text:
    STATE of Louisiana v. Robert S. WILLIS.
    No. 82-KA-0198.
    Supreme Court of Louisiana.
    Oct. 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Speedy 0. Long, Dist. Atty., Dan B. Cornett, Asst. Dist. Atty., for plain tiff-appellee.
    James J. Brady, Helen G. Roberts, Gravel, Robertson & Brady, Alexandria, for defendant-appellant.
   DAVID R.M. WILLIAMS, Justice Pro Tem.

Defendant Robert S. Willis was originally charged by separate bills of information all filed July 30, 1981, with four counts of forcible rape and one count of indecent behavior with a juvenile. Willis pleaded not guilty by reason of insanity to these charges. On October 19, 1981, the date set for trial of the above charges, three additional bills of information were filed charging defendant with three counts of carnal knowledge of a juvenile. The defendant entered a plea of guilty at the opening of his trial, to the three counts of carnal knowledge of a juvenile, and changed his plea to guilty on one count of indecent behavior with a juvenile (originally filed July 30, 1981). On November 19, 1981, after reviewing the Pre-sentence Investigation Report, the trial court sentenced Willis to eight years on each count of carnal knowledge of a juvenile and two years and a fine of $1,500.00 on one count of indecent behavior with a juvenile. All sentences were at hard labor and made to run consecutively for a total of twenty-six years.

Defendant now appeals his sentences to this court urging a single assignment of error: that the trial court erred in imposing excessive sentences.

The following factual events are summarized from the Pre-sentence Investigation Report, the Transcript of the Pleas and the Transcript of the Sentencing. Beginning late in 1968, Robert Willis began an intimate relationship that was to continue for the next twelve years, with an adult woman, and shortly thereafter, moved in with her and her four children. The children were of a prior marriage and included one boy, the eldest, and three girls. The defendant fathered two additional children, in this relationship, in the years that followed. Over the years, this group lived as a “family”, with the defendant working and supporting the “family” in a parental role of ■authority and responsibility.

Several years passed and in 1977, the eldest daughter of the woman was sexually molested by Willis who ultimately impregnated her when she was thirteen. The girl ran away to have her baby, living with other relatives in Texas. Two years later, Willis persuaded the girl to move back to Louisiana and marry him. During this two year interval, defendant continued to live with the woman and the remainder of the children. Willis and his child-bride, who was only fifteen, moved briefly to Arkansas because of his employment and then returned to Jena, Louisiana, and resumed living with his wife, the woman and the other children. According to the woman, defendant remained sexually active with her as well as his wife at this time. Shortly after returning from Arkansas, Willis became sexually active and involved with the woman’s other two daughters. It is this latter activity from which emanates the arrest and subsequent convictions for carnal knowledge and indecent behavior with a juvenile. Defendant was later divorced from his wife, who has now moved out of state and remarried. At this time the woman and her children terminated their living arrangement with defendant, although he continued to provide some support for the children after he was free on bond.

Defendant was an adult approximately thirty years of age, accused of having had sexual relations with two young girls approximately aged thirteen and fifteen. There is, in this matter, more than some suggestion of threats and beatings administered to these young girls to cause them to submit to the sexual advances of the defendant. In the Pre-sentencing Investigation Report, the defendant admits having had intercourse only with the older of these two girls. Further, he denies that he had ever beaten either of them or forced them to have intercourse with him.

Notwithstanding the defendant’s version, he entered his plea of guilty to all three counts of carnal knowledge and one count of indecent behavior with a juvenile. The defendant now faces twenty six years imprisonment at hard labor.

The defense has argued that three consecutive sentences of eight years each and one sentence of two years, plus a fine, are excessive, noting that the defendant has no significant prior criminal record; has a steady and productive work history; provides financial support to the “family”; and was not a danger to society. The defense also urged that the sentences run concurrently rather than consecutively. The statute on carnal knowledge of a juvenile provides for imprisonment with or without hard labor for not more than ten years (LSA-R.S. 14:80); and for indecent behavior with a juvenile, the statute provides for a fine of not more than five thousand dollars, or imprisonment with or without hard labor, for not more than five years, or both (LSA-R.S. 14:81).

Louisiana Constitution of 1974, Art. 1, Sec. 20, prohibits the imposition of excessive punishment. Accordingly, this court has held that imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment that is reviewable by this court on appellate review. The trial judge’s reasons in imposing sentence, as required by La.C.Cr.P. art. 894.1, are an important aid to this Court when called upon to exercise its constitutional function to review a sentence complained of as excessive. State v. Prados, 404 So.2d 925 (La.1981); State v. Day, 391 So.2d 1147 (La.1980); State v. Spencer, 374 So.2d 1195 (La.1979); State v. Gist, 369 So.2d 1339 (La.1979); State v. Sepulvado, 367 So.2d 762 (La.1979). Moreover, the trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Washington, 414 So.2d 313 (La.1982); State v. Douglas, 389 So.2d 1263 (La.1980); State v. Spencer, supra; State v. Sepulvado, supra. This court has held a sentence is excessive if it is grossly out of proportion to the severity of the crime, or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Guiden, 399 So.2d 194, (La.1981); State v. Bonanno, 384 So.2d 355 (La.1980).

It appears in this case that the trial court more than adequately satisfied the guidelines expressed in La.C.Cr.P. Art. 894.1 by setting forth the sentencing considerations and the factual basis therefor in such detail as to allow this Court’s review for excessiveness.

The record here clearly reflects consideration of the Art. 894.1 guidelines in particularizing a sentence to the defendant and the crime, (Guiden, supra) thereby taking into account both aggravating and mitigating circumstances in the case.

The trial court below noted that the defendant had a reputation for a hot temper both at work and at home. His temper was violent even towards the woman and children with whom he had relations; further, defendant’s temper was so fierce that, at one time, a person who offered to help the defendant get out of his situation was met with such a savage reaction that he was intimidated into silence, even though living outside the defendant’s home. The court below further found that defendant acted in a tyrannical, cruel and violent manner as towards the woman and her children so that they were all afraid to report the criminal acts of defendant.

The trial court also found, contrary to the psychiatric evaluation and report, that there was a real possibility that defendant might commit similar or other crimes, against the present victims, or others, in the future if he were placed on probation. The judge expressed great concern that the defendant might be able to assume a position “to associate with, or to gain the confidence of a woman with small children” and thereby commit identical acts. The judge questioned the ability of the defendant to avoid the temptation to start such a liasion. For these reasons the trial court found that incarceration would be the preferable punishment as being necessary for the protection of society, especially to be segregated from females, young and old alike.

The trial judge also found that anything less than incarceration would seriously deprecate the seriousness of the crime. The court below distinguished the facts of the instant case where the defendant is thirty or more years old having carnal knowledge of juveniles barely into their teenage years, from the situation where both parties are adolescents, i.e. where the perpetrator is barely above the threshold age level and the consenting victim is slightly below the threshold age. See State v. Sepulvado, 367 So.2d 762 (La.1979). On the facts in Sepul-vado, we remanded for resentencing, a sentence of three and one-half years out of the then possible five years maximum because it was excessive. But here, we have three counts of carnal knowledge occurring over a period of several years, by a defendant substantially older than the victim, to which the defendant has entered pleas of guilty.

In consideration of factors tending to mitigate the seriousness of the crime the trial court noted that there was apparently no physical harm done to the children; however, there is a very great likelihood that some emotional trauma has occurred and this in itself tends to lessen the importance of the absence of any physical harm. The court further noted the lack of provocation, and lack of factors which might tend to excuse or exculpate the defendant’s criminal acts. The court also noted the lack of any acts on the part of the victims which may have helped induce or facilitate the crime.

In pronouncing sentence, the trial court also considered defendant’s continued financial support for the children, even post-arrest; and the absence of any previous felony convictions in rejecting the prosecution’s recommendation to impose the maximum available sentence of ten years on each count. The trial court disregarded the applicability of proffered character references and work reputation in dealing with adults in public transactions as being wholly immaterial to defendant’s acts in private personal relationships. The court concluded that the defendant was untrustworthy in a private relationship with a woman or a child especially in view of the overall circumstances involved.

If the factual basis and individual considerations upon which the sentence is based appear in the record, our review will focus upon whether the trial court’s large discretion has been abused. The trial court here has articulated reasons for the sentence imposed, taking into account both the aggravating and mitigating circumstances of the case. State v. Prados, 404 So.2d 925, 927 (La.1981). There is no abuse of the trial court’s discretion in the record. Defendant has pleaded guilty to three very serious crimes of carnal knowledge of a juvenile and one lesser crime of indecent behavior. The trial court’s belief that he poses a real and substantial risk to the safety of the public due to his past conduct or repeated criminality over an extended period justify consecutive sentences. State v. Carter, 412 So.2d 540 (La.1982).

We have considered the entire record made in this case and therefore decline to substitute our judgment for the considered judgment of the trial judge.

The sentence is affirmed.

AFFIRMED.

       Judges Charles R. Ward, Jr., William H. Byrnes, III and David R.M. Williams of the Fourth Circuit Court of Appeal participated as Associate Justices Pro Tempore on this opinion with Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . The bills of information charging four counts of forcible rape were continued without date upon defendant’s plea of guilty to the lesser charges.

      . Defendant’s Pre-sentencing Investigation Report indicated he had been convicted of DWI and had other charges involving certain crimes against the person which had been previously dropped.

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


source: Caselaw Access Project

author: PER CURIAM. LEMMON, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Thomas NATIONS.
    No. 82-K-1315.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    Anthony J. Marabella, Jr., Leo J. D’Au-bin, Baton Rouge, for relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Louis Daniel, Asst. Dist. Attys., for respondent.
   PER CURIAM.

Under article 578 of the Code of Criminal Procedure the state has one year from the institution of prosecution to bring a misdemeanor case to trial. This period of limitation is interrupted under certain, narrowly defined, circumstances, including when the defendant absents himself from his usual place of abode within the state, with the purpose of avoiding detection, apprehension, or prosecution. C.Cr.P. 579. The state bears a heavy burden of showing that it is excused from trying an accused on a charge later than the period mandated by article 578. State v. Guidry, 395 So.2d 764 (La.1981); State v. DeVito, 391 So.2d 813 (La.1980); State v. Driever, 347 So.2d 1132 (La.1977).

In the present case, the period of limitation elapsed and the state clearly failed to carry its heavy burden of showing the existence of circumstances amounting to an interruption under Art. 579. The state filed a bill of information against the defendant in December, 1980, but did not bring him to trial before April, 1982, when the defendant moved to quash the charges against him. In April, 1981, a representative of the sheriff’s office attempted to serve the defendant with notice of arraignment, but did not complete the service because the defendant had moved to a new address. During the fourteen month period between the filing of the information and the motion to quash, the defendant was employed by Petroleum Service, the same employer as on the date of his arrest. The employer’s name and address was given to the bonding company and to the court, and appeared on the face of the bond itself. During this time interval, the defendant remained a resident of Baton Rouge. Although he did change apartments on two occasions, he notified his bonding company of each move and completed a change of address form with the United States Postal Service. Additionally, his telephone number was always correctly listed with directory assistance. This evidence does not warrant a finding that the defendant absented himself from his usual place of abode within the state with the purpose of avoiding detection, apprehension or prosecution.

Accordingly, the ruling of the trial court to the contrary must be reversed and defendant’s motion to quash must be granted.

REVERSED; MOTION TO QUASH GRANTED.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

On April 6, 1981, slightly over three months after the filing of the bill of information, the prosecution set this case for arraignment, and the sheriff attempted unsuccessfully to serve defendant at the address that defendant had provided to the court at the time of his arrest. When defendant failed to appear for the arraignment, a bench warrant was issued for his arrest.

On March 18, 1982, defendant was arrested for an unrelated traffic violation, and the outstanding warrant was discovered in the computer check following the arrest. His trial on the offenses was set shortly thereafter, within one year of the date of the arraignment at which defendant had failed to appear.

C.Cr.P. Art. 578 provides for a one-year period of prescription for commencement of trial after the date of institution of prosecution. However, Article 579 provides that the period of prescription is interrupted when the proceedings are delayed for “any ... cause beyond the control of the state.” Since prescriptive statutes should be strictly construed against the parties who are benefiting by the running of prescription and in favor of the party whose rights are being lost by prescription, the court should liberally construe the article in favor of interruption. When the prosecution, acting in good faith, schedules an arraignment (or a trial date) well within the prescriptive period (and within the limits presented by C.Cr.P. Art. 701) and attempts service on defendant at the last known address provided by the defendant, the failure to hold the arraignment should be deemed a cause “beyond the control of the state”, which serves to interrupt prescription on the period for commencing the trial. I believe that Article 579 can reasonably be construed as providing for such a result, because that is as much as can reasonably be required of the state.

      . I disagree that the state should have “a heavy burden” to prove prescription has not been interrupted. The question is more one of statutory interpretation, and prescription statutes should be strictly construed against the party who pleads prescription.

      . I would hold that the prescriptive period begins to run anew after the scheduled arraignment date (unless the defendant is truly a “fugitive”). A holding that the defendant’s failure to appear constitutes an interruption beyond the control of the state prevents the defendant from unjustly benefiting from his failure to give the state reasonable notice of his change of address and permits the state a reasonable period of additional time within which to comply with the mandates of C.Cr.P. Arts. 578 and 701.


text:
    Joe E. FRYAR v. WESTSIDE HABILITATION CENTER, INC.
    No. 82-C-2517.
    Supreme Court of Louisiana.
    Oct. 22, 1982.
   In re: Westside Habilitation Center, Defendant and Third Party Plaintiff, Joe E. Fryar, Plaintiff, Swink & Co., Intervenor, Town of Cheneyville, Intervenor and Rap-ides Development Corporation, Intervenor, applying for writs of Certiorari or Review, to the Court of Appeal, Third Circuit, Number 82-586; Parish of Rapides, 9th JDC, Number 124,203.

Denied.

MARCUS, J., would grant the writ, reverse the ruling of the court of appeal, and remand the case to the court of appeal to act on the merits of whether or not the trial judge properly granted a mandatory injunction in this case.


text:
    Georgia MAI v. Edward MAI.
    No. 82-C-1646.
    Supreme Court of Louisiana.
    Sept. 24, 1982.
   In re Edward Mai, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 419 So.2d 1251.

Denied.

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


text:
    Terri GROS v. Michael GROS.
    No. 82-C-1751.
    Supreme Court of Louisiana.
    Oct. 1, 1982.
   In re Michael Gros, applying for remedial writs and stay order. Lafourche Parish. No. 45698.

Granted. Sentence vacated and case remanded for sentencing in accordance with R.S. 13:4611.

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


text:
    Raymond ALLEN v. Sylvester SMITH, Jr.
    No. 82-C-2407.
    Supreme Court of Louisiana.
    Oct. 1, 1982.
   In re Sylvester Smith, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terrebonne. 419 So.2d 1267.

Not considered, not timely.


text:
    STATE of Louisiana v. Sterling RAULT.
    No. 82-K-2470.
    Supreme Court of Louisiana.
    Oct. 4, 1982.
   In re Sterling Rault, applying for extraordinary writ and a stay order, Criminal District Court, Parish of Orleans. No. 288-.355.

Denied.


text:
    Liselotte Schroth, Wife of Natchez J. MORICE, Jr. v. Natchez J. MORICE, Jr.
    No. 82-C-2450.
    Supreme Court of Louisiana.
    Oct. 6, 1982.
   In re Natchez J. Morice, Jr., applying for supervisory writs of certiorari, prohibition and mandamus. Civil District Court, Parish of Orleans, Fourth Circuit Court of Appeal, 419 So.2d 1003.

Writ denied. Adequate remedy by appeal.

WATSON, J., recused.


text:
    STATE ex rel., Steve M. MARCANTEL v. 13th JUDICIAL DISTRICT COURT.
    No. 82-KH-2436.
    Supreme Court of Louisiana.
    Oct. 7, 1982.
   In re Steve M. Marcantel, applying for a writ of mandamus. Parish of Evangeline. No. 20732.

Granted. Trial judge ordered to rule on relator’s application for habeas corpus filed in the district court on August 27, 1982, prior to October 11,1982 (date of scheduled trial).


text:
    STATE of Louisiana ex rel. Russell ARRIOLA v. J. D. MIDDLEBROOKS, Warden, La. Correctional Industrial School.
    No. 82-KH-1255.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Russell Arriola, applying for supervisory and remedial writs. Parish of Orleans, Criminal District Court. No. 275-315.

Granted. Application transferred to the district court for immediate consideration.


text:
    STATE of Louisiana, ex rel. Garrett Decatur RICHARDSON v. LOUISIANA STATE PAROLE BOARD, Ross Maggio, Jr., Warden, La. State Penitentiary; Charles C. Foti, Jr., Sheriff; Hon. Harry F. Connick, District Attorney, Orleans Parish.
    No. 82-KH-2067.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Garrett Decatur Richardson, applying for writs of review, mandamus and prohibition. Parish of Orleans. Nos. 289-237, 289-631.

Granted for the limited purpose of transferring to the district court for consideration.


text:
    STATE of Louisiana, ex rel. Mary Louise TURNER v. Honorable Charles FOTI, Sheriff, Orleans Parish.
    No. 82-KH-2169.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Mary Louise Turner, applying for writ of habeas corpus. Parish of Orleans. Nos. 622-288 and 267-567.

Granted for the limited purpose of transferring application to the district court for consideration.


text:
    STATE of Louisiana ex rel., James Edward MOORE, v. H. M. Mike CANNON, Clerk, 19th JDC Parish of East Baton Rouge, State of Louisiana.
    No. 82-KH-2204.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re James Edward Moore, applying for writ of mandamus, Parish of East Baton Rouge. Nos. 5-79-615 and 9-79-548.

Granted for the limited purpose of transferring to the district court for consideration. So ordered.


text:
    STATE of Louisiana ex rel. George MITCHELL v. Honorable Rudolph F. BECKER, III, Judge, Criminal District Court, Parish of Orleans (and) Clerk of Court, et al.
    No. 82-KH-2260.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re George Mitchell, applying for writ of mandamus. Parish of Orleans.

Granted. Transferred to District Court for consideration in case # 250-966.


text:
    Mrs. Mary Jane C. MECHE, Individually as Natural Tutrix of and For the Use and Benefit of Her Three Minor Children, Alton Joseph Meche, Pamela Ann Meche, and Mary Rhodnoda Meche; James A. Meche, Tina Meche Midkiff and Patricia Meche Maquin v. GULF STATES UTILITIES COMPANY.
    No. 82-C-1899.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Mrs. Mary Jane C. Meche, Individually as Natural Tutrix of and for the use and benefit of her three Minor Children, et al, applying for writs of certiorari and review to the Court of Appeal, Third Circuit. Parish of Calcasieu. No. 82-28.

Granted.


text:
    C & H BUILDERS, INC., d/b/a Ball Trucking Company v. ALEXANDRIA CONCRETE COMPANY, et al.
    No. 82-C-1912.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re C & H Builders, Inc., d/b/a Ball Trucking Company, applying for writs of certiorari, prohibition and mandamus, Third Circuit Court of Appeal. Parish of Rapides. No. 82-309.

Granted. The judgment of the court of appeal is set aside; the judgment of the district court is reinstated.


text:
    STATE of Louisiana, ex rel. Ernie J. TALLEY v. Ned DOUCET, Judge, 16th Judicial District Court, Parish of St. Martin, St. Martinville, La.
    No. 82-KH-2050.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Ernie J. Talley, applying for writs of prohibition and mandamus. Parish of St. Martin. No. 59841.

Granted. Trial court is ordered to rule on relator’s pending motion within 14 days.


text:
    STATE of Louisiana ex rel. Anthony FIELDS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-1246.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Anthony Fields, applying for writ of habeas corpus. Parish of Orleans. No. 222-346.

Denied.


text:
    STATE of Louisiana ex rel. Herbert WOMACK v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-1249.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Herbert Womack, applying for writs of habeas corpus. Parish of Orleans.

• Denied.


text:
    STATE of Louisiana v. Carl S. AINSWORTH.
    No. 82-K-1398.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Carl S. Ainsworth, applying for remedial writs. LaSalle Parish. No. 25258.

Denied.

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


text:
    Halvar PETERSON, et al. v. POWER RIG DRILLING COMPANY, INC., EMPLOYEE MEDICAL PLAN.
    No. 82-C-1910.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Power Rig Drilling Company, Inc., Employee Medical Plan, applying for writ of certiorari. Parish of Sabine, Eleventh Judicial District Court. No. 33214.

Denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Gilbert DIXION v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 82-K-1969.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Gilbert Dixion, applying for supervisory (remedial) writs. Parish of West Feliciana. No. 6982.

Denied.


text:
    STATE of Louisiana v. Charles C. ELMER.
    No. 82-K-1980.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Charles C. Elmer, applying for writ of certiorari, prohibition and mandamus. Parish of St. Tammany, Twenty-Second Judicial District Court. No. 92674/5.

Denied.


text:
    Walter LAFARGUE v. Mary Goos LAFARGUE.
    No. 82-C-1991.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Walter Lafargue, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Rapides Parish. No. 82-11.

Writ denied.


text:
    STATE of Louisiana ex rel. Scott Allen THORNE v. Ross MAGGIO, Warden, etc.
    No. 82-K-2031.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Scott Allen Thorne, applying for writ of certiorari, prohibition and mandamus. Parish of Calcasieu, Fourteenth Judicial District Court. No. 9188-78.

Denied.


text:
    STATE of Louisiana v. Glenn L. BORDELON.
    No. 82-K-2039.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Glenn L. Bordelon, applying for Supervisory Writs. Parish of Ascension, Twenty-Third Judicial District Court. Nos. 58890 and 58891.

Denied.


text:
    STATE of Louisiana ex rel., Willie A. LAMPTON v. Honorable Frank SHEA.
    No. 82-KH-2048.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Willie A. Lampton, applying for writ of mandamus. Parish of Orleans.

Denied.


text:
    STATE of Louisiana v. Alfred J. LEWIS.
    No. 82-K-2052.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Alfred L. Lewis, applying for writs of certiorari, prohibition, mandamus and review from the Fifteenth Judicial District Court. Lafayette Parish. No. 43652.

Denied.


text:
    STATE of Louisiana ex rel. Alexander DURKINS v. Honorable Paul WIMBISH.
    No. 82-KH-2156.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Alexander Durkins, applying for writ of mandamus. Parish of Terrebonne, Thirty-Second Judicial District Court.

Denied.


text:
    STATE of Louisiana, ex rel., Edgar W. CASTON v. N. Burl CAIN, Warden, Dixon Correctional Institute, Jackson, La.; Hon. Edward B. Dufrenche, Judge, 21st Judicial District Court, Parish of Livingston, State of La., et al.
    No. 82-KH-2205.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Edgar W. Caston, applying for writ of certiorari and supervisory writs. Parish of Livingston. No. 3297.

Denied.

BLANCHE, J., recused.


text:
    STATE of Louisiana ex rel. William VANZANT, Jr. v. HONORABLE JUDGE, 1ST JUDICIAL DISTRICT COURT, PARISH OF CADDO.
    No. 82-KH-2217.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re William Vanzant, Jr., applying for writ of mandamus. Parish of Caddo. No. 79959.

Denied.


text:
    STATE of Louisiana v. Charles R. BROWN.
    No. 82-K-2295.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Charles R. Brown, applying for remedial writs. Parish of Madison, Sixth Judicial District Court. No. 15085.

Denied.


text:
    STATE of Louisiana ex rel. Larry Gene ALFORD v. CLERK, TENTH JUDICIAL DISTRICT COURT.
    No. 82-KH-2329.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Larry Gene Alford, applying for writ of mandamus. Parish of Natchitoches. No. 66827.

Denied. Moot.


text:
    STATE of Louisiana v. Steve BROCKINGTON.
    No. 82-KH-2360.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Steve Brockington, applying for remedial writs. Parish of Evangeline. No. 28268.

Denied. Moot.


text:
    STATE of Louisiana v. David Junior BURGESS.
    No. 82-K-1703.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re David Junior Burgess, applying for writs of certiorari, review and mandamus. Parish of Ouachita. Nos. M:47426, T:8176, T:8177, T:8178, and T:8179.

Writ granted. The convictions and sentences are set aside. The defendant was entitled to a jury trial on the consolidated cases.


text:
    KEL-KAN INVESTMENT CORP., et al. v. VILLAGE OF GREENWOOD, et al.
    No. 82-C-1797.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Village of Greenwood, et al, by and through its Mayor, Leroy Hillman, Jasper L. Tilley, William Peters, J. D. Roan, James Gobert, Albert Reed Bonds, Thomas F. Phi-lyaw and Raymond Hollis Bounds, applying for writs of certiorari and review to the Court of Appeal, Second Circuit. Caddo Parish. 418 So.2d 669.

Granted.


text:
    SHELL OIL COMPANY v. Shirley McNAMARA, Secretary of Revenue and Taxation, etc., et al.
    No. 82-C-1803.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Shirley McNamara, Secretary of Revenue and Taxation and Department of Revenue and Taxation, State of Louisiana, applying for certiorari or writ of review. Parish of East Baton Rouge. 415 So.2d 287.

Granted.


text:
    STATE of Louisiana, ex rel. William J. GUSTE, Jr., Attorney General, ABD Louisiana Department of Justice, Office of Employment Security v. AETNA CASUALTY AND SURETY COMPANY.
    No. 82-C-1916.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re State of Louisiana, et al, applying for writs of certiorari or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 417 So.2d 404.

Writ granted.


text:
    AGRICO CHEMICAL COMPANY v. E. K. PAINTING, INC.
    No. 82-C-1928.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Clyde Hodges, applying for writ of certiorari, or review. Parish of East Baton Rouge. First Circuit, Court of Appeal. 417 So.2d 37.

Granted.


text:
    Richard A. BLOCK v. RELIANCE INSURANCE COMPANY.
    No. 82-C-1956.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Richard A. Block, applying for writ of certiorari, or review. Parish of Terrebonne. First Circuit, Court of Appeal. 417 So.2d 29.

Granted.


text:
    Elaine NATION v. Jay MILLER, Individually and as Executive Director of the Housing Authority of the City of Crowley, La., and Housing Authority of the City of Crowley, La.
    No. 82-C-1965.
    Supreme Court of Louisiana.
    October 8, 1982.
   In re Elaine Nation applying for certiora-ri, or writ of review, to the Court of Appeal, Third Circuit. Parish of Acadia. 417 So.2d 109.

Granted. The judgments are set aside. Plaintiff is allowed to proceed in forma pauperis. Benjamin v. National Supermarket, 351 So.2d 138 (La.1977).


text:
    Mrs. Elnora HALL v. Jeanette SCOTT, etc. et al.
    No. 82-C-1990.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Mrs. Elnora Hall, applying for writ of certiorari or review, First Circuit, Court of Appeal. Parish of East Baton Rouge. 416 So.2d 223.

Granted.


text:
    John and Frances BURKE v. OCCIDENTAL LIFE INSURANCE COMPANY OF CALIFORNIA, et al.
    No. 82-C-2000.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re John and Frances Burke, applying for writ of certiorari. Parish of Orleans. Court of Appeal, Fourth Circuit, Civil District Court. 416 So.2d 177.

Granted. Summary judgment is set aside. Remanded for further proceedings.

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

DIXON, C.J., dissents from the summary reversal of the courts below.


text:
    STATE of Louisiana ex rel. Hilton WRIGHT v. ORLEANS CRIMINAL DISTRICT COURT.
    No. 80-KH-2983.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Hilton Wright, applying for writ of mandamus. Parish of Orleans. No. 268-605.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Donald JACKSON v. Honorable Matthew S. BRANIFF, Judge, Criminal District Court, Section “B”, Parish of Orleans.
    No. 82-KH-1248.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Donald Jackson applying for writ of mandamus. Parish of Orleans. No. 249-699(B).

Denied. Moot.


text:
    Derryl M. SLAUGHTER v. GEORGIA CASUALTY & SURETY COMPANY, Burns Forest Products, Inc. and Cleotis Knox.
    No. 82-C-1796.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Derryl M. Slaughter, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Bienville. 415 So.2d 312.

Denied.

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


text:
    Floyd ROOD v. Peter FINNEY, Jr., and United Press International Inc.
    No 82-C-1903.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Floyd Rood, applying for writ of certiorari. Parish of Orleans. Fourth Circuit Court of Appeal, Civil District Court. 418 So.2d 1.

Denied.


text:
    Sylvia SISTRUNK, et al. v. SUN OIL COMPANY et al.
    No. 82-C-1911.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Darby Equipment Company, Inc., applying for writ of certiorari. Parish of Sabine. Third Circuit, Court of Appeal. 417 So.2d 117.

Denied.


text:
    Theresa WILLIAMS, Individually and as Natural Tutrix of her Minor Child Cynthia McGEE v. PARISH OF EAST BATON ROUGE, Parish Government of East Baton Rouge, the Department of Public Works, Gary D. Plain and X Y Z Insurance Company.
    No. 82-C-1915.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Theresa Williams, Individually and as Natural Tutrix of Her Minor Child, Cynthia McGee, applying for writs of cer-tiorari or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 417 So.2d 483.

Denied.

LEMMON, J., concurs in the denial, because the result is correct.


text:
    Geraldine James HINES v. Wilbur Ray HINES, Curator of John David Hines.
    No. 82-C-1925.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Wilbur Ray Hines, Curator of John David Hines, applying for writ of certiorari and/or review, Third Circuit, Court of Appeal. Parish of Calcasieu. 419 So.2d 971.

Denied.


text:
    Norman BREAZEALE and Margaret Breazeale v. CNA INSURANCE and O’Keefe Tire & Service, Inc.
    No. 82-C-1926.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Norman Breazeale and Margaret Breazeale, applying for writ of certiorari or writ of review, Parish of St. Tammany. First Circuit, Court of Appeal. 417 So.2d 27.

Denied.


text:
    Keith S. TEMPLET, et al. v. Levi C. JOHNS, et al.
    No. 82-C-1927.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Keith S. Templet, et al, applying for writ of certiorari, or review, First Circuit Court of Appeal. Parish of East Baton Rouge. 417 So.2d 433.

Denied.


text:
    James McGEE, # 73523 v. The STATE of Louisiana, Through the LOUISIANA DEPARTMENT OF CORRECTIONS and or the Louisiana Board of Corrections.
    No. 82-C-1930.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re James McGee, applying for writ of certiorari, or review, First Circuit, Court of Appeal. Parish of East Baton Rouge. 417 So.2d 416.

Denied.


text:
    Elmer NAQUIN, et al. v. Henry J. SINGLETON, et al.
    No. 82-C-1931.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Patty Naquin, applying for writ of certiorari, or review, Third Circuit, Court of Appeal. Parish of St. Martin. 416 So.2d 1331.

Denied.


text:
    Ruby NED v. NATIONAL FIRE & MARINE INSURANCE COMPANY, et al.
    No. 82-C-1932.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re McNair Transport, Inc. and Excalibur Insurance Company, applying for writ of review from Third Circuit Court. Parish of Avoyelles. 416 So.2d 1321.

Denied.


text:
    In the Interest of the Minor Amy Rochelle VOYLES.
    No. 82-C-1934.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Tom D. Allgood and Irys Lynn Voyles Allgood, applying for writ of certiorari or review, First Circuit, Court of Appeal, Parish of East Baton Rouge. 417 So.2d 497.

Denied.


text:
    James J. BAILEY, III, et al. v. FRANK’S PETROLEUM, INC.
    No. 82-C-1935.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Fidelity National Bank of Baton Rouge, applying for writ of certiorari or review from the Sixteenth Judicial District Court. Parish of St. Mary. No. 63653.

Denied.


text:
    Valentine Guidry STRAUSS v. ALLSTATE INSURANCE COMPANY.
    No. 82-C-1936.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Valentine Guidry Strauss applying for certiorari or writ of review. Acadia Parish. Third Circuit Court. 417 So.2d 60.

Denied.


text:
    Edward HESSIFER v. SOUTHERN EQUIPMENT, INC. et al.
    No. 82-C-1940.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Edward Hessifer, applying for writ of certiorari, or review. Parish of Livingston. First Circuit, Court of Appeal. 416 So.2d 368.

Denied.

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

LEMMON, J. concurs, believing the result is correct.


text:
    Barry D. BURRIS v. INSURED LLOYDS, et al.
    No. 82-C-1952.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Lester Easterling, applying for writ of review. Parish of LaSalle. Third Circuit, Court of Appeal. 417 So.2d 511.

Denied.


text:
    Beth Burns PATTERSON v. Bobby Hurst PATTERSON.
    No. 82-C-1954.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Bobby Hurst Patterson, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. East Baton Rouge Parish. 417 So.2d 419.

. Denied.

LEMMON, J., would grant the writ as to credit for alimony pendente lite.


text:
    Pershing J. LATOUR and Roceil A. Latour v. William FRANCIS.
    No. 82-C-1955.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re William Francis, applying for writ of certiorari or review, First Circuit, Court of Appeal. Parish of Ascension. 417 So.2d 485.

Denied.

CALOGERO, J., would grant the writ.


text:
    Carolyn WELLS v. DEPARTMENT OF CORRECTIONS, LA. STATE PENITENTIARY. CONSOLIDATED WITH: Frances FOSTER v. DEPARTMENT OF CORRECTIONS, LA. STATE PENITENTIARY. CONSOLIDATED WITH: Shirley THOMPSON v. DEPARTMENT OF CORRECTIONS, LA. STATE PENITENTIARY.
    No. 82-C-1957.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Director of the Department of State Civil Service, applying for writ of certiorari, First Circuit,. Court of Appeal. 417 So.2d 377.

Denied.


text:
    Leon S. and Andrein L. POIRIER v. COLLECTOR OF REVENUE.
    No. 82-C-1958.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Shirley McNamara, in her capacity as Secretary of the Department of Revenue and Taxation, State of Louisiana, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Tangipahoa Parish. 417 So.2d 410.

Denied.

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


text:
    Barry D. BURRIS v. INSURED LLOYDS, et al.
    No. 82-C-1962.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Barry D. Burris applying for writ of certiorari, or review to the Court of Appeal, Third Circuit. Parish of LaSalle. 417 So.2d 511.

Denied.


text:
    Terry SONNIER v. Melvin DUPIN, et al.
    No. 82-C-1963.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Terry Sonnier applying for writ of certiorari, or review to the Court of Appeal, Third Circuit. Parish of Beauregard. 416 So.2d 1371.

Denied.


text:
    Willie HOWARD v. HERCULES-GALLION CO., et al.
    No. 82-C-1966.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Willie Howard, applying for remedial writs. Terrebonne Parish. No. 50371.

Denied.


text:
    Riley A. WILLIAMSON, Sr. v. Dick ALEWINE d/b/a Dick’s Garage and Truck Sales.
    No. 82-C-1967.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Dick Alewine d/b/a Dick’s Garage and Truck Sales, applying for writ of certiorari, or review, Third Circuit Court of Appeal. Parish of Rapides. 417 So.2d 64.

Writ denied.


text:
    STATE of Louisiana ex rel., Feltus STEWART v. C. Paul PHELPS.
    No. 82-KH-1971.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Feltus Stewart, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. Nos. 251-454.

Denied.


text:
    Verna Marie Delozia DIXON, Individually and as Natural Tutrix of Shelia Ann Delozia v. John WINSTON, Sr.
    No. 82-C-1992.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Verna Marie Delozia Dixon, Individually, applying for writ of certiorari, or review, Third Circuit, Court of Appeal. Parish of Natchitoches. 417 So.2d 122.

Denied.

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


text:
    Matthew ALEXANDER v. AVONDALE SHIPYARDS, INC.
    No. 82-C-1998.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Matthew Alexander, applying for writ of certiorari, Fourth Circuit, Court of Appeal. Parish of Orleans. 416 So.2d 126.

Writ denied.


text:
    Frank LANDRY v. Steven K. FAULKNER, Jr., and William M. Barnett.
    No. 82-C-2010.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Frank Landry, applying for writ of certiorari or review, Fourth Circuit, Court of Appeal. Parish of Orleans. 417 So.2d 1376.

Denied.


text:
    PEARL CORPORATION v. George Albert KNESEL.
    No. 82-C-2030.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re George Albert Knesel, applying for writs of certiorari, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 416 So.2d 149.

Denied.


text:
    Shirley McNAMARA, Secretary of the Department of Revenue and Taxation v. The ELECTRODE CORPORATION.
    No. 82-C-2032.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re The Electrode Corporation, applying for writ of certiorari, or review, First Circuit, Court of Appeal. Parish of East Baton Rouge. 418 So.2d 652.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana, ex rel. Joseph RICHEY v. Judge John S. COVINGTON, 19th Judicial District Judge.
    No. 82-KH-2219.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Joseph Richey, applying for supervisory writs. Parish of East Baton Rouge.

Denied. Trial court will act expeditiously.


text:
    In re ALex Chalmers HOPE, Jr.
    No. 82-O-2221.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Alex Chalmers Hope, Jr., applying for admission. Louisiana State Bar Association.

Denied.


text:
    STATE of Louisiana v. Willie O. JARVIS, Jr.
    No. 82-K-2342.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Willie O. Jarvis, Jr. applying for writs of certiorari and a stay order, Court of Appeal, Fourth Circuit. No. K-0032, Parish of Orleans, Criminal District Court. Nos. 262-969.

Denied. Stay order recalled.


text:
    STATE of Louisiana ex rel., Lendon Rae COLE v. STATE of Louisiana.
    No. 82-KH-2355.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Lendon Rae Cole, applying for writ of mandamus, and prohibition. Parish of Ouachita.

Denied. Relator must apply first to district court.


text:
    STATE of Louisiana v. Shelby Len ESTERS.
    No. 82-K-2466.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Shelby Len Esters, applying for supervisory writs. Parish of Rapides. No. 198636.

Denied.


author: GULOTTA, Judge.

text:
    Joseph PORROVECCHIO v. SALATHE OIL COMPANY and the Continental Insurance Company.
    No. 13076.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.
    Ballay & Braud, A Professional Law Corp., Stephen C. Braud, Belle Chasse, for plaintiff-appellee.
    Owen W. Joyner, Metairie, for defendants-appellants Salathe Oil Co. and The Continental Ins. Co.
    Before GULOTTA, KLEES and AUGUSTINE, JJ.
   GULOTTA, Judge.

Defendants, appealing, claim an $18,-000.00 general damage award for a “garden variety soft-tissue injury” of the neck and back “of several months duration” is excessive.

This matter was submitted on plaintiff’s testimony and that of an investigating officer, together with a hospital report and reports of an orthopedic surgeon and a neurologist.

In written reasons, the trial judge concluded that plaintiff had sustained various injuries, “the most serious being a severe cervical strain which caused him to miss a substantial amount of work and incur various medical expenses”. He awarded the following special damages, which are not in dispute.

Doctor Bills $960.00

Auto Rental 586.52

Pharmacy and Medication 89.23

Hospital Expenses 256.50

Lost wages 10,625.00

TOTAL— $12,517.25

Finally, the trial judge concluded that the injuries were “painful” and of a “constant nature”.

Joseph Porrovecchio, forty-three years of age at the time of the September 20, 1979 accident, sustained head, neck, shoulder and lower back injuries when his automobile was rear-ended by a truck driven by defendant, Larry J. Adler. According to Por-rovecchio’s testimony, within “a couple of hours” after the accident, he went to the emergency room at Jo Ellen Smith Hospital because of headaches and back pain. Following examination, a “neck brace” was prescribed, and plaintiff was released the same day.

On September 25, 1979, plaintiff saw an orthopedist, Dr. R.E. Horn, Jr., who found decreased range of motion of the cervical spine with spasm and tenderness in neck and shoulder muscles on both sides. X-rays of the cervical spine were negative. Dr. Horn’s diagnosis was “cervical strain”. Pain killing medication was prescribed with instructions for “mild neck exercises”.

On September 26, plaintiff saw Dr. Horn again with continued complaints of pain and a more potent pain reliever was prescribed. On October 12,1979 plaintiff complained to Dr. Horn of “shock-like” pain radiating down the left arm and was referred to Dr. Carl F. Culiechia, a neurosurgeon. On an October 16, 1979 visit, Dr. Horn noticed decreased range of motion of the cervical spine and prescribed cervical traction for fifteen-minute intervals three times a day.

Dr. Horn again discerned slight decreased range of motion of cervical spine on October 30, 1979 when plaintiff complained of pain at the base of the neck and headaches. Porrovecchio was sent to “physiotherapy for intermittent cervical traction”.

On December 1, 1979, the doctor noted that Porrovecchio continued to have “occipital headaches”. Continued complaints of headaches were noted by Dr. Horn on December 4, 1979 and February 1, 1980. According to Dr. Horn, plaintiff can anticipate occipital headaches and minor aggravating pains in the cervical region.

In an October 4, 1979 report, Dr. Culicc-hia, the neurosurgeon, stated that plaintiff had complained of headaches, pain and soreness over the left side of the neck, extending from the head and left shoulder, and discomfort in the lower back. Examination of the neck showed limitation of motion only in the extreme when turning the head to either side. X-rays showed no abnormality, and this physician concluded that plaintiff was not suffering from any neurologic injury or disease. It was Dr. Culicehia’s diagnosis that plaintiff had sustained a “slight cerbroconcussion”. Although plaintiff again saw this physician and expressed complaints of pain in the left occipital region, the doctor indicated in an October 11, 1979 report that the neurologic examination was normal. Medication was prescribed to relieve plaintiff’s headaches and muscle tension.

Dr. Culiechia noted in a November 13, 1979 report that Porrovecchio continued to experience pain at the back of the neck and headaches. According to this expert, plaintiff stated to him that more often than not cervical traction and physiotherapy worsened the symptoms for a short time. Dr. Culiechia again found no neurologic abnormality. Physical therapy was discontinued and a simple analgesic was prescribed. The physician recommended that plaintiff return to full and normal activity.

Finally, Dr. Culiechia concluded that no neurologic disorders contributed to plaintiff’s symptoms and he made no surgical recommendations. Plaintiff’s last visit to Dr. Culiechia was on November 13, 1979.

Porrovecchio testified that he had worn the neck collar for five or six weeks. He testified also that he had been placed in traction on a daily basis for approximately one week. His most serious complaints were with the “terrible headaches and blurry eyes”. According to plaintiff, prior to the accident he had no history of suffering from headaches and enjoyed fishing and trawling. Plaintiff stated that after the accident, because of frequent headaches, he “didn’t care to do anything”.

Plaintiff testified further that he suffered from headaches up to and including the June 1, 1981 trial date. He indicated that although he may not have a headache for a week, on other occasions the pain persisted for a “week or two”. According to Porrovecchio, he occasionally takes from six to twelve Tylenols a day. He described constant numbness in the back of the head.

Concerning his post-accident work habits, plaintiff testified that he continued to work as a longshoreman seven days a week just as he had before the accident. However, he was required to “. . . take off for two or three days” because he “couldn’t bear” the pain. Finally, Porrovecchio testified that he was physically able to resume activities approximately three or four months after the accident. He stated, however, that because of frequent headaches he did not engage in physical activities post-accident as he had prior to the injury.

When considering the medical evidence, we are of the opinion that the award is somewhat high. Nonetheless, the trial judge was obviously impressed with the continued and constant nature of plaintiff’s headaches and cervical pain. He apparently accepted the credibility of plaintiff’s testimony that he had continued to suffer with pain from the time of the September 20, 1979 accident until the date of trial. Under the circumstances, we cannot say the $18,-000.00 general damage award constitutes an abuse of discretion.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.


author: KLEES, Judge.

text:
    Mary LA PIERRE v. Joseph Gerard GIBSON.
    No. 13071.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.
    Writ Denied Nov. 29, 1982.

      Charles J. Pisano, Pisano & Pisano, New Orleans, for plaintiff-appellee.
    James E. Stovall, Jackson & Stovall, New Orleans, for defendant-appellant.
    Before GULOTTA, AUGUSTINE and KLEES, JJ.
   KLEES, Judge.

On December 26, 1979, Plaintiff filed a paternity suit seeking to have Defendant declared the father of her seven-year-old child. She also sought child support for the minor child.

This matter went to trial on the merits and judgment was rendered determining that Defendant was the father of the minor child, and he was ordered to pay child support in the amount of $200.00 per month. Defendant now appeals from that judgment contending that 1) the trial court’s findings of fact were manifestly erroneous; 2) the trial court erred in admitting blood tests into evidence without cross examination; 3) the trial court erred in its conduct of the trial; 4) the trial court erred in failing to apply the prohibition of R.C.C. Art. 210.

Did the trial court commit manifest error in making its findings of fact?

The pertinent Civil Code Articles for the establishment of illegitimate filiation in this particular case are the following:

“Illegitimate children, who have not been legally acknowledged, may be allowed to prove their paternal descent. C.C. Art. 208.
In the case where the proof of paternal descent is authorized by the preceeding article, the proof may be made in either of the following ways:
1. By all kinds of private writings, in which the father may have acknowledged the bastard as his child, or may have called him so;
2. When the father, either in public or in private, has acknowledged him as his child, or has called him so in conversation, or has caused him to be educated as such;
3.When the mother of the child was known as living in a state of concubinage with the father, and resided as such in his house at the time when the child was conceived. Art. 209.
The oath of the mother, supported by proof of the cohabitation of the reputed father with her, out of his house, is not sufficient to establish natural paternal descent, if the mother be known as a woman of dissolute manners, or as having had an unlawful connection with one or more men (other than the man whom she declares to be the father of the child) either before of since the birth of the child. Art. 210

Articles 208 and 209 were amended, and Article 210 was repealed in 1980. Nevertheless, these articles as amended are not retroactively applied to the instant case. State v. Watson, 403 So.2d 1249 (La.App. 2nd Cir.1981).

The burden of proof required of the plaintiff under these articles is to establish paternity by a preponderance of the evidence. Succession of Washington, 308 So.2d 892 (La.1975). Plaintiff’s petition states that paternity will be shown by sworn verbal testimony, in accordance with Articles 208 and 210 of the Civil Code. That is, plaintiff alleged she would prove paternity, by her oath, supported by proof of the cohabitation of the reputed father with her, out of his house. For the purposes of statutes relating to the legitimacy of children, the term “cohabitation” refers to acts of sexual intercourse. Ford v. Ford, 292 So.2d 275 (La.App. 2nd Cir.1974).

FACTS

Plaintiff testified that defendant was one of her high school teachers and they became acquainted during her junior year. Later in her senior year she began having sexual relations with him. She stated that their sexual relationship continued on a regular basis for eleven years. The child was born during that interval, in 1972. Plaintiff and three witnesses testified that she did not date anyone else other than defendant during the time of her relationship with him.

There is testimony that the defendant, who was married and the father of two children by that marriage, visited the plaintiff, often during her pregnancy. The defendant himself testified that he visited the plaintiff in the hospital after the birth of the child, and that he later attended the baptism of the child. He also went to the party after the baby’s baptism and visited the child frequently after he was born. The plaintiff testified that the defendant paid for medical treatments for the child, and that he once gave money to the plaintiff to send the child to a day camp. The record further reveals that the defendant accompanied the plaintiff and the child on a trip to Disneyworld. Photographs were admitted into evidence showing the defendant setting up drums for the child on Christmas Day 1974. Plaintiff testified that the defendant bought the child his outfit for kindergarten graduation. Witnesses testified that the defendant often picked up the child from the babysitter. The child called the defendant “daddy” and there is no evidence to indicate that defendant ever objected to this.

Considering the totality of the above facts, the trial court could reasonably have determined paternity based on the above evidence. It has been held that conclusive weight cannot be given to oath-plus-cohabitation if that evidence stands alone. Succession of Washington, supra.

Here, the oath-plus-cohabitation does not stand alone. The record reveals sufficient evidence to establish acknowledgement under subdivision (2) of R.C.C. Article 209. Here defendants continuous, habitual and frequent acts left little doubt that the defendant believed himself to be the father of the child. The court concludes that the trial court did not commit manifest error by determining Defendant to be the father of the minor child.

Did the trial court commit error in its handling of the blood test as evidence?

LSA — R.S. 9:396 gives a trial court the authority to order, on its own motion, blood tests of the parties involved in a paternity suit. LSA-R.S. 9:397 states the procedure to be used in selecting the expert to perform the blood tests. Its language in pertinent part follows:

The tests shall be made by experts qualified as examiners of blood types who shall be appointed by this court. The experts shall (emphasis added) be called by the court as witnesses to testify to their findings and shall (emphasis added) be subject to cross-examination by the parties.

The above procedure was not followed by the trial court. The findings of the expert were simply made a part of the record and defendant appellant was never given his right of cross-examination.

A careful reading of the Uniform Act on Blood Tests to Determine Paternity leads us to conclude that the legislature intended, due to the nature of the subject matter, to provide a carefully regulated evidentiary procedure. McGowan v. Poche, 393 So.2d 278 (La.App. 1st Cir. 1980). The court in McGowan stated that the thrust of the statute is to make available scientific evidence adduced through medical experts appointed by the court and called to testify by the court. Appropriately the right to cross-examine the experts is mandatorily reserved for both sides of the controversy. The language of the statute is explicit. It was not adhered to in this case.

However, the question remains open whether the failure to allow the statute was an error which prejudiced the appellant. Counsel for appellee argues that there was sufficient evidence of paternity not withstanding any consideration of the blood test results. This assertion has merit, and considering the totality of the facts, as brought out above, we find that the trial court’s conclusions are not manifestly erroneous, discounting completely the evidence of the blood tests.

Did the trial court commit error in its method of conducting the trial?

Appellee argues that the trial court completely dominated the examination of the witnesses and the trial itself.

Generally, a trial judge, in order to maintain the impartiality which proper trial technique demands, should be careful not only as to the number and type of questions propounded by him to witnesses but also as to the manner in which they are propounded. Texas Pacific-Missouri Pacific Terminal R. of New Orleans v. Welsh, 179 F.2d 880 (5th Cir.1950). The court in Texas Pacific further explained that the extent to which the trial judge may appropriately and reasonably interrogate witnesses is largely in the sound and unabused discretion of the trial judge.

In this particular case, our careful reading of the trial record does not indicate any abuse of discretion by the trial judge. The questions asked by the court were in an effort to aid the conduct of the trial.

Defendant relies solely on the case of Labadot v. Labadot, 328 So.2d 747 (La.App. 4th Cir.1976). This case is clearly distinguishable from the one at bar. In Labadot, the trial court committed manifest error by refusing to allow the plaintiff, who represented herself, to cross-examine an adverse witness. The court completely took over the cross examination. Therefore, the litigant was deprived of the procedural right of cross-examination. In this case, defendant was afforded his procedural rights to cross examine the witnesses.

In sum, the trial record reveals that the judge, in the interest of judicial economy and other well intentioned motives, asked numerous questions of various witnesses but did not abuse the broad discretion accorded him under La. C.C.P. Art. 1631.

Did the trial court error by failing to apply the prohibitions of C.C. Article 210?

Finally, the defendant argues that the plaintiff had sexual relations with other men near the time of the birth of the child, and therefore she should be prohibited from proving paternity under Article 210.

Two witnesses, Earl Johnson and Edwin Williams, testified that they had a sexual relationship with the plaintiff near the time of the birth of the child. The record reflects that the testimony of these witnesses lacks credibility. The trial judge obviously gave little weight to such testimony, and as he is the trier of fact we will not disturb his finding.

For these reasons, the judgment of the trial court is affirmed. Defendant-Appellant to pay all costs.

AFFIRMED.


author: WARD, Judge.

text:
    Regina McDERMOTT v. NEW ORLEANS PUBLIC SERVICE, INC., George Bozonier and Continental Insurance Company.
    No. 13061.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.

      Robert T. Hughes, New Orleans, for plaintiff-appellee.
    Floyd F. Greene, New Orleans, for defendant-appellant, New Orleans Public Service, Inc.
    Charles R. Capdeville, Metairie, for defendants-appellants, George Bozonier and Firemen’s Ins. Co. of Newark, N.J.
    Before REDMANN, LOBRANO and WARD, JJ.
   WARD, Judge.

Regina McDermott was injured on April 29,1980, while she was riding as a fare-paying passenger on a NOPSI bus which rear-ended an automobile while both the bus and the automobile were travelling east on Chef Menteur Highway in the City of New Orleans. Ms. McDermott sued NOPSI, and NOPSI then filed a third party action against the alleged driver of the automobile, George Bozonier. After a bench trial, the Trial Judge found NOPSI’s bus driver was clearly negligent, and he awarded Ms. McDermott $15,161.25 for medical expenses; $14,000.00 for lost wages; $96,-000.00 for diminished earning capacity; and $150,000.00 for general damages. On the other hand, he found NOPSI had not proved that Bozonier was the driver of the other automobile, and he rendered judgment for Bozonier and his insurer, dismissing NOPSI’s third party demand.

NOPSI has appealed and contends that the Trial Judge erred, first, when he found the NOPSI bus driver negligent, and second, when he found Ms. McDermott suffered injuries as a result of the accident. Although NOPSI does not contend that Ms. McDermott is not seriously injured, it vigorously argues that it is not liable for these injuries because they are not related to this accident, but were the result of a prior, unrelated accident. Finally, in the alternative and in support of its third party claim, NOPSI argues that the Trial Judge erred in dismissing the third party claim against the driver because the driver of the automobile was proved to be Bozonier, whose negligence was the sole cause of both the accident and whatever injuries Ms. McDermott suffered in the accident, if any.

The third party defendant Bozonier and his insurer have answered the appeal, claiming that the dismissal against them was proper. Ms. McDermott has filed an answer to NOPSI’s appeal, seeking to affirm the judgment against NOPSI.

The accident occurred on the Chef Ment-eur Highway just beyond the intersection of Chantilly Drive where there is a traffic light which controls the intersection of Chantilly and the highway. At this part of the highway, there are three eastbound traffic lanes, and the NOPSI bus was travelling east in the outer right lane. There is a factual dispute as to what occurred immediately before the bus hit the automobile.

The NOPSI driver testified that while he was operating the bus, the driver of an automobile changed lanes without notice, swerved in front of the bus, and abruptly stopped. The bus driver testified that he himself was going a little fast, but he claimed he could not have avoided rear-ending the automobile, although he had been able to fan his brakes before the impact.

On the other hand, Ms. McDermott and her witnesses, who were also passengers, testified that the driver was going fast and crossed the intersection in an attempt to beat the light by crossing on either a red or yellow light before rear-ending the automobile. Additionally, contradicting the driver, these witnesses testified that the driver of the automobile had not changed lanes, but while travelling in the same lane, stopped directly in front of the bus before it was rear-ended. Ms. McDermott testified that after the impact she was thrown against the seat in front of her and that she sustained injuries in the accident.

After the accident, while the bus driver was using the telephone to call his dispatcher, the driver of the automobile left the scene. Nonetheless, the bus driver testified that before using the telephone, he had an opportunity to speak with the other driver, who appeared to be drunk. As a matter of fact, all the witnesses who had observed the driver of the car testified that he walked and talked in an intoxicated manner.

In NOPSI’s third party claim, however, the issue is identification, not intoxication, because Bozonier emphatically denied he was the driver of the automobile and accounted for his presence at another place on the date and time of the accident. Furthermore, NOPSI’s bus driver, to his credit, admitted he was not sure Bozonier was the other driver, and he refused to make an identification. Moreover, other witnesses in the case testified Bozonier was not the driver.

We hold that the Trial Judge was correct, and we affirm his judgment for the following reasons. Because NOPSI is engaged as a common carrier operating a public conveyance, it owes a special duty to its fare-paying passengers, and there is a presumption that NOPSI has breached its duty when a fare-paying passenger is injured. This presumption shifts the burden to NOPSI to prove that it was not negligent. The law is stated in Davis v. Owen, 368 So.2d 1052 (La.1979):

Because plaintiffs were fare-paying passengers on a public conveyance and were injured, defendant NOPSI had the burden of proving that it was without the slightest degree of negligence. As this Court stated in Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963):
The mere showing of injury to a fare-paying passenger on a public conveyance and his failure to reach his destination safely establishes a prima facie case of negligence and imposes the burden on the carrier of convincingly overcoming such case.
A public carrier of passengers while not an insurer is required to exercise the highest degree of vigilance, care and precaution for the safety of those it undertakes to transport and is liable for the slightest negligence.
# :}; * >fs * *
The carrier must do all that human sagacity and foresight can do under the circumstances, in view of the character and mode of conveyance adopted to prevent injury to passengers, the carrier being held liable for the slightest negligence with reference to the exercise of such care. (Citations omitted).

NOPSI has not shown that the bus driver was not negligent; rather, the evidence shows both that he was able to fan his brake at least once before rear-ending the car and that he was travelling “a little fast.” The Trial Judge found that NOPSI has not proved that it was without negligence, and his factual finding was not clearly wrong; moreover, it is patently correct. Canter v. Koehring Co., 283 So.2d 716 (La.1973), Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The central issue in this appeal, however, is the proof of the cause of extensive injuries which Ms. McDermott unquestionably has suffered. Were the injuries caused by the negligence of NOPSI or by a work related accident? As we have said, Ms. McDermott had been injured before this accident, and NOPSI vigorously argues that all of her injuries resulted from the earlier accident, and none from this one. Hence, the issue is not whether this accident aggravated pre-existing injuries; the issue in this case is whether this accident caused any of the injuries which Ms. McDermott has suffered.

Cause in fact, as distinguished from proximate cause, is a factual issue, which is best decided by the trier of fact, the Trial Judge in this case, who found that the traffic accident was the cause of Ms. McDermott’s injuries. Again, the rule as to factual issues is:

In reviewing the questions of fact and conclusions of fact involved in this suit for damages, the Court of Appeal is mandated to leave undisturbed factual findings of the trial court based upon evidence which furnished a reasonable factual basis for those findings unless it finds manifest error. ‘Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.’ Canter v. Koehring Co., 283 So.2d 716, 724 (La.1978). If, however, the appellate court concludes that the trial court’s factual findings are clearly wrong, the mere fact that some record evidence appears which would furnish a reasonable factual basis for the contested findings does not require affirmance. Arceneaux v. Dominigue, 365 So.2d 1330 (La.1978).

Davis v. Owen, 368 So.2d 1052, 1056 (La.1979). The record does not show that the Trial Judge was clearly wrong when he determined that Ms. McDermott’s injuries were caused by the bus driver’s negligence in this accident. His finding is supported by the record.

The record is clear in one instance, Dr. Jarrott testified that it was his opinion that the plaintiff’s problems were caused by the bus accident; in addition, Dr. Llewellyn wrote in his report which was made part of the record, that Ms. McDermott’s “problems had their origin on April 29, 1980, and were the consequences of an automobile accident.”

On the other hand, NOPSI’s attempt to show that this accident was not the cause of the injuries rests primarily on the claim that Ms. McDermott had suffered an earlier injury which had required physical therapy. The record shows, however, that she had been discharged from treatment on March 7, 1980, more than one month before this accident occurred. We, therefore, will not disturb the Trial Judge’s factual finding that the present accident, which occurred while Ms. McDermott was a passenger on a NOPSI bus, caused her injuries.

The record also indicates that the Trial Judge was correct when he found that George Bozonier was not proven to be the intoxicated driver of the automobile which the bus rear-ended. Although he had been linked to the accident by means of the license number of the car involved, Bozonier denied that he was the driver or that he had been in the accident; moreover, he described his activities at the time of the accident. Although the driver of the car had been observed by several of the witnesses who testified at trial, their testimony clearly did not prove that Bozonier was the driver; rather they testified that Bozonier was not the same man who drove the car, and most significantly, the driver of the bus refused to cast Bozonier as the other driver.

The evidence supports the conclusion of the Trial Court that Bozonier, who appeared at trial, was not the same person who was driving the ear and who left the scene of the accident. The dismissal of NOPSI’s third party action against Bozonier was correct.

AFFIRMED.


author: CURRAULT, Judge.

text:
    JEFFERSON BANK & TRUST COMPANY v. NATIONAL GOLD MINING COMPANY, INC. and Virgil Lloyd.
    No. 5-80.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 30, 1982.

      Ronald J. Vega, Gauthier, Murphy, Sherman, McCabe & Chehardy, Kenner, for plaintiff-appellee.
    Patrick F. Lee, Donelon, Cannella & Do-nelon, Metairie, for plaintiff-appellee.
    Harry D. Hoskins, III & F. M. Stoller, Hammett, Leake, & Hammett, New Orleans, for defendant-appellant.
    Before BOUTALL, KLIEBERT, and CURRAULT, JJ.
   CURRAULT, Judge.

Jefferson Bank and Trust Company filed suit against National Gold Mining Company, Inc. and Virgil Lloyd seeking to recover under two promissory notes. A preliminary default judgment was taken on March 11, 1981, and confirmed on March 18, 1981. Defendant-appellant, National Gold Mining Company, Inc., has appealed contesting the validity of the default judgment. In return, plaintiff filed a Peremptory Exception of No Right or Interest and Motion to Dismiss.

PEREMPTORY EXCEPTION OF NO RIGHT OR INTEREST AND MOTION TO DISMISS

An exception is treated as what it actually is, not as what it is titled. Smith v. Smith, 341 So.2d 1147 (La.App. 1st Cir. 1977). Plaintiff has filed the above-styled motion suggesting to this court that the appeal in this cause should be dismissed. Although plaintiff’s pleading has coupled two distinct motions and is entitled “Peremptory Exception of No Right or Interest and Motion to Dismiss,” we find that the latter is in essence a motion to dismiss for irregularities since plaintiff is alleging irregularities imputable to defendant. This motion then is governed by LSA-C.C.P. art. 2161, and is untimely under such article.

Additionally, plaintiff, in suggesting that the appeal in this cause should be dismissed, contends that defendants have not in reality initiated their appeal in their own behalf, but said appeal was rather instituted by parties unauthorized to act on behalf of defendants, and who have no right or interest to prosecute the appeal.

Peremptory exception of no right of action raises a question of whether plaintiff has any interest in enforcing judicially the right asserted. Budd Const. Co., Inc. v. City of Alexandria, 401 So.2d 1070 (La.App. 3d Cir.1981). The record indicates that the appeal was taken by National Gold Mining Company, Inc., one of the named defendants. Certainly, National Gold Mining Company, Inc., as one cast in judgment, has a genuine and real interest in perfecting the appeal on its own behalf. We find the record void of any evidence supportive of plaintiff’s allegations.

Accordingly, plaintiff’s Peremptory Exception and Motion to Dismiss is denied.

MERITS

Appellee filed suit on January 21, 1981. A preliminary default judgment was taken on March 11, 1981, and was confirmed on March 18, 1981. Defendant-appellant complains that the perfection of the default judgment by the trial court was in error in that: (1) plaintiff did not make his claim legally certain and that he did not prove the essential allegations of his petition and claim by competent evidence as though each allegation was specifically denied by defendant; that (2) the default judgment was not supported by sufficient evidence presented by plaintiff; and that (3) the evidence heard did not conform to the pleadings as required by Louisiana law.

The first note, dated April 8, 1980, made payable to plaintiff-appellee in the sum of $25,000 with interest at the rate of eighteen percent (18%) per annum payable “on or before 120 days” was signed by defendant Virgil Lloyd.

The second note, dated May 3,1979, made payable to plaintiff-appellee in the sum of $60,958.41, payable on demand and bearing an interest rate of “Chase prime plus 2*/2% adjustable monthly floating” carried the written signature of Virgil Lloyd with the typed name of National Gold Mining Company, Inc. above Mr. Lloyd’s signature. The back of this note bears the “personal endorsement” of Virgil Lloyd.

In confirming a default judgment, it is necessary that the plaintiff prove all essential elements of the claim by competent evidence, as fully as if each allegation had been specifically denied. LSA-C.C.P. art. 1702; Schueler v. Schueler, 362 So.2d 1146 (La.App. 2d Cir.1978). Normally a default judgment carries with it the presumption that the judgment was confirmed by evidence sufficient to support a prima facie case. However, this presumption is not operative in cases such as this where the record on appeal contains a complete transcript of the confirmation proceedings. Schueler, supra.

At the confirmation proceeding, plaintiff’s counsel introduced and filed the entire record, more particularly the petition filed January 21, 1981, and the notes. On one note, the maker is only Lloyd and nowhere does it appear that National Gold Mining Company, Inc. is indebted on it. The petition, in Paragraph III, alleges the interest on the other note made by defendant National Gold Mining Company, Inc. to be sixteen percent (16%). In contrast, the said note clearly has “Chase prime plus 2y2%'adjustable monthly floating” notated on its face. The mere allegation that the interest rate was sixteen percent (16%) is not sufficient to confirm a default judgment. Plaintiff failed to introduce any evidence that would sufficiently support that allegation as if it had been specifically denied.

The judgment does not cast anyone, but is simply rendered in favor of plaintiff for the total amount alleged to be due under both notes. Accordingly, since the plaintiff has failed to prove with any legal certainty the exact amount due on one particular note, we cannot accept the amount recited in the affidavit of correctness to be the correct unpaid balance of both notes.

For the reasons assigned, the judgment of the trial court is annulled and this case is hereby remanded to the trial court for further proceedings consistent with the findings herein. Assessment of all costs shall await final disposition of this matter by the trial court.

ANNULLED AND REMANDED.


author: WILLIAMS, Judge.

text:
    Leon WILLIAMS v. BOH BROTHERS CONSTRUCTION COMPANY, INC.
    No. 13216.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 1, 1982.

      Michael H. Piper, III, New Orleans, for plaintiff-appellant.
    Joseph F. Clark, Jr., New Orleans, for defendant-appellee.
    Before SCHOTT, GARRISON and WILLIAMS, JJ.
   WILLIAMS, Judge.

This case arises from the trial court’s denial of plaintiff’s motion to make payments executory in a worker’s compensation award. The denial follows from a judgment, in plaintiff’s favor, awarding “.. . compensation for a period not to exceed two hundred (200) weeks at the rate of 66%% of wages paid for permanent partial disability of 15%...” dating from the date of the injury. The judgment, and subsequent denial of plaintiff’s motion to make the payments executory, were without written reasons.

Plaintiff’s arm was broken while working for defendant. He required two surgical procedures to aid proper healing. During his treatment, from February 8, 1977, through February 8,1978, plaintiff received compensation at the rate of $95.00 per week. Benefits were then reduced to $30.00 per week (the minimum for an arm injury) from February 9, 1978, through April 2, 1980. One additional payment of $75.00 was received on February 28, 1980.

In February, 1979, when the benefits were reduced to $30.00 per week, plaintiff filed suit seeking worker’s compensation payments at the rate of $95.00 per week for his alleged total permanent disability. The judgment rendered by the court concluded that based upon the medical evidence plaintiff had a 15% permanent partial disability and therefore, under the applicable statute (LSA-R.S. 23:1221(4)(f)), plaintiff was entitled to compensation for two hundred (200) weeks at the rate of 66%% of wages paid with a permanent partial disability rating of 15%; subject to credit for payments already received. In applying this formula, as defendant’s brief correctly provides, plaintiff is entitled to $6,000.00 ($30.00 per week X 200 weeks). This is the same method followed by this Court in two prior cases, Bozeman v. Furin-Colnon Construction Company, 396 So.2d 416 (La.App. 4th Cir. 1981); Heyman v. Dixie Leasing Corporation, 250 So.2d 118 (La.App. 4th Cir.1971). At the time judgment was rendered on February 12, 1980, plaintiff had received approximately $4,940.00 ($95.00 per week for the time he was considered totally disabled owing to the two surgeries performed on his injured arm). Plaintiff also received approximately $3,360.00 in weekly payments at $30.00 per week for the two year period thereafter, for a total of approximately $8,300.00.

In May, 1980, plaintiff moved the court below to make these benefit payments exec-utory for the period February, 1978, through April, 1980, for the difference ($65.00) between what plaintiff had received ($30.00 per week) and what he alleged he was due ($95.00 per week) by virtue of his alleged permanent total disability and further sought 12% penalty, interest, attorney’s fees, and costs. Plaintiff then timely perfected this appeal of the denial of the motion to make these payments executory.

At the outset, it should be noted that plaintiff has already received more than the schedule of benefits provides as minimum payments ($8,300.00 versus $6,000.00) for his type and degree of disability. LSA-R.S. 23:1221(4)(f).

There are only two issues to be decided on appeal. First, did the trial court err in its determination of plaintiff’s disability, and second, given plaintiff’s disability, did the trial court apply the proper computation in determining the benefits to be paid?

The trial judge made a credibility determination based upon the medical testimony of the two experts. The medical testimony introduced at trial clearly showed that plaintiff had only suffered 15% loss of use of one arm. Further, the evidence showed plaintiff had some residual disability (15%) to the arm, but, he would not be prevented from performing the same duties as he did prior to his injuries (i.e., driving a pick-up truck only on the employer’s construction site). In summary then, the court found ample evidence of plaintiff’s disability being only partial in nature and, therefore, did not err in its determination of a 15% partial permanent disability rating for plaintiff. On appeal, the standard of review to be applied by this court is as follows:

“In reviewing the questions of fact and conclusions of fact involved in this suit for damages, the Court of Appeal is mandated to leave undisturbed factual findings of the trial court based upon evidence which furnishes a reasonable factual basis for these findings, unless it finds manifest error. ‘Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.’ Canter v. Koehring Co., 283 So.2d 716, 124 (La.1973). If, however, the appellate court concludes that the trial court’s factual findings are clearly wrong, the mere fact that some record evidence appears which would furnish a reasonable factual basis for the contested findings does not require affirmance. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).”

Davis v. Owens, 368 So.2d 1052, 1056 (La.1979).

In the instant appeal, we cannot conclude that the trial court was manifestly erroneous.

The computation of plaintiff’s benefits is also well settled. See Bozeman and Heyman, supra. The computation follows this formula:

Wage Rate X 40 hours per week = average weekly wage
Weekly wage X 66 %% = compensation rate
Compensation rate X disability rating = total compensation due per week (not to be, in this instance, less than $30.00 per week).

Plaintiff has already received more than he is entitled to under Bozeman and Heyman, supra, according to the judgment rendered below which indicated that all payments made up to and through the date of trial were to be counted against defendant’s judgment.

For the reasons discussed, the judgment of the District Court is affirmed.

AFFIRMED.

      . Plaintiff did not appeal from the first judgment dated February 12, 1980. He filed his motion to make payments executory on May 5, 1980 and this appeal is from the denial of that motion of March 23, 1981.


text:
    James DEVANE v. BOARD OF COMMISSIONERS OF the PORT OF NEW ORLEANS.
    No. 13067.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 7, 1982.

      Jon A. Gegenheimer, Gretna, for plaintiff-appellant.
    Esmond Phelps, II, New Orleans, for defendant-appellee.
    Before REDMANN, LOBRANO and WARD, JJ.
   WARD, Judge.

In January 1978, while James Devane was employed by the New Orleans Public Grain Elevator as a maintenance electrician, he injured his legs and ankles when he fell through a hole on the turnhead floor of the elevator and landed on the next floor. Although Devane was paid worker’s compensation benefits by the Public Grain Elevator, his immediate employer, he brought a tort suit against the Board of Commissioners of the Port of New Orleans. The suit against the Port of New Orleans was dismissed in a summary judgment in the District Court, and Devane has appealed.

The issue in this appeal is a question of definition. Is the Port of New Orleans a principal, commonly known as the statutory employer, of Devane as defined by La.R.S. 23:1061? If the Port of New Orleans is the statutory employer of Devane, as the Trial Judge determined, the summary judgment was proper because a principal (statutory employer), while liable for worker’s compensation to an injured statutory employee, is immune from third party tort suits by the injured employee. LSA-R.S. 23:1032. The language of the statute defines a principal (statutory employer):

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

Devane first argues that the Trial Judge erred in holding that the Port of New Orleans was a statutory employer because there was not a relationship of principal-contractor between the Port of New Orleans and the Public Grain Elevator, but, instead, the relationship was one of lessor-lessee. On the other hand, the Port of New Orleans contends that it is a principal as the word is defined by LSA-R.S. 23:1061 and, therefore, is immune from this tort suit by Devane.

This Court has previously considered the same issue in Schmolke v. Krauss Company, 217 So.2d 789, 791 (La.App. 4th Cir., 1969) and has clearly held that a contract of lease may establish a contractual relationship which makes the lessor a principal (statutory employer) within the meaning of LSA-R.S. 23:1061.

If plaintiff were seeking workmen’s compensation rather than damages in tort, we would have little difficulty in tracking the quoted, statute, by saying Krauss did undertake the operation of a shoe department, which is part of its trade or business of operating a department store, and contracted with Katz for the execution by Katz of the operation of the shoe department.
The liberal construction of the Workmen’s Compensation Act required to accomplish its humane purpose by including all workmen reasonably afforded its protection must equally be applied when an injured person seeks exclusion from the act in order to seek damages in tort; Spanja v. Thibodaux Boiler Works, 2 So.2d 668 (La.App.1941).
Krauss and Katz may be lessor and lessee, but they are additionally principal and contractor within Section 1061. An ordinary lessor is not his lessee’s principal, because the ordinary lessor does not undertake to perform part of his trade or business by contracting with his lessee to execute it, as Krauss did. Thus simple lessor-lessee cases like Fouchaux v. Board of Com’rs of Port of New Orleans, 193 La. 182, 190 So. 373 (1939), are not controlling here.

Moreover, the Supreme Court has defined what is meant by “principal” under the compensation statute in the case of Klohn v. Louisiana Power and Light, 406 So.2d 577, 580 (La.1981) where it stated:

. . . For purposes of this Section, the word “principal” shall be defined as any person who undertakes to execute any work which is a part of his trade, business, or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.

Although in that case the contract was an operating agreement, not a lease, the definition is applicable, and we hold that a lease may clearly fall within the definition when the lease contract requires that the lessee execute work which the lessor had previously undertaken as part of the lessor’s trade or business.

Devane next argues that operation of a grain elevator is not the business of the Port of New Orleans, and hence, for this reason also, it does not come within that part of the definition of principal. The part of LSA-R.S. 23:1061 which is relied on by Devane defines “principal”:

Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person....

Authority for the operations of the Port is legislatively granted by LSA-R.S. 34:1 et seq. LSA-R.S. 34:21 contains the specific authorization for the Port “to finance, erect and operate all basins, locks, canals, and warehouse elevators... . ”

In 1964, the Port of New Orleans entered into a lease with the Public Grain Elevator. The lease provided that the Public Grain Elevator would lease the grain elevator facility from the Port of New Orleans and continue to operate the facility, which is but one operation among the extensive, complex activities granted by statute to the Port of New Orleans. The lease also provided that the cost for renting the facility would be based on the number of bushels of grain handled by the Public Grain Elevator; the lease estimates the number of bushels of grain anticipated to be delivered per year. By this agreement, the Port of New Orleans contracted with the Public Grain Elevator to carry out the operation of the grain elevator facility, an operation which is clearly part of the “trade or business” of the Port of New Orleans.

We, therefore, find that the Port of New Orleans undertook to execute work which it had a statutory duty to perform and which is part of the business of the Port by contracting with the Public Grain Elevator for performance of that work, and although the relationship arises from a lease, the relationship is one of principal-contractor within the clear meaning of LSA-R.S. 23:1061.

Hence, the Port of New Orleans is a principal (statutory employer) and is immune from the third party tort claims of Devane, its statutory employee.

We hold that the Trial Judge did not err when he granted a summary judgment, and we affirm.

AFFIRMED.