amount to a discretionary continuance under C.C.P.Art. 1601.

It is a well established rule that the trial judge has wide discretion in acting upon a motion for continuance under C.C.P. Art. 1601. His ruling will not be disturbed on appeal in the absence of a clear showing of an abuse of that discretion. Sauce v. Bussell, 298 So.2d 832 (La.1974); Bryer Insurance Agency, Inc., v. Bruno, 261 La. 177, 259 So.2d 55 (1972).

The facts support a conclusion that the trial judge did not abuse the discretion accorded him. This case was continued once and the court then “bent over backwards” to assign the case for July 1, 1980. The appellant and/or his attorney were aware of the trial date months in advance and had ample time to depose either or both of the two witnesses prior to trial. Furthermore, it was not until the day the trial was scheduled that appellant moved for a continuance.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

REDMANN, Judge,

concurring.

At the entrance to the store, the storekeeper’s duty is not as demanding as it is in the areas of distracting displays of goods for self-service. But whether or not the storekeeper was at fault, this customer was at fault under these circumstances, unexcused by the deliberate distractions the storekeeper places elsewhere in the store. I therefore concur in affirming the denial of recovery.

      . C.C.P.Art. 1602: Peremptory grounds

      “A continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.


author: DOMENGEAUX, Judge.

text:
    Lydia GOLDEN v. Terry A. CROMWELL, M. D., et al.
    No. 8754.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 2, 1981.
    D. Warren Ashy, Lafayette, for plaintiff-appellant.
    Pugh & Boudreaux, Charles J. Bou-dreaux, Lafayette, for defendants-appel-lees.
    Before DOMENGEAUX, SWIFT and STOKER, JJ.
   DOMENGEAUX, Judge.

MOTION TO REMAND

Defendants-appellees, Terry A. Cromwell, M.D., St. Paul Fire and Marine Insurance Company and “Jane Doe”, and court reporter Vernelle P. Hebert move to remand this suit to the trial court to permit traversing of the forma pauperis order. The motions are unopposed. We remand.

The plaintiff, Lydia Golden, was permitted to prosecute this matter to trial by jury as a pauper based upon the ex parte order of the trial court dated November 14, 1977.

After the appeal was lodged, defendants-appellees filed a motion to remand on November 2, 1981 and Vernelle P. Hebert, Official Court Reporter, filed a motion to remand on November 4, 1981. The defendants-appellees aver that the testimony of the plaintiff herself at the trial establishes that at the time of the trial she had definite arrangements made to commence employment as of September, 1981. Both defendants-appellees and the court reporter aver that plaintiff is currently employed and not entitled to proceed with this appeal in for-ma pauperis. The two motions to remand pray for such to permit traversing of the forma pauperis order.

The authority of an appellate court to remand an action for proper consideration is conferred in part by LSA-C.C.P. art. 2164 which states:

“The appellate court shall render any judgment which is just, legal and proper upon the word of an appeal.... ”

Under the judicial interpretations given to this article, this court is empowered to remand a case for the consideration of new evidence. Roark v. May, 367 So.2d 397 (La.App. 3rd Cir. 1978), writ denied, 368 So.2d 123 (La.1979).

LSA-C.C.P. art. 5184 states:

“An adverse party may traverse the facts alleged in the affidavits of poverty, and the right of the applicant to exercise the privilege granted in this Chapter, by a rule against him to show cause why the order of court permitting him to litigate, or to continue the litigation, without paying the costs in advance, or as they accrue, or furnishing security therefor, should not be rescinded.
The court shall rescind its order if, on the trial of the rule to traverse, it finds that the litigant is not entitled to exercise the privilege granted in this Chapter.”

There is no statutory provision for the court reporters of the Fifteenth Judicial District to traverse by rule a party’s rights to the benefits of our pauper statutes. We need not decide at this time whether a court reporter is an “adverse party” given the right to traverse under LSA-C.C.P. Article 5184 because the court reporter is not the only party who filed a motion to remand. The defendants-appellees also filed a motion to remand for the purpose of traversing the forma pauperis order. They are clearly “adverse parties” given such a right under LSA-C.C.P. Article 5184.

The appeal is hereby remanded to the trial court for the purpose of allowing the movers to traverse the appellant’s right to proceed with their appeal in forma pauper-is.

APPEAL REMANDED.


author: THOMAS M. McBRIDE, III, Judge Ad Hoc.-

text:
    Barbara Johnson SANDERS v. PLAQUEMINES CABLE TV, INC. Plaquemines Cablevision, Inc.
    No. 11962.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 3, 1981.

      Richard W. Bussoff of Monroe & Lem-ann, New Orleans, for intervenor-defend-ant-appellant.
    Darryl W. Bubrig Sr., of Bubrig & Scan-durro, Buras, for defendant.
    Emile E. Martin, III, Belle Chasse, for plaintiff-appellee.
    Before REDMANN, STOULIG and THOMAS M. McBRIDE, III, JJ.
   THOMAS M. McBRIDE, III, Judge Ad Hoc.-

This action was brought by petitioner, Barbara Johnson Sanders, who sought the removal of several alleged encroachments on property she purchased from her father in Plaquemines Parish on November 25, 1977. On February 16, 1965 her father leased a forty foot (40') square section of land, approximately three hundred fifty (350') feet to the rear of his property, to Buras Video Company Inc. Buras Video subsequently changed its name to Plaque-mines Cable T.V., Inc., and thereafter sold its assets to Plaquemines Cablevision, Inc.

The petitioner alleged eight (8) encroachments by defendant in her petition. Two (2)of the alleged encroachments were removed by the defendant prior to trial, therefore the trial court was concerned only with the following alleged encroachments:

(1) A metal building and part of a tower;
(2) A carport attached to the metal building;
(3) An overhead service cable running from the tower to the satellite or disc located on adjacent property;
(4) A cable on the upriver-side of the leased premises leading from the tower to a pole;
(5) A power line leading from the metal building on the leased premises to a pole; and
(6) A telephone line leading from the metal building on leased premises to a house located near the highway.

The trial court held in favor of Plaque-mines Cablevision, Inc., concerning four of the six encroachments; provided the metal building and tower were within the forty foot square leasehold and that all cable, electric or power lines, except for the service cable running from the tower to the disc on adjacent property, were erected pri- or to the Louisiana Supreme Court’s decision in Lake Inc. v. Louisiana Power and Light Co., 330 So.2d 914 (La.1976) and were therefore covered by the “St. Julien Doctrine”, (St. Julien v. Morgan La. and Tex. Realty Co., 35 La.Ann. 942) giving Cablevision power of expropriation.

The trial court found that the carport was not contained within the forty foot square leasehold and thus was an encroachment and this is conceded by defendant-appellant. Further, it was held that the overhead cable extending from the tower to a disc on adjacent property was erected subsequent to the Lake decision, supra, and thus was an encroachment.

Defendant-Appellant, Plaquemines Ca-blevision, Inc., suspensively appealed contending the trial court erred in holding that the cable was an encroachment; and alternatively, that if it is, the trial court should have proceeded to determine if Mrs. Sanders was entitled to damages under the doctrine of Inverse Expropriation and R. S. 45:781 and 19:14.

We first address the issue of whether or not the overhead cable, extending from the tower on the leasehold to a satellite or disc on adjacent property is an encroachment.

It is clear from the evidence and testimony that the overhead cable extended outside of the forty foot square leasehold granted to defendant. However, the defendant submits that the only property of petitioner over which the overhead cable extends is a road which they were given the right to use. The lease provided in part:

“Lessor further grant lessee a right to use the existing road leading from State Highway No. 23 through their other lands. In addition, Lessee is given the right to locate four guy lines on lessor’s adjacent properties, said guy lines to be used in support of community television antenna.”

The Defendant-Appellant construes this clause to give it the right to run a cable across the road from their leasehold to adjoining land. Defendant is in error. The right to use the road arises from and is governed by the above quoted language which grants defendant a conventional servitude of passage plus the right to locate four guy lines outside the leased 40 X 40 foot portions.

“The servitude of passage is the right for the benefit of the dominant estate whereby persons, animals, or vehicles are permitted to pass through the servient estate. Unless the title provides otherwise, the extent of the right and the mode of its exercise shall be suitable for the kind of traffic necessary for the reasonable use of the dominant estate.” Article 705-La. Civil Code.
“Right of passage, or right of way, is a ‘servitude’ and when it is the result of a contract its extent and mode of use is regulated by that contract.” Clause v. Broussard, 146 So.2d 828 (3rd Cir.-1962) “Parties may by their contract limit the extent and mode of using a servitude of passage.” McLure v. Alexandria Golf & Country Club, Inc., 344 So.2d 1080 (3rd Cir.-1977)

Defendant’s contention is further negated by the language pertaining to the guy lines and the finding of the trial court that the road ended prior to the point where the cable crossed. If the defendant had desired to conventionally obtain the right to run its satellite cable across plaintiff’s land it would have negotiated as it did for the right to string and anchor its guy lines. The non-inclusion limits defendant’s right to one of ground passage only.

“Doubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate.” McLure v. Alexandria Golf & Country Club, Inc., 344 So.2d 1080 (3rd Cir.-1977)

The finding by the trial court that the overhead service cable from the leased property to the satellite disc on adjoining lands is an encroachment over plaintiff’s remaining property is correct and will not be disturbed. Deshotel v. Aetna Casualty and Surety Company, 269 So.2d 850 (3rd Cir.-1972).

Defendant-Appellant contends that if the cable is an encroachment it is entitled to have the cable remain and that plaintiff’s remedy is one in damages under the “Doctrine of Inverse Expropriation”, R.S. 19:2, R.S. 19:14 and R.S. 45:781.

R.S. 19:2 — “Where a price cannot be agreed upon with the owner any of the following may expropriate needed property: ... (6) Any domestic or foreign corporation created for the purpose of transmitting intelligence by telegraph or telephone; ...”

R.S. 19:14 — “... In the case where any corporation referred to in Section 2 of this Title has actually, in good faith believing it had the authority to do so, taken possession of privately owned immovable property of another and constructed facilities upon, under or over such property with the consent or acquiescence of the owner of the property, it will be presumed that the owner of the property has waived his right to receive just compensation prior to the taking and he shall be entitled only to bring an action of judicial determination of whether the taking was for a public and necessary purpose and for just compensation to be determined in accordance with Section 9 hereof, as of the time of the taking of the property, or right or interest therein, and such action shall proceed as nearly as may be as if the corporation had filed a petition for expropriation as provided for in Section 2.1 of this Title.” Emphasis added.

R.S. 45:781 — “A. Corporations, domestic or foreign, formed for the purpose of transmitting intelligence by telegraph or telephone or other system of transmitting intelligence, may construct and maintain telegraph, telephone or other lines necessary to transmit intelligence along all roads ... Such companies, shall be entitled to the right of way over all lands belonging to the state and over the lands, privileges and ser-vitudes of other persons, ... upon making just compensation therefor. If the company fails to secure such right by consent, contract or agreement upon just and reasonable terms, then the company has the right to proceed to expropriate as provided by law for railroads and other works of public utility...”

Assuming arguendo that cable television proprietors have a right to expropriate ser-vitudes they must strictly comply with the enabling statute. This defendant has failed to do. It has not tried to secure such right by consent, contract or agreement upon just and reasonable terms with the owner of the property, Mrs. Sanders.

Mr. Virgil Jackson, formerly connected with Plaquemines Cable T.V. testified that the matter of the satellite cable was not discussed until 1978 and that the cable was installed in February 1978. Mr. Jackson further testified that the matter was mentioned to Mr. Johnson who said “It was okay”.

Mrs. Sanders acquired the property from her father on November 25, 1977 and the act was placed of public record on December 6, 1977, being recorded in COB 461, folio 253. Mr. Johnson therefore could not grant the right to run cable nor could he acquiesce in its erection. Bray v. Boyd, 286 So.2d 508 (2nd Cir.-1973-Cert. denied).

The trial judge correctly construed R.S. 19:2 and R.S. 19:14 in denying defendant the right of “Inverse Expropriation” as R.S. 19:2 does not grant the right of expropriation to Cable Television Companies and thus they cannot have the right of “Inverse Expropriation” under R.S. 19:2.

Defendant’s right to expropriation under R.S. 45:781, if any, must be done in compliance with the provisions of that chapter.

Accordingly, the judgment is affirmed.

AFFIRMED.


author: FORET, Judge.

text:
    LOUISIANA OFFSET PRINTERS, INC., Plaintiff-Appellee, v. Marion O. WHITE and Doris White, d/b/a Opelousas LeMonde, Defendants-Appellants.
    No. 8780.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 1981.

      Sandoz, Sandoz & Schiff, L.B. Sandoz, Jr., Opelousas, for plaintiff-appellee.
    White & Pitre, Joshua J. Pitre, Opelousas, for defendant-appellant.
    Before FORET, SWIFT and STOKER, JJ.
   MOTION TO DISMISS

FORET, Judge.

The plaintiff-appellee, Louisiana Offset Printers, Inc., moves to dismiss the appeal of the defendants-appellants, Marion 0. White and Doris White, d/b/a Opelousas LeMonde, as not being timely filed.

We dismiss defendants-appellants’ appeal.

The pertinent facts, briefly stated, are as follows: This is a suit filed by the plaintiff-appellee against the defendants-appellants for a sum of money alleged to be due on an open account. On May 4, 1981, judgment was rendered in favor of the plaintiff in the Opelousas City Court, and notice of judgment was mailed to all parties on that date. On May 12, 1981 defendants filed a motion for a new trial on the grounds that new and additional evidence had been obtained which was unavailable prior to trial. On May 20, 1981, a hearing was held to determine the merits of the new trial. On that same day, a second motion for new trial was filed by defendants. On July 14, 1981, judgment was signed by the trial court denying the motions for new trial on the grounds that the motion for a new trial had not been timely filed.

On August 4, 1981, defendants filed a petition for a suspensive appeal from the judgment of May 4,1981, and on August 26, 1981 filed their appeal bond.

As this is an appeal from the Opelousas City Court the provisions of LSA-C.C.P. art. 4919 and LSA-C.C.P. art. 5003 are applicable here. These articles read as follows:

Art. 4919. New trials; delay
A. After judgment is signed in the parish or city court, a party may make a written request or motion for new trial for any of the grounds provided by Articles 1972 and 1973.
B. The delay for applying for a new trial shall be three days, exclusive of holidays. Where notice of judgment is required, this delay commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment.
Acts 1979 No. 46, § 1, eff. Jan. 1, 1980.
Art. 5003. Delay for appeal
A. An appeal from a judgment rendered by a justice of the peace court, a city court, or a parish court may be taken only within ten days from the date of the judgment or from the service of notice of judgment, when such notice is necessary.
B. Where an application for new trial is timely filed, however, the delay for appeal commences on the day after the motion is denied, or from service of notice of the order denying a new trial, when such notice is necessary.
Acts 1979, No. 46, § 1, eff. Jan. 1, 1980.

The judgment of the trial court was signed on May 4, 1981 and notice of judgment was mailed the same date. Under LSA-C.C.P. art. 4919, appellants were required to apply for a new trial within 3 days from this date. The appellants’ motion for a new trial was not filed until May 12,1981, eight days after the delay had run, and therefore was untimely.

If an application for a new trial is not timely filed, then the appeal must be perfected within the same delay as if no application for a new trial had been filed. McQuillin v. Ezernack, 331 So.2d 125 (La.App. 3rd Cir. 1976); Bielkiewicz v. Insurance Company of North America, 201 So.2d 130 (La.App. 3rd Cir. 1967).

Under LSA-C.C.P. art. 5003 and the aforementioned jurisprudence, the appellants were required to take their appeal within 10 days from the date of judgment. As this appeal was not taken until August 4, 1981, some 3 months later, it is clearly untimely.

For the above and' foregoing reasons, the appeal is dismissed at the appellant’s cost.

APPEAL DISMISSED.


text:
    Leon SEALS v. STATE of Mississippi.
    No. 53155.
    Supreme Court of Mississippi.
    Nov. 25, 1981.
    Rehearing Denied Jan. 6, 1982.
    Taylor & Whitwell, Lawrence W. Vaughn, Jack R. Jones, III, Southaven, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from County Court, DeSoto County; Mills E. Barbee, County Judge.

Before SMITH, P. J., and WALKER and BOWLING, JJ.

AFFIRMED.


author: SUGG, Justice,

text:
    Marlon Joe PACE and Glendle Ray Sones v. STATE of Mississippi.
    No. 52805.
    Supreme Court of Mississippi.
    Nov. 25, 1981.
    Sones, Rehearing Denied Jan. 6, 1982.

      Fielding L. Wright, James H. Heidelberg, Pascagoula, William P. Wessler, Donald F. Rose, Gulfport, for appellants.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and HAWKINS, JJ.
   SUGG, Justice,

for the Court:

In the Circuit Court of Harrison County First Judicial District, Marlon Joe Pace and Glendle Ray Sones were convicted of burglary. Pace was sentenced to seven years imprisonment, the maximum term for burglary, under the habitual criminal statute, section 99-19-81 Mississippi Code Annotated (Supp.1981). Sones was sentenced to life imprisonment under the habitual criminal statute, section 99-19-83 Mississippi Code Annotated (Supp.1981). Both Sones and Pace appeal, assigning several errors which merit discussion.

After receiving a call from a confidential informant that the J. C. Rich Food Store in Gulfport was going to be burglarized, officers from the Gulfport Police Department and the Mississippi Highway Patrol made a stake-out of the business. With permission of the store owner, two officers were locked inside the store on the evening of Saturday, November 17, 1979. Nothing unusual occurred that night. The stake-out was repeated on the next night, November 18, 1979.

At approximately 8:15 p. m. the officers inside the store were notified by officers outside the building that two men were getting out of a Ford Pinto car. The officers then heard beating noises at the rear of the store. After the noise stopped, two men came into the store.

The officers identified themselves as police. At that point Sones said, “Mickey, its me, Glenn, don’t shoot me, I don’t have a gun.” The men dropped a brace and bit and screwdriver, were placed under arrest, and handcuffed. Officer Mickey Ladner testified that, as they were leading Sones and Pace out of the building, Sones stated, “Mickey, we didn’t even need tools in here, we had all the tools we needed in here.” A matchbook with the telephone number of a waffle house restaurant written on it was found in the pocket of Sones. A police unit went to the waffle house and observed two women come out of the restaurant and get into the Pinto, drive past the grocery store, and stop about a block away, where it was intercepted by the police. One of the women in the car was recognized as a companion of Pace and Sones; the other identified herself as Sones’ sister.

Sones testified at trial that he and Pace were approached about the burglary by a man named Jack Smith, whom they met for the first time about a week before the burglary. Sones testified that he and Pace initially refused any involvement in the burglary, but agreed to do it at the fourth meeting with Smith. Sones testified that Smith told them what was in the store and brought them tools to use in the burglary. According to Sones, Smith was to get a third of anything that they took. Sones testified that no one else knew about the burglary except Smith, Sones, and Pace.

Sones and Pace first assign as error the trial court’s failure to acquit them of the burglary charge. The appellants contend that because they raised the affirmative defense of entrapment which the state did not rebut, they were entitled to an acquittal. We are of the opinion that Pace did not raise the entrapment defense because he never admitted participation in the burglary. Pace pled not guilty to the burglary charge but did not testify at trial. Sones testified and admitted his involvement in the burglary. We have held that when a defendant denies the act with which he is charged, he cannot claim that he was entrapped. McCormick v. State, 279 So.2d 596 (Miss.1973). Thus, the entrapment defense was not available for appellant Pace.

Sones, however, did admit his participation in the burglary and argued entrapment as a defense. We have held that, once the defense of entrapment is established by the evidence, the prosecution has the burden of proof on that issue. Tribbett v. State, 394 So.2d 878 (Miss.1981). We are of the opinion that the testimony of Sones was not sufficient to shift to the state the burden of proof on the entrapment issue.

Sones’ entrapment defense rests on the assumption that Jack Smith, the man whom he alleged persuaded him to commit the burglary, was the confidential informant. However, no evidence reveals such a connection. The basis of the assumption lies in Sones’ testimony that no one knew about the planned burglary except for himself, Pace and Smith. However, Sones could speak for himself only. It is possible that either Smith or Pace told some others about the planned burglary. Further it seems unlikely that the women who drove Sones and Pace to the grocery on the night of the burglary were unaware of the plans. We are of the opinion that the evidence presented by Sones simply did not show that Sones and Pace were entrapped by an officer of the state.

Another aspect of the entrapment defense was not sufficiently proven. For entrapment to be successfully raised, the defendant must not have been predisposed to commit the crime; the criminal intent must not have originated in the mind of the accused. Tribbett v. State, 394 So.2d 878 (Miss.1981). The government’s first soliciting or merely providing an opportunity for commission of a crime is insufficient to establish entrapment. Id. In the present case the testimony of Sones reveals that Smith merely solicited Sones and Pace to commit a crime. The testimony indicated that it took only a suggestion, with little persuasion and no coercion, to interest Sones and Pace in the burglary. The lengthy criminal record and the extensive preparation that Sones and Pace made for the burglary indicate a predisposition to commit the crime sufficient to destroy a defense of entrapment even had Smith been shown to be the state’s confidential informant.

Sones and Pace next complain of the trial court’s refusal to allow them to question the state’s witnesses about the confidential informant. The trial judge refused to allow any question which would tend to “either tie down the identity of the informant or the location of the informant.”

There is no absolute rule requiring disclosure of an informer’s identity. Recognition of the public interest and effective law enforcement has led to a privilege, although not absolute, of the prosecution to refuse disclosure of the identity of a confidential informer. Rovario v. U. S., 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1967). In Rovario, the United States Supreme Court stated:

Where the disclosure of the informer’s identity, or of the contents of his communication is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. (353 U.S. at 60, 61, 77 S.Ct. at 628, 1 L.Ed.2d at 645).

In applying this principle, we have stated:

The proper rule regarding the circumstances under which the identity of the informer should be disclosed was stated in Young v. State, 245 So.2d 26 (Miss.1971):
Ordinarily, disclosure of the identity of an informer, who is not a material witness to the guilt or innocence of the accused, is within the sound discretion of the trial court. Strode v. State, 231 So.2d 779 (Miss.1970). On the other hand, where the informer is an actual participant in the alleged crime, the accused is entitled to know who he is. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). . .. (245 So.2d at 27).
[Mills v. State, 304 So.2d 651, 654 (Miss. 1974)].

In our opinion, under the facts of the present case, disclosure of the informant’s identity was not required. No evidence established that Smith was the informant. No evidence indicated that the informant was a material witness to the guilt or the innocence of Sones and Pace. Additionally, there was no evidence that the informant was an actual participant in the crime, nor any evidence that Jack Smith was present when the burglary was committed.

During the trial court’s consideration of the objections to questions about the informant’s identity, the prosecuting attorney stated unequivocally that there was no information available to the district attorney’s office, the Gulfport Police Department, the Bureau of Narcotics, or the state investigators that would tend to show any entrapment. We are of the opinion that the trial judge properly exercised his discretion in denying Pace and Sones the right to question the state’s witness concerning the identity of the informant.

In the next assignment of error, Sones and Pace contend that they were improperly adjudged to be habitual criminals because their prior convictions were not proved. B. C. Ruth, who was custodian of the records of Mississippi State Penitentiary at the time Sones and Pace were serving time on previous convictions, identified the original prison files of both Sones and Pace. He identified both Sones and Pace at the sentencing hearing as the persons serving the terms reflected in the files. The original commitment papers issued by the circuit clerks of the counties where Sones and Pace were sentenced were introduced in evidence. The photographs from the files and summary sheets which listed the offenses, the sentences, and the dates the prisoners were received and discharged from the Penitentiary were introduced in evidence. The originals of the documentary evidence were withdrawn and copies were substituted in the record. In addition, the state introduced a certified copy of the judgment of the Circuit Court of Pearl River County showing Pace’s 1972 conviction and two years sentence for burglary.

Sones and Pace argue that Ruth should not have been permitted to identify the penitentiary records because he was not the custodian of the records for the Penitentiary at the time he testified. Ruth was custodian of the records when Sones and Pace were prisoners at the Penitentiary and all the records were made under his supervision. At the time of the trial, Ruth was an employee of the Penitentiary. The fact that Ruth had been transferred to another position at the Penitentiary did not disqualify him from identifying the records which were made while he was custodian of the records. Therefore, there is no merit in this argument.

Sones and Pace next contend that proof of prior convictions was not properly shown because certified copies of the judgments of conviction were not introduced in evidence. They rely on McGowan v. State, 269 So.2d 645 (Miss.1972) and Brown v. State, 22 Miss. 863, 77 So.2d 694 (1955). In these cases we stated that the best evidence of a previous conviction is the judgment of conviction. McGowan involved the sufficiency of an indictment to charge previous offenses and in Brown the Court held that the judgment of conviction did not show that Brown pled guilty to a charge of possession of intoxicating liquor. Neither case involved proof of a prior conviction where a defendant had been sentenced to the penitentiary and actually transported to the penitentiary pursuant to commitment papers as required by sections 99-19-45 and 99-19-47 Mississippi Code Annotated (1972). Section 99-19-45 provides that the circuit clerk shall furnish the secretary of the Mississippi Penal Board, “... a commitment paper showing the name of the person convicted, the crime, term of sentence, date of sentence, sex, color and a brief history of the crime committed.” Section 99-19-47 prescribes the form of the commitment paper.

The commitment paper issued by the circuit clerk is the authority for the officials at the penitentiary to receive and incarcerate a convicted felon. Both Sones and Pace were imprisoned in the penitentiary pursuant to commitment papers issued by the clerks of the various circuit courts where they were sentenced and served their sentences as shown in footnote one. There is nothing in the record to indicate the slightest doubt that Sones and Pace were in fact convicted of felonies and actually served sentences based on such convictions.

In spite of this proof, Sones and Pace argue that their sentence as habitual criminals should be set aside because the state did not prove their prior convictions by the best evidence. The commitment papers issued by the circuit clerks are required by section 99-19-45 Mississippi Code Annotated (1972) and constitute the statutory authority to transfer prisoners to the penitentiary and for the penitentiary to accept such prisoners to serve the sentences imposed. Thus, the statute effectively makes a commitment paper issued by a circuit clerk evidence of a conviction. To hold that a commitment paper is sufficient authority to imprison a convicted felon, but is not sufficient proof of the conviction upon which the imprisonment is based would exalt form over substance. Certainly, if a commitment paper is sufficient to authorize the Penitentiary officials to receive and imprison the person named therein for service of the sentence shown, it is admissible in court as evidence of the conviction of such person without the necessity of introducing the judgment of conviction.

We therefore hold that in felony cases where a prisoner is transferred to the penitentiary, the original commitment paper showing conviction of a felony duly issued by a circuit clerk pursuant to section 99-19-45 may be introduced in evidence as proof of such conviction. We hold the convictions and service of sentences by these defendants were established beyond any reasonable doubt.

Sones and Pace in their final assignment of error contend that the habitual criminal statutes are unconstitutional because they constitute cruel and unusual punishment. Primarily Pace and Sones complain of considering convictions more than ten years old and argue the convictions are too remote in time to be relevant to the status of a defendant as an habitual criminal. We recognize that the time lapse between a present offense and prior convictions could be a relevant consideration. However, the Mississippi Legislature chose not to include that factor in the sentencing of an habitual offender. We have stated, quoting the United States Supreme Court in Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405 (1958) that:

The fixing of punishment in criminal cases is a question ‘peculiarity ... of legislative policy.’ [Jordon v. State], 383 So.2d 495, 497 (Miss.1980)].

We are of the opinion that the absence of a limit on consideration of remote convictions in the sentencing of habitual criminals does not rise to the level of cruel and unusual punishment.

Appellant Sones further argues that section 99-19-83 Mississippi Code Annotated (Supp.1981) is unconstitutional on several additional grounds. The United States Supreme Court has upheld similar habitual criminal statutes from different jurisdictions after numerous attacks on varying constitutional grounds. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948). Further, in Baker v. State, 394 So.2d 1376 (Miss.1981) we specifically held the Mississippi habitual criminal statute, section 99-19-83 Mississippi Code Annotated (Supp.1981), was constitutional.

Finding no error, we affirm.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.

      . On January 4, 1960, Sones was sentenced by the Harrison County Circuit Court to serve two years for grand larceny and five years for armed robbery. The sentences were to run concurrently. Sones was received at the Penitentiary on January 19, 1960, and discharged on December 14, 1963, after serving nearly four years. He was sentenced February 15, 1973, by the Lee County Circuit Court to serve a term of three years for possession of a controlled substance. On this charge, he was received at the Penitentiary on February 15, 1973 and discharged July 25, 1974.
      On April 15, 1962, Pace was sentenced by the Pearl River County Circuit Court to a one year term for burglary. He was received at the Penitentiary May 3, 1962, and discharged February 19, 1963. He was sentenced on July 3, 1964, by the Harrison County Circuit Court to a one year term for possession of burglary tools. He was received at the Penitentiary on July 17, 1964, and discharged May 13, 1965. He was sentenced on April 18, 1972, by the Pearl River County Circuit Court to a two year term for burglary. He was received at the Penitentiary May 10, 1972, and discharged May 7, 1973. He was sentenced November 21, 1975, by the Pearl River County Circuit Court to a three year term for burglary. He entered the Penitentiary December 2, 1975, and was discharged April 27, 1979. During this term of imprisonment he was paroled twice and returned to the Penitentiary twice for parole violations.