author: SAVOIE, Judge.

text:
    ADCOMM OF LOUISIANA, INC. v. COASTAL RESTAURANT ENTERPRISES, INC. d/b/a E.L. Saturday’s.
    No. 83 CA 0270.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    J. Wendell Clark, Baton Rouge, for plaintiff-appellee Adcomm of Louisiana, Inc.
    Stanwood R. Duval, Jr., Houma, for defendant-appellant Coastal Restaurant Enterprises, Inc., d/b/a E.L. Saturday’s.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Defendant appeals the trial court’s finding that it was indebted unto the plaintiff for amounts owed on a contract between the parties.

After some negotiation between defendant’s general manager, Mr. Thompson, a contract was entered into by the parties on August 10, 1981. Therein, plaintiff agreed to provide certain advertising for defendant’s business and establishment (i.e., Saturday’s). Such contract was terminable at any time by either party upon payment to the plaintiff of all costs previously authorized and spent by it. It further provided that any balance owed and unpaid within 30 days from the initial statement date bore an interest rate of one and one-half (IV2%) per cent per month on the unpaid balance. Plaintiff filed suit on January 19, 1982, to collect for arrearages owed, interest due, and reasonable attorney’s fees and costs as required under the contract.

The trial court found that the contract provided for no set termination date. However, it determined from the evidence introduced that the contract was terminated on September 8, 1981. Accordingly, it found defendant liable under the contract for all expenses incurred and those which the plaintiff could not cancel thereafter up to September 8, 1981. Such expenses as indicated by invoices amounted to $2,257.16. The trial court further found that certain other services were provided defendant by plaintiff in the amount of $1,951.30. Such amount, however, was not owed under the contract’s provisions. Thus, this amount was not subject to the one and one-half per cent per month interest and attorney’s fees.

Defendant asserts the trial court erred in: (1) holding that a contract existed between the parties after August 31, 1981, (2) finding that the contested services reflected on the invoice were, in fact, authorized by the defendant, and (3) awarding conventional interest and attorney’s fees on the services rendered from September 1 through September 8. The plaintiff answered the appeal, asserting that the trial court erred in its calculation of the charges incurred prior to the September 8, 1981 termination of the contract.

Defendant first asserts that the trial court erred in holding that a contract existed between the parties after August 31, 1981. Great weight is to be accorded the findings of the trier of fact and will be overturned only if clearly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Here, the trial court found that a contract existed between the parties for an indefinite term terminable at the parties’ option. It also found that the contract was not terminated until September 8, 1981. We find no clear wrong in the trial court’s findings. Accordingly, defendant’s first assignment of error is without merit.

Secondly, defendant asserts the trial court erred in finding that the contested services reflected on the invoice were, in fact, authorized by the defendant. As stated above, the findings of the trier of fact are to be accorded great weight. Arcen-eaux, supra. We find no clear wrong in the trial court’s findings. Accordingly, defendant’s second assignment of error is without merit.

Finally, defendant contends that the trial court erred in awarding conventional interest and attorney’s fees on the services rendered from September 1 through September 8.

Having determined that the contract was not terminated until September 8, 1981, its provisions are binding upon the parties. The contract provides that interest shall run at one and one-half per cent per month on the unpaid balance on any amount due and unpaid for a period in excess of 30 days after the initial statement date. By the contract’s very terms, defendant owes the interest awarded by the trial court. Accordingly, defendant’s assignment of error is without merit.

Plaintiff contends the trial court erred in its calculation of the charges incurred prior to the termination of the contract. Great weight is given to the trial court’s findings of fact and will be overturned only if clearly erroneous. Arceneaux, supra. The trial court found from the testimony given and evidence submitted that those charges in excess of $2,257.16 were not owed under the contract. Accordingly, they are not subject to the one and one-half per cent per month interest. We find the trial court was not clearly wrong in its findings. As such, plaintiff’s assignment of error is without merit.

Plaintiff also asks this court to tax defendant for attorney’s fees, court costs, and all other costs of collections involved in this appeal. By contract between the parties, the defendant agreed to pay such costs. We find the trial court’s award of $600.00 in attorney’s fees to be appropriate under the contract.

For the above and foregoing reasons, judgment of the trial court is affirmed in all respects. Defendant is to pay all costs.

AFFIRMED.


source: Caselaw Access Project

author: LANIER, Judge.

license: Public Domain

text:
    Mary Derouen Bone CHERAMIE v. Bohna BONE, Jr.
    No. 83 CA 0273.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    William F. Dodd, Houma, for plaintiff and appellee.
    Bohna Bone, Jr., in pro. per.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This is a suit for partition of community property. The trial court initially ordered all of the community property partitioned by licitation. The husband appealed that judgment to this court, and we reversed because no evidence was presented to the trial court to show whether or not the property could be divided in kind. We remanded this cause back to the trial court to take evidence of the nature and extent of the community property, its value, the liabilities of the community and the susceptibility of the property to be partitioned in kind. Cheramie v. Bone, 422 So.2d 1372 (La.App. 1st Cir.1982).

On remand, the wife filed a pleading entitled “Motion for Rehearing” with the trial court requesting that “a new hearing be set by this Honorable Court in order that additional testimony and affidavits might be given at same.” The husband responded to this pleading by filing peremptory exceptions pleading prescription, res judicata and no right and/or cause of action. After hearings on the exceptions and the motion, the trial court overruled the exceptions and again rendered judgment ordering all of the community property partitioned by licitation. The husband took this suspensive appeal.

EXCEPTIONS

The husband contends that the trial court’s judgment overruling his exceptions is in error. He contends that the remand ordered by this court was in effect a granting of a new trial governed by La.C.C.P. art. 1971 et seq., that the “Motion for Rehearing” was not timely filed pursuant to La.C.C.P. art. 1974, that the wife no longer had a right to a new trial or an appeal and this matter is res judicata, and that since the matter has prescribed and is res judicata, the wife no longer has a right and/or cause of action. These contentions are without merit.

Pursuant to the authority of La. C.C.P. art. 2164, an appellate court may remand a case to the trial court for the taking of additional evidence when the record on appeal is so incomplete that the court is unable to reach a just decision. Emery v. Cabral, 400 So.2d 340 (La.App. 4th Cir.1981), writ denied 405 So.2d 533 (La.1981); Bodin v. Bodin, 392 So.2d 759 (La.App. 3rd Cir.1980); Succession of Brice, 390 So.2d 905 (La.App. 2nd Cir.1980). In the instant case, this court ordered a remand for the taking of evidence because there was no evidence presented at the initial hearing on the nature and extent of the community property, its value, the liabilities of the community and the susceptibility of the property to partition in kind. The wife’s “Motion for Rehearing” was obviously a request that the trial court conduct the evidentiary hearing that we ordered. Although the caption of this pleading is not precise, its purpose is evident and the husband was not prejudiced thereby. La.C.C.P. art. 865; Evans v. Ivy, 428 So.2d 886 (La.App. 1st Cir.1983). The hearing conducted by the trial court was not a new trial governed by La.C.C.P. art. 1971 et seq. or a rehearing. Instead, it was a hearing to take evidence pursuant to the express order of this court.

PARTITION BY LICITATION

The husband contends that the trial court committed error by again ordering all of the community property partitioned by licitation. In particular, he asserts that the common stock of Bone, Inc., which does business under the trade name of United Rent All, is divisible in kind.

At the hearing on remand, the principal witness was Rosemary Azar. She testified that she was appointed in the divorce proceedings between the parties hereto as notary public to inventory and partition the community of acquets and gains. She prepared an inventory dated March 9, 1981, which was homologated by the court on April 1, 1981. This inventory was the only evidence introduced to show the nature and extent of the community property, its value and the liabilities of the community. Azar testified that the family home was not divisible in kind, but no. other evidence was received concerning the susceptibility of the other community property to partition in kind.

The hearing on remand was held in the trial court on January 3, 1983. At that time, proceedings involving the partition of community property were controlled by the provisions of La.R.S. 9:2801. Simon v. Simon, 421 So.2d 931 (La.App. 4th Cir.1982), writ denied 423 So.2d 1181 (La.1982); Cf. Jackson v. Jackson, 425 So.2d 379 (La.App. 3rd Cir.1982). La.R.S. 9:2801(4)(a) specifically provides that in a partition of community property “[T]he court shall value the assets as of the time of trial on the merits, ... ”. This provision of the law was not complied with on the remand. The family home was valued in March of 1981 at $90,-000 and was then subject to a mortgage of $28,348.67, for a net value of $61,651.33. This value for the family home was based on an appraisal dated August 13, 1980. There is no evidence in the record to show the value of the family home in January of 1983 or what amount then remained due on the mortgage. The value of $201,191.04 placed on the 48 shares of common stock in Bone, Inc. was based in part on an appraisal of corporate property made on January 19, 1981. No evidence was given as to the value of the stock in January of 1983. A cash surrender value of $2,752 was placed on a policy of life insurance in March of 1981. There is no evidence to show the cash surrender value of that policy in January of 1983. The valuations placed on the community property in March of 1981 are not sufficient to partition this same property in January of 1983.

La.R.S. 9:2801(4) establishes an order of priorities to be considered by the trial court in allocating the assets and liabilities of the parties. The record does not reflect that this order of priorities was considered in the instant case. In Spaht, Matrimonial Regimes, 43 La.L.Rev. 513, 515-516 (1982) appears the following:

The court then shall divide the community assets and liabilities so that each spouse receives property of equal net value. The language is identical to that of article 2369.1, which was repealed. The first priority in dividing the assets and liabilities is a partition in kind, evidenced by the following language: “The court shall allocate or assign to the respective spouses all of the community assets and liabilities.” In allocating the assets and liabilities, the court has authority to divide a particular asset or liability equally or unequally, or the court may allocate it in its entirety to one of the spouses. In deciding to whom an asset or liability shall be allocated, the court “shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances that the court deems relevant.” If the allocation results in an unequal net distribution, the court shall order the payment of “an equalizing sum of money, either cash or deferred, secured or unsecured, upon such terms and conditions as the court shall direct.”
Should the allocation of an asset in whole or in part be inequitable to a spouse, the court has two options: (1) order the parties to draw lots for the asset, or (2) order a private sale of the asset “on such terms and conditions as the court deems proper.” These two options should be used only when neither husband nor wife has a more meritorious claim to an item of community property. Otherwise, it might be inequitable for the court to assign the asset to one spouse. If the court orders a “drawing of lots,” the unsuccessful party would be entitled to other community property of equal value or an equalizing sum of money.
A partition by licitation should be ordered only in the event no other alternative can be utilized. If a public sale is ordered, the court has authority to fix minimum bids and “other terms and conditions.” However, if the court orders partition by licitation, it “shall expressly state the reasons why the asset cannot be allocated, assigned by the drawing of lots, or sold at private sale.” Obviously, partition by licitation is disfavored as a method for partitioning the community, and under the system of priorities, it should be the method of last resort.
[Footnotes omitted].

The trial court ordered that all community property be partitioned by licitation. The 1981 inventory indicates that the community had six $25 U.S. Savings Bonds and $40 in cash (which was found in an envelope in a safety deposit box). There is no evidence in the record to show why this property cannot be divided in kind. The 1981 inventory indicated that 24 of the 48 shares of stock of Bone, Inc. were in a stock certificate in the name of the husband, and the other 24 shares were in a separate stock certificate in the name of the wife. There is no evidence to show why this stock should not be confirmed in the names of the spouses. See, for example, Ballard v. Ballard, 367 So.2d 1223 (La.App. 2nd Cir.1979); Cf. Crews v. Crews, 432 So.2d 377 (La.App. 1st Cir.1983). The 1981 inventory shows accounts receivable due the community of $13,300 from the husband and $2,100 from the wife. There is no evidence of record to show why these accounts must be sold at public auction.

The evidence adduced at the hearing on remand is inadequate to properly adjudicate this action pursuant to the law. Because these proceedings have been protracted, we are most reluctant to again remand this matter to the trial court for additional evidence. However, after reviewing the record, we find that we have no alternative.

CONCLUSION

For the foregoing reasons, the judgment of the trial court overruling the husband’s exceptions of prescription, res judicata and no right and/or no cause of action is affirmed. The judgment of the trial court ordering all community property partitioned by licitation is reversed. This case is again remanded to the trial court to take evidence and adjudicate this matter in the manner prescribed by law. The wife is to pay all costs of this appeal. All other costs shall await final determination of the case on its merits.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

      . Because a formal inventory was taken and homologated prior to the effective date of La. R.S. 9:2801 (Act 439 of 1982, effective September 10, 1982), the procedure for determining the community’s assets and liabilities provided in paragraphs (1) and (2) of La.R.S. 9:2801 need not be followed. However, the trial court must ascertain the value of the assets with competent evidence at the time of the trial on remand.


author: COVINGTON, Judge.

text:
    Ella COBB v. SYNTEX LABORATORIES, INC. et al.
    No. 83 CA 0275.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Rehearing Denied Feb. 14, 1984.

      Amy E. Counce, Baton Rouge, for plaintiff-appellant Ella Cobb.
    Donna L. Yukna, New Orleans, for defendant-appellee Syntex (F.P.) Inc. and Syn-tex Laboratories Inc.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

This is a suit by Ella Cobb for $1,850,060.00 in damages which she allegedly sustained from taking oral contraceptives manufactured by defendants, Syn-tex Laboratories, Inc. and Syntex (F.P.), Inc. and sold by Katz & Bestoff # 72, Inc. From a summary judgment in favor of defendants, Mrs. Cobb has appealed. We affirm.

Plaintiff alleged that in September, 1978, she obtained a prescription for Norinyl 1 + 50 28-day birth control pills from her physician, Dr. J. Louis Tonore, Jr., and that this prescription was filled by the pharmacist at Katz & Bestoff drugstore #72 in Baton Rouge. Plaintiff took the oral contraceptives until December 8, 1979, when she suffered a “cerebral infarction on the left,” or stroke, leaving her partially disabled. The plaintiff brought this action alleging that the birth control pills contained redhi-bitory vices which “made them absolutely useless or so inconvenient that petitioner would not have purchased (them) had she known of the defects”. In the alternative, plaintiff alleged that the birth control pills contained a defect in their design, composition, formulation or manufacture which caused plaintiff’s injury. Additionally, she alleged that the defendants failed to warn her of such defects or of the dangers of using the product. Plaintiff prayed for a recission of the sale, and damages, or reduction in the purchase price.

After plaintiff answered defendants’ interrogatories, defendants filed a Motion for Summary Judgment. Attached to the Motion were affidavits of J. Louis Tonore, Jr., M.D., M.J. Bullock, Jr., M.D., Victor Deni-cola, Ph.R., Rosemary McLaren, Ph.R., and copies of portions of the Physicians’ Desk Reference concerning the drug Norinyl 1 + 50 28-day pills for 1978, the package insert for Norinyl 1 + 50 28-day Birth Control pack and the pamphlet entitled “What You Should Know About Oral Contraceptives.”

The primary question presented in this case is the appropriateness of the trial court’s granting of the motion for summary judgment. LSA-C.C.P. art. 966 requires that the mover show that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. LSA-C.C.P. art. 967 provides that the adverse party respond to the motion for summary judgment with affidavits setting at issue the facts in dispute. If no countervailing affidavits are filed, the court may grant the motion, if appropriate.

The court must first decide if the supporting documents presented by the moving party are sufficient to resolve all issues of fact. In the present case the supporting documents resolve all issues of fact. The plaintiff obtained a prescription for oral contraceptives from her physician; she purchased the pills from Katz & Bestoff; the birth control ^>ills she purchased were manufactured by Syntex; she took the birth control pills for a considerable period of time, and ultimately suffered a stroke which partially disabled her. The plaintiff’s physicians were advised of the risks and contraindications associated with the drug. No defects in the design, composition, formulation or manufacture is shown.

The plaintiff argues that the quality of the drug is at issue since she alleged that it contained rehibitory vices. The record contains no allegations of fact concerning the nature of the defects or vices of the product, and she has not alleged that there was negligence in the manufacture of the drug. Also, she has not alleged that the drug which she took contained any contaminants. No allegation was made concerning the nature of the defect present in this drug although it was plaintiffs further contention that the drug was defective in design, composition, formulation or manufacture so that it was unreasonably dangerous in normal use.

Although drugs and medications must be carefully administered and cautiously consumed, they are not so inherently dangerous that the manufacturer is held to guarantee that no harm will come to those who use such products. DeBattista v. Argonaut-Southwest Insurance Co., 403 So.2d 26 (La.1981). Since the birth control pills taken by the plaintiff in this case were not contaminated or defectively manufactured, they cannot be considered as unreasonably dangerous, if properly used.

The next issue presented in this case concerns the obligation of the manufacturer or seller of a prescription drug to warn the consumer of any harmful or dangerous side effects or risks which a person might suffer from use of the drug. The plaintiff admitted in answer to interrogatories that she received from her physician a copy of a pamphlet entitled “What You Should Know About Oral Contraceptives”. This pamphlet specifically warns that the risk of suffering a stroke or other circulatory ailment is greatly increased in women taking birth control pills.

The manufacturer of a prescription drug has the obligation to inform the prescribing physician of any potentially adverse side effects or risks from the drug’s use. The doctors admitted receiving warning of the use of this drug. The moving party in this case attached copies of the material supplied the pharmacist and similar material included in the patient’s package. The Physicians’ Desk Reference contains the same information supplied by the manufacturer. These materials contain the warning that stroke and circulatory ailments may result from taking the drug, and further describe the increased risks from the drug due to the age and the smoking habits of the patient.

The manufacturer has no duty to warn the consumer directly of any risks or contraindications associated with the drug. The manufacturer of the drug has fulfilled its obligation when it has informed the prescribing and treating physicians of the risks of harm from the drug so that they may intelligently decide on its use and advise the patient. Stanback v. Parke, Davis and Company, 657 F.2d 642 (4th Cir.1981). The doctor acts as an informed intermediary. The decision to use the drug in a particular circumstance rests with the doctor and the patient, not with the manufacturer.

Both of plaintiff’s physicians stated in their affidavits that they received and reviewed the material supplied by the manufacturer and that they considered these warnings adequate.

The trial court concluded under these circumstances that the plaintiffs physicians were sufficiently warned of side effects and risks of the drug and that these warnings discharged the defendants’ obligation. For his decision, the trial judge relied on the decision in Timm v. Upjohn Company, 624 F.2d 536, 538 (5th Cir.1980), cert. denied 449 U.S. 1112, 101 S.Ct. 921, 66 L.Ed.2d 840 (1981), in which the court stated:

It has been established that, in the case of prescription drugs ... the manufacturer has no obligation to warn a consumer of that drug so long as the prescribing physician has been adequately warned of any potentially adverse side effects. (Citations omitted.)

The Timm case places the prescribing burden upon the physician to evaluate the information supplied by the manufacturer of the drug and then to inform the patient of the benefit to be obtained from the drug as well as the risk of adverse side effects and contraindications from taking the drug. The manufacturer is under no duty to warn consumers directly. We agree. The record supports the trial court’s opinion that the physicians were adequately informed by the manufacturer and that the manufacturer breached no duty in this respect.

Therefore, the motion for summary judgment was properly granted, since reasonable minds must inevitably conclude that mover is entitled to judgment based on the facts before the court. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980).

For the reasons assigned the judgment of the district court is affirmed at the appellant’s costs.

AFFIRMED.


text:
    Nancy TERREBONNE v. LOUISIANA ASSOCIATION OF EDUCATORS.
    No. 83 CA 0276.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Writ Denied Feb. 27, 1984.

      Floyd J. Falcon, Jr., Baton Rouge, for plaintiff-appellant Nancy Terrebonne.
    William D’armond, Baton Rouge, for defendant-appellee La. Ass’n of Educators.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Plaintiff appeals from a judgment upholding her dismissal “without due process” as a UniServ Field Representative in defendant’s employ. We affirm. There is no evidence that defendant obligated itself to afford plaintiff a due process hearing and, therefore, as an indefinite term employee, plaintiff’s employment was terminable at the will of either party. L.S.A.-C.C. arts. 1814, 1815, 2746, 2747.

Defendant is a non-profit corporation whose membership is composed of teachers and educators. Its purpose is to foster, protect and promote the interests of teacher-educators in all aspects of their interests. Toward fulfillment thereof, it provides local chapters and member organizations with UniServ Representatives- who act as liaisons between the locals and defendant, and serve the needs and requirements of the locals.

Plaintiff applied for the position of Uni-Serv Representative for assignment to the East Baton Rouge Parish Association of Educators (EBRPAE) as advertised by defendant. In response thereto, plaintiff received a letter from defendant’s executive secretary, H.C. Robinson, enclosing a copy of the job requirements and a copy of defendant’s personnel policies. Thereafter, in December, 1979, plaintiff was hired for the position. There was no written contract of employment.

The term of plaintiff’s employment was not to exceed three years but successive terms were permissible. Further, on September 27, 1980, defendant’s Executive Council adopted a resolution concerning reemploying professional staff members (which includes all UniServ Representatives) until June 30, 1983.

In late 1980, or early 1981, defendant began receiving complaints from EBRPAE concerning plaintiff’s conduct and competency. Pursuant thereto, Robinson informed plaintiff, by letter dated February 16, 1981, that he was recommending her dismissal at EBRPAE’s request. Further, plaintiff was informed that defendant’s Executive Council would consider this matter on March 14, 1981. Plaintiff wrote Robinson that she understood the complaints had been withdrawn. In addition, she complained that her due process rights had been violated as there was no specification of charges against her. In response thereto, Robinson specified 27 charges of alleged misconduct in his letter of February 26, 1981.

At the Executive Council meeting, EBR-PAE agreed to drop the charges provided plaintiff was assigned other duties and another specifically named UniServ Representative appointed to EBRPAE. Defendant declined this solution. Thereafter, at EBRPAE’s request, defendant ordered an investigation and evaluation of plaintiff. As a result thereof, Robinson advised plaintiff by letter dated July 24, 1981, that he would recommend plaintiff’s dismissal at the August 15 meeting of the Executive Council, provided delivery of the notice was effected 20 days prior to the meeting date. Further, he advised that if such notice was not forthcoming, then the meeting date would be continued and plaintiff given further notice. Attached to the notice was a detailed specification of charges of misconduct and incompetency.

Plaintiff received actual notice of the scheduled hearing on July 27, 1981. Immediately, she contacted Robinson, who agreed to postpone the hearing date. At the August 15 meeting, the Executive Council agreed to a new hearing date of August 22. Plaintiff was notified accordingly on the 17th of August. Plaintiff protested that this was not sufficient time to prepare her defense and requested a further postponement. This request was denied.

At the hearing, the chairperson announced that each side would be allotted one and one-half hours for presentation of evidence and argument. Cross-examination of witnesses would be allowed by Council members and only for clarification purposes. Further, the matter would be heard in executive/closed session since a personnel matter was involved. Further, the chairperson rejected plaintiff’s request that a transcript of the proceeding be made. Pursuant to this format, a hearing was held.

Robinson produced unsworn statements and witnesses against plaintiff despite objection by plaintiff’s counsel. His presentation lasted approximately 45 minutes. Plaintiff also presented unsworn witnesses in her behalf. She was allowed slightly more than the alloted time to present her evidence. As a result of this hearing, plaintiff was terminated, and this suit instituted.

The trial court understood plaintiff’s argument to be two-fold. First, that she was employed for a fixed term and, therefore, could not be discharged without due process, which, argues plaintiff, includes, among other things, the opportunity to confront her accusers. Secondly, that if plaintiff’s employment was not for a fixed term, she was nevertheless entitled to a due process hearing, by virtue of the defendant’s policy provisions, which became engrafted as part of her employment contract. With these issues before it, the trial court held that plaintiff was not a “fixed term” employee because there was nojneeting of the minds as to the term involved. Therefore, plaintiff was an “at will” employee and subject to discharge at any time without cause. As to the remaining issue, the court concluded there was no binding agreement on defendant’s part to afford plaintiff a due process hearing. It noted the lack of evidence of any bargaining for due process or any other consideration thereof. Further, the trial court found that its decision therein obviated consideration of whether the discharge procedure employed by defendant met due process requirements.

On appeal, plaintiff contends that the “at will employee” doctrine is not applicable to her, and that she was guaranteed, and not afforded, a due process hearing.

I. APPLICABILITY OF THE “AT WILL EMPLOYEE” DOCTRINE

Initially, plaintiff was employed for a term “not to exceed three years.” Almost a year after plaintiff’s employment with defendant, its Executive Council passed a motion to:

“... reemploy all professional staff persons, who seek reemployment with us, until June 30, 1983, with a stipulation in the contracts of any persons whoes [sic] positions are partially funded or fully funded by the NEA that these positions are contingent upon said funding, beginning with the expiration of the current contracts.”

This resolution was not distributed among the professional employees. However, plaintiff claims knowledge thereof, having been present at the meeting at which the motion was passed. Based thereon, plaintiff contends that her employment term became “fixed,” as per this resolution. The trial court disagreed on the basis that there was no meeting of the minds between the parties as to the term involved.

In order to have a valid contract, the parties thereto must agree on a certain object. L.S.A.-C.C. art. 1779. The object herewith is the duration of the employment contract. The Code provides for two types of contracts for hire: (1) the limited duration contract; and (2) the contract of servant terminable at the will of the parties. L.S.A.-C.C. arts. 2746 and 2747, respectively. The distinction between these two types of contracts is that under a limited duration contract the parties have agreed to be bound for a certain period during which the employee is not free to depart without assigning cause nor is the employer at liberty to dismiss the employee without assigning any reason for so doing. See L.S.A.-C.C. arts. 2746-2750.

In the instant case, there is no limited duration or “fixed” contract. At the outset of plaintiffs employment, the parties agreed that the plaintiffs term would not exceed three years. This merely states the maximum time for which plaintiff could possibly serve without being re-employed. However, neither party agreed to be bound for a certain period.

Nor did the subsequent passage of the noted resolution provide such an agreement. Even if we were to read the resolution as plaintiff wishes, to say: “The LAE re-employs all professional staff persons until June 30, 1983,” plaintiff has failed thereby to bind herself to remain in defendant’s employ until that time. Therefore, there could be no limited duration contract under C.C. art. 2746. However, this is not what the resolution states. On the contrary, it limits the professional staff persons the defendant will re-employ to those who seek re-employment with it. In addition, it stipulates that if the persons’ position is partially or fully funded by the NEA, their re-employment is contingent on the necessary monies being funded by the NEA. The record does not indicate that plaintiff ever sought re-employment with the defendant. Therefore, plaintiff does not fall within the category the defendant sought to re-employ by its resolution.

In light of the foregoing, we conclude, as did the trial court, that plaintiffs employment was for an indefinite period of time and, consequently, terminable at the will of either party. See L.S.A.-C.C. art. 2747.

II. DUE PROCESS HEARING GUARANTEE

Plaintiff asserts that by contract she could not be discharged without due process. She bases this assertion on the receipt of defendant’s by-laws, stating:

“... All employees shall be assured due process in matters of discipline, demotion, and discharge.” . Constitution and By-Laws of the LAE, Art. XV, Sec. 2.

She received these by-laws before she accepted employment and claims she relied thereon in accepting her position.

The trial court concluded that there was no binding agreement on the defendant to afford plaintiff a due process hearing since there was no bargaining therefor nor any other consideration flowing from the employee over and above her obligation to perform normal duties while employed. In reaching this conclusion, the trial court noted the lack of Louisiana jurisprudence on this question and relied on numerous out-of-state decisions. While we agree with the trial court’s holding that there is no binding agreement on the defendant to afford plaintiff a due process hearing, we do so on other grounds.

In order to have a valid contract in Louisiana, the parties must consent thereto. L.S.A.-C.C. art. 1779. The nature of the consent necessary to give validity to the contract is provided by the Code. L.S. A.-C.C. arts. 1797, et seq. As an offer is an indispensable element of consent, it is of utmost importance to determine whether a certain declaration of wills amounts to a real offer or is merely a declaration made without an intention of becoming bound. S. Litvinoff, Offer and Acceptance in Louisiana Law: A Comparative Analysis: Part I — Offer, 28 La.L.Rev. 1 (1968). Unequivocal words, expressive of mere intent, do not make an obligation. L.S.A.-C.C. art. 1814. Similarly, a positive promise creates no obligation when made in a manner from which no serious intent to contract is shown, L.S.A.-C.C. art. 1815. Furthermore, it will devolve upon the party who relies thereon to establish that the parties seriously contemplated the creation of legal rights and duties. See Litvinoff, supra, at 5.

Plaintiff received a copy of defendant’s Personnel Policies as an enclosure to its letter of October 3,1979, from its executive secretary, H.C.. Robinson. Included within the Personnel Policies were the defendant’s by-laws.

The letter began by acknowledging receipt of a previous letter by plaintiff and her interest in the UniServ Field Representative position for East Baton Rouge Parish. Further, Robinson expressed defendant’s pleasure that plaintiff would consider employment with it. The letter proceeded to explain that the position in question was under defendant’s control. Furthermore, it stated that several items were enclosed for plaintiff’s information. Thereafter, in closing, Robinson requested that plaintiff phone for an interview.

Application of the above standards to the instant case requires plaintiff to prove that defendant, by enclosing a copy of its personnel policies, contemplated the establishment of legal rights and duties. Plaintiff has not carried this burden. The letter from defendant to plaintiff was not a job offer but an explanation of the procedure by which plaintiff might apply for a job. The enclosures were for plaintiff’s information only. Plaintiff was not employed until after she had properly applied for the job, which occurred some time later. When plaintiff was actually employed, no mention was made by either party of the personnel policies or by-laws. Accordingly, we find plaintiff’s second argument without merit.

Having determined that plaintiff was not entitled to a “due process” hearing, we pretermit the question of whether the hearing, as conducted, complied with the requisites of due process.

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

AFFIRMED.

      . The items enclosed were: (1) a copy of the Personnel Policies of the LAE; (2) a job description; and (3) a copy of the action of the LAE Council in authorizing the filling of this position.


text:
    Stephanie KENNEY v. Connie COOPER, et al.
    No. 83 CA 0286.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Robert Layne Royer, Baton Rouge, for plaintiff-appellant Stephanie Kenney.
    Horace C. Lane, Baton Rouge, for defendant-appellee Connie Cooper and State Farm Mut. Auto. Ins. Co.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

This is a tort suit involving a rear-end collision. The issue of liability was placed before a jury. It concluded the defendant was not at fault. Judgment was rendered accordingly. We affirm.

Plaintiff alleged and testified that she was stopped at a red light when defendant’s car rear-ended plaintiffs car, pushing it forward into a third car. Contrarily, defendant testified that there was a yellow car between her car and plaintiffs car and that the yellow car rear-ended plaintiffs car and fled the accident scene. This was the only evidence as to how the accident occurred. Additionally, Robert Lamm, a claims adjuster for defendant’s insurance company, testified as to the amount of damage sustained by each car.

On appeal, plaintiff asserts that the trial court erred in: (1) not allowing plaintiff to introduce medical records for impeaching defendant’s testimony, and (2) allowing Lamm to opine that defendant’s car did not cause plaintiff’s property damage because there was no observable damage on plaintiffs car. For the following reasons, we find both contentions are without merit.

I. INTRODUCTION OF MEDICAL RECORDS

The trial court refused admission of the medical records for lack of sufficient probative value in this matter. Plaintiff contends that the records should have been admitted under La.R.S. 13:3714. It provides, in pertinent part:

“Whenever a certified copy of the chart or record of any hospital in this state, signed by the administrator or the medical records librarian of the hospital in question, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court....”

This statute is an exception to the hearsay rule. Succession of Chaney, 413 So.2d 936 (La.App. 1st Cir.1982), writ denied, 420 So.2d 449 (La.1982). It legislatively dispenses with the requirement of an appearance by the custodian of documents in custody of state agencies when the documents are certified in accordance with the statute. However, this statute does not address the necessity that evidence be relevant to a material issue in order to be admissible. These factors, hearsay and irrelevancy, are independent bases for exclusion of evidence. Accordingly, La.R.S. 13:3714 is not a basis for admission of irrelevant evidence.

Even assuming, arguendo, that the records were admissible, the trial court’s failure to accept the records into evidence was not prejudicial. Plaintiff’s purpose for offering this evidence was to impeach defendant’s testimony that the Vistaril medication she was taking at the time of the accident was prescribed by Dr. Wilson. Contrarily, through the hospital records, plaintiff’s counsel sought to prove that the medication was prescribed by Dr. Champagne. However, on direct examination of defendant by her counsel, she stated she had forgotten about Dr. Champagne and admitted that he had prescribed Vistaril for her also.

II. OPINION TESTIMONY

Plaintiff complains that the trial court erred in allowing Lamm to testify that the defendant’s car did not cause the property damage to plaintiffs vehicle because there was no observable damage on the defendant’s vehicle. We cannot find such a statement in Lamm’s testimony. However, we note that in response to defense counsel’s inquiry as to how Lamm inspected the car for damages, Lamm replied:

“We have a check list sequence that we’ll look at. It goes from either the front end or the rear end toward the center of the car. Ms. Cooper’s car was suppose^] to, or should have had damage to the front of her vehicle. When I went and looked at it there wasn’t any— none, ...” (Emphasis added).

Plaintiff’s counsel made no objection to this answer. Therefore, he cannot now complain. L.S.A.-C.C.P. 1635, cf. Thibodeaux v. Western World Insurance Company, 391 So.2d 24 (La.App. 3rd Cir.1980).

Further, we recognize this is simply a credibility decision. In such instance, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon appellate review. Canter v. Koekring, 283 So.2d 716, 724 (La.1973).

In the absence of merit to plaintiffs specifications of error, and due to the presentation of evidence indicating reasonable evaluations of credibility and inferences of fact by the jury, the trial court’s judgment is affirmed. Plaintiff is to pay all costs.

AFFIRMED.


author: COLE, Judge.

text:
    Huey L. PALMER, et ux. v. James L. STOKES, et ux. and Allstate Insurance Co.
    No. 83 CA 0288.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.

      Charles R. Moore, Baton Rouge, for plaintiff.
    James E. Kuhn, Denham Springs, for defendant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The major issue in this case is whether or not the damage award to plaintiffs constitutes an abuse of discretion by the trial court. The minor issue is whether or not the trial court erred in denying summarily the plaintiffs’ motion for a new trial.

Mr. Huey E. Palmer and Mrs. Lois N. Palmer received personal injuries in an automobile accident on January 25, 1980. They brought suit against Mr. James L. Stokes, his wife, Ella J. Stokes, and their insurer, Allstate Insurance Company. The defendants’ liability was stipulated leaving the issue of damages for personal injuries in dispute. The trial court rendered judgment in favor of the plaintiffs and against the defendants in the amount of $12,500.00. The plaintiffs moved for a new trial which was denied without a contradictory hearing. The plaintiffs have appealed alleging the following specifications of error: (1) the court erred in denying plaintiffs’ motion for new trial without a hearing; (2) the court failed to make any award for damages sustained by Mr. Palmer; and (3) the award of damages to Lois Palmer was inadequate. Defendants answered this appeal seeking to have the amount of the judgment reduced to the sum of $5,000.00. (We find it difficult to consider defendants’ response to the appeal to be a serious one.)

Before reaching the merits of the quantum issue, we turn to the question of whether or not the trial court erred in denying summarily the plaintiffs’ motion for a new trial. The appellants contend the language of article 1971 of the Code of Civil Procedure envisions a contradictory hearing in determining whether or not a new trial should be granted. Although there is no provision in the Code of Civil Procedure which specifically allows the court to deny a motion for a new trial summarily, the jurisprudence has recognized the trial court has discretion to do so when there are no new issues presented which might alter the result. Sonnier v. Liberty Mutual Insurance Company, 248 So.2d 299 (La.1971), rehearing denied 1971; Miller v. Campbell, 407 So.2d 491 (La.App. 1st Cir.1981). Accordingly, the appellants’ allegation that the trial court erred in denying their motion for a new trial without a contradictory hearing is without merit.

Our task in determining the adequacy of the damage award is made more difficult because of its in globo nature. The appellants contend this in globo award fails to grant anything for damages sustained by Mr. Palmer. We agree. In its reasons for judgment the trial court states: “The Court feels that plaintiff would be adequately compensated for her injury, pain, disability and all of her expenses by an award of $12,500.00.” (Emphasis added.) On the other hand the judgment reads:

“IT IS ORDERED, ADJUDGED AND DECREED, That there be judgment herein in favor of plaintiffs, Huey E. Palmer and Lois N. Palmer, and against defendants, James L. Stokes and Allstate Insurance Company, in the total sum and amount of TWELVE THOUSAND FIVE HUNDRED AND NO/100 ($12,500.00) DOLLARS, for plaintiffs’ injury, pain, disability and her expenses, together with legal interest thereon from date of judicial demand, until paid, and for all costs herein.” (Emphasis added.)

The reasons for judgment authored by the trial judge make reference to Mrs. Palmer only. It is clear from these reasons the entire sum to be awarded was intended to provide for her damages. The reasons also set forth the court would sign a judgment consistent with its opinion when presented one by the parties. The judgment however, submitted by defense counsel without the apparent approval of plaintiffs’ counsel, is not consistent with the court’s opinion. In the very least, it can be said to be ambiguous. Because of this we conclude the in globo award did not include anything for general damages sustained by Mr. Palmer.

Mr. Palmer was driving the car at the time of the accident. He received a scratch and a knot on his head which remained for a week. He did not seek any medical treatment but testified he was under additional stress as a result of the accident. This testimony was uncontro-verted. Because the trial court abused its discretion in not awarding Mr. Palmer any sum whatsoever, we grant Mr. Palmer a general damage award of $500.00. This is done under our authority to render any judgment which is just, legal, and proper upon the record on appeal. La.Code Civ.P. art. 2164.

Mrs. Palmer, age 52, was sitting in the passenger’s seat of the automobile at the time of the accident. When the defendants’ car struck the plaintiffs’ car, Mrs. Palmer was thrust forward. Two days after the accident Mrs. Palmer went to the hospital complaining of injuries to her knee, neck and shoulder. She testified the pain in her shoulder and neck was so severe she had to be pulled out of bed and out of her chair. She received treatment from a chiropractor for a month. She related her shoulder was fine as of the time of trial. The injury to her knee consisted of a knot under the kneecap which appeared immediately after the accident. The knot subsided but Mrs. Palmer limped for three months because of soreness. She was treated by Dr. Leonard Stander for her knee injury which had healed fully by the time of trial.

The injury most litigated is the one to Mrs. Palmer’s left index finger. Mrs. Palmer did not seek medical attention for the pain in her finger until four months after the accident. The testimony establishes the injury was probably caused when she “jammed” her finger on the dashboard of the car in an attempt to prevent herself from going through the windshield. The medical testimony of three doctors was consistant in diagnosing Mrs. Palmer’s injury as “tenosynovitis,” an inflammation of the tendon sheath which inhibits the flexing and extending movements of the finger. Mrs. Palmer saw these doctors at sporadic intervals over a period of years. They testified as to the condition of her finger at the time of each visit.

Dr. Joe A. Morgan, an orthopedic surgeon, saw Mrs. Palmer on May 5, 1980. He diagnosed the injury as tenosynovitis and gave her a splint for the finger. She came back complaining of pain and was given cortisone injections. Testifying by deposition, Dr. Morgan stated Mrs. Palmer was fully recovered as of January 13, 1981, and had no residual disability. On February 25, 1981, the date of Mrs. Palmer’s last visit to Dr. Morgan, he was of the same opinion.

Mrs. Palmer then went to Dr. Daniel C. Riordan, an orthopedic surgeon, who is considered by some in the medical profession to be the “father of hand surgery.” Dr. Riordan, also testifying by deposition, said he first saw Mrs. Palmer on June 2, 1981. His diagnosis was consistant with that of Dr. Morgan’s. Mrs. Palmer returned to Dr. Riordan several times complaining of pain. On January 7, 1982, he again saw Mrs. Palmer and could find nothing to account for her pain and had no recommendations for treatment other than aspirin. He saw no need for surgery at that time. Since she had a full range of motion in her finger, he felt she did not have any actual loss of function of the hand. Only because she complained of pain, he assessed a five per cent loss of function of the hand.

In March of 1982 Mrs. Palmer saw Dr. Andrew Kucharchuk, another orthopedic surgeon. When nonoperative procedures did not alleviate the pain in Mrs. Palmer’s hand, Dr. Kucharchuk performed a tenosy-novectomy on April 22, 1982. In Dr. Ku-charchuk’s opinion Mrs. Palmer has a ten per cent residual disability in her hand.

Concerning the award of damages to Mrs. Palmer, appellants contend: (1) an inadequate award was made for past medical expenses and no award and/or an inadequate award was made for future medical expenses; (2) an inadequate award was made for general damages; and (3) no award was made for loss of income and impairment of future earning capacity. In reviewing whether or not the trial court erred or abused its great discretion in these particulars, our duty is more onerous because of failure to delineate the amount attributable to each type of damage. The approach we take is to review the evidence to ascertain the amount which could have been reasonably allocated to each type of damage.

As regards past medical expenses, we note an error in addition of the expenses enumerated in plaintiffs’ exhibit-4. The correct sum is $3,252.89. From this amount plaintiffs withdrew $71.00 representing visits Mr. Palmer made to the chiropractor. To the balance there is added the sum of $700.00 for the device Dr. Ku-charchuk recommended for Mrs. Palmer’s therapy; and $410.00 for past physical therapy. The correct total is $4,291.89. This is the sum the trial court could have awarded Mr. Palmer for his wife’s past medical expenses.

Concerning future medical expenses, the operating surgeon, Dr. Kuchar-chuk, testified he recommended Mrs. Palmer engage in physical therapy three times a week. He said the minimum amount of time would be six months and the maximum time would be three to four years. The cost of a treatment was established at $24.00. Using the conservative estimate of six months, $1,872.00 is the lowest amount the trial court could have awarded Mr. Palmer for his wife’s future medical expenses.

It is evident the trial court did not allocate any amount for loss of income or impairment of earning capacity and when the above sums constituting an award to Mr. Palmer are totaled, $5,836.11 remains for Mrs. Palmer's general damages. Considering the particular facts and circumstances of the injuries to Mrs. Palmer, we find the trial court abused its great discretion in not awarding a more substantial sum. Prior to the accident, Mrs. Palmer was involved actively in gardening, sewing and household duties. After the accident Mrs. Palmer appears unable to perform some of these activities because of perceived pain in her left index finger. And, although it is not a functional disability, based upon the subjective complaint of pain, Mrs. Palmer’s physicians assess a five to ten per cent residual disability in her left hand. She also received the injuries to her knee, neck and shoulder, underwent prolonged treatment, and experienced serious hand surgery. Under the principles of Reck v. Stevens, 373 So.2d 498 (La.1979), we conclude the lowest amount the trial court could have reasonably awarded Mrs. Palmer for general damages is $20,000.00.

Finally, we conclude the trial court was correct in not awarding anything to Mrs. Palmer for loss of income or impairment of earning capacity. At the time of the accident Mrs. Palmer was unemployed. However, for a number of years she had driven a school bus and supplemented her income by doing art work. She now claims she is unable to do either of these things because of the pain in her left index finger. According to Mrs. Palmer, she had plans to resume her job as a school bus driver. Dr. Morgan stated Mrs. Palmer recovered fully, and as of January 13, 1981, had no disability. Dr. Riordan stated Mrs. Palmer did not have any actual loss of function of her hand. As noted above, it was only because of the complaints of pain that he assessed a five per cent loss of function. Dr. Kucharchuk, the surgeon who operated on Mrs. Palmer, gave her a ten per cent disability of the hand. He testified because of the “total patient picture” he would not recommend Mrs. Palmer operate a school bus. Dr. Kueharchuk’s concern was over the pain Mrs. Palmer was having and the effect it would have on her ability to operate the bus safely. Mrs. Palmer is right handed and the minimal disability in her left hand does not affect her ability to shift gears to the right of the driver’s seat. She did testify she could not operate the knob to the left which controls the stop signs and signal lights but it is obvious the trial court did not accept this testimony as credible. Dr. Kucharchuk implied if Mrs. Palmer did not have any pain in her finger she could drive the bus. Furthermore, he testified that in six months Mrs. Palmer should be “doing quite good.” Taking the medical testimony as a whole, we conclude the trial court did not abuse its discretion in failing to award damages to Mrs. Palmer for loss of income and impairment of her earning capacity.

For the foregoing reasons, we amend and recast the judgment of the trial court as follows:

IT IS ORDERED, ADJUDGED AND DECREED there be judgment in favor of plaintiff, Huey E. Palmer, and against defendants, James L. Stokes, Ella J. Stokes, and Allstate Insurance Company, in solido, for the sum of SIX THOUSAND SIX HUNDRED SIXTY-THREE AND 89/100 ($6,663.89) DOLLARS, plus legal interest thereon from date of judicial demand, until paid, and for all costs of court.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED there be judgment in favor of plaintiff, Lois N. Palmer, and against defendants, James L. Stokes, Ella J. Stokes, and Allstate Insurance Company, in solido, for the sum of TWENTY THOUSAND AND NO/100 ($20,000.00) DOLLARS, plus legal interest thereon from date of judicial demand, until paid.

Defendants-appellees are cast for all costs of this appeal.

AMENDED AND, AS AMENDED, AFFIRMED.

      . Art. 1971.
      “A new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only. If a new trial is granted as to less than all parties or issues, the judgment may be held in abeyance as to all parties and issues.”

      . We note also the judgment did not cast Ella J. Stokes as a party defendant although issue was joined as to her solidary obligation.

      . Mr. Palmer is the proper plaintiff in this instance to be awarded damages for his wife’s past and future medical expenses in that he petitioned the court for these expenses of the community.


text:
    BONFANTI MARINE, INC. v. STATE of Louisiana, THROUGH the DIVISION OF ADMINISTRATION, et al.
    No. 83 CA 0292.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Michael V. Clegg, Baton Rouge, for plaintiff-appellee Bonfanti Marine Inc.
    James Hrdlicka and David Sanders, Baton Rouge, for defendant-appellant State of Louisiana Through Div. of Admin.
    Frank M. Coates Jr., Baton Rouge, for defendant-appellee Southern Marine Corp.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

The primary issue before this Court is whether the trial court erred in casting the defendant for a proportionate amount of the costs.

This suit commenced as an action brought by Bonfanti Marine, Inc., plaintiff, to enjoin the State of Louisiana, through the Division of Administration, from entering into a contract of purchase of a Boston Whaler 22 ft. Revenge Outboard Boat, twin out-board motors, and trailer from Southern Marine Corp., which was also named as a party defendant. It was stipulated that the court hearing was for preliminary and permanent injunctions.

After the hearing, the trial court rendered judgment on November 10, 1982, issuing a preliminary and permanent injunction, enjoining the State from purchasing the subject boat and trailer from Southern Marine Corp. All other demands of plaintiff were rejected and the case against Southern Marine was dismissed.

Subsequently, on January 7, 1983, the court below amended its judgment to cast Bonfanti Marine with one-third of the costs and the State with two-thirds of the costs.

From this amended judgment, the State has appealed, contending only that the trial court erred in assessing it with any costs. There is no merit in the State’s contention.

LSA-C.C.P. art. 1920 provides:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable. (Emphasis added).

As stated in the procedural code, the general rule is that the party cast in judgment shall pay all costs of the suit. The basic rule is that all costs, both the prevailing party’s and the losing party’s, are to be paid by the party east in judgment unless the court decrees otherwise in the judgment. Bowman v. New Orleans Public Service, Inc., 410 So.2d 270 (La.App. 4th Cir.1982); Swiftships, Inc. v. Burdin, 338 So.2d 1193 (La.App. 3rd Cir.1976). In other words, costs are nonetheless due by the party cast in judgment even though not mentioned in the judgment. Comment (c) under LSA-C.C.P. art. 1920.

In the case at bar the original judgment did not provide that any party other than the losing party, the State of Louisiana, be cast for any portion of the costs. Thus, under the clear provisions of LSA-C. C.P. art. 1920, the party cast in the judgment was legally cast for all costs.

Nevertheless, on January 7, 1983, after the seven-day delay for moving for a new trial had elapsed, the trial court amended the judgment to cast Bonfanti Marine with one-third of the costs and the State of Louisiana, through the Division of Administration, with two-thirds of the costs. Only the State has complained of this amendment to the judgment.

It is the State’s position on appeal that the court below granted plaintiff its injunc-tive relief, but rejected all other demands, and thus denied to plaintiff recovery of costs. For the reasons stated above, there is no merit to this argument. The question of costs was not an issue before the court; so that by its silence on the item of costs, the court in its judgment effectively cast the State with costs.

A further point has been raised concerning the requirement of LSA-R.S. 13:5112 that costs assessed against the State must be expressed in a dollar amount. While it was error for the trial court to state the costs in a proportionate amount rather than a dollar amount, such error, as we held in Jones v. Recreation and Park Commission of Parish of East Baton Rouge, 395 So.2d 846 (La.App. 1st Cir.1981), was harmless. The statute only requires us to amend the judgment to provide for a dollar amount.

For the foregoing reasons, the judgment appealed is amended in part and affirmed in part. Costs in the amount of $345.42 are assessed against appellant, the State.

AMENDED IN PART AND AFFIRMED IN PART.

      . Although the court may make an “equitable" different provision for costs. LSA-C.C.P. art. 1920.

      . The judgment was silent as to costs.


text:
    David A. TATE v. LIVINGSTON PARISH SCHOOL BOARD.
    No. 83 CA 0297.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Writ Denied March 9, 1984.

      Robert C. Funderburk, Jr., Baton Rouge, for plaintiff.
    J. Donald Cascio, Denham Springs, for defendant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

This matter was previously before us on appeal by the school board from a judgment in favor of plaintiff, David A. Tate, ordering the school board to “grant unto the Plaintiff a due process hearing prior to the termination of, or failure to renew, Plaintiff’s contract as Coach at Live Oak High School.” The school board was further ordered to restore to plaintiff all benefits of employment as coach, including salary, from June 2, 1977, until such time as the hearing was held. The judgment further specified that the school board was not compelled to hire Tate as a coach pending the hearing. We reversed and set aside the judgment in favor of the plaintiff and remanded the case to the trial court for a new trial.

The new trial was held on May 10, 1982, and judgment was rendered and signed on September 9, 1982, against David A. Tate “to the extent that he is found to be not tenured as a coach and judgment to that extent in favor of the Livingston Parish School Board.” Tate has devolutively appealed the judgment. We affirm.

On appeal, the appellant first specifies as error that the trial court erred in determining that Tate did not enjoy tenure rights as “a coach of interscholastic sports” at the particular high school where he had coached.

David A. Tate was employed as a teacher and a coach of basketball and baseball at Live Oak High School in Livingston Parish, where he had served in both capacities for over six years. For the school year of 1977-78, plaintiff was given a teaching contract, but was not given a coaching contract. Admittedly, plaintiff has not been denied his position as teacher; he has been denied his position as coach. Thus, the primary issue before this Court is whether the position of “coach” is tenured under LSA-R.S. 17:441 et seq.

LSA-R.S. 17:441 defines “teacher” as follows:

(1) Any employee of any parish or city school board who holds a teacher’s certificate and whose legal employment requires such teacher’s certificate.
(2) Any school lunch supervisor employed by a parish or city school board who holds a special parish school lunch supervisor’s certificate issued by the department of education of the state of Louisiana and whose employment requires such certificate.

It is clear from a reading of LSA-R.S. 17:441 et seq. that the Teacher Tenure Act was designed to protect classroom teachers and administrators and supervisors in the teaching profession. Further protection was expressly extended to lunch supervisory personnel holding special certificates. No specific inclusion of coaches of interscholastic extracurricular sports is made in the protective statute.

While athletic coaches must also be certified teachers of substantive school courses at the several instructional levels, they are not required by law to be certified as “coaches.” As we see it, a teacher who is also employed as a coach by a school board has two sets of rights, e.g., (1) his position as a “teacher” is protected by tenure (if he has acquired tenure status); and, (2) his position as “coach” is protected by the contract he has to perform coaching duties, but not by tenure. Coaching duties are separate and distinct from regular teaching or instructional duties.

In areas which have been established for certification, a teacher can only teach in the area in which he has been certified, for example, a teacher certified in science cannot teach English. Therefore, an English teacher would have to be certified in English, a geography or history teacher in social studies, etc., i.e., in order to be able to receive a certificate to teach in any area, a person must be certified in that field. The State Board of Education has provided areas of certification in a specific bulletin. The fields that can be certified are enumerated in that bulletin. Some of the areas in which teachers may be certified are guidance counsellors, librarians, supervisors of instruction, drivers license instructors, speech therapists, principals, school superintendents, reading specialists, parish or city school board supervisors, divisions of special education and psychologists. Absent from the list of areas in which a teacher can become certified is that of coach, and at no time have coaches been certified in this state.

We thus hold that plaintiff’s contract as coach could be terminated or not renewed without compliance with the teachers’ tenure statute. The tenure statute does not accord tenure to coaches. A high school athletic coach is not a “teacher” within the meaning of the Teacher Tenure Act. Although we found no appellate decisions in this state ruling directly on this issue, there are several decisions from other states denying tenure to coaches as .such. While such decisions are not controlling and can be distinguished on their facts, or on differences in the tenure acts or certification requirements, they are significant in their unanimity in denying tenure to coaches. See Annot., Who Is “Teacher” For Purposes of Tenure Statute, 94 A.L. R.3d 141, 158; and see, e.g., Stang v. Independent School District No. 191, 256 N.W.2d 82 (Minn.1977).

For the foregoing reasons, we also find that there is no merit to appellant’s argument that he was “wrongfully terminated in violation of due process.” Tate was not terminated or discharged from his position as coach. The term of his contract expired. His contract was not renewed. Hence it was unnecessary for the school board to provide a due process hearing under the circumstances of this case.

Accordingly, we affirm the judgment of the trial court at appellant’s costs.

AFFIRMED.

      . The school board appealed suspensively. Plaintiff neither appealed nor answered the appeal.

      . 391 So.2d 1240 (La.App. 1st Cir.1980).

      . Most jurisdictions which have considered the principal duty of teaching and supplemental or extra-curricular assignments have determined that extra-duty assignments are too far removed from the primary teaching responsibilities of teachers to be protected under the tenure statute. See, e.g., Maupin v. Independent School District No. 26 of Ottawa County, 632 P.2d 396 (Okl.1981), and the cases cited therein.


text:
    BOWERS ELECTRONIC ENTERPRISES v. TIFFIN INN PANCAKE HOUSE OF BATON ROUGE, INC.
    No. 83 CA 0298.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Michele Stewart Moore, Baton Rouge, for plaintiff/appellee.
    William J. Doran, Jr., Baton Rouge, for defendant/ appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

This suit was filed to recover past due lease payments and the price of certain equipment purchased by defendant, Tiffin Inn Pancake House of Baton Rouge, Inc., from the plaintiff, Bowers Electronic Enterprises.

On September 12, 1973, the parties entered into a contract whereby the plaintiff agreed to furnish certain stereo equipment and a music library for defendant’s business establishment in Baton Rouge. Such contract was to remain in effect for an initial period of one year from the date of commencement of service and continue thereafter for subsequent periods unless terminated by either party. Termination would be by written notice sent via registered mail at least 60 days prior to the expiration of any such period. The contract also provided that the defendant was to pay all costs, legal fees, and expenses reasonably incurred by the plaintiff in judicially enforcing the contract. In August, 1976, the parties entered into an oral contract for defendant’s purchase of certain stereo equipment and the leasing of services for defendant’s Lake Charles business.

The defendant ceased payment for the equipment purchased and services rendered in Lake Charles in July, 1979. Further, defendant failed to pay for the leasing services rendered for the months of April, 1978, and July, 1979, in Lake Charles. In October, 1980, defendant also stopped payment of the monthly lease owed for the Baton Rouge equipment and services. Plaintiff filed suit on July 13, 1982, for all arrearages owed. Defendant filed, inter alia, an exception of three year prescription. L.S.A.-C.C. art. 3538.

The trial court, finding L.S.A.-C.C. art. 3538 applicable, concluded that the defendant was indebted to the plaintiff in the amount of (1) $667.80 for amounts past due on the Baton Rouge lease contract, and (2) $679.86 for amounts owed on the Lake Charles arrangement.

Defendant appeals, asserting that the trial court erred in finding it liable despite plaintiff’s alleged contractual breach. Such assertion is based upon defendant’s belief that plaintiff’s failure to perform under the contract entitles the defendant to resort to non-payment of the lease. Contrarily, plaintiff asserts that the trial court erred in finding that the course of dealing between the parties constituted an open account and, consequently, applying L.S. A.-C.C. art. 3538 to bar full recovery.

For the purposes of clarity, this court will treat the Baton Rouge and Lake Charles “contracts” separately.

BATON ROUGE

Contracts legally entered have the force of law among the parties. L.S. A.-C.C. art. 1901; and Groom v. W.H. Ward Lumber Co., Inc., 432 So.2d 984 (La.App. 1st Cir.1983). The contract in question requires a 60-day notice prior to the expiration of any period for termination of services to be effective. Finding no such notice had been given, the trial court concluded that the contract was never terminated. It also found that the defendant continued to use and receive service on its equipment even after ceasing all lease payments. Further, the trial court found that the time between the cessation of lease payments and the filing of suit was less than three years. Based upon such facts, it concluded that the arrearages due for the Baton Rouge “contract” were not prescribed. See L.S.A.-C.C. art. 3538.

Great weight is to be accorded the trial court’s findings of fact. They will be overturned only if manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We find no error in the trial court’s findings.

While defendant agrees with the trial court that L.S.A.-C.C. art. 3538 is applicable, it contends that plaintiffs failure to perform (i.e., make repairs) under the contract entitled it to cease the lease payments owed. However, only where a lessee is prevented from making repairs the lessor should have made, will the lessee be absolved of making the lease payments due. L.S.A.-C.C. arts. 2694, 2729; and see also Honeywell, Inc. v. Courtesy Discount House, Inc., 413 So.2d 222 (La.App. 4th Cir.1982); and Shear v. Castrinos, 327 So.2d 558 (La.App. 4th Cir.1976).

Here, the record fails to indicate that the lessee was prevented from making any necessary repairs. Hence, the lessee was not entitled to cease its lease payments. Further, defendant’s argument is untenable in view of the trial court’s finding that it had both used and received service on the equipment after cessation of the lease payments.

For the above stated reasons, we find defendant’s assignment of error as to the Baton Rouge “contract” to be without merit.

LAKE CHARLES

As to the Lake Charles arrangement, the court determined that three separate situations existed. In addressing each, it applied L.S.A.-C.C. art. 3538. Such situations were: (1) the lease of a music library, (2) the purchase of a music library, and (3) whether certain sound equipment was sold to or leased by the defendant.

In addressing the lease of the music library, the trial court found that the Baton Rouge “contract” had been extended to cover the Lake Charles operation. Applying L.S.A.-C.C. art. 3538, the trial court held that certain lease invoices, dated more than three years prior to filing suit, were prescribed. Accordingly, it fixed the lease arrearages owed at $679.86.

The trial court then addressed the music library and sound equipment purchase issues. It concluded from the evidence presented that the defendant had, in fact, purchased the music library. Further, the trial court held that the sound equipment was likewise purchased from the plaintiff. Applying L.S.A.-C.C. art. 3538, the trial court found that the sales, having been completed more than three years before the filing of suit, were prescribed. It did so based upon its conclusion that these items were purchased on an open account.

Great weight is to be given the trial court’s findings of fact. They will only be overturned if manifestly erroneous. Ar-ceneaux, supra. We find no error in the trial court’s findings.

Defendant asserts again that plaintiff’s failure to perform under the contract entitled it to cease the lease payments owed. Having already found this argument to lack merit, we need not address it again. Plaintiff asserts that these transactions were not purchases on an open account but were contracts of sale and, as such, prescribe by ten years. L.S.A.-C.C. art. 3544.

Where there is a single transaction between the parties with no expectation of future dealings, a seller’s action to recover payment is not on an open account. Herb’s Machine Shop, Inc. v. John Mecom Company, 426 So.2d 762 (La.App. 3rd Cir.) writ denied, 430 So.2d 98 (La.1983); O.J. Rivero Towing Company v. Coastal Flex Company, Inc., 414 So.2d 1384 (La.App. 4th Cir.1982); and Womack Brothers, Inc. v. Equipment Rental Services, Inc., 399 So.2d 661 (La.App. 1st Cir.1981).

Here, the record amply supports the trial court’s findings that the parties had and continue to have expectations of future dealings between them. Accordingly, we find, as did the trial court, that these items were purchased on open account. Thus, the right to collect for those items purchased in 1977 and 1978 prescribed by three years. L.S.A.-C.C. art. 3538.

For the above and foregoing reasons, judgment of the trial court is affirmed. Costs of this appeal are to be shared equally between the parties.

AFFIRMED.

      . L.S.A.-C.C. art. 3538 provides:
      "The following actions are prescribed by three years:
      “That for arrearages of rent charge, annuities and álimony, or of the hire of movables and immovables.

      “That on the accounts of merchants, whether selling for wholesale or retail.”

      . The trial court found that regarding the Lake Charles arrangement, three distinct situations existed, to-wit, that: (a) the defendant purchased certain stereo equipment for use in Lake Charles, (b) the defendant purchased an initial basic music library, and (c) the defendant leased additional music for its library. Further, it found that several amounts owed were prescribed by three years. See L.S.A.-C.C. art. 3538.


author: COVINGTON, Judge. COLE, Judge,

text:
    James Patrick GALES v. DRESSER INDUSTRIES, INC.
    No. 83 CA 0299.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Rehearing Denied Feb. 14, 1984.
    Joseph A. Gladney, Baton Rouge, for plaintiff-appellant James Patrick Gales.
    Felix R. Weill, Watson, Blanche, Wilson, & Posner, Baton Rouge, for defendant-ap-pellee Dresser Industries, Inc.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

This is an appeal from a judgment in favor of plaintiff, James Patrick Gales, and against defendant, Dresser Industries, Inc. The trial court rendered judgment in favor of plaintiff for partial disability for a maximum of 450 weeks, payable at the rate of $141.00 per week, plus legal interest on the past due weekly payments, from September 24,1980 until paid, as well as plaintiff’s medical expenses, and ordered Dresser to pay for additional surgery as recommended by plaintiff’s physicians; the trial court gave defendant, Dresser, credit for earnings, voluntary payments, and compensation paid after May 30, 1979 and denied plaintiff’s demand for penalties and attorney fees.

The defendant’s appeal contends that the court erred in holding that the plaintiff is in fact disabled and that he was injured in an accident on May 30, 1979, while working for Dresser Industries, Inc.

The plaintiff contends that the trial court correctly determined that he is partially disabled under LSA-R.S. 23:1221(3) and is entitled to the benefits awarded.

The issues on appeal are:

1. Was Gales’ disability caused by an accident on May 30, 1979, while he was working at Dresser Industries?

2. Is Gales in fact disabled?

The plaintiff, a liquid mud engineer and dispatcher, was working for Dresser Industries on May 30, 1979, the date of the accident. His normal dutiés including loading and unloading 50 pound and 100 pound sacks of dry drilling mud. On that date, he was cleaning up his living quarters at Dresser when a pile of beds collapsed and struck his left hand. Plaintiff reported the accident to his supervisor who sent him to Dr. Cenac, who determined that Gales’ wrist was fractured. Dr. Cenac applied a cast which Gales wore for about 2 months. When the cast was removed, plaintiff complained of pain, and the x-rays revealed that the fracture had not healed. Dr. Ce-nac performed a bone graft on August 6, 1979 to aid the healing process. Gales was re-examined on September 17, 1979, at which time Dr. Cenac estimated his disability would last six months. On October 5, 1979, Dr. Cenac wrote to defendant’s compensation adjusters that Gales' condition was improving, but he could be expected to have a 20-40% impairment of the wrist and hand as a whole, depending on the healing of the navicular fracture. At that time, Dr. Cenac estimated that active treatment would be necessary for 6-9 months more. On November 30, 1979, Dr. Cenac again wrote the adjusters to say that there was progressive union of the graft site, however there was incomplete union across the entire navicular cleft. He applied a short cast, which he later changed to a temporary splint.

In April, 1980, Gales was examined by Dr. Grunsten who advised him to discontinue the splint and to use his hand and wrist. Dr. Grunsten found that the union was stable so that, in effect, it had healed completely.

Pr. Cenac examined Gales and made x-ray studies during the period of June through September, 1980. After his September, 1980 examination, at which time Gales complained of pain, Dr. Cenac considered Gales capable of returning to work and noted that, if symptoms of tenderness persisted, fusion surgery would be warranted. Dr. Cenac discharged him to return to full duty on September 17, 1980.

On January 15, 1981, Gales was examined by Dr. Adatto. At that time Gales complained of pain in his wrist. Dr. Adatto found that the union was good and that Gales would have a good functional hand as long as he protected it from stressful activity. He agreed with Dr. Cenac that Gales had a 20-25% anatomical disability because of limitation of motion. On December 10, 1981, Gales returned to Dr. Adatto complaining of increased pain to the point that he could not work; x-rays revealed that there was impingement in the area of the graft, meaning that the graft had overgrown the area. Dr. Adatto consulted Dr. Kutz, a specialist in hand surgery in Louisville, Kentucky, who recommended further surgery called “radiostyloi-dectomy” to relieve pain after further examination of the patient. After another examination on March 16, 1982, by Dr. Adatto this procedure was recommended.

After Gales was discharged by Dr. Cenac in September 1980, he returned to Dresser Industries where he was informed that they had no “light work” for him. Being unable to perform his former duties, Gales left Dresser. It was stipulated that Gales was employed at Hunt Correctional Center from May 29, 1981 through August 31, 1981 and worked 40 hours a week at $4.50 per hour, and between May 30, 1979 and the date of trial he worked a total of two weeks for Ted Hicks and Associates (Howard E. Eads) and Borden Chemical Company, and his earnings from those two jobs exceeded the amount he was making while employed by Dresser. Plaintiff received workers’ compensation benefits from the date of the accident until September 17, 1980.

Defendant contends that the disability that is preventing plaintiff from returning to work at this time is a result of other accidents suffered by plaintiff prior and subsequent to May 30, 1979, and some of which were not work-related.

LSA-R.S. 23:1221(3) provides that an employee is deemed partially disabled if he is unable to “perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience. ..."

An injured employee is not required to work in substantial pain and the trial court’s determination that the employee is unable to return to work due to substantial pain will not be disturbed unless clearly wrong. Patin v. Continental Casualty Company, 424 So.2d 1161 (La.App. 1st Cir.1982), writ denied 429 So.2d 145 (La.1983).

The trial court found that on May 30, 1979, the plaintiff had an accident while working for the defendant, Dresser Industries, Inc., and that the accident took place during the course and scope of plaintiffs employment. That is, plaintiff was cleaning the bunkhouse on the premises of Dresser when a stack of beds collapsed and struck plaintiff on the hand. The court further found that plaintiff had a pre-exist-ing fracture which was asymptomatic at the time of the accident. Dr. Adatto testified that a person could have a fracture and not realize the severity of it and continue to work without treatment. Although the doctors concluded that Gales must have suffered some pain at the time of the previous fracture, it is possible that such pain was not significant. The testimony further revealed that Gales worked for Dresser for about six months loading heavy sacks of drilling mud without complaint. The court found that the accident of May 30, 1979, aggravated the pre-existing injury, and therefore plaintiff is entitled to recover.

The law is well established that an injured employee is not required to work in substantial pain. Patin v. Continental Casualty Company. The court held that the worker is partially disabled when he would experience substantial pain in working in his former occupation even though he could work in other types of jobs without experiencing pain. Plaintiff testified that he is in continuous pain and can not handle heavy objects. Dr. Adatto and Dr. Kutz found clinical evidence of arthritis which can cause the pain plaintiff complains of. Therefore, applying the most recent standard, we conclude that the trial court’s finding that plaintiff is partially disabled is correct. Naquin v. Uniroyal, Inc., 405 So.2d 525 (La.1981).

The case of Culp v. Belden Corporation, 432 So.2d 847 (La.1983), reviewed in detail the basis for determining when a worker is partially disabled due to pain. Citing Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981), and Lattin v. HICA Corporation, 395 So.2d 690 (La.1981), the Supreme Court stated:

“These cases underscore the fact that in compensation situations where pain is the linchpin to make out a prima facie case for a worker’s classification in the odd lot category, the pain accompanying routine physical tasks and attempts to return to work must be substantial, serious, intense and/or severe.” 432 So.2d at 850.

Applying that test to the present case, the District Court correctly declared plaintiff to be partially disabled. Gales testified that he had to leave his job at Hunt Correctional Center and at Borden because of his pain. He also testified that he had only done work in which he could avoid using his left hand. His testimony is consistent on this point.

Thus, it is clear that the accident of May 30, 1979 aggravated plaintiff’s pre-existing condition, and that the injury suffered on that date caused plaintiff to be partially disabled.

Neither party to this appeal questioned the District Court’s debits and credits, and the plaintiff did not appeal the denial of penalties and attorney’s fees.

For the reasons assigned, the judgment of the District Court is affirmed, at defendant’s costs.

AFFIRMED.

COLE, Judge,

respectfully dissenting.

Plaintiff failed to prove by a preponderance of the evidence he is disabled or assuming disability, that there is a causal relationship between such disability and the alleged accident of May 3Ó, 1979.


author: EDWARDS, Judge.

text:
    STATE of Louisiana v. Todd HEBERT.
    No. 83-KA-0452.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Alexander Doyle, Asst. Dist. Atty., Hou-ma, for State-plaintiff-appellee.
    G. Patrick Hand, Jr., New Orleans, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

Defendant, Todd Hebert, was charged by bill of information with having committed the crime of attempted second-degree murder in violation of R.S. 14:30.1 and 14:27. Defendant waived trial by jury, and was subsequently found guilty by the trial judge of the lesser offense of aggravated battery. Defendant was sentenced to five years at hard labor. Defendant now appeals his conviction and sentence, alleging that there was insufficient evidence for his conviction; that the trial court erred in denying his motion for a new trial; and that the sentence imposed is excessive.

BACKGROUND FACTS

In the early morning hours of September 14, 1980, sheriffs deputies discovered the badly battered body of the victim herein, Robert Roy Snide, lying unconscious on a bloody mattress at a dump site on Bayou Blue in Terrebonne Parish. Snide was seriously injured, being bruised on his anterior neck and head, with fractures of the skull, both sides of the jaw, and the right lateral orbit and infraorbital bone. Additionally, Snide suffered three-inch lacerations to his chin and scalp, smaller lacerations to the left eye, and extensive swelling of the face. Because of his injuries, Snide could not remember how he was injured, and thus could not testify as to who was the perpetrator.

The deputies had been led to the scene by defendant and his father. Defendant told the deputies that he had hit Snide with his car while driving around with Brian Beasley. Defendant stated that they put Snide in his car and deposited him at the dump site on Bayou Blue. Defendant then drove Beasley home and headed home himself. Feeling guilty, defendant told his parents that he had been involved in a hit-and-run accident. They accompanied defendant to the sheriffs office that morning where defendant gave his oral statement that he had caused a hit-and-run accident. Beasley also came to the office, and stated that there had been a hit-and-run accident.

. However, later that day Beasley gave another statement indicating that no hit- and-run accident occurred, but rather it was defendant who beat up Snide at the dump site. Beasley stated that he only corroborated defendant’s hit-and-run story because of threats made to him by defendant. Defendant denied Beasley’s story, and testified that it was Beasley who beat up Snide. Defendant stated he devised the hit-and-run story to protect himself and Beasley, who was on probation at that time.

INSUFFICIENT EVIDENCE

Defendant contends that the evidence presented by the State is insufficient to sustain his conviction. Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), when a conviction involves direct or direct and circumstantial evidence, a reversal of a guilty verdict requires that the reviewing court be convinced that even when the evidence is viewed in the light most favorable to the State, no rational trier of fact would conclude that defendant’s guilt had been proved beyond a reasonable doubt. State v. Washington, 421 So.2d 887 (La.1982).

In examining the evidence at trial, it must be noted that the only direct evidence linking defendant to the crime is the testimony of Beasley, an alleged accomplice who was initially charged in the incident, but such charges were later dropped. While a conviction can be sustained on the uncorroborated testimony of a purported accomplice, i.e., Beasley, such testimony should be treated with great caution. State v. May, 339 So.2d 764 (La.1976); State v. Matassa, 222 La. 363, 62 So.2d 609 (1953).

At trial, Beasley testified for the State. Beasley stated that he and the defendant picked up Snide, who was hitchhiking, in the parking lot of the White House Lounge. They then decided to drink beer at a bar and later go to the dump site to smoke marijuana. When they arrived at the site, defendant brought out his marijuana pipe, lit it and passed it around. After awhile, Beasley testified that defendant took out his nun-chucks, a martial arts weapon, and began swinging them. Defendant then allegedly struck Snide with the nun-chucks, because Snide had hidden the marijuana pipe in his pocket.

According to Beasley, Snide was knocked unconscious to the ground, and defendant then began to choke him with the rope from the nun-chucks, which had broken upon impact. Beasley testified that he tried to talk defendant out of beating Snide, but defendant kept hitting Snide in the head with a beer mug. Defendant wanted Beasley to help him drag Snide over to a nearby pond, but Beasley refused and asked to leave. Beasley testified that defendant then got in the car with him and intentionally rolled over Snide twice with his left front wheel.

Defendant and Beasley then left the dump and defendant drove Beasley to his house. On the way, Beasley testified they stopped at a car wash on upper Bayou Blue Road where defendant washed underneath his car. Later that morning, Beasley was summoned by deputies for his statement, and he corroborated defendant’s story that Snide had been injured in a hit-and-run accident. Later that evening, however, Beasley gave the above version of the incident to the police, stating that defendant had threatened him at the sheriff’s office that morning into corroborating his hit-and-run story.

Defendant testified in his own behalf at trial, and his story corroborates Beasley’s up to the events at the dump site. Defendant testified that while smoking the marijuana, Beasley signaled to defendant, unbeknownst to Snide, to hit Snide and start a fight. Beasley indicated he also wanted to fight Snide. Defendant shrugged off Beasley’s suggestion, and all three parties continued smoking marijuana.

After a great deal of smoking, defendant went to the front seat of the car to lie down. Defendant testified he is not sure how long he laid there, but some time later Beasley came and told him that he had “really fucked that dude good.” Defendant suspected that Beasley had beaten Snide up because of his earlier behavior. Defendant went to the front of the car, and found Snide on his back. Snide then lifted himself up and charged defendant, grabbing him. Defendant pushed Snide off twice, and finally knocked him out with a punch.

At this time, Beasley panicked and started yelling to leave before someone comes by. Defendant stated that they then got in the car and he tried to turn around, but the area was cramped and he was unable to do so. Defendant stated that during this turning process, he may have hit Snide, but he is unsure. Finally, defendant gave up on turning around and backed out of the dump to the main road.

After leaving the dump site, defendant testified that he took Beasley home, who refused defendant’s suggestion to go back to help Snide. Defendant stated that he did not stop at a car wash as testified by Beasley.

Both of defendant’s parents testified, stating that earlier on the night of September 13, they had seen defendant and Beasley at the local fair. Mr. Hebert had told defendant to be in early as he needed defendant’s car to go fishing the next morning. When defendant failed to come in that night as expected, Mr. and Mrs. Hebert left around 2:00 a.m. to go look for defendant. After driving around for awhile, they spotted defendant’s car crossing Highway 90, proceeding from lower Bayou Blue Road to upper Bayou Blue Road. They followed the car to the entrance of Beasley’s subdivision where he lived, and then stopped defendant when he came back a short time later. At no time did they observe defendant stop at a car wash on upper Bayou Blue Road, as testified by Beasley.

Mrs. Hebert got in defendant’s car and drove it home, whereupon defendant told them he had been involved in a hit-and-run accident. Both parents accompanied defendant to the sheriff’s office that morning. Mr. Hebert stated that defendant and Beasley were never alone together so as to allow defendant to allegedly threaten Beasley .into corroborating the hit-and-run story, as testified by Beasley.

Dr. Patrick McNulty, the emergency room physician who treated Snide, also testified. He stated that Snide’s injuries were not consistent with being rolled over by a car tire, which allegedly occurred according to Beasley.

Beasley’s testimony contained other contradictions. He testified that he was not a violent person, but subsequently admitted having a violent altercation at his home with his father that required treatment at a hospital emergency room. Beasley attributed this outburst to drugs that allegedly were planted in his drink at a local bar. Beasley also denied being fired from his job for using drugs, but Curtis Saucier, his employer, testified that Beasley was fired because he was in a daze for several days and.could not handle his job. Saucier, who grew up with Beasley in the area, also stated that Beasley’s reputation for honesty was terrible. It should also be noted that at the time of trial, Beasley was in jail charged with D.W.I., having three prior D.W.I. convictions and a conviction for marijuana possession.

While Beasley’s version of the incident is undermined by various contradictions and credibility problems, the defendant’s account is not entirely without flaws. Defendant testified he is unsure as to how Snide became so severely injured, although he does admit punching him once, which admittedly cannot cause such injuries. But, defendant’s clothes, which were analyzed, only revealed a small amount of Snide’s blood on the pants, with none on his shirt. One would expect a greater amount of bloodstains on defendant’s clothing if Beasley’s version of the incident occurred. Curiously, Beasley’s clothes were not examined for bloodstains. Additionally, there was testimony by the defendant and hjs parents that the clothes Beasley wore to the sheriffs office that morning were not the same ones he had on the night before, although Beasley told the deputies that the clothes were indeed the same.

In sum, we feel that the testimony of Beasley, which is the only direct evidence tying defendant to the crime, would fail to convince any rational trier of fact to conclude that defendant’s guilt had been proved beyond a reasonable doubt, even when examined in a favorable light as per Jackson, supra. We therefore reverse and vacate defendant’s conviction and sentence.

DECREE

For the above-expressed reasons, defendant’s conviction and sentence are reversed and vacated.

CONVICTION AND SENTENCE REVERSED AND VACATED.