author: REDMANN, Chief Judge.

text:
    STATE of Louisiana v. Troy L. GROTH.
    No. K 2856.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Rehearing Denied Feb. 26, 1985.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Kathy Lee Torregano, Asst. Dist. Atty., New Orleans, for plaintiff.
    Tilden Greenbaum, New Orleans, for defendant.
    Before REDMANN, C.J., and KLEES and WILLIAMS, JJ.
   REDMANN, Chief Judge.

On certiorari, we reverse the trial court’s quashing of an indictment for failure to bring to trial “within two years from ... institution of the prosecution,” La.C.Cr.P. 578(2), holding that that two year period of limitation is interrupted by a defendant’s pre-trial and trial time detention by other states. During those times “his presence for trial cannot be obtained by legal process” by Louisiana, C.Cr.P. 579(2).

“[Mjere physical detention ... in a state or federal prison will not alone ... interrupt prescription” under art. 579(2). State v. Amarena, 426 So.2d 613, 617 (La.1983). But Amarena’s context was post-conviction federal imprisonment during which Amarena’s “presence in Louisiana was easily obtainable,” id. at 617. The controlling statutory words here are that the accused’s “presence for trial cannot be obtained by legal process”: and Amarena reasoned that its accused’s presence was obtainable by Louisiana, during his federal imprisonment after conviction.

The case is the opposite during pre-trial and trial-time detention in another state. No state that is holding an accused for trial, and moreso no state that is in the middle of a trial of the accused, on that state’s own charges, is going to subordinate its criminal process to another state’s and forward its accused to the other state for trial. The holding state will (as Kentucky did as to the present defendant for Mississippi) note on its records a detainer for the other state and, once its own trial is completed and imprisonment begins, will thereafter honor a subpoena ad prosequen-dum or similar process (as the federal prison would have, during more than two years, in Amarena).

Pre-trial and trial-time detention of an accused is more than “mere physical detention,” as Amarena itself shows in its fixing of the date when Louisiana “had within its power the ability to obtain custody of the defendant,” id. at 618. The Louisiana supreme court did not fix that date at May 4, 1979, when Jefferson parish officials learned Amarena was being held in California, but at February 1980, when Jefferson learned from California’s return of extradition papers that Amarena was in a federal prison after a conviction (not awaiting trial) and therefore available to Jefferson from the federal prison.

In the case now before us, the dates specified in the state’s trial memorandum and appellate brief, not disputed by the defendant, show that no two-year period after institution of prosecution occurred during which defendant’s “presence for trial [could have been] obtained by legal process,” art. 579(2).

Prosecution was instituted in Louisiana on September 23, 1981 for an armed robbery of September 9. Defendant’s involvement with other states arose from prosecutions for burglaries September 8 in Mississippi and September 5 in Kentucky.

Defendant was arrested in New Mexico on September 12 and sentenced to 15 days there for possession of marijuana. He there confessed to the Kentucky burglary of September 5 and waived extradition to Kentucky and there pled guilty March 30, 1982. Perhaps after March 30 (and surely after his April 23 transfer to the Kentucky reformatory), defendant’s presence for trial in Louisiana could have been obtained. Arguably his presence continued to be obtainable from Kentucky, despite a previous de-tainer from Mississippi, until defendant’s parole by Kentucky to Mississippi on December 12, 1983 for trial there for the burglary of September 8, 1981. But after December 12, defendant’s presence for trial in Louisiana again could not “be obtained by legal process” while Mississippi was holding him for trial, and therefore, under art. 579(2), there was an interruption of art. 278(2)’s two-year period, starting the two-year period to run anew. Not until Mississippi nol prossed its charge on April 3, 1984, was defendant’s presence again obtainable by Louisiana.

Because no two-year period as required by C.Cr.P. 578(2), uninterrupted by art. 579(2), occurred during which Louisiana could have brought defendant to trial, the quashing of the indictment under art. 578(2) was error.

Reversed.


source: Caselaw Access Project

author: WILLIAMS, Judge.

license: Public Domain

text:
    Errol A. BROWN v. MARTIN MARIETTA CORPORATION.
    No. CA-2227.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Rehearing Denied Feb. 26, 1985.
    Ethel H. Cohen, Deutsch, Kerrigan & Stiles, New Orleans, for defendant-appellant.
    Jacqueline Mae Goldberg, New Orleans, for plaintiff-appellee.
    Before BYRNES and WILLIAMS, JJ., and L. JULIAN SAMUEL, Judge Pro Tem-pore.
   WILLIAMS, Judge.

This is an appeal from a decision of the trial court finding defendant Martin Marietta Corporation liable to plaintiff Errol A. Brown for workers’ compensation benefits for partial disability. Attorneys’ fees and 12% penalties were also assessed. It is from this judgment that defendant appeals.

Plaintiff was referred to a neurologist, Dr. Maria Palmer, in January, 1977, by a student practitioner, Dr. Don Bradke, because he had several neurological complaints. At that time, plaintiff was an electrician working with Martin Marietta. He had been complaining of dizziness and pain and numbness on his left side. During a series of tests, it was determined that plaintiff had non-specific chronic hepatitis. Dr. Palmer had no opinion as to the cause. Dr. Bradke, who has no special training in gastroentology, (although otherwise stated in the trial court’s reasons for judgment), testified that he felt plaintiff’s hepatitis was chemically induced.

Plaintiff testified that he worked around chemicals in his job with Martin Marietta in its Thermal Protective Systems Department, and had, in one instance, been accidentally sprayed with chemicals. No testimony or evidence was introduced as to the kinds and amounts of chemicals with which he worked.

Dr. Vernon Fagen, physician for Martin Marietta testified that, according to plaintiffs medical records, he had never worked with chemicals. E.J. Horack, manager of the program (T.P.S.) of Martin Marietta in which plaintiff worked, testified that his work records indicated that plaintiff had no contact with chemicals. Dr. Fagen, however, testified from medical records and could not state that it was his personal knowledge that plaintiff did not work with chemicals. Horack did not begin working with Martin Marietta until after plaintiff contracted hepatitis. His knowledge of plaintiffs work around chemicals was not totally based on personal knowledge.

The basic issue in this case is whether plaintiff carried his burden of proof. Plaintiff must prove that it is more probable than not that he contracted hepatitis as a result of his employment with defendant. Chisolm v. Dibert, Bancroft & Ross Co., 428 So.2d 945 (La.App. 1st Cir. 1983); Martin v. Rollins Services, Inc., 424 So.2d 429 (La.App. 4th Cir.1982) See La.R.S. 23:1031. Nowhere in the record does plaintiff offer any evidence of the chemicals he allegedly worked with or with what amounts he had come in contact. The court could not determine whether those chemicals could cause hepatitis and what amounts were necessary to create such a problem. Plaintiff merely alleges that he worked around chemicals and that he had chemically-induced hepatitis.

Because plaintiff failed to prove any causal relationship between the chemicals with which he was alleged to have worked and his hepatitis, we find that the trial court was manifestly erroneous in awarding benefits and also penalties and attorney’s fees.

For the foregoing reasons, the ruling of the trial court is reversed and there is judgment in favor of the defendant, Martin-Marietta Corporation, and against the plaintiff, Errol A. Brown, dismissing the latter’s suit at his cost in both courts.

REVERSED.

      . The trial judge who heard this case retired prior to making a decision, and the judgment was handed down by his successor on the basis of the record.


author: L. JULIAN SAMUEL, Judge Pro Tem-pore.

text:
    Mrs. Eunice W. BLANCHARD v. SCHWEGMANN GIANT SUPER MARKETS, INC.
    No. CA-1903.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Rehearing Denied Feb. 26, 1985.

      Edwin R. Fleischmann, Jr., New Orleans, for plaintiff-appellee.
    William G. Tabb, III, Frederick A. Miller, New Orleans, for defendant-appellant.
    Before WILLIAMS and BYRNES, JJ., and L. JULIAN SAMUEL, Judge pro tem-pore.
   L. JULIAN SAMUEL, Judge Pro Tem-pore.

Defendant suspensively appeals a judgment awarding plaintiff $8,000.00 in general damages and $2,803.75 in medical expenses for injuries she sustained when she slipped and fell in defendant’s super market.

On February 1, 1981 at approximately 10:00 a.m., plaintiff and her husband were grocery shopping at Schwegmann’s on Judge Perez Drive. Upon finding no shrimp in the seafood case, plaintiff started toward the frozen vegetables. Allegedly due to the wet condition of the floor, plaintiff’s feet went out from under her. She fell, grabbing the grocery cart, pulling it on top of her and hitting her head on the seafood case. She suffered a fracture of the 8th rib, multiple contusions, and a lum-bosacral sprain.

Our established jurisprudence is that once a customer proves that a foreign substance was on the floor and that the substance caused her to slip, fall and sustain injuries, a presumption of negligence arises on the part of the defendant store-owner. The burden of proof then shifts to the storeowner to exculpate itself from the presumption by showing reasonable periodic clean-up and inspection procedures of the floor area in order that a foreign substance does not remain for an unreasonable length of time on the floor. Gonzales v. Winn Dixie, Louisiana, Inc., 326 So.2d 486 (La. 1976). Also well settled are the principles that a reviewing court will not set aside a factual determination by the trial court absent manifest error, Canter v. Koehring, Co., 283 So.2d 716 (La.1973).

Defendant contends the trial judge erred in finding it negligent as it was established at trial that the area where plaintiff fell had been cleaned only minutes pri- or to the fall. It argues the evidence shows there was no water on the floor either prior to or after the accident when the area was inspected and swept to clean up only broken eggs. In the alternative, Schwegmann’s argues it established reasonable and periodic inspection procedures which exculpate it from any negligence.

Plaintiffs husband, Edgar Blanchard, did not witness the fall but was notified of his wife’s accident over the store’s public address system. He testified that when he arrived on the scene he found her lying on her back with her head near the front of the seafood case. He stated: “She looked like she was dead.” He said she was ice cold and the back of her clothing was wet. He also testified the floor in front of the counter and for the full length of the store was “very wet” with a “pinkish-whitish liquid”.

Plaintiff stated she had been in the store approximately ten minutes before arriving at the seafood counter. She said the seafood case was completely empty and two Schwegmann employees were wiping it out. She testified she noticed water on the floor in front of the dairy case which was adjacent to the seafood case. She did not look at the floor in front of the seafood where she fell, but did recall while lying on the floor after the accident “I was freezing to death on my back ... my back was all wet.”

Charles Springs, a former employee of Schwegmann’s and seafood clerk at the time of the accident, testified he heard someone moan and turned to see plaintiff who appeared to be “passing out”. He saw her grab a customer then her shopping cart, which she pulled over as she fell. He stated the seafood case was full and was not down for repairs that morning. He had no recollection of accumulated water on the floor at the time of the accident, but did recall that the porterette had cleaned that area in front of the seafood case a “couple of minutes” prior to Mrs. Blanchard’s accident. He testified that after the fall the only substance on the floor was broken eggs, no water. On cross-examination, Springs testified chicken necks were cased in the same location as the seafood and admitted that from time to time chicken and milk drippings were in the area which needed to be cleaned periodically.

Theresa Cabiran, the porterette assigned to the area in question on the day of the accident, also testified at trial. She had no independent recollection of her work activities that day, but testified from the work chart she had filled out on the day of the accident, February 1, 1981. She stated it was her job to keep the floors clean and free of debris in the area designated to her, and that when she would sweep, mop or inspect a particular area, she would write the time, place and work activity on the chart. However, she admitted that on occasion she would work for a time in several different areas before filling out the chart. She further stated that “S” for swept implied the substance on the floor was dry and “M” for mopped would mean the floor was wet. The chart indicates, and Ms. Cabiran so testified, that she swept the seafood area at 10:06 a.m. At 10:08 she swept the dairy area and at 10:09 she swept near “door 2”, adjacent to the dairy area.

On direct examination, the porterette was asked when was the next time she was in the seafood section. Referring to the chart she answered at 10:29 a.m. to clean up the eggs which were “almost next to the woman.” The chart indicates the seafood area was “swept” at that time and Ms. Cabiran testified this was when she “swept” up the eggs after the accident. She also said there was no water on the floor at that time. For some reason, Ms. Cabiran chose to ignore the entry on the chart “10:20 — Seafood—eggs—M,” which would seem to indicate that eggs were mopped up in the seafood section at 10:20. On cross-examination, plaintiffs attorney attempted to clarify this omission, but Ms. Cabiran said she could not remember whether the 10:20 activity was before or after the accident and stuck to her original story that the eggs were “swept” up in the seafood area at 10:29 a.m. after the accident. She also testified that prior to this (at 10:27 a.m., two minutes earlier) she had been in the dairy section to mop. She testified it was at this time, while mopping the dairy section that she heard of Mrs. Blanchard’s accident. She stated she was told to find a blanket to cover Mrs. Blanchard. She said it took her five to ten minutes to get a blanket.

Ms. Cabiran’s testimony was simply not believable. For some reason, she attempted to divert attention from the 10:20 mopping in seafood. She said she was in dairy (directly adjacent to seafood) mopping two minutes before the accident (10:27). On the basis of this evidence defendant asserts, since the area was mopped less than two minutes before, this proves the area was not only not wet but had been inspected a very short time before the plaintiff’s fall. The porterette also said she was sweeping up the eggs at 10:29 after the accident, but had spent five to ten minutes looking for a blanket to cover Mrs. Blanchard. Ms. Cabiran’s testimony and the entries on the chart simply cannot be reconciled. Cabiran also admitted under cross-examination that water and drippings built up rapidly in the milk and seafood areas.

The trial judge had the opportunity to observe first hand testimony and demeanor of all the witnesses. We cannot say that he erred in not relying on the testimony of defendant’s witnesses and in accepting that of the plaintiff’s that the floor was wet. By Cabiran’s own admission, the charts were unreliable since she would often work areas and then some time later fill out the time sheet. The testimony of defendant’s witnesses was inconsistent, sometimes unbelievable, and simply not sufficient to rebut the presumption of negligence attributed to defendant.

Nor can we say that the trial court erred in concluding that the clean-up procedures utilized by defendant were not adequate to exculpate it from liability. Maryland v. Winn-Dixie, Louisiana, Inc., 393 So.2d 316 (La.App. 1st Cir.1980). According to defendant’s evidence, cleaning during the day was performed on an “as needed” basis. Porterettes were assigned to various “zones” or areas of the store for the purpose of performing these duties. Apparently, no regular inspections of the aisles were conducted. The porterettes would simply traverse their zones and clean up any spills they detected. Whenever a por-terette cleaned a spill, she would note on a chart the time, place, and clean-up activity performed.

On the date of the accident in suit, Theresa Cabiran was the porterette assigned to the area in which plaintiff was injured. As we have said, she testified that she swept the seafood area at 10:06 a.m. When asked when she was next in the seafood section, she replied 10:29 a.m., after the accident, to clean up the eggs “almost next to the woman.” Although an entry on Ms. Cabiran’s chart indicates that she mopped in the seafood section at 10:20 a.m., she stated at trial that she did not remember whether this clean-up took place before or after the accident, and reiterated the fact that it was 10:29 a.m. when she returned to the seafood section to clean up after the accident. Obviously, the testimony with respect to defendant’s clean-up procedures is inconsistent and contradictory.

The duty of a store owner to protect his customers from foreign substance on the floor is one of reasonable protective measures under the circumstances. Gonzales v. Winn-Dixie, Louisiana, Inc., supra. The circumstances that determine the reasonableness of protective measures include the type and volume of merchandise, the type of display, the floor space utilized for customer service, the nature of customer service, and the volume of business. Brown v. Winn-Dixie, Louisiana, Inc., 452 So.2d 685 (La.1984); Gonzales v. Winn-Dixie, Louisiana, Inc., supra. In the present case, plaintiffs accident occurred in the seafood section of the store. The uncontradicted testimony of defendant’s witnesses was that chicken and milk drippings built up so rapidly in this area that frequent clean-ups were necessary. Due to the unique nature of the refrigerated seafood section, and the increased hazard it poses for unsuspecting customers, it is clear that the defendant is obligated to inspect this area more regularly and frequently than say, a dry goods section where water and drippings are not likely to occur. The defendant’s burden is greater because the risk of harm in this area is greater.

Under the facts of the present case, it appears that no frequent or regular inspections were conducted. In fact, in this particular instance, there was a lapse of at least twenty minutes before the porterette returned to the seafood section to clean it up and she apparently returned at that time only because she had been alerted of the plaintiff’s accident. This is not a case where the foreign substance was on the floor only minutes before the accident occurred. Maryland v. Winn-Dixie, Louisiana, Inc., supra. Here, the lack of frequent inspections and other preventive measures resulted in the failure to discover a dangerous condition and contributed substantially to the causation of the ensuing fall and injury. Given these facts, we conclude that the trial judge did not err in finding the defendant’s clean-up procedures were inadequate to relieve it of liability.

In addition, we note the judge could have found liability if he believed, as he reasonably could, that a mopping just a few minutes before the fall (at 10:20 a.m.) left a wet, and slippery walking surface in the seafood area.

This case involved credibility determinations by the fact finder and we find no manifest error or abuse of discretion in his conclusions.

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

AFFIRMED.


author: EDWARDS, Judge.

text:
    STATE of Louisiana v. Walter E. JOHNSON.
    No. KA-84-0280.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 29, 1984.
    Rehearing Denied Dec. 28, 1984.

      Ossie Brown, Dist. Atty. by Ernest Smithling Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Johnnie L. Matthews, Baton Rouge, for defendant-appellant.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   EDWARDS, Judge.

Convicted of aggravated rape under LSA-R.S. 14:42 and sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence, Walter E. Johnson appeals his conviction, alleging nine assignments of error.

The rape occurred in the early morning hours of October 28, 1982. The rapist entered through a living room window and from there crept into the bedroom where the fifteen year old victim lay sleeping. His face hidden beneath a ski mask, he placed one hand over her mouth and held a knife to her throat in the other while he raped her, slashing her neck and back during the attack. He threatened to kill her mother, asleep in another room, if she made any noise or told anyone about the attack. After he left, still frightened from the attack, she remained in her bed until she heard an alarm clock awaken her mother around 5:30 a.m. She called out to her and told her what happened. Her parents called the police and then took her to the hospital for examination and treatment. ASSIGNMENT OF ERROR NUMBER 1

Defendant contends the trial court erred in denying his motion for a post-verdict judgment of acquittal.

Under LSA-C.Cr.P. art. 821, “a post-verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty.” This standard is the same as that enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See State v. Walker, 447 So.2d 54 (La.App. 1st Cir.1984). After reviewing the transcript of the trial, we cannot say that the evidence does not reasonably support the verdict or that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt.

The victim’s testimony from a prior trial, properly admitted into evidence in this trial, establishes that the victim was raped by a black man in a ski mask with a knife at her throat on October 28, 1982. Although she was unable to identify the defendant as the rapist, other reliable evidence establishes his identity.

Suspecting entry through a living room window, which had been broken some days before, the police found fingerprints, later identified as the defendant’s, on the screen and a broken pane of glass. In the defendant’s apartment, where he was arrested later that afternoon, they found a ski mask and a bloodied kitchen knife. Blood found in the victim’s bed, on the knife, and on the defendant’s bedroom curtain was the same type as the defendant’s, Type 0. Seminal washings from the victim established the rapist as a Type O secreter. Photographs taken of defendant’s fingers the day of his arrest showed fresh cuts, which support the inference that the defendant either cut his fingers on the broken window pane when he entered the house or on the knife which he used to cut the victim.

A rational finder of fact viewing the evidence in the light most favorable to the prosecution could have found that the State proved defendant’s identity as the rapist beyond a reasonable doubt. La.C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099 (La. App. 1st Cir.1983). This assignment therefore lacks merit.

ASSIGNMENT OF ERROR NUMBER 2

Defendant contends that the trial court erred in denying his motion for new trial because the evidence is insufficient to support his conviction and because the verdict is contrary to the law and evidence.

LSA-C.Cr.P. art. 851 states in pertinent part:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(1) The verdict is contrary to the law and the evidence;
* * * * * *
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;

According to our decision in State v. Korman, 439 So.2d 1099,1101 (La.App. 1st Cir.1983), a trial court, acting as a thirteenth juror, may consider only the weight and not the sufficiency of the evidence in a motion for new trial, and his decision to grant or deny the motion is not subject to appellate review. LSA-Const., Art. 5, § 10; LSA-C.Cr.P. art. 858.

Moreover, a denial of a motion for new trial, urged on the ground that the verdict is contrary to the law and evidence, is reviewable only for abuse of discretion. Since we have already found the evidence sufficient to support the conviction, we find no abuse of discretion in the denial of the motion in this case.

Defendant contends further that a new trial should have been granted because of newly discovered material evidence. Defense counsel discovered after trial that semen tests on defendant’s underclothes, seized after his arrest, had proven negative. Prior to trial, defendant had filed a Brady motion for exculpatory evidence, including a specific request for tangible objects within the state’s possession which were favorable to defendant and material and relevant to the issue of guilt. He also sought objects which were obtained from or belong to the defendant.

LSA-C.Cr.P. art. 718 provides for the discovery by a defendant of tangible

objects in the possession of the state which are material and relevant to the issue of guilt or which were obtained from or belong to the defendant. The trial court may determine whether evidence is material and favorable by an in camera inspection. In this case, however, the state did not present the evidence for such an inspection.

The right to be protected against the prosecution’s failure to reveal its possession of exculpatory evidence is founded upon the dpie process clause and is designed to insure a fair trial. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In United States v. Agurs, 427 U.S. 97, 106, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976), the United States Supreme Court stated in regard to a pre-trial request for specific evidence:

Although there is, of course, no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor, if the subject matter of such a request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge. When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.

The trial judge denied the motion because, under article 851, he believed defendant’s counsel could have discovered the evidence had he been more diligent in his pre-trial investigation and because there was no showing that the evidence would probably have changed the verdict.

While we disagree that defendant’s counsel was not diligent and find inexcusable the prosecutor’s failure to produce the evidence when requested to do so, we cannot say that the evidence would probably have changed the verdict. We therefore find no abuse of discretion in the denial of the motion. This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER 3

Defendant’s counsel contends that the trial court erred in denying his motion for a continuance because he had insufficient time to prepare defendant’s case.

Counsel made four requests for a continuance. The first, by written motion filed August 22,1983, four days before trial was to begin, was granted, moving the trial date to September 21. The second, filed the day of the trial, was denied. Counsel sought writs from that ruling, which we denied. He filed a third on September 27, requesting a copy of the transcript of defendant’s first trial, which had resulted in a mistrial because the jury had been unable to reach a verdict. The motion was granted and trial rescheduled for October 5. On the morning of trial, counsel made a fourth motion, orally to the court, on the ground he had received the last 180 pages only the day before and needed more time for review. That motion was denied.

Defendant’s counsel does not specify which denial he is appealing, so we will presume he means the last. Under LSA-C. Cr.P. art. 707, a motion for continuance shall be in writing and filed at least seven days before trial. Since the motion was made orally, the trial judge did not abuse his discretion in denying it. See LSA-C. Cr.P. Art. 712.

In any event, a denial of a motion for continuance is not reversible absent a showing of prejudice, and when the motion is grounded on insufficient time to prepare a defense, the preparation time must have been so short as to undermine the basic fairness of the proceedings. See State v. Jones, 395 So.2d 751, 753 (La. 1981).

We find no such prejudice in this case. Counsel had twenty four hours to review the last 180 pages of the transcript. This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER 4

Defendant contends that the trial court erred in allowing the state to use the transcript of the victim’s testimony in an earlier mistrial. He contends that he was not notified of the state’s intent to use the transcript.

According to State v. Robinson, 423 So.2d 1053, 1058 (La.1982), before testimony given at a prior hearing may be introduced in evidence at a subsequent trial, without offending the confrontation and cross-examination clauses of the federal and state constitutions, certain conditions must be met: (1) defendant must have been represented by counsel at the earlier hearing; (2) the witness must have testified under oath; (3) The witness must have been cross-examined or else validly waived the right to cross-examination; (4) at the time of the trial, the witness (whether out of state or not) must be unavailable or unable to testify; and (5) the state must have made a good faith diligent effort to obtain the presence of the witness, including use of its out-of-state subpoena powers where appropriate.

The record clearly indicates that all five conditions have been met. At the time of trial the witness, the victim in this case, was unavailable because she and her family had moved out of town. The state made a good faith diligent effort to obtain the victim’s presence, but was unable to contact her. She was not present at the trial.

Henry Bonnecaze, an investigator with the district attorney’s office, testified that prior to the trial he had been looking for the victim and her family. He stated that he made inquiries at the victim’s school and with her parents’ employers but was unable to find the family. He received information that they had moved to Starksville, Mississippi, but was not able to locate the family there.

After reviewing the record, we find that the state did make a good faith effort to secure the victim’s presence. Thus, we find that the trial judge did not err in allowing the victim’s prior testimony to be introduced.

Additionally, we find no prejudice to defendant in the state’s failure to give formal notice that it intended to introduce the victim’s prior testimony. The minutes of the second trial which began on September 21, 1983, indicate the trial court allowed the state to introduce a transcript of the victim’s prior testimony. At that time the trial judge also issued a bench warrant for the arrest of the victim and her parents. Thus, we find that defendant was well aware that the state was unable to locate the witness prior to trial. This assignment lacks merits.

ASSIGNMENT OF ERROR NUMBER 5

Defendant contends that the trial court erred when it refused to excuse two jurors who appeared to be sleeping during the reading of the transcript of the victim’s prior testimony. The trial judge stated that he noticed two women jurors had their eyes closed during the reading of the victim’s cross-examination. He noted, however, that he watched the jurors closely and did not believe that either of these jurors were asleep. Defense counsel objected to his ruling and assigned error. He did not request that the trial judge remove these jurors. In his brief, defendant now argues that, based upon the obvious prejudice to defendant’s case, those jurors should have been excused.

Defendant cites State v. Marshall, 410 So.2d 1116 (La.1982), as authority for his argument that the trial court may remove jurors who become unable to perform or disqualified from performing their duties. In that case, the Louisiana Supreme Court granted certiorari to decide if the trial judge erred in excusing a juror for cause after that juror had been accepted and sworn. The court also had to determine whether it was proper to replace the excused juror with an alternate juror on the panel. An evidentiary hearing was conducted in the trial court after the jury was sworn and before the reading of the indictment to determine if the juror was not impartial.

The Supreme Court held that the evidence was sufficient to conclude that the excused juror was “not impartial,” and that she was properly excused for cause. In addition, that court, in holding that the trial judge properly replaced the juror with an alternate, stated:

We consider that a finding that Mrs. Rice was properly excused for cause on the ground that she was “not impartial” rendered her “unable to perform or disqualified from performing” her duties within the meaning of the above article. Hence, the trial judge properly replaced Ms. Rice with the alternate juror.

State v. Marshall, 410 So.2d at 1118 (La. 1982).

That finding was based upon LSA-C.Cr.P. art. 789 which states in part:

The court may direct that one or two jurors in addition to the regular panel be called and impaneled to sit as alternate jurors. Alternate jurors, in the order in which they are called, shall replace jurors who become unable to perform or disqualified from performing their duties prior to the time the jury retires to consider its verdict.

In State v. Cass, 356 So.2d 396 (La.1977), however, the trial judge removed a juror during trial and replaced this juror with an alternate. During the first day of trial the judge noticed that one of the jurors appeared to be asleep. The judge observed that the juror had his eyes closed and that his head was nodding. After watching him for two to four minutes the trial judge summarily ordered the removal of the jur- or. The Louisiana Supreme Court held that it was reversible error for the trial judge to summarily remove a juror under those circumstances and in the manner in which he did. That court stated:

[Ajpplying Art. 789 C.Cr.P. we determine that even if the juror in question did briefly doze off, such is not per se proof of inability to perform, or any character of disqualification. Thus, there would be no legal cause for removing him. Had the juror been shown to have been sleeping through a substantial part of the trial or had he been unable to stay awake despite warnings or efforts to arouse him, and had defendant and the state been afforded an opportunity to explore on the record the [juror’s] inability to perform on this account, we would be presented with a substantially different question for review.

State v. Cass, 356 So.2d 396, 398 (La.1977).

The Supreme Court in State v. Cass relied upon State v. Buggage, 351 So.2d 95 (La.1977),1 and State v. Rounsavall, 337 So.2d 190 (La.1976), in which the trial judge excused a juror and allowed an alternate juror to serve in his place.

Defendant argues that since Buggage and Rounsavall were expressly overruled in State v. Marshall, State v. Cass, might not be good authority. State v. Cass cites those two cases and makes a determination consistent with those cases. In Cass, however, the Supreme Court implied that had the record shown proof of inability to perform, it might have found that the trial judge was correct in replacing one juror with an alternate.

In the instant case the trial judge ruled that, although he saw two women jurors with their eyes closed during the reading of the transcript of the victim’s cross-examination, he did not believe they were asleep. Furthermore, defense counsel neither requested an opportunity to determine nor made any showing that the jurors were actually asleep or unable to perform.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER 6

By this assignment of error, defendant contends that the trial court erred in allowing the state’s witness to fingerprint defendant during the course of the trial in the presence of the jury. Specifically, defendant argues that the taking of the fingerprints during trial, in light of the state’s possession of defendant’s fingerprint card, was prejudicial.

During the testimony of Carol Richard, the state’s expert witness on fingerprint comparisons, the trial court allowed defendant to be fingerprinted over the objection of counsel. The witness was then asked to compare defendant’s fingerprints with those lifted from the victim’s house. Ms. Richard informed the prosecutor she would need to print all of defendant’s fingers in order to compare the prints. At that point, defense counsel agreed to stipulate that the witness was in possession of an arrest card containing defendant’s fingerprints. That card was used for fingerprint comparison instead of the prints taken in the jury’s presence.

Defendant contends that there was no need to fingerprint defendant as the arrest card could be used for analysis. Apparently however, the prosecutor was unable to establish a chain custody for the card. Thus, he chose to have defendant fingerprinted in the presence of the jury. After a discussion with the trial judge at the bench, defense counsel and the prosecutor entered into the stipulation concerning the arrest card.

After reviewing the record we find no error on the part of the trial judge. The fingerprints taken at the time were not used for comparison. We find no prejudice to defendant in the fingerprinting of defendant.

ASSIGNMENT OF ERROR NUMBER 7

By this assignment, defendant contends the trial court erred in not granting a mistrial. Defense counsel moved for mistrial on the ground that the jurors saw the defendant in his prison garb and handcuffed as he was being led into court. After a hearing and a thorough examination of the jurors, the trial judge denied the motion.

La.Code Cr.P. art. 775 provides in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial....

Because a mistrial is such a drastic remedy, it should be granted under article 775 only when a denial, at the judge’s discretion, would make a farce of the proceedings and a fair trial impossible. State v. Tennant, 262 La. 941, 265 So.2d 230 (1972).

In this case, there is no showing that the jurors actually saw defendant dressed in prison garb and handcuffs. During the hearing, defendant testified that after the first day of the trial upon his return to prison some jurors might have seen him dressed in prison garb and handcuffs. Defendant stated that he was getting ready to come out of the stairwell when the deputy accompanying him pushed him back.

Sergeant Beard, the deputy accompanying the defendant, testified he opened the door from the stairway onto the first floor and saw several jurors standing at the security desk nearby. The deputy immediately pushed the defendant, who was following, back into the stairway. Sgt. Beard also testified that the jurors had their sides to the stairway and were facing the officer at the security desk.

The trial judge asked the jurors if any of them saw Sgt. Beard leaving the building the night before. None of the jurors responded that they had seen the officer or defendant. Thus there is no evidence that any juror actually observed defendant in prison garb or handcuffs.

Under these circumstances, we do not find that defendant’s right to a fair trial was prejudiced by the trial judge’s denial of the motion for mistrial. Cf State v. Wilkerson, 403 So.2d 652 (La.1981). This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER 8

By this assignment, defendant contends that the trial court erred in allowing the prosecutor to display evidence during his closing argument.

The Louisiana Supreme Court has held that re-examination of evidence by the jury during closing argument does not constitute error. State v. Perry, 420 So.2d 139 (La.1982), cert. denied, 461 U.S. 961, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983); State v. Atkins, 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402 (1979). Thus, we find no error in permitting the prosecutor to show pictures of the victim’s injuries during his closing argument.

ASSIGNMENT OF ERROR NUMBER 9

Defendant contends that the trial court erred in allowing physical evidence to be examined by the jury during their deliberations.

La.Code Cr.P. art. 793 provides:
A juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes or to have access to any written evidence. Testimony shall not be repeated to the jury. Upon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.

The jury has the right to examine physical evidence properly admitted. State v. Carney, 260 La. 995, 257 So.2d 687 (La.1972). Thus, the trial judge did not abuse his discretion in allowing the jury to re-examine physical evidence when it requested to do so after it had retired for deliberations. This assignment lacks merit.

For the foregoing reasons, the defendant’s conviction is affirmed.

AFFIRMED.


author: GULOTTA, Judge.

text:
    Mrs. Petrona MARTINEZ v. DIXIE BREWING COMPANY, INC., and Home Insurance Company.
    No. CA-2249.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 1984.
    Rehearing Denied Feb. 26, 1985.
    Writ Denied April 19,1985.

      William R. Seay, Jr., Metairie, for appellant.
    J. Paul Demarest, New Orleans, for ap-pellees.
    Before GULOTTA, KLEES and ARMSTRONG, JJ.
   GULOTTA, Judge.

In this worker’s compensation suit, the defendant employer and its insurer appeal from a judgment awarding death benefits, penalties and attorney’s fees to the surviving parents of an employee who died following a job-related fight with his co-worker. Because we conclude the trial judge erred in failing to find that the death was caused by the decedent’s willful intention to injure his fellow worker, we reverse the judgment and disallow recovery pursuant to LSA-R.S. 23:1081(l)(a).

Jose A. Castro died six days after being injured in a fight at the Dixie Brewery Company warehouse with a co-employee, Earl Jackson. The circumstances of their struggle are essentially undisputed.

Wilfred Duhon, a witness to the incident, testified that Castro “started horsing around” with Jackson by slapping him on the back of his head. According to this witness, Jackson dismounted his fork lift and punched Castro on the nose, knocking him to the ground and breaking his watch. After Duhon helped him off the floor and picked up his watch, Castro then grabbed a metal bar and swung it at Jackson, striking the back of the lift. Jackson then ran away from Castro in the warehouse and Castro threw the bar at him. Jackson returned with a metal pipe approximately six feet long, and Castro grabbed a baseball bat. The two proceeded to swing at each other, and, according to Duhon, were not “joking” or “playing around” but “meant to hit each other”. After using the pipe to deflect Castro’s bat swings “like Robin Hood and Little John”, Jackson struck Castro on his leg and head with the pipe before the combat ended.

A second eye witness, Brian Branniff, gave a similar account of the incident that started as a “friendly encounter or scuffle” of “slapfighting”. According to Branniff, after Castro’s watch was broken, Jackson left on his fork lift and did something else, while Castro mumbled, “I’m going to get that M.F.” When Jackson returned, Castro grabbed a metal bar and struck the fork lift truck where Jackson was sitting with his back to him. Jackson then ran to another part of the warehouse and Castro “kind of chased him”. Branniff testified that when Jackson came back armed with a pipe, Castro grabbed the baseball bat and was “not horsing around” as he attempted to hit Jackson.

In written “Reasons for Judgment”, the trial court rejected the defendant’s special defense of willful intent to injure as follows:

“[T]he Court concludes that after considering testimony and evidence, if Castro did indeed joust at Jackson with a baseball bat, it was an impulsive act, not with the premeditation or malice necessary to preclude recovery. The defendants’ own witnesses testified that Jackson and Castro were friends who had ‘played around’ before and who had been ‘slap fighting’ together on the job....
In the instant case, testimony relating to the friendliness between Jackson and Castro, the ‘playing’ and ‘slap fighting’, etc., suggests that there was neither existent premeditation nor malice on the part of the claimant and that his actions were impulsive.
While the Court is aware of some jurisprudence which precluded recovery both claimant and co-employee armed themselves, it was not the ‘arming’ which necessitated the preclusion, but the intention of the claimant to injure another which was important. (The ‘armings’ being but a symptomatic manifestation of intent.) Here, no such intent existed.”

Appealing, defendants contend that the trial judge manifestly erred in failing to conclude that the accident resulted from Castro’s willful intent to injure Jackson. Plaintiff argues, on the other hand, that the trial judge’s conclusions are supported, by the evidence and, alternatively, that defendants have waived this affirmative defense by failing to plead the defense in their answers to the suit.

Before turning to the merits of defendants’ contention, we reject plaintiff’s evidentiary argument directed towards defendants’ failure to plead affirmatively the defense of willful intent to injure. Although an affirmative defense must be specially pled, LSA-C.C.P. Art. 1154 provides that when an issue not raised by the pleadings is tried by express or implied consent of the parties, it shall be treated in all respects as if it had been raised by the pleadings.

In the instant case, although defendants did not, by answer, raise the special statutory defense of willful intent to injure, the factual witnesses, Wilfred Du-hon and Brian Branniff, testified at length, without any objection by plaintiff, concerning a blow-by-blow description of the combat and both Castro and Jackson’s states of mind, i.e., whether or not they were serious or joking in their struggle. Under these circumstances, we conclude that the pleadings have been enlarged by this evidence to include the special statutory defense. Edwards v. Edwards, 282 So.2d 858 (La.App. 1st Cir.1973), writ refused 284 So.2d 777 (La.1973); Sanders v. New Orleans Public Service, Inc., 422 So.2d 232 (La.App. 4th Cir.1982). Accordingly, we turn now to a consideration of the evidence relating to willful intent to injure.

In the landmark ease of Velotta v. Liberty Mutual Insurance Company, 241 La. 814, 132 So.2d 51 (1961), the Louisiana Supreme Court set forth a two-part test for determining the existence of this intent in the context of a fight between co-workers. According to Velotta, the relevant inquiry is whether the injured employee had some premeditation and malice coupled with a reasonable expectation of bringing about a real injury to himself or another. No willful intention to injure is shown where impulsive conduct, such as a push, shove or fist blow does not render the conduct of the employee sufficiently serious or grave, or where the retalitation that flows from the employee’s misconduct cannot be reasonably expected. The Velotta opinion further noted that the employer has the burden of proving this special defense, which is strictly construed against the employer, before being sustained to deprive the employee of compensation.

In Velotta, an older man impulsively threw or swung a pair of pants at a younger co-worker in resentment for ridicule and name-calling. This impulsive act, according to the Velotta court, did not manifest a willful intention to injure so as to preclude the claimant’s recovery for injuries sustained when the younger man retaliated by striking the claimant violently on the jaw with his fist.

However, several later cases applying the Velotta test, under different circumstances, have denied recovery to claimants injured in fights with co-workers. In Relish v. Hobbs, 188 So.2d 479 (La.App. 3rd Cir.1966), writ refused 249 La. 737, 190 So.2d 242 (1966), the claimant’s conduct was held to show willful intent to injure when the claimant threw a hammer at his co-worker, threw him down, and choked him before being injured himself as they continued to fight with a shovel and wrench. Similarly in Augustine v. Washington Parish Police Jury, 383 So.2d 1271 (La.App. 1st Cir.1980), writ denied, 386 So.2d 1379 (La.1980) compensation benefits were denied to a claimant involved in a work-related fight where both employees were equally intent on inflicting serious bodily injury to each other and had armed themselves with a tree limb and a hammer, respectively, under circumstances that could not be considered impulsive. In Buc-hert v. Metropolitan Life Insurance Company, 219 So.2d 584 (La.App. 4th Cir.1969) and in St. Pierre v. Baifield Industries, Inc., 225 So.2d 96 (La.App. 2nd Cir.1969) recovery was also denied to claimants who manifested a willful intention to engage in fist fights by following or pursuing their co-workers during an argument.

Applying Velotta and its progeny to the instant case, we conclude that our learned brother in the trial court erred as a matter of law in failing to find that Castro had a willful intention to injure his co-employee in this fight.

The undisputed testimony establishes that after the initial horsing around or friendly slap-fighting, there was a hiatus or lull in the activity as Castro picked up his watch and Jackson left the area in his fork lift. Instead of “cooling off” during this time lapse, however, Castro expressed a desire “to get that M.F.” and proceeded to carry out his threat by arming himself with an iron bar and hitting Jackson’s forklift upon Jackson’s return. Furthermore, as Jackson ran away, Castro threw the bar after him and chased him before the combat resumed with a metal pipe and a baseball bat.

In view of this evidence, we conclude the trial judge’s inference that Castro lacked premeditation or malice under the Velotta test is in error. The trial judge’s emphasis on the initial friendly horseplay to negate willful intent is in conflict with undisputed testimony that the friendly fight changed into serious combat. Moreover, the lull in the action as Castro picked up his watch and Jackson left the area militates against the finding that Castro’s later actions in seizing the metal bar, striking the fork lift, chasing Jackson and swinging the baseball bat were “impulsive”. Rather, this evidence compels a conclusion that Castro formulated a malicious intent to injure Jackson. Under these circumstances, we conclude the defendants successfully carried their burden of proving that Castro’s injury resulted from a willful intention to injure his co-worker in the fight. LSA-R.S. 23:1081(2); Velotta v. Liberty Mutual Insurance Company, supra.

In the instant case, there is no real dispute of the underlying facts of the fight and no significant conflict between the testimonies of the two factual witnesses. We reverse, therefore, not as a matter of credibility, but rather based on our conclusion that the trial court’s inferences from the undisputed facts and his application of the law are in error. The trial judge erred in finding as a matter of law no intent to injure based on undisputed facts.

Accordingly, we hold that the evidence clearly established Castro’s willful intent to inflict injury on his co-worker. Having so concluded, we are compelled to reverse the judgment of the trial court and to dismiss plaintiffs’ claims for benefits. Consistent therewith, the judgment of the trial court is reversed and set aside, and plaintiffs’ suit is dismissed. Costs to be paid by defendants.

REVERSED AND RENDERED.

      . LSA-R.S. 23:1081 provides in pertinent part: (1) No compensation shall be allowed for an injury caused:
      (a) by the injured employee’s willful intention to injure himself or to injure another....

      . Although on the second day of trial the judge denied defendant’s request to file an amended answer pleading the defenses of willful intent to injure and intoxication, it is significant that Duhon testified on the first day of trial and that Branniffs testimony was subsequently given without objection by plaintiff. We conclude that the major thrust of plaintiffs’ objection to the amended answer was directed at the defense of intoxication rather than willful intent to injure.


author: KLEES, Judge.

text:
    Joseph M. MATRANGA v. SARA MAYO HOSPITAL, Dr. Frederick Wild, et al.
    No. CA-2037.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 1984.
    Rehearing Denied Feb. 26, 1985.
    Writ Denied April 19,1985.

      Russell J. Schonekas, Tucker & Schone-kas, New Orleans, for plaintiff-appellant, Joseph M. Matranga.
    J. Mark Graham, Henderson, Hanemann & Morris, P.C., Houma, for defendant-ap-pellee, Argonaut-Southwest Insurance Company.
    H. Martin Hunley, Jr., Deborah I. Schroeder, Lemle, Kelleher, Kohlmeyer, Hunley, Moss & Frilot, New Orleans, for defendant-appellee, Dr. Frederick Wild.
    Before GULOTTA, KLEES and ARMSTRONG, JJ.
   KLEES, Judge.

This appeal arises out of a medical malpractice suit. Joseph M. Matranga, Sr. brought suit for the death of his wife, Jeannette Matranga, against Sara Mayo Hospital, Argonaut-Southwest Insurance Company as the hospital’s liability insurer, Dr. Frederick Wild, his professional liability insurer, and an anesthetist and his liability insurer, who were neither named nor served. Prior to trial, Sara Mayo Hospital filed for relief under the bankruptcy laws of the United States and the proceedings against the hospital were stayed. Thereafter, a jury trial proceeded against Argonaut-Southwest Insurance Company and Dr. Wild.

After the presentation of Mr. Matranga’s evidence, Argonaut-Southwest Insurance Company and Dr. Wild filed motions for directed verdict. The trial court granted the motions and dismissed Mr. Matranga’s suit. Mr. Matranga appeals. We affirm.

The issues presented for determination are as follows:

1) Whether the trial court erred in granting the motions for directed verdict; and
2) Whether the doctrine of Res Ipsa Lo-quitur applies.

On August 18, 1974, Jeannette Matranga was admitted to Sara Mayo Hospital complaining of abdominal pain which she had been suffering from time to time since an operation for intestinal obstruction performed by Dr. Wild in 1973. On August 21, 1974, she again underwent successful corrective surgery for intestinal obstruction. She was recovered in the recovery room and, in due time, was returned to her room.

After surgery, Mrs. Matranga’s temperature increased and her condition deteriorated over the next few days. Fearing peritonitis was the cause of her problems, Dr. Wild decided on Sunday, August 25, 1974, that emergency surgical intervention was necessary to save his patient. After receiving permission to operate, Dr. Wild brought Mrs. Matranga into surgery where he discovered she did, in fact, have peritonitis.

At the conclusion of the second surgery, Mrs. Matranga recovered in the operating room and then returned to her room under the care of a trained intensive care nurse, Margaret Geer. Mrs. Matranga was immediately placed on oxygen from a wall unit in her room as per orders of Dr. Wild. Dr. Wild checked on Mrs. Matranga in her room and finding her in capable hands, he left the hospital for home where he could be reached by telephone. However, before he left the hospital, he called Dr. Edward Hyman, an internist, in consultation to assist with postoperative care.

Sometime after Dr. Wild left the hospital, Mrs. Matranga began having respiratory difficulties. Nurse Geer, Dr. Hyman, an anesthesiologist and other hospital personnel came immediately to her aid. Dr. Wild was called and he came back to the hospital to care for his very sick patient. At some point, Mrs. Matranga was placed on a respirator. Other specialists were called in to help Dr. Wild. Despite all their efforts, Jeannette Matranga died at 3:15 a.m. on August 26, 1974. An autopsy was performed and it was determined that pulmonary edema and other complications associated therewith were the causes of Mrs. Matranga’s death.

Mr. Matranga’s case consisted of his testimony, the testimony of his son and daughter-in-law, and the cross examination testimony of Dr. Wild with respect to the hospital records and his treatment of Mrs. Matranga. No other surgeons or hospital personnel were called to testify.

At the close of Mr. Matranga’s presentation, the trial court, giving lengthy oral reasons, dismissed Mr. Matranga’s suit by granting the motions for directed verdict filed by Dr. Wild and Argonaut-Southwest Insurance Company.

DIRECTED VERDICT

The standard to be used in deciding whether a motion for directed verdict should be granted in a jury case has been established by this Court in Ragas v. Argonaut-Southwest Insurance Co., 379 So.2d 822 (La.App. 4th Cir.1980). The Ragas, supra, Court looked to the federal jurisprudence for guidance since the directed verdict was a new procedural mechanism in civil cases in Louisiana, having been added to the Code of Civil Procedure in 1977 by Article 1810, and held

“On motions for directed verdict and for judgment notwithstanding the verdict, the Court should consider all of the evidence — not just that evidence which supports the non-movers case but in the light and with all the reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable’ men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.’ Boeing Company v. Shipman, 411 F.2d 365, 374 (5th Cir.1969).”

See also, Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir.1979); Lasseigne v. Dauterive, 433 So.2d 334 (La.App. 3rd Cir. 1983); Ragas v. Argonaut-Southwest Insurance Company, supra.

Since Dr. Wild practiced in the specialized area of medicine called surgery, Mr. Matranga had the burden of proving that Dr. Wild either lacked the degree of knowledge or skill ordinarily practiced by other doctors within his own specialty, or that he failed to use reasonable care and diligence, along with his best judgment in the application of his skills as a specialist. Ardoin v. Hartford Accident & Indemnity Company, 360 So.2d 1331 (La.1978); LSA-R.S. 9:2794.

As we apply these principles to the evidence presented by Mr. Matranga, we conclude that the trial court correctly granted the motions for directed verdict.

Specifically as to Dr. Wild, he was the only surgeon who Mr. Matranga called to testify. Dr. Wild stated he had been a board certified surgeon since 1960. He testified that the surgery on August 21, 1974, had some unanticipated problems but Mrs. Matranga came out of the operation in stable condition. Dr. Wild said the surgery on August 25, 1974 proceeded with no problems and he had Mrs. Matranga recovered in the operating room since the recovery room at Sara Mayo was closed on the weekend. He believed that a recovery in the operating room was as good as, if not better, than recovery in a recovery room. Dr. Wild looked in on Mrs. Matranga in her room and, finding her on oxygen and in the capable care of the intensive care Nurse Geer, he left the hospital after consulting with Dr. Hyman. As soon as he was notified of Mrs. Matranga’s difficulties, he came back to the hospital to care for this very sick lady. He did everything he could to help Mrs. Matranga but unfortunately to no avail.

Dr. Wild further testified there was nothing in the hospital record indicating that Mrs. Matranga was not receiving everything that was ordered for her. He had no knowledge of any equipment malfunction and there was nothing in the hospital record indicating such a problem. He considered the care given to Mrs. Matranga to be consistent with the kind of care she would have gotten by any reputable surgeon in accordance with the usual standards of care.

After a review of the record, we find that there is no evidence that Dr. Wild deviated from the standards set forth in Ardoin v. Hartford Accident & Indemnity Company, supra.

A plaintiff in a malpractice suit against a hospital has the burden of showing that hospital personnel negligently departed from the recognized standard of care afforded by the hospitals in the area for the particular type of illness involved. The measure of skill, care, and diligence each hospital employee owed the patient is that established by other institutions throughout the area as adequate and acceptable medical care. Garrison v. Hotel Dieu, 319 So.2d 557 (La.App. 4th Cir.1975); Hunt v. Bogalusa Medical Center, 303 So.2d 745 (La.1974); Williams v. Sisters of the Incarnate Word of Galveston, 341 So.2d 1299 (La.App. 3rd Cir.1977).

As to Sara Mayo Hospital, there is no evidence, either in the hospital records or in the testimony of Dr. Wild, that indicates that there were any negligent acts or omissions, as alleged in the petition of Mr. Matranga, which would support a malpractice claim against the hospital. There was only innuendo and speculation on Mr. Ma-tranga’s part which was categorically refuted by Dr. Wild.

The facts point strongly in favor of Dr. Wild and Sara Mayo Hospital that reasonable persons could not arrive at a contrary verdict in favor of Mr. Matranga. Having arrived at this conclusion, we find that the trial court correctly granted the motions for directed verdict.

RES IPSA LOQUITUR

The rule applies when the facts shown suggest the negligence of the defendant as the most plausible explanation of the injury. McCann v. Baton Rouge General Hospital, 276 So.2d 259 (La.1973). See also Boudreaux v. American Insurance Co., 262 La. 721, 264 So.2d 621 (La. 1972); Garrison v. Hotel Dieu, 319 So.2d 557 (La.App. 4th Cir.1975).

The doctrine of Res Ipsa Loquitur is not applicable to malpractice cases involving no more than a failure to obtain satisfactory results from surgery and is limited to untoward or unusual occurrences during the time of medical supervision. McCann v. Baton Rouge General Hospital, supra; Cologna v. Beazley, 445 So.2d 25 (La.App. 4th Cir.1984).

In the case at hand, none of the facts suggest that Dr. Wild’s or Sara Mayo Hospital’s negligence was the cause of death of Mrs. Matranga. Dr. Wild testified there were several reasons, other than negligence, that could explain the pulmonary edema which led to the death of Mrs. Ma-tranga. •

Additionally, there was no evidence presented, other than innuendo, with respect to equipment malfunction, lack of personnel or care, and failure to attend to the needs of Mrs. Matranga.

There was no evidence of any untoward or unusual occurrence, while Mrs. Matran-ga was in surgery, or out of surgery in recovery, or in her room. Pulmonary edema is a condition, not an injury, arising in this case without any proof of negligence shown on the part of Dr. Wild or Sara Mayo Hospital.

Since there was no other medical evidence presented to the contrary, Dr. Wild’s testimony clearly removes the case against Dr. Wild and Sara Mayo Hospital from the realm of the doctrine of Res Ipsa Loqui-tur.

Accordingly we conclude that the facts and circumstances fully support the trial judge’s granting of the motions for directed verdict filed by Dr. Wild and Argonaut-Southwest Insurance Company.

For these reasons, the judgment of the trial court is hereby Affirmed. All costs of Appeal are to be paid by Appellant.

AFFIRMED.


author: WILLIAMS, Judge. REDMANN, Chief Judge,

text:
    Grace LEVIGNE v. PENDLETON MEMORIAL METHODIST HOSPITAL and ABC Insurance Company.
    No. CA-1837.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 1984.
    Rehearings Denied Feb. 26, 1985.
    Writ Denied April 19,1985.
    Frank J. D’Amico, New Orleans, for plaintiff-appellant.
    Lloyd W. Hayes, Jean M. Farquharson, New Orleans, for defendant-appellee.

      Before REDMANN, C.J., and KLEES, SCHOTT, ARMSTRONG and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a decision of the trial court finding defendants, Pendleton Memorial Methodist Hospital [“Pendleton”] and ABC Insurance Company, liable to plaintiff Grave Levigne for damages she incurred as a result of slipping on the hospital floor.

Plaintiff Levigne sued Pendleton and its insurer for damages resulting from a broken hip that she suffered after slipping on a damp floor in the hospital. The trial judge awarded plaintiff $6,373.66 for medical and other special damages and $7,500.00 in general damages. Plaintiff has appealed the award for general damages, asserting that it is insufficient and that the trial court did not take all factors into consideration in determining the award. Although defendants answered the appeal by urging this court to overturn the lower court’s decision on liability, it neither briefed nor argued this assertion, and it is, therefore, not before this court.

FACTS

Plaintiff was in the hospital visiting her son who was a patient there. Plaintiff went to the nurses’ station to ask for some empty coffee cups for her son’s other visitors. The nurses at the station told her that she could get the cups from the utility room across the hall from the station. After getting the cups, plaintiff slipped on the tiled floor of the utility room and landed halfway in the utility room and halfway in the hall. She was immediately taken to the emergency room of the hospital and was diagnosed as having a broken hip. She required surgery, and during the operation, the surgeon noted and became concerned about the appearance of her bone structure; it was soft and he felt that plaintiff may have been suffering from osteoporosis as well as having a pre-existing subacute fracture. He obtained a biopsy of the bone during surgery and sent it to the pathology department. The pathology report confirmed his diagnosis of osteosporosis. The surgeon testified that, in his opinion, plaintiff’s fall was caused by her hip “giving way” as a result of the pre-existing fracture, and not necessarily slipping on the floor.

After surgery, plaintiff stayed in the hospital for two weeks and had to stay in bed at home for one month. She then used a walker and later progressed to a “quad” (four-legged) cane, which she still uses. Approximately five months after the accident, her physician examined her and found that she had no complaint. At trial, however, plaintiff testified that she still suffered problems with her hip, foot and shoulder that she had not had before the fall.

Plaintiff asserts that $7,500.00 is too low an award for general damages. Defendants argue that this amount is not inconsistent with the finding given by the trial court in its denial of plaintiff’s motion for a new trial: the plaintiff’s fall in this hospital simply aggravated a pre-existing condition. We note that the trial court specifically rejected the surgeon’s conclusion that the condition was the cause of the fall.

Although a trial judge is given great discretion in determining damages, the amount awarded plaintiff in this case was so low as to be an abuse of that discretion. For example, in Head v. St. Paul Fire & Marine Ins. Co., 408 So.2d 1174 (La.App. 3d Cir.1982), an elderly [71 years old] hospital visitor fell on the premises and fractured her hip. The plaintiff in Head required hip surgery twice and like the plaintiff in this case, she suffered a severe curtailment of her activities. In Head, the plaintiff was awarded $50,-000.00.

After deciding that an award is too low, we can only raise it to the lowest point that would have been within the discretion of the trial court. Coco v. Winston Indus., Inc., 341 So.2d 332, 335 (La.1975). We have reviewed the evidence presented at trial: plaintiff, who was 67 years old, spent two weeks in the hospital after surgery, one month bedridden, and is unable to walk without a cane. Furthermore, her doctor testified that she suffered 15-20% permanent disability in her hip. Based on these facts, we find the lowest reasonable amount plaintiff should have been awarded was $20,000.00. There is nothing in the record to indicate that plaintiffs pre-exist-ing condition would have caused her to eventually suffer some disability, or the amount of time which she could have expected to be without some disability had she not fallen.

While she was hospitalized and unable to move, plaintiff’s son died in the hospital. Plaintiff also argues that she should be recompensed for the mental anguish that she suffered as a result of not being with her son before his death. As defendant points out in brief, however, this element of damages was never raised below and no evidence, even in the form of testimony, is in the record to make a determination of whether plaintiff suffered and if so, to what extent. For these reasons, we must reject this argument.

For the foregoing reasons, the decision of the trial court is affirmed and amended insofar as to raise the amount of general damages to $20,000.00. All costs of this appeal are to be borne by defendant.

AFFIRMED AS AMENDED.

REDMANN, C.J., dissents.

REDMANN, Chief Judge,

dissenting.

Had the trial judge awarded $20,000 — or $40,000 or $80,000, for that matter — I would affirm it because I know no yardstick that can measure both (1) an amount of dollars and (2) a given party’s pain and suffering, so as to declare the amount so clearly too much or too little as to be beyond the trier of fact’s “much discretion,” La.C.C. 1934(3). For the same reason, although the judge’s actual award of $7,500 may be towards the lower rather than the upper end of that much discretion, I am unable to say that it is clearly wrong and an abuse of discretion. I would therefore affirm.

      . We have, however, reviewed the record and determined that it was not an abuse of the trial court’s discretion to find defendants liable.


text:
    STATE of Louisiana v. Austin ROSS, Jr.
    No. KA-2370.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 1984.
    Rehearing Denied Feb. 26, 1985.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    John J. Dolan, New Orleans, for defendant-appellant.

      Before REDMANN, C.J., and WARD and WILLIAMS, JJ.
   WILLIAMS, Judge.

Defendant, Austin Ross, Jr., was convicted of simple burglary, in violation of LSA-R.S. 14:62 and was sentenced to five (5) years at hard labor. The defendant appeals to this court to review the record for errors patent. Additionally, the record has been reviewed for sufficiency of evidence.

At approximately 1:00 a.m. on the morning of May 1, 1983, Arthur Smith heard the sound of breaking glass; looking through the window of his apartment he saw a black man, 6 feet tall, in his twenties, wearing dark clothing and light colored hush-puppy-type shoes, using a crowbar to smash the glass door of a dry cleaning establishment across the street. Smith watched the man enter the building and exit with an armload of clothes wrapped in cellophane and run around the corner. The man returned empty handed, re-entered the building, exited carrying another load of clothes, and again disappeared around the corner.

When the police arrived, Smith directed an officer in the direction in which he saw the suspect flee. Shortly thereafter the police found the defendant standing near some steps, sorting through tagged clothes on hangers wrapped in cellophane. There was a crow bar at his feet. Defendant was dressed in dark clothes and light shoes.

Arthur Smith identified the defendant as the man he saw burglarizing the dry cleaning store. Smith’s identification was made on the basis of clothing worn and the general physical appearance of the defendant.

Defendant testified that he was stumbling home from a night of drinking when he came across the stolen items and began to examine them. He stated that he remembered the arrival of the police and his arrest, but nothing else — neither the crowbar, nor the details of the arrest and booking. He denied committing the robbery.

Defendant’s two sisters each testified as to his chronic drinking problem and testified he had been drinking all day prior to his arrest. The investigating police officers testified that the defendant neither appeared intoxicated nor claimed to be intoxicated at the time of his arrest.

We have reviewed the record for errors patent and find none.

We have also reviewed the record to assess the sufficiency of the evidence. LSA-R.S. 14:62 states in pertinent part: “Simply burglary is the unauthorized entering of any dwelling ... or other structure ... with intent to commit a felony or any theft therein....” Based on a review of the record, we conclude that any rational fact finder, viewing the evidence in the light most favorable to the prosecution, could have found in this case that the essential elements of the offense of simple burglary were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Camp, 446 So.2d 1207 (La.1984).

For the foregoing reasons, the conviction and sentence are Affirmed.

AFFIRMED.