author: STOKER, Judge.

text:
    FINANCIAL CORPORATION, Plaintiff-Appellant, v. ESTATE OF Frank COOLEY, Defendant-Appellee.
    No. 83-492.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      Ralph Brewer, Baton Rouge, for plaintiff-appellant.
    Donald J. Richard, Opelousas, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   STOKER, Judge.

Plaintiffs appeal from a rejection of a claim for the sum of $6,060.86 alleged to be the balance due on a lost mortgage note in the amount of $9,800. Prank Cooley, now deceased, allegedly executed the note and gave a mortgage on his property to secure the note. Plaintiffs brought this suit as an action for declaratory relief against the Estate of Frank Cooley.

The trial court dismissed plaintiffs’ demand after presentation of plaintiffs’ case on a motion by the defendant estate under LSA-C.C.P. art. 1810(B). We affirm.

The issues presented are interrelated. They are:

(1) Did the plaintiffs carry the burden of proving that Frank Cooley was indebted to plaintiffs at the time of his death and, particularly, was Frank Cooley (and now his estate) indebted on a note such as the one described above which we will refer to as Note 3?

(2) Under the circumstances, especially the fact that Frank Cooley is deceased, was parol evidence available to plaintiffs in the proof of their case?

Plaintiffs are Financial Corporation (Financial) and U.S. Thrift and Loan Corporation (U.S.). The latter is a domestic subsidiary of Financial.

Plaintiffs’ case, from a factual standpoint, rests on the position that Frank Cooley owed certain debts antecedent to the $9,800 note (Note 3) and that it was executed in order to consolidate these debts. After acquiring these antecedent debts, which Frank Cooley owed to third parties, these obligations were converted or consolidated into a single indebtedness represented by the mortgage note (Note 3) plaintiffs claim is lost. (According to plaintiffs’ petition the note was made in favor of a corporation which later merged with U.S.) No mortgage on the immovable property of Frank Cooley, located in St. Landry Parish, was ever recorded. No copy of the alleged mortgage surfaced. The remainder of the evidence offered by plaintiffs consists of showing alleged acknowledgments of the debt (by Frank Cooley’s widow and son in his succession proceedings and by a certain suit filed in federal court by Frank Cooley before his death), business records, and testimony of the secretary-treasurer of the plaintiff corporations. Regardless of what this evidence establishes, plaintiffs have failed to link this evidence with the creation of Note 3. In summary, we find that plaintiffs failed to establish by a preponderance of the evidence that the note ever existed or that a balance is owed by the Estate of Frank Cooley to plaintiffs. Plaintiffs’ failure appears even more certain because of the legal restrictions under which they labored in attempting to prove a debt owed by a deceased person. They were unable to surmount those restrictions.

FACTS

In as summary a fashion as possible we will describe the evidence by which plaintiffs sought to establish their case. Plaintiffs produced a certificate of mortgage dated April 20, 1977 to show that Frank Cooley executed a mortgage note (Note 1) for $3,397.20 on July 17, 1963 in favor of “Holder or Holders.” The same certificate shows that Frank Cooley executed another mortgage note (Note 2) for $7,600 on January 27, 1965 in favor of First Federal Savings and Loan Association of Opelousas. Plaintiffs claim they acquired these two notes and that they were consolidated into one note (Note 3) in February of 1966 in the amount of $9,800. The indebtedness for which plaintiffs sue here is represented by them to be the balance due on Note 3.

As part of proof of the indebtedness in their favor plaintiffs rely upon certain representations in a suit filed in federal court by Frank Cooley before his death. This suit was dismissed in 1978. Plaintiffs also rely on an entry on the descriptive list filed in Frank Cooley’s succession proceedings by his widow, Celina Cooley, and his son, Frank Cooley, Jr. The descriptive list contains an item under community debts described as “Mortgage due U.S. Thrift & Loan Corporation $8,739.22.”

At trial, Financial and U.S. attempted to prove the alleged debt (represented by Lost Note 3) by introducing as evidence (1) the certificate of mortgage dated April 20, 1977, (2) the pleadings in the succession of Frank Cooley, specifically the detailed descriptive list, (3) the pleadings in the federal suit instituted by Frank Cooley against plaintiffs which was dismissed in 1978, (4) a business record of plaintiffs dated January 31, 1971, entitled “INSTALLMENT REAL ESTATE MORTGAGES — NOTES RECEIVABLE” showing that Frank Cooley owed $9,314.32, and (5) the testimony of Audrey L. Sternberg, present secretary-treasurer of plaintiffs. (Financial and U.S. were formerly owned by Lambert Stern-berg, deceased husband of Audrey L. Sternberg. Mrs. Sternberg is a present owner of the two corporate plaintiffs.)

The only other witness called at trial (under cross-examination) by plaintiffs was Celina Cooley. She was unable to testify as to any of the matters in controversy.

Prom February of 1966 to April of 1976, by monthly installments of $75, Frank Cooley and later his representatives paid plaintiffs a total of $9,225. (By reason of these payments, defendant denies owing any balance on any notes to plaintiffs.)

Counsel for the defendant estate agreed through stipulation to the introduction of the documentary evidence referred to above but objected, through specific objection made general to all testimony, to the receipt of any parol evidence. Such testimony as was received was admitted subject to the defendant’s objection. Generally, however, the trial court sustained defendant’s objections to parol evidence. The defendant’s objection to parol evidence in this case was preserved. In our opinion the parol evidence is inadmissible.

It should be observed here that the testimony of Mrs. Audrey L. Sternberg provided no illumination. She was not active in the plaintiff corporations at the time the operative facts took place. Her testimony was vague and did not add any helpful information to plaintiffs’ case.

Earlier in this opinion we stated our belief that plaintiffs had failed to prove their demand by a preponderance of evidence. We now discuss the law applicable to the situation in this case.

LAW

The proper standard to be applied by the trial court when a motion for judgment of dismissal is filed under LSA-CCP art. 1810(B) at the completion of the plaintiff’s case, is that the trial judge must weigh and evaluate all of the evidence presented up to that point in the trial and must grant dismissal if the plaintiff has not established proof by a preponderance of the evidence. Bradley v. Hunter, 413 So.2d 674 (La.App. 3rd Cir.1982), writ denied 415 So.2d 952 (La.1982). Therefore, the sole issue on appeal is whether plaintiffs proved their claim against defendant by a preponderance of the evidence.

Although parol evidence is ordinarily not admissible, in proving written instruments, LSA-C.C. art. 2276, an exception is generally recognized where proof of a lost instrument is concerned. LSA-C.C. arts. 2279 and 2280. However, as in the instant case, where parol evidence would be offered to prove the debt of a deceased person, further precautions are required before evidence of this type is admissible. LSA-R.S. 13:3721 and 13:3722. In pertinent part R.S. 13:3721 provides:

“Parol evidence shall not be received to prove any debt or liability of a deceased person against his succession representative, heirs, or legatees when no suit to enforce it has been brought against the deceased prior to his death, unless within one year of the death of the deceased:
“(2) The debt or liability is acknowledged by the succession representative as provided in Article 3242 of the Code of Civil Procedure, or by his placing it on a tableau of distribution, or petitioning for authority to pay it.”

The purpose of R.S. 13:3721 is to protect estates of decedents, their representatives and heirs against stale and unfounded claims which might have been refuted or disproved by testimony of the deceased were he living. Taylor v. Bocock, 276 So.2d 347 (La.App. 2d Cir.1973), writ denied 279 So.2d 205 (La.1973).

R.S. 13:3722 provides that:

“When parol evidence is admissible under the provisions of R.S. 13:3721 the debt or liability of the deceased must be provided by the testimony of at least one creditable witness other than the claimant, and other corroborating circumstances.”

Under these statutes, we find that the testimony of Audrey L. Sternberg was inadmissible parol evidence. Although the sworn descriptive list filed in Frank Cooley’s succession did list a debt in the form of a mortgage due to U.S. in the amount of $8,739.23, a detailed, descriptive list is not one of, nor equivalent to, the types of acknowledgments required by R.S. 13:3721(2).

Even assuming that the requirements of R.S. 13:3721(2) were satisfied, the testimony of Audrey Sternberg would still be inadmissible under R.S. 13:3722 because the debt was not proved by “the testimony of at least one creditable witness other than the claimant.” The purpose of the requirement that the person whose testimony is offered to prove the debt of the deceased be someone other than the claimant is to eliminate the possibility of fraud and perjury by a witness who has a direct pecuniary or proprietary interest in the claim. Savoie v. Rogers’ Estate, 410 So.2d 683 (La.1981).

The claimants, Financial and U.S., are both corporations. Audrey Sternberg is an officer (secretary-treasurer) of the corporations. Where a corporation is the claimant, the testimony of its officers does not satisfy the requirement of “one creditable witness other than the claimant.” Southern Hide Co. v. Best, 174 La. 748, 141 So. 449 (La.1932); B. Stern Company v. Perry, 246 So.2d 246 (La.App. 1st Cir.1971), writ denied 247 So.2d 863 (La.1971). Likewise, Celina Cooley’s testimony does not aide plaintiffs in satisfying the requirements of R.S. 13:3722 since her testimony did not, in any manner, support their claim.

Since we have found that the testimony of Audrey Sternberg cannot be used in proving plaintiffs’ claim, the remaining question is whether plaintiffs have proved their claim by a preponderance of the other evidence that was admitted at trial. We find that plaintiffs have not done so.

The certificate of mortgage dated April 20, 1977 shows only that in 1959 Frank and Celina Cooley purchased some immovable property in St. Landry Parish and that they subsequently executed two mortgage notes covering this property. Plaintiffs claim that these two notes, Notes 1 and 2, were consolidated in February of 1966 into Note 3. Plaintiffs claim they became holders of Note 1, which is now lost. There is no proof to substantiate their claim that they are holders. They also claim that they paid Note 2 for Frank Cooley. There is likewise no proof to substantiate that claim. Plaintiffs claim that Notes 1 and 2, plus other advances, were consolidated to form Note 3 and that Note 3 is secured by a mortgage on the Cooley’s immovable property. There is no evidence that a mortgage was filed to secure Note 3.

Plaintiffs contend that by listing a debt in the form of a mortgage due U.S. in the amount of $8,739.23 on a descriptive list in Frank Cooley’s succession and by accepting his succession simply and unconditionally, that Celina Cooley and Frank Cooley, Jr., as representatives of the Estate of Frank Cooley, confessed and admitted the existence of the mortgage debt sued upon (Note 3). We disagree. As previously noted, a sworn descriptive list does not constitute the same type of acknowledgment required under R.S. 13:3721(2). A descriptive list is not conclusive, as to either the value or the ownership of the property. Succession of Amos, 422 So.2d 605 (La.App. 3rd Cir.1982). At most it is prima facie proof that a mortgage debt was owed to U.S. This does not constitute proof that the debt listed is the same debt that is presently claimed to be owed to plaintiffs. Neither is the simple and unconditional acceptance of the succession a confession of the mortgage debt (Note 3) sued upon. Although unconditional acceptance of a succession makes the acceptor liable for the debts of the decedent, a creditor must prove the correctness of his claim by legally admissible proof. Hobson v. Edelston, 13 So.2d 141 (La.App. Orl.1943).

Plaintiffs next contend that the original petition filed by Frank Cooley in his federal court suit constitutes a judicial confession (see LSA-C.C. 2291) that he executed a note (Note 3) in favor of Financial on February 1, 1966, and that U.S. later became the holder of that note. We disagree.

The pleadings in the earlier federal suit do not amount to a judicial confession under LSA-C.C. art. 2291. Article 2291 has reference only to the judicial confession made in the suit itself, either in the pleadings or in the note of evidence. It has no reference to confessions or admissions made in other suits. The latter can be classed only as extrajudicial confessions or admissions which are evidence but not as conclusive presumptions, or estoppels. Farley v. Frost-Johnson Lumber Co., 133 La. 497, 63 So. 122 (La.1913). The only instance where extrajudicial confessions operate as an estoppel against the party making them is where the party claiming the benefit of the estoppel resulting therefrom was deceived by those confessions and has relied or acted on them to his prejudice. Twillie v. H.B. Zachry Co., 380 So.2d 747 (La.App. 4th Cir.1980). Plaintiffs were not deceived by nor did they rely on the federal pleadings to their prejudice. Plaintiffs apparently disregard the fact that they denied all of the allegations of Frank Cooley’s petition in their answer, and that Cooley filed an amending petition retracting the allegation that he executed such a note. At best the federal pleadings are evidence that a debt in the form of a mortgage note may have been owed by Frank Cooley to plaintiffs.

Plaintiffs’ business record showing that in January, 1971, Frank Cooley owed $9,314.32 on a mortgage note adds little to their case. Audrey Sternberg did not know what the amount of $9,314.32 represented, nor could she answer any other questions concerning the document. Although Audrey Sternberg testified from other business memoranda and records at trial, none of the documents were introduced into evidence. Because her testimony was inadmissible under R.S. 13:3721 and 13:3722 there remains nothing for us to consider.

We conclude that plaintiffs have not proved their claim by a preponderance of the evidence. Under any view of the evidence plaintiffs have failed to prove the indebtedness sued on. No mortgage was filed or has ever been found to secure the alleged note. No notary or attorney appeared who could testify that either a mortgage or note was perfected. Taken as a whole, the evidence presented by plaintiff proves, at best, that Frank Cooley was at one time somehow indebted to them. Plaintiffs and defendant both admit that from February 1966 to April 1976, defendant paid a total of $9,225 to plaintiffs. Defendant claims that this payment satisfied whatever debts might have been owing to plaintiffs. There is insufficient proof to the contrary.

We hold that plaintiffs have failed to prove their claim by a preponderance of the evidence. The trial judge was correct in dismissing plaintiffs’ suit. All costs are to be assessed against plaintiffs.

AFFIRMED.


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Harry FREEMAN, Defendant-Appellant.
    No. CR83-562.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      Donald L. Mayeux, Eunice, for defendant-appellant.
    Richard Vidrine, and A. Bruce Rozas, Asst. Dist. Attys., Ville Platte, for plaintiff-appellee.
    Before CUTRER, LABORDE and KNOLL, JJ.
   CUTRER, Judge.

The defendant, Harry Freeman, was charged by bill of information with the crime of carnal knowledge of a juvenile, in violation of LSA-R.S. M^Oll). Waiving his right to a jury trial, the defendant was given a bench trial where he was found guilty as charged. Pursuant to that conviction, the defendant was sentenced to three years at hard labor.

FACTS

In the early evening of September 24, 1982, the defendant was alone at the residence in Ville Platte, which he shared with his girlfriend, Mellia Joseph, and her four children. One of those children, Sandra, a twelve-year-old girl, ran into the house to retrieve a football. According to Sandra, after she entered her bedroom, which was separated from the rest of the house by a curtain, the defendant came into the room, removed her clothes and had sex with her. Following the act, the defendant told Sandra not to tell anyone what had happened.

One of Sandra’s brothers, Johnny (age 15), who had been waiting for Sandra to return with the football, went to their home to help her search for the ball. Upon finding the door locked and having received no answer to his knocks, Johnny forced the door open. Johnny testified that he saw the defendant “coming out of the bedroom with his shirt hanging out and his pants unzipped.” According to Johnny, Sandra was putting her shorts back on when he saw her. Johnny then ran to tell his mother and grandmother what he had seen.

The defendant’s version of what transpired differed from Sandra’s and her brother’s. The defendant emphatically denied that he had ever engaged in sexual activity with Sandra. He testified that he was getting a drink of water in the kitchen (which apparently joined the bedroom in question) when Johnny came in and accused him of having sex with Sandra. The defendant stated that Sandra was changing her clothes in the bedroom at that time because she had gotten sweaty while playing outside.

A physician examined Sandra within approximately one hour of the incident. He testified that there was evidence of sperm in the vagina and that he “felt emphatically she had had sexual intercourse.” There was no evidence that any force had been used. The rape kit performed upon Sandra also revealed the presence of sperm.

The defendant appeals his conviction and sentence on the basis of the following eleven assignments of error:

(1) The trial court erred in allowing Sandra’s grandmother to testify that she had heard Sandra say that the defendant had raped her;
(2) The trial court erred in allowing the examining physician to testify as to what Sandra’s mother told him had happened to her daughter;
(3) The trial court erred in not allowing the defendant to testify concerning Sandra’s alleged prior sexual conduct with other men;
(4) The trial court erred in refusing to allow the defendant’s brother, Davis Freeman, to testify regarding alleged prior sexual conduct between Sandra and other men;
(5) The trial court erred in not allowing the defendant’s brother, Ankles Freeman, to testify that Sandra had told him that she did not have sex with the defendant;
(6) The trial court erred in refusing to allow Ankles to testify as to what Sandra said concerning her grandmother;
(7) The trial court erred in not allowing Ankles to testify concerning Sandra’s sexual activities with others;
(8) The trial court erred in not allowing the defendant’s brother, Dallas Freeman, to testify that Sandra told him that she did not have sex with the defendant;
(9) The trial court erred in finding the defendant guilty, as there was insufficient evidence to support a conviction of carnal knowledge of a juvenile;
(10) The trial court erred in refusing to order, at defendant’s request, a presen-tence investigation; and
(11) The trial court erred in sentencing the defendant to three years at hard labor inasmuch as this sentence was too harsh, cruel and unusual punishment.

ASSIGNMENT OF ERROR NUMBER 1

The defendant alleges that the trial court erred in allowing into evidence certain hearsay testimony by Sandra’s maternal grandmother, Lou Ella Charles. This testimony by Lou Ella Charles was that Sandra had told her that the defendant had raped her. Ms. Charles’ testimony as to what Sandra had said was clearly hearsay, and hearsay testimony is generally inadmissible at trial. However, the admission of this testimony does not necessitate reversal in this case. As we have previously stated, Sandra Joseph testified as to the commission of the offense by the defendant. The defendant’s counsel exercised his right to fully cross-examine Sandra. As we consider the testimony of Sandra, Johnny Joseph and the physician, the hearsay testimony of the grandmother was merely cumulative and corroborative. Accordingly, the defendant was not prejudiced by the hearsay testimony. Any error in its admission was harmless. State v. Davis, 445 So.2d 163 (La.App. 3rd Cir.1984).

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER 2

By this assignment the defendant alleges that the trial court erred by allowing the examining physician to testify, over defendant’s objection, that Sandra’s mother had told him “that a twelve (12) year old young lady had been allegedly raped by a family member.” Sandra’s mother did not testify at trial, and defendant alleges that his right of cross-examination was abridged by the doctor’s hearsay testimony.

In State v. Andrews, 369 So.2d 1049 (La.1979), our Supreme Court stated the following:

■“Although not admissible as evidence of the truth of the facts stated, a statement by a patient to a physician as to past matters, including past medical history, may be included in the physician’s testimony to show the basis for his opinion.”

In the instant case, the statement was made by Sandra’s mother. However, the trial judge stated that he did not consider the physician’s testimony to be evidence, but merely a recitation of the history of the victim’s case as provided to him. As this was a bench trial and as Sandra subsequently testified that the defendant did commit a sexual act with her, the defendant was not prejudiced by the doctor’s corroborative testimony. This assignment has no merit.

ASSIGNMENTS OF ERROR NUMBERS 3, 4 AND 7

These three assignments address the trial court’s refusal to allow the defendant and two of his brothers to testify regarding Sandra’s prior sexual conduct with other men. We find that the trial court correctly disallowed testimony of this nature under the direct authority of LSA-R.S. 15:498, which states:

“Evidence of prior sexual conduct and reputation for chastity of a victim of rape or carnal knowledge shall not be admissible except for incidents arising out of the victim’s relationship with the accused."

Only when the evidence “shielded” by this statute is particularly relevant to the defendant’s guilt or innocence may the defendant’s right to set forth a defense override the prohibitions in R.S. 15:498. See State v. Vaughn, — So.2d - (La.1983); State v. Dawson, 392 So.2d 445 (La.1980).

Defendant argues that the testimony offered by him was “particularly relevant in light of the fact that Dr. Aswell had testified that Sandra was not a virgin prior to the alleged incident.” We disagree. Whether the victim had committed other sexual acts had no relevancy in this case. The crime of carnal knowledge with a juvenile involves a consensual act between an unmarried female at least twelve years of age but less than seventeen years of age and a male over seventeen years of age and there is an age difference of at least two years between the two persons. As we examine the elements of this offense, Sandra’s sex relations, if any, with others would be totally irrelevant to the charge that the defendant had sex with Sandra.

Accordingly, the trial court correctly refused to allow evidence of Sandra’s alleged prior sexual conduct. These assignments are without merit.

ASSIGNMENTS OF ERROR NUMBERS 5, 6 AND 8

By these assignments the defendant alleges that the trial court erred in refusing to allow Ankles and Dallas Freeman, defendant’s brothers, to testify regarding statements purportedly made by Sandra to them. According to defense counsel, the Freemans would have testified that Sandra told them she did not have sex with the defendant. Additionally, Ankles allegedly would have testified that Sandra told him that her grandmother, Ms. Charles, forced her to file the charges against the defendant solely because she didn’t like him.

It is apparent that the defense was attempting to impeach Sandra through the use of alleged prior inconsistent statements. Impeachment of a witness by the use of prior inconsistent statements is available only when the foundation requirements of R.S. 15:493 have been met. State v. Thibodeaux, 380 So.2d 59 (La.1980).

In the instant case, Sandra had not been asked whether she had made the alleged statements to Ankles and Dallas. Therefore, the attempted impeachment, in the absence of an appropriate foundation was properly denied. These assignments have no merit.

ASSIGNMENT OF ERROR NUMBER 9

By this assignment defendant raised the sufficiency of the evidence upon which he was convicted. We are called upon to determine whether the evidence, when viewed in the light most favorable to the prosecution, was sufficient to have allowed a rational trier of fact to have concluded that all the elements of the crime had been proven beyond a reasonable doubt.

The elements of the crime of carnal knowledge of a juvenile in this situation are set forth in LSA-R.S. 14:80(1): (1) A male over the age of seventeen; (2) An unmarried female over twelve years and under seventeen years; (3) An age difference of greater than two years between the two; and (4) Consensual sexual intercourse. State v. Joseph, 425 So.2d 1261 (La.1983). The evidence clearly indicates that the State satisfactorily met its burden of proof as to all those elements. Sandra was not married and was more than twelve years of age; the defendant was twenty-nine years of age; and Sandra consented to the act with the defendant.

Defendant argues that his denials that he had sex with Sandra and her sometimes conflicting testimony precluded a finding that he had sex with her. The examining physician testified that Sandra had, on the day in question, had sex, although he could not determine her partner’s identity or the exact time of the occurrence. The rape kit corroborated this finding. The evidence clearly shows that Sandra had sex with the defendant.

Johnny Joseph’s testimony, coupled with Sandra’s and the medical evidence clearly sustain a finding that the elements of the crime were proven beyond a reasonable doubt. For this reason, there is no merit to this assignment.

ASSIGNMENT OR ERROR NUMBER 10

The defendant alleges that reversible error occurred when the trial judge denied his request for a presentence investigation. Under LSA-C.Cr.P. art. 875 the decision to order a presentence investigation lies within the discretion of the trial court. There is no requirement that an investigation be ordered. State v. Bell, 377 So.2d 275 (La.1979); State v. Gunning-ham, 431 So.2d 854 (La.App. 2nd Cir.1983). This assignment has no merit.

ASSIGNMENT OF ERROR NUMBER 11

The defendant was sentenced to a term of imprisonment of three years at hard labor. The maximum sentence for the commission of this crime is ten years at hard labor. By this assignment the defendant alleges that, as he had no prior criminal record, his sentence was cruel, unusual and too harsh.

A penalty is cruel and unusual when it is so severe as to be degrading to human dignity; when it imposes an arbitrary infliction of punishment and when it shocks contemporary notions of decency. State v. Guajardo, 428 So.2d 468 (La.1983). None of these criteria exist under the instant facts.

Whether the sentence is excessive (“too harsh”) is considered reviewable under LSA-Const. Art. 1, § 20, as interpreted by our Supreme Court in State v. Sepulvado, 367 So.2d 762 (La.1979). The standard of review is whether the sentence is grossly out of proportion to the severity of the offense or merely the purposeless and needless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980). We do not find that a three year sentence at hard labor was an abuse of the trial court’s discretion under the instant facts.

The relative ages of the defendant and Sandra (29 and 12) tend to increase the severity of the crime at issue. State v. Sepulvado, supra, at 767. The crime of carnal knowledge involves consensual behavior. jTherefore, the age disparity and the attendant circumstances become very relevant factors in imposing sentence. Considering these, we agree with the trial court’s conclusion that a sentence of less than three years “would deprecate the seriousness of this crime.” See State v. Smith, 404 So.2d 210 (La.1981). (A four year sentence for carnal knowledge was affirmed where the “first offender” was twenty years of age and the victim was twelve.); State v. Duhon, 431 So.2d 120 (La.App. 3rd Cir.1983). (Two concurrent four year sentences for carnal knowledge and indecent behavior with a juvenile were affirmed in a case involving a “first offender” stepfather, age twenty-six, and his stepdaughters, ages eleven and fourteen.) This assignment lacks merit.

For the aforementioned reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . LSA-R.S. 14:80 provides:
      "Carnal knowledge of a juvenile is committed when:
      (1) A male over the age of seventeen has sexual intercourse with consent, with any unmarried female of the age of twelve years or more, but under the age of seventeen years, when there is an age difference of greater than two years between the two persons; or

      Lack of knowledge of the juvenile’s age shall not be a defense. Emission is not necessary; and penetration, however slight, is sufficient to complete the crime.
      Whoever commits the crime of carnal knowledge of a juvenile shall be imprisoned, with or without hard labor, for not more than ten years.”

      . LSA-R.S. 14:493 provides:
      "Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible."

      . LSA-C.Cr.P. art. 875 provides in pertinent part as follows:
      "A. (1) If a defendant is convicted of an offense other than a capital offense, the court may order the Department of Corrections, division of probation and parole, to make a presentence investigation.” (Emphasis supplied.)


author: GUIDRY, Judge.

text:
    Ronnie INSECO, Plaintiff-Appellant, v. CAMBRIDGE MUTUAL FIRE INSURANCE COMPANY, Defendant-Appellee.
    No. 83-608.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Writ Denied April 23, 1984.

      Michael F. Shannon, Alexandria, for plaintiff-appellant.
    Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   GUIDRY, Judge.

Plaintiff, Ronnie Inseco, filed suit against Cambridge Mutual Fire Insurance Company, the liability insurer of Rex Lof-ton, seeking damages for injuries sustained as a result of a fall from the roof of the Lofton house. After trial on the merits, the trial court rendered judgment dismissing plaintiff’s demands at his cost. Plaintiff appeals. Defendant neither appeals nor answers the appeal.

FACTS

On March 3, 1982, plaintiff was visiting the residence of Rex Lofton when a fire started in the attic. Plaintiff, assisted by a neighbor, succeeded in extinguishing the fire with a garden hose through an attic door in the garage. The fiic department had been summoned but had not yet arrived. Mr. and Mrs. Lofton were then in and out of the house, attempting to remove their personal effects from the house. Several neighbors had gathered. Plaintiff then noticed that there was smoke still coming from the back of the roof. Afraid that the fire would start again and possibly ignite the trees or a neighboring house, he decided to wet the roof down. Having determined that the major portion of the fire was to the rear of the house, he decided to climb up the front of the house which would be cooler. Two of the neighbors boosted the plaintiff up onto the front part of the roof. However, the roof was too hot and the plaintiff was unable to hold on, falling to the ground face down. The fire department arrived immediately thereafter. As a result of the fall, plaintiff sustained the fracture of five ribs and a crushed fracture of a lumbar vertebrae.

Plaintiff alleges that the fire was a result of defective or faulty electrical wiring; that Rex Lofton’s negligence or the wiring defect was the legal cause of his injuries; and, that defendant is therefore liable under LSA-C.C. Articles 2315, 2317 and 2322.

On the other hand, defendant contends that plaintiff failed to prove by a preponderance of the evidence any negligence on the part of defendant’s insured or any defect or ruin of the building such as to impose liability on the defendant. In the alternative, defendant asserts fault of the plaintiff, contributory negligence or assumption of the risk, as a total or partial bar to plaintiff’s recovery. The parties also contest the applicability of the “rescuer doctrine” to this case.

In dismissing plaintiff’s suit, the trial judge made no. definitive finding as to the existence of a defect in the building or as to negligence on the part of Rex Lofton, concluding that, even if the existence of a defect be assumed, Mr. Inseco was not entitled to rescuer status and that he had assumed the risk.

The basis of plaintiffs allegations of defendant’s liability under both LSA-C.C. Arts. 2315, 2317 and 2322 is that the insured building contained a defect, i.e., faulty electrical wiring which posed an unreasonable risk of harm to plaintiff, and that plaintiff’s injuries were a result of encountering that risk.

As proof of the defect in the wiring, plaintiff offered the testimony of Rex Lof-ton to the effect that for some time prior to this fire, the Loftons had experienced problems with the electrical system, including the dimming of lights, fluctuating temperatures in the electrical oven and the light bulbs frequently burning out prematurely. This testimony was corroborated by plaintiff. Mr. Lofton also testified that he had called in an electrician to diagnose the problem. The electrician was apparently unable to pinpoint the problem on the first visit and Lofton decided it would be too expensive to remedy the problem. In addition, several of Mr. Lofton’s neighbors testified that they had not experienced similar difficulties.

Mr. Andrew Moore, accepted by the court as an expert in electrical engineering, stated that the problems described by Mr. Lofton could only indicate a loose connection in a neutral or hot wire, which defect could cause a fire. Mr. Moore further testified that since the neighbors were not experiencing similar problems, the problem was not in the distribution line or in the power plant, but existed either in the service line, which connects the house to the distribution line, or in the electrical wiring in the house itself.

Mr. Lofton further testified that, after the fire on March 3,1982, the utility company replaced the service line and the meter in his house. He nonetheless continued to experience the same difficulties and subsequently, in August of 1982, a second fire occurred which totally destroyed the residence.

Plaintiff submits that the above circumstantial evidence is sufficient proof of a defect or negligence on the part of defendant’s insured.

“The plaintiff in a civil action bears the burden of proving by a preponderance of the evidence every element of fact essential to his recovery. Proof which establishes only possibility, speculation or unsupported probability is not sufficient to establish a claim.” (citations omitted). Jennings v. City of Alexandria, 394 So.2d 718 at 721 (La.App. 3rd Cir.1981).

To meet the burden of proof required in civil cases, circumstantial evidence need not negate all other possible causes, it need only prove the causal relationship sought to be proved to be more probable than not. Vonner v. State through Dept. of Public Welfare, 273 So.2d 252 (La.1973). In A & M Pest Control Service, Inc. v. Fejta Construction Co., Inc., 338 So.2d 946 (La.App. 4th Cir.1976), the court, in effect, held that the test of sufficiency in a circumstantial evidence case is that, taken as a whole, such evidence must exclude other reasonable hypotheses with a fair amount of certainty but it need not negate all other possible causes.

We think that the evidence as a whole establishes that the fire more probably than not resulted from a defect in the electrical wiring in the Lofton residence. The fact that the fire started in the attic of a private residence limits the reasonable hypotheses of causation. The only other reasonable hypothesis of causation offered in opposition to plaintiff’s proof was the possibility that the wiring defect existed in the service line rather than the residence and thus, was the responsibility of the utility company and not defendant’s insured. We find that the evidence as a whole excludes this hypothesis with a fair amount of certainty. After the service line was replaced, the Loftons continued to experience the same electrical difficulties, indicating that the defect was confined to the Lofton’s residence. We therefore conclude that plaintiff has established by a preponderance of the evidence that the cause of the fire was a defect in the electrical wiring in the Lofton’s residence. To the extent that the trial court may have found otherwise, we find such conclusion to be clearly erroneous.

For the following reasons, we also conclude that the defect was the legal cause of plaintiff’s injuries. LSA-C.C. Art. 2317 provides in part that we are responsible not only for the damage occasioned by our own act, but also for damages occasioned by things in our custody. LSA-C.C. Art. 2322 further defines the application of the general principle of LSA-C.C. Art. 2317 to the owner of a building. Entrevia v. Hood, 427 So.2d 1146 (La.1983). LSA-C.C. Art. 2322 provides as follows:

“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.”

In Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1978), the Supreme Court held that under LSA-C.C. Art. 2322 the owner of a building has a non-delegable duty to keep his building and its appurtenances in repair so as to avoid an unreasonable risk of injury to others. Id at 1292.

In order to recover in strict liability under LSA-C.C. Arts. 2317 and 2322 against the owner of a building, the injured person must prove that the building or its appurtenances posed an unreasonable risk of injury to others, and that his damage occurred as a result of this risk. Upon proof of these elements, the owner is responsible for the damages, unless he proves that the damage was caused by the fault of the victim, by the fault of a third person, or by an irresistable force. The owner is absolved from his strict liability neither by his ignorance of the condition of the building, nor by circumstances that the defect could not easily be detected. Entre-via v. Hood, supra.

It is clear that defective electrical wiring poses a risk of grave injury to persons and property by fire. Electrical fires are very common and the harm threatened is grave. It is also clear that the fire was a cause in fact of the plaintiff’s injuries. The crucial determination in this case is whether the duty imposed upon defendant’s insured was intended to grant protection against risks to persons in plaintiff’s situation.

The duty to avoid the risk of fire offers protection to persons who are killed or injured in an adjoining building when fire spreads to that building, see Boudreaux v. American Ins. Co., 262 La. 721, 264 So.2d 621 (1972), as well as to adjoining owners who are injured while attempting to preserve their property from damage or destruction by the fire. See Ayala v. Bailey Electric Company, Inc., 318 So.2d 645 (La.App. 4th Cir.1975), writ granted, 322 So.2d 770 (La.) dismissed on joint stipulation. We opine that this rule affords protection as well to a person injured while prudently acting to preserve lives or property of others and even the life and property of the tortfeasor himself. The question then is whether the defendant’s responsibility should extend under the circumstances of this particular case.

The exact scope of protection to be afforded against risks created by violation of a duty depends upon the facts and circumstances of each case.

In the present case, the trial judge, in determining that plaintiff was not entitled to rescuer status, relied on certain facts in his written reasons for judgment that we find are unsupported by the record. He determined that the fire was extinguished at the time that the plaintiff climbed onto the roof. The record does not support this conclusion. Although plaintiff had extinguished the flames of the fire, the uncontradicted testimony of plaintiff and Mr. Lofton was that smoke was still pouring out from the back of the roof, indicating that the fire was still smoldering. He also determined that Mrs. Lofton and her son had apparently found a place of safety. The uncontradicted testimony of Mr. Lof-ton was that at the time plaintiff climbed onto the roof, he and Mrs. Lofton were in and out of the house, removing their personal effects. Additionally, plaintiff testified that he was also concerned that if the flames started back up again, they might ignite the trees or neighboring houses. We therefore conclude that the record indicates that plaintiff was acting to preserve the lives and property of the tortfeasor and others endangered by the fire.

We also note that the issue of rescuer status was improperly posed by the trial judge as follows:

“Did plaintiff have a duty or obligation to climb on the roof to determine if the fire was completely out?”

This is an improper inquiry because the special treatment afforded the rescuer does not arise out of legal considerations but out of moral considerations.

“Where the argument is made that a party, plaintiff or defendant, could have ignored all cries for help or dictates of humanity and remained safe and sound, courts have a distinct tendency to look with favor on “white knights”, provided their conduct is not too quixotic. The moral answer is clear: it is good that he went to the rescue even though he had no duty to do so. The legal position to a large extent reflects morality. The rescuer is not to be viewed as an officious intermeddler nor as one who assumed a risk.” La.Civil Law Treatise, 12 § 282.

We find that there is an ease of association between defective electrical wiring and the risk of fire and the additional risk that an invitee will be injured in attempting to preserve the lives and property endangered by that fire.

The remaining question is whether the plaintiff in this case was injured as the result of encountering the risk posed by the defect or whether he was injured as the result of his own fault. This inquiry encompasses the question often posed as part of the rescuer doctrine, that is, whether the actions of the rescuer are wanton or must be condemned by reason.

On this issue, this defendant has the burden of proof to show fault on the part of plaintiff. We find that the defendant failed in that burden. We believe that plaintiffs actions, when viewed in light of the emergency and thus the necessity for quick action, which was the result of the risk posed by the defect, were prudent. Plaintiffs actions were justified by the fact that he acted for the purpose of saving property and life from imminent danger.

Plaintiff was confronted with the emergency of the fire. He was notified of the fire by Mrs. Lofton. In response to her panic and distress, plaintiff acted swiftly and prudently to extinguish the flames. Aware that the fire department had not yet arrived and reasonably believing that lives were still in peril, he determined to cool down the roof to protect against further damage. The emergency had not died with the flames. A smoldering fire can easily reignite. In attempting this action, he did not place himself in such a position that he could not escape without injury. He considered the alternatives in the short time required by the circumstances with those persons who assisted him and decided to climb the front of the house, where no flames or smoke were visible. The intense heat of the roof was not apparent. Plaintiff testified that had he realized the front portion of the house was as hot as it was, he would not have attempted to climb same. We therefore are not otherwise persuaded by the fact that as a “kid”, plaintiff had had some training as a fire fighter for a volunteer fire department.

In sum, we find that defendant’s insured’s building posed an unreasonable risk of harm to plaintiff, i.e., the electrical wiring was defective; plaintiff was injured by encountering that risk; and, the damage occasioned was not caused by victim fault.

Plaintiff sustained the fracture of five ribs and the fracture of a lumbar vertebrae. He was hospitalized for five days following the accident and was confined to bed after release from the hospital for a total of three months. He incurred $2,165.10 in medical expenses. We consider a general damage award of $10,-000.00 to be fair for the pain and discomfort suffered by plaintiff as a result of these injuries.

In December of 1982, plaintiff was examined by Dr. Don Joffrion, an orthopedic surgeon. His report, which was made a part of the record, indicates that plaintiff made a satisfactory recovery and was without need of further treatment. For that reason, plaintiff’s claim for future lost wages and future medical expenses are denied.

Plaintiff is self-employed and works part-time as a musician-drummer. The only evidence of plaintiff’s lost wages was his own testimony. Plaintiff testified that his work was not steady but estimated that he made $300.00 to $400.00 a week. We think that the record justifies an award of $2400.00 in lost wages.

Accordingly, the judgment appealed from is reversed and set aside and there is judgment rendered in favor of plaintiff, Ronnie Inseco, and against defendant, Cambridge Mutual Fire Insurance Company in the sum of $14,565.10 with legal interest from date of judicial demand until paid, and all costs of these proceedings.

REVERSED AND RENDERED.

      . In asserting liability under LSA-C.C. Art. 2315, plaintiff contends that defendant knew or should have known of this unreasonable risk of harm but failed to protect against it.

      . It is not reasonable that the fire resulted from the act of vandals, see Toussant v. Guice, 414 So.2d 850 (La.App. 4th Cir. 1982), nor by some act of a third person, see Carriere v. Olivier, 432 So.2d 1089 (La.App. 3rd Cir.1983), writ denied, 438 So.2d 570 (La.1983); nor by some instrumentality outside of defendant’s control. See Blue Ridge Ins. Co. v. Belle Alliance Homes, 408 So.2d 417 (La.App. 1st Cir.1981).

      . See Kaplan, Recovery by the Rescuer, 23 L.L.R. 609 (1968) where rescuer’s recovery is discussed under the theory of negotiorum ges-tio.

      . Indeed, the existence of a legal duty on the part of the rescuer, such as in the case of a fireman, involves altogether different moral, social and economic considerations which may compel a different result. See Thompson v. Warehouse Corporation of America, Inc., 337 So.2d 572 (La.App. 4th Cir.1976).

      . "The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man ... Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable.” Cardoza, C.J., in Wagner v. International R. Cor. (1921), 232 N.Y. 176, 133 N.E. 437, 19 A.L.R. 1.


text:
    STATE of Louisiana v. Terry DOOLEY and Stella White.
    No. K 1901.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 13, 1984.
    Writ Denied May 4, 1984.

      Before SCHOTT, GARRISON and AUGUSTINE, JJ.
   We grant certiorari on the application of the State of Louisiana as to the trial court’s order granting defendants’ motion to suppress evidence seized by the police in the execution of a search warrant.

At the hearing on the motion to suppress the prosecution submitted its case on the warrant issued by the magistrate based upon the affidavit of two police officers. Copy of the affidavit is attached as an appendix to this opinion.

This affidavit was sufficient to establish probable cause to the satisfaction of the magistrate. It contained a factual basis to show that the information from the informant was trustworthy (the officers knew him as reliable and his information had led to the arrest and conviction of other drug traffickers in the past), and facts establishing probable cause for the warrant (just three days previously the informant purchased cocaine at the premises to be searched and was invited by the occupant to come back for more at any time). State v. Duncan, 420 So.2d 1105 (La.1982). This is clearly distinguishable from State v. Joseph, 351 So.2d 1162 (La.1977), relied upon by defendants, because there the affidavit lacked the underlying circumstances by which the informant obtained his information. That deficiency does not exist in the instant case.

Defendants erroneously focus attention on that part of the affidavit which recites the observations of the police officers while they had the searched premises under surveillance. They argue that this case whose affidavit describes the comings to and goings from the premises by three individuals during a forty-five minute period is even weaker than Joseph whose affidavit described comings and goings under even more suspicious and suggestive-of-drug-activities circumstances than the present case. Yet in Joseph the court held that the search warrant was improperly issued. However, the issue in Joseph was with respect to the sufficiency of the observed conduct during surveillance where the affidavit concerning the informant was insufficient. In the present case the informant’s information in itself was sufficient and the observed suspicious comings and goings only served to fortify an already sufficient affidavit.

Likewise, defendants’ argument contrasting the activity observed by the police here with that observed in State v. Williams, 338 So.2d 1365 (La.1976) fails to recognize that the court in Williams first rejected the information obtained from the informant because there was no attestation to his reliability and no factual basis for his conclusion that drugs were being sold at the searched premises. In the instant case the observed suspicious activity, although not as convincing as the “continuous stream of highly unusual conduct” in Williams, was icing on the cake of the reliable and factual information provided by the informant.

As in State v. Rodrigue, 437 So.2d 830 (La.1983), this case involves the magistrate’s determination of probable cause prior to issuing the warrant, and such a determination is entitled to significant deference by reviewing courts. The magistrate properly made a practical, common-sense decision that there was probable cause for the issuance of the warrant considering all of the information contained in the affidavit. Illinois v. Gates, — U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Even marginal cases should be resolved in favor of a finding that the issuing magistrate’s judgment was reasonable. State v. Rodrigue, supra; United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

Accordingly, the order granting defendants’ motion to suppress evidence is reversed, the motion is denied, and the case is remanded to the trial court for further proceedings.

APPENDIX

THE REASONS AND FACTS FOR THE REQUEST OF THIS SEARCH WARRANT ARE:

On Thursday, December 29, 1983, Narcotics and Drug Abuse Officers Joseph Palermo and John Joanos conversed telephoni-cally with a reliable and confidential informant whose information in past has proven instrumental in leading to the arrest and subsequent convictions of those persons engaged in the trafficing of illicit drugs within the boundaries of the City of New Orleans.

The Cl related to the Officers that within three days instant to the conversation, he has had the opportunity to go to the address of 5218 Constance Street and purchase a quantity of cocaine for self use. The tipster said that the transaction took place with a black female known to him as Stella and that she invited him back to acquire additional cocaine at anytime.

Base on the information received, the Officers went to the area of 5218 Constance Street and actuated a surveillance. From the Officers vantage point, the following activity was observed:

At approximately 4:30 pm the Officers observed a black male approach the front door to the address of 5218 Constance Street and knock. When the front door opened the male was allowed entry to the residence. At approximately 4:35 pm, the male exited the premises and stopped before leaving the front porch. He looked about the area as to see if anyone was detecting his movements. When satisfied, he left the area out of the sight of the Officers.

At approximately 4:50 pm, the Officers observed a black male ride up on a dark colored ten-speed bicycle and stop in front of the address. After walking his bike into the fensed area, he walked up to the front door and knocked. When the door opened he was allowed entry. A couple of minutes later the male exited the house and went directly to his bicycle and rode off out of sight.

At approximately 5:15 pm, the Officer observed a black female walk up to the front door to 5218 Constance Street address. After knocking and the door opening, she was allowed entry. At approximately 5:20 pm, she exited the residence and paused on the front porch. She looked about the area for a second and then walked away out of the sight of the Officers.

Predicated on the information received, the surveillance conducted, it is the belief of these affiants that now being secreted and distributed out of 5218 Constance Street is a controlled dangerous substance more particularly Cocaine and it is respectfully requested that a search warrant be issued for same.

Sworn to and subscribed before me this 29th day of December, 1983, New Orleans, Louisiana.

/s/ Joseph Palermo Affiant

/s/ John E. Joanos Affiant

Commissioner, Magistrate Court

6:30 pm


author: SCHOTT, Judge.

text:
    STATE of Louisiana v. Albert L. WRIGHT.
    No. KA 1333.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      Bernard S. Dolbear, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.

      Before GULOTTA, SCHOTT and L0-BRANO, JJ.
   SCHOTT, Judge.

Defendants Wright and Stewart were convicted of armed robbery in violation of LSA-R.S. 14:64. Wright was sentenced to ninety-nine years at hard labor and has taken' this appeal.

Early in the afternoon on February 22, 1983, Wayne Scheurmann was eating lunch in his automobile parked in City Park in New Orleans when two men, later identified as defendants, approached him. Wright pointed a gun at Scheurmann and ordered him to move over to the front passenger seat while Stewart got in the back. For some time Wright drove around the park with Stewart sticking a gun into Scheurmann’s head. They threatened and cursed him taking his money, wallet, class ring, and the other contents of his pockets and the glove compartment of the car. They also struck him several times. This continued while Wright drove out of the park and onto the city streets. Finally they threw Scheurmann out of the car and drove off. Scheurmann got a passing motorist to take him to police headquarters where he reported the crime.

On the same day in the early evening two policemen spotted Wright and Stewart stripping Scheurmann’s car. The subjects tried to flee but were apprehended. They were in possession of Scheurmann’s ring.

That night another officer contacted Scheurmann and he readily identified the two defendants from sets of photographs displayed by the officer. Scheurmann’s identification of defendants as the robbers from the photographs and at trial was positive and unmistakable.

Wright’s mother and sister and Stewart testified that the two defendants were watching television with them on the other side of the city when the crime occurred, and Stewart testified that he thought the automobile they were caught stripping was abandoned and that he found Scheur-mann’s ring by the car.

We have examined the record for errors patent' and found none. Furthermore, any rational trier of fact, reviewing the evidence in the light most favorable to the prosecution, could have found that the essential elements of the crime were proved beyond a reasonable doubt. State v. Fuller, 414 So.2d 306 (La.1982). Thus, the evidence was sufficient to support Wright’s conviction.

ASSIGNMENT OF ERROR 1

By this assignment defendant complains that the state failed to reveal, in answer to his motion for discovery of information favorable to him and material to his guilt, that there was an outstanding warrant for Scheurmann’s arrest for motor vehicle charges of fleeing the scene of an accident, reckless driving, failure to yield, and driving while intoxicated. This assignment has no merit. Aside from the question that the state was even aware of the warrant’s existence, it was under no obligation under C.Cr.P. Art. 718 to disclose it because it was not material and relevant to the issue of defendant’s guilt.

Nor was it discoverable under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 215 (1963) as evidence which might affect Scheurmann’s credibility. The dis-positive answer is that such evidence, even if known, could not be introduced at trial because it was irrelevant and, thus, could never affect Scheurmann’s credibility at this trial.

ASSIGNMENT OF ERROR 2

During his testimony Scheurmann disclosed in answer to why he did not try to jump out of the automobile during his ordeal, that the front door on the passenger’s side was jammed as a result of a previous accident. By this assignment defendant charges error in the trial court’s restricting defense counsel’s cross-examination on the details of this previous accident. The trial court has broad discretion in controlling the scope of cross-examination and rulings on such matters are not disturbed in the absence of an abuse of such discretion. State v. Naas, 409 So.2d 535 (La.1981). The inquiry into the details of a previous accident was irrelevant and immaterial as to defendant’s guilt and had no bearing on the credibility of this armed robbery victim. There was no abuse of the trial court’s discretion, and this assignment is without merit.

ASSIGNMENT OF ERROR 3

During the state’s cross-examination of Stewart the prosecutor made reference to his “burglarizing” Scheurmann’s automobile. Defendant points out that automobile burglary was not responsive to the charge of robbery in this case and argues that it was raised to prejudice the defendants. In his earlier, direct testimony Stewart had opened the door on the question of burglary when he admitted that he and defendant were removing the tires and had gotten inside the car when they were caught by the police. The cross-examination on burglary was directly connected to this testimony and the trial court’s overruling of defendant’s objection was well within the sound discretion of the court. See State v. Eastin, 419 So.2d 933 (La.1982).

ASSIGNMENT OF ERROR 4

This assignment concerns remarks by the prosecutor during his closing argument. He stated that he thought the defendants had taken cameras from the car before being caught by the police. Scheur-mann testified that his camera equipment was in the trunk of the car when it was stolen but was gone when it was returned. While there was no direct evidence to show that they stole the equipment the circumstances clearly pointed in that direction. They had the trunk key and there was no damage to the trunk. In any event, since they were not charged with the theft of this equipment the argument was arguably objectionable. A prosecutor should not inject issues in his argument which are broader than the guilt or innocence of the defendant as to the crime with which he is charged. State v. Messer, 408 So.2d 1354 (La.1982).

However, improper closing argument does not constitute reversible error unless the reviewing court is thoroughly convinced that such remarks influenced the jury and contributed to the verdict. State v. Sharp, 418 So.2d 1344 (La.1982). In the instant case the evidence of defendants’ guilt was so overwhelming that any remarks by the prosecutor were probably superfluous. We are thoroughly convinced that the objectionable remarks had nothing to do with the verdict. This assignment is meritless.

Accordingly, the conviction and sentence are affirmed.

AFFIRMED.


author: GARRISON, Judge.

text:
    Allen BLACKBURN v. Gladys DEASON.
    No. CA 1210.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      Darleen M. Jacobs, New Orleans, for plaintiff-appellant.
    Daniel A. McGovern, IV, New Orleans, for defendant-appellee.
    Before REDMANN, GARRISON and WARD, JJ.
   GARRISON, Judge.

This is an appeal from a district court judgment maintaining defendant’s exception of prescription and dismissing plaintiff’s action for nullity of a 1974 judgment of divorce between plaintiff and defendant.

The facts of this case are as follows:

On March 11, 1982, appellant, Allen Blackburn, filed suit in the district court for St. Bernard Parish against his former spouse, Gladys Deason, seeking to have the judgment of divorce rendered against him on November 27,1974, declared a nullity on the grounds of fraud and/or ill practice in accordance with C.C.P. Art. 2004. The divorce was granted on the grounds of living separate and apart for over two years. Appellant contends that he and Deason had been living separate and apart for only two months prior to the granting of the divorce. He also contends that he was never served with a copy of the divorce petition and that he did not know of the existence of a lawsuit against him until he received a copy of the default judgment rendered against him. This default judgment did not state the grounds on which the divorce judgment was granted.

Defendant-appellee filed exceptions of no right or cause of action, prescription and res judicata contending that because plaintiff-appellant was personally served with the citation and petition in the divorce proceeding in 1974, he is precluded from now attempting to annul the judgment of divorce. Defendant based this contention on the rationale that the personal service of the petition gave the plaintiff notice of the grounds on which the divorce action was based and that plaintiff had one year from that time to file an action for nullity. The trial judge agreed with this reasoning, maintained defendant’s exception of prescription and dismissed plaintiffs action.

On April 4, 1983, 430 So.2d 216, the Fourth Circuit Court of Appeal set aside the above-mentioned judgment on the exception and remanded the case to the trial court. This remand was deemed necessary due to the unavailability to the Court of Appeal of the record and transcript of the trial court proceedings. The Court of Appeal determined that these items of evidence needed to be reviewed by the trial court in order to determine whether or not plaintiff received service of process.

On June 17, 1983, the trial court held a hearing to review this evidence. The trial judge concluded that the plaintiff had been personally served and, in so deciding, he again maintained defendant’s exception of prescription and dismissed plaintiff’s action. Plaintiff now appeals this judgment.

At trial, a sheriff’s return dated October 22, 1974, was introduced into evidence. This return was signed by Lawrence Huerstell of the St. Bernard Parish Sheriff’s Office who testified that his signature on the return indicated that he had made personal service to Mr. Blackburn. Although he did not recognize Mr. Blackburn at trial, almost nine years after the alleged service, and he did not specifically recall placing the subpoena in his hand on that particular day, Mr. Huerstell testified that his signature on the return evidenced the fact that a personal service was made by him on that day. Mr. Blackburn’s son-in-law, Michael Herman, testified that he recalled Mr. Blackburn’s comment near the time in question that he had been served with “some divorce papers”. The only other testimony came from Mr. Blackburn, who testified that he was not served with process in the 1974 divorce proceeding.

The Code of Civil Procedure Article 1292 states, in part, that:

“The return, when received by the clerk, shall form part of the record, and shall be considered prima facie correct.”

The case of Hood Motor Company, Inc. v. Lawrence, 334 So.2d 460 (La.App. 1st Cir.), writ denied 338 So.2d 288 (La.1976), states that:

“These returns, when properly attested to, are given great weight and the burden rests on the party attacking them to establish their incorrectness. This burden can only be met by a clear and convincing proof that the endorsements contained thereon are erroneous. Our settled law is that a return cannot be impeached by the uncorroborated testimony of the party upon whom service is stated to have been made by the officer.”

In the instant case, the plaintiff’s testimony that he was not personally served with process is totally uncorroborated. Therefore, plaintiff has failed to bear his burden of proving that he was not served.

Because we agree with the trial court’s finding that plaintiff was personally served with process in the 1974 divorce proceeding, we also agree with the dismissal of plaintiff’s. action for nullity of the 1974 divorce judgment. Under C.C.P. Art. 2004, the absence of a valid and sufficient reason for a party’s failure to defend a suit in which a default judgment has been taken precludes that party from later maintaining an action for nullity of the judgment based on fraud or ill practices which could and should have been pleaded in the original suit. Samrow v. Samrow, 428 So.2d 547 (La.App. 4th Cir.1983); Burnett v. Burnett, 349 So.2d 490 (La.App. 3rd Cir.1977); Lyons v. Fontenot, 344 So.2d 1068 (La. App. 3rd Cir.1977). The plaintiff in this case has not offered a valid and sufficient reason for his failure to defend the 1974 divorce action brought by the defendant.

Our standard of review as stated in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), mandates that the findings of the trial court will not be disturbed unless they are clearly erroneous. The trial judge’s decision to maintain defendant’s exception of prescription and to dismiss plaintiff’s action is not manifestly erroneous.

For the reasons assigned, the judgment of the trial court is affirmed. Plaintiff-appellant shall bear all costs of these proceedings.

AFFIRMED.

      . La.C.C.P. Art. 2004: "A final judgment obtained by fraud or ill practices may be annulled. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”


text:
    Winnie Bennett BOOTHE v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. CA 1314.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.
    Victoria Lennox Bartels, William F. Wes-sel, Professional Law Corporation, New Orleans, for plaintiff-appellee.
    James Maher III, New Orleans, for defendant-appellant.
    Before REDMANN, C.J., and GARRISON and WARD, JJ.
   GARRISON, Judge.

Defendant, New Orleans Public Service, Inc., appeals from a judgment awarding damages of $38,430.45 to plaintiff, Winnie Bennett Boothe, for injuries sustained while traveling as a passenger on a NOPSI bus on February 7, 1979. Before plaintiff reached her destination, the bus came to an abrupt stop and plaintiff was thrown down to the floor, sustaining injuries to her left side.

At trial, the judge granted plaintiff’s motion for a directed verdict on the issue of liability based on his finding that defendant had exculpated neither itself nor its employees from negligence in this incident. Therefore, the only issue submitted to the jury in this case was the quantum of damages to be awarded to the plaintiff. The jury decided that damages should be awarded as follows:

Medical Expenses, Past and Future $7,630.45
Lost Wages, Past and Future 800.00
General Damages for Physical and Mental Suffering 30,000.00
Total Damages $38,430.45

This award was adopted by the trial judge in his judgment of February 11, 1983, and defendant was ordered to pay damages of $38,430.45 to plaintiff for her injuries.

Defendant does not appeal the trial court’s granting of plaintiffs motion for directed verdict on the issue of liability. Additionally, defendant does not appeal the award of damages for plaintiff’s cervical strain injuries sustained in the accident. The only issues argued by defendant on appeal are:

1) that plaintiff has failed to prove that the ulnar nerve damage to her left elbow was a result of the accident in question; and
2) that plaintiff has failed to prove her future medical expenses.

Therefore, defendant requests that the amount of damages awarded to plaintiff be reduced by this court.

CAUSATION

With regard to the ulnar nerve damage to Ms. Boothe’s left elbow, she contends that this injury was a result of the accident while defendant, NOPSI, contends that plaintiff developed these injuries subsequent to the accident. Defendant’s argument rests largely on the fact that plaintiff did not complain of pains in her left elbow until May, 1979, three months after the accident.

Ms. Boothe testified that, prior to February 7, 1979, she had not experienced any pain or discomfort in her left arm. On the evening following the accident, she noticed that her left arm was badly bruised. Ms. Boothe visited her doctor the next day and he sent her to an orthopedist, Dr. Victor Chisesi. Dr. Chisesi testified that the plaintiff had sustained injuries to her left hand, left wrist, left ankle, right ankle and neck but that she did not specifically complain of pain in her elbow until her visit of May 4, 1979. Dr. Chisesi recommended therapy for plaintiff’s left arm and when this therapy proved unsuccessful, Ms. Boothe visited a neurosurgeon, Dr. Joseph Nadell.

Dr. Nadell conducted tests and discovered that plaintiff had suffered ulnar nerve damage to her left elbow. He testified that it was not unusual for ulnar nerve injuries to occur in a delayed fashion.

Another neurosurgeon, Dr. David Kline, was consulted for a second opinion. Dr. Kline agreed with the diagnosis of ulnar nerve palsy and testified that Ms. Boothe had clearly stated to him that she had suffered pain in her elbow since the time of the accident.

All three doctors testified that ulnar nerve palsy can develop either from one distinct blow or merely from the daily bumping of the elbow.

In establishing causation in a civil case, the plaintiff must prove by a preponderance of the evidence that her injuries were caused by the defendant’s negligence. This burden may be met either by direct or by circumstantial evidence. Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes. Otherwise, the mere identification by the record of another possibility, although not shown to be causally active, would break the chain of causation. Carter v. City Parish Government of East Baton Rouge, 423 So.2d 1080 (La.1982).

In the instant case, the amount of the jury’s award of damages indicates that it found that plaintiff carried her burden of proving causation for the ulnar nerve injuries to her left elbow. The trial judge obviously agreed with this finding by adopting the jury’s award as the judgment of the court. Before a Court of Appeal can disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its discretion in making its award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). Defendant NOPSI’s contention that the plaintiffs elbow injuries were caused by “everyday bumping” is merely another possibility which was not shown to be causally active in this case. Carter, supra. The jury’s award of $30,000 for pain and suffering and $800 for past and future lost wages is justified by the evidence presented at trial. Therefore, we affirm this portion of the award due to the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

FUTURE MEDICAL EXPENSES

Ms. Boothe was awarded $7,630.45 for past and future medical expenses. The evidence established past medical expenses of $2,630.45. The jury also awarded $5,000 to the plaintiff for future medical expenses. At trial, Dr. David Kline testified that future surgery was “a possibility” but stated that he could not recommend this surgery definitely until he examined Ms. Boothe again. He did not testify as to the specific costs involved in this possible surgery. The case of Poche v. Frazier, 232 So.2d 851 (La.App. 4th Cir.), writ denied 256 La. 266, 236 So.2d 36 (1970), states that:

“Medical expenses, in order to be recoverable must be proved and awards will not be made for future medical expenses which may or may not occur in the absence of medical testimony that they are indicated and setting out their probable cost ... This court cannot pull a figure out of the air and award it as damages for future medical expenses, the occurrence of which is but a speculative possibility.”

Future medical expenses, like any other element of damages, must be established with some degree of certainty. Sikes v. McLean Trucking Company, 383 So.2d 111 (La.App. 3rd Cir.1980). The plaintiff must show that, more probably than not, these expenses will be incurred. Wexler v. Martin, 367 So.2d 111 (La.App. 4th Cir.), writ denied 369 So.2d 1352 (La.1979). In this case, Ms. Boothe has failed to prove that future surgery is anything more than a speculative possibility. Therefore, the portion of the trial court’s judgment awarding $7,630.45 for past and future medical expenses must be reduced to $2,630.45.

Accordingly, the judgment of the trial court is amended to reduce the judgment in favor of Winnie Bennett Boothe from $38,-430.45 to $33,430.45. As amended, the judgment is affirmed. Costs of the appeal are assessed against defendant.

AMENDED AND AFFIRMED.


author: KLEES, Judge.

text:
    Ann Marie TEAGUE v. Floydale TEAGUE.
    No. CA-1037.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, Terence L. Hauver (T.A.), New Orleans, for plain tiff-appellee Ann Marie Teague.
    Garner & Munoz, Dan C. Garner, John G. Munoz, Joseph L. Montgomery, New Orleans, for defendant-appellant Floydale Teague.
    Before SCHOTT, KLEES and CIACCIO, JJ.
   KLEES, Judge.

In order to resolve rules filed for Alimony Pendente Lite, Possession of Family Residence, Dissolution of Temporary Restraining Order, and Damages for Wrongful Issuance, Appellant Floydale Teague and Appellee Ann Marie Teague negotiated and agreed to a Consent Judgment which was filed on February 25, 1982 and signed on March 1, 1982.

In a portion of the Consent Judgment appellant was held responsible:

“... to pay for and insure that Ann M. Teague is carried as an insured, not a dependent, on the group health insurance policy, The Hartford, # GRH 011717; for a period of one year, from the date of the signing of the Partition Agreement.”

Furthermore, the consent judgment was incorporated into the community property agreement and the pertinent parts of that agreement read:

“The Hartford, group health insurance policy, # GRH 011717. Ann Marie Teag-ue is to be carried as an ‘insured’, not as a dependent. The premiums on this policy are to be paid for one year from the signing of this Partition Agreement by Floydale Teague. After that one year period, Ann Marie Teague shall have the privilege of converting said policy to a private policy. For the initial one year period Ann Marie Teague and Floydale Teague agree to name each other as reciprocal beneficiaries on their respective policies.”
“Floydale Teague agrees to pay the insurance premiums for Ann Marie Teague for a one year period from the signing of this Partition Agreement on two insurance policies: (a) Natonal Home Life Assurance Company, policy number WG 5300, and (b) The Hartford group health insurance, policy number GRH 0117178.”

On April 26, 1982, the parties were divorced. In September of 1982, appellee was in need of medical care and entered the hospital. Through the process of being admitted into the hospital appellee was informed that she was not insured under the applicable policy. Appellee made demand on appellant for payment, which was denied. Appellee then filed a Rule to Show Cause why appellant should not repay ap-pellee all funds which should have properly been covered by the insurance policy he was required to provide. The trial judge rendered judgment in favor of appellee and against appellant for the sum of $6,284.85 along with interest and costs. This amount represented the total dollar figure for all medical bills presented by appellee relative to her hospital stay in September, 1982.

Appellant filed a suspensive appeal from this judgment, and makes two assignments of error. The first is that the trial judge committed reversible error in granting judgment in appellee’s favor, as appellee clearly had not shown that a breach of the community property agreement had been committed. Second, the trial judge committed reversible error in awarding the sum of $6,284.85 as damages insofar as there was no proof offered as to what portion, if any, of that sum would have been covered under any insurance policy.

Appellant suggests that in order to fulfill his responsibilities to appellee relative to the provisions of health insurance as required by the March 1, 1982 Consent Judgment and the associated Partition of Community Property, he merely had to 1) pay the premiums, whatever they might be, for appellee’s insurance for a period of one year, and 2) to have appellee’s status changed from a “dependent” to an “insured”.

The issue of whether or not appellant paid appellee’s health insurance premiums does not require discussion as appellant acknowledges that appellee’s status was never changed from that of a “dependent” to that of an “insured”. A provision of the insurance policy in question (The Hartford No. GRH 011717) denies dependent coverage to a spouse or former spouse if he or she is legally separated or divorced from the insured. Thus appellee was not covered by the health insurance policy regardless of whether or not appellant paid the insurance premiums for appellee as a “dependent”.

Appellant urges the court that his inability to have appellee covered under the insurance policy in question as an “insured” is excused through Section 2 of Louisiana Civil Code Article 1933 which provides that:

... 2. Where, by a fortuitous event or irresistible force, the debtor is hindred from giving or doing what he has contracted to give or do or is from the same causes compelled to do what the contract bound him not to do, no damages can be recovered for the inexecution of the contract.

Appellant reasons that he had contracted to do what he ultimately could not do: he could not force any insurance company to insure his wife.

It is not necessary to determine whether or not the insurance company’s decision not to extend coverage as an “insured” to ap-pellee under their policy No. GRH-011717 is “a fortuitous event or irresistiblé force” as defined in the Civil Code, as we believe Section 3 of Article 1933 responds to the situation at hand. Louisiana Civil Code Article 1933, Section 3 states:

... 3. There are two exceptions to the last rule: first, when the party in default has by his contract expressly or impliedly undertaken the risk of the fortuitous event, or of the irresistible force; secondly, if the fortuitous event, or case of force, was preceded by some fault of the debtor, without which the loss would not have happened.

The nature of the provision of the consent judgment that was allegedly violated indicates that the benefit would favor the appellee while the responsibility for insuring that coverage was available was assumed by the appellant. The time frame during which the final wording of the Consent Judgment was completed allowed ample opportunity for appellant to investigate the availability of insurance coverage for appellee under his policy (Hartford No. GRH-011717). Under such circumstances, it must be presumed that appellant was aware of what he was contracting to do and that he expressly or impliedly assumed the risks involved in insuring that such coverage as an “insured” would be available to appellee for the term agreed upon.

The Louisiana Supreme Court observed in Eugster & Co. v. Joseph West & Co., 35 La.Ann. 119 (La., 1883) at 122:

“... They were to deliver the corn from the Ohio river between December 14th and January 3d, the season when severe cold is usual, and a frozen river an event that might be forseen. It was a contingency so probable and so seasonable that it ought to have entered into their calculation of the time for the execution of the contract, and no doubt would, but for their confidence in the impossibility of its occurrence in the then stage of the river. In either case they must be presumed to have contracted with reference to it. The assumption of the risk of the freeze is implied from the nature of the contract and the time and manner of its execution.”

In light of the specificity of that provision of the consent judgment regarding appellant’s responsibility to provide health insurance to appellee as an “insured” under his work policy, the availability vel non of such coverage should have been forseea-ble. The trial judge in his oral reasons for judgment noted:

“From the evidence produced here, it is evident that there has been a significant history of illness on the part of Mrs. Teague, and unquestionably the motivating factor or reason for including such an agreement was to be sure that any hospitalization or health treatment that was required by her would be paid, and Mr. Teague agree to pay for and to insure her, that this would be done. The fact that Hartford may or may not carry or be willing to carry her is immaterial. He knew that the motivating reason for the agreement was that she was not to pay for it. The intent obviously was to keep her from having to pay medical bills incurred by her for one year, and it was during this period of one year that this illness occurred and these expenses were incurred. Now, the fact that he couldn’t do it through the Hartford is immaterial. He assured her and the agreement between them is that he would do it. The fact that he couldn’t get Hartford to do it is immaterial. She didn’t contract with Hartford for it. Under the agreement for the payment of alimony and the subsequent agreement for the partitioning of the property, he agreed to pay for and to insure her that she would have hospitalization coverage. The fact that he was unable to obtain it is immaterial. He contracted to do so.”

The trial court saw the witnesses and heard their testimony and then made factual conclusions. Without having to endeav- or to redefine “fortuitous event or irresistible force” we agree with the trial court’s conclusion that appellant is responsible to pay those expenses that the insurance policy would have paid.

In view of appellant’s second assignment of error, we must agree that the trial court erred in awarding the total amount of expenses incurred by appellee rather than only that percentage of expenses that would have been covered by appellant’s group insurance plan, The Hartford No. GRH-011717.

As we read the record, the total amount of expenses incurred by appellee was $6,684.85. Itemized as follows:

Mahorner Clinic $675.00
Dr. Orestano — Internist $285.00
Dr. Steiner — cardiologist $1,350.00
West Jefferson Hospital $3,924.85
Dr. Cranmer — Urologist $350.00
West Jefferson Hospital $100.00
TOTAL $6,684.85

The pamphlet admitted into evidence as D-l, detailing the health insurance benefits that would have been available to appellee, if appellant had been successful in obtaining coverage for appellee as an “insured” provides:

1) A cash deductible provision would decrease the total by $100.00, thereby leaving $6,584.85.
2) The insurance plan would pay 100% of the first $1,500 of expenses incurred for each hospital confinement and the remainder would be subject to the co-insurance factor $6,584.85 - $1,500 = $5,084.85.
3) The co-insurance factor is 80% of the first $3,000 of co-insured expenses, $5084.85-$3,000 = $2,084.85
4) Any further covered expenses incurred during that calendar year will be paid in full.

Thus $5,984.85 of medical expenses should have been recoverable by appellee if appellant was successful in obtaining “insured” coverage for her. The trial court’s judgment should be reduced to $5,984.85 with interest and costs.

For the foregoing reasons, the judgment of the trial court in favor of Ann Marie Teague and against Floydale Teague in the amount of $6,284.85 is hereby amended and reduced to the amount of $5,984.85 along with interest and costs. In all other respects the judgment of the trial court is affirmed. Each party to bear his own costs of this appeal.

AMENDED IN PART, AND AS AMENDED, AFFIRMED.


author: WARD, Judge.

text:
    STATE of Louisiana v. Kirk LAMOTHE and Everette Carter.
    No. KA 1451.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for State of La., plaintiff-appellee.
    Dwight Doskey, Maurice T. Hattier, Orleans Indigent Defender Program, New Orleans, for Kirk Lamothe and Everette Carter, defendants-appellants.
    Before CIACCIO, LOBRANO and WARD, JJ.
   WARD, Judge.

Kirk Lamothe and Everette Carter were found guilty of armed robbery. The Trial Judge sentenced both Lamothe and Carter to twenty years at hard labor. Carter has appealed and requests that we review the record for errors patent. There are none.

We have also reviewed the record for sufficiency of evidence to support the appellant’s conviction. State v. Raymo, 419 So.2d 858 (La.1982). We find that viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found that each and every element of armed robbery had been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306, 310 (La.1982).

The conviction and sentence are affirmed.

AFFIRMED.


author: WILLIAMS, Judge.

text:
    Lawrence JOHNSON v. SLINE INDUSTRIAL PAINTERS, INC. and Liberty Mutual Ins. Co.
    No. CA-1467.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      Stephen C. Kogos, New Orleans, for plaintiff-appellant.
    Temple A. Stephens, Metairie, for defendant-appellee Liberty Mut. Ins. Co.
    Before KLEES, BYRNES and WILLIAMS, JJ.
   WILLIAMS, Judge.

Plaintiff appeals a trial court judgment granting defendant’s motion for summary judgment and dismissing plaintiff’s suit at plaintiff’s costs. We affirm.

Concerning the requirements for a suit in workers’ compensation, La.R.S. 23:1314 states:

Unless ... it is alleged ... that the employee or the dependents is not being or has not been paid, and that the employer has refused to pay, the maximum percent of wages to which petitioner is entitled under the provisions of this Chapter, or that the employee has not been furnished the proper medical attention, or that the employee has not been furnished with copies of the reports of examination or examinations made by employer’s medical practitioners after written request therefor has been made under the provisions of this Chapter, the presentation or filing of such petition shall be premature and shall be dismissed; when such allegations are contained in such petition and are denied by the employer at the time fixed thereunder by the court, if it be shown that such allegations are without reasonable cause or foundation in fact, such petition shall be dismissed.

Plaintiff’s petition alleged that he needed additional medical treatment and tests, that he had made demand upon defendant for payment of such, and that defendant had refused. Plaintiff alleged that this constituted a failure to cover the medical expenses associated with plaintiff’s injury and that this was arbitrary, capricious, and without probable cause, and prayed for the total due plus 12% penalties and $5,000.00 attorney’s fees under La.R.S. 23:1201.2.

In answer, defendant alleged that all amounts due plaintiff had been paid in full and were continuing to be paid pursuant to the requirements of the Louisiana Workers’ Compensation Statute, and prayed that plaintiffs petition be dismissed at plaintiffs cost.

After depositions and interrogatories, defendant filed a motion for summary judgment alleging that there was no genuine issue as to material fact because plaintiff had been paid workers’ compensation disability benefits from the inception of his disability and all medical bills submitted to defendant had been paid. In the attached affidavit, defendant Liberty Mutual’s claims supervisor in charge of plaintiff’s file swore on personal knowledge that, as represented by the payment records attached, plaintiff had been paid all compensation benefits and all bills presented to defendant for payment.

After the motion was set for hearing, plaintiff filed a memorandum in opposition, alleging that “[tjhere are outstanding medical bills and in fact when Lawrence Johnson was admitted to East Jefferson General Hospital, he was told that no surgery would be paid for.” In the attached affidavit, plaintiff swore that “all compensation benefits are not being paid in that there exists outstanding medical bills, prescription bills, etc.” Plaintiff further swore that “on his last stay in East Jefferson General Hospital it was specifically stipulated that defendants would not pay for any surgical procedures.”

In a judgment without written reasons “after hearing the pleadings, evidence and argument of counsel, the court considering the law and evidence ...”, the trial judge maintained defendant’s motion for summary judgment and held in favor of defendant and against plaintiff, dismissing plaintiff’s suit at plaintiff’s costs.

The Louisiana Code of Civil Procedure requires that:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.
When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

Art. 967.

Plaintiff’s sworn statement that while at East Jefferson General Hospital he was told that defendants would not pay for any surgical procedures, was merely hearsay and failed to meet the requirements of an opposing affidavit set forth in La.C.Civ.Pro. Art. 967. That affidavit can still be considered by the trial judge, Meyers v. Gulf Insurance Company, 413 So.2d 538 (La.App. 4th Cir.1982), but, the trial judge is free to give it little or no weight in his decision. Even if the counteraffidavits submitted by the plaintiff are without substance, the court must still determine that the defendant has established that he is entitled to the summary judgment. See Harris Mortgage Corporation v. Johnson, 383 So.2d 801 (La.App. 1st Cir.1980); Meyers, supra; Continental Casualty Company v. McClure, 313 So.2d 260 (La.App. 4th Cir.1975).

The court stated in Jack v. Fidelity and Casualty Company of New York, 306 So.2d 806 (La.App. 3d Cir.1975):

In determining whether a suit should be dismissed on an exception of prematurity under LSA-R.S. 23:1314, the test is not whether the employer has refused to pay the medical bills incurred, but instead is whether “the employee has not been furnished proper medical attention.” In the instant suit the record shows that plaintiff has been furnished proper medical attention and that he is currently being furnished such attention. Even if we accept plaintiffs argument that defendant has refused to pay some medical and travel expenses, that would not defeat defendant’s exception of prematurity.

See also Moore v. American Motorist Insurance Company, 216 So.2d 674 (La.App. 3d Cir.1968); Ducote v. Harris, 335 So.2d 91 (La.App. 3d Cir.1976); Cooley v. Liberty Mutual Insurance Company, 346 So.2d 1352 (La.App. 3d Cir.1977).

The trial judge considered the evidence and concluded that defendant was meeting his obligation to provide plaintiff with proper medical treatment as well as fulfilling the other obligations of La.R.S. 23:1314, such that plaintiffs allegations were “without reasonable cause or foundation in fact.” requiring his petition to be dismissed. We find no error in this conclusion, nor in the trial judge’s determination that there remained no genuine issue of material fact concerning defendant’s fulfillment of his statutory obligation.

For the foregoing reasons, the decision of the trial court is AFFIRMED.

AFFIRMED.