text:
    Mark Anthony WEAVER v. STATE.
    8 Div. 470.
    Court of Criminal Appeals of Alabama.
    June 30, 1981.

      Maria Jane C. Wells of Carnes & Carnes, Albertville, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

The appellant was indicted and convicted for burglary in the third degree. Ala.Code § 13A-7-7 (Supp.1979). Upon determination that appellant was a habitual offender pursuant to Code § 13A-5-9(b)(l) (Supp. 1979), the trial court fixed his punishment at ten years and one day. This appeal primarily concerns procedural questions; therefore, a lengthy recital of the facts is unnecessary.

The State’s evidence was sufficient beyond any reasonable doubt to prove that appellant instigated and participated in the February 28, 1980, burglary as charged. Appellant was accompanied by two juveniles. The trio had been drinking and “riding around” for several hours prior to appellant’s encouraging the juveniles to commit the breakin. Appellant assisted and supported the juveniles by words and acts as was necessary in accomplishing the crime. In the words of one of the juveniles, “He put us up to it.”

Appellant first let one of the juveniles out of his car with a tire tool which was used to break out a window, and he then rode around for a while with the other juvenile. Later, appellant let both juveniles out at the same residence to “get some more stuff” and then transported some of the stolen items to his house.

The next day the two juveniles made statements incriminating themselves and implicating appellant. Later that day appellant surrendered to authorities and signed a voluntary statement consistent with the juveniles’ story, but denying his complicity in the actual burglary.

Suffice it to say, the jury verdict was well supported by the evidence. What follows is a discussion of the facts relevant to the procedural questions which are raised on this appeal.

Appellant was arraigned on September 23,1980, and pled not guilty in the presence of counsel. At that time the trial court informed appellant his trial was set for October 27, 1980, stating, “Please be ready for trial at that time. It’s your duty to be ready for trial.” On October 29, 1980, appellant’s case was called for trial, and defense counsel stated that he was ready to proceed. The jury was struck, empaneled, sworn, and sequestered. After the lunch recess, but before any witnesses were called, the following exchange occurred:

“MR. WALKER: I’d like to — I don’t think the record has indicated so far that I requested a continuance in this case—
“THE COURT: No, sir, it doesn’t.
“MR. WALKER: —Because of unavailability of one of the defense witnesses, Mike Horton, and I think this witness is possibly a very important witness to the case. I’ve just this week learned he’s in custody of the State of Alabama. I have numerous times this week requested that this case be continued or that Horton be produced, and I also — I’d like to make an offer that if he were here his testimony would show that he and Neal Gamble and the defendant were riding around on the evening of February 28, 1980, and that Mike Horton asked the defendant to stop his car in Sims Community, and that he and — that Mike Horton and Neal Gamble got out of the car and the defendant drove on and came back later and Horton and Gamble had a number of items of personal property laying [sic] in the ditch. The defendant refused to let them bring that personal property into his vehicle, but that Horton did bring in with him a small portable TV set and a clock radio. That a few minutes later, after the three had driven off, that the defendant stopped the vehicle and insisted that Horton remove the two items from the vehicle. That Horton did so. That Horton later tried to get the defendant to return to Sims Community to pick up the property left in the ditch there and that the defendant refused. That the defendant did not break into or enter the home there in the Sims Community that’s the subject of this case, and neither did he encourage or seek to have Gamble or Horton to do so.
“MR. THOMPSON: Judge, we could not agree for that showing to be admitted as such.
“THE COURT: I think the showing comes too late. It should’ve been made to Judge Jetton when the docket was being called. We think the showing comes too late. We’ve already selected a jury and nothing was said about a continued [sic] except — as far as the Court knows, except in — at any time when the Court could officially consider it. Of course, I didn’t manage the docket. Judge Jetton managed the docket. It doesn’t appear here that anything was put in the record about it. All right, bring the jury in.”

This is the only indication in the record before Judge Clark E. Johnson, the presiding judge at appellant’s trial, that appellant sought a continuance in an attempt to procure Mike Horton as a defense witness.

Appellant was sentenced on December 19, 1980. That same day appellant’s motion for new trial, which alleged among other things that he should have been given a continuance to procure the witness, was denied. Appellant then gave notice of appeal and was provided with a free transcript and counsel was appointed. The trial transcript was filed in this court on February 10,1981.

On March 3, 1981, appellant’s counsel filed the following motion under Rule 10(f), Alabama Rules of Appellate Procedure:

“Between the time this cause was called on the call of the docket on Monday, October 27,1980, and the commencement of trial on October 29, 1980, certain things were done, motions made and rulings by the Court regarding the absence of a witness subpoenaed by the Defendant, and the record fails to reflect these matters.
“WHEREFORE Defendant moves the Court that the record be amended so as to reflect said matters.”

By order of the trial court, a hearing was set on this motion for March 23, 1981; the court reporter was directed to transcribe testimony at the hearing and to “correct the record herein to be added to the reporter’s transcript for submission to the Appellate Court.”

At the March 23 hearing Judge William D. Jetton made it clear at the outset that most of the communication to the court concerning the absent witness “occurred outside of the courtroom, in conversation”:

“The Court totally is without recollection of most of the matters except what happened that was told to you, Ms. Wells, that the Court does remembering [sic] happening.
“Of course, we will allow you to put in any testimony that you might have. However, I am a little concerned and afraid that the matter of making a record is the responsibility of the attorney, and none of this — none of the matters concerning the witness was placed on the record at the time of trial.”

James Dee Walker, appellant’s trial counsel, was called as appellant’s first witness. Mr. Walker testified that he answered docket call on Monday, October 27, 1980, and that he told the trial court at that time that he was not ready to try appellant’s case without witness Mike Horton, that Horton had been subpoenaed but was not present. “I believe the Court at some point that day issued a bench warrant or writ of attachment for that witness to a residence in Guntersville.” Mr. Walker stated that later that day he found out that Horton was in custody at the youth facility at Mt. Meigs. Mr. Walker was emphatic that “on a number of occasions that day and the next morning, there were conversations at the bench, and I made known to the District Attorney and to the Court that I was not prepared to proceed without the witness.” Mr. Walker admitted that a court reporter was not present on any of those occasions. Mr. Walker stated that on Monday the trial court “did not feel” that Horton’s absence was ground for a continuance.

On cross-examination Mr. Walker testified that if he announced “ready” to the Monday docket call he later told the trial court he was not ready to proceed without Horton. Judge Jetton then interjected the following:

“Let it be in the record that I think we should certainly be fair to the situation. The Court remembers Mr. Walker making those statements during the course of the day. The Court does not remember whether they were made in — at the bench, in chambers, in the hall, wherever, but I do remember him indicating that he was not ready without this witness — but after the docket call as I remember.”

Mr. Walker testified that he had not talked to Horton at the time he made his requests to the trial judge for a continuance.

Deputy Sheriff Lacy Galloway of Marshall County testified that a writ of attachment was issued for Horton, but that he reported to the Judge “we could not find the boy.”

District Attorney John W. Starnes of Marshall County testified that Sheriff Rex Smalley called him late Tuesday afternoon, October 28, 1980, and told him Horton had been “at the juvenile detention facility somewhere south of Montgomery, and there was no possible way he knew of at that point in time to go down to Montgomery unless he kept somebody up all night to go down there.” Mr. Starnes stated that Mr. Walker had “announced ready on Monday morning without any reservation.”

Judge Jetton entered the March 23 testimony as part of the record. The district attorney then objected:

“[T]he record speaks for itself.
“[I]t is again doubly dangerous to try to amend something that does not transpire here officially before the Court when the Court is on the bench.... [Ajnything that is of judicial importance, by necessity, has to be brought before the Court while the Court is in its official capacity to hear things.”

Judge Jetton sustained the objection stating that “it is the burden of the attorney to make sure that it gets on the record.” However, the court ultimately made the March 23 testimony part of the record for purposes of appeal.

In summary, we again point out that Judge Clark E. Johnson, Jr., presided over appellant’s September 23, 1980, arraignment and October 29 trial. The only request for a continuance that was made to him came the day of trial after the jury had been empaneled and sworn. On the other hand, Judge William D. Jetton presided over the March 23, 1981, hearing, the October 27, 1980, docket call, and received the requests for a continuance on October 27 and 28.

I

Rule 1 of the Alabama Rules of Appellate Procedure requires that the appellate rules “shall be construed so as to assure the just, speedy and inexpensive determination of every appellate proceeding on its merits.” With this principle in mind, we hold that the supplemental record which is a transcript of the testimony and comments made at the March 23,1981, hearing should be considered as part of the record on appeal based on the directives in Rule 10(f), Alabama Rules of Appellate Procedure.

Rule 10(f), as amended October 2, 1978, reads as follows:

“If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial court either before or after the record is transmitted to the appellate court, or the appellate court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the appellate court." (Emphasis added.)

By its plain wording Rule 10(f) extends broad coverage and protection to the parties in having material omissions of “what occurred” added to the record. Moreover, Rule 10(f) provides broad power in the appellate courts to direct that omissions be corrected and to determine “all other questions as to the form and content of the record.”

While informal conferences with the trial court about the need for additional time to prepare do not constitute a motion for a continuance, Ball v. State, 252 Ala. 686, 42 So.2d 626, 632 (1949), cert. denied, 339 U.S. 929, 70 S.Ct. 625, 94 L.Ed. 1350 (1950), appellant was able to show at the March 23 hearing that he had on a number of occasions between docket call on October 27 and trial on October 29 had conversations “at the bench” informing the trial court and the district attorney that he was not ready to proceed without witness Horton. He also was able to show that Horton was subpoenaed on October 27. Although appellant’s “requests” may not have been formally articulated as motions for a continuance, there is no question but that the requests were made and were tantamount to being motions for a continuance. The trial court concurred that appellant’s requests had been made, although not on the record. Rule 10(f) specifically authorizes the correction of an omission from the record. Pope v. State, 387 So.2d 300 (Ala.Cr.App.1980).

The appellant and his counsel have the duty of checking the record before submitting the appeal. It is their duty to file a correct record. Tyus v. State, 347 So.2d 1377, 1380 (Ala.Cr.App.), cert. denied, 347 So.2d 1384 (Ala.1977). Here, counsel for appellant waited some twenty-one days after the transcript was filed in this court before filing his Rule 10(f) motion in the trial court. However, mindful that Rule 10(f) provides broad leeway in making the record “conform to the truth,” and mindful that the appellate rules “shall be construed so as to assure the just . .. determination of every proceeding on its merits,” we have reviewed the March 23 proceedings as a part of the record for purposes of the remaining issue on this appeal.

II

In deciding whether the trial court should have granted a continuance in order to procure Horton’s attendance, it should be noted initially that a motion for a continuance in a criminal case is addressed to the sound discretion of the trial court, the exercise of which will not be disturbed unless clearly abused. Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973); Peaden v. State, 275 Ala. 72, 152 So.2d 136 (1963); Wilson v. State, 384 So.2d 1243 (Ala.Cr.App.1980). This rule clearly applies to cases where the continuance is based on an absent witness. Fletcher; Bailey v. State, 398 So.2d 406 (Ala.Cr.App.1981); Godfrey v. State, 383 So.2d 575 (Ala.Cr.App.), cert. denied, 383 So.2d 579 (Ala.1980). Also see Stewart v. State, 398 So.2d 369 (Ala.Cr.App.1981), cert. denied, 398 So.2d 376 (Ala.1981). In Stewart a continuance was held properly denied where the appellant did not subpoena a defense witness until the Thursday before his trial on Tuesday. The reversal of a conviction because of the refusal of the trial judge to grant a continuance requires “a positive demonstration of abuse of judicial discretion.” Beauregard v. State, 372 So.2d 37, 43 (Ala.Cr.App.), cert. denied, 372 So.2d 44 (Ala.1979); Clayton v. State, 45 Ala.App. 127, 129, 226 So.2d 671 (1969). Counsel is expected to exercise diligence in preparing his case for trial and for procuring necessary witnesses. Godfrey, supra.

Thus, at best, appellant is faced with the heavy burden of overcoming the presumption in favor of the trial court’s ruling in denying his motion for a continuance. This is so even if it is assumed that appellant has favorably shown that he has reasonably sought the witness’s attendance, Palmer v. State, 165 Ala. 129, 51 So. 358 (1909); has shown that the witness’s attendance can be obtained within a reasonable time, Thomas v. State, 15 Ala.App. 408, 73 So. 558 (1916); and has shown that the absent witness’s testimony will be material and not merely cumulative. Rogers v. State, 365 So.2d 322 (Ala.Cr.App.), cert. denied, 365 So.2d 334 (Ala.1978).

Here, appellant did not show that he had sought the attendance of witness Horton until two days before trial, and the witness was not located until less than twenty-four hours before trial. Horton apparently was never served with the writ of attachment (subpoena) issued by the trial court on October 27. Appellant’s subpoena for Mike Horton, which had been issued and executed earlier, had been issued for the wrong witness at the wrong address.

Furthermore, there was no real demonstration that Horton’s testimony would not have been cumulative of that of Neal Gamble. There was no indication from any of the witnesses who testified at appellant’s trial that Horton’s version of what happened was different from the version of Gamble. Deputy Sheriff John Young testified that he had talked with both Horton and Gamble and that both juveniles made statements incriminating the appellant. Deputy Young stated that he was present when the juveniles were interviewed. He testified that “Each one of ’em told their story. They both accused Mr. Weaver, yes, sir.” There was no indication at all as to what Horton’s testimony would have been prior to trial. This is not a situation where defense counsel was required to vouch for the truthfulness of his client’s affidavit. See Rogers, supra; Stovall v. State, 46 Ala. App. 181, 239 So.2d 323 (1970).

As was stated by the Court of Appeals in Thomas, supra:

“Before it can be said that the accused has been denied this constitutional right, he must apply to the court for the issuance of an attachment and show to the court that the witness has been served with a subpoena a sufficient length of time before the trial to afford an opportunity to the witness to obey its mandate, that the witness is within the jurisdiction of the court, and that his attendance can be obtained within a reasonable time by the compulsory process, that such witness is absent without the procurement or consent of the accused, and that the testimony of the witness is material.... ” (Citation omitted.)

It had previously been held by the Alabama Supreme Court in Palmer, supra:

“We cannot say that the defendant was denied any constitutional right when the court refused to continue or postpone his trial in order that some of his witnesses might be brought into court by attachment. The Constitution provides that in all criminal prosecutions the accused has a right to have compulsory process for obtaining witnesses in his favor. This constitutional assurance is something more than an empty collocation of words. It secures an invaluable right, and its purpose is not to be served by an order for compulsory process made at a time and under conditions which indicate that such process cannot be executed in time to bring the witness to the trial. On the other hand, it is not to be so construed in practice as to permit the accused to secure delay by applying for process at the last moment. To fasten error upon the trial court, it must be made to appear that the application was seasonably made, and accompanied by a showing as to what the absent witness is expected to swear in order that the court may judge of its materiality. In the case at bar, the defendant made his application for process after the state had announced ready for trial. This was upon the second judicial day of the week, and, while defendant’s counsel stated to the court that the witnesses for whom process was desired were material witnesses for the defendant, it was not made to appear what the evidence was which counsel deemed material, nor that the application for process might not, in the exercise of diligence, have been made in time to secure its execution and the presence of the witnesses at the trial.. . . ”

Appellant relies heavily on Stovall, supra, wherein this court observed that where a showing of an absent witness’s testimony has been made and where that witness has been subpoenaed, the trial court should grant a defendant a continuance even if defense counsel has not talked to the absent witness. Appellant further relies on Rogers, supra, which in part reads:

“Based on Stovall v. State, supra, where a motion for a continuance had been made in order to obtain an absent witness’s presence in court, and that motion had been denied, the trial court should either allow the defense to make a showing by way of an affidavit indicating what the absent witness would say if he were present to testify, or grant his motion for a continuance. . . . ”

These cases are distinguishable from the facts in the case at bar. In Stovall and Rogers the defendant made a showing by formal affidavit, apparently prior to trial, as to what the absent witness would testify. The trial court in Stovall overruled the defendant’s motion for continuance because defense counsel had not talked with the absent witness. See Rogers, 365 So.2d at 330.

Here, appellant at no time presented a formal affidavit stating what he expected Horton’s testimony to be. The only “showing” made in this case was made by appellant’s counsel, not the appellant himself, and was made after the jury had been selected, empaneled, and sworn before Judge Johnson. The supplemental record does not indicate that a showing of any type was ever made before Judge Jetton prior to trial after docket call on October 27, only that appellant was not ready to proceed without Horton. Thus, not only was appellant’s showing not done by his own formal affidavit, but the “showing” made by defense counsel was untimely under the rationale in Palmer, supra.

In applying the foregoing principles of law to the facts in this case, we cannot say as a matter of law that the trial court abused its discretion in denying appellant’s requests for a continuance.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Richard Karl DUERR, Appellant, v. STATE of Florida, Appellee.
    No. 81-851.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.
    Rehearing Denied Aug. 12, 1981.
    Richard Duerr, pro se.
    No appearance for appellee.
   PER CURIAM.

Affirmed on the authority of Ogilvie v. State, 181 So.2d 710 (Fla. 2d DCA 1966).

ANSTEAD, GLICKSTEIN and HURLEY, JJ., concur.


text:
    SUCCESSION OF Alvin P. LICHTENTAG.
    No. 81-C-0408.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Robert Alexander Katz, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. No. 11201. Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Rudy BERAIN v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0186.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Rudy Berain, applying for writs of certiorari, habeas corpus, mandamus, prohibition and supervisory writs. Parish of East Baton Rouge. No. 8-75-1523.

Denied.


text:
    STATE of Louisiana ex rel. Charles Edward BAGLEY v. J. D. MIDDLEBROOKS.
    No. 81-KH-0651.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Charles Edward Bagley, applying for supervisory writs. Parish of Caddo. No. 104220.

Denied.


text:
    STATE of Louisiana ex rel. William J. EVANS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0570.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re William J. Evans, applying for writs of certiorari, prohibition, mandamus, and habeas corpus. Parish of Morehouse. No. 27113.

Denied.


text:
    John Wayne ERWIN v. EXCELLO CORP., et al.
    No. 80-C-2348.
    Supreme Court of Louisiana.
    April 17, 1981.
   In re John Wayne Erwin, applying for reconsideration of denied writ of March 27, 1981. Court of Appeal, First Circuit. No. 13478. Parish of Tangipahoa.

Not considered. See La.Sup.Ct. Rule 9, Section 6.


text:
    SUCCESSION OF Alvin P. LIGHTENTAG.
    No. 81-C-0408.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Robert Alexander Katz, applying for reconsideration of denied writ of March 27, 1981, to the Court of Appeal, Fourth Circuit. No. 11201. Parish of Orleans.

Not considered. See Supreme Court Rule 9, § 6.


text:
    STATE of Louisiana ex rel. Glenn ROCHE v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 80-KH-2376.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Glenn Roche, applying for remedial writs. Parish of Lafayette. No. 42319.

Granted and remanded. If the transcript is unavailable a new hearing is ordered.


text:
    GENERAL INVESTMENT INC. v. Willie THOMAS a/k/a Willis Thomas.
    No. 81-C-0975.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re General Investment Inc., applying for writs of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson.

Denied.


text:
    STATE of Louisiana ex rel. Charles Edward BAGLEY v. J. D. MIDDLEBROOKS.
    No. 81-KH-0651.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Charles Edward Bagley, applying for reconsideration of denied writ of April 6, 1981. Parish of Caddo. No. 104220.

Denied.


text:
    STATE of Louisiana ex rel. Rudy BERAIN v. Frank C. BLACKBURN, Warden.
    No. 81-KH-0186.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Rudy Berain, applying for reconsideration of denied writ, of March 27, 1981. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana ex rel. William J. EVANS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0570.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re William J. Evans, applying for reconsideration of denied writ of April 6, 1981. Parish of Morehouse. No. 27113.

Denied.


text:
    GENERAL INVESTMENT, INC. v. Willie THOMAS a/k/a Willis Thomas.
    No. 81-C-0932.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re General Investment, Inc., applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. No. 10751.

Denied.

MARCUS and BLANCHE, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Willie THOMAS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1108.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Willie Thomas, applying for writs of certiorari, habeas corpus, and mandamus. Parish of Jefferson. No. 75-1195.

Writ denied.


text:
    STATE of Louisiana v. Melvin BINDOM.
    No. 81-K-1322.
    Supreme Court of Louisiana.
    May 21, 1981.
   In re Melvin Bindom, applying for writs of certiorari, prohibition and mandamus. Parish of Avoyelles. No. 44440.

Granted. The trial court is ordered to fix bail. We have been informed the relator’s sentence is five years or less. See La.Const. Art. 1 § 18.


text:
    Honorable Charles A. IMBORNONE v. Honorable Thomas A. EARLY, Jr., et al.
    No. 81-CA-0388.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re State of Louisiana, through William J. Guste, Jr., Attorney General, and the Judges of the Civil District Court, Parish of Orleans, applying for motion for clarification and/or reconsideration. Parish of Orleans. No. 80-19534.

Denied.

CALOGERO and MARCUS, JJ., would grant the motion.


text:
    TRI-STATE CONCRETE COMPANY, INC. v. Ethel Reed STEPHENS.
    No. 81-C-1091.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Ethel Reed Stephens, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Webster, 395 So.2d 894.

Granted


text:
    Ed MOORE v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, et al.
    No. 81-C-1146.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Ed Moore, applying for writ of certiorari, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 395 So.2d 838.

Writ denied.

CALOGERO and LEMMON, JJ., would grant the writ.


text:
    Fayella A. KEEN, et al. v. PEL STATE OIL COMPANY, INCORPORATED, et al.
    No. 81-C-1127.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Fayella Amrine Keen, Nelda Raye Keen, Sandra Kay Keen Throgmorton, Glenda Keen Easterday, Rhonda Darlene Keen Swift, and The Audubon Indemnity Company, applying for writ of certiorari, or review, to the Court of Appeal, Second Circuit. Parish of Caddo. 395 So.2d 866.

Writ denied.


text:
    Richard KOSTRZEWA v. Woodrow W. WILSON, Richard Wilson, and Allstate Insurance Company.
    No. 81-C-1194.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Woodrow W. Wilson, Richard Wilson, and Allstate Insurance Company, applying for writs of certiorari, or review. Parish of Orleans. 397 So.2d 859.

Denied.


text:
    HOUMA OIL COMPANY, INC. v. Carroll D. McKEY.
    No. 81-C-1140.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Carroll D. McKey, applying for writs of certiorari, review, prohibition and mandamus, to Court of Appeal, First Circuit. Parish of Terrebonne. 395 So.2d 828;

Writ denied.


text:
    STATE of Louisiana v. Isaac WALTER.
    No. 81-K-1383.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Isaac Walter, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. No. M-110-091.

Denied.


text:
    Martin EBARB, et ux. v. EVERGREEN PRESBYTERIAL VOCATIONAL SCHOOL, et al.
    No. 81-C-1224.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Martin Ebarb, et ux., applying for writ of certiorari, prohibition and mandamus. Parish of Sabine. No. 32257.

Writ denied.


text:
    STATE of Louisiana ex rel. Travis Eugene BARKLEY v. STATE of Louisiana.
    No. 81-KH-1239.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Travis Eugene Barkley, applying for remedial writs. Parish of Terrebonne.

Writ denied.


text:
    STATE of Louisiana ex rel. Dale Ralph ALBERT, Jr. v. STATE of Louisiana.
    No. 81-KH-1240.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Dale Ralph Albert, Jr., applying for remedial writs. Parish of Terrebonne. No. 93467.

Writ denied.


text:
    STATE of Louisiana v. James HEARN and Johnny Hearn.
    No. 81-K-1279.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re James Hearn and Johnny Hearn, applying for writ of certiorari. Parish of Lincoln. No. 25839.

Denied.


text:
    STATE of Louisiana v. Leroy LAW.
    No. 81-K-1281.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Leroy Law, applying for writs of certiorari, prohibition and mandamus. Parish of Caddo. No. 115414.

Writ denied.


text:
    STATE of Louisiana v. Hasden THOMASSIE, et al.
    No. 81-K-1330.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Hasden Thomassie, applying for writs of certiorari, prohibition, and mandamus. Parish of Jefferson. No. 80-3254.

Denied.


text:
    Carolyn Ann Shockley LEWIS v. Robert Lee LEWIS, Jr.
    No. 81-C-1082.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Carolyn Ann Shockley, applying for writ of certiorari, or review, to the Court of Appeal, Third Circuit. Parish of Rapides. 395 So.2d 426.

Granted.


text:
    Dwight PERRILLOUX v. FIRST STANDARD LIFE INSURANCE COMPANY.
    No. 81-C-1288.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Dwight Perrilloux, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 396 So.2d 427.

Denied.

WATSON and LEMMON, JJ., would grant writ.


text:
    Susan Daniel MILLER v. FOGLEMAN TRUCK LINES, INC., et al.
    No. 81-C-1289.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Susan Daniel Miller, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 398 So.2d 634.

Writ denied.


text:
    Floyd TIMMONS v. The MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD OF the CITY OF BOGALUSA.
    No. 81-C-1253.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Floyd Timmons, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of Washington. 395 So.2d 1372.

Denied.

DENNIS and LEMMON, JJ., would grant the writ.


text:
    Robert BREAUX v. ROY YOUNG, INC., et al.
    No. 81-C-1257.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Roy Young, Inc., et al., applying for writs of certiorari and/or review, from the Court of Appeal, Third Circuit. Parish of Vermilion. No. 4160.

Denied.

WATSON, J., would grant the writ.


text:
    Carlos A. SANTINY v. Steve A. STROUGHTER, et al.
    No. 81-C-1248.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Carlos A. Santiny, applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. East Baton Rouge Parish. 396 So.2d 357.

Writ denied.


text:
    SUCCESSION OF Ronald Bruce GOODE.
    No. 81-C-1114.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Pauline Egbert Parker, Edmond E. Parker, Laura Hope Walton Lawrence, Kenneth Goode Walton and Linda Cosby Paine, applying for writ of certiorari or review, to the Court of Appeal, Second Circuit. Parish of Caddo. 395 So.2d 875.

Granted.


text:
    STATE of Louisiana v. James MARTIN.
    No. 81-K-1225.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re State of Louisiana, applying for writs of certiorari, prohibition and mandamus. Parish of Webster. No. 48083.

Granted.


text:
    STATE of Louisiana v. Edwin H. EMORY.
    No. 81-K-1419.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Edwin H. Emory, applying for writs of certiorari, and review. Parish of Ouachi-ta. No. S-81 — 908.

Denied.


text:
    STATE of Louisiana v. Eddie Wayne WARD.
    No. 81-K-1415.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Eddie Wayne Ward, applying for writs of certiorari, prohibition and mandamus. Parish of Ouachita. No. 40057.

Writ denied.


text:
    STATE of Louisiana v. Franklin Delano ASHLEY.
    No. 81-K-1403.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Franklin Delano Ashley, applying for certiorari, writ of prohibition and mandamus. Parish of Livingston. No. 3604.

Writ denied.


text:
    STATE of Louisiana ex rel. Rodney Wayne MACON v. STATE of Louisiana.
    No. 81-KH-1298.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Rodney Wayne Macon, applying for writ of certiorari or review. Parish of Cad-do.

Denied.


text:
    Ruth Ann DERRYBERRY v. Larry DERRYBERRY.
    No. 81-C-1275.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Larry Derryberry, applying for remedial writs and stay. Parish of East Baton Rouge, Family Court. No. 44655 B.

Denied.


text:
    CITY OF MONROE v. Tammy MOODY.
    No. 81-K-1262.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Tammy Moody, applying for writ of review. Parish of Ouachita. No. 297.

Writ denied.


text:
    STATE of Louisiana ex rel. Wilbert CUSHENBERRY v. STATE of Louisiana.
    No. 81-KH-1243.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Wilbert Cushenberry, applying for remedial writs. Parish of Ascension. Nos. 263 and 267.

Denied.


text:
    STATE of Louisiana ex rel. Wilfert VICTOR, Jr. v. Frank C. BLACKBURN, Warden.
    No. 81-KH-1296.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Wilfert Victor, Jr., applying for writ of habeas corpus. Parish of Acadia. Nos. 31385 and 31285.

Denied.


text:
    STATE of Louisiana ex rel. Ogie RICHARDSON v. Frank C. BLACKBURN, Warden.
    No. 81-KH-1300.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Ogie Richardson, applying for writs of habeas corpus. Parish of Orleans. No. 210-722.

Denied.


text:
    STATE of Louisiana v. Marie BOURG.
    No. 81-K-1303.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Marie Bourg, applying for writ of review. Parish of Terrebonne. Nos. 100707, 100708 and 100709.

Denied.


text:
    STATE of Louisiana ex rel. Paul D. PETERSON v. Joseph E. COREIL, Judge, 13th Judicial District Court, Parish of Evangeline, Ville Platte, Louisiana.
    No. 81-KH-1333.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Paul D. Peterson, applying for writs of mandamus. Parish of Evangeline. No. 21315.

Denied.


text:
    STATE of Louisiana ex rel. Victor VARGAS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1171.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Victor Vargas, applying for remedial writs. Parish of Rapides. No. 172813.

Denied.


text:
    STATE of Louisiana ex rel. Wallace E. COLEMAN, Jr. v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1195.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Wallace E. Coleman, Jr., applying for writ of certiorari, review and stay of order. Parish of Vermilion. Nos. 20942 and 20762.

Denied.

DIXON, C. J., and CALOGERO and DENNIS, JJ., would grant writ.


text:
    STATE of Louisiana ex rel. Joe T. KILBY v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1234.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Joe T. Kilby, applying for remedial writs. Parish of Lafayette.

Writ denied.


text:
    STATE of Louisiana ex rel. Sylvester PETERS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1236.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Sylvester Peters, applying for writ of habeas corpus. Parish of Calcasieu.

Writ denied.


text:
    STATE of Louisiana ex rel. John PEREZ v. STATE of Louisiana.
    No. 81-KH-1242.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re John Perez, applying for writ of review. Parish of St. Tammany. No. 74082.

Writ denied.


text:
    STATE of Louisiana ex rel. Gary McGINNIS v. STATE of Louisiana.
    No. 80-KH-1633.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Gary McGinnis applying for remedial writ. Parish of Orleans. No. 269 — 832.

Denied. Appeal pending.


text:
    STATE of Louisiana ex rel. Tyronne J. FORREST, Sr. v. Sheriff, Charles FOTI.
    No. 80-KH-2393.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Tyronne Forrest, applying for remedial writs. Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Cleveland WALLACE, Jr. v. CLERK OF COURT, 19TH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE, State of Louisiana.
    No. 81-KH-0434.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Cleveland Wallace, Jr., applying for writ of mandamus. Parish of East Baton Rouge. No. 4-79-336.

Denied. Tapes lost.


text:
    STATE of Louisiana ex rel. Danny WELCH v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1109.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Danny Welch, applying for remedial writs. Parish of Orleans. No. 257-211.

Writ denied.


text:
    STATE of Louisiana ex rel. Willie THOMAS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1108.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Willie Thomas, applying for reconsideration of denied writ, of May 6, 1981. Parish of Jefferson. No. 75-1195.

Denied.


text:
    STATE of Louisiana ex rel. Frederick SMITH v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1007.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Frederick Smith, applying for reconsideration of denied writ May 16, 1981. Parish of East Baton Rouge. No. 10-76-445.

Denied.


text:
    STATE of Louisiana v. McArthur JOHNSON.
    No. 80-K-1376.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re McArthur Johnson, applying for reconsideration of denied writ September 12, 1980 and reconsideration denied February 6,1981. Parish of Bossier. No. 54-874.

Denied.


text:
    STATE of Louisiana ex rel. Samuel Ray LEWIS v. CLERK OF COURT, FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO, Louisiana.
    No. 81-KH-1331.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Samuel Ray Lewis, applying for writs of mandamus. Parish of Caddo. No. 106947.

Granted. Trial judge ordered to furnish relator with copy of Boykin transcript.


author: WATKINS, Judge.

text:
    Buel Merritt BROWN v. DRILLERS, INC.
    No. 13863.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Jesse R. Adams, Jr., New Orleans, for Drillers, Inc. and Employers Cas. Co.
    Boris F. Navratil and Murphy Foster, Baton Rouge, for R. O. C., Inc.
    Joseph Keogh, Baton Rouge, for Louis Records and Associates, Inc.
    St. Paul Bourgeois, Lafayette, for Ralph Parsons Co., Gilbane Bldg. Co. and Parsons-Gilbane, a joint venture and/or partnership.
    Charles Moore, Baton Rouge, for plaintiff.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action for personal injuries allegedly sustained by plaintiff Buel Merritt Brown while engaged in welding on an oil rig owned by ROC, Inc. and leased by that corporation to Drillers, Inc. Among the various parties sought to be made defendants are Drillers and ROC. Jurisdiction is asserted over ROC, a corporation organized under the laws of Kansas, under Louisiana’s “Long Arm Statute”, LSA-R.S. 13:3201. ROC filed a declinatory exception to the jurisdiction of the trial court over the person, which was overruled. ROC applied to this court for supervisory writs, which were denied on the ground no irreparable injury had been shown. ROC then applied to the Louisiana Supreme Court, 390 So.2d 1346 for writs, and that Court ordered us to rule on the merits of the writ application. After a thorough review of the merits of the case, we conclude that the trial court had jurisdiction.

ROC contends that Louisiana’s Long Arm Statute does not apply to the facts of the present case, or, to the extent it would apply, its application would violate Federal Fourteenth Amendment due process requirements for jurisdiction over the person as most recently set out in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). We find both contentions to be without merit.

ROC had no office in Kansas or Louisiana. It was never qualified to do business in Louisiana. Its major assets aside from stationery and the like consisted of two oil rigs, Rig No. 1, and Rig No. 10. From the time of its incorporation on March 30, 1977, only Rig No. 10 was in operation, and it was leased to Drillers after being leased to another concern until August, 1978. ROC had two stockholders, Max Dillard and Garvey Industries, Inc., each of which owned 50% of the stock. Max Dillard is the principal stockholder in Drillers. The president of ROC, Nelson Van Fleet, learned that Rig No. 10, upon which the plaintiff, Brown, was injured, had been brought to Louisiana by Drillers for drilling purposes in September or October of 1978. The alleged accident occurred in January of 1979 while the rig remained under lease to Drillers.

The Long Arm Statute reads as follows:

“Sec. 3201. Personal jurisdiction over nonresidents
A Court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s:
(a) transacting any business in this state;
(b) contracting to supply services or things in this state;
(c) causing injury or damage by an offense or quasi offense committed through an act or omission in this state;
(d) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state;
(e) Having an interest in, using or possessing a real right or immovable property in this state; or
(f) Non-support of a child or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the non-resident formerly resided in this state.
(g) Parentage and support of a child who was conceived by the nonresident while he resided in or was in this state.”

ROC falls under both Subsection (c) and Subsection (d). By an alleged act or omission in this state (ownership of an allegedly defective drilling rig situated in this state) it caused the injury sued upon. It therefore falls under Subsection (c). It also falls under Subsection (d), as it engages in a persistent course of conduct in this state in permitting a leased oil rig to remain here, and furthermore, it derives substantial revenue from the goods (rig) used in this state, as but for the use of the rig in this state for drilling purposes, there would be no lease and no rental payments. The case in favor of jurisdiction under the present facts is far stronger than in two cases cited by plaintiff-appellee, Boykin v. Lindenkranar, 252 So.2d 467 (La.App. 4th Cir. 1971) and Liddell v. Hanover Ins. Co., 289 So.2d 299 (La. App. 1st Cir. 1973), in which manufacturers were held subject to the jurisdiction of this state’s courts solely on the basis that relatively substantial numbers of their products were used in Louisiana. In neither case did the manufacturer even own the manufactured article in question.

World-Wide Volkswagen, supra, involves a vastly dissimilar factual situation. In that case an Audi automobile making a single trip across Oklahoma was struck in the back by another automobile and the gas tank burst into flames, burning the owner and her two children. Suit was brought in Oklahoma on the ground that the design of the automobile was defective. The defendants named were inter alia, the retail dealer in New York and the regional distributor of Audi automobiles, whose territory was limited to the states of New York, New Jersey and Connecticut, the basis of the Oklahoma Court’s supposed jurisdiction being Oklahoma’s long arm statute. These defendants entered special appearances contending the Oklahoma courts were without jurisdiction. The United States Supreme Court reversed a determination by the Oklahoma Supreme Court that the Oklahoma courts had jurisdiction. Basically, an exercise of a state court’s jurisdiction does not violate due process requirements if the defendant has certain minimum contacts with that state so that maintenance of the suit “does not offend ‘traditional notions of fair play and substantial justice’ ”. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The Oklahoma courts were found to be without jurisdiction in the Volkswagen case because Oklahoma had only one connection with the stated defendants, the fact that they were responsible for the distribution and sale of the Audi in New York, which was involved in a collision on its single isolated trip through Oklahoma. In the present case, ROC was availing itself of the protection of Louisiana law in entering into a lease permitting its rig, its sole income producing asset, to be placed anywhere, including Louisiana. Although the rig was placed in Louisiana by the lessee, Drillers, ROC had substantial business inter-relations in the form of interlocking ownership with Drillers. Furthermore, ROC continued to own the rig, unlike the dealer and distributor of the Audi in Volkswagen. We do not find the application of the Louisiana Long Arm Statute to ROC to offend traditional notions of fair play or substantial justice or Fourteenth Amendment due process requirements.

The interlocutory judgment of the trial court overruling the declinatory exception of lack of personal jurisdiction is affirmed, at appellant’s cost, and the case remanded for further proceedings.

AFFIRMED, WRIT DENIED.


author: LOTTINGER, Judge.

text:
    Craig D. VEGA v. STATE FARM AUTOMOBILE INSURANCE COMPANY. Craig D. VEGA, Individually and As the Administrator of the Estate of His Minor Son, David Vega v. E. J. RICHARDELLE, Individually and As the Administrator of the Estate of the Minor, James J. Richardelle, Katherine C. Richardelle, and State Farm Mutual Auto Insurance Company.
    Nos. 13979, 13980.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.

      Larry Main, Slidell, for plaintiffs-appellants in Nos. 37095 and 37970 Craig D. Vega, et al.
    Stanley L. Perry, Galliano, for plaintiffs-appellants in No. 37969 Craig D. Vega on Behalf of the Interdict.
    L. Albert Forrest, New Iberia, for defendant-appellee in Nos. 37095, 37970 and 37969 State Farm Mutual Insurance Co.
    Robert B. Butler, III, Houma, for third party defendants-appellees and defendants in Nos. 37095, 37969 and 37970 E. J. Richar-delle and State Farm Mutual Insurance Co.
    Lloyd T. Bourgeois, Thibodaux, for third party defendants-appellees and defendant in Nos. 37095, 37969 and 37970 Craig Vega and State Farm Mutual Insurance Co.
    Francis Dugas, Thibodaux, for defendant-appellee in No. 37970 E. J. Richardelle.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

These consolidated tort cases arise out of a head-on motor vehicle collision on Louisiana Highway 1 in Cut off, Louisiana on August 10, 1977. Five cases were filed originally. Three were tried and two are before us on appeal. The issues on appeal concern quantum, loss of earnings and insurance coverage.

THE FACTS

Craig D. Vega was driving south on La. 1 in the early evening of August 10, 1977. With him in the vehicle were his wife, Diane, and their minor son, David. Heading northbound at the same time was a vehicle driven by James Richardelle, the minor son of E. J. and Katherine Richardelle. A head-on collision occurred when the Richar-delle vehicle apparently crossed the center line and struck the Vega vehicle. The Vega vehicle overturned in the path of a third vehicle, and was struck again.

As a result of the accident, Diane Vega was rendered a quadraplegic with serious brain damage. She is permanently disabled. Craig Vega sustained compression fractures of the sixth and eighth thoracic vertebrae, while young David escaped with a minor head injury.

Vega instituted three suits individually, as administrator of the estate of his minor son and as curator of his wife, who had been interdicted because of her injuries. He sued the Richardelles individually and as the administrator of the estate of their minor child. He also sued State Farm Mutual Automobile Insurance Company as the liability and uninsured motorist (UM) insurer of the Richardelles, as his own UM carrier and as his own med-pay carrier.

The trial court rendered judgment for $135,000.00 in the suit brought by Vega on behalf of his wife. Of that sum, $50,000.00 (the policy limits) was assessed against State Farm as liability insurer of the Ric-hardelles; $75,000.00 was assessed against three UM policies owned by Vega, each of which provided $25,000.00 per person coverage and $50,000.00 per accident coverage under the UM provisions; and $10,000.00 was assessed against Mr. Richardelle individually, the trial court having found that this amount was the most Mr. Richardelle could afford to pay. This judgment was not appealed.

In the suit by Vega for his own injuries and damages, for his wife’s medical expenses and for his son’s injuries, the trial court first awarded Vega $121,500.00, which represented $15,000.00 in general damages for Vega’s back injury, $990.28 for Vega’s own medical expenses and $105,509.72 for past and future medical expenses for his wife. However, on a motion for new trial, the trial court reduced the award to $15,-990.28, the amount awarded for Vega’s own injury and medical expenses. The amended judgment apparently was based on the findings that the limits of liability for Diane Vega’s injury and medical expenses already had been reached under the Richar-delle liability policy and under the Vegas’ three UM policies. In neither the first nor the amended judgment did the trial court allow the plaintiff’s claim for $5,250.00 for lost income allegedly resulting from the hiring of eight part time workers to help run the plaintiff’s ice packaging business while the plaintiff was disabled. The court found the plaintiff failed to prove his claim. A $3,500.00 judgment was also rendered for the minor son’s injuries. On appeal in this court, Vega claims the trial court erred in awarding only $15,000.00 in general damages for his own back injury, in refusing to award a sum for loss of income and in failing to allow Vega separate coverage under the three UM policies for the medical expenses of his wife.

In the third suit filed by Vega, No. 13979, under the medical payments coverage in his three policies, the trial court rejected all demands. The court found that the $5,000.00 medical payment limit in the policy covering the vehicle involved in the accident had been exhausted by former payments for Diane’s care. The $25,000.00 medical coverages in the other two policies were unavailable to Vega because these policies could not be stacked. Vega appeals from this judgment contending he is entitled to coverage as a separate person under the med pay provisions. He also claims coverage under a “supplementary payments” clause in the Richardelle’s policy.

ISSUES

The issues on appeal are whether the trial court erred:

(1) In awarding only $15,000.00 in general damages for Vega’s back injury;

(2) In refusing to award a sum for loss of income;

(3) In refusing to allow Vega to recover personally under the three UM policies for amounts expended or to be expended for his. wife’s medical care;

(4) In refusing to allow Vega to recover personally under the medical payment provisions of his own policies for amounts expended or to be expended for his wife’s medical care; and

(5) In failing to apply the “supplementary payments” clause in the Richardelle’s policy.

QUANTUM

Evidence at trial reveals that Vega sustained a painful compression fracture of the sixth and eighth thoracic vertebrae, but without any cord damage. Dr. Brian Huncke, the attending orthopedic physician, testified by deposition that Vega has a five percent permanent disability as a result of the back injury. Vega spent about two weeks in the hospital and had to wear a Jewett brace for about three months. He was physically unable to return to work for about two months.

In a recent case before this court, we attempted to explain the scope of appellate review of general damage awards. Hanzy v. Sam, 385 So.2d 355 (La.App. 1st Cir. 1980) writ denied, 386 So.2d 357 (La. 1980). Before an appellate court can raise or lower a trial court’s award, the appellate court must make an articulated finding that the trial court abused its discretion. Reck v. Stevens, 373 So.2d 498 (La.1979). Unless this initial finding can be made, damage awards in other seemingly similar cases are not pertinent. The trial court’s award in this case was clearly within the bounds of that court’s discretion. It does not strike us as being either too high or too low. It does not shock our consciences, and it will be affirmed.

LOSS OF INCOME

Vega’s claim for $5,250.00 in lost income was based on the sums he paid eight individuals who allegedly had to be hired in the ice packing business to take the plaintiff’s place. As proof of this claim, only the plaintiff’s testimony was presented. Vega identified a handwritten notation in which he listed the names of the eight helpers, the number of hours worked and the amounts paid each worker. He testified that these amounts would not have been expended but for the accident in which he was injured. No corroborating testimony concerning this issue was presented, and no records concerning the payments were kept because the wages were paid in cash. On appeal, the plaintiff claims that the fact that the money was spent is proof that a loss of income occurred.

The trial court rejected this claim, stating:

“The only evidence that the court recalls as being introduced in support of this claim was a self-serving, uncorroborated, handwritten list of people plaintiff said he employed to assist in the conduct of his business because of his inability to do the physical work. The list indicated that he had paid some $5,250.00 in salaries to some eight people who would not normally have been in his employ. However, his testimony that it was necessary to employ these people and his testimony to the effect that he paid the salary set out therein are not proof that he suffered any loss. It may well be that his income increased during this period. There was no evidence introduced or business records introduced showing his average monthly net income prior to the accident as opposed to his average monthly net income subsequent to the accident and prior to his medical release to return to work. Without some evidence or proof that he suffered a loss of income, as logical as it would seem that he did, there is no way an award can be made for this item that would be anything more than speculation on the part of the court. For lack of evidence in support of this contention, this claim is therefore denied.”

In Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (La.1971), the court held that a claim for loss of earnings need not be proved with mathematical certainty, but only by such proof as reasonably establishes the claim. Such proof may consist solely of the plaintiff’s own reasonable testimony, although the better practice is to introduce corroborating testimony. The court also held that where there is a legal right to recover loss of income but where the amount of loss cannot be exactly estimated, the fact of loss of earnings, if established, is enough to allow recovery. The courts in such cases have reasonable discretion to assess damages based upon all the facts and circumstances of the case. The Jordan court went on to award the plaintiff $10,000.00 for past and future loss of earnings based upon the testimony of the plaintiff, a former employer and plaintiff’s wife.

Somewhat more strict in its view is the holding in Peoples Moss Gin Co., Inc. v. Jenkins, 270 So.2d 285 (La.App. 3rd Cir. 1972), wherein the court held that an uncorroborated general estimate as to a party’s loss of earnings or profits is not sufficient proof of the loss where corroborative evidence is shown to be available and is not produced. 270 So.2d at 288.

The Jordan case, of course, is entitled to greater weight in this court than the Jenkins case. We find that plaintiff has proved he has a legal right to recover income which he lost as a result of the accident. The reasoning of the trial judge that proof of payment is not proof of loss is in error. Absent the accident, there would have been no need for Vega to spend this money. The facts and circumstances of this case support an award of $5,250.00 for past lost income.

UM COVERAGE

Vega claims that either he, individually, or the marriage partnership, as an entity, should be allowed to recover for medical expenses incurred on behalf of his wife. He contends that while the UM coverage has been exhausted as to his wife’s injuries, coverage is still available under the UM provision for his or the partnership’s damages in connection with medical payments for the wife’s injuries. Vega is not claiming UM coverage for his own medical expenses, as these expenses have been satisfied by the liability insurance on the Richar-delle vehicle. He is claiming that with the 25/50 UM limits on each of his three vehicles, $25,000.00 remains under each UM policy to satisfy what he asserts are his own separate damages as head and master of the community.

A pertinent policy provision concerning plaintiff’s claim is found in each of the three policies under the UM coverage heading. Though the wording in one policy is not identical to that in the other two, the phrasing is very similar and the following provision is applicable to all three policies:

“Limits of liability, (a) The limit of liability for uninsured motorists coverage stated in the declarations as applicable to ‘each person’ is the limit of the company’s liability for all damages, including damages for care or loss of services, because of bodily injury sustained by one person as the result of any one accident and, subject to the above provision respecting each person, the limit of liability stated in the declarations as applicable to ‘each accident’ is the total limit of the company’s liability for all the damages, including damages for care or loss of services, because of bodily injury sustained by two or more persons as a result of any one accident.”

The issue before us under the policy provision quoted above was addressed in Graham v. American Casualty Company of Reading, Pennsylvania, 261 La. 85, 259 So.2d 22 (1972). The court in Graham held that a father seeking medical expenses for his daughter’s injuries under a UM policy was precluded from recovering where the “per person” limits of the UM coverage had already been exhausted on the daughter’s general damages. “Since the bodily injury liability is $5,000.00 for each person, [the] father cannot also recover for medical expenses which would permit recovery in excess of the combined policy limits,” the court stated. 261 La. 85, 259 So.2d at 25.

In Crenwelge v. State Farm Mutual Automobile Insurance Company, 277 So.2d 155 (La.App. 3rd Cir. 1973), the court followed the Graham rationale and prohibited the father from collecting medical expenses incurred on behalf of his daughter when the UM “per person” coverage had already been exhausted on other damages awarded for the daughter’s injury.

Under the above quoted policy provisions and the cases which interpret it, when the “per person” limits of UM coverage have been exhausted because of one person’s injuries, other persons are precluded from collecting additional sums under the UM coverage for amounts expended by them on behalf of the person whose damages have exhausted the “per person” UM coverage. Based on the policy provision and the jurisprudence, there is no UM coverage available to Vega for amounts expended by him for the medical care of his wife, Diane, since her injuries have already consumed the liability limits under the UM “per person” coverage.

' MED-PAY COVERAGE

Vega claims that although the $5,000.00 per person coverage under the med-pay provision of the policy covering the car in which his family was riding at the time of the accident has been exhausted, there is medical pay coverage of $25,-000.00 under each of the other two policies he owns. He contends that these policies should be stacked unto the other policy so as to allow him up to $50,000.00 for medical payments incurred on behalf of his wife. He contends that since he is legally obligated as head and master of the community to pay the medical, hospital and drug expenses of his wife he should be considered a “person” within the meaning of the policy so as to allow him to recover. He further contends that the medical pay provisions in the policies are ambiguous.

Under the policy insuring the vehicle in which the Vegas were riding at the time of the accident, State Farm agreed to pay medical payments under the following provision:

“COVERAGE C-Automobile Medical Payments. To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, and dental services, including prothetic devices, and necessary ambulance, hospital, professional nursing and funeral services;
“Division 1. To or for each person who sustains bodily injury, sickness or disease, caused by accident, while in or upon or while entering into or alighting from the automobile, provided the automobile is being used by the named insured or his spouse if a resident of the same household, or with the permission of either; ...”

By its very terms, the medical payments coverage is limited to bodily injury, sickness or disease suffered by a person as a result of the accident. Vega is not claiming coverage under this section as a result of his own injuries, but solely as a result of payments he has had to make on behalf of his wife. He is precluded from recovery under this policy provision and, for the same reasons, is precluded from recovery under his other policies even if stacking were allowed. We know of no law, nor have we been cited any by plaintiff, that would allow stacking of the medical payments coverage.

SUPPLEMENTARY PAYMENTS

Finally, plaintiff claims coverage under the following clause:

“SUPPLEMENTARY PAYMENTS. To pay, in addition to the applicable limits of liability: ... (c) Expenses incurred by the insured for such immediate medical and surgical relief to others as shall be imperative at the time of an accident involving an automobile insured hereunder and not due to war.”

Vega claims that this clause is a stipulation pour autri or a stipulation in favor of a third person. The third person, he claims, is his wife Diane. Since the medical expenses Vega incurred on behalf of Diane were immediately imperative at the time of the accident and continued to be imperative because Diane’s condition did not change, Vega claims that he should be allowed to recover under this clause.

However, as the defendant points out in brief, this clause, otherwise known as the “good Samaritan” clause, is designed to reimburse an insured for expenses incurred on behalf of another party who does not qualify as an insured under the policy contract. Diane Vega certainly qualified as an insured under the three UM policies owned by the plaintiff. Additionally, neither Craig nor Diane Vega can receive payments under this provision under the Richardelle policy because there were no expenses incurred by the insured under that policy for immediate medical and surgical relief to others. There was no evidence that the Riehardelles incurred any expense in giving medical or surgical treatment to anyone involved in the accident at issue in this case. Plaintiff’s argument, therefore, must be rejected.

Therefore, for the above and foregoing reasons, the judgment rendered in appeal number 13980 is amended to award plaintiff, Craig Vega, the sum of $5,250.00 for loss of income as against State Farm Mutual Automobile Insurance Company as liability insurer, and in all other respects and as amended, both appeals are affirmed at defendant-appellee’s costs.

AMENDED AND AFFIRMED.

      . Two of the policies were “stacked” onto the policy providing UM coverage on the vehicle within which the Vegas were riding. At the time of this accident, stacking was still allowed under the law.


text:
    MARYLAND CASUALTY COMPANY, the Bank of New Orleans and Trust Company, and Hibernia National Bank v. Lucy Reid RAUSCH, Clerk of Court, Donald G. Lambert, and Sharon W. Lambert.
    No. 14026.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.

      J. David Forsyth, J. Patrick Beauchamp, Daniel A. Smith, New Orleans, for plaintiff-appellee.
    Arthur J. Lentini and Warren E. Moule-doux, Jr., Kenner, for defendant-appellant.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This comes before us on a motion filed by The Bank of New Orleans and Trust Company to dismiss an appeal for mootness. We find the matter to be moot, and dismiss the appeal.

To give a somewhat simplified history of the case, Donald G. Lambert and Sharon W. Lambert filed a petition in a lawsuit decided in Jefferson Parish (Suit No. 184-822 in the Twenty-Fourth Judicial District Court, Parish of Jefferson) to set aside a sheriff’s sale ordered in that case, and which said sheriff’s sale had taken place in St. Tammany Parish. Plaintiffs filed a notice of lis pendens in St. Tammany Parish. The Bank of New Orleans, Maryland Casualty Company, Hibernia National Bank in New Orleans, and George A. Broom, sheriff of St. Tammany Parish, filed declinatory exceptions to the venue of the court, and the case was ordered transferred to the Twenty-Second Judicial District Court for St. Tammany Parish. After the case was transferred (it was assigned Suit No. 59,856 in St. Tammany Parish) the trial court sustained peremptory exceptions of no cause or right of action, filed by The Bank of New Orleans, the Hibernia, and Maryland Casualty, and ordered the notice of lis pendens can-celled and erased from the public records, the date of said judgment on the peremptory exceptions being October 2, 1980. From the judgment, the Lamberts took a devolu-tive appeal, which is pending, but not presently under consideration.

In the meanwhile, on April 2, 1980, The Bank of New Orleans, the Hibernia, and Maryland Casualty had filed this suit in St. Tammany Parish seeking a writ of mandamus directing Lucy Reid Rausch, Clerk of Court, to erase the said notice of lis pendens (Suit No. 59,577 in St. Tammany Parish). Defendants in this suit in addition to the Clerk of Court were the same Mr. and Mrs. Lambert. The writ of mandamus was made peremptory and the notice of lis pen-dens was ordered erased by judgment dated May 20, 1980. From that judgment the Lamberts took a suspensive appeal, as to which the present motion to dismiss for mootness is filed.

As the sole issue before this court in the appeal of the mandamus proceeding (Suit No. 59,577 in St. Tammany Parish) is the correctness of the judgment ordering the erasure of the notice of lis pendens, and as the said notice of lis pendens was subsequently ordered erased by judgment rendered in Suit No. 59,856 in St. Tammany, from which judgment only a devolutive appeal was taken, the issue of erasure in the mandamus proceedings now on appeal is rendered moot. The motion to dismiss on grounds of mootness is, therefore, granted.

Costs of this appeal are assessed against Donald G. Lambert and Sharon W. Lambert.

MOTION TO DISMISS GRANTED.


text:
    MARYLAND CASUALTY COMPANY, et al. v. Lucy Reid RAUSCH, Clerk of Court et al.
    No. 14198.
    Court of Appeal of Louisiana, First Circuit.
    May 12, 1981.
    Rehearing Denied Aug. 5, 1981.
    Daniel A. Smith, J. David Forsyth, Patricia G. Underdahl, New Orleans, for plaintiff-appellee.
    John T. Cooper, New Orleans, for defendant-appellant.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This matter is before us on motions filed by appellees, Maryland Casualty Company, the Bank of New Orleans and Trust Company (BNO), and Hibernia National Bank to dismiss the appeal of Lambert Brothers Construction Company, Inc., for mootness. We have previously considered virtually the same issue in a recently decided case. See Maryland Casualty Company v. Rausch, 401 So.2d 374 (La.App. 1st Cir., 1981). As in the previous case, we find this action to be moot and, accordingly, dismiss the appeal.

Briefly, the facts pertinent to the issue of mootness are as follows: Lambert Brothers Construction Company, Inc. filed a suit (Civil Suit No. 59,935, Twenty-Second Judicial District Court, Parish of St. Tammany) seeking to set aside a sheriff’s sale which had resulted from a judgment in another suit. This sheriff’s sale took place in St. Tammany Parish. With reference to its suit to set aside the sheriff’s sale, Lambert Brothers Construction Company, Inc. filed a notice of lis pendens in the public records of St. Tammany Parish against the property that was the subject of the sheriff’s sale.

In response to the filing of the notice of lis pendens in Suit No. 59,935, plaintiffs in the instant case, Maryland Casualty Company, BNO and Hibernia National Bank, brought the instant suit seeking a writ of mandamus ordering the Clerk of Court of St. Tammany Parish, Lucy Reid Rausch, to cancel the lis pendens from the public records. While the instant suit was filed in the same court as the suit to set aside the sheriff’s sale, it was assigned to a different judge. After a hearing on the merits of the instant case, the trial court rendered judgment granting the writ of mandamus ordering the cancellation of the lis pendens. Judgment was signed on August 27, 1980, and a devolutive appeal was granted to Lambert Brothers Construction Company, Inc. on September 25, 1980. The appeal was lodged with this court on November 25, 1980.

In the meantime, plaintiffs in the instant action filed exceptions of no cause of action to the suit brought by Lambert Brothers Construction Company, Inc. to set aside the sheriff’s sale. (A hearing was set on the exceptions for September 8, 1980, but the parties stipulated the exceptions would be submitted on briefs.) On January 9, 1981, after lodging of the record in the instant case, the court rendered judgment sustaining the exceptions of no cause of action. The court dismissed the suit (No. 59,935) to set aside the sheriff’s sale and ordered the cancellation of the lis pendens, which plaintiffs seek to have erased in the present case. Judgment was signed January 28,1981, and notice of judgment was mailed on February 2, 1981. The delays for appealing that judgment lapsed on April 10, 1981. See LSA-C.C.P. art. 2087. On April 13, 1981, plaintiffs filed the motion to dismiss the present appeal, which is the matter now before this court.

The gist of plaintiffs’ allegation of mootness in the instant case is that the suit (No. 59,935) to set aside the sheriff’s sale, which is the basis of the notice of lis pendens sought to be erased by plaintiffs herein, has been dismissed and is now a final judgment. Moreover, plaintiffs point out, the notice of lis pendens was ordered erased in that judgment. Therefore, plaintiffs contend that the suit to set aside the sheriff’s sale can no longer serve as the basis for a notice of lis pendens.

The sole issue before this court is the correctness of the trial court issuing the writ of mandamus and ordering the erasure of the notice of lis pendens. Since, in a judgment that is now final, that same notice has been ordered erased and the suit (No. 59,935) which serves as the basis of notice has been dismissed, the present appeal is now moot. Accordingly, the motions to dismiss the appeal for mootness are granted.

Costs of this appeal are assessed against appellant.

MOTIONS TO DISMISS GRANTED.

      . Civil Suit No. 184-822 in the Twenty-Fourth Judicial District Court, Jefferson Parish. Subsequent to the sheriffs sale, in this same proceeding, Donald G. Lambert and Sharon W. Lambert filed a petition to set aside the said sheriffs sale of the subject property located in St. Tammany Parish and caused a notice of lis pendens to be filed in St. Tammany Parish. This suit was later transferred to the Twenty-Second Judicial District, St. Tammany Parish, where it was assigned Suit No. 59,856. This suit is now pending in the First Circuit, Court of Appeal (Docket No. 14,416) on devolutive appeal.
      To summarize: Two suits seeking to set aside the same sheriffs sale were filed, and in each of these suits a notice of lis pendens was filed. Suit No. 59,856 was filed by Donald G. Lambert and Sharon W. Lambert, and Suit No. 59,935 was filed by Lambert Brothers Construction Company, Inc. Two mandamus proceedings seeking erasure of the notices of lis pendens were filed. The mandamus proceeding seeking erasure of the notice of lis pendens in Suit No. 59,856 was considered by this Court in Docket No. 14,026 on April 13, 1981, La. App., 401 So.2d 374, as stated. The instant case is the mandamus proceeding seeking erasure of the notice of lis pendens in Suit No. 59,935.


author: CHIASSON, Judge.

text:
    Charles Edward KLOHN v. LOUISIANA POWER & LIGHT COMPANY.
    No. 14028.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.

      H. Alva Brumfield, III, Baton Rouge, for plaintiff-appellant Charles Edward Klohn.
    Eugene G. Taggart, New Orleans, for defendant-appellee Louisiana Power & Light Co.
    John F. Pugh, Jr., Thibodaux, for third-party defendant-appellee City of Thibo-daux.
    John H. Musser, IV, New Orleans, for intervenor-appellee Continental Cas. Co.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Charles Edward Klohn, plaintiff-appellant, appeals the summary judgment of the trial court dismissing his tort suit against one of the defendants, the City of Thibo-daux.

Appellant was employed by Cooper Energy Services, Inc. as a mechanic’s helper on June 27, 1979. Cooper Energy had been contracted by Louisiana Power and Light Company (LP&L) to torque the head of a cylinder at the power plant in the City of Thibodaux. At this time, the City of Thibo-daux owned the power plant but by way of an Operating Agreement signed in 1977, LP&L had full control and operation of the power plant. Klohn was injured when he fell through a hole on a grated walkway.

Appellant initially brought a personal injury suit against LP&L. He later amended his petition to include the City of Thibo-daux as owner of the plant as well as individuals who were employed by LP&L. LP&L was dismissed from the case on a motion for summary judgment on the ground that it was the statutory employer of Klohn under La. R.S. 23:1061 and only liable to Klohn for workmen’s compensation benefits. La. R.S. 23:1032. That decision was affirmed by this Court. (See Klohn v. Louisiana Power & Light Company, 394 So.2d 636 rehearing denied February 11, 1981).

The trial judge, after taking the present appellee’s motion under advisement, granted the summary judgment. He found “that LP&L was and is operating the power plant as the city’s agent * * Accordingly the Court concluded that the City was engaged in the business of generating electricity at the time of plaintiff’s accident and that the City was also the statutory employer of the plaintiff.

The appellant’s only specification of error is that the trial court erred in granting summary judgment since there was insufficient credible evidence in the record to prove that the City of Thibodaux was the statutory employer of the appellant.

Applicable to this case is Article 966 of the Code of Civil Procedure which provides the standards for granting the motion for summary judgment, as follows:

“ * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

In addition, Article 967 gives the Court guidance on the use of affidavits in motions of this type:

“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth facts as would be admissable in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all paper or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.”

The factual issue that is pertinent to this case is a two fold issue under La. R.S. 23:1061. This section of the Workmen’s Compensation Statute (commonly referred to as Section Six) states:

“Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependents, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; * * *”

For the granting of the motion for summary judgment to be correct there must not be a genuine issue as to whether the producing of electricity and all matters incidental to it, including repairs and maintenance, was within the “trade, business or occupation” of the City of Thibodaux.

Appellant contends that the affidavit filed by the Clerk of the City of Thibodaux and the accompanying “Operating Agreement” was insufficient evidence to prove that the City was in the business of producing electricity and the repair work involved with it. No opposing affidavits or other evidence was presented by the appellant to contradict what was submitted by the City. Appellant further contends that the trial court apparently relied on documents not properly before him in rendering the decision. (The City Charter and a bond resolution.)

Considering only the affidavit and the Operating Agreement, we find as the trial court did that the City of Thibodaux is in the business of producing electricity. As stated in the Operating Agreement: “WHEREAS, the City owns and operates an electric power and light plant and system * * * ”, there can be no doubt that the City is in the business of producing electricity. The Operating Agreement only turned the operating of the system over to LP&L. As stated also in the agreement, LP&L only operated as an agent: “the Company, acting as Agent for the City but at the sole cost and expense of the Company, shall perform and do, and shall have the sole and exclusive right and do, the following: (a) The Company shall operate and maintain the Distribution System * * * ”.

In effect the contractual arrangement in this case is that an agent (LP&L) of the principal (the City of Thibodaux) entered into a contract with a contractor (Cooper Energy Services) to perform maintenance work on the principal’s (City of Thibodaux) power plant. An employee (Klohn) of the contractor (Cooper Energy Services) was injured while in the performance of this work. The principal (City of Thibodaux) is thus liable for workmen’s compensation benefits and immune from suit in tort. La. R.S. 23:1061 and 23:1032. Redler v. Louisiana Power & Light Co., Inc., 383 So.2d 409 (La.App. 4th Cir. 1980); Palmer v. Willemet-Stouse Electric Company, 183 So.2d 373 (La.App. 4th Cir. 1966) writ denied 249 La. 67, 184 So.2d 736 (1966). Compare the operating agreement in Synder v. Kolb, 11 La. App. 414, 123 So. 454 (2nd Cir. 1929).

We therefore agree with the trial court’s finding that no genuine issue as to any material facts exist which would preclude the granting of a summary judgment. Barnes v. Sun Oil Co., 362 So.2d 761 (La. 1978).

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

AFFIRMED.


text:
    STATE of Louisiana, THROUGH the DEPARTMENT OF HIGHWAYS v. Gordon J. BITTERWOLF.
    No. 14029.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Rehearing Denied May 18, 1981.
    Writ Granted Sept. 18, 1981.

      Bryan Miller and Johnie E. Branch, Jr., Baton Rouge, for plaintiff-appellant.
    Clint L. Pierson, Covington, for defendant-appellee.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

The State of Louisiana, through the Department of Highways instituted this suit to expropriate a tract of land in St. Tammany Parish fronting on U.S. Highway 190 from the defendant, Gordon J. Bitterwolf. The land was needed as part of a State and Federal project to widen, improve and surface State Route La-U.S. 190 as a controlled access highway. James H. Heap intervened in the action contending that although he is not a record owner of the land, he nonetheless owns an undivided one-half interest in the land by way of a counter letter.

An order of expropriation was signed by the Court of February 3, 1975. On the same day the State deposited into the registry of the court the sum of $21,395.00 which represented the state’s estimated value of the land expropriated. After withdrawing the funds deposited, Bitterwolf answered the petition of the State alleging that the just compensation of the property taken and severance damages to the remainder was in the amount of $75,000.00.

A trial on the merits ensued with the State offering the testimony and reports of their two appraisers, Leland L. Landry and Henry B. Breeding, Jr. Their reports, although differing in actual value of the land, used comparable sales in arriving at their valuations. They confined their comparable sales to an area south of 1-12 which intersects U.S. 190 about one and one-half miles north of the property expropriated. Both reports conclude that no severance damage was occasioned to the remainder of the land by the taking of the smaller portion. Mr. Landry’s appraised value of the land at $21,395.00 was the value the plaintiff deposited in the registry of the court. This value represents an appraisal of 95<t a square foot.

Defendant’s appraisers, Robert Boettner and James A. Stevenson, also used comparable sales of property for determining the value of the property expropriated. They used sales from north of 1-12 as well as comparable sales from south of that point. They concluded that because of a loss of average depth of the property due to its irregular shape and because the accessability to the property is now restricted the remainder of the property had suffered severance damages.

The Trial Court, following a practice that was prevalent in its district among the other judges, stated that it was proper to look to sales north of 1-12 as comparables in order to value property south of 1-12. It went further and found that the report of Mr. Stevenson was impressive and fixed the fair market value of the land expropriated at $1.85 per square foot. In addition it found that the remaining property had been damaged to the extent of $29,917.01. The defendant’s appraisers fees were set by the court and attorney’s fees were set at 25% of the aggregate of the principal and interest.

The plaintiff has filed in this court a peremptory exception of “no right of action.” La. C.C.P. arts. 927 and 2163. Finding no merit in the exception it is hereby overruled. The defendant, did not institute any action, so there exists nothing against which or to which an exception can be filed. The defendant being the party sued by the State, is the proper person to challenge the amount of just compensation awarded him. Finally, a party to an action cannot challenge a theory of recovery by way of an exception.

The record reveals that in 1968 the State of Louisiana made an announcement that La-U.S. 190 and the North Causeway approach from 1-12 to Lake Pontchatrain Causeway would be a controlled access highway. Service roads would be erected on the property fronting U.S. 190 and only two interchanges were contemplated in the immediate area. The effect of this announcement resulted in depressing property values south of the interstate. Because the depressed value of the properties was caused by the proposed improvement, the judges in the district have followed a practice of allowing appraisers to use comparable sales north of 1-12 to value property south of 1 — 12. A review of these sales by one of the appraisers shows a two to one price difference between the two areas.

Mr. Bitterwolf bought the 1.34 acre tract of land (consisting of 57,717 square feet) on March 10, 1973, from Edward A. Elfer. The purchase was some four and one-half years after the announcement and less than two years before the expropriation by the State. The State took 22,520 square feet of the undeveloped land with 75 feet being front footage.

The applicable law starts with the 1974 Louisiana State Constitution which states in Article 1 Section 4 that, “the owner shall be compensated to the full extent of his loss.” Louisiana Revised Statutes, Title 48, Section 453 provides:

“A. The measure of compensation for the property expropriated is determined as of the time the estimated compensation was deposited into the registry of the court, without considering any change in value caused by the proposed improvement for which the property is taken.
“B. The measure of damages, if any to the defendant’s remaining property is determined on a basis of immediately before and immediately after the taking, taking into consideration the effects of the completion of the project in the manner proposed or planned.”

The landowner is entitled to the actual market value of the particular portion of property taken and to any severance damages caused to the remaining property because of the taking. State, Department of Highways v. Tyler, 326 So.2d 349 (La. 1976); State, Dept. of Highways v. Trippeer Realty Corp., 276 So.2d 315 (La.1973); State, Department of Highways v. Whitman, 313 So.2d 918 (La.App. 2nd Cir. 1975).

As stated by this court in State, Through Dept. of Highways v. Romano, 343 So.2d 222, 226 (La.App. 1st Cir. 1977):

“Just compensation for property taken is the fair market value thereof according to its highest and best use, immediately prior to the taking without any enhancement by virtue of the purpose of the taking. State, Department of Highways v. Hoyt, 284 So.2d 763 (La.1973); State, Department of Highways v. Trippeer Realty Corporation, 276 So.2d 315 (La. 1973).”

The market value is “the price which would be agreed upon by a willing and informed buyer and seller in the condition in which the property stood at the time of expropriation.” State, Dept. of Highways v. Dyess, 350 So.2d 1304 (La.App. 3rd Cir. 1977).

One method to determine what a willing seller would pay for the property is “to consider comparable sales, adjusting them to compensate for their relative good and bad features with regard to the property expropriated.” Romano, supra, p. 226.

In this case we must place a value on property that all parties know has a depressed value as of the time of the taking. This is an effect of the proposed project and should not be used in determining market value. La.R.S. 48:453. The District Court has allowed the use of comparable sales north of 1-12 to determine the value of land south of 1-12. Under the facts of this case, the true market value of the expropriated land can properly be ascertained by considering sales north of 1-12.

Since neither of the State’s appraisers used comparable sales north of 1-12, their reports reflect only the depressed value of the land resulting from the proposed improvements. They, therefore, do not reflect the true market value of the property taken. The trial court found the report of James A. Stevenson to be noteworthy since he did consider the sales north of 1-12. The trial court fixed the fair market value of the land expropriated at $1.85 per square foot. We find no manifest error in the determination by the trial court of the value of the property taken in the instant case. State, Through Dept. of Highways v. Salles, 387 So.2d 1278 (La.App. 1st Cir. 1980). Romano, supra, p. 227.

As to severance damages, this court in State, Through Dept. of Highways v. Wilson, 372 So.2d 632, (La.App. 1st Cir. 1979), defined severance damages and the method by which it is calculated as follow:

“Severance damage is any depreciation in market value of the remainder of a landowner’s property caused by the taking. Such damages are recoverable and are ordinarily calculated as the difference between the value of the remaining property before and after the taking. State, Department of Highways v. Denham Springs Development Co., Inc., 307 So.2d 304 (La.1975). The burden of proving severance damages rests on the landowner, who must prove such damages with legal certainty by a preponderance of the evidence. State, Department of Highways v. Levy, 242 La. 259, 136 So.2d 35 (1961). However, there is no fixed or artificial formula by which such damages must be proved. Louisiana Power and Light Co. v. Churchill Farms, Inc., 292 So.2d 183 (La.1974). In fact, the informed and reasoned opinion of an expert, corroborated by the facts in the record, may be sufficient proof of a severance damage loss, especially where it is accepted by the trier of fact. State, Department of Highways v. Ross Continental Motor Lodge, Inc., 328 So.2d 883 (La. 1976); State, Department of Highways v. Denham Springs Development Co., supra, and cases cited therein.
“In expropriation proceedings, the trial court’s factual findings as to severance damages and the evaluation of and the weight given to, the testimony of expert witnesses will not be disturbed on review absent a showing on manifest error. State, Department of Highways v. Ruckstuhl, 348 So.2d 701, 704 (La.App. 1st Cir. 1977); See Arceneaux v. Domingue, 365 So.2d 1330 (La.1980).”

Unlike determination of the market value of the land, for severance damage purposes the court needs to consider the effects of the completion of the project.

The trial judge accepted the analysis and appraisement of Mr. Stevenson as to the severance damages sustained by defendant. Mr. Stevenson concluded that the remainder of the property suffered severance damages for the following reasons:

“1. Taking removed Bitterwolf property from fronting on North Causeway approach at the intersection of LA-US Highway 190 at the point of a traffic cross-over and placed it behind a fence and drainage ditch fronting on a controlled access service road.
2. Taking caused extreme circuitous access.
3. Taking reduced visual access.
4. Taking reduced frontage from 370-49' to 295.52'.
5. Taking reduced average depth from 158.14' to 120.99'.
6. Taking magnified irregular shape.
7. Taking completely changed highest and best use from prime highway commercial to controlled access service road (Secondary Commercial).”

The accessibility to the remainder is a significant factor since motorist approaching from the south must go past the property a half mile and return via a service road. This factor has been held significant for severance damage purposes. Salles, supra; State, Department of Highways v. Beatty, 288 So.2d 900 (La.App. 1st. Cir. 1973); State, Through Dept. of Highways v. Hoyt, 357 So.2d 1189 (La.App. 3rd Cir. 1978).

The amount of the severance damages was calculated by taking the before taking value of $1.85 per square feet, subtracting therefrom the after taking value of $1.00 per square foot and multiplying the remaining 35,196.48 square feet by the difference for a total of $29,917.01. This evidence fully supports the trial court’s award for severance damages.

Another measure of compensation enumerated in Louisiana Revised Statutes, Title 48, Section 453 is that of reasonable attorney fees. The statute provides that such fees shall not “exceed 25% of the difference between the award and the amount deposited in the registry of the Court.” La. R.S. 48:453 (E). The Court awarded defendant attorney’s fees of 25% of the aggregate of the principal and interest due.

The State deposited into the registry of the court the amount of $21,395.00. The Court awarded Mr. Bitterwolf, $71,579.97 plus interest from the date of taking (February 3, 1975). The trial court allowed defendants attorney’s fees in the amount of 25% of that award minus what the State had deposited into the registry of the Court. We do not find that the trial court abused its discretion in such an award. State, Dept. of Highways v. Terrebonne, 349 So.2d 936 (La.App. 1st Cir. 1977); State, Dept. of Transp. v. Van Willett, 386 So.2d 1023 (La. App. 3rd Cir. 1980).

For the reasons assigned, the judgment of the trial court is affirmed at appellants cost in the amount of $5,433.96.

Affirmed.

      . This expropriation suit falls under the 1974 Louisiana State Constitution which took effect on January 1, 1975.

      . Neither of the State appraisers concluded that there was severance damage to the remaining property.