author: ROBERT L. LOBRANO, Justice Ad Hoc.

text:
    STATE of Louisiana v. Thomas MURDOCK.
    No. 81-KA-3336.
    Supreme Court of Louisiana.
    June 21, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Bernard E. Bou-dreaux, Jr., Dist. Atty., J. Phil Haney, Asst. Dist. Atty., for plaintiff-appellee.
    Paul J. DeMahy, St. Martinville, for defendant-appellant.
   ROBERT L. LOBRANO, Justice Ad Hoc.

Defendant Thomas Murdock was charged by a St. Martin Parish grand jury indictment with the crimes of aggravated rape, aggravated burglary, aggravated crime against nature (three counts) and attempted first degree murder, violations of La.R.S. 14:42; 14:60; 14:89.1; 14:27 (14:30). Defendant’s trial began on May 26, 1981; however, after opening arguments and the victim’s testimony, he changed his previously entered pleas of not guilty and not guilty by reason of insanity to guilty of one count of aggravated crime against nature, La.R.S. 14:89.1, and forcible rape, La.R.S. 14:42.1. The state dismissed the remaining counts. Thereafter, defendant was sentenced to serve thirty years at hard labor on the forcible rape conviction and ten years without benefit of probation, parole or suspension of sentence on the aggravated crime against nature conviction, with the sentences to run consecutively. Defendant now appeals on the basis that his sentences are excessive and violative of Article 1, Section 20 of the Louisiana Constitution.

STATEMENT OF FACTS

The testimony of the victim, Paula Bonin Boggs, is basically as follows. On the night of December 26, 1980 she had returned from a hospital visit with one of her three children at approximately 10:00 P.M. Because the doctor had instructed her to awaken her two year old child every two hours during the night, she called two friends to come over to assist her. As she watched T.V. with the lights out, she heard noises outside of her trailer. Thinking her friends had arrived, she unlatched the top latch of the door, and turned on the outside lights. At this time, a man with a stocking over his head pulled open the door and backed Ms. Boggs into the trailer. As she tried to resist him, he twisted her arm and pushed her into various things, including the Christmas tree. The assailant pushed her to the back bedroom but, upon seeing the other two sleeping children on that bed, he pushed her to the first bedroom where he shoved her down on the bed and unzipped his pants. The assailant told Ms. Boggs to undress but she kept begging him to leave her alone and not to hurt her children. He responded, “as long as you do what I tell you to do, nobody’s going to get hurt.” Then he pulled off Ms. Boggs’ shirt and pants and made her have oral sex with him by pushing her head on his penis. Finished with that sexual assault, he threw her down on the bed again, removed a bottle of red capsules from his pants and forced the pills into her mouth. He continued to put capsules in her mouth until she had swallowed all but a couple. Her assailant then raped her after which he pulled the stocking mask above his mouth and had oral sex with her. She continued to fight but could not control herself because the medication continued to have a numbing effect.

The assailant then pulled Ms. Boggs from the bed and allowed her to stand up and check on her children, as she had begged him. Meanwhile her attacker went through Ms. Boggs’ medicine chest and removed two bottles of pills which he proceeded to force down her mouth again. The attacker forced Ms. Boggs back into the other bedroom where he had oral sex with her again by pulling her head down on his penis. Afterwards, he started to have sex with her again when her friends Buddy and Peggy started knocking at the trailer. The rapist held his hand over Ms. Boggs’ mouth so she could not scream while threatening her children if she did yell. Meanwhile, Buddy came in through the back door. When he did, the rapist got up and ran. Buddy grabbed him; as they fell to the floor Buddy yelled to Ms. Boggs, “Run.”

Ms. Boggs ran knocking on various trailer doors until she arrived at the highway where she flagged down a trucker, who notified the police by C.B. Ms. Boggs was taken to a hospital where her stomach was pumped and she was examined for rape and external bodily injuries.

ASSIGNMENT OF ERROR

Defendant argues that the imposition of the sentences to run consecutively was excessive, and quotes the language from State v. Watson, 372 So.2d 1205, (La. 1979) wherein we stated:

“... we have pointed out that, for an offender without prior felony record, ordinarily concurrent rather than consecutive sentences should be imposed, especially where the convictions arise out of the same course of conduct within a relatively short period.” id. at 1207.

La.C.Cr.P. Article 894.1 sets forth the standards which justify the imposition of imprisonment and/or suspension or probation. The purpose of this statute is to assist the court in the exercise of its broad discretion regarding the imposition of a fair and proper sentence in a particular case. State v. Douglas, 389 So.2d 1263 (La.1980) Further, the articulation by the trial judge in accordance with that statute facilitates review by this Court.

In the instant case, the trial judge gave an extensive factual basis for the imposition of consecutive sentences, enumerating defendant’s lack of a serious criminal history, his alcohol and drug abuse problem, and his mental problems, as well as the circumstances of the offense, the likelihood that defendant will commit another crime, and his potential for rehabilitation. The record clearly exhibits adequate compliance by the trial court with the sentencing requirements and guidelines of Art. 894.1. Furthermore it is our function, as a reviewing court to not merely substitute our judgment for that of the trial judge, but to determine whether that court abused its broad discretion in sentence imposition.

In view of the viciousness of the criminal act and the threat that defendant’s conduct posed, not only to the victim, but to her three small children, the sentences of each charge for less than the maximum are not excessive. The victim believed that her life and that of her children were in danger. Defendant’s actions in forcing the victim to swallow pills could have resulted in a homicide. Defendant admits to alcohol and drug problems, and although he tried two abuse programs he has not successfully dealt with those problems. The Pre-Sentence Investigation report reveals that defendant has a history of fighting and intoxication which resulted in his receiving a Discharge Under Other Than Honorable Conditions from the Army in 1978. The report further indicates that defendant has done little to help his problem. As this Court recently pointed out in State v. Carter, 412 So.2d 540 (La. 1982), consecutive sentences may be justified when, due to his past conduct or repeated criminality over an extended period, the offender poses an unusual risk to the safety of the public.

In view of the trial judge’s extensive factual dissertation prior to sentencing, and the reasons set forth therein, we find no error in the consecutive sentences imposed. Accordingly, the conviction and sentence are affirmed.

       Judges William Norris, III, and Fred C. Sexton, Jr., of the Court of Appeal, Second Circuit, and Judge Robert L. Lobrano of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Associate Justices Calogero, Dennis, Watson and Lemmon.

      . Article 1, Section 20, La.Const. of 1974 prohibits the imposition by law of excessive punishment.

      . La.C.Cr. Art. 894.1 provides:
      A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
      (1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
      (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
      (3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
      B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
      (1) The defendant’s criminal conduct neither caused nor threatened serious harm;
      (2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
      (3) The defendant acted under strong provocation;
      (4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
      (5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
      (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
      (8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
      (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
      (10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
      (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
      C.The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.


source: Caselaw Access Project

author: BLANCHE, Justice.

license: Public Domain

text:
    CORINNE PARK CIVIC ASSOCIATION, George W. Martin, N. P. McCrimmon, Ronald J. Juneau, Joseph W. Juneau, Lawrence Brown, William L. Dunlap, Claiborne T. Baye, Herbert R. Buras and James L. Guarino v. The POLICE JURY OF the PARISH OF ST. BERNARD, Bertrand Odinet, Roy Gonzales, Peter Perniciaro, Louis Munster, John Metzler, Nick Cusimano, Claude Mumphrey, Celestine Melerine, Scott Molero, and Roland J. Bergeron, Thomas Reed, Parish Engineer, and Angelo Chetta, in His Capacity as Director-Secretary of the St. Bernard Parish Planning Commission.
    No. 82-C-0090.
    Supreme Court of Louisiana.
    June 21, 1982.

      John F. Rowley, Dist. Atty., Marcel J. Gueniot, Asst. Dist. Atty., for applicants.
    William J. Dutel, Russell J. Nunez, Jr., Laura Jean Todaro, New Orleans, for respondents.
   BLANCHE, Justice.

Plaintiffs are a civic association and property owners in Corrine Park Subdivision and Corrine Park Extension Number Two situated in St. Bernard Parish. They brought suit against the parish police jury for damages to their homes which allegedly occurred because of periodic overflowing of the Kierr Canal allegedly due to lack of maintenance. The parties agreed during the pre-trial conference to try the first five contested issues dealing with the threshold question of whether or not the police jury was responsible for the maintenance and control of the canal on the record. The remaining issues dealt with the liability of the police jury and were to be decided only if the police jury was found to be responsible for maintenance of the canal.

The district court dismissed plaintiffs’ lawsuit, holding that the legislature vested responsibility for drainage in St. Bernard Parish to the Lake Borgne Basin Levee District and that the St. Bernard Parish Police Jury did not expressly or tacitly accept responsibility for operation, maintenance and control of the Kierr Canal. The court of appeal reversed, 407 So.2d 438, and held that the police jury had assumed responsibility for the canal and had failed in its duty to properly maintain the canal. The court of appeal awarded damages to plaintiffs in the amounts which had been stipulated by the parties as the damages suffered as a result of the flooding. We granted writs to review the action taken by the court of appeal.

The police jury contends that primary responsibility for drainage in St. Bernard Parish is vested in the Lake Borgne Basin Levee District under the provisions of R.S. 38:1076(D) and R.S. 38:113 and that it never exercised its discretionary authority under R.S. 33:1236(13) to undertake maintenance of the canal. As the above statutes indicate, the Lake Borgne Basin Levee District originally was responsible for the Kierr Canal, but we find that the police jury did elect to undertake maintenance of the canal.

A survey of Corinne Park Subdivision, which refers to a “proposed canal”, was accepted by the Parish engineer on June 22, 1952. Also in the record is a drainage design plan specifically for Corinne Park which refers to the canal as “outfall canal” that was approved by the Parish engineer. The road design plan for the subdivision, which was approved by the Parish engineer on June 20,1953, includes a servitude for an outfall canal measuring 20.83 feet. It is uncontested that the canal in the survey, drainage and road design plans refers to the Kierr Canal.

Developers of the subdivision, by Act of Dedication on August 24, 1954, dedicated the Canal to St. Bernard Parish. On November 5, 1957 the St. Bernard Parish Police Jury, by resolution, accepted “. . . the off-site improvements from the St. Bernard Highway No. 1 (State Highway No. 39) to Claiborne Avenue for public use and perpetual maintenance; the said off-site improvements consisting of the concrete street known as Corinne Avenue from St. Bernard Highway No. 1 (State Highway No. 39) to Claiborne Avenue, and the concrete gutter bottom extensions, concrete curbing, and also the drainage system thereof, including catch basins and drainage lines.”

The Kierr Canal extends from St. Bernard Highway to the 20-Arpent Canal. Water flows from the streets into the drainage lines and through the pipes into the Canal which drains into the 20-Arpent Canal. From the maps, surveys, plans and documents in evidence, it appears the Kierr Canal is an integral and essential part of the drainage system in the subdivision. The specific reference in the resolution to the catch basins and drainage lines does not limit the police jury’s responsibility to these alone because, if the police jury intended to assume responsibility only for the catch basins and drainage lines, there would have been no need to include the additional reference to the “drainage system.”

The court of appeal’s determination that the police jury assumed responsibility for maintaining the canal is correct; however, the case must be remanded to determine if the police jury is liable for the plaintiffs’ damages caused by overflow of the canal allegedly due to faulty maintenance. The five issues tried on the record dealt only with the police jury’s responsibility for the canal, and did not address issues such as whether or not the police jury had inadequately maintained the canal, or whether or not the plaintiffs had contributed to the problem by allegedly throwing debris into the canal. The remaining issues also raise questions such as the duty of a parish police jury to remedy drainage difficulties in one area with priority over other problem areas when the funds available are insufficient to do all of the maintenance required.

It is apparent from the pre-trial order that the parties agreed to try only the issue of the police jury’s responsibility for the canal on the record, and allowed three days for trial on the remaining issues if required. In the stipulation regarding damages, it specifically stated that the stipulation was “limited solely to the question of quantum”, and provided that the police jury “does not admit liability for the damages sustained.” Construing the language of the pre-trial order and the stipulation together, it is apparent that the parties initially sought a determination only on the issue of the police jury’s responsibility for the canal and that the later stipulation dealt only with the issue of quantum if the police jury were to be found liable to plaintiffs for their damages because of the failure of the police jury to properly maintain the canal.

For the reasons set forth above, the judgment of the court of appeal is affirmed in part and reversed in part and the matter is remanded to the trial court for a determination of the police jury’s liability.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

      . By Act 237 of 1948 the Chalmette Back Levee District had primary responsibility for drainage in St. Bernard Parish until 1964 when it was consolidated into the Lake Borgne Basin Levee District.

      . R.S. 38:1076. General powers and duties of board
      * * sk * * sk
      D. The board shall be invested with the control of all public levees, back levees and levee drainage structures and all operating equipment in the district, with authority to require the Department of Public Works to lay out, furnish estimates, and perform all engineering work necessary to the location, construction and repairs of the levees and levee drainage, reserving, however, the right to the parishes in which the levees are located, also to provide funds and to construct and repair levees and levee drainage and exercise the powers now granted to them by law.

      . R.S. 38:113. Control of drainage channels in levee and drainage districts
      The various levee and drainage districts shall have control over all public drainage channels within the limits of their districts and for a space of one hundred feet on each side of the channel, selected by the district and recommended and approved by the Department of Public Works, whether the drainage channels have been improved by the levee or drainage district, or have been adopted without improvement as necessary parts of or extensions to improved drainage channels, and may adopt rules and regulations for preserving the efficiency of the drainage canals.

      .R.S. 33:1236. Powers of police jury
      The police juries shall have the following powers:

      (13) To construct and maintain drainage, drainage ditches, and drainage canals; to open any and all drains which they may deem necessary and to do and perform all work in connection therewith; to cut and open new drains, ditches and canals, to acquire lands for necessary public purposes, including rights of way, canals and ditches by expropriation, purchase, prescription or by donation; to enter into contracts for the construction of such drainage works, and to purchase machinery and have the work performed under their own supervision; to allocate, use and expend the general alimony of the parish for any of the above purposes; to incur debt and issue bonds for drainage and drainage canals in the manner provided for by Subtitle II of Title 39; and use such other funds as may be legally expended for such purposes; to levy taxes for the maintenance of said drainage works in the manner provided for and under the authority of Article X, Section 10 of the Constitution of the State of Louisiana, as amended, and to construct any works and do any and all things necessary to effect proper drainage and carry this Paragraph into effect; to enter into contracts or agreements, under such terms and conditions as may be mutually agreeable with the State of Louisiana, through the Department of Public Works for the securing of state aid for the purposes herein authorized; . . . They may perform all other acts necessary to fully drain all the land in their respective parishes and maintain such drainage when established. This Paragraph is intended to furnish additional means whereby parishes in the State of Louisiana may accomplish the objects and purposes herein referred to, and shall be liberally interpreted.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Jerry Paul BROUSSARD.
    No. 81-K-3175.
    Supreme Court of Louisiana.
    June 21, 1982.
    Larry C. Dupuis, Edwards, Stefanski & Barousse, Crowley, for relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Glenn Foreman, Asst. Dist. Atty., for respondent.
   MARCUS, Justice.

Jerry Paul Broussard was charged by bill of information with simple burglary in violation of La.R.S. 14:62. At arraignment, defendant entered a plea of not guilty. Thereafter, on January 29, 1980, defendant withdrew his former plea of not guilty and entered a plea of guilty as charged. After ascertaining that defendant understood his constitutional rights and the terms of his plea bargain with the state, the trial judge accepted the guilty plea and sentenced defendant to serve four years at hard labor in conformity with the plea bargain.

Thirteen months later, on February 20, 1981, pursuant to La.R.S. 15:529.1 (Habitual Offender Law), the district attorney filed an information accusing defendant of three prior felony convictions. On February 24, 1981, defendant was brought before the court at which time he denied the allegations of the information. Thereafter, on April 21, 1981, the board of parole “granted” defendant’s parole. Defendant’s parole eligibility date was May 29, 1981. The habitual offender hearing was set by the state for May 27 (two days before defendant was eligible for parole). Before commencement of the hearing, defendant moved for a continuance on the grounds that he had not been served with a notice of the hearing and that he desired to retain counsel. The motion for continuance was denied; however, while defendant was allowed to retain counsel, the court would not release appointed counsel from representing defendant at that time. The hearing commenced and evidence was received. Later, the hearing was recessed until the next day at which time defendant’s retained counsel moved for a recess on the ground that the lack of notice of the hearing had prevented defendant from retaining counsel who could prepare his defense. The trial judge granted a recess and set bond at $10,000 in the event defendant was released from custody. The hearing was reset for July 22, 1981. Defendant was released on parole on June 4, 1981. On July 20, 1981, defendant filed a motion to quash the habitual offender information on the ground that the delay of thirteen months in filing the information after sentence was unreasonable.

On July 22, 1981, a hearing was held on the motion to quash at the beginning of the resumed habitual offender hearing. It was stipulated by the parties that all prior felony convictions were in Acadia Parish (same parish as the present proceeding) and that the current district attorney for Acadia Parish is the same district attorney who was in office at the time of defendant’s prior felony convictions. After argument, the matter was taken under advisement. On October 15, 1981, the trial judge denied the motion to quash. On defendant’s application, we granted a writ under our supervisory jurisdiction to review the correctness of that ruling.

La.R.S. 15:529.1(D) provides:

If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted of a felony under the laws of this state, or has been convicted under the laws of any other state or of the United States; or any foreign government or country of a crime, which, if committed in this state would be a felony, the district attorney of the parish in which subsequent conviction was had may file an information accusing the person of a previous conviction....

Although the above statute does not impose a specific prescriptive period in which the district attorney must file an habitual offender information, we have held that it does not allow an indefinite time for filing the information once the necessary information is available. State v. Wilson, 360 So.2d 166 (La.1978); State v. McQueen, 308 So.2d 752 (La.1975). Rather, the district attorney must file an habitual offender bill within a reasonable time after the prosecution knows that a defendant has a prior felony record. State v. Wilson, supra; State v. Bell, 324 So.2d 451 (La.1975). The same considerations which underlie the constitutional right to a speedy trial compel a conclusion that upon conviction a defendant is entitled to know the full consequences of the verdict within a reasonable time. Since the enhancement of penalty provision is incidental to the latest conviction, the proceeding to sentence under that provision should not be unduly delayed. State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974); cf. La.Code Crim.P. art. 874.

In the instant case, the district attorney filed the habitual offender information thirteen months after sentence and about three months prior to the date defendant was eligible for parole. The necessary information with regard to the prior felony convictions was available to the district attorney at the time of the original sentencing on January 29, 1980, in that the convictions were obtained in the same parish during his tenure in office. Nonetheless, the district attorney delayed filing the information not only until after defendant had pled guilty to the offense charged as a result of a plea bargain and had been sentenced in conformity therewith but also after defendant had served thirteen months of his original sentence and was anticipating release on parole within a few months. The state offers no justification for its delay in instituting the habitual offender proceedings and we can conceive of none. Once having filed the information, the state apparently attempted to complete the enhancement proceedings by May 27, 1981, two days before the date that defendant was eligible for parole; however, a recess was granted prior to completion of the hearing based on defendant’s contention that the lack of notice of the hearing had prevented him from retaining counsel who could prepare his defense. As a result thereof, the proceedings were not completed before defendant had been released on parole. Under these circumstances, we do not consider that the district attorney acted reasonably in delaying the institution of the habitual offender proceedings. Accordingly, we must reverse the ruling of the trial judge denying the motion to quash.

DECREE

For the reasons assigned, the ruling of the trial judge denying defendant’s motion to quash the habitual offender information is reversed and set aside. Defendant’s motion to quash is granted. The case is remanded to the district court.

      . While the record does not reflect the exact date of defendant’s release from prison, both defendant’s and the state’s briefs agree that defendant was released on parole on June 4, 1981. The appearance bond which is in the record was executed on July 9, 1981, substantiating the fact that defendant was released from custody prior to the resumption of the habitual offender hearing on July 22, 1981.

      . 409 So.2d 658 (La. 1982).


text:
    STATE of Louisiana ex reí. Lloyd LEBAN v. STATE of Louisiana.
    No. 82-KH-0079.
    Supreme Court of Louisiana.
    June 4, 1982.
   In re Lloyd Leban, applying for supervisory and remedial writs. Parish of Orleans. No. 260-382.

Denied.


text:
    STATE of Louisiana v. Kirby CHAMPAGNE.
    No. 82-K-1445.
    Supreme Court of Louisiana.
    June 14, 1982.
   In re Kirby Champagne, applying for motion for bond reduction Parish of Lafayette. Fifteenth Judicial District Court.

Granted. Bail is reduced to $50,000.


text:
    STATE of Louisiana v. Zachary PERRY.
    No. 82-K-1479.
    Supreme Court of Louisiana.
    June 15, 1982.
   In re Zachary Perry, applying for writ of certiorari. Parish of Orleans Juvenile Court. No. 195-810.

Denied.


text:
    STATE of Louisiana v. Neil MASINTER.
    No. 82-K-1475.
    Supreme Court of Louisiana.
    June 15, 1982.
   In re Neil Masinter, applying for writs of certiorari and stay order. Parish of East Baton Rouge. Nos. 3-82-97 and 3-82-98.

Denied. Moot. We are informed the trial judge has granted a continuance.


text:
    STATE of Louisiana v. Frank BAUER, Jr.
    No. 82-K-1535.
    Supreme Court of Louisiana.
    June 18, 1982.
   In re State of Louisiana, applying for writs of certiorari, mandamus and prohibition and request for stay order. Parish of Rapides.

Writ granted. The ruling of the trial court granting continuance in this matter, ex parte, is set aside. The trial judge is ordered to entertain defendant’s motion for continuance contradictorily with the State, as required by C.Cr.P. Art. 711.


text:
    Seymeon SYMEONIDES, Curator of Frangiskos Hajigeorgiou v. COSMAR COMPAÑIA NAVIERA, S. A., Celestial Maritime Corporation and the United Kingdom Mutual Steam Ship Assurance Association (Bermuda) Limited.
    No. 82-C-1522.
    Supreme Court of Louisiana.
    June 18, 1982.
   In re Cosmar Compania Naviera, S. A., Celestial Maritime Corporation and the United Kingdom Mutual Steam Ship Assurance Association (Bermuda) Limited, applying for supervisory writs and stay order. Parish of East Baton Rouge. No. 235894.

Denied on the showing made.


text:
    Pauline MARTINEZ v. UNITED STATES FIDELITY AND GUARANTY and Darrell Ford.
    No. 82-C-1187.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re United States Fidelity and Guaranty and Darrell Ford, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 412 So.2d 109.

Granted.


text:
    Larry JOHNSON v. Gothard RECK, United Services Automobile Association, and Coty Michell a/k/a Coty Michel.
    No. 82-C-llll.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Gothard Reck, United Services Automobile Assoc., and Coty Michell a/k/a Coty Michel, applying for reconsideration of a denied writ of May 28, 1982. Parish of Orleans. No. 81-1480.

Denied.


text:
    STATE of Louisiana ex rel. Elleaner V. EVEQUE v. CLERK OF COURT, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 81-KH-3092.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Elleaner V. Eveque, applying for writ of mandamus. Parish of Orleans. No. 259-963.

Denied. Moot.


text:
    STATE of Louisiana ex rel. James H. FORREST v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-3318.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re James H. Forrest, applying for remedial writ. Parish of Livingston. No. 2003.

Denied.


text:
    John W. BEATY, Sr. v. THIOKOL CORPORATION.
    No. 82-C-0729.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Thiokol Corporation, applying for writ of review or certiorari, to the Second Circuit, Court of Appeal. Parish of Webster. 414 So.2d 1292.

Denied. The result is correct.


text:
    STATE of Louisiana, ex rel. Hugo COX v. STATE of Louisiana.
    No. 82-KH-0843.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Hugo Cox, applying for writs of certiorari, mandamus and habeas corpus. Parish of East Baton Rouge. No. 2-77-206.

Denied.


text:
    STATE of Louisiana v. Keith D. ELLIOTT.
    No. 82-KH-1086.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Keith D. Elliott, applying for remedial writs. East Baton Rouge Parish.

Denied.


text:
    April HILLIARD v. LOUISIANA HEALTH SERVICE AND INDEMNITY COMPANY d/b/a Louisiana Blue Cross.
    No. 82-C-1190.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Louisiana Health Service and Indemnity Company d/b/a Louisiana Blue Cross, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 411 So.2d 1116.

Denied.

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


text:
    Richard L. FISHER v. CHILDS INVESTMENT COMPANY, INC. and James L. Childs.
    No. 82-C-1196.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Richard L. Fisher, applying for writs of certiorari or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 411 So.2d 1180.

Writ denied.

DIXON, C. J., would grant the writ.


text:
    Eva Louise Toups WILLIAMS v. Euda DELCAMBRE, et al.
    No. 82-C-1206.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Eva Louise Toups Williams, applying for writ of certiorari, Third Circuit, Court of Appeal. Parish of Vermilion. 413 So.2d 324.

Denied


text:
    Oscar SYLVESTER, Jr. v. ST. LANDRY PARISH POLICE JURY, et al.
    No. 82-C-1321.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Milburn St. Amant, applying for writs of certiorari or review, to the Court of Appeal, Third Circuit. Parish of St. Landry. 414 So.2d 793, 414 So.2d 796.

Denied.

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


text:
    Richard Craig BROUSSARD v. Donald James BREAUX, et ux.
    No. 82-C-1339.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Donald James Breaux and Lucille Dever Breaux, applying for writs of certio-rari and review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 412 So.2d 176.

Denied.

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


text:
    STATE of Louisiana, ex rel. Morris DANTZLER v. SUPERINTENDENT, ANGOLA.
    No. 82-K-1344.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Morris Dantzler, applying for remedial writs. Parish of East Baton Rouge. No. 8-77-666.

Denied.


text:
    Charles A. ROBERTS, Sr., et al. v. Jeff D. KEYS, et al.
    No. 82-C-1355.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Charles A. Roberts, Sr., et al., applying for writs of certiorari or review, to the Court of Appeal, Third Circuit. Parish of Avoyelles. 414 So.2d 1273.

Denied.

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


text:
    Gilbert BURATT v. CAPITAL CITY PRESS.
    No. 82-C-1356.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Capital City Press, applying for writs of certiorari, prohibition and mandamus. Parish of Ascension. No. 26374.

Denied.

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


text:
    Iram Patrick FUSILIER v. ESTATE OF Lionel J. PESCHIER.
    No. 82-C-1357.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Iram Patrick Fusilier, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Evangeline. 412 So.2d 172.

Denied.


text:
    STATE of Louisiana v. Leroy JOHNSON, Jr.
    No. 82-K-1352.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Leroy Johnson, Jr., applying for supervisory writs. Parish of Rapides. No. 201565.

Denied.

DIXON, C. J., and DENNIS, J., would grant the writ.


text:
    Otis HIGDON v. ORKIN EXTERMINATING COMPANY, INC.
    No. 82-C-1358.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Orkin Exterminating Co., Inc., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. No. 8713. Parish of St. Landry. 412 So.2d 720.

Writ denied.

LEMMON, J., would grant the writ.


text:
    Roy HRYHORCHUK v. Roy M. SMITH, et al. Roy HRYHORCHUK v. CALCASIEU PARISH POLICE JURY, et al.
    No. 82-C-1363.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re State of Louisiana, applying for writ of certiorari and review. Parish of Calcasieu. Third Circuit, Court of Appeal. 412 So.2d 197, 412 So.2d 200.

Denied.

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


text:
    JOE BONURA, INC. v. Betty Salisbury PARHAM.
    No. 82-C-1393.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Betty Salisbury Parham, applying for writs of certiorari or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 12740.

Denied.


text:
    STATE of Louisiana v. William Harold COX, Jr.
    No. 82-KH-1440.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re William Harold Cox, Jr., applying for remedial writs. Parish of Orleans.

Denied on the showing made.


text:
    Tony J. SIBLEY v. Lonnie J. McLIN, et al.
    No. 82-C-1457.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Lonnie J. McLin, et al., applying for remedial writs. Parish of Livingston. No. 88519.

Granted. Trial judge ordered to sign order granting jury trial and fixing jury bond. R.S. 13:3050.


text:
    STATE of Louisiana v. Thomas LANDRY, Jr.
    No. 82-K-1342.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re State of Louisiana, applying for writs of certiorari and mandamus. Parish of Orleans. No. 285-568.

Granted. Sentence set aside; case remanded for resentencing in accordance with law. La.Code Crim.P. Art. 893.


text:
    STATE of Louisiana ex rel. Elvin E. BROOKS v. COURT REPORTER SECTION “E” CRIMINAL DISTRICT COURT PARISH OF ORLEANS.
    No. 82-KH-1127.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Elvin E. Brooks, applying for writ of mandamus. Parish of Orleans. Criminal District Court. No. 267-792.

Granted. Boykin transcript is to be furnished to relator.


text:
    STATE of Louisiana ex rel. Robin E. WILLIAMS v. Fourth Judicial District John R. JOYCE, Judge.
    No. 82-KH-1263.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Robin E. Williams, applying for writ of mandamus. Parish of Morehouse. No. 27305.

Granted. District Court is ordered to act on relator’s pending matters.


text:
    STATE of Louisiana v. Randolph C. REDFEARN.
    No. 82-0-1381.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Randolph C. Redfearn, applying for motion for appeal not timely filed. Parish of St. Tammany. No. 79678.

Granted. An out of time appeal is hereby granted.


text:
    STATE of Louisiana v. Elice PARKER.
    No. 82-K-1424.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Elice Parker, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of East Baton Rouge. No. 9247.

Granted.


text:
    In re Application and Petition of Andrew S. deKLERK.
    No. 82-0-1494.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Andrew S. deKlerk, applying for permission to take the Louisiana State Bar Examination and, contingent upon passing this examination to be certified for admission to practice law. Parish of Orleans.

Granted. The Bar Association is ordered to allow relator to take the bar examination.


text:
    STATE of Louisiana v. Daniel LOMAX and Thomas Johnson.
    No. 82-K-1284.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re State, applying for writ of certiorari to review. Parish of Orleans. Criminal District Court.

Granted as to Lomax.

Denied as to Johnson.


text:
    STATE of Louisiana, ex rel. Gene D. JOHNSTON v. Judge James E. CLARK and Court Reporter for the First Judicial District Court.
    No. 82-KH-1384.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Gene D. Johnston, applying for writ of mandamus. Parish of Caddo. No. 111682.

Granted in part. The trial court is ordered to furnish relator with a Boykin transcript. Otherwise, denied.


text:
    STATE of Louisiana v. Janies M. GORDON.
    No. 82-K-1285.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re James M. Gordon, applying for supervisory and remedial writs. Parish of Caddo. No. 111723.

Writ denied as to probation revocation and an out of time appeal is granted as to sentence.

CALOGERO and DENNIS, JJ., would grant the writ without limitation.


text:
    STATE of Louisiana, ex rel. Grover John MORAN, III v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 82-KH-0095.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Grover John Moran, III, applying for writs of certiorari, habeas corpus, and mandamus. Parish of St. Tammany. No. 58357.

Denied.


text:
    STATE of Louisiana ex rel. Kenneth Wayne WHITMORE v. Frank BLACKBURN, Warden, et al.
    No. 82-KH-0096.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Kenneth Wayne Whitmore, applying for writs of certiorari, habeas corpus and mandamus. Parish of East Baton Rouge. No. 5-75-8865A.

Denied.


text:
    STATE of Louisiana ex rel. Matthew HENDERSON v. Ross MAGGIO, Warden, et al.
    No. 82-KH-0319.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Matthew Henderson, applying for writs of certiorari, habeas corpus and mandamus. Parish of Orleans. No. 255-000, Section “F”.

Denied.


text:
    STATE of Louisiana, ex rel. Renaldo Clarence DAVIS v. Honorable Charles WARD, Judge Section (A) Orleans Parish Criminal District Court.
    No. 82-KH-0654.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Renaldo Clarence Davis, applying for writ of mandamus. Parish of Orleans. Nos. 253-553 and 254-594.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Walter HOUSTON v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 82-KH-0667.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Walter Houston, applying for writ of certiorari, on habeas corpus. Parish of Caddo. No. 108805-HC.

Denied.


text:
    STATE of Louisiana, ex rel. Charles L. CLARK v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 82-KH-0679.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Charles L. Clark, applying for remedial writs. Parish of Bossier.

Denied.


text:
    STATE of Louisiana ex rel. James GUIDRY v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 82-KH-0816.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re James Guidry, applying for writ of habeas corpus. Parish of Calcasieu. Fourteenth Judicial District Court. No. 2264-81.

Denied.


text:
    STATE of Louisiana, ex rel. Joel MORRISON v. Honorable Edwin A. LOMBARD, Clerk, Criminal District Court and John Zamora Court Reporter, Section G.
    No. 82-KH-1011.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Joel Morrison, applying for writ of mandamus. Parish of Orleans. No. 268-605.

Denied.


text:
    STATE of Louisiana, ex rel. Billy Ray WILLIAMS v. CLERK OF COURT, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 82-KH-1025.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Billy Ray Williams, applying for writ of mandamus. Parish of Orleans. No. 267-909.

Denied.


text:
    STATE of Louisiana, ex rel. Oliver JOSEPH v. Municipal Court Judge John SHEA and City Attorney, Section C.
    No. 82-KH-1101.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Oliver Joseph, applying for writ of habeas corpus. Parish of Orleans, Municipal Court. No. 99686.

Denied.


text:
    STATE of Louisiana, ex rel. Bob Thomas THIBODEAUX v. CLERK OF COURT, 16TH JUDICIAL DISTRICT COURT, Parish of St. Mary, State of Louisiana.
    No. 82-KH-1202.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Bob Thomas Thibodeaux, applying for writ of mandamus. Parish of St. Mary. No. 109-712.

Denied. Moot.


text:
    STATE of Louisiana v. Jerry L. LEWIS.
    No. 82-K-1240.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Jerry L. Lewis, applying for supervisory writs of certiorari, prohibition and mandamus. Parish of East Baton Rouge. Nineteenth Judicial District Court. No. 7— 81-236.

Denied. Adequate remedy by review in the event of conviction.

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


text:
    STATE of Louisiana ex rel. Harold JULUKE v. STATE of Louisiana.
    No. 82-KH-1252.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Harold Juluke, applying for remedial writ. Parish of Orleans. No. 275-137.

Denied. Relator must first apply to district court.


text:
    STATE of Louisiana ex rel. Reginald DUNCAN v. N. Burl CAIN, Warden Dixon Correctional Institute.
    No. 82-KH-1262.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Reginald Duncan, applying for writ of mandamus. Parish of Orleans, Criminal District Court. No. 257-602.

Denied.


text:
    CITY OF NEW ORLEANS v. Denzil MEANS v. Municipal Court Judge John SHEA v. CITY ATTORNEY (SECTION C.).
    No. 82-KH-1265.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Denzil Means, applying for writ of habeas corpus. Parish of Orleans. No. 262789C.

Denied.


text:
    STATE of Louisiana ex rel. Thomas E. LA MEAR v. Honorable Charles Wm. ROBERTS, Judge Division “M” 19th Judicial District Court Parish of EBR.
    No. 82-KH-1327.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Thomas E. La Mear, applying for writ of mandamus. Parish of East Baton Rouge, Nineteenth Judicial District Court. No. 254210.

Denied. Moot.


text:
    STATE of Louisiana v. Mark MONTGOMERY and Samuel Griffin.
    No. 82-K-1347.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Mark Montgomery and Samuel Griffin, applying for supervisory and remedial writs. Parish of Caddo. No. 119954.

Denied.

CALOGERO, J., would grant the writ.


text:
    CITY OF WEST MONROE v. Dennis E. DAWSON.
    No. 82-K-1374.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Dennis E. Dawson, applying for writs of certiorari, review and mandamus. Parish of Ouachita. No. 59056.

Denied.


text:
    STATE of Louisiana, ex rel. Joseph GLEASON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-1390.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Joseph Gleason, applying for writ of mandamus. Parish of Orleans. No. 239-513.

Denied. Moot.


text:
    Josef E. SCHWENDINGER v. FIDELITY AND CASUALTY COMPANY OF NEW YORK, et al.
    No. 82-C-1401.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Ample Electric Service, Inc., and Frank James Leteff, applying for writs of certiorari, prohibition, mandamus, and stay order. Civil District Court. Parish of Orleans. No. 80-7649.

Denied.


text:
    STATE of Louisiana, ex rel. Michael SEEDERS v. Warden Roger AUCOIN.
    No. 82-KH-1461.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Michael Selders, applying for writs of prohibition and certiorari. Parish of East Baton Rouge. Nos. 4-81-691 and 5-81-550.

Denied.


text:
    STATE of Louisiana v. Shelby Len ESTERS.
    No. 82-K-1495.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Shelby Len Esters, applying for supervisory writs. Parish of Rapides. No. 198636.

Denied on the showing made.


author: REDMANN, Judge.

text:
    Matthew ALEXANDER v. AVONDALE SHIPYARDS, INC.
    No. 12678.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    On Rehearing July 15, 1982.
    Joseph M. Bruno, Bruno & Bruno, New Orleans, for plaintiff-appellee.
    Delbert G. Talley, Gretna, for defendant-appellant.
    Before REDMANN, SCHOTT and KLEES, JJ.
   REDMANN, Judge.

An employer appeals from a judgment for workers’ compensation benefits for permanent and total disability plus statutory penalties and attorney’s fees.

The testimony of Dr. Morton Brown supports the trial judge’s basic conclusion that plaintiff has silicosis that has so reduced his lung function that he cannot exert himself without causing shortness of breath, and is therefore disabled from heavy work, the only kind of work he has done or is fit to do by his extremely limited education.

The testimony of Dr. W. Brooks Emory would support a conclusion that plaintiff does not have significant reduction of lung function and is therefore not disabled (notwithstanding that he does have certain findings that are not inconsistent with silicosis).

We are unable to say that the trial judge was clearly wrong, Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Defendant also complains of the award of attorney’s fees and penalties. Defendant concedes it stopped payments in respect to plaintiff’s permanent leg injury knowing that at least special schedule benefits were due. Even after suit and until trial defendant still had not resumed special schedule payments. It cannot escape penalties and attorney’s fees as to those payments. It is not, however, liable for penalties and attorney’s fees on the payments for silicosis disability because it had probable cause to dispute liability. We therefore reduce attorney’s fees from $2,000 to $1,000.

Defendant further complains of duplication in the 175-week $44 award for the September 29, 1979 leg injury and the total disability award from June 11, 1980. We agree. The special schedule of R.S. 23:1221(4) is not available where disability payments are made in excess of the special benefit, because § 1223 requires payments under § 1221(1), (2) or (3) to be deducted from payments under § 1221(4). Accordingly, once the $148 payments under § 1221(1) begin as of June 11, the $44 payments under § 1221(4) cannot be collected also. But because those $44 payments were in any case due, the 12% penalty on $44 of those payments not paid after 60 days’ demand is due.

Defendant finally asks that we consider another medical report conflicting with Dr. Brown’s view and in agreement with Dr. Emory’s view. The answer to this suggestion is that the award of compensation is subject to review, R.S. 23:1331, if plaintiff’s disability disappears. But we cannot consider evidence that was not produced in the trial court, or remand for its consideration by the trial court, unless some special circumstance would require us to do so in the interest of justice. No such circumstance is present.

Amended to fix attorney’s fees at $1,000 and penalties at 12% on the $2,520 payable $44 a week insofar as not paid when due after 60 days after demand; and to allow credit against the $44 a week payments for the $148 payments commencing June 11, 1980; and otherwise affirmed.

ON REHEARING

We granted rehearing because of plaintiff’s argument that La.R.S. 23:1223 applies only to a single-injury case and not to a case of two compensable injuries.

That question was decided by this court adversely to plaintiff’s position in McGee v. State through Bd. of Comm’rs, 355 So.2d 1079 (La.App. 4 Cir. 1978). In McGee, plaintiff first suffered a non-disabling knee injury and then a disabling back injury, for which he was being paid maximum benefits. Reasoning that “the benefits due plaintiff from more than one accident or injury cannot exceed the [statutorily] provided maximum,” id. at 1081, citing earlier two-accident cases from other circuits, the court concluded that the twice-injured worker could only receive a total of the maximum benefits.

Our original opinion and decree are therefore reinstated.


author: JASPER E. JONES, Judge.

text:
    LITTLE GIANT FOOD STORES, INC., Plaintiff-Appellant, v. STATE of La., DEPT. OF PUBLIC SAFETY Through COMMISSIONER OF ALCOHOLIC BEVERAGE CONTROL, Defendant-Appellee.
    No. 14818.
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 1982.
    Bodenheimer, Jones, Klotz & Simmons by Harry D. Simmons, Shreveport, for plaintiff-appellant.
    Robert L. Roshto, Asst. Atty. Gen., Baton Rouge, for defendant-appellee.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   JASPER E. JONES, Judge.

The plaintiff is Little Giant Food Stores, Inc. The defendant is the State of Louisiana, Department of Public Safety through the Commissioner of Alcoholic Beverage Control. The plaintiff appeals a judgment of the district court upholding defendant’s decision to deny it a 1981 Retail Class B Beer Permit on grounds that the premises to be licensed is within 300 feet of a church.

Little Giant has a store at 4020 Hearne Avenue in the City of Shreveport. Little Giant applied for city and state beer permits for the location. The requested city beer permits was issued to plaintiff, but the defendant denied the state permit under the authority of LSA-R.S. 26:280(C) which provides as follows:

“When prohibited by municipal or parish ordinance no permit shall be granted for any premises situated within three hundred feet or less, as fixed by the ordinance, of a public playground or of a building used exclusively as a church or synagogue, public library, or school, except a school for business education conducted as a business college or school. In municipalities and in unincorporated areas which are divided into subdivisions with streets, blocks, sidewalks, etc., this distance shall be measured as a person walks using the sidewalk from the nearest point of the property line of the church or synagogue, library, playground, or school to the nearest point of the premises to be licensed...”

Shreveport’s Ordinance No. 217 of 1980 regulates the locations of premises which may be licensed to sell beverages of low alcoholic content. The ordinance provides as follows:

“(b) Except as otherwise provided in this paragraph, it shall be unlawful to engage in the business of dealing in beverages of low alcoholic content from, and no permit shall be granted for, any premises situated within 300 feet or less of a public playground or of a building used exclusively as a church or synagogue, public library, or school, except a business college or school. .. The required distance shall be measured as a person walks using the sidewalk from the nearest point of the property line of the church or synagogue, library, playground, or school, to the nearest point of the premises to be licensed (i.e., that portion of a building or structure in which the business of dealing in beverages of low alcoholic content is conducted).

The stipulated facts show that the Ingle-side Baptist Church is located on Velva Street and that it is 388' from the lot on which the church building is located to plaintiff’s premises.

Located across Velva Street from the church is another lot owned by the church which is used for parking. There are no church buildings on the lot. The parking lot is 146' from plaintiff’s premises.

A third parcel of church property is located at the intersection of Velva and Dupont Streets on the corner opposite the property where the church building is located. This property is used as a church playground. It is not a public playground. The playground is 196' from the plaintiff’s premises.

The relative locations of the various properties are generally shown by the diagram below:

Plaintiff commenced this summary proceeding in the district court after the defendant refused to issue the permit. The plaintiff’s demand that the defendant be ordered to issue the requested permit was rejected by the district court and plaintiff took this appeal.

Little Giant sets out three specifications of error: (1) that the trial court erred by refusing to order the permit to be issued; (2) that the trial court erred in its apparent holding that its premises are within 300' of the church; and (3) that the trial court erred in its interpretation of LSA-R.S. 26:280(C).

The merit of plaintiff’s specification of error depends on the resolution of one issue: does R.S. 26:280 require that the starting point for measuring the distance from a church to the premises of applicant seeking a permit include church property on which no church building is located and which is not contiguous to the property on which the church building is located. We conclude that it does not and find merit in plaintiff’s specification of error.

The appellee contends that the starting points for measuring the distance to the plaintiffs premises are the church playground and parking lot, and relies on Randolph v. Village of Turkey Creek, 240 La. 996, 126 So.2d 341 (1961). In Turkey Creek, the supreme court said:

“. . . insofar as the measurement at the church, school, et cetera, is concerned it must be made from the point nearest the sidewalk of its outer boundary or property line in which the usual and ordinary activities incident to such an institution are carried on.” Id. at 349.

The quoted language from Turkey Creek is not controlling in the case at bar. In Turkey Creek, the court said:

“[t]he meaning of ‘premises to be licensed’ as used in LSA-R.S. 26:280, subd. C determines the issue.” Id. at 349.

Thus, the court’s statement concerning the beginning point of the measurement relating to the church property was unnecessary to its decision. It was dictum and not controlling here. Graham v. Jones, 198 La. 507, 3 So.2d 761 (1941); Fulton v. Millet, 93 So.2d 316 (La.App.Orl.1957); Lewis v. New York Fire & Marine Underwriters, Inc., 233 So.2d 743 (La.App. 4th Cir. 1970).

The language of LSA-R.S. 26:280(C) shows that the legislature intended to make state and local regulation of the places from which beverages of low alcoholic content may be sold consistent with each other within the regulatory structure allowed by the statute. The defendant has determined that issuance of a permit for plaintiff’s premises would violate § 280(C) by violating the city’s ordinance. However, as its issuance of a permit shows, the city had already determined that the issuance of a permit to plaintiff’s premises did not violate its ordinance.

The interpretation given an ordinance by municipal authorities is entitled to great weight. Carrere v. Orleans Club, 214 La. 303, 37 So.2d 715 (1948); Cendon v. H. G. Hill Stores, 171 La. 341,131 So. 41 (1930) (municipal construction entitled to some consideration). Both the defendant and the district court failed to give adequate weight to the city’s interpretation of its ordinance.

Statutes should not be interupted so as to lead to absurd results or extended to situations they were never intended to cover. Johnson v. Occidental Life Ins. Co. of Cal., 368 So.2d 1032 (La.1979); Smith v. Town of Vinton, 209 La. 587, 25 So.2d 237 (1946). The interpretation placed on the statute by defendant and the district court violates these principles.

As interpreted by the city, its ordinance, and through it the statute, would bar permits for premises within 300' of the church building, the property on which the building is located and other church property contiguous with that property. This construction is adequate to accomplish the purpose of the statute and ordinance, namely, to remove from the vicinity of churches and other protected institutions the sometimes undesirable activities associated with establishments which sell beer. Further, this construction accomplishes the purpose of the legislation without creating the potential for absurd results as the interpretation advocated by appellee.

Appellee and the district court construe the statute to bar the issuance of permits to premises within the proscribed distances of church property regardless of that property’s location relative to the property on which the church is located. Under this interpretation permits would be denied to premises within 300' of a church parking lot which was 1000' from the property on which the church was located. It would deny permits to premises within the proscribed distance of a church owned, non-contiguous parking lot operated for profit. This interpretation could be used to deny a permit to premises within the proscribed distance of a church owned recreational facility located halfway across the City of Shreveport from the church.

We conclude that the issuance of a beer permit for plaintiff’s premises is not barred by LSA-R.S. 26:280 or Ordinance No. 217 of 1980.

This result is supported by the case of Walsh v. Department of Alcoholic Beverage Control, 59 Cal.2d 757, 31 Cal.Rptr. 297, 382 P.2d 337 (1963). In Walsh the court considered a statute prohibiting the sale of intoxicating liquor “within one mile of the grounds belonging to the University of California, at Berkeley.” The premises in question was more than one mile from the main campus, but within a mile of new domitories which had been built on other university property which was separated from the main campus by city streets.

The court in Walsh held that “grounds” of the university were limited to the traditional main campus and that a liquor license could be transferred to premises within one mile of the new dormitories which were separated from the main campus by city streets.

For the reasons assigned, the judgment appealed from is REVERSED and defendant is ordered to issue plaintiff the permit applied for.

      . Also cf. Tabaczka v. Michigan Liquor Control Commission, 342 Mich. 370, 70 N.W.2d 689 (1955), and Shipbaugh v. City of Sarasota, 94 So.2d 728 (Fla. 1957) (permits for the sale of alcoholic beverages could be issued when premises were within proscribed distances of rectory or parsonage, but not of church itself.)


author: BYRNES, Judge.

text:
    Richard NICK v. DEPARTMENT OF FIRE.
    No. 12831.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 8, 1982.
    Rehearing Denied July 16, 1982.
    Louis L. Robein, Jr., Barker, Boudreaux, Lamy, Gardner & Foley, New Orleans, for plaintiff-appellant.
    Salvadore Anzelmo, City Atty., Charles J. Willoughby, Asst. City Atty., New Orleans, for defendant-appellee.
    Before REDMANN, C. J., and BYRNES and GARRISON, JJ.
   BYRNES, Judge.

This is an appeal from a Civil Service Commission ruling suspending appellant for a period of sixty (60) days and upon end of said suspension demoting appellant from his prior rank of Captain to the position of Operator. We affirm the decision of the Civil Service Commission.

On November 8, 1980, appellant Richard Nick, was suspended pending investigation of allegations of his consuming alcohol and damaging a City of New Orleans vehicle by jumping on the hood, roof and trunk of the vehicle, said actions occurring while Nick was on duty. As a result of the investigation on January 7,1981, the Superintendent of the Fire Department took disciplinary actions whereby appellant was suspended for sixty (60) days and demoted to Fire Apparatus Operator with a pay cut. The disciplinary action was affirmed by the Civil Service Commission. Appellant appealed the disciplinary action of the Civil Service Commission. It is from this ruling that the appellant now appeals to this court.

As this court sees it, the only cognizable issue presented is whether the Civil Service Commission of the City of New Orleans erred in finding that the penalty fit the offense and its application of the applicable law in the instant matter.

The Commission, in their opinion, cited Branighan v. Department of Police, 362 So.2d 1221 (La. 4th Cir. 1978), in their reasons for not reducing the penalty assessed by the Fire Department Commission. We believe the Commissioner was correct in the application of the principles enunciated in Branighan. In Branighan this court stated:

“The legal basis for any change in disciplinary action can only be that sufficient cause for the action was not shown by the appointing authority. The protection of Civil Service Employees is only against firing (or other discipline) without cause. This protection arises from La.Const. art. 10 § 8(A):
No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause in writing.
Cause justifying a one-day suspension might not justify a dismissal, and therefore — and in that sense — the Civil Service Commissions authority “to hear and decide” disciplinary cases, Const, art. 10 § 12, includes authority to modify (reduce) as well as to reverse or affirm a penalty. See Brickman v. New Orleans Aviation Board, 1958, 236 La. 143, 107 So.2d 422; Bernard v. Louisiana H. & H. R. A., La.App. 1st. Cir. 1976, 336 So.2d 55. But, for example, cause justifying a 25-day suspension very probably would also justify a 30-day suspension, and the Commission’s authority “to hear and decide” an appeal from a 30-day suspension would therefore probably not include authority to reduce the 30-day suspension to 25 days. The Commission does not have the authority to reduce a penalty except on a determination that there is insufficient cause for the greater penalty.” (Footnote Omitted)

Appellant, at the time of the offense, was a Captain in the New Orleans Fire Department. He admitted that he did drink while on duty, clearly in violation of Section 12:25 of the Fire Department rules but that this in no way affected his performance as is evidenced by the fact that he attended a “roll” that evening. We feel that this attempt by appellant to mitigate his offense is not responsive to the issue at hand since Section 12:25 of the Fire Department rule states quite clearly: “No member while on duty, or in uniform shall consume, possess or be under the influence of alcoholic beverages”. (Emphasis ours)

Although we can sympathize with appellant’s contention that the penalty was rather harsh, we are not unaware of the responsibilities and duties incumbent on appellant in his position as Captain. Even to the uninitiated observer, the gravity of the offense would appear to be far greater when said offense is committed by a fireman with leadership responsibilities.

We feel that testimony given in the hearing afforded appellant clearly supported the imposition of the disciplinary action by the Fire Superintendent. For this reason appellant’s appeal is hereby dismissed and the Civil Service Commission ruling is hereby affirmed with all costs assessed to appellant.

AFFIRMED.


author: MARVIN, Judge. PER CURIAM.

text:
    Davetta Caughey FARIA and Roy Dunscomb Gregory Caughey, Plaintiffs-Appellees, v. Karl Randall SMOAK, State Farm Mutual Automobile Insurance Company, and Casualty Reciprocal Exchange, Defendants-Appellants.
    No. 14854.
    Court of Appeal of Louisiana, Second Circuit.
    May 10, 1982.
    Rehearing Denied With Per Curiam, July 20, 1982.

      Bodenheimer, Jones, Klotz & Simmons by James P. Bodenheimer, Shreveport, for Cas. Reciprocal Exchange.
    Richie & Richie by John A. Richie & Byron A. Richie, Shreveport, for plaintiffs-appellees.
    Lunn, Irion, Switzer, Johnson & Salley by Harry A. Johnson, Jr., Shreveport, for Karl Randall Smoak and State Farm.
    Before PRICE, MARVIN and NORRIS, JJ.
   MARVIN, Judge.

The defendant insurer appeals a judgment which effectively stacked uninsured motorist coverage for damages arising out of the wrongful death of plaintiffs’ parents in a collision between two motor vehicles that occurred after the effective date of Act 623 of 1977. The policy was written before that Act amended LRS 22:1406(D) dXc).

The decedents were the occupants of a van that was one of three vehicles owned by them, each of which was insured under the defendant’s policy which declared UM limits of $10,000 per person and $20,000 per accident to two or more persons. Defendants deposited and plaintiffs withdrew $20,-000 as UM coverage and this case was submitted by stipulation on the issue of whether or not plaintiffs were entitled to stack UM coverage and recover an additional $40,000.

The statute has been interpreted to deny stacking under such circumstances. Thibo-deaux v. Olivier, 394 So.2d 684 (La.App. 3d Cir. 1981) and Hebert v. Breaux, 398 So.2d 1299 (La.App. 3d Cir. 1981). We follow this authority and reverse and render judgment rejecting plaintiffs’ demands.

In both Thibodeaux and Hebert, the policy was written before the effective date of Act 623 of 1977 and the accident occurred after. In Thibodeaux, the Supreme Court denied writs, 5-2. 397 So.2d 1360 (La.1981). A five-judge panel of the 3d circuit decided Hebert. Two judges dissented and assigned reasons which essentially are tracked by the argument of the plaintiffs-appellees here. The Supreme Court unanimously denied writs in Hebert. 401 So.2d 986 (La.1981).

At appellees’ cost, the judgment appealed is reversed and judgment is hereby rendered rejecting the demands of plaintiffs.

ON RE-HEARING

Before PRICE, HALL, MARVIN, JASPER E. JONES and NORRIS, JJ.

PER CURIAM.

In application for rehearing, plaintiffs complain that we failed to consider their contention that the policy should be “reformed” by eliminating the non-stacking provision in accord with the alleged intent of the parties.

We purposely did not consider this issue because the stipulation upon which this case was submitted to the lower court did not state any facts which would allow us or the lower court to find or to infer the intent of the parties. See footnote two, supra.

Under these circumstances and with this explanation, we deny the application for a rehearing.

      . Section 1406(D)(1)(c), in part, provides that UM coverage “shall not be increased because of multiple motor vehicles covered ... and ... when the insured has insurance available to him under more than one uninsured motorist coverage provision ...”

      . The provision limiting UM liability (here Part IV (a) of the policy) is identical to the provision in the Hebert policy. The dissents in Hebert reasoned
      —that the policy should be interpreted under the law in effect when the policy was written;
      —that Courville v. State Farm Mut. Auto. Ins. Co., 393 So.2d 703 (La.1981), impliedly supported this view;
      —that the Insurance Code prohibited provisions in policies that were inconsistent with or contradictory to the Code and any language in the policy denying stacking before Act 623 of 1977 should be considered as not written;
      —that the insured contracted before Act 623 of 1977, contemplating the bargained-for and paid-for right to stack, and
      —that “retroactive” application of that Act impaired the contractual obligations of the parties.
      Plaintiff here additionally argues that the policy should be reformed to reflect the true intent of the parties and, alternatively, that the insurer should be liable to plaintiffs in damages for intentionally including provisions in the policy contrary to and inconsistent with the Insurance Code. These additional issues were not submitted to the lower court by the stipulation and are not considered in this appeal. See Rule IX-A, Uniform Rules, Courts of Appeal.

      . LA.C.C.P. Art. 2164 allows us to render any judgment which is just, legal, and proper upon the record. This record, however, does not contain any evidence about what the parties intended other than the written contract. Courts cannot presume fraud or mutual error.


author: MARVIN, Judge.

text:
    Troy L. SMITH, Plaintiff-Appellee, v. Eddith Joye SMITH, Defendant-Appellant.
    No. 14857.
    Court of Appeal of Louisiana, Second Circuit.
    May 10, 1982.

      Goff & Goff by A. K. Goff, Jr., Ruston, for defendant-appellant.
    Bobby L. Culpepper, Jonesboro, for defendant-appellee.
    Before PRICE, MARVIN and NORRIS, JJ.
   MARVIN, Judge.

The defendant ex-wife appeals a 1981 judgment revoking $250 monthly permanent alimony awarded her in a 1977 divorce. CC Art. 160 authorizes revocation of permanent alimony, “if it becomes unnecessary.”

Defendant contends that the change of circumstances between 1977 and 1981 was not significant and substantial so as to warrant revocation, that the trial judge made arithmetical errors and failed to properly evaluate and compare the respective financial and physical conditions of the litigants. We view the testimony in the light most favorable to supporting the judgment and affirm.

The statute directs that the court “shall consider [the] . .. earning capability” of the spouse claiming alimony “in the light of all other circumstances.” See Sonfield v. Deluca, 385 So.2d 232 (La.1980); Ducote v. Ducote, 339 So.2d 835 (La.1976); Ward v. Ward, 339 So.2d 839 (La.1976), and Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973).

In 1977, defendant earned $11,350 as a nurse. More recently, she has been employed in a Grand Prairie, Texas, hospital, and earned $15,023 in 1979 and $17,580 in 1980. In 1977 defendant had her two minor children living with her and contributed to their support. These children are now self-supporting and are living away from their mother. She vacationed in Colorado in 1979 and on a Caribbean cruise ship in 1980. She paid $900 for the cruise with money she obtained from a $700 rebate on the purchase of a new automobile partially on credit and from $200 in overtime work. She includes, however, $40 per month in her listing of expenses for vacation. She also includes $11 monthly medical insurance premiums on her adult child, Shannon, a monthly withdrawal of $25 to a bank plan to guarantee her checks, and $20 a month to a savings account.

Defendant lists these monthly living expenses:

Rent $240
Purchase or mortgage payments 321
(includes car payment of $234 and
payments to Sears, Wards, and VISA
for purchases including clothing)
Utilities 130
Food 165
Clothing (see purchases above) 15
Transportation 100
Medical & dental care 11
(we exclude $100 dental expense for Shannon Smith)
Insurance 193
Recreation 40
Other regular expenses, excluding $20
savings contribution but including professional magazine subscription, etc. 30

These items total $1,245, which approximates the “average monthly take home pay” found by the trial court at $1,255. Defendant listed her net pay as $544 every two weeks ($544 X 26 or $14,144 from her gross earnings in 1980 of $17,580). In any event, her net pay by her own calculations is reasonably approximate to her monthly expenses if some “expenses”, such as vacation expense and deductions made for savings accounts, are disallowed. See CC Art. 160, Bernhardt, supra.

Defendant has a savings account which at one time was $2,000, plus a small amount in an employee retirement program and her bank accounts. She owns Vz of the former family home which is rented to pay the mortgage payments, taxes, and insurance, and a resulting xh interest in the net from this rent from time to time. The house has an equity of about $60,000. Defendant regularly works 10 hours, 4 days a week, and manages to work some overtime. She complains that she suffers from circulatory problems in her lower extremities, that she is “saddled” with the purchase of a new Pontiac, and that she is “straining” to make ends meet. We cannot say, however, that the trial court abused its discretion by concluding otherwise, even though it can be readily concluded this ex-husband has the ability to pay permanent alimony. See Loyacano v. Loyacano, 358 So.2d 304 (La.1978); Willis v. Willis, 355 So.2d 999 (La. App. 4th Cir. 1978), writ refused; Woods v. Woods, 338 So.2d 178 (La.App. 2d Cir. 1976).

Defendant does not have to be destitute to have permanent alimony restored in the event her earning capability later changes. Leavines v. Leavines, 224 So.2d 26 (La.App. 4th Cir. 1969). See also Shelton v. Shelton, 395 So.2d 899 (La.App. 2d Cir. 1981).

At appellant’s cost, judgment is affirmed.

      .The ex-husband’s gross earnings showed similar increases to almost $30,000 in 1980 and we conclude that he has the ability to pay permanent alimony.

      . Defendant claimed her monthly expenses totaled $1,308.

      . Her payroll deductions were not otherwise specified.


author: GULOTTA, Judge. SCHOTT, J.,

text:
    Mary E. Salvant, wife of/and Edwin SALVANT v. SCHWEGMANN BROTHERS GIANT SUPERMARKETS, INC.
    No. 12739.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Rehearing Denied July 16, 1982.
    Law Offices of Frederick J. Gisevius, Jr., B. R. Malbrough, New Orleans, for plaintiffs-appellees.
    William G. Tabb, III, New Orleans, for defendant-appellant.
    Before GULOTTA, SCHOTT and GARRISON, JJ.
   GULOTTA, Judge.

Defendant appeals from a jury award in the sum of $13,500.00. The sole issue is whether plaintiff has established causation between the aggravation of a pre-existing lower back injury and an incident in a Schwegmann store on August 3, 1978 when she was struck in the back by a food cart as it was being pushed by a Schwegmann employee. Liability is not in issue. We affirm.

It is Schwegmann’s contention that the evidence indicated the continued deterioration and aggravation of plaintiff’s preexisting compression fracture of the lower back could have resulted from progressive degeneration of the vertebra or from an unrelated post-accident fall from a wheelchair, and plaintiff had thus failed to show by a sufficiency of evidence a causal relationship between her back problem and the August 3 incident.

When struck, the seventy-six-year old plaintiff was knocked forward against a frozen food case. Visibly shaken, she was assisted to her car in a wheelchair and remained bedridden for several days thereafter. She complained of back pain to her treating physician in the weeks following the incident until being hospitalized in October, 1978 for a scheduled change of her heart pacemaker. While in the hospital, plaintiff fell from a wheelchair and suffered a minor abrasion to her back.

Following continued complaints of back pain to her treating physician during the ensuing months, plaintiff consulted an orthopedist who took X-rays of her back and prescribed medication and a corset that she continued to wear at the time of trial in April, 1981.

Plaintiff had a history of lower-back problems dating back to 1973. In late November or early December, 1973, plaintiff sustained a back injury from a fall and was seen by Dr. Gary H. Bergeaux, an internist. According to Dr. Bergeaux, plaintiff at that time suffered a 25% compression fracture of L-l. He had seen her every three or four months between 1973 and 1978. During these visits she complained of back pain.

On December 11,1978 plaintiff related to Dr. Bergeaux that she had been suffering back pain since the trauma in Schweg-mann’s. The X-ray dated October 24, 1978 showed collapse of the L-l vertebral body with anterior wedging, a much worse condition than the 1973 X-ray. Although this physician stated that the later X-ray reflected what he would expect to see in a disease progressing from 1973 in its normal course without any trauma, he acknowledged it could also be trauma-related. He testified that being struck in the back was consistent with the worsening of plaintiff’s condition and continued complaints of pain.

Dr. William H. Newman, an orthopedic surgeon, saw plaintiff on May 9, 1979 and found abnormal angulation of the lumbar dorsal spine and some “wedging” of the L-l vertebra suggesting a fracture of some duration that could have occurred as far back as August, 1978. He also found osteoarthritis and osteoporosis or softening of the bone that had its onset several years previously. Dr. Newman prescribed a lum-bo-sacral corset and in the course of fourteen subsequent visits through April 14, 1980 prescribed various arthritis medications for her pain. According to this physician, surgery will not materially help plaintiff and she will continue to demonstrate symptoms and limitations.

Dr. Newman further testified that compression fracture of the L-l vertebra is one of the most frequent areas for fracture in an individual of plaintiff’s age, and that a flexion injury is much more easily sustained with softened bones. Comparing the X-ray taken of plaintiff’s back on December 21, 1973 and the later X-ray on May 9, 1979, Dr. Newman felt that the fracture was more compressed, that arthritic changes were greater in the L-l area, and that a re-injury could have caused further compression of the vertebra. He felt that these compressions were probably traumatic in origin, but he could not pinpoint the origin or rule out that the injury could have been from a fall from a wheelchair.

Dr. Patrick C. Breaux, plaintiff’s cardiologist primarily involved with her cardiac problem, testified that plaintiff’s injury at Schwegmann’s and the subsequent complaints of back pain were consistent with the collapse or compression of the L-l vertebra. It was his impression that the wheelchair fall at the hospital in October, 1978 resulted only in a superficial abrasion and was unrelated to the back problem. While unable to ascertain how old the fracture was, Dr. Breaux stated that it was conceivable it had been caused by a cart striking her in the back.

Although plaintiff admittedly had suffered a compression fracture of the L-l vertebra in 1973, she related that she had lived an active life until the Schwegmann incident which limited her activities and increased her pain. Her testimony in these respects was corroborated by her husband and her daughter.

The rule of law applicable in this case is that a defendant takes his victim as he finds him and the tort feasor is responsible for the natural and probable consequences of his tortious act including the aggravation of a pre-existing injury. See Perniciaro v. Brinch, 384 So.2d 392 (La.1980); Sansonni v. Jefferson Parish School Bd., 344 So.2d 42 (La.App. 4th Cir. 1977), writ denied, 346 So.2d 209 (La.1977); Johnson v. Ceaser, 304 So.2d 855 (La.App. 4th Cir. 1974); Mayeux v. Mock, 278 So.2d 591 (La.App. 3d Cir. 1973).

Our evaluation of the testimony, medical and lay, leads to a conclusion, as obviously reached by the jury, that the August 3,1978 incident in Schwegmann’s store aggravated the pre-existing compression fracture of the lower back. It was undisputed that the incident in Schwegmann’s caused plaintiff to suffer considerable lower-back pain and curtailed her activities. It was also established that plaintiff’s complaints were consistent with the trauma she had suffered when struck by the food cart. The testimony, taken as a whole, supports a conclusion that it was more probable than not that plaintiff’s back difficulty, which intensified after August, 1978, was caused by the injury suffered in Schwegmann’s.

We decline to award plaintiff costs and attorney’s fees for frivolous appeal. Although we do not disturb the award, defendant hás raised serious causation questions. In such instance, no damages lie for frivolous appeal. See LSA-C.C.P. Art. 2164; Parker v. Interstate Life & Accident Insurance Co., 248 La. 449, 179 So.2d 634 (La.1965). .

Having so concluded, we affirm the jury award and judgment.

AFFIRMED.

SCHOTT, J., concurs and assigns reasons.

SCHOTT, J.,

concurring.

The jury obviously concluded that plaintiff’s accident in Schwegmann’s store aggravated her preexisting condition on reaching a verdict of $13,000. Since defendant does not take issue with any of the charges to the jury, we must assume that they were correctly instructed on causation. In this court defendant argues only the facts and would have us reverse the jury because of manifest error in their factual conclusions. One fact relied upon by defendant to support a reversal is Dr. Ber-geaux’s testimony that plaintiff came to him on August 21, 1978, complaining about a sore throat but not about back pain.

Under the standards for appellate review of facts enunciated in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) it is incumbent on the appellate court to make a determination that the record establishes that the finding is not clearly wrong. From my own reading of the record, I concur completely with the majority’s summary of the facts of this case and affirm the jury verdict because the record establishes that the jury finding is not clearly wrong.

      . According to the testimony of Dr. Newman, an X-ray of a vertebra is theoretically rectangular, but if the height on one side is less than the other the vertebra is considered to be “wedged”.