text:
    STATE of Louisiana, Appellee, v. Jesus RUIZ & Geoffrey Austin Sweeney, Appellants.
    No. 15526-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.
    Stay Order Denied Sept. 19, 1983.
    Writ Denied Nov. 4, 1983.

      Lee E. Ineichen, Jr., Monroe, for appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., 4th Judicial Dist., Nancy F. Gilliland, Asst. Dist. Atty., Monroe, for appellee.
    Before HALL, FRED W. JONES, Jr., and SEXTON, JJ.
   SEXTON, Judge.

Defendants Jesus Ruiz and Geoffrey Sweeney appeal their conviction in a bench trial on August 17, 1982, for the offense of possession of marijuana with intent to distribute, and the subsequent sentence of Ruiz to two and one-half years imprisonment at hard labor and the sentence of Sweeney to one and one-half years at hard labor.

The defendants were jointly charged and jointly tried, and neither presented evidence at the conclusion of the State’s case. The defendants originally assigned nineteen errors, but have not briefed Assignment Nos. 5 or 16. These are therefore deemed abandoned. State v. Domingue, 298 So.2d 723 (La.1974).

FACTS

At approximately 9:45 a.m. on March 9, 1982, narcotics officer David Foy of the Arkansas State Police telephoned Deputy Toney of the Ouachita Parish Sheriff’s Office. Foy advised Toney that a bright yellow 1977 Dodge van with Texas license plate number TJ 4947, containing over eight pounds of marijuana, would be arriving in the Monroe area in fifteen to twenty minutes. Foy further advised Toney that the van would be driven by a Mexican male named Jesus Ruiz, and provided a description of Ruiz. Foy stated that the van would eventually enter 1-20, headed toward Texas. Foy further related that he had a reliable confidential informant who had personally observed the marijuana in the van. Moreover, Foy related he himself had followed the van to the Louisiana state line.

Deputy Toney directed that a broadcast be transmitted to all sheriff patrol units at approximately 11:10 a.m., instructing officers to be on the lookout for the described van. The broadcast instructed officers to stop the described van and detain it for Toney in connection with a drug investigation. At approximately 11:30 a.m., Deputy Donald Duncan stopped a van matching the description given and, upon being advised that Deputy Gary Telano was in the area, waited for Telano to join him. Approximately five minutes later, Deputy Duncan stopped the van, which was headed west on 1-20, just inside Ouachita Parish. Officer Duncan asked the driver, defendant Ruiz, to get out of the van. Duncan confiscated an exposed hunting knife from Ruiz’s belt and then conducted a “pat down” search. Duncan testified that Ruiz was not arrested at that time nor advised of his rights.

In the meantime, Deputy Telano had arrived. After being informed by Duncan that there was a passenger in the van, Telano asked the passenger, defendant Sweeney, to also disembark. Deputy Tela-no advised Sweeney that he was being detained by authority of narcotics officer To-ney. Toney arrived shortly thereafter.

Upon Toney’s arrival, he advised Sweeney of his rights, and stated that he understood marijuana was contained in the vehicle. Toney inquired as to the ownership of the vehicle and requested permission to search it. Sweeney refused to say who owned the van, and was evasive in his responses to Toney’s questioning. At this point, Deputy Toney formally placed Sweeney under arrest and advised him of his rights. A search of Sweeney’s person uncovered a bag of marijuana, a roach clip, a pipe, some pills, and a box of matches. Ruiz was also formally arrested and advised of his rights at that time. A search of Ruiz uncovered approximately $2,500.00 in cash, which was confiscated.

Subsequent to these events, Deputy To-ney decided to transport the van to the metro narcotics unit in Monroe and obtain a search warrant. According to the testimony of Officer Telano, Sweeney, while en route to the jail, advised Telano that he wanted to speak with Deputy Marcus Clark who had been at the scene of the arrest.

Officers Clark and Toney testified that at approximately 3:00 p.m. that same afternoon, they went to Sweeney’s cell, advised him of his Miranda rights, and subsequently interrogated him. According to the officers’ testimony, they asked Sweeney how much marijuana was originally in the van, to which he replied that he had only given Ruiz a ride. The officers testified that Sweeney also told them that there had originally been three bags of marijuana, and that only one remained. Sweeney was apparently operating under the assumption that the deputies had already found the large bag of marijuana concealed in the van since, in response to Toney’s question as to what the bag looked like, Sweeney replied with words to the effect, “Ya’ll already have it.” Toney conceded in his testimony that his response to that reply of Sweeney was to the effect, “I know, but what does it look like?” According to the officers’ testimony, a search warrant was drafted after this interrogation.

A search warrant was signed by a district judge at 5:05 p.m. The search began at 5:2*0 p.m., and was completed at 5:45 p.m. During the course of the search, an animal feed bag full of marijuana weighing just under nine pounds was found in a cabinet in the van.

It was the testimony of the officers that they returned to the jail after the search and interviewed both defendants. A rights waiver form was signed by Sweeney at 6:14 p.m.

The testimony of defendant Sweeney differed in significant respects from that of Officers Toney and Clark. Sweeney denied ever asking to speak with Deputy Clark. He denied being interrogated by police officers at 3:00 p.m. in the afternoon, and insisted that he was questioned later in the afternoon at some time after 5:30 p.m., at which time he was not advised of his Miranda rights. Sweeney insisted, moreover, that at the time of his interrogation he obtained a copy of the search warrant from the officers, attached to which was a “return” invoice from the search. The clear import of Sweeney’s testimony was that the jail cell interrogation occurred only after the search had been conducted.

Excessive Sentences Assignment of Error No. 1

By this assignment, defendant Ruiz complains of his sentence of two and one-half years at hard labor, and defendant Sweeney complains of his sentence of one and one-half years at hard labor — the maximum possible imprisonment for each defendant being ten years at hard labor. LSA-R.S. 40:966. In sentencing Ruiz, the trial judge noted that the 29-year old defendant was married, had a five-year old daughter, and had served three and one-half years in the United States Marine Corps before being discharged for medical reasons. He had completed three semesters of college education and was employed as a truck driver, hauling produce. He supported his parents. Furthermore, the judge noted, Ruiz had a fairly steady employment history, and no previous criminal record.

In sentencing Sweeney, the trial judge noted that the defendant was 26 years old, single, had received two years of college education, and had worked in the oil fields for approximately two years. The judge further noted that Sweeney was attempting to re-enroll in college, and was engaged in oil field work when arrested. The judge also noted a shoplifting conviction in 1976.

In passing sentence, the court concluded that the defendants’ conduct caused serious harm, that there was no strong provocation therefor, and that a lesser sentence would deprecate the seriousness of the offense. He also noted that the defendants were likely to commit more crime if placed on probation and, therefore, were in need of custodial confinement. The judge was apparently motivated by the quantity of marijuana seized, by the fact that a great deal more had apparently already been distributed, and by the large sum of money involved. The court further noted Sweeney’s lesser involvement in the aborted distribution scheme.

Because of the amount of marijuana seized and the amount which had apparently been previously distributed, these sentences are not grossly out of proportion to the severity of the crime; moreover, these sentences constitute a measurable contribution to the goals of deterrence and retribution. State v. Telsee, 425 So.2d 1251 (La.1983). These sentences compare favorably to others having a similar factual basis. State v. Trahan, 425 So.2d 1222 (La.1983); State v. Jenkins, 419 So.2d 463 (La.1982); State v. McDonald, 414 So.2d 735 (La.1982).

•This assignment of error lacks merit.

Bruton Violation Assignment of Error No. 2

The defendant Ruiz complains under this assignment that in this joint trial an oral statement of his co-defendant Sweeney — which was made to Deputy Toney and implicated Ruiz- — was admitted contrary to Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Bruton held that the admission of a statement of a codefendant which implicates the other codefendant, violates the implicated codefendant’s right of confrontation, where the codefendant making the statement does not take the stand.

While the United States Supreme Court has not to our knowledge addressed this precise issue, the Federal Courts of Appeal have made it clear that Bruton is inapplicable to bench trials. “The core of Bruton is that the admission of [the confessing defendant’s statement] against the confessing defendant is tantamount to its admission against his codefendant because the jury will ignore the limitation in deciding the issue of the nonconfessing defendant’s guilt or innocence.” Cockrell v. Oberhauser, 413 F.2d 256, 258 (9th Cir.1969). It has thus been held that the Bruton rule does not apply in a bench trial because it is presumed that the judge is capable of applying the rule of limited admissibility and will consider the proffered statement with respect to the confessor’s guilt alone. United States ex rel Faulisi v. Pinkney, 611 F.2d 176 (7th Cir.1979); Cockrell, supra.

Therefore, this assignment of error lacks merit.

Notice of Statements Assignments of Error Nos. 6 and 7

The defendants complain hereunder that the notice of inculpatory statements required by LSA-C.Cr.P. Art. 768, was untimely since it was not filed until the day of trial. They contend, furthermore, that the contents of the notice were insufficient. In a bench trial, such as this, the defendant is not entitled to the notice provided by Article 768. State v. Korman, 397 So.2d 1346 (La.1981); State v. Himel, 260 La. 949, 257 So.2d 670 (1972). Not being entitled to such notice in the first instance, defendant may not complain of its timeliness or content. These assignments are without merit.

Feed Bag Chain of Custody Assignment of Error No. 8

The defendants contend under this assignment that State Exhibit 3 — the animal feed bag found in the van pursuant to a search warrant — was not sufficiently connected to the case for it to have been properly admissible.

This assignment of error is without merit. With respect to demonstrative evidence, the issue is whether it is more probable than not that the evidence offered is the same as that seized. State v. Roussel, 381 So.2d 796 (La.1980). It is not essential to establish a continuous chain of possession if that probability has been established. State v. Sharp, 414 So.2d 752 (La.1982). Deputy Toney positively identified the exhibit in question as the bag seized from the vehicle, and Susan Rutledge of the crime lab identified it as the item she received from Deputy Toney. This objection goes to the weight of the evidence rather than to its admissibility. State v. Krolowitz, 407 So.2d 1175 (La.1981).

The Stop and Surrounding Events Assignments of Error Nos. 9 and 10

Though difficult to understand because of its convoluted phraseology, Assignment No. 9 apparently contends that Ouachita Parish Deputies did not have probable cause to stop defendants’ van because the timeliness of the information relied on was not demonstrated, nor was the basis of the informant’s knowledge.

Assignment No. 10 complains that the search of Sweeney after the vehicle stop was made prior to arrest, and was unsupported by probable cause.

The vehicle stop herein was made on the authority of Deputy Toney, as a result of information received from Trooper Foy of the Arkansas State Police. The information related by Foy described the vehicle, its driver and the van’s direction of travel. Both Foy and Toney testified that the informant was credible because of previous felony arrests that had been based on information provided by him. They further testified that the marijuana had been personally observed by the informant. Moreover, Foy had verified the information provided by the informant by following the van to the Louisiana state line.

It is axiomatic that officers possessing probable cause may stop and search a vehicle if the information known to the officers would have supported a search warrant if presented to a neutral magistrate. Carroll v. U.S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1924). The information obtained from Trooper Foy was explicit and the basis of his knowledge was stated. While the timeliness of the information was not specifically indicated to Toney, sufficient timeliness is implicit in Foy’s observation of the vehicle and its appearance in Ouachita Parish shortly thereafter. All of these factors combined, furnished probable cause to stop and search this vehicle under the Carroll doctrine. See State v. Trahan, 425 So.2d 1222 (La.1983); State v. Turner, 337 So.2d 1090 (La.1976). This assignment is without merit.

With respect to the search of the defendant Sweeney, Deputies Telano and Toney testified that Sweeney was arrested and searched subsequent to Toney’s arrival. They stated that when Toney arrived, he advised Sweeney of his rights, told him he had cause to believe marijuana was in the vehicle, asked to whom the vehicle belonged, and sought permission to search it. Sweeney’s responses were evasive. Toney then arrested and searched him, finding a bag of marijuana, a pipe, and some pills.

Appellant Sweeney vigorously argues that the information available to the officers indicated that only the described Mexican male, Ruiz, would be in the vehicle. Thus, the officers had no information to connect Sweeney to a criminal offense, and they therefore had no probable cause to arrest him.

Sweeney apparently concedes that the information received by Toney clearly tied Ruiz to the vehicle and the marijuana therein, and established probable cause for the search of the vehicle. The same information which tied Ruiz to the vehicle, also provided probable cause to arrest Ruiz. The serious question thus presented is: Did Toney have probable cause to arrest and search Sweeney incidental to the facts known about Ruiz and the van?

We find that probable cause to arrest Sweeney did in fact exist. As the trial judge noted in his per curiam, Sweeney refused to disclose the ownership of the van, after being advised of his constitutional rights and told that he was being stopped on suspicion of having marijuana in the van. Furthermore, as Deputy Telano testified, Sweeney was evasive. These factors, when coupled with the information concerning Ruiz and the van itself, furnished probable cause for the arrest and contemporaneous search of Sweeney.

We note parenthetically, as pointed out in defendant’s brief, that Deputy Duncan testified that Deputy Telano discovered the bag of marijuana and other items on Sweeney during a “pat search” prior to the arrival of Toney. The trial judge found to the contrary and so noted in his per curiam. Moreover, Officers Toney and Telano specifically testified that the search occurred after Toney’s arrival. Furthermore, Duncan lacked a competent vantage point and unobstructed line of vision from which to observe Sweeney’s search, since he was preoccupied with Ruiz during the search of Sweeney. Thus, there is more than an adequate basis for the trial judge to have accepted the version of Telano and Toney. This finding should not be disturbed by us absent a showing of abuse of discretion. State v. Parkerson, 415 So.2d 187 (La.1982).

In any event, under the circumstances of this stop—which was known by the officers to be based on a drug investigation—Telano clearly had the authority to “pat” Sweeney for his own protection. LSA-C.Cr.P. Art. 215.1. The finding, during that search, of a bulge in the defendant’s pants pocket consistent with the shape and feel of a bag of marijuana—when coupled with the information already known to the officers concerning the van and Ruiz— also constituted probable cause to arrest and contemporaneously search Sweeney.

These assignments of error lack merit.

Search Warrant Assignments of Error Nos. 11, 12, 13, 15 and 3

In Assignment Nos. 11 through 13, the defendants contend that the affidavit in support of the search warrant did not establish probable cause, and contained false information with respect to statements of the defendants concerning a cigar box retrieved from the van subsequent to the initial stop. Assignment No. 15 complains that the statements of Sweeney contained in the affidavit are the tainted fruits of a previous illegal arrest and search. Assignment No. 3 contends that State’s Exhibits 1 through 9 were the fruits of an illegal stop and search and were therefore inadmissible at trial.

The affidavit complained of contains the same information that Deputy Toney testified he received from Trooper Foy, except that it does not recite the fact that Foy had just followed this vehicle to the Louisiana state line. It does state, however, that Foy had “just received” the information. Furthermore, the affidavit recites the results of the search of Sweeney and Ruiz at the scene of the arrest. The affidavit further recites that Toney asked Ruiz about a cigar box located next to the driver’s seat which Toney observed from the open doorway of the van. The affidavit avers that Ruiz responded that it was his personal smoking marijuana. It also states that Sweeney advised Toney and Deputy Clark that, of the three animal feed bags containing marijuana originally in the van, there was only one remaining.

Of course, under Carroll, supra, as we have just discussed, probable cause to stop and search the van existed. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), authorizes the towing of a vehicle to the police station when, as here, it is found “in traffic,” and it is subsequently searched there within a reasonable period of time. The stop of this vehicle and its subsequent search at the station five and one-half hours later, is therefore supported by the Carroll-Chambers doctrine. Thus, the search warrant was superfluous.

Nevertheless, it is obvious that the affidavit furnished probable cause for the issuance of a search warrant. While the statement in the affidavit that Toney had “just received” the information is concluso-ry, that information is only pertinent to the initial stop of the vehicle. It was clear, from the information available to Toney, that the observations related to Trooper Foy by the informant were recently made. Thus, irrespective of the conclusory remark, “just received,” the affidavit itself indicates that it was based on information recently received from an Arkansas trooper, that a vehicle was stopped, and that marijuana was found on the person of one of the occupants and in a cigar box next to the other. The affidavit further states that a large quantity of cash was discovered on one of the defendants, and that one of the occupants stated that there was a large bag of marijuana remaining in the vehicle. All of these factors, when cumulatively considered, furnished probable cause for the issuance of the search warrant.

Assignment No. 11 therefore lacks merit.

Assignment Nos. 12 and 13, which assert that the affidavit contained erroneous statements, are without merit.

Assignment No. 12 complains that Ruiz testified at the motion to suppress that he did not, in fact, tell Toney what was in the cigar box. Assignment No. 12 further contends that Sweeney also testified that he never made any statements to Toney or Clark concerning the animal feed bag containing marijuana. These statements were directly contradicted by the officers and, in fact, Sweeney conceded that shortly after his arrest he requested an opportunity to speak with Deputy Clark. As the trial judge noted in his per curiam, the defendants failed to carry their burden of proof under this assignment. We agree. The defendants did not demonstrate that the trial court abused its discretion in accepting, as credible, the officers’ version of the facts. We therefore do not disturb that finding. State v. Parkerson, 415 So.2d 187 (La.1982).

In Assignment No. 13, the defendants contend that the affidavit states that the cigar box was still in the van at the time the warrant was requested, when in fact it had been removed. The affidavit does not state whether the box was in the van at the time the affidavit was sought. It only states that Ruiz, when asked about it, commented that it contained marijuana for his own use. Assignment No. 13 is therefore without basis.

Assignment No. 15 complains that the statements of Sweeney recited in the affidavit for the search warrant, were the fruits of an illegal arrest and search. This contention is without merit for the reasons we previously expressed in finding the stop, arrest and search to be proper. Assignment No. 3, which complains that the trial court admitted State’s evidence which was the fruit of an allegedly illegal stop and arrest and a tainted search warrant, is likewise without merit for the reasons previously expressed.

Thus, most of the assignments treated in this section of the opinion are predicated upon assertions which have been disposed of adversely to the defendants elsewhere in this opinion. All five assignments are without merit.

Leading Questions Assignments of Error Nos. 17 and 18

By these two assignments of error, the defendants contest the trial court’s failure to sustain objections to leading questions propounded by the State to Deputy Toney and Trooper Foy at the hearing on the Motion to Suppress.

The defense objected when the State asked Foy if the informant had told Foy whether he had made a personal observation of the substance in the van. The State then rephrased the question without eliminating its “leading” or suggestive nature, and the defense urged a second objection which was again sustained. The State attempted to rephrase the question, but it was presented in essentially the same form a third time. On this occasion, the defense objection thereto was overruled.

The State also asked Toney if he had been told by Trooper Foy whether the informant said he had observed the marijuana. The defense’s objection to this question was sustained. The State then propounded the same question with slightly different wording but without eliminating its leading nature. After another defense objection, the State volunteered to restate the question, and did so, by asking Toney what Foy related that the informant said. There was no objection to this question.

The law on the issue of leading questions is well set out in State v. Prestridge, 399 So.2d 564 (La.1981):

“A leading question is one which suggests to the witness the answer he is to deliver; ordinarily, such questions are prohibited when posed to one’s own witness unless the witness is hostile or unwilling. La. R.S. 15:277. The purpose of the rule is to guard against the danger that a witness will acquiesce to a false suggestion. State v. Carthan, 377 So.2d 308 (La.1979). Notwithstanding the general rule, a verdict should be disturbed on appeal only where there is a clear abuse by counsel, calculated to prejudice the rights of the accused. State v. Quincy; 363 So.2d 647 (La.1978). In any event, the matter is largely within the discretion of the trial judge; absent a palpable abuse of his discretion, a finding of reversible error is unwarranted. State v. Fallon, 290 So.2d 273 (La.1974).”

With respect to the question propounded to Toney, it was finally restated in a form which, though probably leading, was not objected to. While it can be persuasively asserted that the question to Trooper Foy was leading, we find no palpable abuse of discretion requiring the finding of a reversible error. Quincy, supra; Fallon, supra.

These assignments of error are without merit.

Statements of Defendants Stemming from Stop and Search Assignments of Error

Nos. 14, 19 and 4

These assignments are all without merit as they contend, in one fashion or another, that the statements of Ruiz and Sweeney resulted from a tainted stop, an illegal arrest, or an improper search warrant. The stop, the arrest and the warrant have all been previously found valid by us, and these assignments are without merit for the reasons previously expressed.

Assignment No. 14 does additionally contend that defendants’ statements were coerced. The trial court stated in its per curiam that the State bore its burden of proof, under LSA-C.Cr.P. Art. 703, in establishing that the statements sought to be excluded were voluntary and thus admissible. This finding is amply supported by the record and will not be disturbed unless unsupported by the evidence. State v. Castillo, 389 So.2d 1307 (La.1980); State v. Fisher, 380 So.2d 1340 (La.1980); State v. Matthews, 354 So.2d 552 (La.1978).

The convictions and sentences of the defendants are therefore affirmed.

AFFIRMED.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    Donald Roy FAUST, Plaintiffs-Appellants, v. MITCHELL ENERGY CORPORATION, Defendant-Appellee.
    No. 15527-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.
    Rehearing Denied Sept. 29, 1983.

      Blackwell, Chambliss, Hobbs & Henry by Frank N. Chambliss, West Monroe, for plaintiffs-appellants, Donald Roy Faust, Parker Town Cemetery Ass’n, and Roy S. Faust.
    Hargrove, Guyton, Ramey & Barlow by Joseph L. Hargrove, Jr. and A.L. Wedge-worth, III, Shreveport, for defendant-appel-lee.
    Before HALL, FRED W. JONES, Jr. and SEXTON, JJ.
   HALL, Judge.

In this concursus proceeding brought by Mitchell Energy Corporation to determine entitlement to the proceeds of a unit well attributable to a three-acre cemetery tract included in the unit, three sets of claimants are involved:

(1) The heirs of A.F. Parker who originally owned a larger tract of land which included the tract on which a community cemetery was established in the late 1800s with the consent of the Parker family, and their mineral lessee;
(2) The Parker Town Cemetery Association, an unincorporated Association composed of residents of the community, which has used and maintained the three-acre tract as a public cemetery, and the Association’s mineral lessee; and
(3) The Maxwell heirs whose ancestor purchased a 40-acre tract which included the cemetery property at tax sale in 1931, the sale being made for nonpayment of taxes assessed to A.F. Parker.

The Parker heirs did not answer the con-cursus petition and after the procedure prescribed by LSA-C.C.P. Art. 4657 was followed, judgment was rendered precluding them from asserting a claim in this proceeding.

After trial between the Cemetery Association and Mitchell Energy, who asserted the Maxwell heirs’ claim under a contract by which the Maxwell group agreed to be bound by any judgment rendered in this proceeding, the district court found that neither claimant had established the right to prevail in a possessory action or any title to the land on which the cemetery is located. Accordingly, judgment was rendered declaring that none of the respective sets of claimants is entitled to the proceeds from production from the unit well. The Cemetery Association appealed and Mitchell Energy answered the appeal.

The parties agree that this proceeding is governed by LSA-C.C.P. Art. 3654 which provides:

“When the issue of ownership of immovable property or of a real right therein is presented in an action for a declaratory judgment, or in a concursus, expropriation, or similar proceeding, or the issue of the ownership of funds deposited in the registry of the court and which belong to the owner of the immovable property or of the real right therein is so presented, the court shall render judgment in favor of the party:
(1) Who would be entitled to the possession of the immovable property or real right therein in a possessory action, unless the adverse party proves that he has acquired ownership from a previous owner or by acquisitive prescription; or
(2) Who proves better title to the immovable property or real right therein, when neither party would be entitled to the possession of the immovable property or real right therein in a possessory action.”

The Parker Town Cemetery Association contends that it is the owner of the disputed tract of land by virtue of 30-years acquisitive prescription. Alternatively, it contends that it would be entitled to prevail in a possessory action, and is therefore entitled to the proceeds from the unit well. Further in the alternative, the Cemetery Association and its lessee contend that the lessee is entitled to prevail in a possessory action as to the mineral rights because the lessee is presumed to have been producing minerals from this tract and thereby exercising possession thereof by virtue of the conservation unit which has the effect of attributing part of the minerals produced from the unit well to the tract in question. The Cemetery Association further contends that the 1931 tax sale to Mitchell is an absolute nullity because places of burial were exempt from ad valorem taxation under Article 10, § 4 of the 1921 Constitution.

Mitchell Energy contends that the Maxwell heirs are the owners of the tract by virtue of the tax sale, or that as the record owners under the tax sale they have better title than the Cemetery Association and are entitled to the proceeds which are the subject of the concursus proceeding.

The judgment of the district court is correct. In this concursus proceeding involving ownership of immovable property or a real right therein and the ownership of funds in the hands of the party provoking the proceeding, neither of the sets of claimants remaining in the proceeding has established a right to prevail in a possessory action, nor has made out title to the property, nor has proved better title to the property than the other claimant.

In order to maintain a possessory action a party must establish that he has possessed the property quietly and without interruption for more than a year prior to a disturbance. LSA-C.C.P. Art. 3658. The type of possession required in a possessory action is identical to that required to commence the running of acquisitive prescription. Norton v. Addie, 337 So.2d 432 (La.1976). A person must possess for himself, and as owner. LSA-C.C.P. Art. 3660; LSA-C.C. Art. 3424. The grantee of a real right possesses both for himself and the owner. The grantee is a precarious possessor vis-a-vis the owner insofar as the ownership of the property itself is concerned. Regarding his real right in the property the grantee possesses for himself and thus may bring a possessory action against the owner as well as others to be maintained in the enjoyment of the right granted. LSA-C. C.P. Art. 3656; Parkway Development Corp. v. City of Shreveport, 342 So.2d 151 (La.1977).

The possession of the Cemetery Association and the group of community residents which it represents is precarious and not as owner insofar as the ownership of the property and the mineral rights is concerned. The precise nature of the right of the public or individuals or entities using and maintaining property for cemetery purposes is not clear. However, it is clear from the reported cases that such right, although a real right, is not ownership of the property but is more in the nature of a right of use or servitude or covenant running with the land.

In Locke v. Lester, 78 So.2d 14 (La.App. 2d Cir.1955) the court held that the reservation of a tract of land for use by the public as a burial ground or cemetery and its continuous use by the general public since it was set apart as a burial ground, is legally sufficient to dedicate the property for public use. A parcel of land or property dedicated for use by the general public as a cemetery and which continues to serve that public purpose is classified as a public thing under provisions of the Civil Code and as such is not susceptible of ownership, cannot be alienated, and is not subject to prescription. The court held that the family members who had relatives buried in the cemetery and who cared for and maintained the cemetery had “a species of interest or form of title”, citing Humphreys v. Bennett Oil Corporation, 195 La. 531, 197 So. 222 (1940) and Choppin v. Dauphine, 48 La.Ann. 1217, 20 So. 681 (1896). In these latter two cases the court, while holding that the owners of the property on which the cemeteries were located could not engage in activities inconsistent with use of the property as cemeteries, nevertheless impliedly recognized that ownership of the property remained in persons other than the persons who were exercising use and possession of the property for cemetery purposes. See also Thomas v. Mobley, 118 So.2d 476 (La.App. 1st Cir. 1960).

In Vidrine v. Vidrine, 225 So.2d 691 (La.App. 3d Cir.1969) the court held that property used as a cemetery with the consent of the owner of the land was dedicated for cemetery purposes by virtue of the long and exclusive use of the property for these purposes. This dedication is in the nature of an irrevocable covenant running with the land. It is a real right, not a servitude or usufruct, but an implied contractual relationship that binds the owner irrevocably. The essence of the opinion, as noted in a concurring opinion, was that a dedication of a public cemetery results in retention of the naked title by the record owners, subject to an irrevocable dedication for public cemetery use.

The right of the Parker Town Cemetery Association or the public generally is a species of title in the nature of a real right and the Association or the public generally could maintain a possessory action to protect the enjoyment of the right to use, possess, and maintain the property for cemetery purposes. The possession of the Cemetery Association is not as owner of the property and the Association is not entitled to maintain or prevail in a possessory action as it relates to the land itself and the incidents of ownership thereof including the mineral rights therein, as distinguished from the right to possess the property for cemetery purposes only. For the same reasons that the Cemetery Association cannot maintain a possessory action, its claim to ownership by acquisitive prescription must fall.

The alternative claim of the Cemetery Association and its lessee that they are presumed to have been in possession of the mineral rights by reason of production from the unit well, a part of which is attributable to the property in dispute, must also fall. This is a “bootstraps” argument which has no merit in light of the holding that the Cemetery Association has no title to or ownership of the property and has not possessed the property as owner. The drilling of a unit well by others on other property cannot be considered as possession of the mineral rights in and to the subject property by the Association or its lessee sufficient to support a possessory action under LSA-C.C.P. Art. 3665.

The claim of ownership or better title by the Maxwell heirs is based on the 1931 tax sale to their ancestor. The trial court correctly held that the tax sale is an absolute nullity.

Article 10, § 4 of the 1921 Constitution, in effect at the time of the tax sale, expressly exempted “places of burial” from taxation.

In Bostwick v. New Hope Baptist Church, 111 So.2d 201 (La.App. 2d Cir.1959) the plaintiff sought to be recognized as the owner of a 39-acre tract of land he purchased at tax sale in 1941. A portion of the property containing 1.25 acres had been used for many years as a burial ground for the people of the community. The court held that the plaintiff did not acquire a valid title to that part of the property used as a cemetery and that a tax sale of property exempt from taxation is null and void and has no effect. As a cemetery is specifically exempt from taxation under the constitution, there could be no taxes due and therefore no valid tax sale as to any portion actually being used as a burial ground. The court compared the tax sale of exempt property to the sale of the property upon which the taxes have previously been paid which sales, according to settled jurisprudence, are absolute nullities not curable by the prescriptive periods provided in the constitution.

It matters not that title to the property was in Parker at the time of the tax sale and the property was not shown on the tax rolls as cemetery property. The traditional test of exemption is based upon the use of the property for a tax-exempt purpose, rather than upon whether title to the property is vested in a tax-exempt institution. State v. Anderson, 116 So.2d 80 (La.App. 1st Cir.1959); Martin v. Louisiana Central Lumber Co., 150 La. 157, 90 So. 553 (1920).

Mitchell Energy on behalf of the Maxwell heirs argues that there are only three causes for which a sale of property for taxes may be set aside after the lapse of five years after date of registration of the tax deed, namely, prior payment of taxes, continued physical possession by the tax debtor, and no assessment, citing Gulotta v. Cutshaw, 283 So.2d 482 (La.1973). It is argued that the sale of exempt property does not fall into one of these three categories and therefore may not be set aside after the five-year peremptive period has run.

There are numerous cases which hold that a tax sale of property not subject to assessment for taxes is an absolute nullity not protected by the constitutional peremptive period. The Bostwick case discussed above is directly in point. Board of Commissioners Caddo Levee Dist. v. Brooks, 209 So.2d 514 (La.App. 2d Cir.1968) recognized an unbroken line of jurisprudence which holds that a tax sale of public property which is exempted from taxation under the same constitutional article which exempts places of burial is an absolute nullity not protected by the constitutional peremptive period. See also Richard v. Perrodin, 116 La. 440, 40 So. 789 (1906).

Since the tax sale on which the Maxwell heirs base their claim of title or better title is an absolute nullity it cannot be said that they have a better title than the other claimants.

The district court correctly concluded that neither of the claimants remaining in the proceeding after the Parker heirs were barred from making a claim by reason of failure to answer the concursus petition are entitled to the proceeds from the production from the unit well attributable to the cemetery tract. Accordingly, the judgment is affirmed. Costs of the appeal are assessed equally to the Parker Town Cemetery Association and Mitchell Energy Corporation.

Affirmed.


author: MARVIN, Judge.

text:
    Thelma Elizabeth FIELDS, Plaintiff-Appellant, v. WESTERN PREFERRED CASUALTY CO., et al., Defendants-Appellees.
    No. 15528-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.
    Writ Denied Nov. 4,1983.

      Blackwell, Chambliss, Hobbs & Henry by Chet Harrod, West Monroe, for Thelma Fields, plaintiff-appellant.
    Bruscato, Loomis, Deal & Street by C. Daniel Street, Monroe, for Herbert E. Mun-holland, Jr., defendant-appellant.
    Hayes, Harkey, Smith & Cascio by Charles S. Smith, Monroe, for Western Preferred Cas. Co., defendant-appellee.
    Thomas G. Fields, in pro. per., defendant-appellee.
    Hudson, Potts & Bernstein by Ben R. Hanchey, Monroe, for Allstate Ins. Co., defendant-appellee.
    Before PRICE, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

In this action for damages arising out of an automobile accident, summary judgment gave effect to an endorsement to Munhol-land’s liability policy which excluded liability coverage for a named employee of Mun-holland, who was driving a Munholland vehicle in the course of his employment when the accident occurred. The summary judgment in favor of the insurer is appealed by plaintiff, who was the driver of the other vehicle involved, and by Munholland, who is a co-defendant in the action.

The issue is whether the statutory omnibus coverage provision of the Compulsory Motor Vehicle Liability Security Law, LRS 32:861 et seq., applies to negate or override the effect of the endorsement which says that no liability coverage shall be afforded while Munholland’s insured vehicles are being driven by a particular employee. This employee had a bad driving record and Munholland elected to exclude him from coverage to avoid paying an excess premium. The accident occurred on that employee’s last day of work.

Louisiana enacted its Compulsory Motor Vehicle Liability Security Law by Act 115 of 1977, effective January 1, 1978. This policy was written in December 1981 and the endorsement excluding coverage of the named employee was added shortly after the policy was written. Notwithstanding the arguments of counsel regarding retroac-tivity, the amendments to the law by Act 926 of 1981 do not affect this action and the retroactivity of the 1981 amendments is not an issue in this appeal.

The insurer relies on eases such as Smith v. Western Preferred Cas. Co., 424 So.2d 375 (La.App. 2d Cir.1982), writ denied, and Hudson v. Thompson, 422 So.2d 640 (La. App. 3d Cir.1982). Smith upheld a named driver exclusion in an automobile collision policy. Hudson upheld a named driver exclusion in an automobile liability policy but did not consider the effect of the Compulsory Motor Vehicle Liability Security Law on the named driver exclusion. This issue has been squarely presented in the courts of other states and is presented in this appeal.

Compulsory liability security laws are in effect in a great majority of the 50 states and are to be distinguished from financial responsibility laws. A compulsory liability security law requires an owner of a motor vehicle to purchase or provide either a liability “bond,” a certificate of self-insurance, or a policy of liability insurance in specified amounts, as a prerequisite to registering a motor vehicle under state law. See Couch, § 45:679-682, 721, 725. A financial responsibility law, such as Louisiana adopted in Act 52 of 1952, has similar monetary requirements, but is not a prerequisite to registration of the vehicle and applies only after an accident has occurred. A financial responsibility law effectively allows a motorist one “free” accident. Couch, § 45:679.

The purpose of the compulsory law is not to protect the owner or operator against liability, but to provide compensation for persons injured by the operation of insured vehicles. Couch, § 45:682. Compare LRS 22:655.

A statutory omnibus clause super-cedes conflicting policy provisions. Couch, § 45:687, 697, 698, 714.

“[T]he inclusion of an omnibus clause ... is commonly required by ... compulsory insurance statutes ... and by financial responsibility acts.... The omnibus statutes must be read as part of a statutory scheme regarding compensation for traffic accident victims ... And exclusions or limiting provisions [in the policy] are invalid unless they are allowed by the Statute.” Couch, § 45:309

LRS 32:861 requires that every motor vehicle registered in Louisiana shall be covered by a liability policy as defined by LRS 32:900 or by a liability bond or by a certificate of self-insurance. LRS 32:900 says that the liability policy shall insure the person named in the policy and any other person using the motor vehicle with the permission of the named insured against loss from the liability for damages arising out of the use of that motor vehicle subject to limits of $5,000 for bodily injury or death to one person, $10,000 to two or more persons, and $1,000 for damage to property of other persons. § 900 B(2). Other subsections of § 900 strongly suggest that the policy provisions shall not conflict with the statute and that the statute imposes coverage obligations which the policy itself may not have imposed on the insurance carrier. The emphasis is ours:

“The policy, the written application therefor, if any, and any rider or endorsement which does not conflict with the provisions of the Chapter shall constitute the entire contract between the parties.” LRS 32:900 F(4).
“Any motor vehicle liability policy may provide that the insured shall reimburse the insurance carrier for any payment the insurance carrier would not have been obligated to make under the terms of the policy except for the provisions of this Chapter.” LRS 32:900 H.'

When we construe § 861 (Act 115 of 1977) with § 900 (Act 52 of 1952), the statutory scheme of the Louisiana Compulsory Motor Vehicle Liability Security Law generally conforms to the scheme of similar laws of other states as are explained and analyzed in Couch, cited supra. Appelman, §§ 4353ff., and Blashfield, §§ 292.9ff., are in accord with the Couch pronouncements. If a policy of liability insurance is written on a Louisiana motor vehicle, the minimal liability coverage is controlled by the statute and the statutory omnibus coverage provision will override or supercede a policy provision or endorsement excluding a named driver.

Compulsory liability insurance has been limited to the statutory ceiling, notwithstanding greater policy limits which might be afforded by “stacking” of coverage on two or more automobiles, as in the case of uninsured motorist coverage. Arado v. Central National Ins. Co. of Omaha, 337 So.2d 253 (La.App. 4th Cir.1976), writ refused. Similarly, other states have held that the courts will reform a liability policy not in compliance with the compulsory law only to the extent to make the policy comply with the law. See and compare Couch, § 45:692, 740, 742, and cases there cited. Accordingly, we shall recognize that this policy should be “reformed” only up to the ceiling required by the Compulsory Motor Vehicle Liability Security Law, LRS 32:861, 900.

A compulsory liability policy is to be construed against the insurer and in favor of the insured in order to accomplish its purpose. Couch, § 45:691. While LRS 32:900H allows a provision requiring the reimbursement to the insurer by the insured of amounts the insurer would not have been obligated to pay except for the statutory requirements, the reimbursement provision of this policy is effective “[w]hen this policy is certified as proof of financial responsibility for the future under the provisions of the motor vehicle financial responsibility law ...” § 9 of policy conditions. This policy has not been so certified and the declarations page of the policy declares that “this policy ... does not comply with any financial responsibility law.”

Summary judgment is REVERSED at the cost of appellee and this action is remanded for further proceedings.


author: PRICE, Judge.

text:
    Lutches D. SINGLETON, Plaintiff-Appellant, v. BUSHNELL & COMPANY, Defendant-Appellee.
    No. 15530-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.

      Brittain & Williams by Joe Payne Williams, Natchitoches, for plaintiff-appellant.
    Hicks & Brown by Donald R. Brown, Alexandria, for defendant-appellee.
    Before PRICE, MARVIN and SEXTON, JJ.
   PRICE, Judge.

This is a worker’s compensation suit in which the claimant appeals the trial court judgment holding that he is not entitled to disability benefits for the period in which he returned to his regular employment following his injury, and denying his claim for penalties and attorney’s fees.

On May 5, 1982, in the course of his employment with Pardue Timber Company, claimant Lutches Singleton was struck on the right side of his head by a falling tree. As a result of this accident, he sustained severe lacerations and began to experience severe headaches, dizziness, numbness and pain in his right arm, and vision problems.

Plaintiff was originally treated by Dr. John Robinson, a general physician who sutured his lacerations and pronounced him able to return to work on May 17,1982. He returned to work for Pardue Timber Company, but testified at trial that he continued to experience the headaches and dizziness. His employment with Pardue was terminated on July 23, 1982, as the result of an incident unrelated to this suit.

Plaintiff thereafter began seeing another general physician, Dr. Raymond Dennie, who hospitalized him from July 27 to August 3, 1982, for treatment to alleviate the headaches and for further testing to determine the exact underlying cause of the symptoms. It should be noted that this claimant is difficult to examine and treat because he was born a deaf mute and has received no education or formal training in traditional sign language. He has evolved his own form of communication with his family and communicates with others through their interpretation.

The plaintiff was placed on various medications to help relieve his pain, and at the time of trial Dr. Dennie had determined to refer him to a neurologist for further examination. Dr. Dennie was of the opinion that claimant is totally and permanently disabled as a result of the May 5, 1982 accident. The case was held open after trial for the admission into evidence of the report of Dr. Arsham Naalbandian, the neurologist who subsequently examined the plaintiff. He concurred with Dr. Dennie that the plaintiff was unable to return to work, although no specific cause for the problems could be diagnosed upon the first examination.

The trial court held that plaintiff is disabled as a result of the May 5, 1982 injury. He found as a fact, however, that he was not disabled during the two month period in which he returned to work following the accident, but experienced a progression of symptoms culminating in a definite disability by July 27, 1982, the date on which he was hospitalized. He further found that the failure of defendants to pay compensation and expenses was not arbitrary or capricious and denied plaintiff’s demand for penalties and attorney fees.

The claimant’s disability is not at issue on appeal. Plaintiff contends the trial court erred in allowing defendants a credit for the period in which he returned to work following the injury. We recognize that, where a disabled employee returns to his former employment despite his disability, the rule is that the employer is entitled to no credit for the wages paid where they are fully earned. Futrell v. Hartford Accident and Indemnity Company, 276 So.2d 271 (La.1973); Mayes v. Louisiana-Pacific Corporation, 379 So.2d 46 (La.App. 3d Cir.1979), writ denied, 381 So.2d 1232 (La.1980).

There is no doubt in the instant case that the claimant fully earned the wages he received for his labors from May 17,1982 to July 23,1982. However, the trial court did not allow a credit for these wages as plaintiff contends. It simply held he was not entitled to compensation benefits for total disability during this period. He obviously felt that the difficulty experienced by plaintiff in performing his labor at that time was not substantial enough to preclude him from employment. Thus he would not be entitled to benefits. See Lattin v. Hica Corporation, 395 So.2d 690 (La.1981); Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981). In light of plaintiff’s release by Dr. Robinson, his failure to complain of difficulty in performing his work duties to his employer or coemployees, and his failure to seek further medical treatment during this time, we see no clear error in the trial court’s holding.

Plaintiff further contends the trial court committed error in finding that defendant was not arbitrary and capricious in refusing to pay benefits, and thus not liable for penalties and attorney fees. He argues that the employer was not entitled to rely upon the positive medical report by Dr. Robinson that plaintiff could return to work, and should have reinstated benefits upon receipt of Dr. Dennie’s report indicating that he remained disabled, relying on Walker v. Gaines P. Wilson and Son, Inc., 340 So.2d 985 (La.1976).

It is well settled that the statutory provision authorizing assessment of penalties and attorney fees against an employer whose failure to timely pay benefits is found to be arbitrary, capricious, or without probable cause is penal in nature. It is to be strictly construed and the stipulated sanctions should be imposed only in those instances in which the facts negate probable cause for non-payment. Crawford v. Al Smith P. & H. Service, Inc., 352 So.2d 669 (La.1977).

The trial court’s determination of the right to penalties and attorney’s fees is essentially a fact question and should not be reversed unless a review of the record indicates that the refusal of the award was clearly wrong. Where the circumstances of the case exhibit a good faith dispute between the parties concerning the compensa-bility of plaintiff's claim, failure to timely commence payment of benefits is not arbitrary, capricious, or without probable cause. See Martin v. Rollins Services Inc., 424 So.2d 429 (La.App. 4th Cir.1982); Urbina v. Alois J. Binder Bakery Inc., 423 So.2d 765 (La.App. 4th Cir.1982).

The Supreme Court in Walker, supra, stated that an employer may not avoid penalties for arbitrary non-payment solely on the basis of its reliance on an initial optimistic medical report. Such reliance must be in good faith and show probable cause for refusal to pay in light of the later information.

Rockwood was notified of plaintiff’s hospitalization of July 27 on July 29, 1982. Plaintiff’s employer submitted the hospital bill to the insurer through his insurance agent. The defendant chose to simply ignore the bill, maintaining there was no connection between it and plaintiff’s previous injury. Defendant’s claims adjuster, Mr. Mink, testified he never tried to check the hospital records nor did he contact Dr. Den-nie to determine whether the hospitalization was related to the accident. Even after receiving a report on plaintiff’s treatment from Dr. Dennie, defendant steadfastly refused to pay plaintiff’s medical expenses and failed to make any further investigation to determine its liability for these expenses.

In our view, this failure to make further inquiry with regard to the claimant’s medical bills portrays just such an attitude of indifference as the penalty provision is- intended to discourage. See Antilley v. Sentry Ins. Co., 426 So.2d 1370 (La.App.3d Cir.1983); Alexander v. Department of Culture, etc., 410 So.2d 1286 (La.App.3d Cir. 1982). This court finds Rockwood’s refusal to pay plaintiff’s hospital expenses, which remained unpaid at the time of trial, arbitrary and capricious and reverse the holding of the trial court in this respect. Claimant is entitled to an award of attorney’s fees and statutory penalties on $1,454.20 in unpaid medical expenses. See also Andrews v. Pine Hill Wood Go., 426 So.2d 196 (La. App.2d Cir.1982).

In light of the difficulty involved in representing this client, a deaf mute, and the work done on appeal, we assess attorney’s fees at $3,500.

We cannot say, however, that the trial court was clearly wrong in concluding that defendant was not arbitrary and capricious in refusing to pay disability benefits. The record shows plaintiff returned to work when released by Dr. Robinson and worked several weeks without complaining of his difficulties to his employer. He sought no medical treatment during this period. Furthermore, there were conflicting medical opinions from physicians who were both in the field of family practice, and plaintiff had not been examined by a neurosurgeon at the time of trial. Under the circumstances, the trial court’s finding is amply supported by the evidence.

For the reasons assigned, the judgment appealed is reversed with respect to statutory penalties and attorney’s fees, and judgment is awarded in favor of plaintiff, Lutches D. Singleton, and against defendant, Rockwood Insurance Co., in the amount of 12% statutory penalties on $1,454.20 in medical expenses ($174.50), together with $3,500.00 in attorney’s fees. In all other respects, the judgment of the trial court is affirmed.

REVERSED and RENDERED.


text:
    STATE of Louisiana v. Frank JOHNSON.
    No. K-1137.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 23, 1983.

      Before BARRY, CHIASSON and WARD, JJ.
   WRIT MADE PEREMPTORY

Frank Johnson, previously convicted of manslaughter, was charged with armed robbery, escaped, and when found was charged with possession of a firearm by a convicted felon under R.S. 14:95.1. A Motion to Suppress was granted and the State seeks review based on exigent circumstances which pretermitted the necessity of a search warrant prior to entering the dwelling where Johnson was apprehended.

At the hearing only one witness, Sgt. Ronald Harrison, testified that at approximately 4:30 p.m. on February 13, 1983, after receiving information from a confidential informant who had been helping for several months, he and Lt. Lacour proceeded to 2602 Sixth Street with an arrest warrant for Johnson. The informant reported that Johnson was inside the Sixth Street address which was his mother’s home. It was known he normally lived across the street with his grandmother at 2705 Belmont (the address on the arrest register), but he was “in and out of both places.” The two officers entered the house and found Johnson in a bedroom lying between two mattresses and under a sheet. Johnson was arrested and two guns were found under the sheet on Johnson’s right.

A search without a warrant is presumably unreasonable unless justified by one of the narrowly drawn exceptions. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Once a warrantless search is shown (undisputed here) the State must affirmatively show the search was justified under one of the exceptions. One recognized exception is a search incident to a lawful arrest made of the person and the area within his immediate control. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Wichers, 392 So.2d 419 (La.1981).

The U.S. Supreme Court has held that an arrest warrant does not protect the Fourth Amendment interests of a person not named in the warrant when the home of the person not the subject of the arrest warrant is searched, absent consent or exigent circumstances. Steagald v. U.S., 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). In Steagald the constitutional challenge was raised by the person whose house was searched.

Johnson cannot contend his constitutional right to be secure in his own home against an unreasonable search had been violated because he was not arrested in his home, but at his mother’s house. He apparently claims the entry into his mother’s house without a search warrant violated his constitutional rights under the 1974 Louisiana Constitution, Art. 1 § 5. Therefore, the narrow issue before us is whether, under our State Constitution, the subject of an arrest warrant who is seized in another person’s house which was entered without a search warrant, or consent, or under exigent circumstances, was “adversely affected” so as to require suppression of evidence seized incident to his arrest.

In State v. Barrett, 408 So.2d 903 (La.1981), a case with essentially identical facts, the Louisiana Supreme Court held that a search pursuant to a valid arrest warrant was not affected by the entry into the house of a third person. In Barrett, the police had received information from a reliable confidential informant that the defendant, a parole violator, could be temporarily found at a certain address but that Barrett would probably be leaving that evening as police were concentrated in the area. The police proceeded to the address to execute an outstanding arrest warrant. An unidentified male answered the door and told the police Barrett was in the rear of the apartment. The police located Barrett, placed him under arrest, and performed a pat-down search. The search produced two types of narcotics and Barrett was then advised that he was also under arrest for possession of narcotics. Barrett attempted to suppress the evidence arguing that under La. Const. Art. 1, § 5 (1974) he was “adversely affected” by the illegal entry into Condriff’s (a third party’s) house, and he (Barrett) had standing to raise its illegality. The Court stated:

Had defendant been arrested in his own home, under [Payton v. U.S., 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)] the arrest warrant would have been adequate to safeguard his constitutional rights. Hence, if we were to agree with defendant’s contention, the result would be that he would enjoy greater protection against “unreasonable searches, seizures, or invasions of privacy” in the house of a third party than in his own home. On the other hand, we recognize that but for the fact of defendant’s presence in Condriff’s house, he would not have been arrested and evidence seized from his person. Nonetheless, we are not prepared to say that, within the meaning and purpose of our constitutional provision, defendant was “adversely affected” by the illegal entry into Condriff’s house so as to require suppression of the evidence seized from his person. We do not consider that the previously issued valid arrest warrant was affected by the illegal entry into Condriff’s house. Nor did it affect the search of defendant made as an incident to that arrest within the area of his immediate control. Hence, the trial judge properly denied defendant’s motion to suppress. (Emphasis in original).

We are satisfied the arrest warrant adequately protected any privacy interest that Johnson had in his mother’s house. Johnson was not so “adversely affected” by the illegal entry which would require suppression of evidence seized within the area of his immediate control and incidental to his arrest. State v. Barrett, supra.

The judgment of the district court is reversed, the Motion to Suppress is denied, and the case remanded for further proceedings.

      . The reliability of the informant was not questioned at the hearing.

      . Art. 1 § 5 provides:
      Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.


author: GULOTTA, Judge.

text:
    STATE of Louisiana v. Lionel REED.
    No. K-1214.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 1, 1983.
    Harry F. Connick, Dist. Atty., Bruce G. Whittaker, Asst. Dist. Atty., New Orleans, for the State.
    Harold J. Wheeler, New Orleans, for defendant.
    Before REDMANN, GULOTTA and LO-BRANO, JJ.
   GULOTTA, Judge.

In this writ application, the State seeks to set. aside the sentence of the trial court suspending the prison term of a habitual offender whose most recent conviction was for possession of heroin. As part of the sentence, defendant was enrolled in a drug rehabilitation program.

Upon consideration of the application and the response, we conclude the trial court erred when it suspended the sentence.

Defendant argues that State v. Jones, 327 So.2d 417 (La.1976), which held that a multiple offender is eligible for suspension of sentence if he enters a recognized narcotics rehabilitation program, supports the trial court’s suspension of defendant’s sentence. But unlike the instant case, the defendant in Jones was convicted on non-narcotic related charges, and, at the time, LSA-R.S. 40:966 (under which the defendant was convicted in the instant case) had not been amended to prohibit the suspension of sentence.

In State v. Wimberly, 414 So.2d 666 (La.1982), the Supreme Court recognized that upon a defendant’s conviction for a second felony offense, LSA-C.Cr.P. Art. 893 divests the sentencing judge of his discretion to suspend the defendant’s sentence. Moreover, the defendant in the instant case was convicted for possession of heroin in violation of LSA-R.S. 40:966 C(l), which prohibits the suspension of sentence for such offense. See State v. Foret, 380 So.2d 62 (La.1980).

Accordingly, the sentence imposed is vacated and set aside. The matter is remanded to the trial court for resentencing.

      . LSA-R.S. 40:966 provides in pertinent part:
      “C. Possession. It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance classified in Schedule I unless such substance was obtained directly, or pursuant to a valid prescription or order from a practioner or as provided in R.S. 40:978, while acting in the course of his professional practice, or except as otherwise authorized by this part. Any person who violates this subsection with respect to:
      (1) A substance classified in Schedule I which is a narcotic drug (all substances in Schedule I preceded by an ‘ * ’), shall be imprisoned at hard labor for not less than four years nor more than ten years without benefit of probation or suspension of sentence and may, in addition, be required to pay a fine of not more than five thousand dollars.”

      . LSA-C.Cr.P. Art. 893 provides in pertinent part:
      “A. When it appears that the best interest of the public and of the defendant will be served, the court, after conviction of a felony for which the punishment is with or without hard labor or a felony which is a violation of the Controlled Dangerous Substances Law of Louisiana, noncapital feiony, may suspend for the first conviction only the imposition or execution of any sentence, where suspension is allowed under the law (our emphasis) and in either case place the defendant on probation under the supervision of the division of probation and parole supervision... .
      B. The court under the same conditions and by the same procedure as provided for above (our emphasis) may suspend the execution or imposition of the sentence of a multiple offender who has been convicted, in the instant offense, of a violation of the Controlled Dangerous Substances Law of Louisiana, other than the production, manufacture, distribution, or dispensing, or possession with intent to produce, manufacture, distribute or dispense, or the attempt to produce, manufacture, distribute or dispense, or the attempt to possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance, and place the defendant on probation if he intends to participate in the program authorized by the Federal Narcotics Rehabilitation Act or other federal or state rehabilitation programs ... . ”


author: REDMANN, Chief Judge.

text:
    Janice Broussard, Wife of Joseph J. BURRELL, Jr. v. Joseph J. BURRELL, Jr.
    No. CA-0605.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 13, 1983.

      Trudy H. Oppenheim, New Orleans, for Janice Broussard Burrell.
    Dudley D. Flanders, New Orleans, for Joseph J. Burrell, Jr.
    Before REDMANN, C.J., and GULOTTA and LOBRANO, JJ.
   REDMANN, Chief Judge.

An ex-wife with custody of two minor children appeals from a judgment that refused her use of the family residence and decreased the child support payable to her by her ex-husband from $250 every two weeks to $175 on the 1st and 15th of each month. We reverse.

As to the family residence, the trial judge reasoned “The family home will remain as is subject to the partition of the community rather than to have both families uprooted and then have to be uprooted again when the family home is sold.”

That reasoning errs in its foundation, namely that both families will be “uprooted” twice. The father, if obliged to move from the family home to let the mother and his children live there, need only move once, and he must move once anyway when the house is sold. The mother and children must move a second time when the house is sold (unless the mother buys the house or rents it from the buyer — a conjecture we need not deal with), but, if one views that as a hardship, it is a hardship that the mother seeks for herself (and that she presumably deems less a hardship than having her children sleeping on the living-room floor during the hot season at her father’s house). A court might tell her that she could not oblige her ex-husband to undergo the hardship of moving twice (if that were the case) for her temporary gain, but a court cannot tell her that she cannot herself undergo it for temporary gain. (“Temporary,” in this case, has now become over a year since trial.) The father’s moving out of the house to let the mother and children occupy it is no hardship other than an advance in the timing of the move he must make when the house is sold (again, unless he buys or rents it — also a conjecture we need not deal with).

The applicable statute is La.R.S. 9:308:
“After the filing of a petition for separation or divorce or in conjunction therewith, either spouse may petition for, and a court may award to one of the spouses, use and occupancy of the family residence pending the partition of the community property. In such cases, the court shall inquire into the relative economic status of the spouses and the needs of children, if any, and shall award the use and occupancy of the family residence to the spouse in accordance with the best interest of the family. The court shall consider the granting of the family home in awarding alimony or child support.”

The father argues that, because the parties are no longer spouses, the statute by its terms does not apply. We disagree. The purpose of the statute is to provide for determination of “occupancy of the family residence pending the partition of the community property,” and, Khaled v. Khaled, 424 So.2d 370, 374 (La.App. 2 Cir. 1982), by “a reasoned, judicial determination rather than the whims of circumstance.” If the wife here had been awarded occupancy at the time of separation, for example, it would have continued on “pending the partition” notwithstanding the intervening divorce that makes her no longer a “spouse.” For “pending the partition” to have its clearly intended effect, “spouse” must be interpreted as a general term in the statute, referring to persons who are spouses when the litigation begins but not excluding them from the operation of the statute when the divorce makes them ex-spouses. At least the statute means spouses in that sense, for it does not allow the house to be assigned to the children; Buck- efe v. Buckels, 431 So.2d 92 (La.App. 1 Cir. 1983). As the ex-spouse continues until partition to enjoy the occupancy provided by the statutes to a “spouse,” so too, an ex-spouse may seek occupancy of the family residence under the statute as long as the community has not been partitioned.

The father argues that the determination of which spouse should have occupancy is a factual one, citing St. Pierre v. St. Pierre, 425 So.2d 254 (La.App. 3 Cir.1982), and that the trial judge has primacy in factual determinations. We need not examine that argument, because our trial judge made no determination save the erroneous one discussed above.

The statutory test is “the best interest of the family,” meaning, of course, the family of the “spouses” or former spouses, that is, themselves and their children. Ordinarily, occupancy by the spouse who has custody of the children is in the best interest of the family. It is better for the family’s financial interest because it is cheaper to rent living quarters for one person than for several. And it is better overall for the family’s emotional interest that several family members rather than only one enjoy the family’s residence. (The ex-wife’s testimony in this case is that the ex-husband would not even let her take the children's furniture or a washing machine that belonged to the ex-wife’s mother; and that, as we understand it, the family residence is large enough for each child, apparently of the original four minors, to have a separate bedroom.)

The circumstance that the ex-husband by trial time had remarried and his present wife was expecting a child does not put the ex-husband in a position similar to that of the ex-wife in respect to “the best interest of the family,” because the ex-husband’s new wife and child are not members of the “family” of which the statute speaks.

There might be other circumstances that would affect the “best interest of the family,” but we find none here (except the ex-wife’s testimony that she and the children sleep on the floor at her 80-year old father’s three-bedroom house during hot weather because the two upstairs bedrooms cannot be air conditioned because of deficient electrical wiring — without explanation of why the wiring can’t be repaired).

We conclude that the best interest of the family of these former spouses is that the spouse with custody of the minor children have occupancy of the family residence.

The ex-wife requested an increase in child support to pay for the cost of the children’s occupancy of the family residence (evidently assuming that the ex-husband, who will now have to pay rent elsewhere, will no longer make the house payments). She and the children have been living rent-free at her father’s, and for her to have to pay the $490 note constitutes a clear change in the children’s needs, fairly describable as approaching $200 a month for cost of housing, apart from utilities, maintenance and the like.

For that reason we deem it necessary to restore the former child support payments of $250 every other Friday (the ex-husband is paid every two weeks). We do not examine in detail the trial judge’s reduction to $175 on the 1st and 15th of each month. He no doubt was aware that there were four minors when the $250 arrangement was set four years ago, and now there are only two minors; that the husband had enjoyed regular raises (about $1,550 in the year before trial) in his postal service salary, $22,492 per year without overtime at trial; and that at the time of fixing child support for four children, the amount fixed was probably affected by the amount of available income. The judge was also aware that the wife earns a respectable salary, apparently over $1,000 a month. We would thus incline to affirm his reduction, but we would restore the amount reduced because of the new necessity that the ex-wife pay for the house costs for the minor children and herself. (Parenthetically we note that the ex-husband will be relieved of paying the house note, which will now be paid by the ex-wife, thus continuing to build the ex-spouses’ “equity.” The ex-husband will presumably have to pay as much for rent as for the note on the family residence and he will again be paying the same child support, so that his funds available for other expenses will remain about the same.)

Finally, we note the necessity for some time for the ex-husband to find suitable quarters, and, in view of the four years that have already passed, we deem 45 days a reasonable allowance.

. The judgment appealed from is reversed at the ex-husband’s cost, and there is now judgment in favor of Janice Broussard awarding to her the use and occupancy of the family residence at 3101 Napoleon Avenue, New Orleans, effective 45 days from the date of this judgment; and there is further judgment restoring the child support, effective 45 days from the date of this judgment, to $250 every other Friday starting on Friday October 29, 1983, while affirming the reduction to $175 on the 1st and 15th of each month through October 15, 1983.


text:
    Billy G. STURROCK v. LOUISIANA STATE RACING COMMISSION.
    No. CA-0674.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 13, 1983.
    Raleigh Newman, Lake Charles, for Billy G. Sturrock.
    William J. Guste, Jr., Atty. Gen., Robert A. Barnett, Staff Atty., John E. Jackson, Jr., Asst. Atty. Gen., New Orleans, for La. State Racing Com’n.
    Before REDMANN, C.J., and GULOTTA and LOBRANO, JJ.
   REDMANN, Chief Judge.

May the Louisiana State Racing Commission suspend one person’s license for three years notwithstanding that on the same day it suspended another “for only one year although he was charged with the same [kind of] violation”? Answering yes, we reverse the trial court’s contrary ruling.

A prohibited drug, mephentermine, was present in the post-race urine of plaintiff trainer’s horse and plaintiff does not dispute defendant’s authority to suspend him for that reason. Plaintiff’s petition alleged that another “charged with the same violation” was suspended only one year, and defendant’s answer was that that allegation “require[d] no answer inasmuch as the record will speak for itself.” The record provided by defendant does not, however, show what the other person’s violation was, but only that the track stewards’ ruling as to that person was No. 128 while that of plaintiff was No. 133. The record shows that the two matters related to two different trainers of two different horses. Thus the allegation concerning another “charged with the same violation” is not denied by the record except in the sense that plaintiff’s drug violation was of one horse and the other trainer’s was of another horse. Plaintiff’s allegation must therefore be deemed to that extent admitted, La.C.C.P. 1004. The record does show (without specifying the violation) that plaintiff was suspended three years while the other trainer plaintiff named was suspended one year.

On the other hand, defendant’s letter to a national association reporting actions at the meeting at which plaintiff was suspended three years, made part of the record, shows other penalties were revocation of license; suspension for life and a $5,000 fine; suspension for 30 days and a $1,000 fine; suspension for 18 months and a $1,000 fine; suspension for three years and a $1,000 fine; suspension for three years; suspension for one year. Moreover, the state steward’s letter to the University of Kentucky’s testing laboratory and its reply show that four of six different specimens contained the same drug plaintiff’s horse had, suggesting that the commission acted on four such cases at the one meeting (and two others of two other drugs).

The record does not show whether or not the defendant commission knew of plaintiff’s prior suspension for a drug violation at a Texas track, although defendant’s answer in this suit attaches as part of the “record” a computer print-out showing the prior suspension, but dated after the defendant’s meeting which imposed the three-year suspension. The print-out’s date might, however, be wrong and the commissioners might have been in fact aware of the prior violation from another source.

In any event, the mere circumstances that a lesser penalty has been imposed in one other case (among four such cases?) does not amount to a showing that defendant’s penalizing of plaintiff was “arbitrary or capricious or abuse of discretion or clearly unwarranted exercise of discretion,” La. R.S. 49:964(G)(5).

The trial judge did note that the commission first voted “indefinite suspension, then on reconsideration changed their vote to a three-year suspension on nothing more than an unsupported motion by a commissioner.” Perhaps the trial judge deemed that change arbitrary; but the change was no more “unsupported” than the original motion. The transcript shows that the commission had presented to it by its counsel the “entire record in this matter.” Thereafter, with no testimony and no discussion, one member moved that plaintiff, who had not appeared at the meeting, be suspended “indefinitely until he makes an appearance before this commission.” Counsel advised that plaintiff had been notified, but was not obliged to attend. The mover responded “Well, I’m disappointed that he didn’t. But I’ll stick by the motion that we suspend him indefinitely....” That motion passed. Later (immediately after the commission reconsidered the three-year suspension first voted the other trainer plaintiff named and reduced it to one year), one member moved reconsideration of plaintiff’s case “because we put him off indefinite, and I would like to reopen the case and put a time on it.” Evidently, in the trial judge’s view it was not the change from indefinite to definite that was arbitrary, but the three-year suspension compared to another trainer’s one year: the trial judge did not restore the original indefinite suspension but merely reduced the period of the definite suspension to the same one year period that the other trainer got.

This record does not support the conclusion that the different treatment of plaintiff and another was arbitrary. This record contains almost nothing about the other’s case (although it does indicate that the other was 15 years younger than plaintiff). Plaintiff has not borne his burden of proof.

Reversed.


text:
    Beulah M. VEALS v. Betty MANIS, et al. Edward JOHNSON v. John MANIS, et al.
    Nos. CA-0623, CA-0624.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 13, 1983.
    Writ Denied Nov. 18, 1983.

      Jacqueline M. Goldberg, Harold Douglas, New Orleans, for appellants.
    C. Gordon Johnson, Jr., New Orleans, Burt Carnahan, Stephen K. Conroy, Metair-ie, for appellees.
    Before REDMANN, GULOTTA and LO-BRANO, JJ.
   GULOTTA, Judge.

In these consolidated suits, arising out of a three vehicle-two collision case, two of the three drivers appeal from adverse judgments. Quantum is not an issue. We affirm.

The collisions occurred on the rainy afternoon of May 4,1979, in the three eastbound lanes of 1-10 between the Elysian Fields and Louisa Street exists. An automobile driven in the right lane by Derosie Smith Watson collided with a pickup truck driven in the middle lane by Betty Manis. After a sideswiping impact between the right front fender of the truck and the left rear fender of the car, the truck spun into the left lane, where it collided head-on with an oncoming taxicab driven by Edward Johnson, Sr. Beulah Veals, a passenger in the cab, was injured.

The cab passenger filed suit against the three drivers and the insurers of the truck and the cab. The truck driver filed third party claims for damages and indemnification against the other drivers, the cab owner, and all insurers involved, including her own uninsured motorist carrier. In a separate action, the cab driver sued the other drivers and the truck driver’s insurer. The suits were consolidated.

After trial on the merits, the trial judge awarded damages in favor of the cab passenger and against the uninsured driver and the insurers of the truck and the cab, in solido. All reconventional and third party demands were dismissed. In a separate judgment, the trial court dismissed the cab driver’s suit.

In written reasons for judgment, the trial judge concluded that the concurrent negligence of the automobile driver and the truck driver had caused the sideswiping impact (first collision) resulting in the spinning of the truck into the path of the cab in the left lane where the cab driver’s negligence (in failing to avoid hitting the truck) was also a concurring proximate cause of the second collision. According to the trial judge, the contributory negligence of both the cab driver and the truck driver barred either’s recovery.

Appealing, the truck driver claims the trial court erred: 1) in admitting the testimony of a witness and a photograph that were not disclosed in pre-trial discovery; 2) in failing to exonerate the truck driver from fault in the truck/car collision based on the testimony and physical evidence; and 3) in dismissing the truck driver’s claim against the cab driver and cab owner in the truck/cab collision.

The cab driver, also appealing, claims the trial judge erroneously found him contribu-torily negligent. The cab passenger, the uninsured driver of the car, and the insurers of the truck and cab have not appealed.

EVIDENTIARY COMPLAINTS

At the outset, we reject the truck driver’s contention concerning the admissibility of the testimony and the photograph. The truck driver claims that witness Pamela Vance was not named by the cab passenger in response to an interrogatory requesting the identity of witnesses intended to be called at trial and, therefore, should not have been allowed to testify. Our examination of the record discloses, however, that Vance is listed as a witness both in the cab passenger’s answers to the interrogatories and in her pre-trial statement. Accordingly, there are no grounds for excluding her testimony.

Over Manis’ (truck driver’s) objections, the cab passenger introduced a photograph of damage to the automobile involved in the accident. The truck driver contends the trial judge erred in admitting this photograph because of the passenger’s negative response to an interrogatory requesting a description of “any photograph, blueprint, diagram or ... drawing or sketch of the accident scene or the surrounding area made, taken or prepared by you or on your behalf.” The trial judge admitted the photograph for the limited purpose of showing the damage to the car involved as an “aid to the Court” that was “not conclusive of anything”. Under these circumstances, error, if any, resulted in no prejudice to Manis, when the evidence is considered in its entirety.

We now turn to the arguments raised by the truck driver and the cab driver concerning the trial judge’s evaluation of the physical evidence and the conflicting testimony.

FIRST COLLISION

Manis, the truck driver, testified that she was traveling in the middle lane of 1-10 East when Watson’s automobile moved from the right lane without warning, and struck her twice, causing it to spin around into following traffic in the far left lane.

On the other hand, Watson, the driver of the car involved, testified that she was entirely in the right eastbound lane when the front of Manis’ truck invaded her lane and hit the rear fender of her car on the driver’s side. Watson did not observe the second collision between the cab and the truck.

Watson’s version of the accident was corroborated by her co-worker, Pamela Yance, who was following in the right lane. Vance testified that the truck in the center lane acted as if it were trying to get in front of Vance and behind Watson in the right lane. By the time Vance blew her horn to warn Watson, the truck’s right fender had hit the left rear of Watson’s car, causing the truck to skid towards the left and Watson towards the right.

Confronted with this conflicting evidence in the first collision, the trial judge applied the burden of proof set forth in Poche v. Frazier, 232 So.2d 851 (La.App. 4th Cir. 1970), writ denied 256 La. 266, 236 So.2d 36 (1970), which holds that, where an innocent third party is injured in an automobile accident, there is a presumption of negligence on the part of the drivers and each has the burden of exculpating himself from negligence. See also Eason v. Hartford Accident & Indemnity Co., 327 So.2d 187 (La. App. 2nd Cir.1976); Michel v. State Farm Mutual Automobile Ins. Co., 314 So.2d 535 (La.App. 1st Cir.1975).

The trial judge noted that the testimony of the truck driver and the car driver was conflicting and irreconcilable, that neither party had been impeached concerning an invasion of the other driver’s lane, and that the physical evidence did not establish “that the impact occurred in the middle lane as opposed to the right lane or vice versa.” Applying the Poche burden of proof, the trial judge thus concluded that both drivers had failed to exculpate themselves from negligence and that their concurrent negligence had caused the truck to spin around and stop in the left lane. We cannot say the trial judge erred.

We find no merit to the truck driver’s argument that she gave the most “consistent and credible” version of the truck/car collision and that the trial judge should have disregarded Watson’s testimony because of inconsistencies. Although Watson’s in-court description of the position of the vehicles conflicted with that given in her earlier deposition, she asserted that her best recollection of the accident was her testimony at trial and that she had made mistakes at the deposition because she had been upset.

The trial court is not required to accept all of the testimony of any witness as being true or false, and may believe or disbelieve any portion of that testimony. See Payne v. New Orleans Public Service, Inc., 374 So.2d 189 (La.App. 4th Cir.1979); Holmes v. Southeastern Fidelity Ins. Co., 422 So.2d 1200 (La.App. 1st Cir.1982), writ denied 429 So.2d 133 (La.1983); Taylor v. Board of Levee Com’rs Tensas Basin L.D., 332 So.2d 495 (La.App. 3rd Cir.1976). Watson’s entire testimony need not be disallowed simply because of these inconsistencies.

We likewise reject the truck driver’s contention that the physical evidence precludes a finding that both drivers were concurrently negligent. The truck driver argues that if Watson’s version were true, then: the right side or immediate front of the truck should have been damaged instead of the right front wheel well; Watson’s bumper should have been pushed in instead of pulled out as shown in the photographs; and the truck would have ended up partially in the middle and right lane or completely in the right lane instead of the left lane. Further, according to the truck driver, she could only have been hit from the right by Watson to spin counterclockwise into the left lane. We disagree.

The evidence indicates that the truck and the car could very well have drifted into each other’s lane to bring about the collision, the resultant spinning of the truck, and the damage shown in the photograph. The theory advanced by Manis is of no assistance in determining whether the car invaded her lane. We note, further, that the truck driver’s theory of the accident based on the physical evidence is not supported by the testimony of any expert in accident reconstruction.

SECOND COLLISION

The cab driver, Edward Johnson, Sr., testified he was driving 50-55 mph in the left eastbound lane and watching the traffic when he first saw a truck spinning towards him at an angle 20-25 feet away. According to his version, he could not avoid the collision and the truck did not stop before hitting him.

Beulah Veals, the cab passenger, testified that she had not seen the prior truck/car collision. She looked up and saw the spinning truck hit the median barrier before colliding with the cab.

According to Vance (the following motorist in the right lane), the truck did not stop before colliding with the cab ten to fifteen seconds later in the left, median lane after the truck/car collision.

According to Manis, after coming to a stop in the left lane, she saw a cab approaching her partially in the left and middle lanes 100 to 125 yards away. She testified that as the cab drew closer, she “never saw” the cab driver “look up”. According to Manis, six or eight cars had safely passed around her before the cab struck her head-on.

In the second collision, faced with conflicting versions by the truck driver and cab driver, the trial judge concluded the cab driver’s negligence was also a concurring proximate cause of the accident. The trial judge reasoned the truck driver had come to a stop in the left lane and the cab driver could have avoided the collision had he maintained a proper lookout.

The evidence considered, we find no error in the factual conclusions of the trial court. We cannot say his evaluation of the credibility of the witnesses is clearly wrong or that he erred, as a matter of law, in applying the burden of proof of the Poche case, supra, to find all three drivers liable to the innocent injured passenger. See also Rizley v. Cutrer, 232 La. 655, 95 So.2d 139 (1957).

Because we find no error in the trial judge’s credibility determination concerning both collisions, we find no merit to the cab driver Johnson’s contention that the trial court erred in finding him contributorily negligent in the truck/cab collision. The cab driver argues that the court considered only the conflict between his and the truck driver’s testimony, and failed to give proper weight to the testimony of the cab passenger and the following motorist, Vance, in support of the cab driver’s version of the accident.

The trial court simply evaluated the credibility of the differing versions of the truck/cab collision and concluded that there would have been sufficient time for the cab driver to avoid hitting the truck by either slowing down and stopping or changing lanes, had he kept a proper lookout. Although Vance’s testimony corroborates the cab driver’s assertion that the spinning truck had not stopped before impact with the cab, the trial judge discredited Vance’s testimony because of prior inconsistent statements. Similarly, although the cab passenger testified that she had seen the truck spinning, she could not remember if the truck spun into the cab. Under these circumstances, we find no error in the trial judge’s conclusions, based on credibility, that the cab driver was contributorily negligent in the truck/cab collision.

Finally, we reject the truck driver’s contention that the trial court erred in concluding her concurrent negligence in the truck/car collision barred her from recovery in the truck/cab collision. Relying on the doctrine of last clear chance, the truck driver argues that the cab driver could have avoided the collision in the left lane, and that it was manifest error not to make a separate judgment in her favor in this separate accident.

Although the doctrine of last clear chance entitles a negligent party to recover under certain circumstances, it does not apply where the negligence of both drivers is almost simultaneous and neither is in a better position to prevent the accident. See Walker v. Milton, 263 La. 555, 268 So.2d 654 (1972); Johnson v. Wilson, 239 La. 390, 118 So.2d 450 (1960); Flournoy v. Otero, 212 So.2d 559 (La.App. 3rd Cir.1968).

Based on Manis’ version of the accident, the trial judge concluded that the cab driver could have avoided the collision by maintaining a proper lookout. Nonetheless, this finding of the cab driver’s negligence does not compel application of the doctrine of last clear chance. Indeed, the truck driver testified that she did not really know how long she had been stopped in the left lane and that it “could have only been seconds” before the cab struck her. This testimony supports a conclusion that both collisions occurred in a short span of time so as to constitute essentially one continuous accident and that neither concurrently negligent driver had the last clear chance to avoid the impact.

Accordingly, the judgment is affirmed.

AFFIRMED.

      . Watson, driver of the car involved, was uninsured.