author: KLEES, Justice, Ad Hoc.

text:
    STATE of Louisiana v. Edgar S. BOLTON.
    No. 81-KA-0502.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
    Rehearing Denied Jan. 25, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Allen W. Helm, Lavalle Salomon, Asst. Dist. Attys., for plaintiff-ap-pellee.
    James D. Sparks, Monroe, for defendant-appellant.
   KLEES, Justice, Ad Hoc.

The defendant, Edgar S. Bolton, was charged on August 14,1979, by bill of information with aggravated crime against nature on a minor, in violation of La.R.S. 14:89.1, within the time period between March 1, 1979 and June 30, 1979. The defendant pled not guilty, filed a motion to suppress evidence, which was denied, and stood trial before a twelve person jury beginning on January 10, 1980. On January 11,1980, ten of the twelve jurors reached a verdict of guilty as charged. On November 26, 1980, the trial court sentenced defendant to five years at hard labor. The defendant appeals his conviction, alleging nineteen assignments of error.

FACTS

From March, 1979 through June, 1979, the victim resided with his grandparents, twin brother Johnny, and step-brother, Kenneth, at 1402 Mack Street, Monroe, Louisiana. He was nine years old at the time. Edgar Bolton (Age 74), the defendant, moved next door with his wife, apparently in the fall of 1978. The three boys became friendly with the defendant, watched him upholster old chairs and sometimes worked for him, cleaning his house or workshop.

In March, 1979, the three boys were playing with some tadpoles on the front porch of defendant’s house. The defendant came outside and pulled the victim inside. He then locked the front door, led the victim to the back bedroom, laid him on a bed, unzipped his own pants, made the victim suck his penis and stuck his penis in the victim. The victim’s step-brother ran around to the back of the house and viewed this through the bedroom curtains. After this incident it appears the defendant performed various deviate sexual acts with the victim, including sticking his penis in him, making him suck his penis, caressing his genitals with the victim’s hand and a vibrator and having him watch him ejaculate into a rubber hose attached to the vibrator. The defendant then offered the victim money if he would not tell his momma what they did.

MOTION TO REMAND

Defendant on September 29, 1981 filed a “Motion to Remand Pursuant to Article 854, Louisiana Code of Criminal Procedure,” attaching a “Motion for a New Trial” which he filed in the District Court, alleging the existence of newly discovered evidence.

A verdict in this matter was rendered on January 11,1980 and sentence was imposed on November 26,1980. Defendant contends that the motion for new trial was timely filed under C.Cr.P. Arts. 851 and 853.

La. Code Criminal P. Art. 851 provides in pertinent part:

The court, on motion of the defendant, shall grant a new trial whenever:
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.

La.Code Crim.P. art. 853 provides in pertinent part:

When the motion for a new trial is based on ground (3) of Article 851, the motion may be filed within one year after verdict or judgment of the trial court, although a sentence has been imposed or a motion for a new trial has been previously filed; but if an appeal is pending the court may hear the motion only on remand of the case.

Since more than one year has passed from the verdict date to the filing of the motion for new trial it is obvious that defendant’s contention, that the motion for new trial was filed timely, is that it was filed within one year of sentencing.

As expressed above under La.Code Crim.P. Art. 853 the motion may be filed within one year after verdict or judgment of the trial court, although a sentence has been imposed... (Emphasis added) In State v. Blue, 64 So. 411, 134 La. 561 (La.1914) this court defined verdict as:

The word “verdict” is derived from the Latin “veredictum,” meaning a true declaration. It is the answer of the jury made upon any cause, civil or criminal, committed by the court to their examination. Whatever they sign beyond this is immaterial, and to be rejected. It is a very important act; it is the culmination of the trial, and embodies the conclusion of the jury upon the questions of fact litigated on the trial. It is the decision of the jury, and, as such, it must stand if it is clear, intelligible, and responsive to the charge.

State v. Jackson, 362 So.2d 766 (La.1978) and State v. Molinario, 383 So.2d 345 (La.1980) both refer to new trial motions filed “within one year after verdict” although they do not deal directly with the issue presented herein.

As used in La.Code Crim.P. Art. 853, the verdict or judgment of the trial court indicates a finding of guilt or innocence and in our opinion does not include sentencing. Accordingly we deny the motion to remand and will now address ourselves to the issues before us on appeal.

ASSIGNMENTS OF ERROR NOS. 1 and 16

By these assignments, the defense argues that the trial court erred in denying a motion to suppress as untimely filed and in denying a motion for a new trial on grounds that evidence taken from defendant’s house was unconstitutionally seized.

On January 4, 1980, the state filed a “Notice of Intent to Offer Evidence of Other Crimes.” The state thereby notified defendant that it intended to prove defendant’s lustful disposition for the victim by other acts of the defendant, consisting of placing the penis of the victim in a foam rubber tube or hose, which was connected to a hand held vibrator later removed by the police. On January 10, 1980, the first day of trial, defense counsel filed a “Motion to Suppress” this evidence, on the grounds that it would enrage a jury against defendant. Defense counsel therein claimed that the aforementioned “notice” provided his first knowledge of this evidence, and urged, “that the showing or use of this apparatus should be suppressed in that it is an indication of another crime other than that which your movant is being tried for.” The trial court denied this motion on grounds it was untimely, and has noted in its per curiam that defendant answered ready for trial on January 9,1980, after already receiving the state’s notice on January 4, 1980. Accordingly, the trial court conducted no hearing into the grounds of the motion.

Counsel argues in brief that the factor of surprise cures any untimeliness under La.C. Cr.P. Art. 703, the basis of the trial court’s denial of the motion. The state contends that since defendant was present when the item was seized from his home on July 18, 1979, and the arresting officer testified to the continuing nature of the crime at the preliminary examination, both defendant and defense counsel were placed on notice of the state’s intent to introduce this evidence. The state also submits that since counsel did not file any motions for discovery or particulars, he should not be able to claim surprise under La.C.Cr.P. Art. 703.

The state, defense and the trial court all appear to be arguing under the wrong law. Despite its title, counsel’s motion was clearly not challenging the introduction of the vibrator apparatus under the Fourth Amendment or La.Const.1974, Art. 1, § 5. Rather, it questioned the admissibility of the evidence under Louisiana’s system and intent statutes, R.S. 15:445 and 446. Viewed in that light, the trial court should have granted the defense a hearing. In State v. Prieur, 277 So.2d 126 (La.1973), this Court established procedural guidelines for the use of other crimes evidence at trial. Prieur requires that “[t]he state shall within a reasonable time before trial, furnish in writing to the defendant a statement of the acts or offenses it intends to offer.. . . ” Id., 277 So.2d at 130. It also requires that as a “[p]rerequisite to the admissibility of the evidence is a showing by the state that the evidence of other crimes is not merely repetitive and cumulative, is not a subterfuge for depicting the defendant’s bad character or his propensity for bad behavior. ...” Id.

Whether or not he knew that the vibrator apparatus had been seized by the authorities, counsel had no reason to move to exclude evidence of other crimes until the state filed its notice of intent on January 4. Given the lateness of that notice, counsel’s motion to suppress [exclude] the evidence on Prieur grounds, and put the state to its burden of proving the admissibility of other acts involving the same victim, was surely not untimely. Nevertheless, the evidence was admissible, and the defense can show no specific prejudice arising out of the trial court’s failure to conduct a pre-trial hearing. In State v. Acliese, 403 So.2d 665 (La.1981), this Court upheld the trial court’s admitting evidence of prior sexual assaults by defendant on the victim to show his lustful disposition toward her. This Court reviewed Louisiana jurisprudence on this issue and said:

“Evidence of other crimes related to the offense with which a defendant is charged is inadmissible except under special exceptions. Aside from related offenses admissible as part of the res gestae and convictions admissible for impeachment purposes, Louisiana’s statutes provide for three exceptions — acts relevant to show intent, knowledge or system. La.R.S. 15:445, 446. Louisiana courts have recognized certain other exceptions, including the admissibility of prior sex crimes committed against the same prosecutrix. State v. Morgan, 269 So.2d 286 (La.1974), and citations therein.

Therefore, the merits of defense counsel’s pretrial contention, that these other acts would unduly prejudice the jury, do not appear to merit consideration.

Counsel also urges here that the trial court erred in denying his motion for a new trial. Counsel filed that motion on February 14, 1980 and alleged, inter alia, that he had just discovered that defendant did not (as the state claimed) contemporaneously give his consent to the search of his home. Pursuant to this warrantless search, the vibrator and rubber hose were seized and admitted into evidence allegedly in violation of the defendant’s constitutional rights.

Raised for the first time in a post-trial motion, counsel’s constitutional objections under the Fourth Amendment and La.Const.1974, Art. I, § 5 were clearly untimely. La.C.Cr.P. Art. 703. In any event, defendant’s own testimony on direct examination refutes counsel’s present argument:

Q. Did you allow them to search the address at 1402 Mack Street?
A. Yes.

Consent is, of course, one of the well recognized exceptions to the warrant requirement. State v. Jolla, 384 So.2d 370 (La.1980). This assignment therefore lacks merit.

ASSIGNMENTS OF ERROR NOS. 2, 7, 12 and 13

By these assignments, defendant raises the issue that the trial court erred in consistently permitting the state to ask unduly leading questions of the complainant, a minor child, age ten, at trial. Defense counsel admits that this matter is within the trial court’s discretion and in effect offers no argument.

A leading question is ordinarily prohibited when propounded to one’s own witness, unless such witness is unwilling or hostile. La.R.S. 15:277. However, an exception is usually made when questioning a young child. In State v. Francis, 337 So.2d 487 (La.1976), this Court noted the following:

. .. Thus, the judge, when need appears, will ordinarily permit leading questions to children, or to witnesses so ignorant, timid, weak-minded, or deficient' in the English language, that they cannot otherwise be brought to understand what information is sought. It is recognized, especially as to children, that in these cases the danger of false suggestion is at its highest, but it is better to face that danger than to abandon altogether the effort to bring out what the witness knows....
McCormick, Evidence, sec. 6 at page 10 (Cleary, 2d ed. 1972).
In State v. Williams, 143 La. 424, 78 So. 662 (1918), this court held that it would not be objectionable to ask leading questions of the twelve-year-old victim of a rape. We stated:
. .. [T]he rule forbidding leading questions is not so rigid that it should not yield somewhat to the discretion of the trial judge in the examination of a very young or timid witness.
Furthermore, notwithstanding the general rule against leading questions, the matter is largely within the discretion of the trial court and in absence of palpable abuse of that discretion resulting in prejudice to the accused, a finding of reversible error is not warranted. State v. Fallon, 290 So.2d 273 (La.1974); State v. Hollingsworth, 160 La. 26, 106 So. 662 (1925).

In the present case the victim was ten-years-old at trial and nine-years-old during the commission of the offense. A review of the questions propounded to him does not reveal that they were overly suggestive. We find no actual prejudice nor abuse of discretion by the trial court. These assignments lack merit.

ASSIGNMENTS OF ERROR NOS. 3, 4, and 10

Defense counsel argues that the trial court erred in not granting a mistrial under the following three assignments of error.

By Assignment of Error No. 3, defense counsel argues that the trial court erred in permitting the victim’s grandfather to remain by him while he testified, thereby coaching the young boy and otherwise creating prejudice. By Assignment of Error No. 4, it is submitted that the victim’s grandfather made some improper comments to the judge and jury when he was directed to leave the courtroom, and thereby prejudiced the jury. By Assignment of Error No. 10, defense counsel submits that the state’s unsuccessful attempt to introduce four magazines found at defendant’s home, entitled: Sin, Quido, Cherry, and Hustler, so prejudiced the jury as to warrant a mistrial.

The state argued that the trial court did not abuse its discretion under La.C.Cr.P. Art. 764, by allowing the victim’s grandfather to remain next to the victim while he testified because it was necessary for the victim to compose himself, and the grandfather never did testify. The state next submitted that neither the court nor the court reporter heard this unknown comment by the grandfather, which related to the victim, not the defendant and therefore an admonition could have been sufficient, but defense counsel declined to seek such a remedy. As to the magazines, the state submits that these items were never seen by the jury because they remained in a brown paper bag until the jury was removed for argument on the issue and, regardless defense counsel neither objected nor moved for a mistrial.

Assignments of Error Nos. 3 and 4 are properly before this Court as defense counsel did indeed move for a mistrial due to the alleged comment by the grandfather and the trial court noted defense counsel’s objection to the grandfather’s presence after the court denied the motion to exclude the grandfather from the courtroom under La.C.Cr.P. Art. 764. As to the magazines which were not admitted into evidence, defense counsel did not object to the witness mentioning the titles in front of the jury, the jury was then removed during argument over admissibility and never viewed these magazines and defense counsel did not request that the jury be admonished or move for a mistrial on the witness’s comments. Defendant is therefore deemed to have waived any error on appeal which he may have claimed under La.C.Cr.P. Arts. 771 and 775. State v. Jones, 381 So.2d 416 (La.1980).

As to Assignment of Error No. 3, it does not appear that the trial court abused its discretion in denying defense counsel’s motion to exclude the grandfather from the courtroom under La.C.Cr.P. Art. 764. The grandfather was not called as a witness. Moreover, La.C.Cr.P. Art. 764 allows the court to modify its’ order in the interest of justice. As for the grandfather standing over the victim while he testified this could indeed be prejudicial. However, the record indicates that this ten-year-old boy was in tears, and did request the grandfather’s presence when the trial judge inquired whether the victim thought he needed his grandfather there. This matter lies within the discretion of the court as to how the trial procedure should be conducted.

In Assignment of Error No. 4 defense counsel complains of some comment by the victim’s grandfather, made in the presence of the jury. The comment appears to refer to the victim being railroaded. However, the trial judge did not hear this comment and the court reporter’s recording mechanism did not pick it up. The trial court denied defense counsel’s request to ask each juror whether they heard the statement and, if they did, to grant a mistrial. However, defense counsel specifically declined the trial court’s offer to admonish the jury as to anything that the grandfather may have said, instead deciding to let it pass. Since this comment was not made by the judge, district attorney or court official and did not refer to the defendant, an admonishment instead of a mistrial would appear to have been an appropriate remedy. See, La.C.Cr.P. Arts. 770, 771, 772 and 775. These assignments lack merit.

ASSIGNMENT OF ERROR NO. 8

By this assignment defense counsel contends that the trial court erred in allowing the defendant to voluntarily leave the courtroom, with his attorney’s acquiescence, during the examination of a witness. Since the defendant voluntarily left the courtroom while his attorney was present he cannot object to his temporary absence under La.C.Cr.P. Art. 832.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 17 and 18

By these assignments defense counsel argues that the trial court erred in denying defendant’s motion for a new trial and motion in arrest of judgment based on a failure to admonish or sequester the jury. It is submitted that the guilty verdict is tainted because jurors may have heard a guilty plea tendered on the first day of the trial as to a lesser charge yet rejected by the trial court. It is submitted that the trial court did admonish the jury and did not inquire whether any of the jurors were aware of what was going on in the courtroom. It is further submitted that a local newspaper published the fact that defendant attempted to plead and the trial court did not inquire whether any jurors read the article nor did the trial court admonish or sequester the jury.

The clerk’s minute entry reflects that the jury was chosen on January 10, 1980, the bill of information was then read, the trial court instructed the jury as to its behavior and allowed it to separate. The trial judge has no recollection as to instructing the jury on reading newspaper accounts of the proceeding but does recall that the newspaper reporter was not able to make his evening deadline to publish the account of the tendered guilty plea. It therefore does not appear that the defense has established that the jurors were even subject to publicity of a tendered guilty plea, much less that any of the jurors were aware of this fact.

Under La.C.Cr.P. Art. 791 the jury must be sequestered in non-capital cases only after the court’s charge. The trial court may order the jury to be sequestered at any time. However, at any other time, including the commencement of the judge’s charge, it is within the sound discretion of the trial court whether to allow the jurors to separate or be sequestered. State v. Phillips, 343 So.2d 1047 (La.1977). In State v. Phillips, supra, this court held that the trial court did not abuse its discretion in failing to sequester a jury during a week long kidnapping trial despite the fact that local newspaper and television stations gave wide publicity during the week of the trial to an unrelated kidnapping.

In the present case it appears that this issue was raised for the first time in defendant’s motion for a new trial. The testimony during the hearing on this motion does not substantiate the tenuous theory which defense counsel proffers. It therefore appears that the trial court did not abuse its discretion in failing to sequester the jurors on its own motion.

Likewise, defense counsel has failed to show either any jurors knew of the attempted guilty plea tendered while it was taking place; or that defense counsel requested the trial judge to inquire whether the jurors knew of the guilty plea tender. However, the clerk’s minutes do reflect that some admonishment was given to the jurors on January 10, 1980. Under these circumstances it seems that defense counsel has not met its burden of proof.

These assignments lack merit.

ASSIGNMENT OF ERROR NO. 19

Defense counsel argues that the trial court erred by invading the defendant’s attorney-client privilege. Defense counsel submits that the trial court permitted cross-examination of the defendant during the post-conviction hearing on the “Motion for a New Trial” concerning whether the defendant had advised his trial attorney of the circumstances surrounding the search of his home or his alleged consent thereto.

It appears that the defendant never did affirmatively invoke the attorney-client privilege. In State v. Vassel, 285 So.2d 221 (La.1973), this Court noted that the La.R.S. 15:475 attorney client privilege did not bar any of the defendant’s answers where he readily answered questions without objection.

Since defendant never affirmatively invoked this privilege, the state withdrew its question and defense counsel does not even request what relief he seeks from this alleged infringment of the attorney-client privilege during a post-conviction proceeding, this assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 6 and 11

By these assignments defense counsel argued that the trial court erred in allowing irrelevant and immaterial evidence to be introduced. Error is alleged when the trial court allowed the state to question the victim as to whether he had bad dreams after the alleged incident. Error is also alleged by the trial court allowing an empty black box, allegedly seized from defendant’s home, into evidence as being irrelevant and admitted without a proper foundation.

The first alleged error concerns the following testimony which was elicited by the prosecutor from the victim during direct examination:

Q. Donnie, have you haver had any bad dreams?
A. Yes, sir.
Q. What kind of bad dreams?
By Mr. Heard: I object as being irrelevant.
By Mr. Helm: It certainly is not irrelevant, Your Honor.
By the Court: At this point, without a time frame, I find it irrelevant.
Q. After you had to do this, this act in the yellow house, did you ever have bad dreams after that?
A. Yes, sir.
Q. Were ' the bad dreams concerning what happened in the house?
A. No, sir.
By Mr. Heard: I object as being leading.
By the Court: He had responded already before the objection. The question and answer will stand. Did you hear the response?
By Mr. Heard: Yes, Your Honor.
Q. Donnie, what were the dreams about?
A. See, I was locking myself in Kenneth’s room and I was dreaming about that he had a gun toward the window and—
Q. —Who had a gun?
A. Mr. Bolton. I thought he was going to shoot me and I was yelling moma.
Q. Why do you think Mr. Bolton was going to shoot you?
A. Because of me telling on him.

It appears that defense counsel abandoned his relevancy objection after the trial court required the prosecutor to set out a time frame. Defense counsel’s next and last objection was that the prosecutor’s question was leading. Under this Court’s rationale in State v. Robertson, 364 So.2d 915 (La.1978), and La.C.Cr.P. Art. 841, defense counsel may be barred from converting his leading question objection to a relevancy argument on appeal.

However, assuming that the objection was one of relevancy, then the question becomes whether the trial court abused its discretion in ruling that this testimony was relevant. A trial judge’s ruling concerning the relevancy of evidence will not be disturbed on appeal in the absence of a showing of a clear abuse of discretion. State v. Martin, 400 So.2d 1063 (La.1981); State v. Alford, 384 So.2d 761 (La.1980); State v. Echols, 376 So.2d 1244 (La.1979); State v. Weems, 358 So.2d 285 (La.1978). The trial judge is vested with wide discretion in determining relevancy of evidence. State v. Hathorn, 395 So.2d 783 (La.1981).

In the present case, the prosecutor apparently offered evidence of the victim’s bad dreams to establish that the defendant did indeed commit deviate sexual acts with the victim rather than the victim fabricating the story. Accordingly we find no abuse of the wide discretion afforded the trial court.

At trial, Sergeant Ray Cook testified that he seized an empty black box, a long black rubber hose, and short black rubber hose from the defendant’s residence at 1006 North Third Street in West Monroe pursuant to a “consent to search” form. He stated that these items were in his possession under lock and key since the seizure except when he submitted these items to Linda Armstrong. Linda Armstrong, a criminalist, with the North Delta Crime Lab, testified that she received these items from Sergeant Cook on August 22, 1979, and had them under her control until she returned them to Sergeant Cook on January 2, 1980. During this period she conducted tests which revealed presence of seminal fluid or spermatozoa on one of the black rubber hoses identified as “S-8”. On cross-examination she admitted that the seminal fluid was not necessarily from a human being; it could have been from an animal. The victim testified that he recognized the short black rubber hose as one that the defendant would connect to a vibrator and insert his penis into and then turn the vibrator on. A picture on the empty black box was identified by the victim as the vibrator which the defendant used on himself, as described above, and on the victim.

The testimony recited above appears to lay a sufficient foundation for the introduction of these items into evidence. This evidence appears to be relevant towards proving the defendant’s lustful disposition for the victim. It does not appear that the trial court abused its discretion in admitting these items into evidence.

These assignments of error lack merit. ASSIGNMENTS OF ERROR NOS. 5 and 14

By these assignments defense counsel argues that the trial court erred in admitting certain statements, alleged to have been made by defendant, in one instance to the victim and in other instances to one Nora Nix, into evidence. Defense counsel first argues that these statements are “confessions” and that the proper procedure to determine their admissibility was not followed. Alternatively, defense counsel argues that if they are admissions then the proper predicate was not laid under La.R.S. 15:451.

We note that trial counsel objected to the victim’s testimony as being repetitious and Nora Nix’s testimony as being hearsay. Only on appeal does defense counsel argue that these statements constitute confessions or that the proper predicate was not laid for their introduction under La.R.S. 15:451. Under La.C.Cr.P. Art. 841 and this Court’s rationale in State v. Robertson, 364 So.2d 915 (La.1978), defense counsel may be barred from converting his repetitious and hearsay objection to the present argument on appeal. Regardless, the merits of the argument will be addressed.

La.R.S. 15:449 provides the following statutory distinction between “admission” and “confession”:

The term “admission” is applied to those matters of fact which do not involve criminal intent; the term “confession” is applied only to an admission of guilt, not to an acknowledgment of facts merely tending to establish guilt.

In State v. Dallao, 187 La. 392, 175 So. 4, appeal dismissed, 302 U.S. 635, 58 S.Ct. 51, 82 L.Ed. 494 (1937), this Court noted the following distinctions between a “confession” and an “admission”:

A confession is limited in its precise scope and meaning to the criminal act itself. It does not apply to acknowledgments of facts merely tending to establish guilt, since a damaging fact may be admitted without any intention to confess guilt. There is a broad distinction between the mere admission of inculpato-ry facts and a confession of guilt. Where a person only admits certain facts from which the jury may or may not infer guilt, there is no confession. Marr’s Crim. Jurisprudence, Vol. 2, pp. 841, 842.

See, State v. Coleman, 390 So.2d 865 (La.1980); State v. Andrus, 250 La. 765, 199 So.2d 867 (1967); Comment, Confessions in Louisiana Law, 14 La.L.Rev. 642 (1954).

None' of the statements allegedly made to Nora Nix seem to us to constitute a confession because none of them even refer to the victim. Rather these statements tend to circumstantially establish defendant’s knowledge of the vibrator and his sexual predilections. Therefore rules governing the admission of a confession would not be applicable.

Additionally, a careful review of Nora Nix’s testimony concerning these “admissions” by the accused shows us that they were free and voluntary. This argument lacks merit.

Defendant’s statement allegedly made to the victim does not seem to constitute a confession. The defendant did not thereby admit guilt to any particular offense. Rather, his statements amount to admissions by conduct, the offering of money to the victim in return for acts of oral sex and his silence at home. To this extent, the evidence was admissable as an exception to the hearsay rule. Moreover, with regard to the state’s predicate for the use of this evidence, it did submit a “Notice of Intent to Use Inculpatory Statements.” In any event, the victim was clearly not an officer of the state, and the statements were not made in the course of a custodial detention. Miranda warnings were therefore not required, State v. Ordonez, 395 So.2d 778 (La.1981). As to voluntariness, the record contains no indication that defendant was insane at the time, compare, State v. Glover, 343 So.2d 118 (La.1976), and it seems inconceivable that this little boy coerced this statement from the defendant. Given the fact that the state gave defendant timely notification of its intent to use this statement; defendant did not contend this statement constituted a confession at trial and the statement was allegedly made to a nine year old boy instead of.a law enforcement official, this argument lacks merit.

ASSIGNMENT OF ERROR NO. 15

By this assignment defense counsel argues that a new trial should have been granted because of new and material evidence concerning the victim’s testimony. He contends that because the victim told a Mrs. Drum that he fabricated the story and misrepresented the facts, his testimony could have been impeached by these prior inconsistent statements.

During the hearing on the “Motion for a New Trial” the state and the defendant entered a stipulation that if Mrs. Drum were called she would testify that her son and the victim both told her that the victim denied being sexually assaulted by the defendant. The parties further stipulated that Mrs. Drum’s testimony would be truthful as to what was told her by the victim and her own son and could be admissible to impeach the victim’s testimony on a prior inconsistent statement. Apparently this statement was made before or during the trial because the prosecutor did concede that it was a classic prior inconsistent statement, although no time frame is given.

La.C.Cr.P. Art. 851 governs this “Motion for a New Trial” as follows:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
* * * * * *
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty; [or]
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

This court has consistently held that the trial judge is accorded considerable discretion in evaluating the impact of newly-discovered evidence on the verdict and its reliability, and his ruling will be disturbed on appeal only where there is a clear showing of abuse of discretion. In considering a motion for a new trial based on newly-discovered evidence, the test to be employed is not simply whether another jury might bring in a different verdict, but whether the new evidence is so material that it ought to produce a different result than the verdict reached. State v. Miles, 402 So.2d 644, (La.1981); State v. Williams, 362 So.2d 530 (La.1978).

In the present case, this stipulation directly conflicts with the testimony of the victim at trial. Only ten of the twelve jurors voted for conviction. It is questionable whether this stipulation would constitute evidence so material that it ought to produce a different result than the verdict reached. It is only a prior inconsistent statement as opposed to substantive evidence probative of the defendant’s innocence. It is certainly conceivable that the victim would be embarrassed or ashamed to admit to a friend that he had sexual relations with a seventy-four year old man. Given the presence of seminal fluid in the black rubber hose, the defendant’s statements to Nora Nix regarding his sexual predilections, the eyewitness testimony of the victim’s step-brother, and the victim’s description of how these alleged deviate sexual acts took place, it does not appear that evidence of this prior inconsistent statement would have produced a different result than the verdict reached. This assignment of error lacks merit.

For the foregoing reasons, the conviction and sentence of defendant are affirmed.

AFFIRMED.

CALOGERO, J., dissents being of the view that there is merit to Assignments 5 and 14.

       Judge Ned E. Doucet, Court of Appeal, Third Circuit, and Judges Thomas J. Kliebert, and Robert J. Klees, Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices ad hoc joined by Chief Justice John A. Dixon, and Associate Justices Pascal F. Caloge-ro, Jr., James L. Dennis and Jack C. Watson.

      . La.R.S. 14:89.1 provides in in pertinent part:
      § 89.1 Aggravated crime against nature
      Aggravated crime against nature is crime against nature committed under any one or more of the following circumstances:
      (5) Where the victim is under the age of seventeen years and the offender is at least three years older than the victim.
      Whoever commits the crime of aggravated crime against nature shall be imprisoned at hard labor for not less than three nor more than fifteen years, such prison sentence to be without benefit of suspension of sentence, probation or parole.
      Amended by Acts 1979, No. 125, § 1.
      La.R.S. 14:89 provides:
      § 89. Crime against nature
      Crime against nature is the unnatural carnal copulation by a human being with another of the same sex or opposite sex or with an animal, except that anal sexual intercourse between two human beings shall not be deemed as a crime against nature when done under any of the circumstances described in R.S. 14:41, 14:41.1, 14:42, or 14:43. Emission is not necessary; and, when committed by a human being with another, the use of the genital organ of one of the offenders of whatever sex is sufficient to constitute the crime.
      Whoever commits the crime against nature shall be fined not more than two thousand dollars, or imprisoned, with or without hard labor, for not more than five years, or both. Amended by Acts 1975, No. 612, § 1.

      . La.C.Cr.P. Art. 703 provides in pertinent part:
      A. A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained.
      B. A defendant may move on any constitutional ground to suppress a confession or statement of any nature made by the defendant.
      C. A motion filed under the provisions of this Article must be filed in accordance with Article 521, unless opportunity therefor did not exist or neither the defendant nor his counsel was aware of the existence of the evidence or the ground of the motion, or unless the failure to file the motion was otherwise excusable. The court in its discretion may permit the filing of a motion to suppress at any time before or during the trial.
      La.C.Cr.P. Art. 521 provides:
      Pretrial motions shall be made or filed within thirty days after arraignment unless a different time is provided by law or fixed by the court at arraignment.
      Upon written motion at any time and a showing of good cause, the court shall allow additional time to file pretrial motions.

      . A search warrant was issued but apparently no evidence was seized pursuant to it. However, the state and defense agreed that the items seized from defendant’s home were not seized with the benefit of a search warrant because none existed for the home.


source: Caselaw Access Project

author:
DIXON, Chief Justice.
      CALOGERO, Justice, DENNIS, Justice, BLANCHE, Justice MARCUS, Justice

license: Public Domain

text:
    Margaret A. COON v. Deborah Ann Sims LANDRY and Everett E. Sims.
    No. 81-C-1226.
    Supreme Court of Louisiana.
    Dec. 14, 1981.

      Margaret A. Coon, in pro. per.
    Ralph Brewer, Baton Rouge, for plaintiffs-respondents.
   DIXON, Chief Justice.

Writs were granted in this case to consider an attorney’s suit for costs and expenses advanced by a lawyer in a contingency fee case. The trial court and court of appeal, 400 So.2d 1144 (La.App.), dismissed the suit at plaintiff’s cost. We affirm.

Plaintiff, Margaret Coon, an attorney, represented defendants Deborah Sims and her father, Everett Sims, in their action for damages resulting from an automobile accident. A judgment against James Knight was obtained, but Coon alleges she was unable to enforce it because Knight had left the state. Plaintiff billed the defendants for the costs of prosecuting the claim. Defendants refused to pay because nothing had been collected on their judgment. Mr. Sims sent a $25.00 check to Ms. Coon, but he stopped payment before she could cash the check. Plaintiff withdrew as counsel of record in Sims v. Knight; she then filed this suit to collect $481.83 in expenses. The petition was amended to demand $1000 in attorney’s fees on a quantum meruit basis.

The issue is whether plaintiff may be awarded fees and costs of the suit against Knight when no collection was made on behalf of her clients. Ms. Coon and the defendants entered into a valid contingency fee contract. See R.S. 37:218; Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1979). The contract provides the attorney will be entitled to reimbursement of expenses incurred in addition to any fees earned. There is no specific reference in the contract about payment when no collection has been made.

The following provision of the contract is at issue in this case:

“I hereby agree that said Attorneys shall receive and recover in addition to any fee earned by said Attorneys hereunder, the amount of all costs, disbursements and expenses incurred by said Attorneys in prosecuting my case to a proper conclusion.”

The contract allows the attorney recovery of fees and expenses in prosecuting the case to a “proper conclusion.” No money has been collected for respondents, but plaintiff maintains she is entitled to her expenses because an unenforceable judgment was the “proper conclusion” to this ease. This litigation ended with an unexecuted judgment and was not properly concluded. Ms. Coon was repeatedly warned by the Sims that Knight would be an evasive judgment debt- or. Knight’s wife sent several letters to Coon informing her the Knights would be going to Wisconsin allegedly because of an illness in the family. These facts did not prompt Ms. Coon to be expeditious in enforcement of the judgment against Knight. There is no evidence in the record to indicate that any attempt was made by Ms. Coon to collect the judgment against Knight.

Ms. Coon demanded payment of costs advanced by her on August 22,1979, filed suit against her clients on October 11, 1979, learned Knight’s address (from the Baton Rouge post office) on October 16, 1979 and sent Knight’s address to the Sims on November 5, 1979, advising them to retain a Wisconsin lawyer to collect the judgment. Then, on November 9,1979, Ms. Coon withdrew as counsel for the Sims.

“Proper conclusion” is a term that the contract does not explain. Civil Code articles 1958 and 1959 apply to contracts that cause doubt as to their meaning. The construction of such contracts must be made against the party who prepared the contract. The scope of interpretation is limited by the intent of the parties.

Respondents testified they understood the contract to mean plaintiff would receive a percentage of the amount recovered. They did not expect to pay Ms. Coon if there was no recovery. They testified that Ms. Coon said they need not pay until Ms. Coon collected the money. Plaintiff contends the contract obligates respondents to reimburse her for expenses incurred despite its contingency basis. Plaintiff testified she did not remember explaining to her clients that they would be liable for expenses if there was no recovery. She testified she sent the contract to their home early in their association, but that they had no questions about it when they returned to her office.

Ms. Coon was the author of the contract and attorney for the Sims. Civil Code articles 1958 and 1959 dictate construction of the contract in a light most favorable to the defendants. It is unrealistic to expect lay persons to understand they will be liable for expenses regardless of recovery after having signed a contract where the attorney agrees to advance the costs and expenses, and the attorney’s fees are based on a percentage of their recovery. The “proper conclusion” of the suit, in the minds of the defendants, was receiving money for the damages they had sustained. Ms. Coon would receive her fees and expenses from that recovery.

There have been various interpretations of contingency fee contracts in Louisiana’s jurisprudence. Suits for fees on contingency agreements initially placed the attorney in the role of a mandate for his client. The mandate was revocable at the will of the client unless the attorney was vested with an interest in the amount claimed. Clients discharged their attorneys with impunity in Gurley v. City of New Orleans, 41 La.Ann. 75, 5 So. 659 (1889) and Louque v. Dejan, 129 La. 519, 56 So. 427 (1911).

Dicta in Flower v. O’Conner, 7 La. 198 (1834) expressed the rule that an attorney could not stipulate for an interest in the thing in controversy. An attorney could contract for a commission on the collections to be made.

Mazureau & Hennen v. Morgan, 25 La.Ann. 281 (1873) dealt with the statute of 1808 that prohibited an attorney from bargaining with a client to obtain a portion of the land or property in dispute as compensation. Mazureau and Hennen contracted for a one-third interest of the property gained by suit. There was to be no fee if no recovery was made; however, the suit was successful. The attorneys sued for partition of the property to obtain their one-third interest. The court held the contract was in direct violation of the statute of 1808. A claim for attorneys’ fees based on quantum meruit was denied. The court held the contract was the law between the parties. Thus, once the contract was proven, no alternative quantum meruit action was allowed.

Contingency fee contracts were more liberally interpreted in Martinez v. Succession of Vives, 32 La.Ann. 305 (1880). Attorneys stipulated for a 10% commission on the amount collected. The court held the contract was valid because it did not transfer a part of the judgment. The fee would only be realized by enforcement of the judgment.

Andirac v. Richardson, 125 La. 883, 51 So. 1024 (1910), held it was lawful for an attorney to obtain as his fee a 50% commission on the amount collected. Act 124 of 1906 was interpreted to grant attorneys a first privilege on judgments obtained for their fees. Contingency fee contracts that gave an attorney an interest in the subject matter of the suit were also validated by Act 124.

An excellent discussion of contingency fee contracts in Louisiana is contained in Succession of Carbajal, 139 La. 481, 483, 71 So. 774, 775 (1916). Chief Justice Monroe described the evolution of contingency fee contracts in the following passage:

“We may start with the proposition that prior to the passage of Act No. 124 of 1906, a contract for a contingent fee gave an attorney no interest in the subject-matter of the litigation to which the contract might relate, but entitled him only to a privilege upon the judgment, if and when obtained, and that, notwithstanding such contract, it was within the power of the client to discontinue the suit at will, leaving to the attorney his right of action on quantum meruit for services rendered. Rev.St. § 2897; Louque v. Dejan, 129 La. 526, 56 South. 427, 38 L.R.A.(N.S.) 389; Gurley v. City of New Orleans, 41 La.Ann. 75, 5 South. 659. In fact, until that act was passed, a contract between an attorney and client, whereby the former was to receive as compensation for his services ‘any portion of the land or any other property * * * in dispute or sued for’ was ‘null and void to all intents and purposes,’ according to the express language of the act of 1808 (Mazureau & Hennen v. Morgan, 25 La.Ann. 281), though in Flower v. O’Conner, 7 La. 207, a distinction was drawn between a portion of, or interest in, the property sued for, and a commission on the amount sued for, and that distinction has since been recognized. Martinez v. Succession of Vives, 32 La.Ann. [305, 308]; Andirac v. Richardson, 125 La. 883, 51 South. 1024. The act of 1906 (page 210) reads as follows:
‘Be it enacted * * * that section 2897 of the Revised Statutes of 1870 be amended and re-enacted so as to read as follows: ‘In addition to the privileges enumerated in title twenty-first of the Civil Code, * * a special privilege is hereby granted to attorneys at law for the amount of their professional fees on all judgments obtained by them, and on the property recovered by said judgment, either as plaintiff or defendant, to take rank as. a first privilege thereon.
‘Provided that, by written contract, signed by the client, attorneys at law may acquire as their fee in such matter an interest in the subject-matter of the suit, proposed suit or claim, in the prosecution or defense of which they are employed, whether such suit or claim be for money or for property, real, personal or of any description whatever.
‘And in such contract of employment, it shall be lawful to stipulate that neither the attorney nor the client shall have the right, without the written consent of the other, to settle, compromise, release, discontinue or otherwise dispose of such suit or claim.
^Either party to said contract shall have the right at any time to file same with the clerk of the district court where the suit is pending or is to be brought, and to have a copy made and served on the opposing party and due returns made as in case of petitions in ordinary suits; from and after the date of such service, any settlement, compromise, discontinuance or other disposition made of such suit or claim by either the attorney or the client without the written consent of the other, shall be null and void, and such suit or claim shall be continued and proceeded with as if no such settlement or discontinuance had been made.’ ”

Attorneys may prepare contingency fee contracts that provide for reimbursement of their expenses when there is no recovery. Such a reduction of risks for the lawyer, however, should be reflected in the amount of the fee. This contract provided the following:

“RETAINER AGREEMENT
I, the undersigned, do hereby employ and retain Margaret Ann Coon, Attorney at Law to render legal services on behalf of Everett E. Sims and Deborah Ann Sims against Mr. James A. Knight or any other person, firm or corporation liable in damages for personal injuries and/or for any other claim or claims of any kind whatsoever sustained by Everett E. Sims and Deborah Ann Sims on or about the 25th day of January, 1977, as the result of an automobile collision at or about 400 Government Street, Baton Rouge, Louisiana.
In addition to furnishing said legal services, said Attorneys agree to advance all costs and expenses necessary to prosecute said claim to a proper conclusion.
In addition to furnishing said legal services and advancing the aforesaid costs and expenses, said Attorneys shall have the right to retain the services of any experts, including but not limited to medical doctors, investigators, court reporters, and others whose services said Attorneys deem necessary to prosecute said claim to a proper conclusion, and the cost thereof shall be recoverable by said Attorneys in addition to any fee or fees that said Attorneys shall become entitled to hereunder.
In consideration of said Attorneys performing said legal services and advancing the necessary costs and expenses required to prosecute said claim to a proper conclusion, I do hereby agree to pay said Attorneys 33V3% of any settlement made in said case if same is settled at any time prior to the filing of suit; 40% of any settlement made, judgment rendered or verdict obtained after the filing of suit and 50% of any settlement made, judgment rendered or verdict obtained in the event said action is appealed, whether said appeal is perfected or not.
In further consideration of the services to be rendered and the obligations herein-above assumed by said Attorneys, I do by these presents assign, transfer and deliver unto said Attorneys an undivided interest in the subject matter of my claim and/or in any suit or suits filed thereon by said Attorneys, said percentage of interest amounting to 33V3% prior to the filing of suit by Attorneys; 40% after the filing of suit by Attorneys and 50% if the case is appealed (whether said appeal is perfected or not), it being my intent to vest said Attorneys with an interest in the subject matter of my claim and any suit or suits filed thereon by said Attorneys, as permitted by L.S.A.-R.S. 37:218 and afford to said Attorneys all of the rights and protection granted by said statute.
I hereby agree that said Attorneys shall receive and recover in addition to any fee earned by said Attorneys hereunder, the amount of all costs, disbursements and expenses incurred by said Attorneys in prosecuting my case to a proper conclusion.
I hereby agree with said Attorneys not to make any settlement unless they are present and receive their share in accordance with this agreement and it is further agreed that the claim shall not be compromised or settled without the written consent of all parties.
I further hereby agree with said Attorneys not to discontinue or dismiss any suit filed on my behalf by said Attorneys, nor discontinue or dismiss any appeal, application for writs, or any other proceedings, legal or quasi-legal, of any type whatsoever arising out of the subject matter of this contract without the written consent of said attorneys.
If the claim is only for workmen’s compensation benefits, the fee will be 20% of the first $5,000.00 of recovery and 10% of all amounts recovered over that, as fixed by law.
I do hereby bind my heirs, executors and legal representatives to the terms and conditions set forth herein.
I HAVE READ AND FULLY UNDERSTAND THE ABOVE CONTRACT. Dated at Baton Rouge, Louisiana, this 26th day of October, 1977.
WITNESSES:
3/ Kathryn H. Kachelmyer Kathryn H. Kachelmyer
s/ Deborah Ann Sims _ Client DEBORAH ANN SIMS
s/ Everett E. Sims_ Client EVERETT E. SIMS
Margaret Ann Coon
200 Government Street
Suite 170
P. O. Box 643
Baton Rouge, Louisiana '70821
Telephone (504) 383-7827
By s/ Margaret A. Coon MARGARET A. COON”

The graduated percentages of 33V3%, 40% and 50% used by Ms. Coon do not reflect a reduction of her risks that would correspond to a guaranteed payment for her expenses.

Contingency fee contracts that provide for clients to assume costs of litigation, when there is no recovery, must be written in clear and unambiguous language leaving no doubt about their meaning. They must be fully understood by the clients upon signing. Justice Tate commented on this issue in footnote 1 of the majority opinion in Louisiana State Bar Association v. Edwins, 329 So.2d 437, 445 (La.1976):

“1. In addition to court costs, investigation costs, the expenses of medical examination for purposes of trial, and the costs of obtaining and presenting evidence, certain other out-of-pocket expenses were charged to Thomas: telephone calls, out-of-town travel at twelve cents per mile, and the hotel expenses of the out-of-town trial. The contract between Thomas and Edwins was silent with regard to liability for the latter (about $500) expenses. In the absence of other contractual arrangement, we do not find irregularity in charging such expenses to the client’s account, to be reimbursed upon final settlement (and they are shown by the present record to be reasonable); but the better practice might well be to have liability for such latter-type out-of-pocket expenses to be clearly assumed or not by the client at the time of the retainer, so as to prevent misunderstanding and dissatisfaction such as here resulted.”

Attorneys sued their clients for expenses of the suit in Lazarus, Michel & Lazarus v. Veazey, 151 La. 790, 92 So. 338 (1922). The clients were held liable for the costs of an interdiction suit concerning their mother. Plaintiff has relied heavily on this case; however, Lazarus is inapplicable to these facts. The Lazarus decision grew out of an interdiction suit titled Ruiz v. Pons, 141 La. 110, 74 So. 713 (1917). Civil Code article 397 governed liability for expenses of an interdiction suit. The costs were to be borne by the interdict if the defendant was interdicted, and by the plaintiffs if there was no interdiction.

The defendant, Mrs. Pons, died before the interdiction was adjudicated. The Ruiz court reasoned that the interdiction suit was an action that was personal to the defendant. Thus, her death abated the suit. The court relied on the rules pertaining to the abatement of actions to award costs against the plaintiffs. The Lazarus decision, therefore, was not made under the pretext that clients must be liable for expenses of litigation on contingency fee contracts. Lazarus was the result of this court’s application of Civil Code articles on interdiction and abatement of actions.

Plaintiff demands recovery on a theory of unjust enrichment. Her former clients have not received any compensation, therefore they have not been enriched by plaintiff’s actions as their attorney. Cases that have allowed attorneys to recover fees or expenses on an unjust enrichment theory have one major fact in common. The clients in those cases collected money on their judgments. See Lazarus, Michel & Lazarus v. Veazey, supra; Henican, James & Cleveland v. Strate, 348 So.2d 689 (La.App.1977); Doucet v. Standard Supply & Hardware Co., 250 So.2d 549 (La.App.1971). The Sims have not been so fortunate, and recovery based on unjust enrichment is denied.

Plaintiff submits that Canon 5 of the Ethical Considerations and Disciplinary Rule 5-103(B) of the Louisiana State Bar Association Code of Professional Responsibility requires the client to be ultimately liable for expenses of the suit. However, the Code does not place this liability upon the client when there has been no recovery on the contingency fee contract. Certainly the expenses of the suit will be deducted from the plaintiff’s award when there has been collection on the judgment.

The final argument of plaintiff is that Everett Sims acknowledged a debt to her by sending a $25.00 check. There can be no acknowledgement of a debt that never existed. The Sims did not have an obligation for expenses of the suit because Ms. Coon had failed to fulfill the suspensive condition of the contract. The suspensive condition was that Ms. Coon prosecute the case to a proper conclusion. Creation of the obligation, therefore, depended on a future and uncertain event. See C.C. 2043. As discussed above, a proper conclusion was reasonably believed by the Sims to be receipt of money for the damages sustained. Ms. Coon would have fulfilled the suspen-sive condition of prosecuting the case to a “proper conclusion” by collecting the judgment. At that point the Sims would have been obligated for expenses of the suit out of their award for damages. Since there was no recovery, no obligation was made. Thus, the check could not have acknowledged a debt on behalf of the Sims.

Consequently, the contract did not make defendants liable for the costs of a suit from which they collected nothing. The decisions of the trial court and court of appeal are affirmed; plaintiff is cast for all costs of this litigation.

LEMMON, J., concurs.

CALOGERO and DENNIS, JJ., concur and assign reasons.

WATSON, J., concurs in the result, but is of the opinion that the writ should have not issued.

MARCUS and BLANCHE, JJ., dissent and assign reasons.

CALOGERO, Justice,

concurring.

I subscribe to the majority opinion with one exception.

While I agree that the contingency fee contract as written by the attorney and construed (in its ambiguity) against the attorney, does not contemplate reimbursement of costs except out of moneys collected on the judgment, I do not agree with the majority’s assertion that a reduction in the lawyer’s risks in this case, by assuring recovery of costs from the client irrespective of success, is not reflected in the 33V3%, 40%, 50% contingency fee. Had she been clear and specific in the contract, this attorney could well have reasonably charged these contingency percentages and contracted to be reimbursed her out of pocket costs irrespective of successful collection, especially in this case where the debtor was uninsured. The reduction of the attorney’s risk because of guaranteed expense reimbursement might well be reflected even in a straight 50% contingency contract (or better yet, in his even agreeing to take the case at all) where the tortfeasor/prospective debtor is uninsured.

DENNIS, Justice,

concurring.

I respectfully concur.

Although I agree with the opinion in all other respects, I cannot agree that the defendants have not been enriched because they now have a valid judgment against Knight which may prove to be collectible in the future. Nevertheless, the unjustified enrichment remedy is not available here because a legal justification for the enrichment exists by reason of a contract intended to permit it. See Tate, The Louisiana Action for Unjustified Enrichment, 50 Tul. L.Rev. 881, 893-905 (1976).

BLANCHE, Justice

(dissenting).

I respectfully dissent. First, I believe that the contracted provision does not condition reimbursement of costs upon a “proper conclusion” of the case and, second, even assuming that it did, when plaintiff reduced the claim to judgment, that was a proper conclusion of the case.

MARCUS, Justice

(dissenting).

The contract provides that in “addition” to furnishing legal services, plaintiff attorney agrees to “advance all costs and expenses” necessary to prosecute the case to a “proper conclusion.” It further provides that in addition to furnishing legal services and “advancing” all costs and expenses plaintiff attorney may retain the services of any experts, etc. whose services are deemed necessary to prosecute the claim to a proper conclusion. In consideration of plaintiff attorney performing said legal services and “advancing the necessary costs and expenses” required to prosecute the claim to a proper conclusion, client agrees to pay plaintiff attorney certain percentages of any settlement depending on the point at which the settlement is made. Finally, the client agrees that plaintiff attorney is entitled to recover and receive in “addition” to any fee earned under the contract, the amount of “all costs, disbursements and expenses” incurred by plaintiff attorney in prosecuting the case to a “proper conclusion.”

Under the language of this contract, I consider that recovery by plaintiff attorney for “legal services” is dependent on the recovery of funds in settlement of the claim, whereas recovery of “costs, disbursements and expenses” incurred is dependent on prosecuting the case to a “proper conclusion.” It is clear that costs, disbursements and expenses are only “advanced” by plaintiff. Moreover, I consider that plaintiff prosecuted the case to a “proper conclusion” by obtaining a judgment in favor of her client. Accordingly, plaintiff should be entitled to recover her expenses ($481.83).

I respectfully dissent.

      . C.C. 1958 provides:
      “But if the doubt or obscurity arise for the want of necessary explanation which one of the parties ought to have given, or from any other negligence or fault of his, the construction most favorable to the other party shall be adopted, whether he be obligor or obligee.”

      . C.C. 1959 provides:
      “However general be the terms in which a contract is, couched, it extends only to the things concerning which it appears that the parties intended to contract.”

      . Statute of 1808 (March 31, 1808).

      . He is now a Judge of the United States Court of Appeals, Fifth Circuit.

      . In re Jones, 117 La. 106, 41 So. 431 (1906) was cited as an example of an interdiction suit abated by the death of the defendant. The plaintiffs were ordered to pay costs.

      . A stop payment order was issued, and the check was not cashed.

      . C.C. 2043 provides:
      “The obligation contracted on a suspensive condition, is that which depends, either on a future and uncertain event, or on an event which has actually taken place, without its being yet known to the parties.
      In the former case, the obligation can not be executed till after the event; in the latter, the obligation has its effect from the day on which it was contracted, but it can not be enforced until the event be known.”


text:
    STATE of Louisiana v. George GRIFFON.
    No. 81-K-3089.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re George Griffon, applying for reconsideration of application for supervisory writs of mandamus, certiorari, and review. Parish of East Baton Rouge.

Reconsideration denied.


text:
    STATE of Louisiana, ex rel. Aaron THOMAS v. STATE of Louisiana.
    No. 81-KH-0516.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Aaron Thomas, applying for reconsideration of denied writ of March 20, 1981. St. Landry Parish. Nos. 26852 and 26853.

Denied.


text:
    ST. CHARLES AVENUE, INC. v. Gasper J. SCHIRO, Register of Conveyances for the Parish of Orleans; Francis J. Demarest, Jr., Recorder of Mortgages for the Parish of Orleans, and the Charles House Corporation.
    No. 81-C-3105.
    Supreme Court of Louisiana.
    Dec. 7, 1981.
   In re The Charles House Corporation, applying for supervisory writs, and a stay order. Parish of Orleans. No. 81-17008.

Denied.


text:
    STATE of Louisiana v. Danny GOODSON.
    No. 81-K-3094.
    Supreme Court of Louisiana.
    Dec. 8, 1981.
   In re Danny Goodson, applying for remedial writs of certiorari and for a stay order. Parish of Bossier. No. 58753.

Granted.


text:
    STATE of Louisiana v. Barry D. PAYNE.
    No. 81-KH-2948.
    Supreme Court of Louisiana.
    Dec. 8, 1981.
   In re Barry D. Payne, applying for reconsideration of denied writ.

Granted. Bond reduced to $10,000.00.


text:
    STATE of Louisiana ex rel. Gilbert MOSES, Sr. v. STATE of Louisiana.
    No. 81-KH-3157.
    Supreme Court of Louisiana.
    Dec. 11, 1981.
   In re Gilbert Moses, Sr., applying for remedial writs, bond reduction. Parish of Terrebonne.

Denied. Relator must first seek bond reduction in the district court.


text:
    STATE of Louisiana v. Clifton NARCISSE.
    No. 81-K-3131.
    Supreme Court of Louisiana.
    Dec. 11, 1981.
   In re Clifton Narcisse, applying for writ of certiorari or review and stay order. Parish of St. Martin. No. 62-862.

Denied; adequate remedy in event of conviction. (The application is denied as to the bond issue.)


text:
    STATE of Louisiana v. Clifton NARCISSE.
    No. 81-K-3168.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
   In -re Clifton Narcisse, applying for writ of review and stay order. Parish of St. Martin. No. 62-862.

Denied.


text:
    Jerry L. COOLEY v. Valerie Van Dyke COOLEY.
    No. 81-C-3161.
    Supreme Court of Louisiana.
    Dec. 15, 1981.
   In re Valerie Van Dyke Cooley, applying for supervisory writs of certiorari, prohibítion and mandamus. Parish of Beauregard. No. C-337-81.

Granted. Trial court is ordered to hold a hearing forthwith on relator’s rule to continue alimony pendente lite during penden-cy of these proceedings; otherwise denied.


text:
    Eileen Reed ROY v. Joseph F. ROY, Jr.
    No. 81-C-3179.
    Supreme Court of Louisiana.
    Dec. 15, 1981.
   In re Joseph F. Roy, Jr., applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Orleans. No. 77-1188.

Transferred to 4th Circuit Court of Appeal; stay order continued pending decision by that court.


text:
    STATE of Louisiana ex rel. Doyle W. WIGGINS v. STATE of Louisiana.
    No. 81-KH-3156.
    Supreme Court of Louisiana.
    Dec. 16, 1981.
   In re Doyle W. Wiggins, applying for a bond reduction. Parish of Terrebonne.

Granted. Bond reduced to $3,000.00.


text:
    STATE of Louisiana v. Michael Dewayne JACKSON.
    No. 81-K-3169.
    Supreme Court of Louisiana.
    Dec. 17, 1981.
   In re Michael Dwayne Jackson, applying for supervisory writs of review and stay order. Ouachita Parish. No. 38917.

Denied.

CALOGERO and DENNIS, JJ. would grant the writ.


text:
    STATE of Louisiana ex rel. Robert Prince EDWARDS v. Carl G. HAMMONDS.
    No. 81-KH-3144.
    Supreme Court of Louisiana.
    Dec. 18, 1981.
   In re Robert Prince Edwards, applying for writ of habeas corpus. Parish of Caddo.

Writ denied.


text:
    STATE of Louisiana ex rel. Alvin FITCH, Jr. v. STATE of Louisiana.
    No. 81-KH-3177.
    Supreme Court of Louisiana.
    Dec. 18, 1981.
   In re Alvin Fitch, Jr., applying for motion for bond reduction. Parish of Terrebonne. Nos. 103159-105160.

Denied.


text:
    STATE of Louisiana ex rel. William Sherwood JOHNSON v. STATE of Louisiana.
    No. 81-KH-3059.
    Supreme Court of Louisiana.
    Dec. 18, 1981.
   In re William Sherwood Johnson, applying for remedial writs. Parish of Orleans. No. 263-196 Section B.

Writ denied. The appeal is being expedi-


text:
    STATE of Louisiana ex rel. Daniel NEVILLE v. STATE of Louisiana.
    No. 81-KH-3210.
    Supreme Court of Louisiana.
    Dec. 18, 1981.
   In re Daniel Neville, applying for writs of motion for bond reduction. Parish of Ter-rebonne.

Denied.


text:
    Armand J. DUVIO, Jr., et al. v. ST. BERNARD SHERIFF’S OFFICE, et al.
    No. 81-C-3244.
    Supreme Court of Louisiana.
    Dec. 22, 1981.
   In re Armand J. Duvio, Jr., et al. applying for supervisory writs and stay order. Parish of St. Bernard. No. 40-603.

Denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Larry JAMES v. STATE of Louisiana.
    No. 81-KH-3240.
    Supreme Court of Louisiana.
    Dec. 22, 1981.
   In re Larry James, applying for motion for bond reduction. Parish of Terrebonne. Nos. 112079 and 112000.

Denied.


text:
    STATE of Louisiana v. Thomas C. NUNEZ.
    No. 81-K-3226.
    Supreme Court of Louisiana.
    Dec. 22, 1981.
   In re Thomas C. Nunez, applying for writs of certiorari, prohibition, mandamus, and a stay order. Parish of Vermilion. Nos. 22670, 22671.

Granted. Judge Nehrbass is ordered to hear the motion for bond reduction within 72 hours. In his absence the next senior judge is ordered to hold the hearing.


text:
    Gerard Michael VICTORIANO v. Katherine Anne Duet VICTORIANO.
    No. 81-C-3207.
    Supreme Court of Louisiana.
    Dec. 22, 1981.
   In re Gerard Michael Victoriano, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Terrebonne. No. 58845.

Denied.

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


text:
    STATE of Louisiana v. Whitney VINCENT.
    No. 81-K-3231.
    Supreme Court of Louisiana.
    Dec. 22, 1981.
   In re Whitney Vincent, applying for writ of review, and bond reduction. Parish of Orleans. No. 283-319.

Granted. The trial judge’s order increasing bail is set aside and the original amount of bail is reinstated.


author: CHEHARDY, Judge.

text:
    June M. OLIVER, Individually and on behalf of her son, Griffith Oliver, and Blue Cross v. PARISH OF JEFFERSON, Louisiana Department of Highways and their Insurer, XYZ Insurance Company.
    No. 5-15.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1981.
    Rehearing Denied Jan. 21, 1982.

      Gertler & Gertler, Donald M. Pierce, David Gertler, New Orleans, for June M. Oliver, plaintiff-appellee.
    Philip K. Jones, Norman L. Sisson, Marshall W. Wroten, Jesse S. Guillot, New Orleans, for Louisiana Dept, of Transp. and Development, defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Defendant Louisiana Department of Transportation and Development (formerly Louisiana Department of Highways) appeals a district court judgment in favor of the plaintiff June M. Oliver, individually and on behalf of her son, Griffith Oliver, and against the defendant in the sum of $1,301,592 together with legal interest from date of judicial demand and all costs of the proceedings. The plaintiff has answered the appeal asking for an increase in the quantum of damages awarded by the district court.

In his written reasons for judgment, the district court judge very explicitly set out all of his findings of fact and conclusions of law:

“On January 13, 1976, Griffith Oliver (then aged 25) was severely injured when he failed to negotiate a curve on the overpass located at Causeway Boulevard and Jefferson Highway in Jefferson Parish. As a result of the accident, Oliver is permanently disabled both physically and mentally and is presently confined to a convalescent home in the State of Connecticut.
“Plaintiff contends that the overpass in question was negligently designed in that the overpass has a drastic curve to the right with insufficient space in which to negotiate a turn; and, that this drastic angle is undiscernable to an approaching motorist at night. Further, that the Department of Highways, with full knowledge that the overpass was dangerous, failed to provide adequate signs and/or warning devices commensurate with the danger involved.
“The Department of Highways contends that the overpass was reasonably safe for persons exercising ordinary care and reasonable prudence. Further, the Department contends that this accident was caused by the negligence of Oliver in that he was operating his vehicle at an excessive rate of speed combined with the fact that he had been drinking that evening.
“Originally from the State of Connecticut, Oliver moved to Jefferson Parish approximately two (2) years before the accident. There is no evidence of his traversing this particular overpass prior to the accident date. Oliver was employed as a salesman in the New Orleans area and had enrolled at the University of New Orleans to study engineering on January 13, 1976.
“There were three (3) passengers in the automobile at the time of the accident. One of the passengers was in New Orleans for the purpose of taking over Oliver’s job since he was now returning to school on a full-time basis. Oliver and his three friends had dinner that evening, traveled to the French Quarter, and were returning home at the time of the accident. The deposition of Mark Rukavina, a passenger, reflects that they each had a drink before dinner, one after dinner and one drink at Pat O’Brien’s. Although the police officer estimates the speed at fifty (50) miles per hour, Mark Rukavina, when question about the speed, said:
‘I think it would have been a normal speed for the situation. I think it would have been around thirty miles an hour. I can’t say for sure, I didn’t see the speedometer, but there was nothing unusual about the approach to that turn as far as I was concerned.’
“Doctor Fosberg, an expert in industrial psychology, testified for the plaintiff. He explained the visual problems that Oliver encountered in going from the well-lighted Causeway to the overpass where the lights were out. He concluded that the signs erected at the time of the accident were insufficient to indicate to Oliver that he was in a dangerous situation.
“James Fister, a registered civil engineer, also testified for the plaintiff. He has experience in roadway design and traffic engineering both in the State of Louisiana and Georgia. His opinion was that this overpass did not meet the standards set forth by the American Association of State Highway Officials as set forth in 1954, the date this overpass was constructed. His opinion was whether this overpass be considered as a regular roadway or a turning roadway, the AASHO standards were not met. For example, the degree of curvature allowed for a regular roadway would be twenty-four degrees, whereas the degree of curvature on this roadway is forty-three degrees. And, if considered as a ramp or turning roadway, a 150 foot radius is the minimum and this overpass had a 131 foot radius.
“This Court has reviewed the photographs of the warning signs. It is important to note that the large overhead sign (Sign # 4) shown in the photograph identified as P-12 is only a directional sign. There is absolutely no warning of the dangerous curve which lies ahead. The warning sign (Sign # 7) is clearly deficient because it is not prominent enough and fails to communicate the real danger to the driver.
“There have been numerous accidents at this site which should have caused the State to make a thorough study of this overpass. Such a study would have indicated the need for better illumination and the need for larger and more prominent warning signs.
“This accident occurred in the early morning hours on a foggy night in January. The lights were out on the ramp and the only visual clue of this dangerous curve was the insufficient Sign # 7. It is obvious that Griffith Oliver encountered a surprise situation and was unable to sufficiently react to the situation.
“In short, this Court concludes that the State failed to provide warning signs commensurate with the danger to be encountered by the motoring public.
“As stated in the Supreme Court case of Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 [(La.)]:
‘There is no fixed rule for determining what is a dangerous defect in a public way; the facts and surrounding circumstances of each particular case control. The test usually applied, however, requires an answer to the question: Was the public way maintained in a reasonably safe condition for persons exercising ordinary care and prudence?’ ”

This court can find no error in these findings and conclusions, which are completely substantiated by the record.

Dr. Irving Fosberg, a psychologist, stated that if the lights were out on the overpass in question at the time of the accident (as noted in the police report), then a driver going from the daylight illumination of Causeway Boulevard to the nighttime vision conditions of the overpass would, at least for two or three minutes, lose the capacity to perceive since there was a failure of sufficient clues available to excite the day vision receptors in that dangerous situation.

James R. Fister, accepted by the court as an expert in civil engineering, said that his study of the structure on which the accident occurred revealed that it did not comply with the 1954 standards of the American Association of State Highway Officials, which were in effect at the time that the overpass was built.

Fister explained that the loop-like structure at the interchange of U.S. 90 and Causeway Boulevard had a 43-degree curvature on the “as built” plans but that a 24-degree curve is the maximum that should be used on any mainline roadway. He added that the less curvature the less difficulty a driver experiences in negotiating the turn.

It was also Fister’s opinion that the su-perelevation or the raising of the outside edge of the pavement, which keeps the vehicle on the road in a curve, should have been .12 feet per foot; however, on this structure it was only .05 feet per foot. He also said the roadway did not meet the minimum standards in regard to its super-elevation runoff or lead-in to the curve. He explained that for a 25-mile-per-hour design the transition should be 91 feet and for a 20-mile-per-hour design the transition should be 78 feet; however, at the accident site there was a 200-foot transitional lane, which was too long, giving the driver not enough lead-in to the curve.

Fister stated that the pavement width of this overpass was 28 feet whereas it should have been 32 feet and that the vertical control of the roadway was deficient, giving the driver the sensation that his headlights go out in space. It was also his opinion that the roadway should have a posted speed of 15 miles an hour, a lesser speed than the design speed. He added there were too many signs in place at the time of the accident (which would tend to confuse a driver); the signing was improper; and if the lights were out on the structure an even more hazardous situation would be created for a driver approaching the location at night. He thought for a foreign driver unfamiliar with the situation the seriousness of the surprise element would be magnified.

Olin Dart, also accepted by the court as an expert in the areas of civil engineering, design, traffic safety and traffic reconstruction, stated, contrarily, that as a loop ramp, which he considered an interchange facility, the design of the roadway was in conformance with the 1954 AASHO standards in every regard. He added the design of the structure met the specifications, as did the elevation, superelevation and pavement width. He classified this overpass as not a main road but a facility used to terminate one route into another. He also said the principal sign there met the manual requirements as did its placement. His conclusion was that the loop ramp in question was reasonably safe for a careful and prudent motorist. Dr. Dart admitted approximately 30 other accidents had occurred at or near this accident site, somewhere on the loop ramp; however, his opinion was that in those in which the vehicle appeared to have gone out of control, as in the present case, there were extenuating circumstances to account for most of these happenings such as driver inattentiveness, drinking or excessive speed.

On cross-examination, however, Dart also admitted that if the 20-mile-per-hour sign were 24 by 24 inches in size it would not comply with the standard as spelled out in the regulatory manual; he could also reach no positive conclusion as to whether, if some of the lighting was out on the ramp, this could have caused the accident. He estimated the speed of the Oliver vehicle, based on the number of feet it traveled along the rail and the damage to the car, at between 40 and 45 miles per hour, but added the downward flow of the roadway would keep it going. He also said that a design speed is many times lowered at a point because of factors such as location and build-up.

Both Patsy Miller and Boyd Gautreaux, engineers employed by the Highway Department, testified that the design of the loop met the minimum standards and the signing of the area was proper arid adequate.

Mark Rukavina testified by deposition (which was introduced at the trial) that there were three people, including himself who were with Oliver, the driver of the vehicle, at the time of the accident. He said one passenger in the vehicle had come into town to visit Oliver for business reasons and that the foursome had dinner and each consumed one drink before the meal and one drink afterward. He said the group then proceeded to the French Quarter where they each had one drink at Pat O’Brien’s. He said they then went to a sandwich shop but they could see from the roadway that it was closed, so he instructed Oliver that probably the easiest thing to do was to go to the end of Causeway to turn around and come back. He said although he had been on the structure before he knew there was no reason for either himself or Oliver, living where they did, to normally go that way, and he had no recollection of Oliver ever driving over the structure previously.

Rukavina also testified there was a slight fog or mist that night, and he thought the speed of the car at the time of the accident would have been around 30 miles per hour. He said the speed was a normal one for the situation and there was nothing unusual about the approach to the turn, as far as he was concerned. He did not know why Oliver had not been able to negotiate the turn.

The accident report, an exhibit in the case, listed estimated speed of the subject vehicle at 50 miles per hour and stated that the weather was cloudy and there were no street lights. It was the opinion of the officer making the report that the driver had been drinking (due to the odor of alcohol about his person) and he also believed the vehicle was being driven at a speed too fast for the curved roadway. A blood alcohol test, however, was not done due to the seriousness of the driver’s condition.

This court is bound by the statement articulated in Canter v. Koehring Company, 283 So.2d 716 (La.1973), at 724:

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

This court also said in the case of Reggio v. Louisiana Gas Service Company, 333 So.2d 395 (La.App. 4th Cir. 1976), at 406:

“On the questions of negligence and causation, LGS has sought to demonstrate weakness in plaintiffs’ case by contending that the verdict was based on speculation and by pointing to testimony of LGS experts which relegated plaintiffs’ theories to the realm of mere possibility, rather than probability. We reject this position for two reasons. First, we are dealing with a jury verdict of liability and in an appellate review we are limited to the question of whether there is evidence in the record which furnishes a reasonable factual basis for that verdict. Canter v. Koehring Company, 283 So.2d 716 (La.1973). While LGS’s experts differed sharply with plaintiffs’, and while it may be argued that the former were better qualified and more believable, it is not our function to substitute our own judgment for that of the jury’s on these matters. * * * ”

Similarly, this court stated in Simoneaux v. Davis, 397 So.2d 835 (La.App. 4th Cir.1981), at 837:

“Turning to the issue of liability on the part of the Department, we note that numerous experts were presented. The question of assessment of the credibility of competing expert witnesses is one better resolved by the trial judge who has the opportunity to observe the respective demeanors of the witnesses. In this area, as in other areas of factual determination, we cannot disturb the factual determinations of the trial judge unless upon our independent review of the record we find that he was manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (1978).”

In the present case, although there was a wide divergence in the expert opinions and conclusions reached by Fister and Dart, and although the Highway Department engineers also testified that the design of the subject roadway did meet minimum AASHO standards in effect at the time it was built, we can find no manifest error in the trial court’s acceptance of Fis-ter’s expert testimony over that of Dart, especially considering that Fister was extremely articulate in explaining details of the methods and calculations which he had used to arrive at his conclusions.

The standard of law to be applied in a case of this type was articulated in Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975), wherein the court said at 432-433:

“There is no fixed rule for determining what is a dangerous defect in a public way; the facts and surrounding circumstances of each particular case control. The test usually applied, however, requires an answer to the question: Was the public way maintained in a reasonably safe.condition for persons exercising ordinary care and prudence? Arata v. Orleans Capital Stores, [219 La. 1045, 55 So.2d 239] supra; cf. Nessen v. City of New Orleans, 134 La. 455, 64 So. 286 (1914); Allen v. Town of Minden, 127 La. 403, 53 So. 666 (1910).”

In Norris v. State, 337 So.2d 257 (La.App. 3d Cr. 1976), furthermore, the court explained at 260-261:

“The Department of Highways is not the guarantor of the safety of all travelers on state highways nor is it the insurer against all injuries and damages which may result from defects or obstructions thereon. Wilkinson v. American Insurance Company of Newark, New Jersey, 311 So.2d 584 (La.App. 3rd Cir. 1975); Doucet v. State, Department of Highways, 309 So.2d 382 (La.App. 3rd Cir.1975), writ denied 312 So.2d 340 (La.); Laborde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3rd Cir. 1974), writ denied 303 So.2d 182 (La.). “The duty of the Department of Highways has been most recently stated by this court in the case of Doucet v. State, Department of Highways, supra:
‘The duty of the Department of Highways is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. It is liable for damages only when the evidence shows (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver . . .’. (Emphasis added) (Citations omitted).
See also Von Cannon v. State, Department of Highways, 306 So.2d 437 (La.App. 3rd Cir. 1975), writs refused 309 So.2d 681 (La.), and numerous cases cited therein.
“Also pertinent is the recent Supreme Court case of Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975), in which the court stated:
‘There is no fixed rule for determining what is a dangerous defect in a public way; the facts and surrounding circumstances of each particular case control. The test usually applied, however, requires an answer to the question: Was the public way maintained in a reasonably safe condition for persons exercising ordinary care and prudence? ’ (Citations omitted)
“The Highway Department is only required to warn motorists of unusual or perilous hazards in the road. See Wall v. American Employers Insurance Company, 215 So.2d 913 (La.App. 1st Cir. 1968), writ refused 253 La. 325, 217 So.2d 415; Muse v. W. H. Patterson & Company, 182 So.2d 665 (La.App. 1st Cir. 1965); and Rosier v. State, 50 So.2d 31 (La.App. 2nd Cir. 1951).
‡ sfc sj: ‡ # *
“There are several cases in the jurisprudence where the courts have found that, although there was room for improvement in the road conditions and signing on certain road, the efforts of the Highway Department were adequate to discharge its duty to the motoring public. See Roberts v. Winston Carriers, Inc., 304 So.2d 818 (La.App. 3rd Cir. 1974), writ refused 309 So.2d 341 (La.); Weber v. T. L. James & Company, Inc., 271 So.2d 608 (La.App. 1st Cir. 1972); Edwards v. State, Department of Highways, 271 So.2d 672 (La.App. 1st Cir. 1972), writ denied 274 So.2d 391 (La.); Travelers Insurance Company v. Ragan, 202 So.2d 302 (La.App. 1st Cir. 1967).
“Failure to comply with the requirements of the Highway Department’s manuals does not constitute negligence per se. Harkins v. State Department of Highways, 247 So.2d 644 (La.App. 3rd Cir. 1971), writ denied 259 La. 741, 252 So.2d 449.”

Based on the testimony adduced at trial, however, this court can find no error in the district court’s determination that the overpass in question was negligently designed by the Highway Department, that it was not maintained in a reasonably safe condition for persons exercising ordinary care and prudence, and that the Highway Department also failed to give adequate warning through proper signing of the danger that lay ahead to approaching motorists. As the court noted in U. S. F. & G. Co. v. State, Dept. of Highways, 339 So.2d 780 (La.1976), at 785:

“ * * * In order to hold the Department of Highways liable for an accident caused by an unsafe or hazardous condition it must be shown that the Highway Department had prior notice, either actual or constructive, of the dangerous condition and had sufficient opportunity to remedy same or at least to alert and warn motorists of its presence and failed to do so. Coleman v. Houp, 319 So.2d 831 (La.App.3d Cir. 1975).”

In the present case considering all of the evidence and particularly the accident rate of the overpass in question during the years before this accident, we find that the Highway Department had prior notice of the dangerous condition and had sufficient opportunity to remedy same or at least to alert and properly warn motorists of its presence and failed to do so.

The court also said in McCullin v. State Department of Highways, 216 So.2d 832 (La.App.2d Cir. 1968), at 834:

“The State of Louisiana owes to the public a duty to maintain its highways so they will be in a reasonably safe condition for the traveling public at all times. This duty encompasses an obligation to have an efficient and continuous system of inspection of the highways and bridges. The Highway Department, however, is not required to maintain a perfect condition of repair or system of inspection, but its officers and employees are required to use ordinary and reasonable care in order to insure that the highways and bridges will be in a reasonably safe condition. Hogg v. Department of Highways of State of Louisiana, 80 So.2d 182, La.App. 2 Cir. 1955.”

Regarding .the lack of lighting on the bridge, or overpass, at the time of the accident, no evidence was presented by either party in the way of testimony to show that there was notice to the Highway Department that the lights were out on the structure or that they had been out for a long enough period of time to constitute constructive notice. However, a cheek of the record r.eveals that in its answers to the plaintiff’s interrogatories the Highway Department stated that no inspections were made of the guardrails, lights or warning signs at any time during the previous 10 years. Such an admission allowed the trial court as well as this court to conclude there was constructive notice to the Highway Department of that deficiency in the roadway.

Regarding the defense of contributory negligence the court said in LeJeune v. State, Department of Highways, 215 So.2d 150 (La.App. 3d Cir. 1968), at 153:

“The trial court correctly rejected this contention. He who relies upon contributory negligence bears the burden of proving the facts which justify application of this special defense. Deshotels v. Southern Farm Bureau Cas. Ins. Co., 245 La. 23, 156 So.2d 465. * * * ”

In Hodges v. State, Through Dept. of Highways, 370 So.2d 1274 (La.App.3d Cir. 1979), the court also said at 1279:

“ * * * The burden of convincing the triers of fact on the issue of contributory negligence rested with the defendants and they failed to convince either the trial court or the jury in this instance. We cannot say that there was manifest error or that the trial court and jury were clearly wrong in concluding that Hodges was not contributorily negligent.”

The defendant in the present case, however, has also cited the case of Simon v. Ford Motor Company, 282 So.2d 126 (La.1973), wherein the court stated, on rehearing, at 133:

“The trespassing motorist ‘having caused the accident by leaving his own traffic lane, is presumed guilty of negligence and the onus rested on him to demonstrate that the accident resulted from such a state of unforeseeable circumstances beyond his control (and to which he did not contribute), that he could not extricate himself, despite the efficient use of all protective measures at his command. In other words, it was his burden to show that he was not guilty of any dereliction, however slight, which may have had causal connection with the accident. We say this because it seems only reasonable to resolve that a motorist owes to the traveling public the duty of remaining in his own lane of traffic and, when he undertakes to enter the lane devoted to approaching traffic, he must be held strictly accountable for all damages resulting therefrom unless he clearly exhibits that his conduct in no wise contributed to the accident. By this, of course, we do not mean that such a motorist is the insurer of the safety of those injured in an accident such as the one in the instant case but only that, in order to be exonerated, he must establish his freedom from all fault by convincing proof.’ * * * tf

This court, in the subject case, cannot hold that the district court judge was in manifest error in concluding Oliver was not contributorily negligent. Rukavina, who was with the plaintiff all evening, testified he believed Oliver had consumed only three drinks, two of which were associated with dinner. He also stated that the speed of the car was not in excess of 30 miles an hour and normal for the situation. He added Oliver was probably not familiar with the overpass.

Although the police report referred to the smell of alcohol and estimated an excessive speed, the reporting officer did not testify at the trial or by deposition. No other facts tending to show contributory negligence on Oliver’s part were established at trial; therefore, we must conclude, as did the trial court, that the defendant failed to carry its burden of proof in this regard and that the plaintiff did show under the dictates of Simon, supra, that he was not guilty of any dereliction that may have had a causal connection to the accident, which resulted instead from unforeseeable circumstances beyond his control.

On the issue of the quantum of damages awarded, this court can find no reason to alter the awards of the district court for which a reasonable basis can be found in the record.

In his reasons for judgment the trial court judge stated:

“Griffith Oliver’s tragic injuries are summarized in the deposition of Doctor Michael Dzubaty. Suffice it to say, that Mr. Oliver has permanent mental and physical injuries which have rendered him permanently and totally disabled. He is presently in a nursing home in Connecticut and there is little or no prospect for improvement in his condition. His damages are itemized as follows:
Lost Wages — Past and Future $ 261,672.00
Physical & Mental Pain and Suffering — Past, Present and Future 400,000.00
Medical Expenses — Past, Present and Future 639,920.00
$1,301,592.00”

Melville Wolfson, an expert in the field of actuarial science, testified that, based on a life-work expectancy of Oliver of 33.8 years, his estimate of future lost wages (based on the minimum wage and discounting 5 percent) was $238,000. He also estimated that past lost wages were approximately $23,-600, completely substantiating the district court’s total award of $261,672 in past and future lost wages.

Neither can this court find error in the award made for past, present and future medical expenses. John Farling, administrator of the nursing home where Oliver is now cared for, testified the present rate for room, medication and air conditioning was approximately $13,000 per year. Considering the 40-year life expectancy of Oliver, plus expected inflationary rises in these rates, as well as other care sometimes required (as testified to by his attending physician), the $639,920 award was a reasonably accurate one.

The medical director of the nursing home, Dr. Michael Dzubaty, testified by deposition that the plaintiff is thin, he does not communicate and is subject to bouts of pneumonia and seizures, which require hospitalization. He must be fed by a gastrotomy feeding tube, is incontinent of urine and feces, and must be given physiotherapy. He stated that his condition is a result of a depressed fracture received in the accident.

The physician added that the plaintiff’s hands are flexed onto his chest and his hands are usually in a roll to prevent cont-racture downward of his fingers. He said Oliver cannot express himself and he doubted very much if he perceived anything that is being said to him; his neck shows a tracheotomy site which is not completely closed and requires suctioning; and he requires lifting from bed to chair. Because the plaintiff is unable to swallow, blender-ized food or liquids are passed through the gastrotomy tube into his stomach. Dr. Dzubaty also stated that Oliver’s condition had not improved in the two and a half years he had known him, and he did not foresee any type of improvement in the future.

This court is extremely sympathetic with the pain and suffering endured by this young man in his present state; however, we cannot conclude that the trial court’s award of $400,000 in this regard was such a clear abuse of its much discretion as would allow us to increase it. Reck v. Stevens, 373 So.2d 498 (La.1979).

For the reasons assigned, therefore, the district court decision is affirmed.

AFFIRMED.