text:
    Gary Neil FONTANA, Plaintiff-Appellant, v. Kay Marie FONTANA, Defendant-Appellee.
    No. 15122-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 17, 1983.
    Rehearing Denied Feb. 24, 1983.
    Writ Denied April 15, 1983.

      Paul Henry Kidd, Monroe, for plaintiff-appellant.
    Bruscato, Loomis, Deal & Street by Anthony J. Bruscato, Monroe, for defendant-appellee.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   HALL, Judge.

Mr. Fontana appeals from a judgment finding him guilty of contempt and sentencing him to serve consecutive 20-day sentences in jail for failure to pay alimony and child support, failure to furnish Mrs. Fonta-na a car for her use, and failure to return their minor child to Mrs. Fontana after visitation periods on two occasions, all in violation of court orders and judgments.

Appellant specifies three errors:

(1) The'criminal contempt conviction is invalid because the contempt proceeding was not instituted by the district attorney or the court on its own motion and was without proper notice as required by LSA-C.Cr.P. Art. 24;

(2) The contempt convictions and sentences were an abuse of discretion in that appellant did not willfully disobey a court order, and in that the two consecutive 20-day sentences are excessive; and

(3) The court order which appellant was accused of disobeying was not introduced into evidence at the contempt hearing.

Procedural and factual background

The record in this separation suit reflects that by judgment rendered December 18, 1981, filed January 6, 1982, custody of the minor child was granted to Mrs. Fontana subject to Mr. Fontana’s right to reasonable visitation privileges, and Mr. Fontana was ordered to pay Mrs. Fontana $450 per month alimony pendente lite and $350 per month child support beginning December 15, 1981, and to furnish the family automobile to Mrs. Fontana for her use.

On February 19, 1982 the court orally rendered judgment granting Mr. Fontana a separation, continuing the custody, alimony, child support, and use of automobile awards, and granting Mr. Fontana specific visitation privileges including weekends from Friday at 6:00 p.m. to Sunday at 6:00 p.m. with the provision that Mr. Fontana should have the child returned to Mrs. Fon-tana at the times specified. Judgment accordingly was signed and filed on February 24, 1982.

On February 25, 1982 Mrs. Fontana filed a rule seeking, among other relief, to have Mr. Fontana held in contempt for failure to pay the alimony and child support payment due February 15, failure to make mortgage payments on the family car causing it to be seized and taken from Mrs. Fontana, and refusing to return the child after end of the visitation period on the weekend of February 19-21. The rule was personally served on Mr. Fontana on February 26.

With the assistance of the sheriff’s department the child was returned to Mrs. Fontana on Friday, February 26, the day the next weekend visitation period was to begin. After being assured by Mr. Fontana and his attorney that the child would be returned according to the judgment, Mrs. Fontana allowed the child to visit Mr. Fon-tana that weekend. He did not return the child and on March 21 Mrs. Fontana filed another rule seeking to have Mr. Fontana held in contempt for violating the court’s visitation judgment and to terminate his visitation privileges. The rule was personally served on Mr. Fontana on that date. It was again necessary to obtain the sheriff’s assistance to have the child returned to Mrs. Fontana.

Trial of the two contempt rules was completed on April 16. The trial court took judicial notice of its previous judgments and orders. It found that Mr. Fontana had willfully failed to make the car payments thereby violating the judgment requiring him to furnish the car for Mrs. Fontana’s use, had willfully failed to work and to pay alimony and child support payments for three months, and had willfully failed to return the child after visitations on two occasions with no assurance that he would not do the same on future visitations. The court found him in contempt and sentenced him to serve 60 days in jail.

Mr. Fontana filed applications for writs in this court and in the Supreme Court. On April 29 (prior to the transfer of criminal jurisdiction to the Courts of Appeal) this court denied his application, ruling that the sentence was punishment, criminal in nature, and that this court had no jurisdiction, citing State v. Austin, 374 So.2d 1252 (La.1979) and Dove v. Dove, 386 So.2d 127 (La. App. 3d Cir.1980). The Supreme Court in a terse order granted the writ, set the sentence aside “as excessive,” and remanded for resentencing. Fontana v. Fontana, 414 So.2d 392 (La.1982). It is not clear whether the Supreme Court set the sentence aside as constitutionally excessive under Art. 1, § 20, La. Constitution, or as illegal because it exceeded the 30-day maximum jail sentence provided in LSA-R.S. 13:4611.

At a resentencing hearing on July 8,1982 judgment was signed and filed wherein Mr. Fontana was “found to be in willful contempt for violating orders of this Court in refusing to pay child support and alimony, refusing to maintain his wife in possession of the family car, and refusing to return the minor child following visitations on February 21 and again on February 28, 1982, in connection with the judgment of separation filed on February 24,1982 .... ” Mr. Fontana was resentenced to serve two terms of 20 days imprisonment each in the Ouachita Parish Jail, to run consecutively. It is from this judgment that Mr. Fontana appealed.

Specification of Error No. 1

Appellant contends that since the sentence imposed is not coercive in nature but was imposed as punishment for violation of the court’s orders, thereby rendering the proceeding criminal or quasi-criminal in nature under the holdings of Shillitani v. U.S., 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); State v. Austin, supra; and In Re Merritt, 391 So.2d 440 (La.1980), the contempt proceeding could not be initiated by Mrs. Fontana and had to be initiated by the district attorney or the court on its own motion as required by LSA-C.Cr.P. Art. 24.

The contention is not correct. LSA-C. Cr.P. Arts. 20-25 regulate contempt procedure in cases originated as criminal proceedings. Contempt procedure in civil cases is regulated by LSA-C.C.P. Arts. 221-227 and LSA-R.S. 13:4611. Code of Civil Procedure Article 225 provides that a rule to show cause why a person should not be adjudged guilty of constructive contempt may issue on the court’s own motion, or on motion of a party to the action or proceeding. Article 227 provides that the punishment which a court may impose upon a person adjudged guilty of contempt of court is provided in LSA-R.S. 13:4611. The punishment applicable to constructive contempt as provided by LSA-R.S. 13:4611(A)(4) is a fine of not more than $250 or imprisonment for not more than 30 days, or both.

A contempt proceeding ancillary to a civil proceeding assumes the quality of a criminal or quasi-criminal proceeding only after a criminal sentence is imposed. Ourso v. Ourso, 282 So.2d 157 (La.App. 4th Cir. 1973). In Bell v. Bell, 386 So.2d 1096 (La. App. 3d Cir.1980), the proceeding eventually adjudged a criminal proceeding after sentence was imposed was initiated by the plaintiff wife who filed a rule to show cause why defendant should not be held in contempt for failing to pay alimony pursuant to a court order, as was done in the instant case.

The contempt rule in this civil separation suit was properly issued on motion of Mrs. Fontana, a party to the action.

Specification of Error No. 2

Appellant contends that the court erroneously found him in contempt for willfully disobeying the court order. Appellant claims specifically that his unemployment rendered him unable to pay his wife alimony or to provide her with a car and that he was justified in keeping the minor child because the latter was being exposed to drug abuse by the mother. Although as a general rule failure to pay alimony and child support resulting from the obligor’s financial inability to pay and refusal for good cause to return minor children to the custodial parent cannot support a contempt charge, these issues are primarily factual and a trial judge’s finding thereon should not be disturbed absent a finding of manifest error. James v. Spears, 372 So.2d 617 (La.App. 1st Cir.1979).

The record clearly indicates that appellant failed to pay his alimony and child support obligation for February, March, and April, 1982.

At the show cause hearing, appellant testified that he had worked less than one day between mid-November 1981 and April 1982, that he was laid off due to his physical and emotional health problems resulting from his marital difficulties, and that he would not be rehired until his problems were resolved. However, other trial testimony shows that Mr. Fontana was, until the marriage breakup, a successful trucker who earned over $50,000 in the first 11 months of 1981.

Additional testimony adduced at trial shows that appellant had over $6,000 in a checking account in late November 1981, which he paid to his father for past debts. The evidence also suggests he received his final paycheck (for $3,000) at this time. It was also established that appellant was renting an apartment in Minden and maintaining a home in Monroe. Additionally, there is evidence that appellant paid a private investigator over $100 in early 1982 in connection with this case. Finally, the testimony is replete with indications of appellant’s resentment toward paying his wife alimony which, in his opinion, she was wasting on “booze and boyfriends.”

Other cases on point aid in the determination here. In Wall v. Wall, 230 So.2d 420 (La.App. 1st Cir.1970), the husband was held in contempt for failing to pay his ex-wife alimony for at least two years despite the fact that his monthly expenses exceeded his income by over $100. The court held that obligations of his second marriage could not abrogate defendant’s duty to his first wife, and the court centered on the fact that it was

“... abundantly clear that respondent has made no effort whatsoever to pay relatrix any alimony .... ” [230 So.2d at 423],

as a key factor in its decision.

In Rosselli v. Rosselli, 352 So.2d 370 (La. App. 4th Cir.1977), the husband, in arrears for over $1,000 at the time of the contempt hearing, never paid the full amount due on any monthly alimony payment. The husband attempted to excuse this failure, claiming his barbershop business had failed. However, the court noted that appellant’s girlfriend had assumed ownership of the business and hired him as manager. This, according to the court, was a subterfuge designed to prevent the husband from paying alimony, and the court found appellant guilty of contempt.

In Weeks v. Weeks, 349 So.2d 1008 (La. App. 3d Cir.1977), this court cited the husband’s blatant refusal to pay alimony (“I didn’t pay because I thought it ‘wasn’t right’ ”) in finding appellant guilty of contempt.

Applying these principles to the case at hand, it is clear that the appellant (1) made no effort to pay the three months’ alimony; (2) made no effort to reduce or terminate the award based on a change in his circumstances; (3) was capable of gainful employment immediately prior to the start of these proceedings; (4) was somehow supporting himself, despite his unemployment, in two separate locations during the pendency of these proceedings; and (5) expressed resentment over paying his wife alimony.

In light of these factors, the trial court correctly concluded that appellant’s failure to pay alimony and child support in violation of the court’s judgment was willful and without legal excuse.

Appellant claims his retention of the minor child beyond appellant’s weekend visitation was justified because the four-year-old child told appellant that Mrs. Fontana was smoking marijuana in the child’s presence. The trial judge found this action on the part of the appellant was unjustified, obviously finding that the appellant had no right to rely on such a statement by a four-year-old child as a basis for the direct, willful violation of a court order.

Additionally, the record establishes that appellant refused to disclose the child’s whereabouts to his mother and told Mrs. Fontana that she would never see her son again on at least one occasion, all of which indicates a bad faith willful disobedience of the court order. At trial of the rule, appellant indicated he would not hesitate to do the same thing again. Appellant’s willful and deliberate violation of the court order was not justified.

Appellant contends that the two 20-day sentences, to be served consecutively, imposed by the trial court are excessive in light of appellant’s justification for disobeying the court order. It has already been determined that appellant was without justification or legal cause in violating the court order.

Two separate contempt rules were filed involving separate acts of contempt. We note that the first failure to return the child occurred before the judgment establishing visitation limits was signed. Disregarding this instance, there were still at least two separate, distinct violations of court orders charged in the two contempt rules. The 20-day sentences do not exceed the statutory maximum of 30 days set forth in LSA-R.S. 13:4611 for each charge, and are within the statutory limit. The sentences should not be vacated as excessive absent a showing of an abuse of the trial judge’s wide discretion in this matter. State v. Forshee, 395 So.2d 742 (La.1981). No such showing has been made herein. Since the offenses were not based on the same act or transaction and were not part of a common scheme or plan, LSA-C.Cr.P. Art. 883 and State v. Ortego, 382 So.2d 921 (La.1980) are not applicable. The consecutive sentences are not excessive.

Specification of Error No. 3

Appellant contends that the contempt judgment should be set aside because the court order or judgment violated was not offered into evidence, and that the trial court erred in taking judicial notice of the previous judgment.

This contention is without merit. A court can take judicial notice of its own proceedings in the same action. Chrysler Credit Corporation v. Henry, 221 So.2d 529 (La.App. 4th Cir.1969).

Appellant also contends the judgment signed and filed February 24 was not final when the alleged acts of contempt occurred because timely filed motions for new trial were pending and the delay for suspensive appeal had not expired.

The finality and executory nature of custody and alimony judgments is not suspended by motions for new trial. An appeal does not suspend execution of a judgment insofar as it relates to custody or alimony. LSA-C.C.P. Arts. 3942-3943. The nature of alimony and custody judgments mandates immediate efficacy, as dramatically illustrated by this case.

Decree

The judgment of the district court is affirmed at appellant’s costs.

Affirmed.


source: Caselaw Access Project

author: SEXTON, Judge.

license: Public Domain

text:
    Bobby J. PRIMM, et ux., Plaintiff-Appellant, v. STATE FARM FIRE & CASUALTY COMPANY, et al., Defendants-Appellees.
    No. 15126-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 17, 1983.
    Johnston, Thornton, Dawson, Hunter & Feinberg by James J. Thornton, Jr., Shreveport, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Harry A. Johnson, Jr., Shreveport, for defendant-appellee, State Farm Fire & Cas. Co.
    Shuey & Smith by John M. Shuey, Jr., for defendants-appellees, Jimmie Kalil & Betty Kalil Copeland.

      Before PRICE, SEXTON and NORRIS, JJ.
   SEXTON, Judge.

Plaintiff-appellants bring the instant appeal to challenge the trial court’s ruling that they are not entitled to redhibitory damages for structural defects in a recently purchased home damaged by a leaky, subsurface hot water line. Plaintiff-appellants also appeal the trial court’s ruling that they are not entitled to recover from their insurer for these same defects. We affirm in part, and reverse in part.

Plaintiff-appellants herein are Mr. and Mrs. Bobby J. Primm who on May 22,1979, purchased a house from defendant-appellees Jimmie Kalil and his daughter Betty Kalil Copeland, the co-owners of the house. In addition to defendants Jimmie Kalil and Betty Copeland, the Primms sued State Farm Fire & Casualty Company, from whom the Primms purchased a homeowner’s policy covering these premises.

The home which is the subject of plaintiffs’ redhibitory action is located at 802 Woodmont in the Hyde Park area of Shreveport, Louisiana and was purchased by the Primms at a cost of $45,000. It is an approximately 23 year old, one-level brick home with an adjoining carport. Plaintiffs inspected this house several times before purchasing it, examining it in the company of both the real estate agents that handled the sale and Jimmie Kalil himself.

Plaintiffs moved into the residence approximately eight days after they purchased it on May 22, 1979. Mrs. Primm noticed a hot spot on the floor in front of the kitchen sink sometime during late September or early October and told her husband of this thermal condition. The Primms called a plumber, and on October 5, 1979, W.C. Chapman arrived to find and repair the leak. Mr. Chapman localized the leak using several indicia: the sound of the hissing water beneath the kitchen sink, the hot area on the floor adjacent to the kitchen floor, and an area of damp earth outside the back of the house adjacent to the kitchen sink. Mr. Chapman correctly inferred from these signs that the leak was in the hot water line which was laid beneath the concrete slab of the house.

After tunneling three to four feet beneath the slab, Mr. Chapman discovered the leak. It was located in the solder of the copper pipe T-joint which connected the hot water line to the kitchen sink. He described it as a “spray hole” which would give “a pretty good shower if you had turned it on full.” He said it had occurred because the solder used to secure the T-joint had deteriorated.

After Mr. Chapman’s repair work, Mr. Primm began to notice structural problems in his house which appeared subsequent to the repair. New cracks appeared in the exterior bricks and mortar surrounding the casing of Mr. Primm’s windows. The cracks ranged in width from a quarter to half an inch, and descended in a vertical line all the way to the concrete slab upon which the home was situated. A half-inch wide crack developed in the slab beneath the den, and extended all the way to the carport adjoining the house. The evidence is clear that these structural flaws did not exist when the home was purchased and that these structural flaws were accompanied by a number of related interior cracks which manifested themselves in the fall of 1979. The fracturing of the interior was repaired by a professional hired by Mr. Primm, but the same cracks reappeared subsequent to repair.

Plaintiffs contend the structural flaws which appeared subsequent to the repair, of the house were attributable to the deteriorated solder of the copper T-joint. They theorized that the water which escaped through this leak saturated the soils beneath the house, causing these soils to move, expand and erode, destabilizing the slab foundation which rested upon these soils. The destabilization and shifting of the foundation, in turn, impaired the structural integrity of the home, causing the exterior and interior defects which developed subsequent to the sale of the home and the plumbing repair.

The Primms brought this action in quanti minoris to obtain reduction of the purchase price from the defendant-vendors, seeking $17,785.08 to repair the asserted damage.

A vendee acquires an action in redhibition whenever he purchases an item which is flawed by “some vice or defect ... which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.” LSA-C.C. Art. 2520. A vendee may not institute a redhibitory action on the basis of a defect which is discoverable “by simple inspection” or which, though latent, is declared by the seller to the purchaser “before or at the time of the sale.” LSA-C.C. Art. 2521; LSA-C.C. Art. 2522. A vendee has the alternative, upon purchasing a defective item, of seeking an absolute avoidance of the sale or merely a reduction of the purchase price. LSA-C.C. Art. 2520; LSA-C.C. Art. 2541. Although the action for a reduction in price is not, in the classic sense, a redhibitory action, it is nevertheless “subject to the same rules and to the same limitations as the redhibitory action.” LSA-C.C. Art. 2544. Thus the statutory requirements for redhibitory actions are applicable also with respect to the action in quanti minoris for a reduction of the purchase price. The statutory rule — common to both redhibition and quanti minoris —which is dispositive here, is delineated by LSA-C.C. Art. 2530: “The buyer who institutes the redhibitory action, must prove that the vice existed before the sale was made to him.”

The trial court found, and we agree, that the Primms did not prove by a preponderance of the evidence that the fatal leak — which caused the structural difficulties mentioned above — existed at the time of the sale. According to plaintiffs’ own witness, plumber W.C. Chapman, who repaired the leak on October 5, 1979, the T-joint, at the time of the repair, “couldn’t have been leaking over maybe a week or something like that .... ” Mr. Chapman’s testimony was somewhat vacillating, and he declared that it would be impossible for anyone to accurately and precisely gauge the exact amount of time that the leak had existed. Nevertheless, Mr. Chapman steadfastly and repeatedly indicated that, in his opinion, the leak’s presence did not span the five month period between the sale of the home and the repair of the leak. Mr. Chapman based his opinion upon the amount of water present in the soil beneath the house, the absence of massive washout or erosion, and the fact that water had not visibly drained downward from the elevated knoll on which the house stood to collect on the street below it.

Mr. Chapman’s assertion that the leak had not existed in May of 1979, prior to the sale, is, in our view, corroborated by the fact that Mrs. Primm did not detect an unusual degree of heat in the kitchen floor until late summer or early fall. Mr. Chapman testified that the floor was heated by the hot water which escaped from the leaky joint and sprayed directly onto the concrete slab beneath the kitchen floor. In Mr. Chapman’s view, the leak need only exist a short time before the floor would be noticeably heated by the thermal energy of the escaping spray of hot water.

Plaintiffs argue that aberrantly high water and gas bills which they received for their utility usage in the months prior to the repair of the leak support the contention that the leak existed at the time of the sale. Having carefully examined these usage figures, however, we find that they do not establish that the leak existed at the time of the sale. With respect to the water consumption figures, we note that extraordinary high water usage occurred in the period of May 18 to June 26. It is impossible from examining the consumption figures for this span of time to calculate whether the high water usage began before or 'after the May 22 sale date. We note further that under plaintiffs’ theory that the leak existed before the sale, the massive water usage figures should have begun to manifest themselves prior to May 22. We find, to the contrary, that the heavy water consumption occurred subsequent to the sale, lending credence to the hypothesis that the leak occurred after the sale.

We also note that the Primms’ gas consumption figures do not adequately support their theory that the hot water leak occurred prior to the sale, causing excessive amounts of gas to be expended in heating massive quantities of hot water lost to leakage. It appears to us that the noticeably exaggerated gas consumption occurred after the date of sale. In summary, the utility consumption figures cited by plaintiffs are as consistent with the theory that the leak occurred after the sale as they are with the theory that the leak occurred before the sale. They are not sufficiently probative of plaintiffs’ claim that the fatal leak existed prior to the sale.

While we thus find that plaintiffs have not established by a preponderance that the leak existed prior to the sale, the issue of whether they can recover from their insurer, State Farm Fire & Casualty Company, is a totally distinct issue. The homeowner’s policy issued by State Farm to the Primms provides in pertinent part that:

“We insure for all risks of physical loss to the [residence premises] except for loss caused by:
“5. leakage or seepage of water or steam unless sudden and accidental from any:
* * * * * *
“c. plumbing system, including from or around any shower stall or other shower bath installation, bath tub or other plumbing fixture.” (emphasis added).

The thrust of this policy language, succinctly stated, is to extend coverage to an insured for loss from water leakage or seepage if this leakage or seepage was “sudden and accidental.”

We have been unable to determine that the policy term “sudden and accidental” has been construed in Louisiana. We have likewise been unable to locate a definition of “sudden” in the jurisprudence. The Random House Dictionary of the English Language, Unabridged 1966 Edition, defines “sudden” as “happening, coming, made or done quickly, without warning, or unexpectedly: ... occurring without transition from the previous form, state, etc.; abrupt.” Thus both unexpected and abrupt events can be said to be sudden events. A sudden event may occur quickly even though it may have been expected, as in the case of a sudden change in the weather; or “sudden” may connote an event of which there had been no anticipation but which nevertheless is not abrupt.

The jurisprudential definitions of “accidental” are found primarily in cases involving accidental deaths in life insurance policies and workmen’s compensation. These cases lend little if any assistance to this inquiry because of the context in which they arise, and because the definition applicable to compensation cases is statutorily rendered. The only recent definition we are able to locate not involving workmen’s compensation or life insurance matters is found in Velotta v. Western Fire Insurance Company, 121 So.2d 857 (La.App. 2d Cir. 1960), where this court, in attempting to determine whether a loss was accidental and thus covered, observed:

“An accident is defined by Webster’s International Dictionary, Second Edition, as ‘An event that takes place without one’s foresight or expectation; an undesigned, sudden, and unexpected event.’ However, ‘accident,’ in the legal signification, is more difficult to define. It is not a technical legal term with a clearly-defined meaning. It denotes, however, an event which proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore, unexpected, or an event happening by chance, without any human agency, or, if happening through human agency, an event which, under the circumstances, is unusual or unexpected to the person to whom it happens, and is thus distinguished from an act committed willfully or intentionally.” Id. at 858 (emphasis added).

Thus melding the separately obtained definitions of “sudden” and “accidental” it appears that the critical phrase “sudden and accidental” means an event which is either abrupt (though expected), or unexpected. Also the event must occur from an unknown cause or be an unusual result of a known cause — and, in the context of this case, happen without human agency.

The deterioration of the solder joint in this case was not abrupt as it obviously transpired over a period of time. Also it is not entirely unexpected that such a joint would, at some point, require repair — and the cause thereof is obviously known. Thus the exclusion seems damaging to the plaintiffs’ position upon initial observation.

However, recall that under the terms of the policy, damages caused by leakage or seepage are not recoverable unless such leakage or seepage occurs suddenly and accidentally. Affirmatively stated, plaintiffs may recover if — and only if — their damages were caused by sudden and accidental leakage or seepage. However, there is a definitional anomaly or inconsistency contained in the concept “sudden and accidental/leakage or seepage.” “Seepage” connotes an oozing or a passing slowly through small openings. “Leakage” contemplates a defect in a thing which allows a substance encompassed by the thing to escape. Neither “leakage” or “seepage” connote an instantaneous rupture or “bursting.” The term “sudden and accidental”, on the other hand, signifies an event which is unexpected, unforeseen and abrupt.

Thus the terms “leakage or seepage” and “sudden and accidental” appear contradictory. The first connotes a gradual and slow moving event while the latter connotes an abrupt or unexpected event from an unknown cause or an unusual result from a known cause. Try as we might, we are unable to reconcile the phrases and have difficulty envisioning a set of circumstances which would afford coverage. For example, it is difficult to imagine an abrupt seepage from an unknown cause. Therefore, the insurance policy has engendered a grave definitional ambiguity by coupling the term “sudden and accidental” with the term “leakage or seepage.” Such an ambiguity must inure to the benefit of the policy holder.

The rules for construction of insurance policies were recently succinctly summarized by Judge Jasper Jones writing for this Court in Little v. Kalo Laboratories, Inc., 406 So.2d 678 (La.App. 2d Cir.1981), as follows:

“The interpretation of the policy most favorable to the insured must be adopted. Creole Explorations, Inc. v. Underwriters at Lloyds, 245 La. 927, 161 So.2d 768 (1964). It is the duty of the insurer to clearly express exclusions or limitations in a liability policy. Corkern v. Main Insurance Company, Chicago, Ill., 268 So.2d 138 (La.App. 1st Cir.1972); Kendrick v. Mason, 234 La. 271, 99 So.2d 108 (1958). Exclusionary clauses are strictly construed. Commerical Union Ins. Co. of N.Y. v. Hardcastle, 188 So.2d 698 (La. App. 2d Cir.1966); Borden, Inc. v. Howard Trucking Co., Inc., 372 So.2d 242 (La. App. 1st Cir.1979). The burden is on the insurer to prove that an exclusion applies. Borden, Inc., supra.”

Considering these rules of construction and the ambiguity we have found in the exclusion, our conclusion is that the event sued on is not excluded by the policy in question, and thus coverage is afforded.

In this regard we note parenthetically that the jurisprudence we have located in other jurisdictions defining the term “sudden and accidental” rendered a conclusion similar to that which we have reached, though we are unable to locate a circumstance involving the phrase in connection with leakage or seepage of water.

In City of Detroit Lakes v. Travelers Indemnity Co., 201 Minn. 26, 275 N.W. 371 (1937), the Supreme Court of Minnesota affirmed a trial jury’s finding that certain losses were insured because they were “sudden and accidental” within the meaning of the insurance contract. The court observed therein that “although the factors of causation may have been gradual and even slow in operation, the [damage causing] rupturing was sudden, at least in its beginning.” Id. at 372. The court thus held that an event may be “sudden”, within the intendment of an insurance policy, even where it is due to causal factors which are operative over a span of time. The sudden and accidental loss therein was the cracking and warping of the metal casting of a steam engine turbine, which wore and fractured over a period of time but which apparently caused an abrupt stoppage of the steam turbine involved.

Similarly in New England Gas & Electric Association v. Ocean Accident & Guarantee Corporation, 330 Mass. 640, 116 N.E.2d 671 (1953), the Supreme Court of Massachusetts held that when “sudden and accidental” are conjunctively used, “The term accident unlimited except by the word sudden, should be given its ordinary meaning as denoting an unexpected, undesigned, and unintended happening or a mishap and as including an event which, according to the common understanding of people in general, would rightly be considered as an accident,” and allowed recovery where the spindle shaft of a power plant turbine had become badly cracked in the course of its use. In Lansco, Inc. v. Dept. of Environmental Protection, 138 N.J.Super. 275, 350 A.2d 520 (Ct.Ch.Div. 1975), the sudden and accidental event upon which recovery was founded was the intentional opening of valves on oil storage tanks which discharged their contents onto the ground and into drains emptying into a nearby river. The Superior Court of New Jersey rejected the theory that the term “sudden and accidental” as employed in an insurance contract requires instantaneity. See also Allstate Ins. Co. v. Klock Oil Co., 73 A.D.2d 486, 426 N.Y.S.2d 603 (N.Y.1980).

We furthermore find, as an essential fact, that the risk covered here — sudden and accidental leakage or seepage — caused the loss complained of. While as we noted in footnote number one, civil engineer Mr. Robert Jones found that some of the cracks in the exterior masonry were older cracks, the development of the large number of more recent fractures coincided with the development of the leak. Mr. Jones pointed out that the soil in the area was quite expansive and noted that the saturation of this expansive and ordinarily dry soil with the leaked water would be a likely cause of upheaval of the foundation. Mr. Jones stated, furthermore, that the excavation to repair the leak was insufficient to crack the foundation.

James Newton, the laborer who was called by the plumber Mr. Chapman to tunnel under the foundation, reported that the soil was very soggy and that it was necessary for him to bail five to ten gallons of water from the hole. He also stated it was necessary to place cardboard on the bottom of the hole to keep him and Mr. Chapman from getting wet during the course of the repair work.

The building contractor Allen Owen’s testimony was consistent with that of Mr. Jones. Mr. Owen opined that the house’s structural damage was a result of the leakage in part because the cracks in this house were larger than those generally resulting from settling. He observed that a large crack in the foundation was located some ten feet outside of the kitchen, near the site of the leak. Mr. Owen further found various recent cracks in the sheetrock and also noted that the kitchen cabinets were out of plumb. Cracks, while located throughout the house, were mainly over doors and windows.

We find, by synthesizing the evidence presented, that plaintiffs have established causation by a preponderance of the evidence. The testimony of Mr. Newton, excavator for the plumber, indicates that there was a considerable amount of water released by the leak. Mr. Chapman, the plumber, makes it clear that this leakage was only of relatively short duration. The engineer, Mr. Jones, makes it clear that this residence was located in expansive soil which had contracted due to dry conditions. In sum, the addition of this water to the dry, expansive soil — during a brief span of time — is the most likely cause of the obvious movement of this foundation.

As to the damages incurred as a result of the leakage, Mr. Owen's estimate is essentially consistent with an additional estimate obtained by plaintiffs and produced through discovery, with the exception that the Owen estimate encompasses certain elements of necessary work not included in the other estimate. For this reason, we accept the estimate of Mr. Owen in most essentials. However, Mr. Jones, the engineer, did manage to cast doubt on the necessity of using new brick on the home and we therefore delete that estimated charge. Based on these considerations, we find that plaintiffs have proven $15,000 worth of damages.

We therefore affirm the trial court in part and reverse in part. Specifically, we uphold the trial court’s finding that plaintiffs did not prove by a preponderance of the evidence that the subject leak existed at the time the house was sold and affirm the trial court’s rejection of plaintiffs’ demands against the defendants Jimmie Kalil and Betty Kalil Copeland. We reject the trial court’s determination that a coverage exclusion — which denied compensation for all water losses unless due to sudden and accidental leakage — precluded the Primms from recovering from their insurer, State Farm. For the reasons previously expressed, we hereby render judgment in favor of the plaintiffs against State Farm Fire & Casualty Company in the sum of $15,000.00 together with appropriate legal interest and the costs of this litigation.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . The testimony of the engineer, Mr. Robert Jones indicates that there were some pre-exist-ing cracks in the masonry, stemming from settling occurring shortly after construction of the house,

      . See LSA-R.S. 23:1021(1) which defines an “accident” as “an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.”

      . Mr. Jones also noted that difficulty from root systems of trees within ten feet of the residence could also cause potential upheaval.


text:
    Rosa BANKS, Plaintiff-Appellee, v. Willie RATTLER, Ray Construction Co., Inc., St. Paul Fire & Marine Insurance Company and Allstate Insurance Company, Defendants-Appellants.
    No. 15127-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 17, 1983.

      Richie & Richie by John A. Richie, Shreveport, for plaintiff-appellee.
    Blanchard, Walker, O’Quin & Roberts by Roy S. Payne, Shreveport, for defendant-appellee, Willie Rattler.
    Mayer, Smith & Roberts by Mark A. Goodwin, Shreveport, for defendants-appel-lees, Ray Const. Co., Inc., and St. Paul Fire & Marine Ins. Co.
    Cook, Yancey, King & Galloway by Samuel W. Caverlee, Shreveport, for defendant-appellee, Allstate Ins. Co.
    Walker, Feazel & Tooke by Barry G. Feazel, Shreveport, for third-party defendant-appellant, Jessie Rhymes.
    Before HALL, SEXTON and NORRIS, JJ.
   SEXTON, Judge.

The appellant Mrs. Jessie Rhymes was brought into this action as a result of third party demands filed by the defendants. She then reconvened and her husband Raymond Rhymes entered the action by joining his wife as a plaintiff-in-reeonvention. Subsequent to exceptions of lack of procedural capacity filed against the Rhymes, their demands in reconvention were dismissed with prejudice in the trial court and they now appeal. We affirm as to Mrs. Jessie Rhymes and reverse as to Mr. Raymond Rhymes, and remand.

The principal action is a damage claim brought by Rosa Banks for personal injuries sustained in a car accident. On March 28, 1981, Mrs. Banks was a guest passenger in the car which Mrs. Rhymes was driving when the collision occurred. While traveling on Allen Avenue at the intersection of Milam Street in Shreveport, Louisiana, the Rhymes’ vehicle collided with a Ray Construction Company, Inc., truck driven by an employee of that company, Willie Rattler. Only Mrs. Banks claimed physical injury damages as a result of the accident.

Mrs. Banks’ petition named as defendants Mr. Rattler, Ray Construction Company, Inc., the insurer for Ray Construction Company, Inc., and Mrs. Banks’ own insurer. These defendants filed third party demands for judgment over and against Mrs. Rhymes and in the alternative for judgment against Mrs. Rhymes in proportion to the degree of fault attributable to her actions.

On March 30, 1982, Mrs. Rhymes answered these incidental demands and reconvened against two of the defendants — Ray Construction Company, Inc., and Willie Rattler. Her husband, Raymond Rhymes, sought to join in this reconventional demand claiming restitution of $913.50 for damages to their car.

In response to the Rhymes’ demand, the defendants-in-reconvention filed exceptions of lack of procedural capacity of the Rhymes to bring their claim. The exceptions are based on two grounds: (1) that Jessie Rhymes was not the proper party to sue for damages done to a vehicle registered in the name of Raymond Rhymes, and (2) that Raymond Rhymes was not a proper party to reconvene since he was not a defendant in the principal action or in any incidental action filed in this suit.

The trial court sustained the exceptions of lack of procedural capacity and dismissed with prejudice the appellants’ reconventional demand. The Rhymes now appeal this judgment of the trial court. The issue in this appeal is whether the pleading filed by Mr. and Mrs. Rhymes entitled “Reconven-tional Demand” is a proper use of an incidental action by the Rhymes in asserting their claim.

First, the appellees contend that although the procedural tool of reconventional demand is available to Mrs. Rhymes to enter any claim she had against the third party plaintiffs, Mrs. Rhymes may not urge a claim which is properly asserted by her husband. The basis for this contention is LSA-C.C.P. Art. 686 and the recent matrimonial regime legislation dealing with management of community property, specifically LSA-C.C. Art. 2351, which were in effect at the time of the accident.

The right to recover damages to property is a property right belonging to the owner of the property. LSA-C.C. Art. 2315. An underlying theme of the new community property legislation is separate but equal management of community property by the spouses as per LSA-C.C. Art. 2346:

“Art. 2346. Management of community property. Each spouse acting alone may manage, control, or dispose of community property unless otherwise provided by law.”

Exceptions to this rule are found in LSA-C.C. Arts. 2347-2352 of Section 2 entitled “Management of Community Property.” One of the exceptions to the equal management rule is found in LSA-C.C. Art. 2351 which states as follows:

“A spouse has the exclusive right to manage, alienate, encumber, or lease movables issued or registered in his name as provided by law.”

Consistent with this theme of equal management in a regime of acquets and gains, LSA-C.C.P. Art. 686 establishes the proper plaintiff, as between spouses, to bring an action to enforce a community right:

“Either spouse is the proper plaintiff, during the existence of the marital community, to sue to enforce a community right; however, if one spouse is the managing spouse with respect to the community right sought to be enforced, then that spouse is the proper plaintiff to bring an action to enforce the right. “When doubt exists whether the right sought to be enforced is a community right or is the separate right of the plaintiff spouse, that spouse may sue in the alternative to enforce the right.
“When only one spouse sues to enforce a community right, the other spouse is a necessary party. Where the failure to join the other spouse may result in an injustice to that spouse, the trial court may order the joinder of that spouse on its own motion.” (Emphasis added).

Thus this Article states that either spouse is the proper plaintiff to sue to enforce community rights unless one spouse has the exclusive right of management, in which case “that spouse is the proper plaintiff to bring an action to enforce the right.”

The parties to this appeal have stipulated that Mr. Rhymes is the registered owner of the car in question. The Rhymes have asserted in their pleading entitled “Reconven-tional Demand” that the car constitutes their community property. The record indicates that Mr. Rhymes purchased the car at a time when the couple was non-judicially separated. There has been no refutation of the allegation that the Rhymes owned this car in community. Therefore, pursuant to LSA-C.C. Art. 2340, it is presumed that the car constitutes community property.

Jessie Rhymes is clearly the non-managing spouse with respect to the automobile registered in her husband’s name. LSA-C.C. Art. 2351. Mr. Rhymes as the registered owner of the automobile is the proper plaintiff to bring the claim arising from damages to the car. Therefore, the exception of lack of procedural capacity as to Mrs. Rhymes’ right to sue on this claim was properly sustained.

Secondly, the appellees object to Mr. Rhymes asserting a claim for property damages via a reconventional demand, when he was not a defendant in the pending suit.

The reconventional demand is an incidental action which is available to a litigant who is either a defendant in the principal action or a third party defendant. LSA-C.C.P. Arts. 1061, 1111. Mr. Rhymes thus apparently improperly used this procedure to assert a claim when he was neither a defendant in the principal action nor a defendant in the third party demand.

However, it is appropriate to note the rule in Louisiana that the characterization of the pleading is not controlling. The court is to look behind mere headings to determine the substance of the cause. Succession of Smith, 247 La. 921, 175 So.2d 269 (La.1965); Bellow v. New York Fire & Marine Underwriters, Inc., 215 So.2d 350 (La. App. 3d Cir.1968); LSA-C.C.P. Art. 865.

LSA-C.C.P. Art. 1091 defines intervention:

“Art. 1091. Third person may intervene
A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiff’s demand; or
(3) Opposing both plaintiff and defendant.”

Thus, an intervenor must have a justiciable right “related to or connected with the object of the pending action against one or more of the parties.”

In applying this Article to the facts of the instant appeal, it is clear that Mr. Rhymes has an interest in the pending action. The claim for damages to the car which Mrs. Rhymes was driving is a claim arising out of the same accident in which the plaintiff Rosa Banks was injured. Mr. Rhymes can be said to be seeking to enforce a justiciable right on behalf of the community of acquets and gains of he and his wife.

This broad interpretation of LSA-C.C.P. Art. 1091, which we have followed, is favored by the Louisiana courts in the interests of justice and judicial administration. Union Service and Maintenance v. Powel, 393 So.2d 94 (La.1980); Washington v. Goldate, 411 So.2d 1224 (La.App. 4th Cir.1982); Gehr v. Department of Highways, 337 So.2d 691 (La.App. 4th Cir.1976); Gallin v. Travelers Ins. Co., 323 So.2d 908 (La.App. 4th Cir.1975), writ denied 329 So.2d 452 (1976); Bellow, supra.

The facts of the Goldate case are similar to those in the instant appeal. The plaintiffs in Goldate, who were passengers in a truck, brought an action for personal injuries against the driver of the colliding car. The owner of the truck intervened in this action seeking recovery for property and other damages. The court held that the truck owner had a right to intervene in the pending suit.

Likewise, the holding in the Gehr case effects a liberal interpretation of LSA-C. C.P. Art. 1091. In Gehr, the court held that while the claim of the defendant for her own damages, rather than for part of the principal demand, was not a third party demand, it was allowable as an intervention.

In Gallin v. Travelers the court allowed a third passenger to intervene in a pending personal injury suit brought by the other two passengers of the colliding vehicle. Similarly, in Bellow, a pleading filed by one defendant seeking to recover his own damages against another defendant was accepted by the court as an intervention. The plaintiff, Mrs. Bellow, sought damages for personal injuries she received while a passenger in the intervenor’s bus. The bus driver who intervened in the action demanded compensation for damages to his bus and loss of income during repairs. The Bellow court found that the intervenor had joined with the plaintiff in seeking similar relief against the other defendants.

Although there is not yet direct jurisprudence from the Supreme Court on this issue, the following quotation from the Union Service case expresses an affirmation of the broad interpretation of LSA-C.C.P. Art. 1091:

“We are not unaware that, because C.C.P. 1111 offers only a rather limited cross claim between defendants, otherwise impermissible third party actions have been allowed by characterizing them as interventions. See, e.g., Travelers Ins. Co. v. Sonnier; 344 So.2d 73 (La.App. 4th Cir. 1977); Gehr v. Department of Highways, 337 So.2d 691 (La.App. 4th Cir.1976); Gallin v. Travelers Ins. Co., 323 So.2d 908 (La.App. 4th Cir.1975); Bellow v. New York Fire & Marine Underwriters, Inc., 215 So.2d 350 (La.App. 3d Cir.1968); “Work of Appellate Courts: Civil Procedure,” 38 La.L.Rev. 503, 507-509 (1978) and 37 La.L.Rev. 528, 529-530 (1977). These cases represent laudatory efforts in the courts of appeal to do justice and decide the whole case.” (Emphasis added).

In light of the foregoing jurisprudence and the judicial rule of construing pleadings so as to achieve substantial justice, to deny Mr. Rhymes the availability of an action in intervention would be in error. LSA-C. C.P. Art. 865. Therefore, we find the incidental action filed by Mr. Rhymes while incorrectly cast as a reconventional demand, is a proper intervention. For this reason we find that the trial court erred in sustaining the exception of Mr. Rhymes’ claim. The judgment dismissing this claim is hereby reversed.

■ Appellees have additionally urged in brief before us that even if Mr. Rhymes’ claim is properly before the court that it has prescribed. However, such a reference to the issue of prescription solely through an appellate brief is insufficient to raise the objection. State, through Department of Highways v. Champagne, 371 So.2d 626 (La. App. 1st Cir.1979), rev’d in part on other grounds 379 So.2d 1069 (La.1980), on remand 391 So.2d 1234 (La.1980); Gulotta v. Cutshaw, 258 So.2d 555 (La.App. 1st Cir. 1972), rev’d on other grounds 283 So.2d 482 (La.1973); LSA-C.C.P. Arts. 927, 2163.

The plea of prescription is a peremptory exception which must be specifically pleaded; the court cannot supply this objection. LSA-C.C.P. Art. 927; Gallo v. Sorci, 221 So.2d 570 (La.App. 4th Cir.1969). Although an exception of prescription may be filed for the first time in an appellate court, it must be presented in a formal pleading and not by brief alone. State, through Department of Highways v. Champagne, supra; Motor Machine & Supply Co. v. Delilah Towing Co., Inc., 321 So.2d 896 (La.App. 1st Cir.1975); Scott v. Boh Bros. Const. Co., 195 So.2d 353 (La.App. 4th Cir. 1967).

In summary, we affirm the trial court’s judgment sustaining the exception of lack of procedural capacity of Mrs. Rhymes and dismissing her reconventional demand. Finding that Mr. Rhymes’ pleading substantively constitutes an intervention, we reverse the trial court’s judgment dismissing this claim and we remand to the trial court for further proceedings consistent herewith.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


author: PER CURIAM.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. David Dwayne OWENS, Defendant-Appellant.
    No. 15130-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 17, 1983.
    Piper & Brown, Inc. by Robert E. Piper, Jr., Shreveport, for defendant-appellant.
    Charles W. Kelly, Asst. Dist. Atty., Shreveport, for plaintiff-appellee.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   PER CURIAM.

After being indicted for aggravated rape and negotiating for a range of sentence under a plea bargain to plead to forcible rape, the defendant appeals his sentence to seven years confinement at hard labor (four without benefit of probation, parole or suspension of sentence) as being excessive. LSA-Const. Art. 1, § 20. Defendant also complains that the trial court did not follow CCrP 894.1 guidelines. We affirm.

Defendant and his attorney acknowledged that defendant got “a deal as recommended by the DA’s office [and] the range [of sentence] the Court had [in mind]”, which in defendant’s own words was “two to seven years” for forcible rape, knowing that he might be facing “life imprisonment on the charge [of aggravated rape].” The penalty for forcible rape is confinement at hard labor for not less than two nor more than forty years, with at least two years to be served without benefit of parole, probation or suspension of sentence. LRS 14:42.-1. Defense counsel called it a “marvelous deal” and said that defendant made “an informed judgment” and “was fully aware of the consequences of going to trial [on the charge of aggravated rape].”

Under these circumstances, defendant cannot complain that the sentence within the range of his agreement is excessive. State v. Curry, 400 So.2d 614 (La.1981). The supreme court has indicated that the CCrP 894.1 sentencing guidelines need not be rigidly followed in such plea bargains and that it is not necessary to list the enumerated reasons for sentence as in non-negotiated cases. See and compare Curry, supra, and State v. Beatty, 391 So.2d 828 (La.1980); State v. Gray, 404 So.2d 1215 (La.1981); State v. Bell, 412 So.2d 1335 (La.1982).

AFFIRMED.


author: MARVIN, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. James SLOAN, Defendant-Appellant.
    No. 15131-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 17, 1983.
    Rehearing Denied Feb. 24, 1983.
    Donald R. Minor, Indigent Defender, Shreveport, for defendant-appellant.
    Richard L. Carney, Asst. Dist. Atty., Shreveport, for plaintiff-appellee.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

Defendant appeals his conviction by jury of attempted felony theft and raises four assignments of error. He was charged with stealing Volkswagen used parts and was sentenced to one year imprisonment without hard labor. We affirm.

ASSIGNMENT NO. 1

The original bill of information charged defendant with the theft of “a Volkswagen and used parts”. Over defendant’s objection and motion for mistrial and after the jury was empaneled, the state was allowed to amend the charge to delete the “a” and the “and”. CCrP 487. This was not error. The amendment clarified the charge and made more specific the things which were the subject of the alleged theft. The bill was not substantively defective and was not substantively amended. In these circumstances, it was not necessary that a mistrial be granted. State v. McMorris, 343 So.2d 1011 (La.1977); State v. Bradford, 298 So.2d 781 (La.1974).

During the nighttime of November 18, 1981, an employee of Bank’s Small Car Repair m Shreveport notified the police that he had seen a truck drive into the front of the repair shop and a man begin loading the used auto parts which were stacked and laying on a concrete type porch and under the canopy projecting from the front of the shop building toward the street. The police arrived and defendant explained that he thought the parts were abandoned and did not “belong” to anyone since they had been left outside the building. Photographs depict the scene and show that barrels are nearby which contain the trash and thrown away parts from the business. Defendant was booked at 9:09 p.m. in the Shreveport police station, which is in the block in front of the repair shop. The jury could have deduced that defendant was selective in the parts he had loaded into his truck because he had not loaded the less valuable and some smaller parts. The owners testified that defendant did not have their permission to take the parts.

Through other witnesses, defendant established that he had sold scrap and used auto parts to junk dealers in Shreveport on several occasions prior to his arrest. Defendant’s truck was not identified, however, with any business.

Evidence of intent, of course, is always derived from the circumstances. Cr.C. Art. 10. Evidence of the taking was direct in this instance and was not circumstantial because an employee of the business saw and reported the taking. Assignment 4 relates to the sufficiency of the evidence.

ASSIGNMENT NO. 4

Prom the photographs and the testimony, the jury could have found every essential element of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See State v. Young, 426 So.2d 370 (La.App. 2d Cir.1983). Defendant did not seek permission of the owners of the business to take the parts. He went to the business in the nighttime after it was closed. He had not “done business” with these owners before and was not taking items from the trash area but from the front of the building that was somewhat protected from the elements by the overhanging canopy and the raised concrete porch. Notwithstanding that defendant established that he sold scrap to junk dealers, these circumstances could have indicated to the jury that the defendant actively desired to permanently deprive the owners of the used auto parts he loaded into his truck. This is the specific intent required by the law. Cr.C. Arts. 10, 27, 67.

ASSIGNMENTS NOS. 2 and 3

These assignments relate to remarks made by the trial prosecutor in his opening statement and in his closing argument. During the opening statement, the trial prosecutor commented that “some testimony, possibly from the defense that there was_” Immediately the defense objected and the objection was sustained. The defendant moved for a mistrial, reasoning that the prosecutor had misled the jury into believing that the defense must present evidence in its behalf. The motion was properly denied.

These few words cannot be viewed as being prejudicial to the defendant as a denial of a fair trial. In State v. Robinson, 342 So.2d 183 (La.1977), the court maintained that “a mistrial is a drastic remedy and, except in circumstances where a mistrial is mandatory, is warranted only when a trial error results in substantial prejudice to the defendant, depriving him of a reasonable expectation of a fair trial.” 342 So.2d at p. 188.

No implication that the defense is required to present evidence or that the burden of proof was on the defendant can be deduced from such an unfinished statement. It is always possible that the defense will present evidence in a criminal trial. C.Cr.P. 765.

In closing argument, the trial prosecutor mentioned the testimony of friends and relatives of the defendant to the effect that defendant left home that night for the purpose of gathering some scrap for the purpose of selling it in his business. The prosecutor then mentioned the testimony of the scrap dealers who testified that they had bought scrap from defendant in the past. After referring to one scrap dealer, the prosecutor said, “for all he knows he could have been stealing scrap ...” Defendant immediately objected and the trial court admonished the jury to the effect that this remark should not be construed by them as a reference to other misconduct on the part of defendant. Defendant complains that his motion for mistrial should have been granted. C.Cr.P. 770.

The remark, however injudicious of the prosecutor, when considered in the context in which it was made, does not directly or indirectly refer to another crime committed by the defendant. The remark effectively cautions the jury that the scrap dealers’ testimony should be limited as establishing that any scrap which they had bought or would buy from defendant was of unknown origin and for all they know the scrap could have been stolen. Know is present tense and could include knowledge of the scrap defendant loaded on his truck that night for the purpose of selling it to scrap dealers. The thrust of the defense was that the defendant, as a gatherer and seller of scrap, had no intent to commit theft. Under these circumstances, a mistrial was properly denied when the trial court admonished the jury not to misconstrue the remark of the prosecutor. See State v. Jones, 395 So.2d 751 (La.1981); State v. Alexander, 351 So.2d 505 (La.1977).

Defendant’s conviction is AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Eddie J. YOUNG, Defendant-Appellant.
    No. 15132-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 17, 1983.
    Rehearing Denied Feb. 24, 1983.

      Richard Goorley, Asst. Indigent Defender, Shreveport, for defendant-appellant.
    Birdia Greer, Asst. Dist. Atty., Shreveport, for plaintiff-appellee.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

The defendant was convicted of distribution of a Schedule II controlled dangerous substance in violation of LRS 40:967, and was sentenced to nine years at hard labor. In this appeal, defendant relies on four assignments of error for reversal of his conviction and of his sentence. We affirm.

The defendant was arrested after selling two phenmetrazine tablets to an undercover police officer. The undercover agent then transmitted a description of the vendor to two surveillance officers in the area. Within minutes after the transaction occurred, the surveillance officers drove by the scene and spotted the defendant who fit the general description given to them and who was known by one of them. The defendant was arrested about two weeks later when the undercover operation ended.

The defendant’s first and second assignments of error deal with the trial judge’s denial of defendant’s motions for mistrial. CCrP Art. 771. This article allows the trial judge to grant a mistrial when a comment or remark made by a witness during the trial refers to another crime committed or alleged to have been committed by the defendant, evidence of which is inadmissible, and which may cause prejudice. CCrP 770, 771. CCrP 771 requires the judge to admonish the jury to disregard the comment. If admonishment is not sufficient to assure defendant a fair trial, the trial judge has discretion to order a mistrial.

On direct examination the prose-cutrix asked one of the surveillance officers if he had personally observed the defendant when he drove by the scene and the officer replied, “Yes. Yes. I have known Mr. Young for a number of years.” Defense counsel immediately objected and requested a mistrial, contending that the answer given by the officer implied that the defendant had a prior criminal record. The trial judge found that the remark did not refer to other crimes and was not prejudicial. The mere fact that a police officer has “known” a person for a number of years does not imply that that person has committed other crimes. See State v. Green, 409 So.2d 563 (La.1982), where a police officer witness referred to a bank robbery during his testimony. The court found that the testimony “did not have a connotation to the jury that the defendant had committed a crime in addition to the robbery of Commonwealth”, for which he was on trial. The remark in this case was even less suggestive of prior criminal conduct than that in Green. We find no error in the trial court’s determination or in the exercise of its discretion in denying defendant’s motion for a mistrial. State v. Harris, 383 So.2d 1 (La.1980).

The second assignment of error concerns a comment made by the same witness when recalled on rebuttal. The defendant had testified that he was “harassed” by the Shreveport police on previous occasions and had called other witnesses who testified that they had seen the defendant being searched on the street by the police. To rebut the inference of a frameup or continued “harassment” by the police, the state recalled the officer who had “known” the defendant. This testimony is complained of:

“Q. Prior to July 17, 1981, had you ever accosted or harassed without probable cause for an arrest Mr. Eddie Young in public?
“A. I would not call it harassing. We received numerous complaints that he was in the area dealing—or controlled substances—”

Defense counsel again objected and requested a mistrial, arguing that the comment made an impermissible reference to other crimes, the evidence of which is not admissible. The trial judge found that the defendant had opened the door to this type of testimony when he testified about harassment by the police.

The state is allowed to rebut evidence adduced by the defendant. The scope of rebuttal evidence is “to explain, repel, counteract or disprove facts given in evidence by the adverse party.” State v. Monroe, 205 La. 285, 17 So.2d 331 (La.1944); State v. Constantine, 364 So.2d 1011 (La.1978). Here the officer simply explained the harassment that the defendant and his witnesses had testified about. We find no error in this assignment.

The third assignment contends that a rational trier of fact could not have found the defendant guilty beyond a reasonable doubt upon the evidence in the record. The Supreme Court discussed the proper inquiry in determining sufficiency of evidence in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in this language:

“But this inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ Woodby v. INS, 385 U.S. [276] at 282, 87 S.Ct. [483] at 486 [17 L.Ed.2d 362] (emphasis added). Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 99 S.Ct. at p. 2789.

The undercover agent identified the defendant as the person who sold him the two tablets. The surveillance officers identified the defendant as fitting the description given them and they placed him at the scene of the transaction only minutes after it occurred. One of the surveillance officers knew the defendant. The pills that were purchased were proved to be phenmetra-zine. On these facts, a rational trier of fact could have found the defendant guilty beyond a reasonable doubt, and we find no error.

The defendant’s last assignment of error is that his sentence of nine years is excessive and that the trial judge did not follow the guidelines set forth in CCrP 894.-1. The maximum penalty under LRS 40:967 is ten years at hard labor and a $15,000 fine. In articulating CCrP 894.1 reasons for sentencing, the trial court is not required to address each and every factor listed. In State v. Lanclos, 419 So.2d 475 (La.1982), our supreme court recognized that “the articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions.”

It was noted that a presentence investigation revealed that defendant had a substantial juvenile and adult record and that he is ineligible for probation because he is a second felony drug offender. The probation officer recommended a lengthy confinement because of the defendant’s failure to rehabilitate himself. The trial judge also noted that the defendant had a substance abuse problem for a number of years. The trial court considered these factors and found that the defendant would be likely to commit another crime if he was eligible for probation and that any lesser sentence would deprecate the seriousness of the offense. We find that the trial judge adequately complied with CCrP 894.1 and that the sentence imposed is not excessive.

The conviction and the sentence are AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Sol Irving HILL, Defendant-Appellant.
    No. 15135-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 17, 1983.
    Writ Denied March 18, 1983.
    Farrar, Perry & Jefferson by Stephen A. Jefferson, Monroe, for defendant-appellant.
    Nancy F. Gilliland, Asst. Dist. Atty., Monroe, for plaintiff-appellee.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   PER CURIAM.

After pleading guilty to simple burglary, the defendant appeals that his sentence to 4V2 years at hard labor was excessive because he neither contemplated nor acted to cause or threaten “serious harm”, he acted under “strong provocation”, and the victim has been or will be compensated for the items stolen from her. LSA-Const. Art. 1, § 20. CCrP 894.1.

The trial court’s comments in the sentencing hearing included statements to the effect that defendant was not justified in stealing the personal clothing of the. victim even if the victim owed defendant some money, that several hundred dollars worth of clothing was taken, that the victim had not been compensated for her “substantial loss”, and that “serious harm” in this respect was caused to her. In fact, these comments were made in conjunction with the specific subsections of CCrP 894.1 upon which defendant relies to show excessiveness.

Among other things, the court considered the defendant’s age (28) and discussed with defendant his history of having been convicted more than a dozen times in 11 years of such crimes as theft and shoplifting (3 times), assault with a dangerous weapon, unauthorized use of a movable, simple battery (2 times), aggravated assault (2 times), simple assault (2 times), possession of marijuana, and disturbing the peace and simple battery, the sentence for which was suspended. Under these circumstances, the sentence is not excessive and defendant has not shown that the trial court failed to follow CCrP 894.1 guidelines. See and compare State v. Latin, 412 So.2d 1357 (La.1982).

AFFIRMED.


author: NORRIS, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Charles Ray WASHINGTON, Defendant-Appellant.
    No. 15137-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 17, 1983.
    Rehearing Denied Feb. 24, 1983.

      A.L. Blondeau, Asst. Dist. Atty., Benton, for plaintiff-appellee.
    Nesib Nader, Shreveport, for defendant-appellant.
    Before HALL, SEXTON and NORRIS, JJ.
   NORRIS, Judge.

In this appeal from the imposition of a jail term as a special condition of probation, the defendant alleges that this “conditional time” constitutes cruel and unusual punishment and will cause undue family hardship. We disagree and affirm.

Defendant was initially charged by Bill of Information with two counts of distribution of marijuana to an undercover agent. Although he initially pled not guilty to both counts at arraignment, as a result of a plea bargain with the district attorney’s office, he withdrew that plea and entered a plea of guilty to one count of distribution of marijuana in return for the district attorney’s dismissing the second count upon the trial court’s acceptance of the plea.

After informing the defendant of the rights which he was waiving as a consequence of his plea and determining that the plea was voluntary and unqualified, the trial court accepted the guilty plea and ordered a pre-sentence investigation report. After considering the pre-sentence report, the trial court sentenced the defendant to four years at hard labor, suspended that sentence, and placed the defendant on five years supervised probation. Included among the conditions of probation were two special conditions, to-wit: (1) that the defendant serve eight months in the Bossier Parish Jail with no work time, work credit or good time credit, and (2) that upon release he enroll in and complete the substance abuse program offered by the Bossier Substance Abuse Clinic as outlined by the administrator of that program. The execution of the eight month jail term was stayed for three days to enable defendant to make arrangements for his wife and three children.

It is solely from the imposition of the eight months in the parish jail as a special condition of probation that defendant appeals contending that the imposition of this jail term constitutes cruel and unusual punishment and will cause undue hardship on his family.

Initially we note that cruel and unusual punishments are defined as those that are barbarous, extraordinary or grossly disproportionate to the offense. Imprisonment, even for long periods of time, does not constitute cruel and unusual treatment. State v. Donahue, 408 So.2d 1262 (La.1982). Although not articulated as such, what defendant is actually arguing is that the imposition of the jail term as a condition of probation under the facts of this case renders the sentence excessive. A sentence is excessive and violates the constitutional prohibition against cruel and unusual punishment when it is grossly out of proportion to the severity of the crime or is nothing more than the needless imposition of pain and suffering. State v. Donahue, supra.

The maximum possible sentence for distribution of marijuana is ten years at hard labor and a $15,000 fine. Defendant was originally charged with two counts exposing him initially to the possibility of twice that sentence had he been tried and found guilty on both counts.

Our review of the record indicates that the trial court properly considered the sentencing guidelines mandated by La.C. Cr.P. Art. 894.1. In considering these guidelines, the trial court specifically addressed the contentions which defendant asserts in this appeal and took into consideration the fact that defendant was employed with a wife and three children to support. The trial court further noted that when the defendant engaged in the sale of the marijuana he was supporting his three children and their mother, and that his character and attitude indicated that he would be likely to commit another crime. However, the trial court felt that the defendant would respond affirmatively to probationary treatment, provided some corrective or punitive action was taken in connection therewith. While recognizing that the conditional time would cause a hardship to defendant’s family, the trial court found this hardship not to be excessive. In light of all these factors, as well as other considerations, the trial court imposed the conditional jail sentence.

The suspended sentence and the probationary conditions imposed are far below the maximum for the offense, and the special conditions of probation are not excessive in this case. In fact, we find that the conditions imposed are reasonably related to the defendant’s rehabilitation and the imposition of such a conditional term of imprisonment is specifically provided for by law in appropriate cases. La.C.Cr.P. Art. 895. Furthermore, a trial judge has wide latitude in imposing conditions of probation. State v. Morgan, 389 So.2d 364 (La.1980); State v. Credeur, 328 So.2d 59 (La.1976).

Our review of the record in this case, leads us to conclude that the condition of probation imposing the eight month jail term is reasonable, within the trial court’s discretion and authorized under La.C.Cr.P. Art. 895.

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Our review of the record indicates that defendant was charged with two counts of distribution of marijuana, a Schedule II controlled dangerous substance in violation of the provisions of LRS 40:967(A) on November 9, 1981 and November 10, 1981, respectively. At the time of the commission of the offenses charged marijuana had been legislatively changed to a Schedule I drug. See La.R.S. 40:964 as amended by Act 800 of 1981, effective August 2, 1981. Therefore, defendant should have been charged under La.R.S. 40:966(A) which proscribes distribution of Schedule I drugs. Notwithstanding this technical error which has not been raised by the defendant, the indictment fairly informs the defendant of the charge against him and the defect does not prejudice him. Therefore, we do not consider this error to have any effect on the resulting plea and pretermit any discussion of it. [See State v. Dowling, 387 So.2d 1165 (La.1980)]. It is not an error patent which we consider. See La.C.Cr.P. Arts. 920(2), and 921.

      . The provisions of La.C.Cr.P. Art. 895 that were in effect at the time of defendant’s sentencing on August 17, 1982, read as follows:
      A.When the court suspends the imposition or execution of sentence and places a defendant on probation, it shall require the defendant to refrain from criminal conduct and it may impose any specific conditions reasonably related to his rehabilitation, including any of the following:
      That the defendant shall:
      (1) Make a full and truthful report at the end of each month;
      (2) Meet his specified family responsibilities;
      (3) Report to the probation officer as directed;
      (4) Permit the probation officer to visit him at his home or elsewhere;
      (5) Devote himself to an approved employment or occupation;
      (6) Refrain from owning or possessing firearms or other dangerous weapons;
      (7) Make reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court;
      (8) Refrain from frequenting unlawful or disreputable places or consorting with disreputable persons; or
      (9) Remain within the jurisdiction of the court and get the permission of the probation officer before any change in his address or his employment.
      B. In felony cases, an additional condition of the probation may be that the defendant shall serve a term of imprisonment without hard labor for a period not to exceed one year.
      C. The defendant shall be given a certificate setting forth the conditions of his probation and shall be required to agree in writing to the conditions.
      We note that this article was amended to provide for two years “conditional time,” which amendment was effective shortly after defendant was sentenced.


author: FRED W. JONES, Jr., Judge.

text:
    Lawrence B. SLAUGHTER et al., Plaintiffs-Appellants, v. ROYAL GLOBE INSURANCE COMPANY et al., Defendants-Appellees.
    No. 15147-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 17, 1983.
    Rehearing Denied Feb. 24, 1983.
    Nelson, Hammons & Johnson by Brian D. Smith, Shreveport, for plaintiffs-appellants, Lawrence B. Slaughter.
    Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., Shreveport, for defendants-appellees, Royal Globe Ins. Co. and Salley Grocery Co., Inc.
    Before JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

Plaintiff sued for damages resulting from injuries allegedly sustained in a motor vehicle accident. Judgment was rendered in his favor, based upon a jury verdict, for $8,000. Plaintiff appeals that judgment, asserting that (1) the award was grossly inadequate and (2) the trial judge’s improper jury selection procedure entitled plaintiff to a new trial.

The facts of the accident which precipitated this litigation were undisputed and liability of defendants to plaintiff for his damages was admitted in their attorney’s opening statement to the jury.

On August 3,1978, plaintiff (a 56 year old male resident of California) was driving his car north on Louisiana Highway 1 in Caddo Parish in the vicinity of LSU-Shreveport. As he approached the intersection of Highway 1 and Millicent Way, plaintiff stopped his vehicle in obedience to a red traffic signal light, whereupon his automobile was struck from the rear by a Salley Grocery Company truck with such force that plaintiff’s car was demolished.

Immediately after the accident plaintiff and the other occupants of his automobile were taken by ambulance to the emergency room of the Physicians and Surgeons Hospital in Shreveport. Plaintiff was examined by the emergency room physician and his lacerated scalp was sutured. At the time plaintiff’s blood pressure registered 200/100. He was also diagnosed as having suffered acute cervical and lumbosacral sprains. Medication was prescribed and plaintiff was supplied with a soft cervical collar. He was not hospitalized.

Three days after the accident plaintiff returned by airplane to his home in Los Angeles, California. On August 7, 1978 plaintiff was examined by Dr. Close, an orthopedic surgeon, who diagnosed his patient’s injuries as a severe sprain of the cervical spine, a severe sprain of the lumbo-sacral spine and a sprain of the left shoulder. Dr. Close prescribed medication for the relief of pain and fitted plaintiff with a more comfortable cervical collar. During the ensuing months plaintiff continued under Dr. Close’s care and treatment, consisting in part of a regimen of physical therapy and intermittent wearing of a back brace.

Dr. Close (who testified by video taped deposition taken on December 11, 1981) stated that he treated plaintiff on a regular basis for his accident-related neck and back problems for over three years. Total charges for this period of extended medical treatment amounted to $2,225, as evidenced by a detailed statement. Dr. Close last examined plaintiff on December 1,1981 and found that his patient continued to have limited motion in his neck and back, with headaches frequently accompanying the cervical discomfort. It was Dr. Close’s opinion that, because of his injuries, plaintiff was disabled to perform strenuous physical work or to engage in activity which required standing for long periods of time.

Upon returning to California plaintiff also resumed his visits to Dr. Chinn, a practitioner of internal medicine, who had been treating the obese plaintiff for hypertension prior to the accident. Dr. Chinn examined plaintiff on August 11,1978 and found that his blood pressure was somewhat elevated— with a reading of 170/100. Dr. Chinn (who also testified by video taped deposition taken on December 10,1981) stated that plaintiff’s hypertension was aggravated by the accident and that increasingly strong medication was required to control this problem. It was his opinion that, because of the hypertension, plaintiff was disabled to return to his employment with the government postal services.

At the trial on the merits held in April 1982, plaintiff testified that he continued to experience discomfort in the cervical region, having to wear a cervical collar at night, and that his back caused him problems every morning, necessitating the wearing of a back brace three times a week.

At the conclusion of the trial, the jury made an in globo award to plaintiff of $8,000. Obviously, we do not have the benefit of a trial court’s written reasons for judgment in this case and are left to speculate as to which of plaintiff’s claimed ailments were deemed by the jury to be accident-related. Further, the jury did not answer interrogatories or otherwise specify what portion of the $8,000 was for special damages and what portion for general damages. However, the simple fact of the award evidences the jury’s conclusion that plaintiff was injured to some extent in the accident.

Be that as it may, it is established in the record through the report from the Physicians and Surgeons Hospital and from the testimony of Dr. Close that plaintiff sustained a severe cervical sprain and a severe lumbosacral sprain as a result of the accident. Defendants offered no evidence that in any way contradicted the existence of these orthopedic injuries. If the jury disregarded the proof of these injuries, it was manifestly wrong in so doing.

On the other hand, plaintiff’s assertion that he is disabled by hypertension (aggravated by the accident) is highly questionable. Dr. Ciraulo, California cardiologist to whom Dr. Chinn referred plaintiff, stated that plaintiff’s hypertension could be controlled with proper medication. Dr. Han-ley, Shreveport cardiologist who reviewed plaintiff’s medical records, did not believe plaintiff was receiving proper medication for his blood pressure problem. Consequently, if the jury failed to find that plaintiff’s hypertension was aggravated in any significant way by the accident, it was not clearly wrong.

Having concluded plaintiff proved his orthopedic injuries were attributable to the accident, we find that he is entitled to recovery of the following medical expenses:

Physicians & Surgeons Hospital $ 447.80
Dr. Close 2,225.00
Freeman Hospital (therapy) 708.00
California Orthopedic Co. (cervical collar) 34.98
Total $ 3,415.78

The jury apparently determined that plaintiff proved no loss of wages because of his orthopedic injuries, and was not manifestly wrong in this finding. Prior to the accident plaintiff was employed by the U.S. Postal Service as a Vehicle Dispatching Foreman. This position entailed the supervision and coordination of all local dispatching activities of postal vehicles on both scheduled and nonscheduled runs to assure the efficient and timely movement of the mails.

Dr. Close testified that plaintiff’s orthopedic injuries disabled him from performing outdoor work as a mailman together with any strenuous indoor labor. However, there is no evidence in the record that plaintiff’s supervisory position required work of this nature.

It is undisputed that plaintiff did not return to his postal employment after the accident. However, he indicated that this decision was made on the recommendation of Dr. Chinn rather than because of his neck and back ailments. Further, Dr. Vil-kin, a California psychiatrist who examined plaintiff on March 3,1979 at the request of Dr. Chinn, reported.

“Mr. Slaughter stated that the real reason that he wanted to see me was to retire from his position at the post office rather than to obtain treatment for his symptoms and to return to work.”

For these reasons, the record supports a jury finding (which we assume) that plaintiff is not entitled to recover special damages for loss of past wages or for impaired future earning capacity.

Deduction of the $3,415.78 special damages, to which plaintiff is entitled, from the jury award of $8,000 leaves a balance of $4,584.12 as his general damage award. Plaintiff contends that this represents an abuse of discretion by the jury.

In appellate review of damage awards, we are permitted to disturb a trial court award only if the record clearly reveals an abuse of discretion by that tribunal in making its award. Upon this finding, we may only modify the award to the extent of raising it (or lowering it) to the lowest (or highest) point which is reasonably within the discretion afforded the trial court. Reck v. Stevens, 373 So.2d 498 (La.1979).

Our review of this record leads us to the conclusion that an award of $4,584.12 in general damages to one who suffered an acute cervical sprain and an acute lumbo-sacral sprain, with the attendant pain and discomfort for several years after the accident, constitutes an abuse of the jury’s discretion.

Because of certain inconsistencies in plaintiff’s testimony and his demonstrated propensity for exaggerating the gravity of his claimed physical ailments, the jury could well have expressed its disapproval and disdain by unduly minimizing the seriousness of the proven accident-related orthopedic injuries. As previously noted, we simply have to resort to speculation in this area. Regardless of the jury’s motivation, our mandate is to correct a clear abuse of trial court discretion.

Under the circumstances of this case, an award of $10,000 is the lowest reasonable amount for general damages that could be appropriately made. Compare Martin v. McHann, 404 So.2d 1297 (La.App. 2d Cir.1981); Oubre v. Fireman’s Fund, 402 So.2d 220 (La.App. 1st Cir.1981); Joubert v. Texas Industries, 401 So.2d 571 (La.App. 3rd Cir.1981); Divincenti -v. Des-forges, 372 So.2d 606 (La.App. 4th Cir.1979).

This disposition of the appeal pretermits the necessity of discussing plaintiff’s complaint that the trial judge erred in his jury selection procedure.

For the reasons explained, the judgment of the district court is amended to increase the award in favor of plaintiff to $13,415.78, together with legal interest thereon from date of judicial demand until paid and, as amended, is affirmed. Cost of appeal is assessed to the appellees.

      . Plaintiff complains that, rather than alternating peremptory challenges between the parties, the trial judge compelled plaintiff to exercise all of his peremptory challenges to the panel before tendering it to defendants for the exercise of their challenges.


text:
    B.H. ROSENZWEIG, Plaintiff-Appellee, v. ALEXANDRIA SEED COMPANY, INC., Defendant-Appellant.
    No. 15148-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 17, 1983.
    Rehearing Denied Feb. 24, 1983.
    Writ Denied April 15, 1983.

      Trimble, Randow, Percy, Smith, Wilson & Foote by J. Michael Percy, Alexandria, for defendant-appellant.
    James M. Fowler, Jonesboro, for plaintiff-appellee.
    Before JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

Alleging that the defendant seed company had sold him defective rice seed, plaintiff rice farmer sued for damages for breach of contract. Following rendition by the trial court of judgment in favor of plaintiff for $1,868.35, defendant appealed, contending that the trial judge erred in (1) overruling an exception of one year prescription; (2) finding that the seed sold by defendant to plaintiff was the source of the red rice in plaintiffs field; and (3) awarding excessive damages.

Plaintiff answered the appeal, asserting that the trial judge committed error in (1) determining that plaintiff’s suit was in the nature of a redhibitory action (for reduction of the purchase price) rather than an action for breach of contract and (2) awarding inadequate damages.

Concluding after our review of the record that, for the reasons hereinafter explained, the trial judge erred in overruling defendant’s exception of one year prescription, we reverse.

Plaintiff’s suit, filed on August 14, 1979, alleged in substance that on April 12, 1978 he purchased from defendant 400 bags (100 pounds each) of registered LaBelle rice; that this rice seed was planted by plaintiff in two fields, one containing 120 acres (north field) and the other comprised of 180 acres (south field); that when the rice crop matured in the north field it was found to be contaminated with red rice (a prohibited noxious weed for registered seed) to the extent that the rice in this field failed State certification requirements and, consequently, had to be sold for the reduced price of commercial rice rather than as the more expensive seed rice.

Plaintiff did not allege that defendant had knowledge of the defective quality of the rice seed at the time of the sale or that defendant’s conduct in connection with the sale was in any way tortious.

Defendant filed an exception of prescription, pointing out that more than one year had elapsed between the date of the sale of the rice seed and the filing of plaintiff’s suit. The trial judge referred this exception to the merits. Defendant filed an answer and trial was had.

At the trial it was shown that LaBelle is a variety of superior rice seed developed by professional plant breeders under government auspices. It had been designated as a “foundation seed” to be sold by commercial rice processors (such as defendant) to farmers who agreed to plant the seed under government supervision (in this case, the Louisiana Department of Agriculture). The crop produced from the “foundation seed” is called “registered seed” and that produced from “registered seed” is described as “certified seed”.

When the crop planted from “foundation seed” is harvested by the farmer, it is taken to a commercial seed processor where the seed is dried, cleaned and divided into lots for testing purposes. In this state a sample from each lot is sent to the State Seed Laboratory for testing pursuant to recognized guidelines. If the sample analyzed meets the established criteria for the class of seed in question (here, “registered” seed), the seed processor receives formal notification to that effect and is permitted to officially tag and sell the rice seed under that classification.

The rice kernel produced by “red rice” has the usual brownish hull of commercial rice, but the interior seed coat is normally red or black rather than white and is not desirable for sale in retail stores. Consequently, if a rice seed sample contains significant quantities of “red rice” the State Seed Laboratory will not permit the seed processor to sell it as either “registered” or “certified” rice.

The rice seed in question was grown by a Rapides Parish farmer and transported to defendant’s plant for processing. There the seed was divided into two lots and each lot was further divided into three sublots. Samples were taken from each sublot and tested both by the State Seed Laboratory and by the defendant seed company. Those who conducted the analyses testified that no “red rice” was found in any of the samples.

It was undisputed that when the rice seed planted by plaintiff in his north field matured, “red rice” appeared in the field to such an extent that this seed crop failed government certification requirements and could not be marketed as “certified” seed. On the other hand, the rice crop which grew in the south field passed those requirements. Defendant denied that its seed was the source of the “red rice” contamination in plaintiff’s north field.

In written reasons for judgment, the trial judge found that: (1) plaintiff’s suit was an action in the nature of redhibition for reduction of the purchase price, with the one year prescriptive period applicable; (2) plaintiff’s suit, filed on August 14, 1979, had not prescribed since plaintiff did not receive official notification of the “red rice” contamination until August 15, 1978; (3) it was more probable than not that the seed sold by defendant to plaintiff contained the “red rice”; and (4) plaintiff was entitled to damages (as to the 40% of the seed planted in the contaminated field) based upon the difference between the price of $11.26 per bushel paid by plaintiff for registered seed and the $6.00 per bushel 1979 value of “certified” seed.

Although plaintiff insists that his action is one for breach of contract, for which the applicable prescriptive period is ten years, that position is clearly untenable. In Rapides Grocery Co., Inc. v. Clopton, 171 La. 632, 131 So. 734 (1930) the plaintiff sued the defendant for the balance due on the sale of cotton seed. Defendant answered and reconvened for damages because plaintiff allegedly sold him some defective soy beans. Ruling that the reconventional demand was based upon redhibition, the court concluded that the trial judge correctly sustained a plea of prescription of one year.

The defendant in Crowley Grain Drier, Inc. v. Fontenot, 132 So.2d 573 (La.App. 3rd Cir.1961), sued for the balance due on a purchase of rice seed, reconvened for damages allegedly sustained because of the inferior quality of some other seed rice purchased from plaintiff. The trial court sustained plaintiff’s plea of one year prescription directed at the reconventional demand. Affirming the lower court action, Judge Tate explained:

“Ordinarily, as the defendants contend, the prescription applicable for damages caused by a breach of contract is not a one year prescription but is rather the ten years prescription provided by LSA-Civil Code Article 3544. (Citations omitted) However, unlike damages for other contractual breaches, damages caused by a breach of warranty in a contract of sale are regarded as founded upon redhibition and subject instead to the cited codal prescription of one year applicable to red-hibitory actions.... The historical reason for application of this shorter prescription period for claims for damages arising out of breaches of sales contracts, as compared with that applicable to damages for breaches of other types of contracts, is the practical necessity to determine promptly and certainly whether the article sold did or did not have the vices claimed.”

The trial judge in this case correctly found that plaintiff’s action was governed by the Civil Code articles dealing with red-hibition, and that the applicable prescriptive period was one year.

Redhibition is the rescission of a sale because of some vice or defect in the thing sold which either rendered it useless or its use so inconvenient that it is presumed the buyer would not have purchased it if he had known of the vice. La.C.C. Art. 2520. However, despite the seriousness of the defect, the buyer has the option of simply suing for a reduction of the purchase price. La.C.C. Art. 2541. This action for reduction of the price may also be resorted to by the buyer when the quality “which the thing sold has been declared to possess and which it is found to want” is not of such importance as to induce the buyer to demand a redhibition. La.C.C. Art. 2542.

The suit for a reduction of price is subject to the same rules that govern redhibitory actions. La.C.C. Art. 2544.

La.C.C. Art. 2534 provides in pertinent part:

“The redhibitory action must be instituted within a year, at the farthest, commencing from the date of the sale.
“This limitation does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser.”

Although as a general rule the party pleading prescription has the burden of proving his claim, where prescription has tolled on the face of the pleadings the buyer bears the burden of proving that the claim has not prescribed. Rider v. LeCompte, 398 So.2d 114 (La.App. 3rd Cir.1981); Gustin v. Shows, 377 So.2d 1325 (La.App. 1st Cir. 1979).

Here the plaintiff has alleged that he purchased the rice seed from the defendant on April 12, 1978. His suit was not filed until August 14, 1979, more than a year later. Consequently, on the face of the pleadings it appears that the action for reduction of price had prescribed. Plaintiff had the burden of proving to the contrary, but failed to do so. He neither alleged that defendant had knowledge of the defective rice seed at the time of the sale nor offered evidence to that effect at the trial on the merits.

It is recognized that, in product liability cases founded in tort, the one year prescriptive period does not run against one who is ignorant of the existence of facts which would entitle him to bring suit. Lemoine v. Avoyelles Farmers Co-op, 307 So.2d 762 (La.App. 3rd Cir.1975). However, plaintiff does not contend that his suit is of this nature nor did he allege or prove facts under which we might so construe the action. For that reason, we find that the trial judge erred in holding that the one year prescriptive period did not begin to run until plaintiff received official notice of the “red rice” contamination in his field.

In summary, this suit for reduction of price was filed more than one year after the sale of the rice seed. Plaintiff has conceded that defendant had no knowledge of the defective quality of the rice seed at the time of the sale. Therefore, it is apparent that plaintiff’s action had prescribed when his suit was filed, and defendant’s plea of one year prescription should have been sustained.

Consequently, the judgment of the district court is reversed; defendant’s exception of one year prescription is sustained, and there is judgment dismissing plaintiffs’ suit; costs are assessed to plaintiffs, both in the lower court and on appeal.

      By amended petition, plaintiff added Garden Home Farms, Inc. as a plaintiff.