author:
CUTRER, Justice Ad Hoc.
     DENNIS, Justice, DENNIS, Justice. LEMMON, Justice, BLANCHE, Justice WATSON, Justice,

text:
    STATE of Louisiana v. Marvin D. PARISH.
    No. 80-KA-1769.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    Dissenting Opinion Sept. 3, 1981.
    Opinion on Rehearing Oct. 16, 1981.
    Rehearing Denied Nov. 27, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Robert W. Gillespie, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Jeanette G. Garrett, Indigent Defender Program, Wellborn Jack, Jr., Jack, Jack, Cary & Cary, Shreveport, for defendant-ap-pellánt.
   CUTRER, Justice Ad Hoc.

By bill of information filed July 16, 1979, defendant, Marvin Parish, was charged with attempted aggravated rape, a violation of La.R.S. 14:42 and 14:27. A twelve-person jury found the defendant guilty as charged. The trial court sentenced him to twenty (20) years at hard labor. On appeal the defendant urges ten assignments of error as grounds for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NUMBERS 8 AND 9

The defendant, through these two assignments, contends that the conviction must be reversed because a rational trier of fact could not have found that the essential elements of the offense of attempted aggravated rape were proven beyond a reasonable doubt.

In resolving this issue, we must determine:

“. .. whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of facts could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The issue, therefore, is whether any rational jury could have found beyond a reasonable doubt from the evidence in this case that Williams obtained credit for the purchase or acquisition of money, goods or services.” State v. Williams, 389 So.2d 384, 385 (La.1980).

The defendant was charged with attempted aggravated rape.

Aggravated rape is set forth in LSA-R.S. 14:42. The pertinent part of this statute reads as follows:

“Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
1) Where the victim resists the act to the utmost, but whose resistance is overcome by force; or
2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution; ...”

The pertinent part of the attempt statute, as set out in LSA-R.S. 14:27, reads as follows:

“A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
“B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt; . .. .”

According to these statutes the state must prove that the defendant had the specific intent to commit aggravated rape upon Lynda Herzog and that the defendant performed an act for the purpose of and tending directly toward the accomplishing of his object.

The evidence most favorable to the state reveals the following:

On March 10, 1979, Lynda Herzog was alone in her apartment watching television and heard a knock on the door at approximately 11:00 P.M. When she answered the door defendant, Marvin Parish, stated that his name was Steve and that he was a neighbor and needed change for the laundromat. Ms. Herzog turned and walked away from the door to get some quarters. She testified that when she turned around the defendant had closed and locked the door and was standing immediately behind her. She bumped into him as she turned around. The defendant apologized and said he didn’t mean to scare her. She gave him change for a dollar and began slowly urging him toward the door, but the defendant did not leave. At that point she was frightened and attempted slowly to open a drawer behind her and get a butcher knife out but changed her mind when she thought he may try to take it from her. She stated that the defendant grabbed her by putting one hand over her mouth and one hand around her throat. He then told her he wanted to make love to her. She stated that during the episode he used the word “rape” in expressing his intentions. He told her not to scream or he would kill her. He grabbed and held her so tightly that she was unable to breathe. She began getting weak due to the pressure exerted upon her. In the struggle Ms. Herzog lost her contact lens and her blouse was torn and she received a small cut near her eye. After she promised not to scream by nodding her head, he released his hold on her. Ms. Herzog stated she was terrified and told him she would do anything he wanted so long as he didn’t hurt her.

Ms. Herzog then began talking to stall for time. She told him her son was due to come home at any time and that he had a gun. As instructed by defendant, she closed the drapes in the living room. She stated that the defendant grabbed her by the shoulder, neck and hair and began dragging her down the hall toward the bedroom. At that point he tripped over some clothing stacked in the hallway. More conversation ensued. He told her to undress or he would undress her. She kept talking to him and stalling for time.

Finally, the defendant, for reasons best known to himself, decided to discontinue his actions, at which time he apologized to Ms. Herzog and left. Ms. Herzog stated that during the course of events the defendant never took off any of his clothing, nor did he remove any of hers. She stated that the defendant’s zipper was partially unzipped and she noticed that he had an erection.

Ms. Herzog stated that she was approximately 5 feet 3 inches tall and weighed 120 pounds. She stated that the offender was approximately 6 feet tall and weighed 250 pounds.

After the defendant left, Ms. Herzog called a friend in Atlanta, Georgia, who told her to call the police. An officer arrived and took her complaint. A print was lifted from a beer bottle that the defendant left behind. Some months later defendant was arrested and fingerprinted on a Peeping Tom charge. In June his prints were matched with the print lifted from Ms. Her-zog’s apartment and he was arrested and charged with attempted aggravated rape.

These facts show that the defendant had the specific intent to commit the offense of aggravated rape upon Ms. Herzog. He lied to Ms. Herzog to gain entrance to her apartment; he unequivocally made known to her by his words and appearance that he intended to have sexual intercourse with her; defendant used physical force upon Ms. Herzog as he made his intention known; Ms. Herzog resisted his actions to the best of her ability, considering the comparative sizes of the defendant and Ms. Herzog; the defendant threatened her with death if she resisted; defendant dragged her down a hallway to a bedroom for the purpose of fulfilling his intended desires when he fell over the clothing. After the fall and more talking, stalling and pleading by Ms. Herzog, defendant abandoned his plan of action.

The words and actions of defendant fulfill the requirements of LSA-R.S. 14:27, in that, by using physical force upon her after making known to her that he intended to commit rape and especially by forcing her toward the bedroom for the purpose of committing the rape, he committed “an act for the purpose of and tending directly toward the accomplishing of his object” (aggravated rape). The record presents ample evidence for the jury’s verdict.

Assignments of error Numbers 8 and 9 are without merit.

ASSIGNMENT OF ERROR NUMBER 10

This assignment presents the issue of whether the sentence of twenty years at hard labor is excessive. The maximum sentence for attempted aggravated rape is fifty years at hard labor. The trial court did not conduct a sentence hearing, but did conduct a hearing on a motion by defendant to be released on bond. At this hearing considerable testimony was given by defendant’s parents, his wife and employer about defendant’s past emotional problems, his employment record and somewhat stormy marital situation.

The record reveals that the trial judge followed the sentencing guidelines prescribed by La.C.Cr.P. art. 894.1. In imposing the sentence he weighed the facts of the instant case. He pointed out that defendant threatened Ms. Herzog’s life; he used a ruse to gain entrance to Ms. Herzog’s apartment and there attempted to accomplish his objective with Ms. Herzog. No provocation emanated from Ms. Herzog. He pointed out that defendant had no prior delinquencies or,criminal activity but also noted:

".. . Counsel has acknowledged, as well as Mr. Parish, in prior conversation to the Court that Mr. Parish was in need of some type of psychiatric care and attention, .. .

He stated that this type of conduct was known to defendant and members of his family for a time before this incident. No such treatment had been sought or provided, however.

The court also had information before it that defendant had been charged with being a “Peeping Tom,” which charge arose after the incident in question. The court, after considering these factors, concluded that defendant would not respond affirmatively to probation. The court felt that defendant would again commit such a crime.

Having so concluded, and after further deciding that a lesser sentence would depreciate the seriousness of the crime committed, the trial judge imposed the sentence of twenty years at hard labor, less than one-half of the maximum of fifty years.

As we consider the favorable parole and good time laws applicable to incarcerated persons in this state, we conclude that, under the circumstances presented, the sentence does not constitute cruel or unusual punishment.

For the reasons set forth herein, the conviction and sentence are affirmed.

AFFIRMED.

DIXON, C. J., concurs.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The majority opinion does not recite additional undisputed facts favorable to the defendant which bear heavily on the issue of whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt of attempted aggravated rape: The victim could not recall who first brought up the word “rape” in the course of the defendant’s visit. The defendant did not attempt to take off his pants, unzip his zipper, or get on top of the victim. He never touched her breasts or her genital area.

In interpreting the articles of the criminal code all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision. La.R.S. 14:3. Accordingly, the closely related offense of forcible rape, La.R.S. 14:42.1, must be considered in determining the meaning of aggravated rape under La. R.S. 14:42(2) and in considering whether the evidence is sufficient to support the conviction.

In order to attempt to commit a crime an offender must actively desire to cause the specific results required by a particular criminal statute and do or omit an act for the purpose of and tending directly toward the accomplishing of his object. La.R.S. 14:10, 27.

Accordingly, in order to commit attempted aggravated rape, an offender must actively desire to commit rape by (1) overcoming the victim’s utmost resistance by force; (2) preventing the victim from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution; or (3) having anal or vaginal sexual intercourse with a victim under the age of twelve years. La.R.S. 14:42.

It is clear that the evidence in this case was sufficient to warrant a finding that the defendant actively desired to engage in sexual intercourse and that he did an act for the purpose of and tending directly toward the accomplishing of his object. It is equally clear, however, that the evidence in this case would not support a rational finding that defendant specifically intended to rape a victim under the age of twelve years or to overcome the victim’s utmost resistance by force. The victim in this case, a mature woman, was well over the age of twelve. The evidence shows without dispute that the unarmed defendant never exerted great force and abandoned his attempt before encountering strenuous resistance for no reason other than a change of heart. The evidence, thus, does not support a finding beyond a reasonable doubt that the defendant had an active desire to overcome the victim’s utmost resistance by force. Consequently, the only form of aggravated rape which the defendant could have actively desired was that “[w]here the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.” La. R.S. 14:42(2).

The legal definition of this form of aggravated rape is virtually identical to that of forcible rape. There is no essential difference between the specific results required by each crime definition. Both require that the victim be prevented from resisting by threat of great harm under circumstances where the victim reasonably believes that resistance would be futile. Compare La.R.S. 14:42(2) with 14:42.1. This court has held that forcible rape is merely a lesser degree of the crime of aggravated rape, permitting a responsive verdict, La.C.Cr.P. art. 814, subd. A(8) (as amended in 1975), to the charge of aggravated rape. State v. Drew, 360 So.2d 500 (La.1978); State v. Fletcher, 341 So.2d 340 (La.1976). The only distinction between aggravated and forcible rape is the degree of force employed and the extent to which the victim resists. State v. Turnbull, 377 So.2d 72 (La.1979). Nevertheless, the jury is authorized to subject a guilty defendant to more severe punishment by convicting him of aggravated rape rather than forcible rape. The penalty for aggravated rape is life imprisonment with hard labor without parole, probation or suspension, and the maximum sentence which may be imposed for forcible rape is forty years at hard labor.

Evidently, it was the legislative aim to divide the continuum of acts of coerced sexuál intercourse into two categories, aggravated rape and forcible rape, thereby assigning to the jury the function of fixing the range of permissible punishment for convicted offenders by returning a verdict which appropriately fits the crime and the degree of force employed. Accordingly, the question presented by the present case is whether any reasonable jury, viewing all of the evidence, in the light most favorable to the prosecution, could find beyond a reasonable doubt that the defendant actively desired to cause the specific results required by both the aggravated and forcible rape statutes and that the degree of force employed warranted punishment in the greater, rather than lesser, degree. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The evidence in this case is sufficient to warrant a jury’s finding that defendant actively desired to commit an act of sexual intercourse without the victim’s consent by preventing her resistance with a threat of great harm under circumstances where the victim reasonably believed resistance would have been futile. The victim testified that the defendant obtained entry to her apartment under false pretenses, seized her by the throat, clasped her mouth, said he wanted to make love, warned that he would kill her if she screamed, and dragged her toward a bedroom. She stated that he outweighed her about 130 pounds and was almost a foot taller.

The evidence does not constitutionally justify, however, the jury’s election to return a verdict of aggravated rape rather than forcible rape. Within the range of attempted coercive sexual acts, the offense in this case clearly falls among those involving a minimal use of force. Although the victim was frightened and perhaps disturbed psychologically, she was released substantially unharmed. The defendant abandoned his attempt for no reason other than a change of mind. He did not fondle the victim or subject her to any sexual indignity. The evidence viewed from the perspective most favorable to the prosecution does not support a finding beyond a reasonable doubt that the degree of force employed warrants punishment in the greater degree as attempted aggravated rape, rather than in the lesser degree as attempted forcible rape.

For the foregoing reasons, the defendant’s conviction and sentence for attempted aggravated rape should be reversed. However, defendant is not entitled to be discharged or receive a new trial. Attempted forcible rape, a lesser included offense was necessarily found in this case by the jury. See State v. Byrd, 385 So.2d 248 (La. 1980). Accordingly, the case should be remanded with instructions to enter a judgment of conviction of attempted forcible rape and to impose a sentence for that crime. Upon resentencing the trial court should consider, among other pertinent factors, the less serious nature of the crime of attempted forcible rape and the extensive mitigating circumstances of the case, not the least of which was defendant’s voluntary withdrawal from the attempt which in some jurisdictions constitutes a defense.

ON REHEARING

DENNIS, Justice.

We granted this rehearing to reconsider whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt of attempted aggravated rape.

In interpreting the articles of the criminal code all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision. La.R.S. 14:3. Accordingly, we must consider the closely related offense of forcible rape, La.R.S. 14:42.1, in determining the meaning of aggravated rape under La.R.S. 14:42(2) and in considering whether the evidence is sufficient to support the conviction.

In order to attempt to commit a crime an offender must actively desire to cause the specific results required by a particular criminal statute and do or omit an act for the purpose of and tending directly toward the accomplishing of his object. La.R.S. 14:10, 27.

Accordingly, in order to commit attempted aggravated rape, an offender must actively desire to commit rape by (1) overcoming the victim’s utmost resistance by force; (2) preventing the victim from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution; or (3) having anal or vaginal sexual intercourse with a victim under the age of twelve years. La.R.S. 14:42.

It is clear that the evidence in this case was sufficient to warrant a finding that the defendant actively desired to engage in sexual intercourse and that he did an act for the purpose of and tending directly toward the accomplishing of his object. We think that it is equally clear, however, that the evidence in this case would not support a rational finding that defendant specifically intended to rape a victim under the age of twelve years or to overcome the victim’s utmost resistance by force. The victim in this case, a mature woman, was well over the age of twelve. The evidence shows without dispute that the unarmed defendant never exerted great force and abandoned his attempt before encountering strenuous resistance for no reason other than a change of heart. The evidence, thus, does not support a finding beyond a reasonable doubt that the defendant had an active desire to overcome the victim’s utmost resistance by force. Consequently, the only form of aggravated rape which the defendant could have actively desired was that “[wjhere the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.” La.R.S. 14:42(2).

The legal definition of this form of aggravated rape is virtually identical to that of forcible rape. There is no essential difference between the specific results required by each crime definition. Both require that the victim be prevented from resisting by threat of great harm under circumstances where the victim reasonably believes that resistance would be futile. Compare La.R.S. 14:42(2) with 14:42.1. This court has held that forcible rape is merely a lesser degree of the crime of aggravated rape, permitting a responsive verdict, La.C.Cr.P. art. 814, subd. A(8) (as amended in 1975), to the charge of aggravated rape. State v. Drew, 360 So.2d 500 (La. 1978); State v. Fletcher, 341 So.2d 340 (La. 1976). The only distinction between aggravated and forcible rape is the degree of force employed and the extent to which the victim resists. State v. Turnbull, 377 So.2d 72 (La. 1979). Nevertheless, the jury is authorized to subject a guilty defendant to more severe punishment by convicting him of aggravated rape rather than forcible rape. The penalty for aggravated rape is life imprisonment with hard labor without parole, probation or suspension, and the maximum sentence which may be imposed for forcible rape is forty years at hard labor.

We conclude, therefore, that it was the legislative aim to divide the continuum of acts of coerced sexual intercourse into two categories, aggravated rape and forcible rape, thereby assigning to the jury the function of fixing the range of permissible punishment for convicted offenders by returning a verdict which appropriately fits the crime and the degree of force employed. Accordingly, the question we are called upon to decide is whether any reasonable jury, viewing all of the evidence, in the light most favorable to the prosecution, could find beyond a reasonable doubt that the defendant actively desired to cause the specific results required by both the aggravated and forcible rape statutes and that the degree of force employed warranted punishment in the greater, rather than lesser, degree. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The evidence in this case is sufficient to warrant a jury’s finding that defendant actively desired to commit an act of sexual intercourse without the victim’s consent by preventing her resistance with a threat of great harm under circumstances where the victim reasonably believed resistance would have been futile. The victim testified that the defendant obtained entry to her apartment under false pretenses, seized her by the throat, clasped her mouth, said he wanted to make love, warned that he would kill her if she screamed, and dragged her toward a bedroom. She stated that he outweighed her about 130 pounds and was almost a foot taller.

The evidence does not constitutionally justify, however, the jury’s election to return a verdict of aggravated rape rather than forcible rape. Within the range of attempted coercive sexual acts, the offense in this case clearly falls among those involving a minimal use of force. Although the victim was frightened and perhaps disturbed psychologically, she was released substantially unharmed. The defendant abandoned his attempt for no reason other than a change of mind. He did not fondle the victim or subject her to any sexual indignity. The evidence viewed from the perspective most favorable to the prosecution does not support a finding beyond a reasonable doubt that the degree of force employed warrants punishment in the greater degree as attempted aggravated rape, rather than in the lesser degree as attempted forcible rape.

For the foregoing reasons, we reverse and set aside the defendant’s conviction. However, defendant is not entitled to be discharged or receive a new trial. Forcible rape, a lesser included offense was necessarily found in this case by the jury. See State v. Byrd, 385 So.2d 248 (La. 1980). The conviction and sentence are reversed, the case is remanded with instructions to enter a judgment of conviction of attempted forcible rape and to impose a sentence for that crime. Upon resentencing, the trial judge is directed to duly consider, among other pertinent factors, the less serious nature of the crime of which defendant now stands convicted and the extensive mitigating circumstances of the case, not the least of which was defendant’s voluntary withdrawal from the attempt which in some jurisdictions constitutes a defense.

CONVICTION OF ATTEMPTED AGGRAVATED RAPE SET ASIDE; SUBSTITUTION OF ATTEMPTED FORCIBLE RAPE CONVICTION ORDERED; REMANDED.

LEMMON, J., concurs in the result only and assigns reasons.

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

MARCUS, J., dissents for reasons assigned by BLANCHE, J.

LEMMON, Justice,

concurring.

I concur in the decree, because the result of the vote by the members of this court dictates that defendant should be remanded for entry of a judgment of attempted forcible rape rather than discharged.

I initially voted with Justices Marcus and Blanche to affirm the conviction of attempted aggravated rape. Justices Dixon, Calogero and Dennis viewed the evidence as insufficient, in terms of degree of force, to support a conviction of attempted aggravated rape, and they voted to set aside that judgment and remand for entry of a judgment of attempted forcible rape under State v. Byrd, 385 So.2d 248 (La.1980). Justice Watson also viewed the evidence as insufficient to support a conviction of attempted aggravated rape. However, since he does not subscribe to the Byrd rationale and since he viewed the evidence as sufficient only to establish a simple battery, he voted to discharge the defendant.

Thus, there was a clear concurrence of a majority of the court in the view that the evidence was at least sufficient to support a conviction of attempted forcible rape. Nevertheless, there were initially not four votes either to affirm or to remand for entry of a judgment of attempted forcible rape. In order to attain a majority position and to prevent the possibility of defendant’s being discharged, I changed my vote to concur in the decree (which in effect orders a reduction to attempted forcible rape), despite my continued view that the evidence supports the jury’s verdict. I did so because (1) defendant is, in fact, guilty at least of attempted forcible rape — the jury implicitly so found, and the evidence supports that finding in the view of six members of this court, and (2) it would be a travesty of justice to discharge this convicted criminal when the evidence clearly supports his conviction on the lesser included offense.

APPENDIX

We granted a rehearing primarily to consider whether the evidence was sufficient to support the conviction of attempted aggravated rape or was only sufficient to support a responsive verdict of guilty of attempted forcible rape.

On the evidence in this record, considered in the light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that defendant made threats of great and immediate bodily harm, with the specific intent to prevent the victim from resisting the intended act of non-consensual sexual intercourse, when he had the apparent power to execute the threats. Therefore, the evidence supports a conviction of attempted aggravated rape.

The jury was instructed as to the elements of and penalties for both attempted aggravated and attempted forcible rape, and both offenses were listed as possible verdicts. Although the evidence would also support a conviction of attempted forcible rape, that choice of verdicts was for the jury to make. An appellate court should not “second guess” that choice.

This case is difficult because defendant withdrew before completing the rape, perhaps indicating that he never intended to carry out the threats that he had made (although he terrorized the victim by making her believe he would carry out the threats). Nevertheless, even if he voluntarily withdrew, he did so at a point in time after culpability for an attempt had already attached. The offense of attempted aggravated rape had been completed when defendant made the threats, under circumstances indicative of apparent power of execution, with intent to prevent resistance.

The considerations relative to defendant’s withdrawal were argued to the jury prior to the verdict (and to the judge prior to the sentence). It was the jury’s function to choose which of the two verdicts to return, when both were supported by the evidence. It is the function of this court to determine whether the verdict chosen by the jury was supported by the evidence and not to substitute our choice of verdicts for the choice of a unanimous jury.

BLANCHE, Justice

(dissenting).

I respectfully dissent. It is the jury’s function to review the testimony and evidence and to render a just verdict. Our role is to determine if that verdict is supported by the evidence. This writer would affirm the defendant’s conviction and quotes from the original opinion as follows:

“The words and actions of defendant fulfill the requirements of LSA-R.S. 14:27, in that, by using physical force upon her after making known to her that he intended to commit rape and especially by forcing her toward the bedroom for the purpose of committing the rape he committed “an act for the purpose of and tending’ directly toward the accomplishing of his object” (aggravated rape). The record presents ample evidence for the jury’s verdict.”

WATSON, Justice,

dissenting.

Defendant used the pretext of needing change to gain entrance to the apartment of the complaining witness. Parish told her he wanted to make love to her. When she appeared frightened, he placed his hand over her mouth to quiet her. Parish threatened to kill her if she screamed when he removed his hand. After she nodded to show acquiescence, he removed his hand, and she verbally consented to sexual intercourse. The witness did not recall who first brought up the word rape, but said it was discussed. After considerable conversation, during which he urged her to undress and she stalled, defendant attempted to drag her into the bedroom. After tripping over some clothing stacked in the hallway, he apologized and voluntarily left the apartment. There is no question that the witness was terrified and slightly battered.

There was no sexual intercourse here. An attempt to commit a crime is defined in pertinent part in LSA-R.S. 14:27 as follows:

“A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

“B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.”

Defendant obviously wished to have sexual intercourse with the witness. However, the purported victim could not testify that Parish was the one who introduced the idea of rape. An attempted crime requires the specific intent to commit that crime, defined as follows:

“Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1).

Specific intent is a state of mind which may be inferred from the circumstances. State v. Williams, 383 So.2d 369 (La., 1980). The evidence here establishes a specific intent to have sexual intercourse but not the intent to have intercourse without the victim’s consent. Although she believed he intended to rape her, defendant’s apologetic withdrawal negates any specific intention on his part to do that. Compare People v. Frysig, 628 P.2d 1004 (Colo., 1981).

Even if defendant had intended rape, he freely and voluntarily abandoned that purpose. See Bucklew v. State, 206 So.2d 200 (Miss., 1968). When he withdrew from the apartment, a specific criminal intent no longer existed if in fact it ever had. The law favors the voluntary retreat from criminal conduct. Wharton’s Criminal Law, Vol. 1, Sec. 226 (12th Ed. 1932). See People v. Kimball, 109 Mich.App. 273, 311 N.W.2d 343 (1981). One can assault a woman with the intention of persuading her to sexual intercourse without a specific intent to rape unless the woman is under the age of consent. Perkins On Criminal Law at page 764 (2d Ed. 1969). “[T]he conduct of the defendant was indecent and insulting, and subjected him to a conviction for an assault and battery; but it falls short of showing a felonious intent.” Jones v. State, 90 Ala. 628, at 631, 8 So. 383, at 384 (1890).

Defendant’s conduct was deplorable and inexcusable but falls short of showing a specific criminal intent. The evidence is insufficient to convince a rational trier of fact that defendant beyond a reasonable doubt had specific intent to rape. The defendant committed simple battery but this is not a responsive verdict to the crime of attempted aggravated rape. Therefore, the conviction and sentence should be reversed.

I respectfully dissent.

         Judges Cecil C. Cutrer, Jimmy M. Stoker and Ned E. Doucet, Jr., of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices ad hoc, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Pascal F. Calogero, Jr., James L. Dennis and Jack C. Watson.

      . Assignment of error Number 2 was not briefed or argued by the defendant; thus, it is considered abandoned on appeal. State v. Kenner, 384 So.2d 413 (La.1980).
      Assignments of error Numbers 1, 3, 4, 5, 6 and 7 present no reversible error, nor do they involve legal issues not governed by clearly applicable legal principles. Their disposition is noted in an appendix attached to this opinion, which remains a part of the record of this case, but will not be published with this opinion.

      . La.R.S. 14:42 provides:
      Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
      (1) Where the victim resists the act to the utmost, but whose resistance is overcome by force; or
      (2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution; or
      (3)Where the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.
      Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

      . Abandonment of an attempt to commit a crime where there is no outside cause is a defense in some jurisdictions. Minn.Stat.Ann. § 609.17(3) (1963); Fla.Stat.Ann. § 777.04(5)(a) (1974); Sparkman v. State, 84 Fla. 151, 92 So. 812 (1922). See also Wis.Stat.Ann. § 939.32 (1955); Model Penal Code § 5.01(4).

      . The trial judge correctly instructed the jury as to the essential elements and penalties of each offense. Where discretion is afforded a jury in such a manner that it actually participates in the sentencing function it must be instructed as to the penalties. Cf. State v. Williams, 392 So.2d 619 (La. 1980); State v. Washington, 367 So.2d 4 (La. 1978); State v. Milby, 345 So.2d 18 (La. 1977); State v. Prater,
        337 So.2d 1107, 1109, 1110 (La. 1976) (Tate, J., concurring) (Calogero, J., dissenting).

      . In his application for rehearing, the defendant calls to our attention additional facts favorable to his case which were not recited in the original majority opinion: The victim could not recall who first brought up the word “rape” in the course of the defendant’s visit. The defendant did not attempt to take off his pants, unzip his zipper, or get on top of the victim. He never touched her breasts or her genital area. Unquestionably, the evidence does establish these facts.

      . La.R.S. 14:42 provides:
      Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
      (1) Where the victim resists the act to the utmost, but whose resistance is overcome by force; or
      (2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution: or
      (3) Where the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.
      Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

      . Abandonment of an attempt to commit a crime where there is no outside cause is a defense in some jurisdictions. Minn.Stat.Ann. § 609.17(3) (1963); Fla.Stat.Ann. § 777.04(5)(a) (1974); Sparkman v. State, 84 Fla. 151, 92 So. 812 (1922). See also Wis.Stat.Ann. § 939.32 (1955); Model Penal Code § 5.01(4).

      . The trial judge correctly instructed the jury as to the essential elements and penalties of each offense. Where discretion is afforded a jury in such a manner that it actually participates in the sentencing function it must be instructed as to the penalties. Cf. State v. Williams, 392 So.2d 619 (La. 1980); State v. Washington, 367 So.2d 4 (La. 1978); State v. Miiby, 345 So.2d 18 (La. 1977); State v. Prater, 337 So.2d 1107, 1109, 1110 (La. 1976) (Tate, J., concurring) (Calogero, J., dissenting).

      . My reasons for voting to affirm the conviction are stated in an appendix attached to this concurring opinion.

      . Six members of the court (including the three who voted to affirm) believed the evidence at least supported a conviction of attempted forcible rape, which is a responsive verdict to attempted aggravated rape.

      .This is the very reason the Byrd procedure was judicially adopted.

      . With his hands on the victim’s throat defendant threatened to kill her. Because of the disparity in size he had the apparent power to do so. It can hardly be suggested that the threat was not made with the intent to prevent resistance.

      . Whether defendant voluntarily withdrew or was merely frustrated in his attempt, although not clear, is not dispositive of the question of culpability. See State v. Porter, 249 La. 784, 191 So.2d 498 (1966); People v. Staples, 6 Cal.App.3d 61, 85 Cal.Rptr. 589 (1970).

      .Arguably, these considerations are more properly directed, on appeal, to a review of the excessiveness of the sentence. Indeed, the 20-year sentence imposed in this case is the maximum sentence for attempted forcible rape.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Lafayette BALLARD.
    No. 80-KA-2360.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   ON APPLICATION FOR REHEARING

PER CURIAM.

Defendant Lafayette Ballard was convicted of two counts of aggravated rape. Following the procedure established by this Court, defendant’s appeal was screened and assigned to the summary docket. State v. Duhon, 340 So.2d 151 (La. 1976, on rehearing). The Court rendered a unanimous per curiam affirmance of defendant’s conviction, 400 So.2d 1375 (La.).

Defendant applied for a rehearing, again urging the insufficiency of the evidence to sustain a conviction, and contended that the Court ought not to have affirmed his conviction upon a less than complete record. In connection with this contention, we have secured a full transcript of the trial. Inspection of this transcript convinces us that there is no merit to defendant’s argument that the evidence does not support his conviction.

REHEARING DENIED.


text:
    STATE of Louisiana v. Gregory FOE.
    No. 81-K-1384.
    Supreme Court of Louisiana.
    May 28, 1981.
   In re Gregory Foe, applying for writ of certiorari or review and stay order. Parish of Orleans. No. 274-953.

Denied.


text:
    Richard DEASON, et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 80-C-1664.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re State Farm Mutual Automobile Insurance Company, applying for writ of certiorari or review, to the Court of Appeal, Third Circuit. Parish of Natchitoches. 386 So.2d 146.

Denied. The Court of Appeal was correct. See, Danos v. St. Pierre, 402 So.2d 633 (La.1981).

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


text:
    STATE of Louisiana v. Ernest McGEE, et al.
    No. 81-K-2631.
    Supreme Court of Louisiana.
    Oct. 2, 1981.
   In re Ernest McGee, applying for writs of certiorari, review and stay order. Parish of Orleans. No. 281-981.

Denied.


text:
    Application of Christian Marc GOUDEAU and Gary W. Sheffield.
    No. 81-O-2644.
    Supreme Court of Louisiana.
    Oct. 6, 1981.
   In re Christian Marc Goudeau and Gary W. Sheffield, applying for an order allowing them to be admitted to the Louisiana State Bar on October 9, 1981. Parish of Orleans. Number Unknown.

Granted. Relators are ordered admitted to the Louisiana State Bar Association on October 9, 1981. When relators have received diplomas, facsimiles of the diplomas shall be filed in this Court.


text:
    Brenda Bailey GAINES v. Ulis GAINES.
    No. 81-C-2659.
    Supreme Court of Louisiana.
    Oct. 6, 1981.
   In re Ulis Gaines, applying for supervisory writs of certiorari, prohibition, mandamus, review and stay order. Parish of Orleans. No. 81—4999.

Denied.


text:
    Application of John C. CAMPBELL.
    No. 81-B-2675.
    Supreme Court of Louisiana.
    Oct. 7, 1981.
   In re John C. Campbell, applying for an order allowing him to be admitted to the Louisiana State Bar on October 9, 1981. Parish of Orleans. Number Unknown.

Granted. Relator is ordered admitted to the Louisiana State Bar Association on October 9, 1981.


author: BOUTALL, Judge.

text:
    PLAN INVESTMENTS OF NEW ORLEANS, INC. v. Rosemary Harris, wife of/& Alvin FIFFIE.
    No. 12064.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1980.
    David S. Willenzik, New Orleans, for Plan Investments of New Orleans, Inc., plaintiff-appellant.
    Leonard K. Fisher, Jr., Boutte, for Rosemary Harris, wife of/& Alvin Fiffie, defendant-appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

This appeal raises the issue of whether the interest charged on a loan secured by a mortgage on immovable property is usurious, dependent upon the applicability of R.S. 9:3503, Civil Code Art. 2924, or R.S. 9:3510 et seq., the Louisiana Consumer Credit Law. The trial court held that the provisions of R.S. 9:3503, relating particularly to mortgages on immovable property, applied, forfeited the entire interest and awarded plaintiff only the unpaid principal due. Plaintiff has appealed.

Plaintiff, Plan Investments of New Orleans, Inc., sued Rosemary Harris, wife of/& Alvin Fiffie alleging a default in the payments due under the terms of the loan made to them on February 16, 1973. The loan was made to pay off certain debts of the defendants amounting to $6,089.59, resulting in a promissory note in the amount of $17,499.60, the difference being composed of various finance charges, legal charges, insurance charges and pre-computed interest. The note was secured by a mortgage on immovable property owned by the defendants as well as on a number of chattels, consisting mainly of furniture and appliances. Defendants paid fifty-three installments amounting to $7,728.99. Plaintiff sued for the balance due plus attorney’s fees, etc.

To this suit the defendants raised a number of defenses, some of which appeared to have been abandoned, and others not proven on trial. It should be noted that in this court the defendants neither filed brief nor appeared. The sole issue before us is the ruling of the trial judge that this was a mortgage on immovable property as limited by the terms of R.S. 9:3503, and that the interest charged was in excess of ten percent per annum as provided therein. We hold that the application of this law is erroneous.

We call attention to the fact that this loan was made on February 16, 1973, and that we must apply the law in effect at that time. A number of amendments have been made to the pertinent laws thereafter. We conclude that the provisions of the Louisiana Consumer Credit Law, R.S. 9:3510 through 3568, as stated in Act No. 454 of 1972, are the regulations which govern this transaction.

That statute defines a consumer loan in R.S. 9:3516 (13) as a loan of money not exceeding $25,000.00 in principal amount made by a supervised financial organization, a licensed lender, or lender in which the debtor is a consumer, but does not include a loan on immovable property if the loan finance charge does not exceed ten percent simple interest per annum. No issue was raised in the trial court or in this court as to the status of the plaintiff as a licensed lender, etc. Section 3514 permits the parties to a transaction other than a consumer credit transaction, which includes a consumer loan, to contract with one another that the transaction shall be subject to the provisions of that law, in which event the transaction shall be a consumer credit transaction within the provision of the act. Both the promissory note and the mortgage executed by the defendants contain such a contract.

Additionally, we note that the definition of consumer loan as stated above only excludes loans on immovable property if the loan finance charge does not exceed ten percent simple interest per annum. In comparing the provisions of this act with the provisions of R.S. 9:3503 and 3506, it is apparent that the terms of the documents are such as to remove them from the limitations expressed in Sections 3503 and 3506 and bring them under the provisions of the Consumer Credit Act. Similarly, we note that Act 454 of 1972 also amended the provisions of Civil Code Article 2924 to exempt its provisions from a consumer credit transaction as defined by the Louisiana Consumer Credit Law.

Accordingly, we hold that the decision of the trial court should be amended and that plaintiff is entitled to recover under the terms of the promissory note in accordance with the Consumer Credit Law. We find that the plaintiff has not violated the maximum loan finance charge set out in R.S. 9:3519. The evidence shows that the balance due on the account after a rebate of the unearned insurance and unearned finance charge was $7,649.10. Although the appellant urges to us that he is entitled to additional interest on that amount at the loan rate of 17.75%, his prayer only prays for eight per cent per annum interest from January 1, 1978, until paid, and we are compelled to award the interest only as prayed. Additionally, we award twenty-five percent of the aggregate of principal and interest as attorney’s fees in accordance with the terms of the promissory note.

For the above reasons, the judgment appealed from is amended and there is now judgment in favor of Plan Investments of New Orleans, Inc., and against Rosemary Harris, wife of/& Alvin Fiffie in the amount of $7,649.10, together with eight percent per annum interest from January 1, 1978, until paid, and for twenty-five per cent on the aggregate of said principal and interest as attorney’s fees, and for all costs of these proceedings in both courts.

AMENDED AND AFFIRMED.


text:
    CITY & COUNTY OF SAN FRANCISCO & Eda Fuentes v. Gene A. JUERGENS.
    No. 12110.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1980.
    John M. Mamoulides, Dist. Atty., Parish of Jefferson, William C. Credo, III, Trudy Ann Black, Asst. Dist. Attys., Parish of Jefferson, Gretna, for City & County of San Francisco & Eda Fuentes plaintiffs & appellants.
    Carol Lynn Doskey, New Orleans, for Gene A. Juergens, defendant-appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

The City and County of San Francisco appeals a judgment of the Jefferson Parish Juvenile Court under the Uniform Reciprocal Enforcement of Support Act, R.S. 13:1641 et seq., which held that a former husband did not have to reimburse San Francisco for public assistance payments made to the former wife for the support of their child.

The general facts argued to us indicate that the defendant, Gene A. Juergens, was married to Eda Fuentes on June 10,1970, in San Francisco, California. The couple then established a domicile in New Orleans, Louisiana, where a child was born on April 1, 1972. On June 14, 1972, in the Juvenile Court of New Orleans, the wife received a judgment for child support in the amount of $70.00 every two weeks. Child support payments were made in accordance with the judgment up until the time that Juer-gen’s wife left the jurisdiction with the baby without leaving any indication where she was going. Although Mr. Juergens continued to reside in the area and his address was always easily ascertainable, his wife obtained a divorce in Puerto Rico in 1975 without the knowledge of Juergens and later remarried another man. Juer-gens subsequently obtained a divorce in Jefferson Parish through service on a Curator in September of 1978.

In the meantime, Mrs. Juergens applied for Aid to Families with Dependent Children from the City and County of San Francisco in October, 1976, and received aid until August, 1979, when she remarried. The support received began at the rate of $221.00 per month and was increased until she was receiving $371.00 per month when assistance was terminated, for a total of $9,377.00. It is this amount which the appellant seeks to recover from Juergens.

The problem in this case is the state of the record. Although the above facts were argued to us, plus other facts not; mentioned, there is very little in the record upon which we can make a proper assessment of the true facts. The trial judge found certain facts in his reasons for judgment which he dictated into the record. However, it also appears that he relied upon facts ascertained in pretrial conference and documents not found in the record before us. Ordinarily, the trial judge’s opinion is considered to be correct where the record is lacking, and we have considered applying that rule in this case. However, the documents that are in the record (and we especially refer to some answers to interrogatories by the former wife) show the unavailability of Juergens and the fact that it was he who deserted the wife and child. Apparently, Mr. Juergens would testify to an opposite set of facts, and if the judicial documents referred to are in existence, they would seem to indicate that the testimony of the former wife is incorrect. However, we have nothing against which to assess her testimony.

In this regard, we deem it important to point out that, while a state or political subdivision furnishing support to an obligee has the same right as the obligee to initiate a proceeding under the Reciprocal Act in Louisiana, R.S. 13:1662, the duty of support applicable to the obligor is that imposed under the laws of the state where the obli-gor was present for the period during which the support is sought, R.S. 13:1661. Under the facts argued to us, when the husband successfully applied to the New Orleans Juvenile Court and obtained cancellation of that judgment requiring child support, the possibility arises that it then became necessary to establish another judicial pronouncement of support against him. In this present proceeding, we note that the trial iudge stated that he would grant a current judgment of support, but that the proceeding was only to recover amounts paid in previous years without attempting to notify the obligor of the existence of the payments.

Because of the state of the record, we are not able to arrive at a factual determination upon which to apply the law, and accordingly, we must remand this matter to the trial court for evidence.

It is decreed that this matter be remanded to the Juvenile Court of Jefferson Parish for the purpose of holding an evidentiary hearing to ascertain the facts of this case and both parties are entitled to produce whatever additional evidence may be relevant and proper under the circumstances.

REMANDED.

      . California’s law is identical in Sections 1670 and 1671.


text:
    Joan Louque, wife of/& Lincoln LOUQUE v. JACK ECKERD DRUG STORE NO. 523, d/b/a Eckerds Drug Store, et al. Daniel E. Becnel, Jr., Intervenor.
    No. 12143.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 22, 1980.

      Michael K. Heltz, Kliebert, Heltz & Klie-bert, Gramercy, for Joan Louque, wife of/& Lincoln Louque.
    Daniel E. Becnel, Jr., Reserve, in pro. per.
    Before SAMUEL, BOUTALL and CHE-HARDY, JJ.
   BOUTALL, Judge.

This appeal is from a judgment awarding $3,500.00 to an attorney who was discharged before the case was settled. The trial judge based his decision on the employment contract existing between the attorney and the client. We affirm.

The relevant facts are not in question. On March 2, 1978, Joan Louque incurred an injury to her foot when she slipped on the floor in Eckerd’s Drug Store. She retained Daniel E. Becnel, Jr., as her counsel by signing a contingency fee contract. The contract also provided the plaintiffs the right to discharge Becnel in the event of their dissatisfaction. The contract provided in part:

“If a claim is based on third party tort liability and/or negligence: I assign and transfer thirty-three and one-third (33/3%) percent of my claim of which amount is received in settlement of this matter to my above named attorney. It is understood that should my attorney find it necessary to file a suit on my behalf in order to enforce recovery of my damages that I assign thirty-five (35%) percent of my claim for his services. If appealed forty (40%) percent of my claim.
******
“4. I understand I have the right to change attorneys at any time but should I change attorney, it is specifically understood and agreed that a fee of $100.00 per hour will be charged for any and all professional legal services and/or investigative work performed by Daniel E. Bec-nel, Jr., his law office investigators, or office personnel.
“5. It is specifically understood that all work hours are to be kept and maintained by Daniel E. Becnel, Jr., whose total number of hours will exclusively govern this part of the contract should I decide to change attorneys.”

As a result of her accident, Joan Louque’s foot was placed into a cast and later required surgery. Becnel filed suit on April 28, 1978, on behalf of the Louques. He prepared the case for about one year while attempting to settle the claim with Eckerd’s insurance company. During that time, Bec-nel did a considerable amount of work toward the handling of the case. He met with Joan Louque several times and communicated with her frequently by telephone and letters. He sent letters and talked with defendant’s counsel and insurance adjustor on many different occasions. Becnel spoke with witnesses and doctors and subpoenaed them for trial. He also prepared the plaintiffs for depositions taken by the defendant. In effect, he did most of the work necessary to prepare a case for trial. In the meantime, Becnel received several offers to settle but did not on account of the plaintiffs’ wishes. Becnel received an offer of $10,000.00 to settle the case before he was discharged in favor of Michael K. Heltz in April, 1979. Heltz later settled the case for $18,700.00.

Under the terms of the employment contract, Louque was given the right to remove Becnel as attorney. If settlement had been made, Becnel would have been entitled to recover a percentage of the settlement, in this case thirty-five. (35%) percent. However, the plaintiffs discharged Becnel before a settlement took place. Accordingly, Becnel is entitled to receive $100.00 per hour for representing the Lou-ques up until his discharge.

While plaintiffs do not dispute the hourly rate, they do dispute the number of hours that Becnel actually worked. He did not comply with the terms of the agreement because he did not keep a record of his working hours. The trial judge found, from his consideration of the evidence, that thirty-five hours of work was a reasonable conclusion and our own examination of the record convinces us there is no error in this conclusion.

In the absence of evidence of precise times or expert testimony, the trial judge should be allowed to call upon his own experience and expertise in determining the amount of time that a lawyer has put into the preparation of a case. The principle here is similar to those expressed in the cases of Fiasconaro & Fiasconaro v. Orlando, 342 So.2d 1261 (La.App. 4th Cir. 1977); Lynch v. Burglass, 286 So.2d 170 (La.App. 4th Cir. 1973), wherein the trial judge relied on his own expertise in the valuation of legal services rendered by an attorney for the handling of a particular case. Accordingly, we conclude Becnel is entitled to $3,500.00 for thirty-five hours of work multiplied by $100.00 per hour.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.


author: PEREZ, Judge. PER CURIAM.

text:
    U-HAUL COMPANY OF SOUTHERN LOUISIANA v. Curtis LUMZY.
    No. 11852.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Per Curiam On Denial of Rehearing Nov. 20, 1981.

      Henican, James & Cleveland, Andrew I. Brown, New Orleans, for defendant-appel-lee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Howard E. Sinor, Jr. and Mark C. Andruss, New Orleans, for plaintiff-appellant.
    Before GULOTTA, SCHOTT and PEREZ, JJ.
   PEREZ, Judge.

This suit arises out of a contract of lease between plaintiff-appellant, U-Haul Company of Southern Louisiana, and defendant-appellee, Curtis Lumzy.

On September 12, 1978, Lumzy rented a truck from U-Haul’s Newton Street office in order to move and store his family’s personal effects. Unable to promptly find a permanent residence, Lumzy kept the truck for a longer period than originally contracted for. On September 18, 1978, the U-Haul truck, along with Lumzy’s personal effects contained therein, were seized by U — Haul agents from the parking lot of the Oakwood Shopping Center, where Lumzy was an employee of the Butler Shoe Store. The following day Lumzy attempted to obtain his property, but was unable to do so due to additional charges imposed by U— Haul, representing transportation, storage, and re-rental fees.

Suit was then filed by U-Haul seeking to collect $972.19 plus interest and costs which reflected $267.16 for rental of the truck, $650.00 for 10 months storage of Lumzy’s personal effects, and $55.03 for sales tax.

As plaintiff in reconvention, Curtis Lum-zy sought $10,000.00 in damages from U— Haul for the wrongful seizure of his personal property contained in the truck.

The trial court awarded U-Haul, on the principal demand, $267.16 for actual rental of the truck for seven days. On the recon-ventional demand, the trial court awarded Lumzy $5,000.00 in damages for the wrongful seizure of his personal property.

The issues to be considered by this court are whether a wrongful seizure took place and the amount of damages awarded.

U-HAUL’S SEIZURE

On September 12, 1978, Mr. Lumzy rented a truck from U—Haul’s Newton Street Office. By the terms of the rental contract, the truck was to be returned on September 13, 1978. The testimony at trial revealed that Lumzy was unable to find a residence to store his property before September 13th. Over objection from attorneys for U-Haul, the trial judge permitted Lumzy’s testimony which provided that an employee of U-Haul gave him an extension of the contract over the phone. U-Haul maintains that Lumzy’s case for wrongful seizure is based upon hearsay or parol evidence introduced to prove an extension of the original rental term.

We do not agree. Irrespective of the existence of any extension on the original lease term, U—Haul was bound to follow Louisiana Law in enforcing any right of seizure or forfeiture. Louisiana Law does not provide the lessor with the right to self-help.

Louisiana Revised Statutes 9:3261 deals specifically with the options granted a lessor of movable property upon default of the lease agreement:

“In the event of default by lessee, the lessor of movable property has the right to enforce judicially all of his rights under the lease contract, including, if the lease so provides, his right to accelerate all rentals that will become due in the future for the full base term of the lease, or to cancel the lease and to exercise the rights granted him under this chapter.”

The key provision in the statute is that the lessor has the right to “enforce judicially” his rights under the contract. However, in the present case, U-Haul did not judicially enforce its rights by obtaining a writ of seizure (R. S. 9:3268). On the contrary, U—Haul seized the truck along with its contents, after receiving a phone call from a security guard at the Oakwood Shopping Center. Although U-Haul was furnished with Lumzy’s phone number at his place of employment, he was not contacted, or otherwise put on notice that the truck and its contents was to be seized.

Appellant, U-Haul, relies on Civil Code Articles 3217 (6), 3224, 3225, 3226 and the case of Hopper v. Bills, 255 La. 628, 232 So.2d 296 (1970), to support its contention that the seizure was lawful, and a privilege applied to the personal effects of the truck.

We distinguish Hopper on a factual basis. In Hopper, an overturned truck on a state highway was caused to be removed by a state trooper, acting within his authority (LSA R. S. 32:2), who called upon a wrecker service to remove the truck. There was no lease agreement, as in the case at bar, and the trooper in Hopper had authority to remove the truck.

Such are not the facts in the present case. U-Haul did not have the authority to remove the truck. Louisiana Law (LSA R. S. 9:3261 et seq.), and the terms of the contract precluded U-Haul’s actions. U— Haul’s contract provided in part:

“. . . Lessor shall have the right to execute this lien after reasonable effort of notice to customer advising of the intent and date of said execution.”

Civil Code Articles 3217 (6), 3224, 3225, and 3226 give the lessor a privilege on items seized, but the privilege merely gives the creditor the right to collect his debt in preference and priority to other creditors. It does not give the creditor the right to resort to self-help.

Additionally, most of the items seized by U-Haul fall within the exception contained in Article R. S. 13:3881 governing seizure:

“A. The following income or property of a debtor is exempt from seizure under any writ, mandate, or process whatsoever:
(1) . . .
(2) . . .
(3) . . .
(4) The clothing, bedding, linen, chinaware, non-sterling silver, glassware, living room, bedroom, and dining room furniture, cooking stove, heating and cooking equipment, kitchen utensils, pressing irons, washers, dryers, refrigerators, deep freezers, (electric or otherwise) used by him or a member of his family . .

Succinctly, U-Haul improperly seized Lumzy’s articles without judicial process, and many of the articles were exempt from seizure.

DAMAGES

Testimony at the trial revealed that defendant, Lumzy, was without the use of his personal property for some 18 months. During that period of time, he and his family slept on floors, borrowed clothes and footwear, and in general suffered a significant hardship in being denied the use of his personal effects.

Although the actual value of the property seized was less than the $5,000.00 awarded by the trial court, we do not find the damages excessive. Lumzy, having been denied the use of his items for such a period of time, is allowed to recover for anguish, humiliation and embarrassment incident to the seizure. Boisdore v. International City Bank & Trust Company, 361 So.2d 925, (La.App. 4th Cir. 1978); Hernandez v. Horson, 237 La. 389, 111 So.2d 320 (1959).

We affirm the decision of the trial court at appellant’s costs.

AFFIRMED.

PER CURIAM.

In his application for rehearing, Curtis Lumzy, defendant-appellee, correctly points out that we failed to give a credit to him in our original opinion and decree in the amount of $75.00 which represents the deposit paid by him as required by the rental contract and that the judgment on appeal did not include interest. Accordingly, we do hereby give to the said Curtis Lumzy, defendant-appellee, a credit in the amount of $75.00 which represents the deposit made by him and further amend the judgment on the reconventional demand to include legal interest from date of judicial demand until paid.

Further, in his application for rehearing, defendant-appellee again requests attorney fees, and we find that there is no entitlement of attorney fees on behalf of defendant-appellee.

In all other respects the application for rehearing is denied.

ORIGINAL DECREE AMENDED

REHEARING DENIED.

SCHOTT, J., concurs in amendments but would grant rehearing to defendant-appel-lee.

SCHOTT, Judge, concurs in amendments but would grant a rehearing to defendant-appellee on his request for attorney fees. Moore v. Goodyear Tire and Rubber Co., 364 So.2d 630 (La.App. 2nd Cir. 1978).


author: REDMANN, Judge.

text:
    Joan Oliver, wife of/and Donald OLIVER v. Sam P. CAPITANO, John Doe & ABC Insurance Company.
    No. 11868.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.
    On Rehearing Oct. 5, 1981.
    Writs Denied Dec. 4, 1981.

      Turner & Young, Emile L. Turner, Jr., George P. Hebbler, Jr., New Orleans, for plaintiffs-appellants.
    Burton G. Klein, Klein & Klein, Sessions, Fishman, Rosenson, Boisfontaine & Nathan, James Ryan, III, Leonard W. Martin, Paul S.Hughes, New Orleans, for defendant-ap-pellee.
    Before REDMANN, BARRY and KLIE-BERT, JJ.
   REDMANN, Judge.

Does an insane person’s failure to respond reasonably self-protectively towards a dump-truck’s presence in her vicinity constitute contributory negligence barring her recovery of damages resulting from the dump-truck driver’s backing over her without looking? We answer no, reversing a judgment on jury verdict to the contrary. Our view is that the very purpose of obliging a truck driver to look and to see (in addition to sounding a warning) as he or she backs up is to avoid running over a person in his or her path who might not be able to save himself or herself because of infancy, deafness or insanity, or because physically prevented from escape, or because of a similar reason. Our temporarily insane plaintiff’s insanity cannot be counted contributory negligence, any more than a deaf person’s deafness could, because those and similar conditions are precisely the reasons for the truck driver’s duty in the first place.

Insanity may be an unwelcome word to describe plaintiff wife’s mental condition, but it fits her bizarre behavior of the whole night before this morning accident. Plaintiff had a history of mental illness. From 8 p. m. the night before the accident she roamed her neighborhood in mental distress. At 2 a. m. she awakened a Baptist minister. She was then picked up by the police who called her husband, who came to take her home. She left again. At 5 a. m. she awakened neighbors to scream to them that her husband was trying to kill her, and had brought her to a black Mass where many important people tried to force her to do “horrible things” including bestiality. The neighbors called a Catholic priest, who came at 5:40 a. m. and stayed until 6:15, then took her to 6:30 Mass and thence to her home, which she asked him to exorcise. The priest offered a blessing of the house, but when he would not kneel (because of arthritis) plaintiff left again to resume her wandering. Between 8 and 8:30, another neighbor saw her, dancing and climbing on earth-moving equipment in a vacant lot next door. At about 9:30 she last returned home and went out again, going to another vacant lot, where the accident occurred.

Plaintiff testified that she knelt in the middle of the lot, looking towards its rear. She heard and then saw a truck entering the lot but turned back to her original position. The truck ran over her (moving forward, she said).

Defendant truck driver testified he could not have rolled over plaintiff and his testimony concerning his movements in the lot dumping sand would support a conclusion that he was not the cause of her injury. The jury, however, expressly found that his truck did “strike or roll over Mrs. Oliver, causing her injuries.” We add that her injuries (discussed in connection with quantum) are consistent with that conclusion, which, in any event, we cannot in the proper discharge of the function of an appellate court set aside as clearly wrong. Arceneaux v. Domingue, La. 1978, 365 So.2d 1330.

The jury’s finding of negligence on defendant driver’s part is attributable to his testimony that he backed into the lot (as he had with several earlier loads of sand) without having his helper get down to assist him in seeing that the path was clear, relying instead on two rear-view mirrors (each with a wide-angle “spot”) and the automatic bell that sounded as the truck backed up. The driver testified that he had not yet moved his truck forward after dumping his load when his assistant found plaintiff at about 11 a. m.

The jury’s finding of contributory negligence on plaintiff’s part can only be attributed to the trial judge’s instructions on law. Following a similar instruction as to the motorist the court instructed:

A pedestrian, or someone not in a vehicle, is also required to exercise ordinary, reasonable care, and he should not expose himself to danger or to harm, intentionally or otherwise.

Then, in addressing the defense of contributory negligence, the judge described defendant’s burden as:

to establish, by a preponderance of the evidence, that Mrs. Oliver failed to use ordinary and reasonable care for her own safety, and that this failure caused her injuries. ... If you conclude ... that Mrs. Oliver’s contributory negligence was a proximate cause of her injuries, then you should render a verdict [for defendants].

We deem it clearly wrong to require of an insane person “reasonable care for her own safety” unless counterbalanced by instruction on duty-risk as found in Baumgartner v. State Farm Ins. Co., La. 1978, 356 So.2d 400, or at least on last clear chance as found in Baumgartner and Pence v. Ketchum, La. 1976, 326 So.2d 831.

Plaintiff objected to these instructions as inconsistent with Baumgartner and Jones v. Rousseau, La.App. 4 Cir. 1979, 370 So.2d 600, writ refused 372 So.2d 1046 and 1047. Those cases surely rule that contributory negligence is not a bar to a pedestrian’s recovery from a negligent motorist, but defendants argue they are inapplicable in respect to a person kneeling in a vacant lot towards whom a loaded dump-truck is backing. We disagree.

The Baumgartner principle, as foretold in Guilbeau v. Liberty Mut. Ins. Co., La. 1976, 338 So.2d 600, is equally applicable whenever the menacing momentum of a massive automotive vehicle intrudes upon the nonmenacing presence of a person not also operating an automotive vehicle. Indeed, Guilbeau itself seems authority for holding defendant truck driver liable, for its basic facts, a truck backng into one not in a vehicle, are the same as ours.

The fundamental duty-risk analysis of Baumgartner, like that of Boyer v. Johnson, La. 1978, 360 So.2d 1164, and of Rue v. State Dept. Hwys., La. 1979, 372 So.2d 1197, is applicable here. When a duty is imposed upon one person for the purpose of eliminating a risk of injury to a second person from the second person’s own inattention, lack of skill, or negligence, the fact that the second person was inattentive, unskillful, or negligent cannot free the first person from responsibility for breach of the duty to protect against precisely the fault that occurred. Thus Boyer holds that because the duty not to employ children to operate dangerous machinery intends to protect them from the risk arising from their youthful inexperience and unwisdom — their own lack of skill — then the fact that that very lack of skill caused their injury cannot be a defense: if it is, the duty is simply unenforceable. Similarly, as in Rue, if the duty to provide reasonably safe shoulders along a highway intends to protect even inattentive drivers who leave the road, then inattentive drivers’ leaving the road cannot bar recovery as if contributory negligence. As Baumgartner indicates, if the law declares it one’s responsibility to protect another against that other’s own drunkenness (see also Pence), the law cannot at the same time declare that the one thus made responsible is not responsible precisely because of that other’s own drunkenness.

The determinative question is whether a dump truck driver’s obligation to see where he is backing and so to avoid running over persons (or property) includes among the risks it intends to avoid the risk that a person of unsound mind might be in the truck’s path and be prevented by unsoundness of mind from escaping the truck. We have already revealed our view. We deem the truck driver’s duty owed to every person in his path. The reasonably prudent person would move out of the truck’s path, but some persons have disabilities that prevent their moving, yet the truck driver’s duty is owed to them, whether their own failure to protect themselves is caused by simple inattentiveness as in Guilbeau and Rue, youth as in Boyer, drunkenness as in Pence and Baumgartner, or mental illness (perhaps even a suicidal oblivion) as here.

We therefore reverse on liability and cast both the truck driver and plaintiff’s own insurer on its uninsured motorist coverage.

Quantum

Plaintiff wife’s counsel is perhaps partisan but not unfair in saying her “injuries are devastating but, through determination and courage, her permanent injuries are moderate in nature.” The principal original injuries were a laceration of her left ear lobe (not appreciable in later pictures), puffiness of the face, fracture (“with slight angulation”) of the left upper arm, “multiple” rib fractures and sternum fracture, compression fracture of lumbar vertebra, fracture of the pubic ramus, rupture of the urinary bladder, and tissue damage to the upper left thigh. Those injuries required surgery to repair the torn bladder (including further exploration to assure that no other organ was damaged) and surgery (because plaintiff’s noncooperative mental condition contraindicated the ordinary, nonsurgical treatment) to stabilize the upper arm fracture with a plate. The vertebral fracture later required use of an individually-molded corset. The rib, sternum and pelvis fractures were not displaced so as to require any treatment but rest and analgesic. The principal permanent injuries, fortunately, are only the scar on the upper arm and the cystic tissue on the upper leg and the probability of osteoarthritis from the fractured vertebra. Other damages include future medical expenses for removal of the arm plate and possibly plastic surgery on the arm scar and leg tissue.

We conclude that substantial reparation will be had by an award of $80,000 to plaintiff wife, to include general damages and possible future medical expenses, and $15,663.47 (including court costs in Dr. Merlin’s lawsuit for his $850 fees) to plaintiff husband for past medical expenses.

Third-Party Demand

La.R.S. 22:1406 D(4) entitles an uninsured motorist insurance carrier, to the extent of its payment to any person, to the

proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made ....

Niemann v. Travelers Ins. Co., La. 1979, 368 So.2d 1003, 1007, rules:

On the basis alone of statutory interpretation, we find that the UM insurer has no right under R.S. 22:1406 D(4) other than the right to reimbursement from such proceeds, if any, that the uninsured in fact recovers from the underinsured tort-feasor.

We note that this court, in Pons v. State Farm Mut. A. Ins. Co., La.App. 4 Cir. 1980, 387 So.2d 47, writ granted 393 So.2d 743, had taken the position that Niemann did not prevent a judgment for the UM carrier over against the underinsured tortfeasor if the tortfeasor were sued together with the UM carrier (rather than released as in Niemann). The Supreme Court’s grant of writs, however, deprives Pons of authority.

We now decide that Niemann obliges us to hold that the uninsured motorist insurance carrier is not entitled to judgment over against the tortfeasor, not even one joined as a defendant. Niemann allows “no right . . . other than the right to reimbursement from such proceeds, it any, that the insured in fact recovers . . . . ” Although Niemann treats an underinsured rather than an uninsured motorist, the “statutory interpretation” is the same and Niemann is controlling.

Decree

Reversed; judgment for Joan Oliver for $80,000 and for Donald Oliver for $15,-663.47, each against both Sam Capitano and State Farm Mutual Automobile Insurance Company in solido (but without contribution or indemnity), with interest from judicial demand and all costs.

ON REHEARING

We granted rehearing primarily to reconsider the uninsured motorist insurer’s third-party demand against the tortfeasor, in view of Suhor v. Gusse, La. 1980, 388 So.2d 755, 757, n. 5:

Although insurance was available to plaintiff under the uninsured motorist provisions of the State Farm Mutual policies, such insurance was not available to Mr. Bellow and Mrs. Gusse [the defendant tortfeasor and her father, who pleaded poverty] because the uninsured motorist insurer, if cast in judgment, would be entitled to indemnity from them. (Bracketed matter added.)

Our original opinion denied indemnity in indistinguishable circumstances because we overlooked the quoted language, the latest expression from the supreme court.

We now reverse ourselves on the third-party demand and delete our denial of contribution or indemnity, and in lieu thereof grant indemnity and judgment over in favor of State Farm and against Capitano. Our judgment is in other respects reinstated.


author: SCHOTT, Judge.

text:
    Leontine Wilson, Wife of/and Willie WILSON v. The HERTZ CORPORATION and Mac D. Waldrup.
    No. 12205.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 5, 1981.

      Patrick E. Jones, Bartholomew & Jones, Metairie, for plaintiffs-appellants.
    Emile L. Turner, Jr., Turner & Young, New Orleans, for defendants-appellees.
    Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

At the end of the trial of this case the issues were submitted to the jury on written interrogatories. The first two were concerned with liability, which is not in dispute on this appeal, and the third was as follows:

“What damages were incurred as a proximate result of the accident?
(a)General damages $_
(b) Medical expenses $_
(c) Cost of domestic services $_”

The jury inserted $2,000 as the answer to question 3(a) and zeros in answer to 3(b) and (c). In this appeal taken by plaintiff the principal issue is whether she is entitled as a matter of law to an award for medical expenses and the cost of domestic services since she was awarded general damages. She also contends that the general damage award was inadequate.

Following the accident on August 31, 1976, plaintiff sought treatment at the Baptist Hospital in New Orleans. On September 3, she consulted an orthopedist, Dr. Ma-nale, with complaints of pain and limited motion in her low back. Upon examination, Dr. Manale noted some muscle spasm in the back and diagnosed a severe sprain. He prescribed bed rest and medication and recommended against house work for three weeks. However, on September 8 Dr. Ma-nale hospitalized plaintiff because she complained of severe pain, was not improving and was believed to have blood in her urine. During the ensuing eight-day hospitalization she was given pelvic traction. By early October she appeared to be getting better but Dr. Manale felt she needed help with her household chores. By November 8 the doctor found her much better with a full range of motion and “dramatically improved.” She next saw Dr. Manale on December 17, 1976, when he found her “doing very well.” On March 4, 1977, he found that she had a good range of motion, with minimal symptoms of the back and having no significant problem. He also determined that she had just recently been hospitalized at Hotel Dieu Hospital for phlebitis. He next saw her on October 31, 1977, and he found that she had “about 90% of motion of her spine, almost normal.” Finally, on December 5, 1977, he learned that she had been hospitalized once again for phlebitis.

Rose Ella Lee testified that she did house work for plaintiff for about ten weeks after August 31 and was paid $755 for this work.

Defendants established that plaintiff had been in two previous automobile accidents, one on July 16, 1976, and the other on August 1, 1976. She filed suit for damages arising out of the July accident in November, 1976, and settled that case on August 4, 1977, for $2945. In November, 1976, she settled her claim arising out of the August 1, 1976, accident for $1415.

According to plaintiff, the first accident occurred when the automobile in which she was a passenger was struck by a police car from the rear. She consulted a Dr. Adams with complaints that her chest and neck, and possibly her back, were hurting. While she was going to Dr. Adams and having heat treatments she was again the victim of a rear end collision while a passenger in a taxicab and this time consulted a Doctor Figueroa. She testified that she complained to him about “my neck, the lower part of my back, the higher part of my back.” However, she later testified that her complaints were confined to her neck and shoulders and she was not sure about her back. Although she was still under treatment from Dr. Adams she simply did not go back to him once she started with Dr. Figueroa, and she was still under treatment by Dr. Figueroa when she had the present accident. She last saw him on September 3 when she told him she wanted to be discharged by him. Three different lawyers represented her in connection with the three claims. According to Dr. Manale, when he first took a history from plaintiff on September 3 he asked her “if she had any severe car wrecks or falls in the past and she said no.” He did not learn about the previous accidents until her present attorney wrote to him on October 31, 1977, and said:

"... In the deposition in the above matter it came out that in the history you obtained when you initially saw Mrs. Wilson she indicated she did not have any severe injuries to her neck or back. This is somewhat misleading due to the fact that she was involved in an automobile accident in 1973 and one in August, 1976, both relating to the cervical region and her shoulder. She did not consider it major as she was only treated with therapy and was not as severe as her current ailments. Therefore, this is why she made the response of no severe injury to her back. Also, she thought you were referring to the lumbar and lower areas of the back for which you were treating her. Please include this in your records for whatever purpose you deem appropriate.”

However, Dr. Manale further testified that he never heard of the accident of July, 1976.

Two letters were read to the jury, the first from Dr. Adams to plaintiff’s first lawyer concerning the injuries she sustained in the July accident; and the second from Dr. Figueroa to plaintiff’s second lawyer concerning her August 2, 1976, accident related injuries. Adams stated that plaintiff said she sustained injury to her neck, chest, breast, back, and left leg and he found, “back painful with restricted movement, worse on bending and stretching.” He continued to treat her almost daily in August until her last visit on August 31.

Figueroa reported that plaintiff did complain of pain in her lower back along with her neck. The record showed treatments to her neck almost daily in August, including August 31.

A copy of the petition plaintiff filed in the civil district court for $46,000 damages from the July accident is in evidence. The suit was filed on November 29, 1976, and contains the allegation that the accident caused injury to her “neck, chest, breast, back, and left leg, with accompanying neck spasms, restricted movement, and back pain, necessitating treatment and physical therapy totaling, at the present time, $425.00.”

In his charge to the jury the trial judge properly instructed them to consider both general and special damages, and he defined general damages to mean a sum which would fairly compensate plaintiff for pain, suffering, mental anguish and disability she sustained as a proximate result of the accident. He went on to say:

“In determining an award for general damages you are vested with much discretion. By special damages we mean actual out of pocket expenses which the plaintiff has sustained as a proximate result of the accident and these may include reasonable medical expenses and other expenses reasonably related to the accident. The plaintiff must prove both general and special damages, either past or future, by a preponderance of the evidence. For plaintiff to recover she must prove that her damages were proximately caused by the accident in question. Damages are proximately caused by an accident whenever it appears from the evidence in the case that the accident played a substantial part in bringing about or actually causing the damages and that the damages were either a direct result or a reasonably foreseeable consequence of the accident.”

In arguing entitlement to awards for medical expenses and the cost of domestic services plaintiff relies principally on Mora v. American Motors Leasing Corp., 364 So.2d 1343 (La.App. 4th Cir. 1978) in which the jury returned a verdict for the special damages but gave no award for general damages. We held that plaintiff was entitled to general damages based on our previous decision in Robinson v. General Motors Corporation, 328 So.2d 751 (La.App. 4th Cir. 1976). There the jury had given awards for special damages but no damages for pain and suffering. We held:

“But we do not have a general verdict, and an award of ‘none’ as damages for pain and suffering is not an exercise of discretion as to amount but a refusal of an award. If a jury deems missing work or incurring certain medical expenses unjustified, it may disallow those items, but it may not refuse general damages to plaintiffs with objective injuries.”

Conceding that the present case presents the opposite side of the coin which was present in the cited cases plaintiff argues once the jury decided that plaintiff was entitled to an award for general damages it may not refuse special damages sustained by plaintiff. However, we are not persuaded by this argument considering the record as a whole, and upon a close examination of the verdict form completed by the jury foreman.

This jury was faced with a plaintiff who had been in three different automobile accidents and made settlements for earlier accidents some time after she had the third or present accident, and while she was being treated by a third physician. Her credibility became highly questionable when the jury was told by Dr. Manale that he never heard of the July accident, and it developed that almost three months after she began seeing Manale for back problems she filed suit seeking damages for back problems resulting from the July accident. Furthermore, her testimony that she didn’t go back to Adams once she started seeing Figueroa was flatly contradicted by the records of the doctors showing that she was being treated by both of them throughout the month of August and many times by both on the same day. In effect, she was using three different sets of doctors and lawyers to push three separate claims for overlapping complaints and treatments. She also suffered from phlebitis which was apparently unrelated to the accident. It seems clear that the jury was not convinced that the medical expenses she claimed were the result of this accident.

Her evidence with respect to the domestic services did not support the $755 she claimed for this item. Although Dr. Ma-nale advised her to abstain from household chores for three weeks initially and in early October he thought that “it might be helpful ... if someone could help her do her household chores . .,” her claim, for the most part, is entirely dependent upon her own unsupported testimony that she could not do this work and required someone to do it for a duration of ten weeks. Thus, the evidence supports no more than a fraction of the $755 claimed, if any.

The form of the interrogatories may have confused the jury. Perhaps had they been asked to make an award for “pain and suffering or mental anguish” they may have been able to separate more easily such damages from medical expenses and the cost of domestic services. That form clearly shows that a zero was entered in the blank space provided for the general damages amount and was erased before the number 2,000 was inserted. It appears that they decided plaintiff was entitled to the $2,000 “general damages” to include some of the medical expenses and a portion of the cost of domestic services she was seeking. After they inserted the $2,000 figure for general damages they apparently decided, as an after thought, that they should insert zeros after medical expenses and cost of domestic services, and that was done in a different hand writing. Under all of these unusual circumstances, we conclude that the $2,000 award was intended as a general verdict. That amount is plainly within the jury’s much discretion.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

      . This case was tried to a jury of eleven and the only explanation is the trial judge’s statement to them after twelve were impaneled but before the trial began: “Now we have had to excuse a juror for personal reasons. So you make sure that you stay in good health.” The absence of any objection from counsel was tantamount to a stipulation under C.C.P. Art. 1761. When the jury was polled after the verdict was announced it developed that two found contributory negligence on the part of plaintiff and one found no negligence on defendant, so that only eight concurred in the verdict. Although there was no express stipulation the parties apparently agreed to a verdict by eight in accordance with C.C.P. Art. 1795. However, before the jury retired the judge told them, “Now, you have 11 of you, 9 out of the 11 must concur to answer any of the questions on this page. It need not be the same 9 to answer each question but at least 9 of you must agree to answer any question.” Aside from the fact that nine was not the required number, the instruction was erroneous. If three had found no negligence on defendant, and a different three had found contributory negligence on plaintiff, only five would have agreed on liability. This could not support a verdict for plaintiff, and, yet, that was the import of the judge’s instructions.


text:
    Anna WOLINSKI v. Pauline FLEMING, Pauline Fleming d/b/a Bill & Pauline’s Lounge, Pauline Fleming d/b/a the Playgirl Lounge and Phyllis Smith.
    No. 12566.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 5, 1981.
    David Band, Jr., New Orleans, for plaintiff-appellant.
    Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

Plaintiff appeals from a dismissal of her suit for damages she sustained when allegedly beaten by defendants Pauline Fleming and Phyllis Smith. In this court she has abandoned her appeal against Fleming, and seeks a reversal as to Smith primarily on the basis that Smith as a party failed to appear and testify, giving rise to a presumption against Smith.

Plaintiff testified: She went to defendant Fleming’s bar on Magazine Street in New Orleans just before dark on July 8, 1978, but after drinking coke and “about two screwdrivers,” left about 10 PM and went to another bar in the neighborhood, Sara’s, where she stayed for “a couple of hours.” She then walked back to Fleming’s bar where she was told by the bartender she owed for a round of drinks. Upon denying this she was immediately attacked by Fleming, Smith, the bartender and a “dark complexion Spanish guy.” The last threatened her with a gun while the bartender hit her in the head with an object and Fleming hit her with a piece of bottle cutting her eye. All four “worked me over in the bar and closed the door so nobody could come in and they kept beating and beating on me, and Pauline, the owner, told the other lady, Phyllis, kill her, kill her.” The Spanish man kicked her and hit her in the stomach and the bartender hit her head against the wall. This all took place between 11 and 12 midnight and afterwards, they told her that Smith said she was going to get her down the street so the Spanish man and Fleming made her get into an automobile and took her back to Sara’s. She wanted to call the police, but they would not permit her to make a phone call, threatened her and forced her to have another drink “to make it look good.” She was finally able to leave and took a bus home. While she was in Sara’s for the second time she was bleeding and a girl washed her face. Asked how long she stayed there the second time she said it was a “good while.” When she got home she reported the incident to the police but she got the “wrong police.”

Fleming testified: Plaintiff came into her bar about 4:30 in the afternoon and stayed until midnight. During the whole time her bartender, Través Sparks, and her friend, Candy Kantel, were there. She was sitting at the bar with Candy when plaintiff came in and took a seat with them. Shortly afterward Smith came up and asked them to buy her a drink. They declined and when she insisted an argument started between plaintiff and Smith. Fleming stopped the argument and Smith went to the other end of the bar. At closing time, about midnight, everybody left and Kantel accompanied Fleming to her automobile which was parked down the street. They offered plaintiff a ride but she declined preferring to walk. After she and Kantel got into the car they passed Smith’s house which was a half block from Fleming’s bar and they saw the fight between plaintiff and Smith. They made no effort to stop it but watched it until some stranger came along and broke it up. After the fight plaintiff got into the car and accompanied them to Sara’s where she and Kantel had a drink but plaintiff left. There was never anything but a verbal argument inside the bar, she saw no injuries on plaintiff, Kantel had no gun, plaintiff never indicated that she wanted to call the police, and plaintiff voluntarily accompanied them to Sara’s after the fight.

Través Sparks, the bartender, testified that plaintiff came in at about 4, was in and out all night and “seemed to be pretty well loaded when she first came in.” She had more drinks and he finally put her out of the bar for being abusive to other customers. After the bar was closed he left and saw nothing further of plaintiff. Smith had been in the bar and was one of the last customers to leave. He saw no argument between Smith and plaintiff and no fight at all in the bar.

Finally, Kantel testified that he had been sitting in Fleming’s bar with Smith who “pretty good loaded” when plaintiff walked in and ordered a drink. They started an argument and the bartender told Smith to leave, whereupon Smith invited plaintiff outside. He stayed around until the bar was closed and while he was on his way with Fleming to Sara’s he saw the fight between plaintiff and Smith in front of Smith’s house. A stranger stopped the fight, plaintiff got into the car with them and accompanied them to Sara’s where plaintiff had a few drinks and left. She was bleeding from her eye and the barmaid at Sara’s gave her some assistance for that. He denied having a gun.

The trial judge gave the following reasons for judgment: “Considering all of the evidence, plaintiff has not carried the burden of proof against any of the defendants.”

Even though there are some discrepancies in the testimony of the various witnesses as indicated in the foregoing summary of the testimony, we cannot say that the trial judge erred in arriving at his conclusion. Plaintiff would have us reverse the trial judge on the basis of the rule that when a defendant in a civil case can by his own testimony throw light upon matters at issue, necessary to his defense and peculiarly within his knowledge, and fails to go upon the witness stand, the presumption is raised, and will be given effect, that the facts, as he would have them, do not exist. Ruthardt v. Tennant, 252 La. 1041, 215 So.2d 805 (1968).

Aside from the fact that the rule as stated does not fit the situation in this case it is not applied without regard to all the other evidence of record. For instance, in Morrison v. Edwards, 323 So.2d 838 (La.App. 4th Cir. 1975) writs refused 328 So.2d 167, this court found that the presumption standing alone was not sufficient to set aside the judgment of the trial court. Similar treatment was given to the presumption in Popich v. Fidelity & Deposit Company of Maryland, 231 So.2d 604 (La.App. 4th Cir. 1970).

Plaintiff’s basic story was unbelievable in a number of respects and involves her conduct over a period of some nine or ten hours during which she was drinking alcocholic beverages. Her serious accusation of a malicious beating administered by four individuals inside the bar was flatly denied by three. Her accusation that Kantel threatened her with a gun was flatly denied by him and Fleming. Plaintiff would have us reverse the trial judge, who observed her as well as the other witnesses on the stand, on the sole basis that Smith did not testify. This record does not support such a result.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


text:
    Geraldine C. Amedee, Wife of/and Richard P. AMEDEE v. SOUTHERN BAPTIST HOSPITAL, Dr. R.L. Chrestman, Dr. Michael E. Carey, Dr. James Rogers, Dr. Richard L. Strub, and Dr. G.S. Peterson.
    No. 12696.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 5, 1981.
    Lawrence D. Wiedemann and Edmond Golden, Wiedemann & Fransen, New Orleans, for plaintiffs-appellees.
    C.A. Kiger, New Orleans, for Southern Baptist Hospital.
    Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

This appeal from the trial court’s dismissal of plaintiffs’ suit on the ground of prematurity is an attack on the Louisiana Medical Malpractice Act, LSA-R.S. 40:1299.-41 et seq. on the ground that it is unconstitutional. That question was settled in Everett v. Goldman, 359 So.2d 1256 (La.1978).

The judgment is affirmed.

AFFIRMED.