author: LOTTINGER, Judge.

text:
    Peggy Sue Walker LINCECUM v. MISSOURI PACIFIC RAILROAD COMPANY, et al.
    No. 83 CA 0635.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Rehearing Denied June 29, 1984.
    Writ Denied Oct. 26, 1984.

      Leonard Führer and George A. Flournoy, Führer & Flournoy, Alexandria, Robert L. Freeman, Freeman, Pendley & Canova, Ltd., Plaquemine, for Lincecum.
    Boris F. Navratil and Murphy J. Foster, III, Breazeale, Sachse & Wilson, Baton Rouge, for Missouri Pacific R. Co.
    Houston C. Gascon, III, Dist. Atty., Plaquemine, for Iberville Parish Police Jury.
    Howard B. Gist, III, Gist, Methvin, Hughes & Musterman, Alexandria, for Employer’s Ins. of . Wausau.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

This action involves a train-truck collision in Iberville Parish, resulting in the death of the truck driver, Robert Lincecum. The collision occurred at the crossing where Sidney Road intersects with tracks maintained by the Missouri Pacific Railroad. At the time of the accident the deceased was employed by the Sam Broussard Trucking Company.

Suit is brought by Lincecum’s widow, Peggy, to recover damages resulting from Lincecum’s death for herself and a minor child of the marriage to Lincecum. The defendants named in the suit include the State of Louisiana Department of Transportation and Development; Iberville Parish Police Jury; Missouri Pacific Railroad Company; and three employees of the Missouri Pacific Railroad Company: Chris J. Blythewood, Melvin Frazier and F.R. Sims.

The Broussard Trucking Company’s insurer, Employer’s Insurance of Wausau, intervened in the suit to recover workmen’s compensation benefits paid to Lincecum’s widow and child. Employer’s Insurance dismissed its intervention upon reaching agreement with the plaintiffs that they would receive payment from any judgment awarded to the plaintiffs.

The Department of Transportation requested and received a summary judgment and was dismissed from the suit. The remaining defendants were tried by a jury, with the exception of the case against the Police Jury which was decided by the judge alone. The Police Jury was granted a dismissal and the trial judge also granted a motion for directed verdict in favor of the three Missouri Pacific employees.

The case against the Missouri Pacific Railroad was submitted to the jury on the alleged “dangerous” condition of the crossing. The jury awarded damages in the amount of $225,000 to the widow and $225,-000 to the child. From that judgment the plaintiff and defendant appeal. In this appeal defendant asserts four (4) assignments of error, and plaintiff asserts two (2) assignments of error.

DEFENDANT’S ASSIGNMENT OF ERROR NO. 1

The defendant argues that the trial judge erred in failing to direct a verdict in its favor, La.Code Civ.P. Art. 1810, or to grant its motion for a judgment N.O.V., La.Code Civ.P. art. 1811.

Defendant asserts that there was enough evidence in the case so as not to permit reasonable minds to differ, that an ample view was afforded for the decedent to see an approaching train, and that the accident was due solely to decedent’s negligence.

A trial judge has much discretion in determining whether or not to grant a motion for a directed verdict. La.Code Civ.P. art. 1810; Broussard v. Missouri Pacific Railroad Company, 376 So.2d 532 (La.App. 3rd Cir.1979). In deciding whether or not to grant a motion for directed verdict and judgment not withstanding the verdict the court should consider all of the evidence in the light most favorable to the party opposing the motions. A court should not grant the motions unless the facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable minds could not arrive at a contrary conclusion. Roberts v. St. Bernard Parish School Board, 427 So.2d 676 (La. App. 4th Cir.1983).

After a thorough review of all the facts and evidence considered in the light most favorable to the plaintiff, we find that this assignment of error is without merit. There was testimony from all the witnesses, who lived in the vicinity of the tracks on Sidney Road, to the effect that the crossing was blind to a northbound motorist. The decedent was traveling in a northerly direction when the accident occurred. There was testimony that high grass and brush over six feet tall had not been cut prior to the accident. The witnesses also described prior accidents and near-misses which they had been involved in at that crossing.

Defendant relies on the case of McFarland v. Illinois Central Railroad Company, 122 So.2d 845 (La.App. 1st Cir.1960), affirmed 241 La. 15, 127 So.2d 183 (La.1961). In McFarland the court reasoned that the question of negligence of a defendant is a question of fact to be determined in light of the circumstances of each case. The court went on to review the dangerous trap doctrine as set forth in 44 Am.Jur. Railroads § 507.

The principle that a crossing is unusually dangerous embraces a situation where the dangerous condition results from obstructions to the view which prevents a traveler from seeing an approaching train until he is dangerously close to the track. This rule requires the railroad company to exercise caution commensurate with the situation whether it be by reducing the speed of the train, or by increasing warnings or otherwise. The rule of care applies regardless if the obstructions to the view are legitimate and necessary in conducting the business of the railroad, and is thought to be fair because it is always within the power of the railroad company to remove the source of danger which was created by its own inattention.

Defendant argues that the McFarland doctrine applies only in those crossings which are unusually dangerous because obstructions on or near the railroad right-of-way prevent a motorist from seeing an approaching train until he is on or dangerously near the track. Defendant believes that the issue of the nature of the crossing itself should not have gone to the jury because the evidence in this case does not admit that the crossing falls within the meaning of the McFarland doctrine.

We are of the opinion that the preponderance of the evidence in this case was sufficient to show there existed at the time of the accident grass, brush, trees and shrubs such as would block the view of a motorist to such an extent that he would virtually have to place himself in peril in order to get a clear view down the track.

Defendant contends that the witnesses’ testimony is overcome by the fact that photographs were put into evidence by the defendant which accurately reflect the height of the grass and brush at the time of the accident. Defendant asserts that when such clear and unambiguous physical evidence is presented it cannot be supplanted by oral testimony.

The photographs that defendant presented at trial showing the layout of the railroad tracks in relationship to Sidney Road were admissible, subject to such weight the jury might accord them even though some of the pictures were taken 10 days after the accident occurred. Alleman v. State, Department of Highways, 416 So.2d 272 (La.App. 3rd Cir.1982).

The jury in this instance placed lesser weight upon the photographs than the defendant felt they should have under the case law. At trial witnesses who lived in the area and traveled Sidney Road daily had trouble recognizing the crossing depicted in the photographs as the crossing on Sidney Road. Several of the witnesses could not recognize the crossing until defense counsel pointed out familiar landmarks leading to the crossing. Several witnesses testified that the grass along the railroad right-of-way had been cut shortly after the accident stating that the grass had been much higher on the day of the accident.

Defendant places special emphasis on a photograph taken by an insurance adjuster which depicts the accident scene a few hours after the accident. In this photograph the view is toward the crossing from the direction in which the train would have been travelling. When the photograph was taken an ambulance parked along the roadside was clearly in view. Defendant argues that this clear and convincing photograph should not be overcome by oral testimony. We disagree.

The insurance adjuster initially responded that the photograph of the crossing adequately and fairly represented the scene which it depicted. Subsequently he stated that he was confused about the positioning in the photograph and could not be sure whether the picture accurately depicted the scene. The adjuster was also questioned concerning the distance down the track he could see when he crossed the track. The adjuster responded that he could not be sure because he was primarily concerned with the view of the crossing from the railroad crew’s vantage.

In light of the foregoing we cannot say the jury was clearly wrong in attributing less weight to the photographs than the defendant feels should have been accorded them.

DEFENDANT’S ASSIGNMENT OF ERROR NO. 2

In this assignment the defendant asserts that the trial court erred: (1) in permitting lay witnesses to give testimony concerning prior accidents occurring at the crossing; (2) in permitting lay witnesses to give their opinions that they considered the crossing dangerous; (3) in permitting the plaintiff to introduce evidence of post-accident improvements at the crossing; (4) in permitting the plaintiff to introduce into evidence the Iberville Parish School Board file concerning its attempts to gain installation of electric signals at the crossing; and (5) in not permitting an insurance adjuster to be cross-examined by counsel for the railroad.

PRIOR ACCIDENTS

Testimony concerning prior accidents is admissible for the limited purpose of showing that the defendant had notice of defects or physical conditions which are dangerous. Cassanova v. Paramount-Richards Theatres, Inc., et al., 204 La. 813, 16 So.2d 444 (La.1944); Keen v. Pel State Oil Company, Inc., 395 So.2d 866 (La.App. 2nd Cir.1981). The use of prior accidents or injuries are only admissible where the prior accidents or injuries are closely related in circumstances to the injury or hazard at issue. Miller v. Employers Mutual Liability Insurance Company of Wisconsin, 349 So.2d 1353 (La.App. 2nd Cir.1977).

There was no showing by the plaintiff that the prior accidents in question were so closely related in circumstance to the injury or hazard at issue as to be admissible for the purpose of showing notice. Nor may the defendant be heard to object to the use of prior accident evidence when he cross-examined Mr. Angelloz as to any knowledge of prior schoolbus accidents, thereby, opening the door to the evidence after the trial court had previously ruled not to allow prior accidents into evidence.

Even though the evidence was improperly admitted, the duty of this court is to review the facts without reference to such evidence. Miller supra. We are of the opinion that the jury probably believed the plaintiffs testimony where there was a conflict. The error in admitting the evidence was not of such serious prejudicial nature as to require a reversal.

DANGEROUS CROSSING

Defendant argues that lay testimony that a crossing is “dangerous” falls within the prohibition against opinion testimony, and that its prejudicial effect for outweighs its value.

Lay witnesses have been allowed to give opinions as to the speed a vehicle was traveling upon a showing that they drove vehicles and observed the speeds of vehicles. Fidelity and Casualty Company of New York v. Aetna Life and Casualty Company, 244 So.2d 255 (La.App. 3rd Cir. 1971). Lay witnesses have also been allowed to give their opinions to establish a person’s insanity by testifying to the specific facts in which his opinion is based. Bell v. Acacia Mutual Life Ins. Co., 204 La. 1005, 16 So.2d 821 (La.1944).

Similarly, a lay witness should be permitted to opine the “dangerous” condition of a crossing provided they can show that they are familiar with the crossing in question, and cite specific facts upon which their opinion is supported: The credibility of this opinion testimony should go to the weight rather than to its admissibility. Fidelity and Casualty Company of New York, supra.

In this instance the witnesses who testified on the condition of the crossing were all very familiar with the crossing. Each traversed the crossing frequently and observed the condition of the crossing over an extended period of time. Also each witness stated specific facts on which they based their opinions. In light of this, we determine that the lay opinion of the crossing’s condition was properly admitted.

POST ACCIDENT IMPROVEMENTS

Defendant urges this court to rule that precautionary measures or repairs taken after an accident should not be admissible to show fault.

After reviewing the record we are of the opinion that there was sufficient evidence presented to the jury to decide that the crossing was “dangerous” without considering any post-accident measures which were taken by the railroad company. This assignment of error is without merit.

SCHOOL BOARD FILE

Defendant complains that the introduction of the files of the school board evidencing letters, resolutions, and communications requesting that flashing signals be installed at the Sidney Road crossing induced the jury to think that the railroad was statutorily mandated to perform such a task.

The courts have held that the files of public bodies are admissible on the issue of notice of the dangerous condition of railroads. Hebert v. Missouri Pacific Railroad Company, 366 So.2d 608 (La.App. 3rd Cir.1979), writ denied, 369 So.2d 153 and 155 (La.1979). This assignment of error is without merit.

CROSS EXAMINATION OF ADJUSTER

Defendant asserts that the trial judge’s erroneous ruling disallowing defense counsel to cross-examine the witness William Brown in order to impeach him was so prejudicial against him that a reversal is mandated.

Mr. William Brown was called as a witness by defendant to elicit testimony as to the distance one could see down the railroad track at the Sidney Road crossing. Mr. Brown is an adjuster employed by Employer’s Insurance of Wausau which was the workmen’s compensation insurer for Broussard Trucking Company. Mr. Brown had been dispatched to investigate the accident scene on behalf of Employer’s. Upon arriving at the scene approximately three hours after the crash Mr. Brown took photographs of the area leading to the track from a southward direction on Sidney Road. Brown also walked approximately 150 yards down the track in the direction the train had come from and snapped several more pictures.

When defense counsel asked Mr. Brown how far he could see down the track from the crossing, the witness answered that he could not be sure. Defense counsel then proceeded to cross-examine the witness in an attempt to impeach him on the basis of an earlier inconsistent statement made while deposing the witness. Plaintiff’s counsel objected to the impeachment on the basis that the witness was merely stating that he did not remember. The trial court sustained the objection. In later questioning by defense counsel, Mr. Brown stated that he had gotten confused about the positioning when he had taken the picture.

Upon reviewing the deposition of Mr. Brown, it is clear that he did not understand the questions being asked him. The witness stated several times that he did not understand the gist of counsel’s questions, and stated several times that he was confused.

A party may impeach his own witness if he can show he is surprised or the witness is hostile. La.R.S. 15:487. To show surprise it is not enough to demonstrate that the witness did not testify as expected. The party calling the witness must show that the witness testified upon some material matter against him in favor of the other side. State v. Paster, 373 So.2d 170 (La.1979). It is our opinion that the witness did not testify upon some material matter in favor of the other side. Instead, we believe that the witness was genuinely confused and did not grasp the question asked by defense counsel during the deposition.

A party may impeach its own witness without a showing of surprise if he can prove that the witness is hostile. State v. Willis, 241 La. 796, 131 So.2d 792 (1961). A showing of hostility of a witness depends upon a showing that the witness’ interest is on the opposite side to such an extent that he is unlikely to give a true statement concerning the transaction. State v. Welch, 368 So.2d 965 (La.1979).

The most counsel could show for the witness’ hostility is the fact that he was a claims adjuster employed by the workmen’s compensation carrier of the trucking company which owned the vehicle involved in the accident. This in and of itself is not sufficient to show the hostility of a witness. In order to show hostility counsel must place into evidence more specific facts clearly establishing that the witness is unlikely to give a true account.

It is arguable that the defense counsel did not establish either surprise or hostility. Under these circumstances we cannot hold that the trial judge’s ruling was erroneous. This assignment is without merit.

DEFENDANT’S ASSIGNMENT OF ERROR NO. 3

Defendant objects to the following portions of the jury instructions:

“If you determine that the crossing was a dangerous one, and if you find from the evidence that Missouri Pacific took no action to improve this situation, that is, to lessen the dangers, or failed to change its operating procedures to minimize the risks in this area or failed to travel at a speed commensurate with the conditions in existence, then you should find Missouri Pacific negligent.
“To run a train at a high rate of speed, without precautionary signals, or with signals manifestly insufficient to meet the requirements of a proper warning approach where trainmen have reason to believe that there were persons in exposed position on the track, as over unguarded crossings in a populous district of a city, or where the public are wont to cross on the track with such frequency in numbers as to be known to those in charge of the train they will be held to a knowledge of the probable consequences of maintaining great speed without warnings.”

The adequacy of jury instruction by a trial court must be determined in the light of jury instructions as a whole. Brown v. White, 405 So.2d 555 (La.App. 4th Cir.1981); Higgins v. Johnson, 349 So.2d 918 (La.App. 1st Cir.1977). The standard of appellate review is that the mere discovery of an error in the trial judge’s instructions does not itself justify the appellate court conducting the equivalent of a trial de novo, without first measuring the gravity or degree of error and considering the instructions as a whole and the circumstances of the case. Brown supra.

Taking the jury instructions as a whole we find that they were a correct statement of the law. The defendant railroad company may have been found liable upon several basis: failing to change the operating procedures where there was adequate notice that the crossing was dangerous; failing to keep the grass and shrubs cut on the right-of-way; and failing to install signals at crossings where a motorist would have to place himself in a dangerous position near the track in order to get a view of an oncoming train. These are proper questions for the jury to decide. The charges were correct statements of existing law and were not confusing to the jury. This assignment of error is without merit.

DEFENDANT’S ASSIGNMENT OF ERROR NO. 4

Defendant asserts that the judge failed to instruct the jury to answer favorably special interrogatories relating to negligence of the three Missouri Pacific employees.

We see little sense in posing special questions to the jury relating to the negligence of the three Missouri Pacific employees when the judge earlier granted a directed verdict in their favor. This would only serve to confuse the jury on possible grounds for imposing liability on the Missouri Pacific Railroad.

After viewing the jury instructions as a whole, any prejudicial effect on the outcome of the trial was minimal, and does not warrant a reversal.

PLAINTIFF’S ASSIGNMENT OF ERROR NO. 1

Plaintiff argues that the trial judge erred in granting a directed verdict in favor of the Police Jury.

The trial court has great discretion in granting a directed verdict to a party in a lawsuit. A review of the total record does not reveal any indication that the trial judge’s decision was an abuse of discretion.

PLAINTIFF’S ASSIGNMENT OF ERROR NO. 2

In this assignment plaintiff complains that the trial court erred in refusing to give a jury charge dealing with defendant’s liability where an unreasonable risk of harm is present under the application of La.Civ.C. art. 2317. Under La.Code Civ.P. art. 1793 each party may file written requests that the court instruct the jury on the law as set forth in the requests. The trial court must give all requested instructions which are material and relevant to the litigation. Reeves v. Gulf States Utilities Co., 312 So.2d 118 (La.App. 1st Cir.1975), on remand 327 So.2d 671 (La.App. 1st Cir.1976). The judge need not use the exact language submitted by the party, but the instructor must adequately reflect the law on the issues presented, Gonzales v. Xerox Corporation, 307 So.2d 153 (La. App. 1 Cir.1974), nor must a judge give requested special charges where they were included in the general charges. Morales v. Toye Bros. Yellow Cab Co., 246 So.2d 52 (La.App. 4th Cir.1971), writ refused, 258 La. 772, 247 So.2d 867 (1971).

The trial court did not err in refusing to grant plaintiff’s special jury charge. The trial court essentially discussed the requested special charge within the general jury instructions, although the exact language submitted by plaintiff’s counsel was not used. Therefore, this assignment of error is without merit.

Therefore for the above and foregoing reasons, the judgment of the trial court is affirmed at the cost of Missouri Pacific Railroad Company.

AFFIRMED.


source: Caselaw Access Project

author: PONDER, Judge.

license: Public Domain

text:
    Christopher M. MEEKS v. ROMEN PETROLEUM, INC.
    No. 83 CA 0644.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Writ Denied Sept. 28, 1984.

      John C. Herbert, New Orleans, for plaintiff-appellee Christopher M. Meeks.
    Ronald L. Menville, Sr., Houma, for defendant-appellant Romen Petroleum, Inc.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

In this suit for breach of contract, defendant appealed the judgment ordering it to pay plaintiff $46,600.00 in damages for failing to perform on a contract to buy ten royalty acres.

The issues are: (1) plaintiff’s status as agent or vendor, in arranging the sale; (2) whether plaintiff timely presented defendant with merchantable title; (3) whether the contract was subject to any suspensive conditions other than approval of title; and (4) if so, whether plaintiff complied with the other suspensive conditions.

We affirm.

Plaintiff, an independent petroleum consultant and landman, approached defendant with a proposal to sell defendant up to 20 acres of Callicutt royalty in Pointe Coupee Parish, which plaintiff did not own but which he could buy from the then owners. This was explained to defendant’s employee. After some negotiation, defendant informed plaintiff that defendant would agree to purchase 10 royalty acres, at the price of $11,000.00 per acre, plus a six percent commission on the purchase price for plaintiff, and gave plaintiff written evidence of its intent to purchase.

Plaintiff then negotiated the purchase of the Callicutt royalty from the owners. The deeds transferring ownership to plaintiff were placed in a bank, to be released to plaintiff only after he paid a draft of $87,-500.00. Plaintiff then executed a deed transferring ownership from himself to defendant and deposited it in the bank along with defendant’s ten-day sight draft for $116,600.00, expressly conditioned upon proof of merchantable title.

At some point, the draft was extended past its original due date by agreement of plaintiff and defendant. On February 15, plaintiff presented defendant with a title opinion plus the curative documents deemed necessary to correct title. On the 18th, the draft was returned unpaid by the defendant. According to plaintiff, Men-ville, defendant’s president, informed him that Romen just did not have the cash on hand to pay the draft. According to Men-ville, he refused to pay the draft because (1) plaintiff failed to provide merchantable title, and (2) plaintiff failed to provide certain promised technical data on the productivity of the Callicutt well. Plaintiff borrowed money to comply with his contract to purchase the Callicutt royalty and to pay the broker’s commission on the sale. He eventually sold the royalty for $7,000.00 per acre. Plaintiff then successfully sued defendant for breach of contract for the amount of $46,600.00, representing the difference between the Romen contract price and the price at which the royalty was subsequently sold, plus the cost of the broker’s commission.

WAS PLAINTIFF DEFENDANT’S AGENT?

Defendant contends that the trial court erred in finding that plaintiff was acting as an independent vendor rather than as defendant’s agent. Both plaintiff and defendant’s former employee testified that it was well known that plaintiff was acting as vendor. Experts testified that the procedure was often used in dealing in royalties, leases and other oil-related transactions. The facts do not support defendant’s assertion that an agency relationship existed in this case.

WAS THERE MERCHANTABLE TITLE?

Defendant next contends that the trial court erred in finding that plaintiff timely presented proof of merchantable title to the Callicutt royalty. Defendant argues that whether title is merchantable must be determined solely from the public records. Because plaintiff was not record owner of the royalty at the time he attempted to sell it to Romen, defendant contends the title was unmerchantable and Romen was thus justified in refusing to pay the draft. Defendant argues alternatively that the title was not merchantable because defects in the chain of title were not cured in a timely fashion.

Our Supreme Court addressed the issue of merchantability in Young v. Stevens, 252 La. 69, 209 So.2d 25 (La.1967):

“Property has a merchantable title when it can be readily sold or mortgaged in the ordinary course of business by reasonable persons familiar with the facts and questions involved.”

There is no requirement in law which mandates that title to real property be entirely of public record in order to be deemed merchantable, absent a contractual agreement expressly or by necessary implication calling for a perfect record title. Westerfield v. Cohen, 130 La. 533, 58 So. 175 (La.1912). One may contract to sell what one does not own, so long as one is able to deliver good and merchantable title when the time for delivery arrives. Radecker v. Walko Builders, Inc., 130 So.2d 684 (La. App. 4th Cir.1961). See also Caplan v. Airport Properties, Inc., 231 La. 1071, 93 So.2d 661 (La.1957).

Romen was furnished with a rough copy of a title opinion by a reputable attorney at plaintiffs request, several days pri- or to the draft’s due date. The opinion recommended curative action be taken in three instances. The plaintiff obtained curative documents in satisfaction of the requirements and submitted them, along with the final title opinion, to Romen’s office on February 15, the first due date. La.C.C. art. 2058. As of that date the draft had been extended. Defendant made no request for a supplemental title opinion.

The trial court apparently found the testimony of the plaintiff more credible than that of Mr. Menville, and accepted plaintiff’s version of events. His determination was reasonable and we thus find no manifest error. Stern, defendant’s employee, executed two letter agreements indicating Romen’s agreement to purchase, upon plaintiff’s request; plaintiff explained that he needed a guarantee prior to purchasing the royalty himself. At trial defendant presented no evidence of any adverse claims to the Callicutt royalty which might reasonable have led to litigation over the title, nor did it argue any defects in the title other than the fact that plaintiff was not record owner.

WAS PROVIDING TECHNICAL DATA A CONDITION OF THE CONTRACT?

Defendant contends that the contract of sale of the royalty was subject to a suspensive condition requiring delivery to Romen of technical data proving the productivity of the Callicutt well.

LSA-C.C. art. 2275 provides in pertinent part:

“Every transfer of immovable property must be in writing....”

LSA-C.C. art. 2276 further states:

“Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.”

These provisions prohibit the introduction of parol evidence to vary, alter or contradict the terms of a contract which is required to be in writing. Andrew Dev. Corp. v. West Esplanade Corp., 347 So.2d 210 (La.1977). Mineral rights, including royalties, are classified under the Mineral Code as incorporeal immovables and subject to codal articles respecting immovable property. Guy Scroggins, Inc. v. Emerald Exploration, 401 So.2d 680 (La.App. 3rd Cir.1981), writ denied 404 So.2d 1257 (1981).

While there are exceptions to the parol evidence rule, they are not applicable in this case. The written agreement is clear and unambiguous. The contract as written sets forth obligations of both parties. Defendant seeks to introduce evidence of an additional obligation on the part of plaintiff. Defendant’s argument that the parol evidence is offered not to contradict the terms of the written contract but to prove that no contract ever came into existence at all has no merit.

Furthermore, the trial court made a determination of credibility which we see no reason to disturb. Plaintiff and Stern testified that there was no agreement that plaintiff provide more technical data; Men-ville and another testified to the contrary. Each side presented an expert witness to corroborate the reasonableness of its position. We find no manifest error in the trial court’s determination.

This finding makes it unnecessary to determine whether any additional suspensive conditions were met.

For these reasons, the judgment is affirmed at appellant’s costs.

AFFIRMED.

      . At that time, Callicutt royalty was considered "proven", i.e., a well had been drilled on the Callicutt tract, an area roughly 2300 acres in size, and although drilling had not yet been completed, there had been reports that the well would be productive. Specific information on the well’s productivity, potential or actual, in the form of test results, completion reports or well logs, was unavailable to the general public.


text:
    Phillip W. HOUSE and Karen House v. Joe E. THOMPSON and ABC Insurance Company.
    No. 83 CA 0695.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Writ Denied Sept. 28, 1984.

      Michael C. Palmintier, Baton Rouge, for plaintiff-appellee Phillip W. House and Karen House.
    Joe E. Thompson, pro se.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Defendant appealed from an adverse judgment in a suit for damages arising from a “slip and fall”, which occurred on premises owned by defendant and leased to plaintiff, Phillip House. Plaintiffs alleged that Karen House was climbing down an attic stairway when she slipped on water leaking from a defective air conditioning unit and fell, sustaining injury to her knee. Plaintiffs filed suit for damages on four theories of recovery: LSA-C.C. arts. 2315, 2317, 2322 and 2695.

The case was tried to a jury. At the close of plaintiffs’ presentation, when defendant moved for a directed verdict, the trial judge granted the motion as to plaintiffs’ case under LSA-C.C. arts. 2695 and 2317, but denied relief as to LSA-C.C. arts. 2322 and 2315. After defendant presented his evidence, the case was submitted to the jury solely on the art. 2322 theory of liability. Judgment was rendered pursuant to jury verdict for $50,000.00 in favor of plaintiffs and against the defendant. On a motion for new trial, the trial court entered a remittitur for $27,500.00 or granted a new trial in the alternative. After plaintiff applied for writs and was ultimately denied, defendant appealed, asserting six assignments of error.

The issues in this case are: 1) whether the trial court erred in overruling defendant’s motion for a directed verdict under LSA-C.C. arts. 2315 and 2322; 2) whether the trial court erred in allowing the jury to reconsider its answers to the interrogatories submitted to it; and 3) whether the jury erred in its determination that (a) the leased premises were defective within the meaning of LSA-C.C. art. 2322, (b) Mrs. House’s injuries were caused by that defect, (c) plaintiffs were not barred from recovery by their own fault, and (d) defendant knew or should have known of the defect or had notice of the defect and failed to fix it within a reasonable time.

We affirm.

The central air conditioning unit in the house leased by plaintiffs from defendant was located in the attic, accessible only by a collapsible stairway built into the attic floor. At the time of the events precipitating this suit, the unit was at least 8 or 9 years old. Underneath the unit’s evaporator/condensor coil, an emergency overflow pan was attached. This pan was designed to catch dripping water condensed from the moisture in the air by the coil. Attached to this pan was a device called a float switch which, triggered by rising water, would shut off the air conditioning unit to prevent overflow from the drain pan.

Between the overflow pan and the coil was a second drain pan. This pan was not an original component of the unit but was instead a “jury-rigged” device commonly used as a stop-gap measure to save the expense of replacing a coil when it malfunctioned. Connected to the secondary drain pan was a drain pipe, intended to drain off excess water gathered in that pan. In the event of overflow or malfunction in the secondary drain pan, the overflow pan was intended to catch the water.

This unit began to malfunction, as the coil began to produce an excessive amount of water, rapidly filling the emergency overflow pan and causing the unit to cut off. Plaintiffs called defendant immediately to inform him of the problem but defendant did not complete repairs to the unit until over two weeks later. In the meantime, to obtain some relief from the heat, plaintiffs continued to operate the cooling unit at intervals by periodically climbing the attic stairs and draining the water from the emergency overflow pan.

At some point water began leaking from the unit to the attic floor. Plaintiffs testified that water began to drip to the attic stairs and that they informed defendant of that fact as soon as they noticed it. Defendant testified that he was eventually told of leaking water, but that he was never informed it was reaching the stairs. There was also conflicting testimony about whether defendant ever told plaintiffs they could operate the unit by periodically draining the overflow pan. In any case, two to three days before the unit was repaired Mrs. House was descending from the attic with a small tub of drainage water when she slipped and fell down the stairs.

In his first assignment of error, defendant contends that the trial judge erred in overruling his motion for a directed verdict under LSA-C.C. arts. 2315 and 2322. Under LSA-C.C.P. art. 1810, the trial judge has much discretion in determining whether or not a motion for directed verdict should be granted. Vallery v. All American Life Ins. Co., 429 So.2d 513 (La.App. 3d Cir.1983), writ denied 434 So.2d 1091, amended 434 So.2d 1100; Pellerin v. Tudor Construction Co., 414 So.2d 403 (La.App. 1st Cir.1982), writ denied 420 So.2d 455. We find no abuse by the trial court.

Defendant next assigns as error the trial judge’s action in allowing the jury to reconsider its answers to the interrogatories submitted to it; he also urges as error the trial judge’s refusal to grant a mistrial moved by defendant on that ground.

The trial judge instructed the jury as to the defenses available to defendant, including contractual release as provided for in LSA-R.S. 9:3221. Thereafter, with brief explanation, the trial court submitted the following interrogatories, which were answered as follows:

1. Was Mr. Thompson the owner of the premises? Yes.

2. Were the premises defective? Yes.

3. Did a defect in the premises cause Mrs. House’s injuries? Yes.

4. Was Mrs. House fully aware that the defect in the premises was so dangerous that the premises could not be used even with the exercise of due care, and nonetheless proceeded to use them and was injured? No.

5. Did Mr. House lease the premises from Mr. Thompson and in the lease assume responsibility for the condition of the premises? No.

6. Was Mrs. House on the premises with consent of Mr. House? Yes.

7. What amount is Mrs. House entitled to recover for her injuries, if any? $50,-000

Before submitting the interrogatories, the trial court instructed the jury as follows:

“The other defense that Mr. Thompson has raised is that the lessee, the person who signed the lease — Mr. House — has assumed responsibility for the condition of the premises just releasing him, Mr. Thompson, of the responsibility to Mr. House or anyone else on the premises with the permission of the lessee.
“Now R.S. 9:3221 reads, and I quote, ‘The owner of the premises leased under a contract, written or oral, it makes no difference, whereby the lessee, the person leasing it, assumes responsibility for their condition, is not liable for injury caused by any defect therein to the lessee or to anyone on the premises, who derives his or her rights to be there from the lessee, unless the owner knew or should have known of the defect and had received notice thereof and failed to remedy it within a reasonable time.’ The law provides that Mr. House is the lessee; he signed the lease. The law provides that Mrs. House is a third person. Now the question is, is she on the premises with the consent of her husband, the lessee? And with regard to this particular defense, there has to be agreed upon, either orally or in writing, Mr. Thompson has this particular burden and must convince you by a preponderance of the evidence of these items, (1) that there was a contract that provided this language, either written or oral, between him and the lessee; number (2) that the defect was in the premises leased and not of course somewhere else; and, number (3) that the agreement clearly placed the responsibility for the defect on the lessee, Mr. House. You as jurors will have to look at the evidence and make this determination. Now, if Mr. Thompson proves to you by a preponderance of the evidence these three items, if he proves to you that there was a contract between him and the lessee and that the defect was in the leased premises and that the agreement between him and the lessee places responsibility for the defect on him, Mr. House, then you should return a verdict in favor of Mr. Thompson. However, if he does not convince you of those things, or if you’re convinced that Mr. Thompson knew or should have known of the defect and has received notice, written or oral, of it and failed to repair it within a reasonable time, then this defense is no good. So, to repeat that, if there is such a contract and if there is a showing that there is a defect in the rented premises, and if the contract provides that the lessee will assume responsibility of the defect, then Mr. Thompson has no liability unless it is shown that he knew or should have known of that defect or had received notice of it and failed to repair it within a reasonable time.”

When he reached interrogatory number 5 he commented to the jury:

“This is the R.S. 9:3221 I told you about. Remember when I told you about that, I told you that did not apply if the person knew of the defect or should have known of the defect or had notice of it and didn’t repair it within a reasonable time.”

That was the extent of his explanation of interrogatory number 5.

When the jury returned its verdict, the trial court polled the jury members on their answers to each interrogatory. He indicated to the jury that by having answered “yes” to interrogatory number 5, their answers to numbers 6 and 7 were unnecessary. Several jurors immediately informed him that such result was not their intention. The court explained that when he gave his initial instruction on interrogatory number 5, he indicated that an answer of “yes” meant two things: (1) that the jury found plaintiff had contractually assumed responsibility for injuries caused by defects in the leased premises and (2) that the jury found that defendant did not know or should have known of the defect nor did he receive notice of it and fail to repair it within a reasonable time. The jury informed him that they had not understood the question in that way. The trial court then resubmitted the interrogatories to the jury for further deliberation. The jury returned with an answer of “no” to interrogatory number 5, with the other answers unchanged.

It is clear that the interrogatories given to the jury were confusing and incomplete. The interrogatory in its explicit words made no reference to the knowledge of Mr. Thompson. This confusion could have been removed by another interrogatory as to whether the defendant knew or should have known of the defect causing injury or had received notice of it and failed to repair it within a reasonable time.

Defendant argues that LSA-C. C.P. art. 1811 (prior to its amendment in 1983) dealing with special verdicts, applies in these circumstances; art. 1811 does not provide for resubmission of interrogatories to the jury for reconsideration of inconsistent answers. We believe that LSA-C.C.P. art. 1812 applies. The seventh interrogatory was tantamount to a general verdict in favor of plaintiffs. Andrepont v. Naquin, 345 So.2d 1216 (La.App. 1st Cir.1977). Under LSA-C.C.P. art. 1812, the trial court could do one of three things: (1) direct the entry of judgment in accordance with the answers, notwithstanding the general verdict, (2) order a new trial or (3) return the jury for further consideration of its answers and verdict. Which option to exercise is a matter within the discretion of the court. We find no abuse of discretion in this instance.

Plaintiffs acknowledged that the lease Mr. House signed included a clause absolving the defendant of any responsibility for injuries caused by defects in the leased premises. Absent the court’s instruction, the jury’s initial answer to the literal terms of interrogatory number 5 was correct. However, under the instructions given the second answer included a consideration of R.S. 9:3221, and was correct under the evidence. We find no error.

Defendant contends in his final assignments of error that the jury’s answers finding the elements of liability under C.C. art. 2322 and the absence of victim fault were erroneous.

Article 2322 imposes liability upon the owner of a building to persons injured through its “ruin” whether due to a vice in its original construction or through his or her neglect to repair it. Fonseca v. Marlin Marine Corp., 410 So.2d 674 (La.1981). Jurisprudence has included within the term “building” any “necessary appurtenances to structures and movables made immovable by attachment.” Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1979); Harris v. Gulf States Utilities Co., 391 So.2d 1270 (La.App. 1st Cir.1980), writ denied 396 So.2d 920 (La.1981). See also, Sumner v. Foremost Insurance Co., 417 So.2d 1327 (La.App. 3d Cir.1982); Boudoin v. Schwegmann Brothers Giant Supermarket, 371 So.2d 370 (La.App. 4th Cir.1979); Crawford v. Wheless, 265 So.2d 661 (La.App. 2d Cir. 1972). The central cooling unit in the attic of the home owned by defendant is an “appurtenance” within the terms of the jurisprudence.

The evidence supports the jury’s conclusion that the cooling unit was defective, in that (1) its evaporator coil was malfunctioning, resulting in the unit being difficult to operate except for brief periods of time, and (2) whatever the cause, the unit was leaking water.

Plaintiff must prove that the defective cooling unit was a cause-in-fact of her injury, a substantial factor in bringing about her injury. Dixie Drive-it Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (La.1962). The jury found that plaintiff’s injury was caused by the defect and we cannot say that his decision was manifestly erroneous.

An owner may be exculpated from liability under Article 2322 for a premises defect if he proves “victim fault”. Loescher v. Parr, 324 So.2d 441 (La.1975); Dorry v. LaFleur, 399 So.2d 559 (La.1981). In reference to this defense, the trial judge’s instruction to the jury seems to equate “victim fault” with assumption of the risk. The jury found that the plaintiff had not voluntarily assumed a known risk of injury. The jury obviously believed that plaintiff did not know of the danger involved or did not fully appreciate the risk of injury from water on the stairs. The jury’s conclusion that plaintiff did not voluntarily assume the risk of injury is not clearly wrong.

Alternatively, defendant argues that plaintiff was contributorily negligent. Our review of the evidence supports a conclusion that plaintiff acted reasonably and prudently under the circumstances, and exercised due care to avoid injury. Plaintiff was not contributorily negligent.

Defendant contends as well that the jury erred in not exculpating him from liability under LSA-R.S. 9:3221. There is ample evidence to support a conclusion that defendant received notice of the defect but failed to repair it within a reasonable time. Plaintiff first notified defendant through his wife on April 5th. Two days later a repairman arrived but departed without fixing the unit, telling plaintiff that he would have to get specific authorization from the defendant. The repairman’s employer testified that his office contacted defendant that day to request authorization but defendant declined to engage their services. Defendant stated he was not informed until several days later that the unit had not been repaired. There was also a dispute over when plaintiff informed defendant of water leaking and whether defendant was ever told that water was leaking onto the stairs. Defendant admitted he knew of leaking water on the 13th. The unit was not finally repaired until the 21st or 22nd, and expert testimony indicated the repair could have been accomplished within several hours.

For the above reasons, the judgment of the trial court is affirmed. All costs are to be paid by defendant.

AFFIRMED.

      .Art. 2315 provides in pertinent part:
      Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
      Art. 2317 provides in pertinent part:
      We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.
      Art. 2322 provides:
      The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.
      Art. 2695 provides:
      The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.

      . Only Joe Thompson ever answered plaintiffs' suit; testimony at trial established that Thompson's insurance did not include coverage for plaintiff’s injury.

      . The trial court instructed the jury on the elements of liability and defenses available under C.C. art. 2322, reserving instruction on C.C. art. 2315 unless and until the jury returned with a verdict for defendant under C.C. art. 2322.

      . LSA-R.S. 9:3221 provides:
      The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.

      . LSA-C.C.P. Art. 1812 (prior to 1983 amendment) provided, in pertinent part:
      ‘‘The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict....

      When the answers are consistent with each other but one or more is inconsistent with the general verdict, the court may direct the entry of judgment in accordance with the answers, notwithstanding the general verdict, or may return the jury for further consideration of its answers and verdict, or may order a new trial.
      When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, the court shall not direct the entry of judgment but may return the jury for further consideration of its answers or may order a new trial.”

      . The defense of assumption of risk presupposes that (1) the plaintiff had some knowledge of the danger; (2) she understood and appreciated the risk therefrom and (3) she voluntarily exposed herself to such risk. Dorry v. LaFleur, supra, p. 562.

      . Even had we found plaintiff contributorily negligent, that fault would not necessarily bar her recovery. Under what circumstances a plaintiffs contributory negligence should bar recovery in a strict liability case must be determined on a case by case basis. Dorry v. LaFl-


author: CHEHARDY, Judge.

text:
    STATE of Louisiana v. Anthony L. DITCHARO and Gerald D. DiMarco.
    No. 83-KA-638.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 1984.

      John M. Mamoulides, Dist. Atty., 24th Judicial Dist., Parish of Jefferson, W.C.D. Friederichsen, William C. Credo, III, Asst. Dist. Attys., Gretna, for appellee; Louise Korns, Asst. Dist. Atty., Gretna, of counsel.
    George C. Ehmig, Gretna, for appellants.
    Before CHEHARDY and GRISBAUM, JJ., and CLEVELAND J. MARCEL, Sr., J. Pro Tern.
   CHEHARDY, Judge.

On December 20, 1982, Anthony L. Dit-charo, Gerald A. DiMarco and Randy Thi-bodeaux were charged by bill of information with violation of LSA-R.S. 14:62.2, simple burglary of an inhabited dwelling. All pleaded not guilty. On April 5, 1983, after a jury trial, Ditcharo and DiMarco were found guilty as charged. Thibodeaux was acquitted and released.

After denial of the convicted defendants’ motion for new trial, Ditcharo was sentenced to ten years at hard labor, DiMarco to six years at hard labor. The first year of both sentences was to be served without benefit of parole, probation or suspension of sentence. From this judgment Ditcharo and DiMarco have appealed.

FACTS

Victor Barca, an acquaintance of defendants who assisted them in the burglary, testified at trial he met with Gerald DiMar-co, Anthony Ditcharo and Randy Thibo-deaux on the evening of October 22, 1982. On the suggestion of Ditcharo, they discussed burglarizing the home of Yvonne DiMarco, widow of Gerald DiMarco’s deceased brother David, and planned their course of action. Barca was to get Mrs. DiMarco and her friend John Smith out of the house and contact the others to begin the job.

Barca went to Mrs. DiMarco’s and invited her and Smith to dinner, but they refused. Mrs. DiMarco later testified they were made uncomfortable by Barca’s nervous demeanor and wanted to be alone. In an attempt to rid themselves of Barca’s company, they told him they planned to visit friends and offered to give him a ride. They dropped him off at a gasoline station, from which he telephoned the defendants to advise them the victims were gone. The defendants picked up Barca, drove to the DiMarco residence and broke into the house. One of Mrs. DiMarco’s neighbors testified he had seen DiMarco, Ditcharo, Barca, and a fourth man whom he did not recognize, driving down the street that evening between 9:30 and 10:00.

Meanwhile, Mrs. DiMarco and her companion became increasingly suspicious in recalling Barca’s behavior. Accordingly, they decided to leave their friends and return home. They returned home about half an hour later to see Gerald DiMarco and Anthony Ditcharo standing in the driveway holding Mrs. DiMarco’s microwave oven. The two men saw them and dropped the oven; Ditcharo grabbed a gun. At that moment Barca came out the kitchen door. All four intruders then ran to the back yard and jumped the fence, fleeing only with the small objects stuffed into their pockets.

Mrs. DiMarco and Smith found the house ransacked, with jewelry boxes scattered, and kitchen and entertainment appliances on the carport. Mrs. DiMarco eventually notified the police and an investigation was conducted. The four subjects were later arrested and prosecuted for simple burglary of an inhabited dwelling.

ASSIGNMENTS OF ERROR NOS. 1, 2 and 7

These three assignments of error were submitted with the record on appeal, but have not been briefed. Accordingly, we consider them to have been abandoned. Uniform Rules, Courts of Appeal, Rule 2-12.4; State v. Triplett, 434 So.2d 1270 (La.App. 1st Cir.1983); State v. Dirden, 430 So.2d 798 (La.App. 5th Cir.1983).

ASSIGNMENT OF ERROR NO. 3

Defendants contend the trial court committed reversible error in refusing to permit defense counsel to cross-examine the state’s prosecuting witness, Mrs. Yvonne DiMarco, relative to her antagonism toward the DiMarco family; defendants assert this has a direct relevancy to Mrs. DiMarco’s motive in placing charges against the defendants.

According to the defense, at David Di-Marco’s funeral on July 7, 1981, Yvonne approached Gerald to ask him to intercede with his mother about transferring to Yvonne his mother’s inherited interest in some separate property in St. Tammany Parish that David had owned. Apparently Gerald refused Yvonne’s request, and the defense contends this has resulted in a distinct bias and prejudice on the part of Yvonne against Gerald. The defense suggests this is why she brought burglary charges against her former brother-in-law and his codefendants.

At trial, defense counsel attempted to question Mrs. DiMarco relative to David DiMarco’s funeral and the St. Tammany parish land. The State objected, and the court sustained the objection upon learning the funeral in question took place in 1981. Apparently the judge concluded the incident was too remote because it occurred over 15 months prior to the burglary and 21 months before trial.

The defense argues that the court’s action denied defendants their right to cross-examine Mrs. DiMarco as to the whole case, denied them the right to introduce impeachment evidence, and prohibited counsel from explaining the reasons for such questions. Because he was not allowed to cross-examine Mrs. DiMarco concerning her failed attempt to gain possession of her late husband’s property, the defense submits that the trial court’s ruling constituted reversible error.

As authority for this argument, the defendants cite LSA-R.S. 15:280 (scope 'of cross-examination), LSA-R.S. 15:486 (right of each side to impeach) and LSA-R.S. 15:492 (questions concerning particular facts showing bias, interest or corruption of witness). They also cite several cases to show, first, that a witness may be examined as to the whole case and may be impeached by evidence not independently admissible, State v. Morgan, 367 So.2d 779 (La.1979); and second, that a witness’ personal bias against a defendant is a proper means of impeachment, State v. Bretz, 394 So.2d 245 (La.1981); State v. Robinson, 337 So.2d 1168 (La.1976).

In State v. Robinson, supra, the court stated that although Louisiana jurisprudence has generally permitted the full scope of cross-examination to expose any bias or interest of the witness that might influence his perceptions or color his testimony, the bias permitted to be exposed must be personal against the defendant rather than general in nature, and the interest must be particular as to the case. General prejudices or special biases or interests too irrelevant to or too remote from issues of the case at trial are considered improper as impeachment of a witness for this purpose.

The trial judge is vested with wide discretion to determine the relevancy of evidence, and his ruling will not be disturbed absent a clear showing of abuse of discretion. State v. Miles, 402 So.2d 644 (La.1981); State v. Garrison, 400 So.2d 874 (La.1981).

The incident concerning the St. Tammany property was remote from the crime here. Further, Mrs. DiMarco’s request to Gerald DiMareo was that he act as intermediary; her grievance, if any, was not against him. We conclude the district court was correct in disallowing further cross-examination of the witness on this issue.

ASSIGNMENT OF ERROR NO. 4

Defendants argue the court committed reversible error in refusing to allow the defense the right to obtain handwriting specimens from Mrs. DiMareo. They claim these are relevant to her offering to sell dangerous drugs to a member of the Di-Marco family, thus impeaching her testimony.

During cross-examination of Mrs. DiMar-co, defense counsel asked her to write a few words for him. The State objected, on the basis of irrelevancy, and the judge immediately requested the jury to leave the room. Because defense counsel refused to divulge his reasons for the handwriting sample, the court sustained the State’s objection.

The defense then attempted to lay a predicate for the request by asking the witness whether she had ever been a drug dealer, which she denied. Counsel then asked whether she had ever given a written note to one Michael DiMareo, a retarded cousin of Gerald DiMareo. The State objected to the questioning as impermissible, and the defense argued he was entitled to test the witness’ integrity. The trial court ruled that no foundation had been laid because the date of the note was unknown and could not be tied to the burglary, so the witness would not be required to give a handwriting sample.

Because the attempt to impeach Mrs. DiMareo was blocked, defendants argue the trial court committed reversible error. They contend that once she denied writing the note, they should have been allowed to introduce proof to the contrary by obtaining a handwriting sample for comparison with the note, for it could not be introduced otherwise. (Their objective was to disprove Mrs. DiMarco’s denial of narcotics dealing by establishing she had written an unsigned note referring to a drug deal.)

LSA-R.S. 15:493 requires that a foundation be laid prior to introduction of any evidence contradictory to his testimony. If the witness does not distinctly admit making such a statement, evidence that he did make it is admissible.

Here, Mrs. DiMareo did not respond to the question about the note. The judge requested a predicate as to the time frame in which the note was made, and defense counsel admitted he was unable to establish that. Because the witness did not admit giving a note to Michael DiMareo, and the defense could not lay a proper foundation for impeachment, the trial court was correct in ruling the note inadmissible. State v. Albert, 414 So.2d 680 (La.1982).

Further, if the defense was attempting to impeach Mrs. DiMareo on facts collateral to the main issue at trial, such questioning is clearly improper. LSA-R.S. 15:494. The defense’s attempt to show that the witness had been involved in drug trafficking might have a bearing on the jury’s opinion of her, but it is purely a collateral issue not relevant to the question of the defendants’ culpability of the crime charged. There is no showing that evidence of the witness’ possible criminal behavior would prove her to be biased or prejudiced against the defendants.

ASSIGNMENT OF ERROR NO. 5

Defendants aver the court committed reversible error in denying the defendants the right to examine witness Mrs. Chrsie DeQueant about a telephone conversation between Mrs. DeQueant and Mrs. Yvonne DiMarco. Defendants state such examination was intended to impeach Mrs. DiMar-co’s testimony and to show she made statements against her interest.

The conversation is alleged to have occurred between the time Mrs. DiMarco discovered the burglary and the time she notified the police. Mrs. DiMarco denied making such a telephone call. The defense then called Mrs. Chrsie DeQueant, Yvonne DiMarco’s former mother-in-law, to the stand. Mrs. DeQueant testified her son Gerald and his wife had spent the entire evening at her house, having dinner and watching television. She stated they left about 10:40 p.m., and that shortly thereafter she received a telephone call from Yvonne.

Mrs. DeQueant was not allowed to relate the substance of the conversation, on the ground it was hearsay. The trial court ruled that defense counsel could elicit testimony to impeach Mrs. DiMarco’s denial she made a phone call, but for that purpose only; the witness was not to respond as to the contents.

Defendants contend that the evidence is admissible as a statement against interest. They argue it was reversible error to refuse to allow further examination to determine what was said so as to impeach Mrs. DiMarco’s testimony.

In State v. Martin, 356 So.2d 1370 (La.1978), the court noted that on occasion it has considered an out-of-court assertion by a testifying witness not hearsay and therefore admissible. Upon reflection, however, the court concluded that “the hearsay character of a proffered out-of-court assertion is not altered by the fact that the statement was made by a person who appears in court as a witness.” 356 So.2d at 1374. The court stated,

“ * * * Therefore, in criminal cases we reject the position taken by those who would admit prior statements of witnesses in toto. * * The better view allows only certain prior statements of witnesses thought by circumstances to be free of the danger of abuse, namely, statements of identification, inconsistent statements, and consistent statements where admissible to rebut a charge of ‘recent fabrication.’ [Citations omitted.]” 356 So.2d at 1374, note 3.

If the conversation involved a statement contradicting Mrs. DiMarco’s in-court testimony, the trial court correctly refused to allow its introduction because no proper foundation had been laid. Mrs. DiMarco was not specifically referred to the gist of the alleged conversation and so was not in a position to admit or deny her prior statement. See LSA-R.S. 15:493.

Defendants have not mentioned what the alleged statement against interest by Mrs. DiMarco concerned. It is impossible to rule on the relevancy of such a statement without some inference as to its content.

Mrs. DeQueant was able to testify that Mrs. DiMarco had called her the night of the burglary; Mrs. DiMarco denied the call. This contradictory evidence served to impeach the State’s witness. It was left to the jury, as finder of fact, to weigh the credibility of the witnesses. LSA-C.Cr.P. art. 802(3). We find no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 6

Defendants contend the court committed reversible error in overruling their objection to the State’s reference to defendants as “bad guys” during closing argument, because no evidence of good character of defendants had been introduced at trial. They further raise as error the court’s comment to the jury that the State’s remark was to be taken as argument only, and the court’s denial of their subsequent motion for mistrial.

During closing argument, the prosecutor reviewed the testimony of the witnesses, summing it up by saying that the State’s witnesses all had told the truth. He then apparently intended to go over Victor Bar-ca’s testimony. Barca, one of the four originally charged with the crime, had agreed to testify against the remaining three defendants.

The prosecutor stated, “Victor Barca is obviously a bad guy as are these defendants — ,” at which point he was interrupted by defense counsel’s objection. The defense maintains the trial judge should have admonished the jury to disregard that remark. Instead, the judge advised the jurors,

“The characterization as stated by the district attorney will be taken by the jurors as further argument — and argument only — not proving anything by the State that one who commits a burglary is a bad guy.
“It is up to the jury to determine if these defendants have, in fact, committed a burglary.”

The defense cites numerous cases for the proposition that if the defense does not bring in character witnesses, the state cannot present evidence of the defendant’s bad character. In addition, LSA-C.Cr.P. art. 774 provides that the argument shall not appeal to prejudice. The defense contends the “bad guys” remark created prejudice in the jurors’ minds, but no proper admonition was given to disregard the remark. Therefore, argue defendants, a mistrial should have been granted.

LSA-C.Cr.P. art. 770 lists the types of comments considered to be grounds for mistrial:

“Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1)Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.
“An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.”

The remark made here did not fall within the four possibilities listed in Article 770. However, the comment did fit within the scope of LSA-C.Cr.P. art. 771, which provides:

“In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
“In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.”

The judge’s admonishment in this case was in the form of an explanation that the prosecutor’s statement was argument only. In his instructions to the jury, the trial judge again reminded the jurors that in closing argument the attorneys may present their contentions and conclusions concerning the evidence, but that closing arguments are not to be considered as evidence.

Although the trial court has the discretion to grant a mistrial when an admonition alone will not insure the defendant a fair trial, a mistrial is a drastic remedy, warranted only when trial error results in prejudice to the defendant so substantial as to deprive him of a fair trial. State v. Goods, 403 So.2d 1205 (La.1981).

We conclude that the trial court’s immediate explanation and subsequent instruction to the jury clarified the matter. Because the direct evidence presented by the State was overwhelming, we cannot find that the single remark by the prosecutor that the defendants were “bad guys” contributed to the verdict. Accordingly, we find no merit to this assignment of error.

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED.


author: BOWES, Judge.

text:
    STATE of Louisiana v. Walter DAVIS.
    No. 83-KA-836.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 1984.

      William C. Credo, III, Asst. Dist. Atty., Parish of Jefferson, Gretna, for plaintiff-appellee.
    Lawrence E. Biri, Jr., Morrison & Biri, Metairie, for defendant-appellant.
    Before BOWES, GAUDIN and GRIS-BAUM, JJ.
   BOWES, Judge.

Walter Davis was charged by Bill of Information with possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. He was arraigned on July 7,1983, and entered a plea of not guilty. On October 19, 1983, a hearing on defendant’s motion to suppress the evidence was held, which motion the trial court denied. On October 27, 1983, the defendant withdrew his former plea of not guilty and entered a plea of guilty as charged, reserving his right under State v. Crosby, 338 So.2d 584 (La.1976), to appeal the trial court’s ruling on his motion to suppress. The defendant waived legal delays for sentencing, and the trial court sentenced Davis to serve three years at hard labor without benefit of parole, probation or suspension of sentence. Defendant now appeals the trial court’s ruling on the motion to suppress.

FACTS

During the late evening hours of June 3, 1983, defendant Walter Davis was a passenger in a vehicle which was owned by his wife and which was being driven by one Michael Williams. The car was travelling without running lights, brake lights or tail lights. As the vehicle proceeded north on Barataría Boulevard in Marrero, it was stopped by a police unit with flashing lights. Deputies Claude Wood (a reserve officer) and Wayne Kron, of the Jefferson Parish Sheriff’s office, ordered the driver, Williams, from the vehicle and issued numerous traffic citations. The deputies then ran Williams’ name over the police radio. This check produced an outstanding attachment from the City of Gretna. They, therefore, placed Williams under arrest, handcuffed him, and placed him in the rear of one of the vehicles.

What transpired next is a matter of dispute. The deputies testified at the motion to suppress that they noticed Davis was nervous, fidgety, and moving uneasily in the passenger seat of the stopped vehicle. Deputy Wood stated that Davis was ordered from the vehicle for safety reasons. Both officers claimed that as Davis exited the vehicle, they noticed a bulge under his shirt which they feared might be a weapon, and which, after a search of defendant, proved to be a gun. Davis was then arrested for carrying a concealed weapon.

Walter Davis, on the other hand, stated that after he exited the vehicle, the deputies asked him to produce identification and, when he was unable to do so, informed him he was under arrest for not having adequate identification. As he was placed on the side of the car and questioned by one officer, Davis testified, the other officer searched the automobile and returned with the pistol, for which Davis was arrested.

The trial judge made no factual determination as to which version he believed. In his oral reasons for denying the motion, he explained:

I think the officers have a right to make an investigatory stop and have these people certainly when they’re caught [sic], which is readily admitted to by the defendant they were driving without brake lights.
Now whether the gun was on Mr. Davis or whether it was in the car it is still a constructive possession if it was in the car. And under those circumstances the court is going to deny the motion to suppress.

ASSIGNMENT OF ERROR

(excerpted from the record)

This trial court committed reversible error when it denied defendant’s motion to suppress evidence illegally seized as a result of an unconstitutional and illegal search of the defendant’s person, property, premises and effects, specifically, the unconstitutional and illegal search of the vehicle in which defendant was a passenger. This search was conducted by officers of the Jefferson Parish Sheriff’s office.

Defendant contends the weapon was seized in violation of his Fourth Amendment rights. Both the United States and Louisiana Constitutions prohibit unreasonable searches and seizures. U.S. Const.Amend. 4; La. Const. Art. 1, Sect. 5. A search conducted without a warrant is presumed unreasonable unless it is justified by one of the narrowly drawn exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Colvin, 358 So.2d 1250 (La.1978); State v. Williams, 366 So.2d 1369 (La.1978). The state bears the burden of proving that one of these exceptions applies. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Adams, 355 So.2d 917 (La.1978); State v. Blanchard, 374 So.2d 1248 (La.1979).

The state relies on Pennsylvania v. Mimms 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), to support its argument that the weapon in the instant case was legally seized. In that case police officers stopped the defendant’s vehicle, which had an expired license plate, in order to issue a traffic ticket. One officer approached the defendant and asked that he step out of the car and produce his driver’s license. As the defendant exited the vehicle, two officers noticed a bulge under his sport jacket. The officer frisked the defendant and found a revolver in his waistband. The U.S. Supreme Court, in upholding the seizure of the weapon, based its ruling on the standard of “the reasonableness in all the circumstances of the particular government invasion of a citizen’s personal security.” Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1869, 1878-1879, 20 L.Ed.2d 889 (1968). The court asserted that this reasonableness depends “... on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers, [citation omitted].” Mimms, supra, 434 U.S. at 109, 98 S.Ct. at 332.

Using this test for reasonableness by balancing of interests, the Mimms court focused on the intrusion of the defendant’s privacy resulting from the request to get out of the car once the vehicle was lawfully stopped, and reasoned as follows:

We think it too plain for argument that the State’s proffered justification — the safety of the officer — is both legitimate and weighty. “Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” Terry v. Ohio, supra, 392 U.S. at 23, 88 S.Ct. at 1881. And we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. “According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer Shootings—A Tactical Evaluation, 54 J.Crim. L.C. & P.S. 93 (1963).” Adams v. Williams, 407 U.S. 143, 148 n. 3, 92 S.Ct. 1921, 1924 [n. 3], 32 L.Ed.2d 612 (1972). We are aware that not all these assaults occur when issuing traffic summons, but we have before expressly declined to accept the argument that traffic violations necessarily involve less danger to officers than other types of confrontations. United States v. Robinson, 414 U.S. 218, 234, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Indeed, it appears “that a significant percentage of murders of police officers occurs when the officers are making traffic stops.” Id., at 234, n. 5, 94 S.Ct. at 476. [...]
Against this important interest we are asked to weigh the intrusion into the driver’s personal liberty occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car. We think this additional intrusion can only be described as de minimis. The driver is being asked to expose to view very little more of his person than is already exposed. The police have already lawfully decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver’s seat of his car or standing alongside it. Not only is the insistence of the police on the latter choice not a “serious intrusion upon the sanctity of the person,” but it hardly rises to the level of a “ ‘petty indignity.’ ” Terry v. Ohio, supra, 392 U.S. at 17, 88 S.Ct. at 1877. What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer’s safety.

Mimms, supra, at 434 U.S. at 109, 98 S.Ct. at 333.

With respect to the case now before the court, Mimms is almost directly on point. It is clear that the initial stop of the vehicle was justified because of the traffic violation, and that the officers were within the scope of their authority in asking Michael Williams, the driver, to step out of the automobile.

In this state, however, the Mimms analysis cannot be applied with the same result to other occupants of a vehicle stopped for a traffic violation.

The Louisiana Supreme Court in State v. Williams, 366 So.2d 1369 (La.1978), expressly declined to extend the Mimms rationale to include a passenger in a car which had been stopped for a traffic offense. In Williams, New Orleans police officers stopped a vehicle travelling without tail lights in order to issue a citation, and ordered the two occupants out of the vehicle. As the passenger got out of the car, one officer noticed a sawed-off shotgun on the floor between the passenger seat and the car door.

In rejecting the application of Mimms to those facts, the Williams court questioned, first, the degree of danger in which an officer is placed when stopping a routine traffic offender, and, second, whether ordering such an offender to leave his car significantly enhances the officer’s safety from either a serious offender or passing traffic. The court pointed out that although ordering the driver from a vehicle in order to protect the officer from accidental injury by passing traffic may be reasonable when the officer would otherwise have to speak to the driver through the driver’s window, “it has no application when the passenger is involved. Not only is the officer less likely to be exposed to traffic if he stands outside the passenger windows on the right side of the car, there is also no need for the officer to speak to the passenger during a routine traffic stop.” Williams, supra at 1374.

Most importantly, the court concluded:

[T]he treatment by the Supreme Court of the intrusion into the driver’s personal liberty is not dispositive of the issue at hand. As the court noted, by stopping the automobile the police have decided that the driver will be detained. Such is not the case for the passenger, who has broken no law and who may walk away from the scene unless the police officer has some other legitimate reason to detain him. Certainly the passenger has a higher expectation of privacy than the driver, because the passenger plays no part in the routine traffic infraction and has reason to suppose that any exchange with the authorities will be conducted by the driver alone. To give the police officer the discretion to order the passenger from the automobile without requiring any explanation of the officer’s actions (other than a blanket concern for personal safety in all situations) is to abandon the requirement of individualized injury into the reasons for an intrusion of the right to privacy secured by Article 1, Sect. 5 of the Louisiana Constitution. (See State v. Kinnemann, 337 So.2d 441 (La.1976). Therefore, without deciding the relationship between the Mimms analysis of the motorist’s liberty interest under the Fourth Amendment and the right to privacy under Louisiana Constitution Article 1, Sect. 5, we conclude that the Mimms rationale does not extend to passengers in the automobile. There is no legitimate support in Louisiana for a rule that would permit police to remove a passenger from an automobile on a routine traffic stop, [emphasis added]

The case before this court can, however, be distinguished on its facts from Williams. At the point the deputies placed the driver under custodial arrest and placed him in the back of their police unit, the encounter ceased to be merely a “routine traffic stop”, as contemplated by Williams. Rather, it escalated into a situation in which the deputies had legitimate reason to detain the passenger and question him about the status of the vehicle, whether he had a driver’s license, and whether he could drive the automobile from the scene of the arrest. The officers’ actions in ordering Davis from the automobile constituted only a minimal intrusion into the defendant’s privacy. We find the actions of the officers were within the scope of their authority, and were reasonable under the circumstances.

Once it has been determined that the officers had a right to order the defendant from the car, there remains the second question of the propriety of the search which produced the weapon. If the testimony of the officers is accepted, the answer is controlled by Terry v. Ohio, supra, wherein the officer was held to be justified in conducting a limited search for weapons once he had reasonably concluded that the person whom he had legitimately stopped might be armed and presently dangerous. Under the standard enunciated in Terry —whether “the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate,” the officers were justified. Terry, supra, 392 U.S. at 21-22, 88 S.Ct. at 1880. The bulge which the officers stated they noticed under Davis’ shirt as he exited the vehicle lead them to conclude that he was armed and thus a clear and present danger to their safety. Under the circumstances, any man of “reasonable caution” might have frisked the defendant for a weapon.

If, on the other hand, the defendant’s version of the incident is believed, and the deputies in fact found the gun during a search of the automobile, the seizure of the weapon should still be upheld.

In New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the U.S. Supreme Court addressed the question of the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of one of its occupants. The court pointed to earlier cases which had upheld the search of the area within the immediate control of an arrestee, or “the area from within which [an arrestee] might gain possession of a weapon or destructible evidence.” Chimel v. California 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed. 685 (1969). The court noted, however, that that principle has been found by courts to be difficult to apply in specific cases, and stressed the importance of a set of rules which makes it possible for the police to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement. The court explained, “in short, ‘[a] single, familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.’ Dunaway v. New York, 442 U.S. 200, 213-214, 99 S.Ct. 2248, 2256-57, 60 L.Ed.2d 824.” Belton, supra at 2863.

In answer to the problem, the Belton court declared “[accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, [footnote omitted], he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile, [footnote omitted] ” Belton, supra 101 S.Ct. at 2864.

The holding of Belton states a clear-cut rule of law which would justify a search of the vehicle in the instant case. We note that the Louisiana Supreme Court has, in one case, rejected the broad holding of Belton as not being a proper rule of police conduct under our state constitution, due to its explicitly broader guarantees of individual liberty and privacy. In State v. Hernandez, 410 So.2d 1381, 1385 (La.1982), the court asserted that Belton has “no application after-an arrestee has been handcuffed and removed from the scene, foreclosing even the slightest possibility that he could reach for an article within the vehicle.” [emphasis ours] The court then stated that it would adhere to what it considered a “well-settled rule” in construing the Louisiana Constitution.

[W]hen a custodial arrest is made, because of the danger that the person arrested may seek to use a weapon or that evidence may be concealed or destroyed, the arresting officer may, to safeguard himself and others and to prevent the loss of evidence, conduct a prompt, war-rantless search of the arrestee’s person and the area within his control — construing that phrase to mean the area from within which he could gain possession of a weapon or destructible evidence, [citations omitted]

Hernandez, supra at 1385.

Despite the restrictive language of Hernandez, it does not have blanket application to all Louisiana cases which deal with automobile searches incident to custodial arrests. The Louisiana Supreme Court has, both prior and subsequent to Hernandez, either generally applied or at least cited with approval Belton. See State v. Drott, 412 So.2d 984 (La.1982); State v. Melton, 412 So.2d 1065 (La.1982); State v. Hernandez, 408 So.2d 911 (La.1981); State v. Crosby, 403 So.2d 1217 (La.1981) (Lemmon, J., dissenting); State v. Square, 433 So.2d 104 (La.1983).

Additionally, the case before us can be readily distinguished from Hernandez. In Hernandez, the defendant was arrested for DWI and related traffic offenses as he parked his car in his driveway after police officers had chased him through city streets some distance. As the defendant was escorted to the patrol car to be transported to the police station, he stated he did not want anyone driving his car. Nevertheless, in accordance with alleged police policy, the officers radioed for a wrecker to tow the car. While waiting for the wrecker, one officer returned to the private property upon which the car was parked and inspected its interior. He discovered marijuana cigarettes on the console between the front seats and on the left floorboard, and seized the cigarettes as evidence.

The Hernandez court, even as it rejected Belton ⅛ broad holding, acknowledged that Belton is inopposite to their case because the search of Hernandez’s car was not contemporaneous with the arrest; furthermore, the court noted that the search of defendant’s car without probable cause or any circumstances which would justify an exception to the warrant requirement plainly constituted an unreasonable search and seizure.

In the instant case, we find that the totality of the circumstances justified any search as legal under an exception to the warrant requirement. The testimony is un-contradicted that after the arrest of the driver of the automobile, the passenger was unable to produce a driver’s license or any identification whatsoever which would justify the deputies allowing him to drive the car away. The deputies were faced with a situation in which they had one subject under arrest and in custody, and another, visibly nervous, being detained. Neither subject had identification on his person. By Davis’ own testimony, the ownership of the car was also in question. The officers at that point were in possession of sufficient facts to legitimately have formed a reasonable suspicion that a crime had been or was about to be committed. La.C.Cr.P. art. 215.1.

The standard of “reasonableness under all the circumstances of the particular governmental invasion of a citizen’s personal security” is, of course, still applicable, as it is in all Fourth Amendment cases. Terry v. Ohio, supra; Schmerber v. California 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). It was, therefore, reasonable that the officers investigate the situation further by looking inside the car, either to determine its ownership and substantiate Davis’ claim that the car belonged to his wife, or to confirm their suspicion that there was criminal activity afoot. Under this analysis, this invasion into Davis’ privacy meets the test of reasonableness under all the circumstances. Pennsylvania v. Mimms, supra; Terry v. Ohio, supra. Hence, we conclude that the search of the vehicle, if indeed there was a search, was proper.

Accordingly, the ruling of the trial court on the motion to suppress is affirmed.

AFFIRMED.

      . Within appellant’s brief, he again challenged the ruling on the motion to suppress, but slightly changed the focus of his argument as follows:
      The Court committed reversible error when it denied defendant’s motion to suppress evidence. The defendant was a passenger in a vehicle which was stopped for a routine traffic citation. The request by the police officers for the defendant to exit the vehicle was a violation of his liberty interests under the 4th Amendment and the right to privacy under the 4th Amendment and Louisiana Constitution Article 1, Section 5.
      This change of focus was considered merely an expansion of the assignment designated in the record, rather than a supplemental assignment appearing for the first time in brief.