text:
    Paul GULLETTE, Plaintiff-Appellee, v. Joe WOODS, Defendant-Appellant.
    No. 16136-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Harvey R. Lexing, Monroe, for defendant-appellant.
    Joe D. Guerriero, Monroe, for plaintiff-appellee.
    Before MARVIN, JASPER E. JONES and SEXTON, JJ.
   SEXTON, Judge.

The defendant appeals a judgment in favor of the plaintiff in the amount of $4,500.00, representing a sum which the plaintiff paid defendant for several bars of a metal thought to be gold. These bars were actually brass. We affirm.

The facts of the cause were well summarized in the trial court’s reasons for judgment as follows:

“The evidence at trial recounted a bizarre series of events, with grossly conflicting assertions by all witnesses. A friend of plaintiff testified he was stopped by defendant and asked if he could find a buyer for some gold. He contacted plaintiff, who was interested. This witness said defendant told him the price was $6,000 for ‘about 100 ounces,’ and that he repeated this information to plaintiff. He later accompanied plaintiff to defendant’s place, where they looked at the metal, which was bar-shaped in three pieces. He said defendant recounted a previous sale of a piece of the ‘gold’ to someone in Vicksburg, and he denied defendant ever said anything about brass. He was to get a ‘commission’ of $200 from each party, but never got any money from either — not from defendant, who said the selling price was too low, and not from plaintiff because the stuff was virtually worthless.

“Plaintiff’s testimony as to the contact and conversations with defendant was similar to that of his friend. However, he testified he took the metal to a jeweler friend who tested it with acid and told him it was 6 to 8 carat gold. He then declined the $6,000 price but offered to pay $4,500 for what he told defendant was 6-carat gold. The offer was accepted. Plaintiff thought he could get $5,500 in a re-sale. He said he later took the metal elsewhere for assay and found it to be only brass. He denied defendant ever told him it was brass, and emphasized the alleged representations of a previous sale in Vicksburg to one who had ‘checked’ it and found it to be gold.

“Plaintiff's jeweler testified that he put acid on the metal in plaintiffs presence but it did not react uniformally or in a manner he could recognize. He could not evaluate the test but thought it might be low-carat gold. He called a friend in Texas who allegedly was expert, described the metal and the reaction to the acid, and was told his friend had seen such metal and it was 6 to 8 carat gold. He transmitted this information to plaintiff.

“Defendant testified that his cousin called him from Houston and asked him to find buyers for some gold to be brought here. He contacted one friend as an intermediary; and when the cousin and the cousin’s brother-in-law arrived with the metal, a $2300 sale was made to an unidentified person through the intermediary. He claimed he was stopped by plaintiffs friend a day or so later, and he denied giving a price for the metal. He also swore that by the time plaintiff and his friend contacted him several days later, he had learned the metal was brass and so told plaintiff in the presence of his cousin and plaintiffs friend. However, he quoted plaintiff as saying he was familiar with brass and knew the metal was not brass. At plaintiffs insistence, he accompanied plaintiff to the jeweler mentioned earlier and waited outside while the test was run. He said plaintiff told him it was 6-carat gold and he would contact defendant later.

“Defendant said plaintiff did call the next day to offer $4,500. He asked his cousin, the alleged owner, who accepted the offer. According to defendant, plaintiff then came to his home and, in the presence of the cousin, counted out the money in twenty and one-hundred dollar bills, then saw the cousin pick up the money and give defendant $2,000 of it. He quoted plaintiff as saying: ‘This deal is over. I don’t know you, and you don’t know me.’

“Defendant further testified the intermediary on the first sale later informed him that the metal was brass and that the buyer was threatening to report the incident to the police, so he called his cousin and a refund of the $2,300 was made. He claimed to have told plaintiff about this but said plaintiff was relying on his own jeweler’s information and rejected the information. He did, however, admit that he had offered to give plaintiff what he had left of his $2,000 when plaintiff later reported the assay results.

“Defendant’s wife said she knew nothing about the transaction except that plaintiff came to the store where she worked to look at the metal. She described a test by a local scrap dealer at the store, who said the metal was brass; and she and her husband considered it brass (defendant had also referred to this test).

“Defendant’s cousin testified he found the metal in a public dump near Houston, in a paper sack, and showed it to his brother-in-law. The latter allegedly took it to a knowledgeable friend who said it was gold, and the brother-in-law suggested it be brought to Monroe for sale. He agreed with most of defendant’s testimony as to the transaction with plaintiff.

“No other witnesses testified, and several key persons referred to by one or more witnesses were never identified. At the beginning of the trial, however, the parties stipulated that the metal was not gold.”

The trial court noted that some of the conflicts in the testimony could not be resolved. However, the court determined that it was inconceivable that the plaintiff would have maintained an interest in the transaction had the defendant indeed told the plaintiff, as the defendant asserted in his testimony, that the metal was brass. The trial court further noted that plaintiff’s contention that he relied on the defendant’s assertions was obviously not true because the plaintiff in fact took the metal to a jeweler in whom the plaintiff apparently had confidence and accepted that jeweler’s assurances. Furthermore, the plaintiff made repeated contacts for resale and did not tell the defendant the whole story of the amount of gold content which was reported to the plaintiff by the jeweler.

Additionally, the trial court rejected defendant’s contention that he was an innocent intermediary for the alleged owner, defendant’s cousin. The trial court also specifically rejected defendant’s claim that he made repeated assertions to plaintiff disclaiming the nature of the content of the metal. The trial court found that “the whole group was composed of individuals seeking a ‘fast buck’ with very loose yet guarded activities.”

These findings of the trial court are supported by the record and are therefore not manifestly erroneous. They are thus not to be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Based on these findings of fact, the trial court determined that LSA-C.C. Art. 1843, was directly on point. This article provides that there is an error as to substance where the object of the contract is “of a totally different nature from that which [was] intended.” The trial court correctly concluded, under Art. 1843, that there was an error as to substance. Moreover, Civil Code Art. 1842 clearly indicates that an error as to the substance of a thing invalidates a contract. We therefore conclude that the trial court correctly found, under Art. 1842, that there was an error as to substance, and correctly ruled, under Art. 1843, that the contract was thereby invalidated. The judgment of the trial court is accordingly affirmed at appellant’s cost.

AFFIRMED.

      . LSA-C.C. Art. 1843 reads:
      "There is error as to the substance, when the object is of a totally different nature from that which is intended. Thus, if the object of the stipulation be supposed by one or both the parties to be an ingot of silver, and it really is a mass of some other metal that resembles silver, there is an error bearing on the substance of the object.”

      . LSA-C.C. Art. 1842 reads:
      “Error as to the thing, which is the subject of the contract, does not invalidate it, unless it bears on the substance or some substantial quality of the thing."


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    T.W. ALLEY, Sr., Plaintiff-Appellee, v. Thomas COURTNEY, Jr., Defendant-Appellant.
    No. 16138-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Writ Denied May 11, 1984.

      Davis & Davis by Robert S. Davis, Shreveport, for defendant-appellant.
    Smitherman, Lunn, Chastain & Hill by Richard S. Schmidt, Shreveport, for plaintiff-appellee.
    Before MARVIN, JASPER E. JONES and SEXTON, JJ.
   MARVIN, Judge.

A professional construction appraiser and inspector appeals a $13,240 judgment against him for damages arising out of a bank’s reliance upon two inspection reports which were found to have erroneously stated that a particular residence under construction on each of two lots had been “completed” to the stage of “first inspection.”

The trial court found that “a preponderance of the evidence reveals that the work on these lots had not progressed to the point where the slab could be poured and had not reached a point where a proper first inspection certificate should have been issued.” We find that the evidence supports this finding and affirm.

This record establishes that in the Shreveport-Bossier residential construction industry, completion to the stage of “first inspection” means that preparations have been made — the lot has been graded, underground utilities have been roughed in, beams and forms for the foundation have been dug and built, and the waterproof membrane and supporting steel have been installed — for the pouring of the concrete that will complete the foundation of the residence.

It is also established that professionals such as defendant are hired to make appraisals and periodic inspections upon which builders rely to obtain working capital and upon which interim and permanent lenders rely to make loans and advances to builders. The amount loaned on the first inspection varies from lender to lender and ranges from about 20 percent to about 30 percent of the appraised value of the house and lot upon final completion. Some lenders may lend 25 percent of the appraisal on first inspection while others may lend a percentage of a percentage of the appraisal. The bank in this instance loaned 40 percent of 75 percent of the appraisals to this builder and others as a customary practice. Defendant was experienced and was well acquainted with the industry and served numerous lenders in the area as well as the FHA and the VA. He knew that the builder and the bank would rely on his inspection reports.

After the builder ceased construction, defaulted on the loans, and took bankruptcy, and about six months after defendant made his first inspection reports, photographs of the lots were taken. These photographs generally corroborate the preponderance of the testimony that the foundation stage of construction on each lot had not been 95 percent completed when defendant made his reports, as defendant urged and testified. Estimates of most witnesses ranged from 15 to 50 percent of first inspection completion on one lot and from 30 to 60 percent on the other. Defendant and one other witness, who relied heavily on what defendant had told him and who belatedly made his inspection, testified that the first inspection stage was 95 percent complete when defendant wrote his reports. The trial court discounted this testimony and accepted instead the testimony of plaintiff’s witnesses. This is the prerogative of a trier of fact and our review convinces us that the trial judge did not abuse the discretion afforded him.

Defendant argues that the bank relied on the continuing guarantee of plaintiff and not on the inspection reports. The trial court concluded to the contrary, accepting the testimony of the loan officer of the bank. The record supports the statement of the trial court that had the loan officer known that construction had not reached the first stage, the bank might have perceived the builder’s financial straits and ceased making loans to the builder notwithstanding the continuing guaranty of plaintiff.

As a professional appraiser and inspector, defendant knew or should have known that each of his reports would be relied on to the detriment of a lender if the report was erroneous. Under such circumstances, defendant’s duty was not owed solely to the builder, but extended to plaintiff and others that might suffer reasonably foreseeable and direct injury because of a breach of the duty owed by defendant. Privity of contract is not necessary in an action for damages under these circumstances. See Emond v. Tyler Building and Const. Co., Inc., 438 So.2d 681 (La. App. 2d Cir.1983); Am. Fid. Fire Ins. v. Pavia-Byrne Engineering, 393 So.2d 830 (La.App. 2d Cir.1981). Compare State ex rel. Guste v. Simoni, Heck and Associates, 297 So.2d 918 (La.App. 1st Cir.1974). Plaintiff was eventually called on to pay the loans he had guaranteed. In any event, plaintiff is the assignee of the bank’s rights and causes of action against defendant. McKneely v. Don Coleman Const. Co., Inc., 441 So.2d 497 (La.App. 2d Cir.1983).

Defendant argues finally that he should only be liable for what it would cost to bring the construction up to the stage of first inspection. The argument seems plausible but . was rejected below on the findings that “hardly anything could be salvaged” when plaintiff was required to pay off the loans and that the builder who eventually acquired the lots and constructed residences was required, “for all practical purposes,” to “start all over again.” This case was tried four years after it was instituted and this finding is supported by the record. The trial court has much discretion in assessing damages. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). Plaintiff was required to pay the bank a total of $13,240. The trial court used this figure as a basis for assessing the damages. We find no error in this approach.

For the reasons assigned by the trial court, which we adopt and here summarize, the judgment is AFFIRMED.


author: McCLENDON, Judge Pro Tem.

text:
    Betty T. BURGESS, Plaintiff-Appellant, v. CITY OF SHREVEPORT et al, Defendants-Appellees, State of Louisiana and Caddo Parish Board of Election Supervisors, Third Party Defendants-Appellants.
    No. 16141-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Writs Granted May 25, 1984.

      Nelson, Hammons & Johnson by Sydney B. Nelson, Shreveport, for plaintiff-appellant.
    Wijliam J. Guste, Jr., Atty. Gen. by Charles E. Welsh, Asst. Atty. Gen., Baton Rouge, for third party defendants-appellants, State of Louisiana and Caddo Parish Bd. of Election Supervisors.
    Blanchard, Walker, O’Quin & Roberts by J. Jay Caraway, Paul J. Carmouche, Dist. Atty. by W. Glen Mangham, Asst. Dist. Atty., Shreveport, for defendants-appellees, Caddo Parish Police Jury and The Travelers Ins. Co.
    Before PRICE and MARVIN, JJ., and McCLENDON, J. Pro Tern.
   McCLENDON, Judge Pro Tem.

Betty T. Burgess filed suit against the Caddo Parish Police Jury (Police Jury), their insurer, and the City of Shreveport (City), for damages resulting from injuries she sustained when she fell at a polling place while attempting to vote in a statewide election. Mrs. Burgess died as a result of these injuries and her daughter, Elizabeth Burgess Maffett, was substituted as party plaintiff.

The Police Jury filed a third party demand against the State of Louisiana through the Caddo Parish Board of Election Supervisors (State). The State was dismissed from the case on an exception of no cause of action. However, this court reversed the trial court and remanded the case for trial. Burgess v. City of Shreveport, 421 So.2d 1141 (La.App. 2nd Cir. 1982). Prior to trial the City settled with the plaintiff.

The trial court found the City and State were liable to the plaintiff, but absolved the Police Jury of any liability. The total damage award of $142,615.73 was reduced by one-half because of the settlement with the City.

Plaintiff and the State appealed the trial court decision. The plaintiff alleges the trial court erred in not holding the Police Jury liable on either a negligence or strict liability theory and erred in awarding inadequate damages for pain and suffering and wrongful death.

The State alleges the trial court erred in finding the State liable for plaintiff’s injuries while failing to find the Police Jury liable, and erred in awarding excessive damages for pain and suffering.

Facts

On December 8, 1979 a statewide general election was held in Louisiana. Betty T. Burgess, then 86 years old, was driven by a neighbor, Gladys Rosenkrans, to their polling place for the purpose of voting. The polling place for their precinct was located at the City of Shreveport Fire Station No. 11 on Youree Drive in Shreveport. Because Mrs. Rosenkrans had voted earlier that day, she dropped Mrs. Burgess off in front of the fire station and drove around the block while she attempted to vote.

The voting area was located in the garage of the fire station. During elections held in warm weather the garage door to the fire station remained open, allowing voters safe access to the voting area by way of the driveway leading into the garage. Since the weather was cold on December 8, the garage door to the fire station was closed.

Mrs. Burgess entered the fire station by the front door (as most voters did that day) and walked through the living quarters of the firemen towards the garage area. At the door leading from the living quarters into the garage there was a six-inch step-down in the floor. Mrs. Burgess attempted to walk into the garage to vote and fell at the step-down.

As a result of the fall Mrs. Burgess suffered a broken arm and a broken hip. After an initial hospitalization of a month and a half, she was released to the care of a nursing home. Mrs. B.urgess was re-admitted to the hospital on two other occasions prior to her death. She was eventually placed in a nursing home where she resided until she passed away on March 21, 1981.

The trial court found the six-inch step-down constituted a defect. Factors such as the dim lighting at the step-down and the uniform color of the living area and garage floors made it difficult to discern. C. Donald Attaway, who was accepted as an expert in the field of safety, testified the step-down was a hazard. He also stated this was a violation of the Life Safety Code, which specifies the safety requirements for steps, ramps, and openings in public buildings. This finding is not disputed on appeal.

Although the City and the plaintiff reached a settlement prior to trial, the lower court properly considered the City’s liability in order to determine if the release of that defendant would cause the plaintiffs award to be reduced on a pro rata basis. La. Civil Code Article 2103; Raley v. Carter et al, 412 So.2d 1045 (La.1982). The trial court found the City liable to plaintiff based on strict liability and negligence.

The testimony at trial established that the City, owner of the premises, did not relinquish care and custody of the entire fire station during the election, only the garage area where the voting was taking place. Based on Civil Code Article 2317, the trial court found the City was strictly liable to plaintiff because the damage was caused by a thing in their custody.

Firemen employed by the City remained on the premises during the election. Firemen were watching television in the living area as Mrs. Burgess walked through on her way to the garage to vote. If the commissioners desired to open the garage door, the firemen would be responsible for accomplishing this task.

Further, the trial court held the City was negligent for its failure to warn of the defect or repair same and, therefore, liable under Civil Code Article 2315, irrespective of the fact the City was under no obligation to allow the fire station to be used as a polling place. The appellants do not dispute these findings on appeal.

Liability of the State

Statewide elections such as that of December 8, 1979 are conducted by the State through the Board of Election Supervisors of each parish. R.S. 18:423 states:

A. Creation. There is created a board of election supervisors for each parish.
B. Powers and duties. The parish board of election supervisors shall supervise the preparation for and conduct of all elections held in the parish.

In order to conduct an election in their respective parishes, the board selects commissioners to work the polling places established in the precincts of each parish. Four commissioners and one commissioner in charge are appointed to man each precinct station.

Once the commissioners are selected, they attend a training session given by the Clerk of Court of their parish. In this training session the procedures to be followed on election day are reviewed.

Two commissioners present at the time Mrs. Burgess fell testified at trial. John Holden was operating the latch on the voting machine which prepares the machine for a new voter on the day of the accident and he observed the fall. He testified he noticed voters stumbling at the step-down that day and he had also stumbled there prior to Mrs. Burgess’ fall.

Perilee Tyler Vowells was working at the desk signing the voters’ names in the poll book at the time of the fall. She testified she had noticed voters stumbling at the step-down and had heard voters comment on the condition. Neither commissioner mentioned the situation to the commissioner in charge or to the firemen on duty or took steps to remedy the hazard on their own.

Both commissioners testified they were given no instructions concerning safety of the voters at the preelection training session they attended. However, the testimony of Roy Towns, who conducted the training session, and A.W. Fulco, Registrar of Voters in Caddo Parish and a member of the Caddo Parish Board of Election Supervisors, established that the role of the commissioner is to insure the orderly function of the precinct. This includes the responsibility of insuring the voters are able to enter and leave the polling place in an orderly fashion.

Applying the duty/risk analysis to these facts, we find the commissioners had a duty, once the hazardous condition was discovered, to correct the situation. There were several ways this might have been done. The commissioners could have requested one of the firemen on duty to stand at the door and warn voters of the step-down, or placed a warning sign on the door. There was a back door entrance to the garage which led to a parking lot. This entrance, like the entrance through the garage doors, did not have a step-down. Voters could have been rerouted to this entrance with little trouble, completely eliminating the hazardous condition.

Since the commissioners did nothing to correct the hazardous situation, the duty was breached.

Finally, did the duty to correct the hazardous situation that had been discovered encompass the risk that an elderly voter would stumble over the hazardous condition as she attempted to get to the voting area? We hold the duty encompassed just such a risk.

The commissioners were negligent in their failure to take corrective actions, and as employees of the State, this negligence is imputed to the State. See Thibodeaux v. State of Louisiana etc., 371 So.2d 1227 (La.App. 3rd Cir.1979).

Liability of the Police Jury

As the trial court correctly stated, the Police Jury was not the owner or custodian of the fire station and exercised no control over the fire station on the day of the election. However, the Police Jury, pursuant to R.S. 18:533, selected the fire station as a polling place. R.S. 18:533 states in part:

A. Establishment. The governing authority of each parish shall establish one polling place for each precinct.
B. Location.
(1) Except as otherwise provided in this Subsection, the polling place for a precinct shall be located in the precinct in a suitable public building, or, if none is available, then on private property, (emphasis added)

David D. Jarrett, employee of the Police Jury, testified he is in charge of selecting polling places for Caddo Parish, subject to vote of the Police Jury. In selecting a new polling place he stated he inspects the premises for location and accessibility for the public and handicapped citizens. Once a site is chosen, the Police Jury requests permission of the owner of the premises (in this case the City) to use the facility. He further stated fire stations are preferred as polling places because of their accessibility ,and location. Fire Station No. 11 had been used as a polling place for at least 34 years without complaint prior to the December 1979 election, therefore Jarrett did not inspect the premises prior to the election.

Applying the duty/risk analysis, we find the Police Jury fulfilled its duty to select a suitable polling place by selecting the fire station. As pointed out, in terms of accessibility and location, fire stations are superior to most facilities.

Further, the duty to select a suitable location does not encompass the risk that an elderly voter would trip over a six-inch step-down at an entrance, especially considering the fact that the location had been used safely as a polling place for 34 years. Imposing a greater burden on the Police Jury would make it difficult for them to carry out the mandate of R.S. 18:533. We agree with the trial court’s finding that the Police Jury was not liable for Mrs. Burgess’ injuries.

Quantum

Plaintiff alleges the trial court awards for pain and suffering and wrongful death were inadequate. The State alleges the award for pain and suffering was excessive.

In the survival action the trial court awarded $75,000 for pain, suffering and mental anguish experienced by Mrs. Burgess prior to her death. No one disputes the fact that before the fall Mrs. Burgess was active and self supporting. She lived alone and relied on others only for transportation.

As a result of the fall she suffered a fractured left hip which required an operation to insert a pin which immobilized the fracture. She also fractured her left forearm which was placed in a cast. Three days after surgery she suffered a blood clot which was the result of complications from the surgery.

Mrs. Burgess remained in the hospital until her release to the care of a nursing home on January 21, 1980. However, five days later she was admitted to the Intensive Care Unit of P & S Hospital because of chest pain and shortness of breath. She remained in intensive care for one month, during which she was operated on to stop blood clots from occurring. After an unsuccessful attempt to return to her daughter’s home she was readmitted to intensive care in early March. On March 10, 1980 she suffered two cracked ribs from an elec-trie shock defibrillator which was applied to her chest after her heart failed. After a three week stay in intensive care, she was released to a nursing home.

Mrs. Burgess never recovered to her former state of health and began to suffer from depression. After the fall she remained in a nursing home or hospital for the remaining fifteen and one-half months of her life except for the one week she attempted to reside with her daughter.

As Dr. Seborn Woods, Mrs. Burgess’ physician, stated, “She had a very long and traumatic recovery period and this was primarily because she kept throwing clots to her lung from somewhere.” Although he was not positive the blood clots were coming from the leg, the evidence established that the fall triggered a gradual deterioration of Mrs. Burgess’ bodily functions, which ended in her death.

Before an appellate court can disturb a quantum award, the record must clearly reveal that the trier of fact abused his discretion in making the award. An award made in the trial court may not be modified unless it is unsupported by the record. The appellate question is not whether a different award may have been more appropriate, but whether the trial court’s award can be reasonably supported by the record. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Black v. Ebasco Services, Inc., 411 So.2d 1159 (La.App. 1st Cir.1982); Winterrowd v. The Travelers Indemnity Co., 440 So.2d 822 (La.App. 2d Cir.1983). Moreover, the appellate function in reviewing quantum is limited to raising inadequate awards to the lowest amount the trial court could have reasonably awarded, and lowering excessive awards to the highest amount the trial court could have reasonably awarded. Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., supra; Winterrowd v. The Travelers Ind. Co., supra.

Our review of the record leads us to the conclusion that a $75,000 award for pain, suffering and mental anguish experienced by Mrs. Burgess prior to her death, although on the low side, was not an abuse of the trial court’s discretion.

The trial court awarded $15,000 to plaintiff for the wrongful death of her mother. In doing so the court noted the close relationship between the two, but also considered the short life expectancy of an 86 year old person. We cannot say the trial court abused its discretion in making the wrongful death award.

For these reasons, the judgment of the district court is affirmed. Costs of this appeal are assessed one-half to each appellant.


author: COVINGTON, Judge.

text:
    Edna Mae WILLIAMS v. George A. FISCHER, Secretary, Department of Health & Human Resources.
    No. 83 CA 0600.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    See also 439 So.2d 1111.
    Leo Berggreen, Baton Rouge, for plaintiff-appellee Edna Mae Williams.
    Sidney W. Hall, Baton Rouge, for defendant-appellant Roger P. Guissinger, Secretary, Dept, of Health & Human Resources.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

This is an appeal by defendant, George A. Fischer, Secretary, Department of Health & Human Resources, from a judgment of the district court in favor of plaintiff, Edna Mae Williams, decreeing plaintiff to be entitled to a Hoyer Lift within the guidelines for the purchase of a medical appliance under the Social Security Act, and ordering the Department of Health & Human Resources, State of Louisiana, to purchase the Hoyer Lift for her use and benefit.

We have carefully read the record, and find the written reasons of the trial judge, a copy of which is attached, fully disposes of the factual and legal issues presented by this case.

For the reasons expressed by the trial judge, which we adopt as our own, the judgment appealed is affirmed at the cost of the appellant in the amount of $269.77.

AFFIRMED.

EDNA MAE WILLIAMS

VERSUS

GEORGE A. FISCHER, SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN RESOURCES

* NUMBER 246,361 DIVISION L

* 19TH JUDICIAL DISTRICT COURT

* PARISH OF EAST BATON ROUGE

* STATE OF LOUISIANA

WRITTEN REASONS

This matter is before this Court on a petition for judicial review of a decision of the Department of Health and Human Resources.

Petitioner, Edna Mae Williams, has had cerebral palsy since birth. She lives at home and attends the School for the Mentally Retarded. Petitioner’s condition requires that she use a wheelchair. The subject of this petition for review is the denial of a request by petitioner for a device known as a “hoyer lift”.

A “hoyer lift” is a device used to transfer a person from bed into a wheelchair. From the record of the administrative proceeding below it appears that petitioner is a good deal heavier than average. Currently, to lift her into the chair requires her mother and an additional person. The record indicates that with the use of the “hoyer lift”, petitioner’s mother could be trained to transfer her from bed to wheelchair without the aid of a second person. It should also be noted from the record that petitioner’s wheelchair was not equipped with a “sliding transfer board”, which is also an aid for transferring patients from bed to wheelchair.

Guidelines for the purchase of a medical appliance are found at Section 19-530 of the Family Security Manual (derived from Title XIX of the Social Security Act). It appears from the record that petitioners met requirements 1, 3, 4, and 5. The denial seems to have been based on 19-530(2) which states as follows:

The purchase of a medical appliance, medical equipment or supplies shall be considered when: ... (2) It is needed by a client with serious impairment to increase well being, prevent further impairment, or to enable him to increase self-care or require less care by others.

The hearing officer denied petitioner’s request because there was “no evidence to indicate that the appliance would increase the claimant’s well being, prevent further impairment or enable her to increase self-care.”

However, the device would mean that claimant would require less care by others. Since the language of the provision includes the disjunctive “or”, it appears that a claimant only need meet one of these alternatives. Since the lift would decrease the number of persons required to transfer petitioner from bed to wheelchair the requirement of “requiring less care by others” is met.

For these reasons this court finds that the decision of the Department and Human Resources should be reversed and defendant approve the purchase of the “hoyer lift”.

Baton Rouge, Louisiana, this 2nd day of March, 1983.

/s/ Douglas M. Gonzales

Douglas M. Gonzales

Judge, 19th Judicial District Court


author: SAVOIE, Judge.

text:
    STATE of Louisiana v. Roosevelt ODDS.
    No. 83 KA 1136.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Ossie Brown, Dist. Atty. by Kaye Bates, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    David Price, Appellate Co-Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SAVOIE, JJ.
   SAVOIE, Judge.

Defendant, Roosevelt Odds, Jr., was convicted of armed robbery in violation of L.S. A.-R.S. 14:64 and sentenced to 20 years at hard labor without benefit of probation, parole or suspension of sentence. He appeals.

On September 6, 1982, defendant, accompanied by two companions (Roy Holiday and Keith Bailey), entered Smitty’s Pac and Save at approximately eight o’clock in the evening. A third companion (Calvin Cavalier) stayed down the street from the store with the automobile. Mr. Holiday picked up a bottle of wine and brought it to the cashier to be checked out. Defendant herein went to the counter with him while Mr. Bailey stayed at the entrance door. After being told the price of the wine, the store’s clerk asked Mr. Holiday whether he was old enough to purchase the wine. At this point, the defendant stepped up to the counter, pulled a pistol, and claimed to be a police officer. The clerk immediately retreated from the counter while the defendant emptied the cash register. While the store’s clerk had her hands in front of her face, she was able to move them such as to get a better view of the defendant, Holiday, and Bailey. Thereafter, the defendant, Holiday, and Bailey fled the store. As they left, a customer opened the door and attempted to obtain a license plate number of the vehicle to which the defendant, Holiday, and Bailey fled. As he did so, a shot was fired by the defendant in the direction of the store.

The next day, Officer Bobby Dale Calendar received a tip from a confidential informant, that Holiday, Cavalier, someone “kin” to Cavalier, and an individual named June had committed the robbery. Police thereafter arrested Holiday, Cavalier and Bailey. Based upon the clerk’s description and the confidential informant’s tip of his name (June), officers proceeded to arrest one, Roy Taylor, Jr., nicknamed Junior. Upon showing Taylor’s photograph to Holiday, he stated that this was not the person with whom they had robbed the store. Holiday then informed the police that defendant was the person they sought. After being informed of where the defendant was hiding, police officers went to the residence and found defendant hiding under a bed. Defendant was then arrested and given his Miranda warnings by Officer Bodie White. Thereafter, defendant was handed over to Detective Lonnie Callahan for transportation to the police station. While being transported, defendant stated that he knew which robbery the police were talking about but that he did not have a gun. Upon arrival at the police station, defendant was handed over to Officer Calendar and subsequently booked. Defendant was again given his Miranda rights prior to interrogation and was asked to sign a waiver of his rights, which defendant refused. Thereafter, defendant again made statements that he knew which robbery the police were talking about but that he did not have any weapon. After trial by jury, defendant was convicted of armed robbery in violation of L.S.A.-R.S. 14:64 and sentenced to 20 years at hard labor without benefit of probation, parole, or suspension of sentence.

Defendant appeals, asserting that the trial court erred in: (1) allowing the testimony of police officers concerning certain in-culpatory statements, (2) imposing an excessive sentence, and (3) denying defense challenges of a prospective juror for cause.

Defendant first asserts that the trial court erred in allowing certain inculpatory statements made by him to the police to be introduced into evidence when they were not freely and voluntarily given. Such assertion is based upon defendant’s claim that:

1. The State does not possess a written waiver of defendant’s Miranda warnings;
2. Neither officer heard the other give defendant his Miranda warnings; and
3. The conveying of Miranda rights is not tantamount to insuring that the rights are understood.

It is well settled that for a confession to be admissible into evidence, the State must affirmatively show that it was freely and voluntarily given without influence of fear, duress, intimidation, menace, or promises. State v. Brooks, 434 So.2d 1171 (La.App. 1st Cir.), writ denied, 440 So.2d 727 (La.1983). The trial court’s determination that the State has met its burden of proof with regard to the confession’s voluntariness is entitled to great weight. State v. Hernandez, 432 So.2d 350 (La.App. 1st Cir.1983). Further, the determination of a witness’ credibility, being a function of the trier of fact, is entitled to great weight. State v. Hernandez, supra.

Herein, Officer White testified that he gave the defendant his Miranda rights at the time of his arrest. Immediately thereafter, the defendant made an unsolicited inculpatory statement in which he admitted being present during the robbery but that he did not have a weapon. Officer Calendar testified that he also gave the defendant his Miranda rights at the stationhouse. When asked to sign a rights waiver form, the defendant refused. Again, immediately thereafter, the defendant made the same inculpatory statement. Defendant testified that he had never been advised of his Miranda rights and that the statements attributed to him had not been made.

Defendant' first complains that the State has no evidence that the Miranda ■rights were given to him. It is not required that the police have either a signed waiver of rights form or another officer to substantiate that such rights were given to the defendant. The State need only prove by the evidence that the defendant was given the Miranda rights. Giving great weight to the trier of fact’s determination of witness credibility, we find that the defendant was given his Miranda rights by the officers. Defendant next complains that if we find that he was given his Miranda rights, the State failed to prove that he understood those rights. Such claim is evidently based upon his assertion that he had been drinking prior to his arrest and that he fell asleep during his ride to the stationhouse. He claims these facts show that he was incapable of understanding his rights. The police officers’ testimony directly contradicts the defendant’s testimony. Giving great weight to the trier of fact’s determination of witness credibility, we find that the defendant understood the Miranda rights given him. Accordingly, this assignment of error is without merit.

Defendant next asserts that the trial court erred in imposing an excessive sentence. Trial courts have wide discretion in imposing sentences within the statutory limits. Those sentences will not be set aside absent manifest abuse of discretion. State v. Willis, 420 So.2d 962 (La.1982). However, even sentences within statutory limits may be considered excessive. State v. Trahan, 412 So.2d 1294 (La.1982), rehearing denied, May 14, 1982. Sentences grossly out of proportion to the severity of the crime or nothing more than purposeless and needless imposition of pain and suffering are prohibited by the Louisiana Constitution of 1974, Article I, Section 20. State v. Willis, supra.

The defendant was sentenced to serve 20 years at hard labor without benefit of probation, parole, or suspension of sentence. Under L.S.A.-R.S. 14:64, the maximum period of imprisonment is ninety-nine years at hard labor without benefit of probation, parole, or suspension of sentence.

The trial court went to exceptional lengths in tailoring defendant’s sentence, taking into account defendant’s rehabilita-tional needs, character traits, and criminal propensities. It stated that the defendant’s use of a weapon in this robbery without any provocation threatened serious harm to everyone involved. The trial court also found that nothing excused nor facilitated defendant’s conduct. Further, it was noted that the defendant was the “ring-leader” of this armed robbery. Based upon such findings, the trial court found the defendant might well commit another crime and was, therefore, in need of correctional treatment. Under the circumstances, we find that the sentence imposed is neither grossly disproportionate nor a needless imposition of pain and suffering. State v. Robinson, 434 So.2d 1275 (La.App. 1st Cir.1983).

Defendant lastly contends that the trial court erred in denying his challenge of a prospective juror for cause. It is settled that the trial court is vested with broad discretion in ruling on a challenge for cause and such ruling will not be disturbed on appeal absent a showing of abuse of that discretion. State v. Glaze, 439 So.2d 605 (La.App. 1st Cir.1983). However, a challenge for cause should be sustained despite a prospective juror’s professed impartiality, if his answers reveal facts from which bias, prejudice, or inability to follow the law may be reasonably implied. State v. Smith, 430 So.2d 31 (La.1983), rehearing denied, May 13, 1983. To obtain reversible error in this regard, the defendant need only show that: (1) the trial judge erred in refusing to sustain a challenge for cause by defendant, and (2) the defendant exhausted all his peremptory challenges. See State v. Glaze, supra.

The record reflects that the defendant exhausted all his peremptory challenges prior to completion of the jury panel. As such, we need only determine whether the trial court abused its discretion in overruling a challenge for cause of a particular juror based upon an alleged bias.

Defendant contends that Ms. Marjorie Thibodeaux should have been excused on a challenge for cause based upon dual grounds. First, he contends that her employment with the Police Department in and of itself mandates a challenge for cause. Secondly, he contends that due to facts concerning a nephew recently murdered, she would be unable to be fair and impartial.

While anyone “associated with law enforcement duties” must be closely scrutinized as a prospective juror, such association does not automatically disqualify that person. State v. Lewis, 391 So.2d 1156 (La.1980). Ms. Marjorie Thibodeaux testified that she was employed by the Baton Rouge Police Department as a school crossing guard. During voir dire, she wore her school crossing guard uniform and her badge. She stated that she did not do any actual law enforcément work, but worked only with the children. We find that a school crossing guard, without more, would not be classified as “one associated with law enforcement duties.”

The record reflects that Ms. Thibodeaux was extensively questioned concerning her ability to be fair and impartial in this matter in light of her nephew’s recent murder. She stated that she did not think that her nephew’s recent murder would unfairly influence her in this matter. After carefully examining the record, we find that the trial court did not abuse its discretion in believing that Ms. Thibodeaux could render an impartial and fair verdict in this matter. As such, we find defendant’s third assignment of error to be without merit.

For the above and foregoing reasons, the conviction and sentence of defendant, Roosevelt Odds, Jr., is affirmed.

AFFIRMED.

      . "A. Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
      "B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence."

      . Defendant originally assigned as error the trial court’s:
      (1) denying defendant’s motion to quash,
      (2) finding defendant’s statements admissible,
      (3) imposing an excessive sentence,
      (4) accepting a verdict contrary to law and evidence, and
      (5)denying defendant's challenge for cause.
      However, the defendant failed to brief assignments of error numbers (1) and (4). Therefore, they are considered abandoned. Rule 2-12.4, Uniform Rules-Court of Appeal, State of Louisiana.


author: DOMENGEAUX, Judge.

text:
    Claude GALLIEN, Plaintiff-Appellant, v. SUPREME CONTRACTORS, INC., et al., Defendants-Appellees.
    No. 83-570.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.

      Felix A. DeJean, III and Thomas J. DeJe-an, Opelousas, for plaintiff-appellant.
    Guglielmo & Lopez, James C. Lopez, Opelousas, for defendants-appellees.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   DOMENGEAUX, Judge.

This is a worker’s compensation case in which plaintiff seeks on the job benefits for a back injury which he allegedly sustained while in the defendant’s employ. From a judgment rendered against him, plaintiff appeals.

Plaintiff, Claude Gallien, became employed by defendant, Supreme Contractors, Inc., as a general laborer on September 1, 1981. Mr. Gallien claims that on September 15, 1981, he fell and landed on his right knee. At some point later that day he allegedly fell again, and subsequently began experiencing pain in his knee and lower back.

The plaintiff worked from the date of the alleged accident, September 15, 1981, until October 27, 1981. During that time he never complained to his foreman and never told him that he was having any problems because of the accident. Mr. Gallien did not seek any type of medical attention until some six weeks after the accident allegedly occurred. At that time plaintiff was treated by a chiropractor, Dr. Joe Wilson.

Appellant has placed much emphasis on the testimony of the chiropractor. This testimony was lengthy and detailed. Doctor Wilson testified that he believed that Claude Gallien had subluxations in the lumbar and cervical spine. However, Doctor Wilson did not say that this condition was related to the plaintiffs history of having fallen at work. In fact at the time of treatment, Doctor Wilson was not even informed of the claimed accident. According to Doctor Wilson subluxations of the spine could arise from a variety of reasons, including daily activity and stress. Doctor Wilson further testified that he had previously treated Mr. Gallien for subluxations of the spine in 1977 and 1978. Doctor Wilson testified as follows when asked whether the plaintiff was a malingerer: “I would not say categorically that he was malingering, but I did suggest at that time that he attempt some kind of work to see how he could sustain himself through a day of eight hours of something.”

The only other medical evidence in the record consisted of the deposition of Dr. J. Frazer Gaar, a Board certified orthopedic surgeon. Doctor Gaar first saw Mr. Gal-lien for evaluation on December 1, 1981. After a thorough examination, it was Doctor Gaar’s expert opinion that Mr. Gallien suffered from no injuries or orthopedic problems which would preclude him from returning to work. Subsequent thereto and after this lawsuit was initiated, Doctor Gaar re-evaluated Mr. Gallien on March 30, 1982. Again the results of the evaluation were the same: Mr. Gallien suffered no objective signs of orthopedic problems. Doctor Gaar testified that he x-rayed Mr. Gallien on both his first and second examination and that the x-rays showed no sublu-xation or slipping of the vertebrae.

In a workmen’s compensation case, the claimant has the burden of proving to a legal certainty and by a reasonable preponderance of the evidence that he is disabled. Bordelon v. Ranger Insurance Company, 413 So.2d 962 (La.App. 3rd Cir.1982), writ denied, 420 So.2d 448 (La.1982). Though the procedural rules are construed liberally in a compensation case, the burden of proof is not relaxed. Thus, the testimony on the whole must show that more probably than not, the employment related accident occurred, and the accident had a causal relationship to a disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to carry the burden of persuasion. Jones v. Alexander, 399 So.2d 216 (La.App. 2nd Cir.1981), writ denied, 400 So.2d 1383 (La.1981). Therefore, there are three elements which the plaintiff must prove by a preponderance of the evidence: That he received a personal injury by the accident arising out of the course and scope of his employment; that he is disabled; and that that disability resulted from the injury sustained in the work related accident. Stanfield, through Smith v. Insurance Company of North America, 420 So.2d 1296 (La.App. 3rd Cir.1982), writ denied, 423 So.2d 1180. In this case, the plaintiff has failed to prove these elements by a preponderance of the evidence. There is considerable doubt as to whether the accident ever occurred on the job. Further, the plaintiff has failed to prove that he is disabled. He admits that he only suffers from backache temporarily. The pain is “on again, off again” and even the plaintiff’s chiropractor admits that Mr. Gallien can continue some type of employment. Finally, there was no testimony that would seem to indicate that the disability resulted from the alleged accident. In fact, the claimant worked a five to six weeks period prior to seeking any chiropractic attention. His own chiropractor testified that “subluxations do not necessarily result from trauma,” and can come on suddenly and due to almost anything. Additionally, this is not a “substantial pain” case. Doctor Gaar testified that there is absolutely no orthopedic explanation of the alleged pain in the plaintiff’s knee. The plaintiff admits that he is not continually bothered by any pain, and he claims that it comes on only under certain circumstances. Further, he has not shown that the pain is substantial by any means.

This is simply a case where the trial judge made certain factual determinations and concluded that the plaintiff had not proven his case by the preponderance of the evidence. The findings of a trial judge are entitled to great weight, and are not to be disturbed except on a showing of manifest error. Deville v. Port Pipe Terminal of Louisiana, Inc., 419 So.2d 16 (La.App. 3rd Cir.1982), writ denied, 422 So.2d 424 (La.1982). Great weight is afforded to the findings of the trial court with regard to credibility of the plaintiff in a workmen’s compensation proceeding; Joseph v. Martin Mills, Inc., 394 So.2d 722 (La.App. 3rd Cir.1981). Mr. Gallien has not proven that an accident occurred on the job, that he has suffered from any disability, or that any disability was the result of the accident. He contradicted himself several times on the stand, was impeached by the introduction of a previous workmen’s compensation settlement which he denied ever took place, and became confused when these discrepancies were pointed out to him. The trial court judge, who had the opportunity to view the plaintiff and evaluate his truthfulness, made a factual finding that his testimony was inadequate to prove that any accident occurred.

After a thorough review of the record in this case, and the law applicable thereto, we cannot say that the trial judge abused his discretion in refusing to award the plaintiff worker’s compensation benefits.

For the above and foregoing reasons the judgment dismissing plaintiff’s claim is affirmed. Plaintiff is to pay the costs of this appeal.

AFFIRMED.


author: FORET, Judge. CULPEPPER, Judge,

text:
    Judy McDANIEL, Plaintiff-Appellant, v. The TOWN OF KROTZ SPRINGS, Defendant-Appellee.
    No. 83-579.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Dean, Lomenick, Seamann & Willis, G. Douglas Dean, Opelousas, for plaintiff-appellant.
    Vyrona Wiltz, Krotz Springs, for defendant-appellee.

      Before GUIDRY, FORET and CULPEP-PER *, JJ.
   FORET, Judge.

Plaintiff, Judy McDaniel, appeals from a judgment of the district court rejecting her demand that the Town of Krotz Springs be ordered to grant her a local beer and liquor permit. The issue on appeal is whether the trial court erred when it found that the plaintiff failed to follow the correct application procedure, an issue which was not contested by the Town of Krotz Springs.

On April 20, 1982, Judy McDaniel purchased real estate within the corporate limits of the Town of Krotz Springs, Louisiana. Subsequently, she began operating a business at this location known as “Judy’s Game Room”, which was an arcade-type business with video games and a juke box. The only beverages sold at the game room were cold drinks and coffee.

After several months of operating her business, plaintiff began having thoughts about getting a beer and liquor permit. She contacted the town clerk, who instructed her on the customary method of obtaining a license in Krotz Springs. Pursuant to the instructions given her, plaintiff placed a required notice in a local newspaper and appeared at a town meeting to orally make her application. She was instructed that the matter would be taken up at a continued town meeting so that any

* Judge William A. Culpepper, Retired, Judge Ad Hoc. persons wishing to object to the issuance would be able to air their views.

The continued town meeting occurred on April 26, 1983. At the meeting were a group of local citizens, who presented a petition objecting to the issuance of the license. Also present were citizens who supported the granting of the license. After hearing arguments on both sides, the Town Council denied plaintiffs application and so notified her by mail on the following day. No reason, however, was given by the Council for their refusal.

On May 9, 1983, plaintiff filed a petition for appeal with the 27th Judicial District Court, praying that the Town of Krotz Springs be ordered to issue the beer and liquor permit. The Town answered the petition for appeal, and for the first time, stated the reasons for denying the permit. These reasons were:

“6.
The defendant Town of Krotz Springs, contends that the denial of plaintiff’s alcoholic beverage permit is proper because the granting of same is within the control and discretion of the Town Council of Town of Krotz Springs.
7.
Additionally, the granting of an alcoholic license to petitioner would create traffic problems, and would lead to an erosion of the residential character of the area.
8.
The denial of the requested permit was further brought about, but not exclusively, because of the large protest registered by residents of the area, and the maintaining of the integrity of the neighborhood is a valid basis for exercising legislative discretion.”

After a trial on the merits, the trial court ruled in favor of the Town on the grounds that plaintiff failed to follow the application procedures set out in the Town’s municipal ordinance. More specifically, the court found that the applicant failed to file a written application and did not possess the premises for which the license was to be issued-.

In her appeal to this Court, plaintiff argues that the district court erred in that the reasons upon which the denial was based were never contested by the Town of Krotz Springs. We agree.

Chapter 13 of the Town of Krotz Springs’ Municipal Ordinance deals with “liquor and alcoholic beverages”. Section 13:2 provides:

“SECTION 13:2. CONTENT OF APPLICATION FOR PERMIT
Applications for state and local permits to engage in any business or operation regulated by this Chapter shall be in writing and sworn to, and shall contain the full name of the applicant, his correct home address, and an accurate description and correct address of the premises wherein the business or operation is to be conducted, which address shall be considered the proper address for all notices to the applicant or permittee required by this Chapter, and shall be accompanied by an affidavit of the applicant showing that he meets qualifications and conditions set out in Section 13:4.
Unless he is seeking a renewal of his permit, an applicant for a retail dealer’s permit shall attach to his application, as a part thereof, a certificate of publication by the publisher of the newspaper, showing the publication of the notice required in LRS 26:76.
(LRS 26:77)
Comment — As indicated by the source note, the provisions of Section 13:2 and several of the following Sections in this Chapter were not derived from local ordinances but from the Louisiana Revised Statutes. Since these statutes are self-operative and supplement the provisions of this Part, they were included herein at the direction of the Mayor and Board of Aldermen.”
Section 13:3 provides;
“SECTION 13:3. QUALIFICATIONS OF APPLICANTS FOR PERMITS
A. Applicants for state and local permits of all kinds shall meet the following qualifications and conditions:
3. Is the owner of the premises or has a bona fide written lease therefor.”

The record shows that the Town has never required a written application from any other applicant in the past, nor has it required a detailed drawing to prove possession of the premises. The only requirement made by the Town was that the applicant notify the public of his/her intention in the local newspaper; and this requirement was fulfilled by the plaintiff. In other words, the Town did not require its applicants to follow its own ordinance. This is obviously why these grounds for denial were not urged in the Town’s answer. We find that the Town impliedly waived its requirements of a written application and drawing of location, and the trial court erred in denying plaintiff’s permit on these grounds.

The grounds for denial urged by the Town in its answer were found to be inadequate by the trial court. The Town has not contested this finding on appeal. Therefore, we do not reach the issue of whether the grounds urged in the answer were substantial enough to deny plaintiff her permit.

Accordingly, the judgment of the trial court rejecting plaintiffs demand is reversed and set aside, and,

IT IS ORDERED, ADJUDGED AND DECREED that the Mayor and Town Council of the Town of Krotz Springs, or any other official designated by the Mayor and/or Town Council to issue such a permit, issue to plaintiff, Judy McDaniel, a local beer and liquor permit authorizing her to sell liquor and alcoholic beverages at retail.

All costs at the district court level and appellate level are assessed against the Town of Krotz Springs.

REVERSED AND RENDERED.

CULPEPPER, J., concurs and assigns written reasons.

CULPEPPER, Judge,

concurring.

I agree that we should reverse the judgment appealed, but I prefer to base our decision on different grounds. In her brief, plaintiffs principal argument is based on Cantelupe v. The Town of Bossier, 322 So.2d 344 (La.App.2d Cir.1975) in which the court held that where the notice given to the applicant of the denial of the permit did not give the reasons for denial, the city could not argue for the first time on appeal to the district court that the application was properly denied for certain reasons not given in the notice. The court cited R.S. 26:96, 26:283 and 33:4787 which appear to require the town to enumerate the reasons for refusing to issue the permit.

Of course, plaintiff agrees that the trial judge correctly found that none of the reasons given by the town in its answer were valid grounds to deny the permit. However, plaintiff argues, with merit I think, that the judge could not of his own motion furnish grounds which were never alleged nor made an issue in the trial de novo. The obvious reason for the statutory requirement that the town give notice to the applicant of the reasons for denying the permit is to give the applicant a reasonable opportunity to prepare evidence to meet those reasons. The applicant should not be required to overcome reasons not given by the town — at least before the trial de novo. In the present case, where the court went outside the pleadings to find that the permit was properly denied because the plaintiff failed to file a written application and did not file a drawing of the location to show that she possessed the premises for which the license was to be issued, the plaintiff correctly argues that she was never given the opportunity to present evidence to meet these reasons given by the court. I think this is the grounds on which our decision should be based, rather than the holding by the majority that the town by not requiring written applications or drawings of location in the past waived any such requirement as to the plaintiff’s application in the present case.

For the reasons assigned, I respectfully concur in the majority decision.

      . LSA-R.S. 26:104 provides:
      "§ 104. Appeals to courts
      Any party aggrieved by a decision of the board to withhold, suspend, or revoke a permit or of the local authorities to withhold a permit may, within ten days of the notification of the decision, take a devolutive appeal to the district court having jurisdiction of the applicant’s or permittee’s place of business, proposed or actual as the case may be. Such appeals shall be filed in the district courts in the same manner as original suits are instituted therein. The appeals shall be tried de novo. Either party may amend and supplement his pleadings and additional witnesses may be called and heard. When there has been a previous criminal prosecution for the same or similar act upon which the refusal, suspension or revocation of a permit is being considered, evidence of an acquittal in a court of competent jurisdiction is admissible in the trial of the appeal.
      Within ten calendar days of the signing of the judgment by the district court in any such appeal case, the board or the applicant for a permit or permittee, as the case may be, may devolutively appeal the judgment to the appellate court of proper-jurisdiction. These appeals shall be perfected in the manner provided for in civil cases and shall be devolutive only. If the district court determines that the decision of the board or of the local authorities in withholding, suspending, or revoking the permit was in error, the decision of the board or local authorities shall not be voided if the board or local authorities take an appeal to the Court of Appeals in the time provided for suspensive appeals.” (Emphasis provided.)

      . The trial court found that because the applicant did not file a written drawing of her location, she did not prove that she possessed the premises for which the license was to be issued.

      . We are assuming for the sake of argument that one must show a drawing of his location to prove "possession” of the premises.

      . We note that although we are ordering the issuance of a local beer and liquor permit to the plaintiff, she still must obtain a state permit to sell alcoholic beverages at her business establishment. LSA-R.S. 26:71; R.S. 26:74.


text:
    Dorothy Ann LANCLOS, Plaintiff-Appellee, v. David Paul AYMOND, Defendant-Appellant.
    No. 83-539.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.

      Paul M. Hebert, Jr. of Breazeale, Sachse & Wilson, Baton Rouge, for defendant-appellant.
    William Tracy Barstow, Opelousas, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   DOMENGEAUX, Judge.

Dorothy Ann Landos and David Paul Aymond were divorced on March 28, 1977, at which time Mr. Aymond was condemned to pay child support of $200.00 per month for the maintenance and support of their two minor children, Paul and Mark Ay-mond. Subsequently, Dorothy Landos filed a rule for an increase in child support wherein David Aymond signed a waiver of appearance and consented to judgment being rendered increasing the child support payments to $300.00 per month. This increase in child support was made effective by a judgment dated November 12, 1980.

On January 17,1983, Mr. Aymond filed a rule nisi claiming that there had been a substantial change in his circumstances since the November 12, 1980 judgment and based thereupon, he requested a reduction in child support payments. The rule was heard and the trial court denied his motion on the basis that the evidence did not warrant a reduction in child support. He appeals that ruling. We affirm.

Mr. Aymond testified that the following changes of circumstances had occurred since the rendition of the November 12, 1980, judgment:

1. In November 1980, he and his second wife had only one child but that now twins had been born.

2. As of the time of the hearing the second wife can no longer work due to the fact that she had three small children at home.

3. There have been rent increases due to the need for larger housing as a result of the birth of the two additional children.

4. Because of the added financial burden he has had to borrow money to make ends meet.

Although Mr. Aymond’s testimony is to the effect that his present income does not allow him to meet his obligation of support under the November 1980, judgment, nevertheless, the trial judge must have concluded that he was able to continue making the support payments previously ordered. The circumstances dictate that we apply the well established rule of appellate review that the findings of fact made by the trial judge are to be given great weight and his conclusions will be disturbed only if manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

Inasmuch as it does not appear that the trial judge acted arbitrarily in this matter this Court will not substitute its judgment for his. Trahan v. Adams, 264 So.2d 358 (La.App. 3rd Cir.1972); Lawrence v. Lawrence, 145 So.2d 642 (La.App. 4th Cir.1962).

The law is well settled in Louisiana that both parents owe the obligation of support and maintenance to their children. La.C.C. Art. 227; Kuhn v. Kuhn, 420 So.2d 1026 (La.App. 5th Cir.1982); Howell v. Howell, 391 So.2d 1304 (La.App. 4th Cir.1980); and Porter v. Cooley, 293 So.2d 258 (La.App. 3rd Cir.1974). Furthermore, each case involving the support of children must be determined on its own facts and circumstances. See Kuhn v. Kuhn, supra, at page 1028, and Hudson v. Hudson, 421 So.2d 1188 (La.App. 2nd Cir.1982).

There is no question that the party seeking to increase or decrease the amount of child support bears the burden of proving a change of circumstances since the rendition of the prior judgment fixing the amount of support. Hudson v. Hudson, supra, and Deaton v. Deaton, 393 So.2d 408 (La.App. 1st Cir.1980). It has been argued that a less rigid application of the “change of circumstances rule” should apply where a child support award has been fixed via a consent judgment rather than judicial intervention. However, under either standard the trial judge found the change of circumstances insignificant in and of itself to warrant a change of the child support award.

The plaintiff in rule has encountered additional financial responsibilities but his income has also increased to an extent that would absorb some of those expenses. Further, the cost of supporting these two children has no doubt increased since the November 1980, judgment.

In view of the circumstances of this case, and the law applicable thereto, we cannot say that the trial judge abused his discretion in refusing to lower the amount of child support which Mr. Aymond had earlier been ordered to pay.

For the above and foregoing reasons the judgment appealed is affirmed. Costs of this appeal are assessed against appellant.

AFFIRMED.

      . See Bass v. Bass, 417 So.2d 67 (La.App. 3rd Cir.1982) and concurring opinion therein.


author: YELVERTON, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Edward THIBODEAUX, Defendant-Appellant.
    No. CR83-549.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    John C. Geiger, Lafayette, for defendant-appellant.
    Michael Harson, Asst. Dist. Atty., Lafayette, for plaintiff-appellee.
    Before CUTRER, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

The defendant, Edward Thibodeaux, was convicted of second degree murder, in violation of LSA-R.S. 14:30.1. He was sentenced to life imprisonment at hard labor, without benefit of parole, probation or suspension of sentence. From this sentence he has appealed.

No assignments of error were perfected as required by LSA-C.Cr.P. art. 844, nor has a brief been filed. Therefore, this court is limited to a review of the record for errors that are discoverable by a mere inspection of the pleadings. C.Gr.P. art. 920; State v. Jackson, 332 So.2d 211 (La.1976); State v. Gerald, 325 So.2d 574 (La.1976). We have reviewed the record and find no error.

Accordingly, the conviction and sentence are affirmed.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Wayne E. SUMMERS, Individually and as Natural Tutor of Sarah Summers and Wayne E. Summers, Jr., Minors, and Miriam Summers, Plaintiffs-Appellants, v. PARISH OF VERMILION, Vermilion Parish Police Jury, National Union Fire Insurance Company of Pittsburgh Pennsylvania, Inc., and the State of Louisiana, Through the Department of Transportation and Development, Defendants-Appellees.
    No. 83-563.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Cooper, Ortego & Woodruff, Silas B. Cooper, Jr., Abbeville, for plaintiffs-appellants.
    Voorhies & Labbe, D. Mark Bienvenu and James Lambert, Lafayette, for defendants-appellees.
    Before GUIDRY, FORET and CULPEPPER, JJ.

       Judge William A. Culpepper, Retired, Judge Ad Hoc.

   GUIDRY, Judge.

Wayne E. Summers, individually and as natural tutor of Sarah Summers and Wayne E. Summers, Jr., and Miriam Summers filed this personal injury suit for damages resulting from a one car accident which occurred on January 5, 1980. The accident, involving a 1977 Datsun pickup truck owned by Wayne and Miriam Summers, operated by Mrs. Summers and occupied by the Summers’ two children, Sarah and Wayne, Jr., occurred in Vermilion Parish on Parish Road No. 922. Named as defendants were the Parish of Vermilion (hereafter the Parish); The Vermilion Parish Police Jury (hereafter the Police Jury); their liability insurer, National Union Fire Insurance Company of Pittsburgh Pennsylvania, Inc. (hereafter National Union); and the State of Louisiana, through the Department of Transportation and Development (hereafter DOTD). DOTD was dismissed from the suit on a motion for summary judgment on the ground that Parish Road No. 922 is not part of the state highway system. The judgment signed in accordance therewith on November 23, 1981, is final and is not before us on this appeal. After trial on the merits, the trial court rendered judgment in favor of the remaining defendants and against plaintiffs, dismissing their suit with prejudice. Plaintiffs appeal devolutively.

The undisputed facts of the case are as follows: Parish Road No. 922, also known as Gautreaux Road, is a narrow two lane blacktop rural road. On the date of the accident, Mrs. Summers, accompanied by her two children, left her home at approximately 3:00 p.m. traveling in a southerly direction on Gautreaux Road. The weather was clear and dry. Less than one mile from Mrs. Summers’ home on Gautreaux Road is a bridge. There was a small pipe railing on the right hand side or west shoulder of the bridge, but a similar railing was down in the ditch on the left side or east shoulder of the bridge. Mrs- Summers was heading toward this bridge, conversing with her son, conscious of the fact that she was approaching the bridge. Because there was no oncoming traffic and because of the narrow condition of the road, Mrs. Summers was driving in the middle of the roadway, which is not marked by a dividing line. This is the last thing Mrs. Summers was able to recall until she realized that the truck had collided and was stopped straddling the southeasternmost piling of the bridge, i.e., on the east side of the roadway. The undisputed testimony of Trooper Oscar Theriot, who investigated the accident, established that just prior to the collision, the left wheels of the truck had veered off the paved portion of the roadway, traveling on the east shoulder in a straight line for 51’ before making contact with the bridge. At this point, the shoulder narrows and the left wheels of the truck dropped over the side of the bridge, the bottom of her vehicle scraping the beam that runs along the east side of the bridge, until the truck finally came to rest on top of the piling. As a result of the accident, Mrs. Summers and her two children were seriously injured.

Plaintiffs assert that defendants are at fault for maintaining the road in an improper condition which caused this accident and the resulting injuries, and are liable under LSA-C.C. Art. 2317 for a defective thing in their custody.

Although the trial judge found that the condition of Gautreaux Road was “not up to the standard of the modern interstate highways,” he ultimately concluded that plaintiffs had failed to prove that any defect in the road was a cause in fact of the accident. Plaintiffs assert that this finding constitutes manifest error.

In particular, plaintiffs argue that the presence of a bridge railing or other visible marker on the east side of the bridge would have served to warn Mrs. Summers of the narrowness of the bridge. They, thus, argue that the absence of the bridge railing created an unreasonable risk of harm to plaintiffs. For this argument, plaintiff rely on Dabov v. Allstate Insurance Co., 302 So.2d 697 (La.App. 3rd Cir.1974), writs denied, 305 So.2d 539, 540 (La.1975). We find the Dabov case inapposite. In that case, the motorist ran off the side of an extremely narrow bridge while driving along the extreme edge of the road in order to allow an oncoming vehicle to pass. The motorist was driving on the road for the first time and thought she was on the regular roadbed until the accident occurred. In the instant case, the accident occurred less than one mile from Mrs. Summers’ home on a road which she traveled three or four times daily for a period of five years. Mrs. Summers quite frankly admitted that she was conscious of approaching the bridge and was well aware of the bridge’s location and condition. There were no oncoming vehicles and Mrs. Summers was simply at a loss to explain why her car veered to the left and struck the piling. We find that the record supports the trial judge’s conclusion that plaintiffs failed to prove that any defect in the roadway was a cause of the accident.

The remaining authorities relied on by plaintiffs deal with the issue of contributory negligence and damages. Because we find that the trial judge properly concluded that defendants were not liable under LSA-C.C. Art. 2317, we do not reach these issues.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are to be borne by plaintiffs.

AFFIRMED.

      . We use the term bridge for want of a better word. Actually, there is a culvert which runs under the roadway connecting two ditches which run parallel on either side of Gautreaux Road. The surface of the roadway above the culvert is the same as the rest of the road but there is little or no shoulder at this point. The roadway over the culvert is supported by 10" by 10" timber beams. The hard surface blacktopped portion of the road at this site is 15' 5" wide. In between the beams and the paved portion of the roadway is a shell shoulder. From the inside of the east timber beam to the inside of the west timber beam, the roadway measures 18' 6". Abutting and fanning out from the four corners of the culvert are wooden pilings. In between these pilings, there is a steep drop-off into a ditch.


author: FORET, Judge.

text:
    Carl HEBERT, Plaintiff-Appellant, v. STATE of Louisiana, OFFICE OF EMPLOYMENT SECURITY and Patterson Inspection Services, Inc., Defendants-Appellees.
    No. 83-591.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Donald J. Richard, Opelousas, for plaintiff-appellant.
    James McGraw, Baton Rouge, Huntington Downer, Jr., Houma, for defendants-ap-pellees.
    Before GUIDRY, FORET and CULPEPPER , JJ.

       Judge William A. Culpepper, Retired, Judge Ad Hoc.

   FORET, Judge.

Plaintiff, Carl Hebert, appeals from a judgment of the trial court upholding the Office of Employment Security Board of Review’s decision to deny him unemployment benefits. The issue on appeal is whether plaintiff quit his job without good cause connected with his employment.

Carl Hebert was employed as an inspection operator by defendant, Patterson Inspection Services, Inc. from April 15, 1982, through May 27, 1982. Working under him were three contract laborers. Unfortunately, plaintiff felt that the three were not performing satisfactorily and communicated his displeasure to his immediate supervisor, Wayne Bergeron. Subsequently, Ber-geron agreed to send plaintiff three new laborers.

When the new laborers arrived, plaintiff had changed his mind and decided to give the old workers a second chance. Therefore, he sent the new workers back in. Later that day, plaintiff walked into Ber-geron’s office and expressed dissatisfaction with several problems he was having on the job. Bergeron then told plaintiff that his paycheck might be docked for the three laborers he had ordered and not used. Plaintiff then quit because of the aforementioned problems and the threat of the paycheck deduction. The employer’s threat was subsequently made good when $123.40 was deducted from plaintiff’s paycheck.

Plaintiff’s initial claim for benefits was denied and that decision was upheld by both the appeals referee and the board of review. The trial court found no error in the prior administrative decisions and affirmed, finding that the plaintiff left his job without good cause connected with his employment.

LSA-R.S. 23:1601 provides:

“An individual shall be disqualified for benefits:
(1) If the administrator finds that he has left his employment from a base period or subsequent employer without good cause connected with his employment ...”.

Plaintiff argues that the deduction with which he was threatened was illegal under LSA-R.S. 23:635, and therefore, his decision to quit the job was made with sufficient good cause.

LSA-R.S. 23:635 provides:

“§ 635. Assessment of fines against employees unlawful; exceptions
No person, acting either for himself or as agent or otherwise, shall assess any fines against his employees or deduct any sum as fines from their wages. This section shall not apply in cases where the employees wilfully or negligently damage goods or works, or in cases where the employees wilfully or negligently damage or break the property of the employer, but in such cases the fines shall not exceed the actual damage done.”

Under the provisions of LSA-R.S. 23:636, a jail sentence and fine may be imposed upon the employer for violation of Section 635. LSA-R.S. 23:636 provides:

“§ 636. Penalty for violations
Whoever violates the provisions of R.S. 23:634 or R.S. 23:635, shall be fined not less than twenty-five dollars nor more than one hundred dollars, or imprisoned for not less than thirty days nor more than three months.”

Our review in this case extends only to questions of law. LSA-R.S. 23:1634. Thus, we accept the referee’s findings of fact. We find, however, that he erred as a matter of law in finding no violation of LSA-R.S. 23:635 and reverse.

As contemplated by R.S. 23:635, the term “fine” means a pecuniary penalty or punishment imposed for violation of some law, rule, or regulation. Stell v. Caylor, 223 So.2d 423 (La.App. 3 Cir.1969). The deduction of the $123.40 was simply a pecuniary penalty for plaintiffs actions in not using the second set of workers. It should have been made clear to plaintiff that if he desired a second working crew, that crew must-be used. Plaintiffs behavior was not so derelict as to make him responsible for payment of the second crew of laborers.

Defendant cites several cases for the proposition that R.S. 23:635 was not violated. We find none of these eases persuasive. Hanks v. Shreveport Yellow Cabs, 187 So. 817 (La.App. 2 Cir.1939) and Stell v. Caylor, supra, dealt with deposits left by employees to insure the return of equipment or monies, an agreement which was made part of the employment contract. In the case at bar, no deposit was made, nor was there any contractual agreement which would allow the defendant to make the deductions it did.

The remaining cases cited by defendant dealt exclusively with LSA-R.S. 23:631 and 632, regarding the employer’s liability for failing to timely pay wages due the employee. None of these cases attempted to interpret LSA-R.S. 23:635.

For the reasons assigned, the judgment appealed from is reversed, and it is now,

ORDERED, ADJUDGED AND DECREED that the Board of Review of the Division of Employment Security, Department of Labor, State of Louisiana, issue an order directing the payment to plaintiff of the unemployment compensation benefits to which he is entitled under the Louisiana Employment Security Law.

All costs of this appeal, and at the trial level, are assessed against defendant-employer, Patterson Inspection Services, Inc.

REVERSED AND RENDERED.

      . These problems included inadequate pay, inadequate technical help and inadequate laborers.

      . Mitchell v. First National Life Insurance Co. of La., 236 La. 696, 109 So.2d 61 (1959); Yancey v. Dickson Ice Cream Co., 190 So. 837 (La.App. 2 Cir.1939); Williamson v. National Ben. Life Insurance Co., 16 La.App. 451, 133 So. 515 (2 Cir.1931).


text:
    STATE of Louisiana, Plaintiff-Appellee, v. John K. LaFLEUR, Defendant-Appellant.
    No. CR83-592.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Edward J. Lopez, Opelousas, for defendant-appellant.
    Morgan J. Goudeau, III, Dist. Atty., Donald Richard, Asst. Dist. Atty., Opelousas, for plaintiff-appellee.

      Before GUIDRY, FORET and CULPEP-PER JJ.

       Judge William A. Culpepper, Retired, Judge Ad Hoc.

   GUIDRY, Judge.

On September 3, 1981, the defendant, John K. LaPleur, was charged by bill of information with attempting to secure controlled dangerous substances, Percodan and Tuinol, by means of fraudulent practices in violation of LSA-R.S. 14:27, LSA-R.S. 40:971(B) and LSA-R.S. 40:979. He was tried before a jury of six who returned a verdict of guilty as charged. On December 20, 1982, the defendant was sentenced to serve two and one-half years at hard labor in a state correctional facility. The defendant has appealed his conviction and sentence.

The defendant’s only assignment of error was not briefed for the court. Assignments not briefed are considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982). Therefore, the scope of appellate review in this case is limited to a review of the pleadings and proceedings, without inspection of the evidence, for errors patent. State v. Zeno, 322 So.2d 136 (La.1975). Accordingly, we have carefully examined the record in this case pursuant to the mandate of LSA-C.Cr.P. Art. 920 and finding no errors patent on the face of the record, we affirm the defendant’s conviction and sentence.

AFFIRMED.


author: CULPEPPER, Judge Pro Tern.

text:
    Elton DEVILLE, Plaintiff-Appellant, v. DEFENDING ATTORNEYS FOR CONTINENTAL OIL COMPANY, Triangle Refineries, Inc., George H. Robinson, Jr., Liskow & Lewis, Xavier G. Lemond, Charles K. Reasonover, Stephen Vogel, Deutsch, Kerrigan & Stiles and Teresa Brown, Defendants-Appellees.
    No. 83-603.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Rehearing Denied May 7, 1984.

      Elton Deville, in pro. per.
    Voorhies & Labbe, Patrick A. Juneau, Jr. and Kathleen Drew, Lafayette, Deutsch, Kerrigan & Stiles, Frederick R. Bott, New Orleans, for defendants-appellees.
    Before GUIDRY and FORET, JJ., and CULPEPPER, J. Pro Tern.
   CULPEPPER, Judge Pro Tern.

Elton Deville, plaintiff, brought this defamation action seeking damages for injury to his reputation and business as a result of the appearance of an alleged defamatory allegation in a trial memorandum prepared by defendants, attorneys at law. The trial memorandum was the product of a previously litigated Federal Court case where the defendants herein represented the parties adverse to the plaintiff, Deville. The trial court held, that as a matter of law, the statement was not defamatory and granted summary judgment in favor of defendants. Plaintiff now appeals. We affirm.

Plaintiff owned and operated Triangle Gas of Crowley, a retail gasoline service station. In 1973, plaintiff filed suit in Federal Court against various wholesale gasoline distributors alleging that they discriminated against him by refusing to sell and supply him with necessary amounts of gasoline for his business. Elton Deville v. Continental Oil, Co., et al, No. 78-1120.

The defendants in this instance are the attorneys who represented the defendants in the Federal Court action. Defendants were successful in defeating plaintiffs Federal Court Claim. Plaintiff subsequently filed the instant suit alleging that he was defamed by a statement made and incorporated by defendants in a joint memorandum in support of motion to dismiss and/or for summary judgment, filed in the Federal Court litigation. According to plaintiff, the alleged defamatory language stated:

“This suit is another effort by plaintiff to obtain a larger supply of gasoline than that to which he was entitled to for his service station at a price which would give him a competitive advantage over other service station operators in the local market.”

Defendants, George H. Robinson, Jr. and Liskow and Lewis, filed a motion for summary judgment contending that the statement was not defamatory as a matter of law. The trial court granted the same and dismissed them from the action. In a recent and published opinion we held that plaintiff’s present appeal from this summary judgment was untimely and dismissed the same. 436 So.2d 702. Plaintiffs appeal was maintained in part however as to defendant, Xavier G. Lemond, who was likewise dismissed on a motion for summary judgment in the present action by the trial court following the dismissal of Robinson and Liskow and Lewis. Plaintiff now appeals from the trial court summary judgment dismissing plaintiffs claim against Xavier G. Lemond.

ISSUE

The issue presented on appeal is whether the trial court properly granted Lemond’s motion for summary judgment, holding that as a matter of law the language was not defamatory.

APPLICABLE LAW

The threshold issue in a defamation action is whether the complained of words are defamatory, that is, capable of defamatory meaning. Weatherall v. Dept. of Health & Human Res., 482 So.2d 988 (La. App. 1st Cir.1983); Wattigny v. Lambert, 408 So.2d 1126 (La.App. 3rd Cir.1981). In Wattigny, we define defamatory as:

“A statement is defamatory when it tends to expose a person to contempt, hatred, ridicule or obloquy; or which causes a person to be shunned or avoided; or which has a tendency to deprive him of the benefits of public confidence or injure him in his occupation; and includes almost any language which upon its face has a natural tendency to injure the person’s reputation, either generally or with respect to his occupation. The intent and meaning of an alleged defamatory statement must be gathered not only from the words singled out as libelous but from the context as well, and the true meaning must be ascertained from a consideration of all parts of the statement as well as the circumstances of its publication. The test is the effect the article is fairly calculated to produce and the impression it would naturally engender in the minds of the average persons among whom it is intended to circulate.”

After thorough review and evaluation of the record, we are convinced that the written reasons of the trial judge correctly dispose of the legal issue presented here. Accordingly, we adopt the following pertinent findings and conclusions of law of the trial court as our own:

“In the case before the court, we are faced with a statement presented in a Joint Memorandum in Support of a Motion to Dismiss and/or for Summary Judgment, which the plaintiff alleges in his petition is a defamatory statement. The petition also alleges that many more remarks would be proven in court. The court, due to the vagueness of the petition, denied a previous Exception of No Cause of Action and Dilatory Exception requesting a change of venue. After further discovery, specifically the deposition of Mr. Deville, the court finds that the only allegation against the defendants, George H. Robinson, Jr., and Lis-kow & Lewis, consists of the allegedly defamatory statement found in the Joint Trial Memorandum. The court, in reviewing this statement, finds that even though the statement seemed harsh and caustic to the plaintiff, the statement is not legally defamatory in nature, because the court does not feel as if the statement in the Joint Trial Memorandum would create a defamatory impression in the minds of the average persons among whom this statement was to circulate.”

SUMMARY JUDGMENT

motion for summary judgment should be granted only if “... the plead-pleaddepositions, answers to interrogato-interrogatoand admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966; Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976), writ denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976). Only when reasonable minds must inevita-inevitaconcur, as a matter of law, on the facts before the court is a summary judgment warranted, and any doubt is resolved against the granting of a summary judg-judgand in favor of a trial on the merits. Clement v. Taylor, 382 So.2d 231 (La.App. 3rd Cir.1980).

There is no genuine issue of material fact. The trial judge correctly held Xavier G. Lemond is entitled to summary judgment as a matter of law.

For the above and foregoing reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


author: CULPEPPER, Judge Pro Tem.

text:
    Georgia THIBODEAUX, Plaintiff-Appellee, v. LUMBERMEN’S MUTUAL CASUALTY COMPANY, et al., Defendant-Appellant.
    No. 83-616.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Plauche, Smith & Nieset, Frank M. Walker, Jr., Lake Charles, for defendant-appellant.
    Raggio, Cappel, Chozen & Berniard, Richard A. Chozen, Lake Charles, for plaintiff-appellee.
    Before GUIDRY and FORET, JJ., and CULPEPPER, J. Pro Tem.
   CULPEPPER, Judge Pro Tem.

This case was consolidated for trial and appeal with No. 83-617 on our docket, entitled Celestine Joubert v. Lumbermen’s Mutual Casualty Company, et al., in which a separate judgment is being rendered by us this date, 448 So.2d 890.

In these consolidated cases, plaintiffs, Georgia Thibodeaux and Celestine Joubert, were injured while riding in a car owned and driven by Isaac Stagg. The defendants are Isaac Stagg (Stagg), insurance agent Larry Bridges (Bridges), and Stagg’s alleged automobile liability insurer, Lumbermen’s Mutual Casualty Company (Lumbermen’s). The city court, in a consolidated trial, held in favor of plaintiffs and against Stagg, Bridges and Lumbermen’s, in solido. The court denied Lumbermens’ third party demand against Bridges. Lumbermen’s appeals, contending that Bridges is not its agent and is therefore solely liable to plaintiffs for having negligently provided them with incorrect information thereby causing the issued policy to lapse. Neither Stagg nor Bridges appealed or answer the appeal. We hold that Bridges was not Lumbermens’ agent. Accordingly, we dismiss plaintiffs’ suit against Lumbermen’s and affirm the judgment against Stagg and Bridges.

ISSUE

The issue presented for our determination is whether Bridges was the agent for Lumbermen’s, thereby imputing Bridges' negligence to Lumbermen’s.

FACTS

On September 6, 1980, plaintiffs were injured in a single car accident when a 1976 Ford LTD, in which they were passengers, ran off of the road into a ditch. It is undisputed that Isaac Stagg owned the car and was solely negligent in causing the accident. Georgia Thibodeaux was awarded $800. and Celestine Joubert $3,000., a total of $3,800.

Mr. Stagg stated during the trial that he depended upon Larry Bridges, insurance agent, for all of his insurance needs. Since Stagg was 72 years old, Bridges could only obtain automobile liability insurance for Stagg through the Louisiana Assigned Risk Plan. Stagg’s risk was assigned by the plan to defendant, Lumbermen’s Mutual Casualty Company, who subsequently issued an automobile liability policy for the period of August 15, 1979 through August 15, 1980. In this policy, Stagg’s address was given as 106 North Cherry St.

On June 12, 1980, Stagg returned to Bridges’ office and requested that another automobile be added to his policy. In the course of honoring this request, agent Larry Bridges erroneously reported to Lumbermen’s that Stagg had changed his address to 314V2 North Goos St. Lumbermen’s did not receive this notice of change of address until June 17, 1980.

On June 6, 1980, Lumbermen’s had already mailed to Stagg at his correct address on North Cherry St. a notice for a renewal premium in the sum of $315. for the period August 15, 1980 to August-15, 1981. Although it must be presumed Stagg received this notice to his correct address, he never paid this renewal premium. A Notice of Cancellation was mailed by Lumbermen’s to Stagg on July 31, 1980, to be effective August 13, 1980. Stagg did not receive this notice since it was mailed to the erroneous address. The accident giving rise to the instant law suits occurred on September 6, 1980. At Stagg’s request, Bridges subsequently contacted Lumbermen’s concerning the accident and plaintiffs’ claims. Bridges learned that Stagg’s policy had terminated before the accident.

APPLICABLE LAW

Generally, the question of whether an insurance broker in any particular transaction is acting as the agent of the insured or the insurer is one of fact dependent on the particular circumstances of the case. The general rule is that an insurance broker is the agent of the insured and not of the insurer. Trahan v. Bailey’s Equipment Rentals, Inc., 383 So.2d 1072 (La.App. 3rd Cir.1980), writ denied 390 So.2d 1342 (La.1980).

The record indicates that Bridges was an agent exclusively for Allstate Insurance Company and that in isolated instances where Allstate refused to provide high risk coverage, Bridges would resort to having the high risk policy assigned to an unknown insurer through the Louisiana Assigned Risk Plan. The Louisiana Assigned Risk Plan provides for various participating insurance companies to receive assigned high risk clients on a rotating basis. Bridges was without control or knowledge as to which company would receive and issue the policy. Nor did Stagg instruct Bridges on how or with whom to obtain the insurance. For these specific reasons, we find that Bridges was either Stagg’s agent or was a broker in obtaining the insurance coverage. The trial court was clearly wrong in holding that Bridges was an agent of Lumbermen’s to which Bridges’ negligence was imputed.

The trial judge apparently reasoned that since Lumbermen’s mailed Bridges a commission on the premium, this alone proved a principal and agent relationship. If this were correct, every insurer who accepts an assigned risk and pays a commission to the referring agency would thereby become the principal of that agent. This is clearly wrong. The issue of whether a person is an agent or a broker depends mainly on control. Ackel v. Mid-South Underwriters, Inc., 377 So.2d 496 (La.App. 3rd Cir.1979), writ refused 378 So.2d 1389 (La.1980); Trahan v. Bailey's Equipment Rentals, Inc., supra. Mere payment and acceptance of a commission through the assigned risk plan does not constitute control sufficient to establish a principal and agent relationship.

As stated above, neither Stagg nor Bridges appealed or answered the appeal. Therefore, the judgment holding Stagg and Bridges liable in solido to plaintiffs cannot be reversed or modified on appeal.

For the reasons assigned, the judgment appealed is reversed and set aside insofar as it holds Lumbermen’s liable. Otherwise, the judgment is affirmed. All costs of appeal are assessed against Bridges.

REVERSED IN PART, AFFIRMED IN PART.


text:
    Celestine JOUBERT, Plaintiff-Appellee, v. LUMBERMEN’S MUTUAL CASUALTY COMPANY, et al., Defendants-Appellants.
    No. 83-617.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Plauche, Smith & Nieset, Frank M. Walker, Jr., Lake Charles, for defendant-appellant.
    Raggio, Cappel, Chozen & Berniard, Richard A. Chozen, Lake Charles, for plaintiff-appellee.
    Before GUIDRY and FORET, JJ., and CULPEPPER, J. Pro Tern.
   CULPEPPER, Judge Pro Tern.

For the reasons assigned in No. 83-616 entitled Georgia Thibodeaux v. Lumbermen’s Mutual Casualty Company, et al., 448 So.2d 888, the judgment appealed in the present case is reversed and set aside insofar as it holds Lumbermen’s liable. Otherwise, the judgment is affirmed. All costs are assessed against Bridges.

REVERSED IN PART, AFFIRMED IN PART.