text:
    STATE of Louisiana v. Thomas ROBINSON.
    No. 83-KA-382.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.

      William C. Credo, III, M. Zeno, Dist. Atty’s Office, Gretna, for plaintiff-appellee.
    Joseph Montgomery, Indigent Defender Board, Gretna, for defendant-appellant.
    Before CURRAULT, GRISBAUM and DUFRESNE, JJ.
   GRISBAUM, Judge.

Thomas Robinson was charged with simple burglary of an inhabited” dwelling in violation of La.R.S. 14:62.2. After a trial by jury, he was found guilty. On October 6, 1982 he was sentenced to four years at hard labor. From this conviction and sentence, defendant appeals. We affirm.

ASSIGNMENTS OF ERROR
1) The trial court committed reversible error [under State v. Johnson, 389 So.2d 372 (La.1980) ] when it failed to instruct the jury as to the purpose of the State’s cross-examination of defendant’s character witness regarding defendant’s prior criminal record.
2) The trial court committed reversible error by denying defendant’s Motion for a New Trial, which was based upon the absence of any evidence showing an intent to permanently deprive the victim of his television set.

FACTS

On April 20,1982, at about 12 noon, Leon Duville was driving down the street on which he lives when he observed Willie Thomas in his friend’s (Lester Mitchell’s) yard. The defendant, Thomas Robinson, was standing in his own yard near the fence that divides his property from that of Mitchell’s. Mr. Duville observed the two subjects standing in close proximity to one another, divided only by the fence. Upon returning from a convenience store, Mr. Duville observed Willie Thomas pass a small portable television over the* fence and hand it to the defendant, Robinson. Mr. Duville immediately recognized the set as belonging to his friend, Mitchell. Mr. Duville further noticed that a window on the side of Mitchell’s house was broken.

Mr. Duville then stopped his truck and approached Willie Thomas, who was now in defendant Robinson’s yard and was standing' in the doorway of the garage. Duville testified that “I told Willie Thomas that he was wrong for what they was doing. ...”

Mr. Duville returned to his job and later that afternoon advised Mitchell of what had transpired. Mitchell returned home, checked his residence, and found the window in his son’s bedroom had been broken. The television was in the room, but it had been moved from its original location and was unplugged. The police were summoned to Mitchell’s house and that afternoon, upon the complaint of the victim and the statement given by Duville, both Thomas Robinson and Willie Thomas were arrested.

ASSIGNMENT OP ERROR NO. 1

Recognizing the legitimate function, of the prosecution in subjecting a defendant’s character witness to the “crucible of cross-examination” to enable the jury to assess the witness’s familiarity with defendant’s reputation and the quality of his report thereof, and, on the other hand, attempting to protect a defendant from undue prejudice which might arise from such questioning, the Supreme Court in State v. Johnson set forth preliminary questions the trial court must determine before permitting a prosecuting attorney to cross-examine a defendant’s character witness concerning a defendant’s prior criminal history. State v. Johnson, 389 So.2d 372, 376-377 (La.1980). The trial court must be satisfied that:

(1) there is no question as to the fact of the subject matter of the rumor, that is, of the previous arrest, conviction, orother pertinent misconduct of the defendant;
(2) a reasonable likelihood exists that the previous arrest, conviction or other pertinent misconduct would have been bruited about the neighborhood or community prior to the alleged commission of the offense on trial;
(3) neither the event or conduct nor the rumor concerning it occurred at a time too remote from the present offense;
(4) the earlier event or misconduct and the rumor concerned the specific trait involved in the offense for which the accused is on trial; and
(5) the examination will be conducted in the proper form, that is: ‘Have you heard,’ etc., not ‘Do you know,’ etc.

The Supreme Court further stated “if the conclusion is reached to allow the interrogation, the jury should be informed of its exact purpose either at the conclusion thereof or in the charge.” State v. Johnson, 389 So.2d 372, 376 (La.1980).

The record reflects the defendant’s sister, Joyce Rolle, was called to the stand by the defense as a character witness. The State, on cross-examination, attempted to impeach her testimony by asking questions concerning defendant’s prior criminal record. Prior to these questions, the court, out of the jury’s presence, determined that such questions would be proper after it was satisfied the State v. Johnson guidelines had been met.

The defense counsel made numerous objections during the initial Johnson determination outside the jury’s presence and also while the character witness was questioned in the jury’s presence. The basis for the objections was that such questions would unduly influence and prejudice the jury. After the cross-examination of the character witness, the trial court did not inform the jury of its exact purpose nor did the court charge the jury as to the purpose of such questions. Defense counsel did not object to the omission of this explanation after the cross-examination of the witness, nor did the defense offer a jury charge explaining its purpose or object to the omission of a charge explaining the purpose of such questions.

As stated in State v. Johnson, a new basis for objection, albeit meritorious, cannot be raised for the first time on appeal. State v. Johnson, 389 So.2d 372, 377 (La.1980). Since the proper objections were not made at the trial court level, we cannot address the merits of this assignment of error. La.C.Cr.P. arts. 841, 851(2); State v. Johnson, 389 So.2d 372, 377 (La.1980).

ASSIGNMENT OF ERROR NO. 2

The issue presented by this assignment of error is whether the evidence presented is sufficient to support the jury’s finding of the essential elements of the crime of simple burglary of an inhabited dwelling, La.R.S. 14:62.2. A defendant has not been afforded due process unless, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); State v. Foy, 439 So.2d 433 (1983); State v. Johnson, 438 So.2d 1091 at 1102; State v. Graham, 422 So.2d 123, 129 (La.1982). In cases where an essential element of the crime is not proven by direct evidence, La.R.S. 15:438 provides a methodology for review of this evidence. See, State v. Johnson, 438 So.2d 1091 at 1103-1104; State v. Chism, 436 So.2d 464, 470 (La.1983); State v. Shapiro, 431 So.2d 372, 384 (La.1982) (on rehearing). This rule restrains the finder of fact in the first instance, as well as the reviewer on appeal, to accept as proven all that the evidence tends to prove and then to convict only if every reasonable hypothesis of innocence is excluded. State v. Johnson, 438 So.2d 1091 at 1103; State v. Shapiro, supra.

The defendant contends the intent to permanently deprive the victim of his television set, an essential element of the crime of simple burglary of an inhabited dwelling, has not been proven. The crime of burglary requires specific intent on the part of the perpetrator. State v. Marcello, 385 So.2d 244, 245 (La.1980). Louisiana Revised Statute 14:10(1) defines specific criminal intent as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act....”

The defendant maintains that the television set was found by the alleged victim in the room where it had originally been located. Therefore, according to the defendant’s argument, there is no evidence of intent to permanently deprive the victim of his property.

Intent may be proved by circumstantial evidence. La.R.S. 15:445. Circumstantial evidence consists of evidence of one fact, or a set of facts, from which the existence of the facts to be determined may reasonably be inferred. McCormick Law of Evidence, p. 435, (2d ed. 1972); State v. Chism, 436 So.2d 464, 468 (La.1983).

In addition to the assertion of witnesses as to what they have observed, circumstantial evidence involves a process of reasoning, or inference by which a conclusion is drawn. State v. Chism emphasizes that the “gist of circumstantial evidence, and the key to it, is the inference, or process of reasoning by which the conclusion is reached.” State v. Chism, 436 So.2d 464, 469 (La.1983). This process of reasoning, according to Chism, must be based on the evidence given, together with a sufficient background of human experience to justify the conclusion. State v. Chism further explains that before the ultimate question of whether a reasonable hypothesis of innocence exists in a criminal case based crucially on circumstantial evidence, a number of preliminary findings must be made. Circumstantial evidence must be assessed in light of the direct evidence, and vice versa. Additionally, the court must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference. State v. Chism, 436 So.2d 464, 469 (La.1983).

The record shows an eyewitness observed defendant receive a television set from a third person who was standing in the victim’s yard. The eyewitness testified the television set belonged to the victim. He also noticed that the victim’s bedroom window was broken. Shortly thereafter, he approached the third party, who was now standing in defendant’s driveway. The eyewitness admonished this third party. When the victim returned home later that afternoon, his television set was in the bedroom with the broken window, but it was not located in its usual place nor was it plugged in.

Despite the fact the television set was returned, the broken window, the television found in a different location in the bedroom, the victim’s declaration that he did not give the defendant permission to either enter his home or to take the television, the fact that an eyewitness viewed the defendant and a third party exchange the television from the victim’s side of the fence to defendant in defendant’s yard, and the fact that the eyewitness admonished the third party that “what you are doing is wrong,” all lead to the reasonable inference that the television set was only returned when defendant became aware of the distinct probability of being called in to account for his actions and that he specifically intended to permanently deprive the victim of his television set. The contrary inference (drawn from the television being found in the bedroom) that the defendant only “borrowed” the television without an intent to permanently deprive the victim of the television, is contradicted by the broken bedroom window. Moreover, this inference is also contradicted by the eyewitness’s admonishing the third party. This admonishment was not met with any reassurance that the television set was only being “borrowed” at that time.

We conclude the evidence is sufficient to support an ultimate finding that the reasonable findings and inferences permitted by the evidence exclude every reasonable hypothesis of innocence. The State has proven every element of the offense of simple burglary of an inhabited dwelling beyond a reasonable doubt. Therefore, this court finds the trial court did not commit reversible error by denying defendant’s motion for a new trial.

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

AFFIRMED.


source: Caselaw Access Project

author: BOWES, Judge.

license: Public Domain

text:
    COAST WHOLESALE SUPPLY CO. v. Paul YOUNG.
    No. 83-CA-428.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.
    Writ Denied Jan. 6, 1984.
    Wayne T. Fontenelle, Metairie, for plaintiff/appellee.
    Paul Odenwald, New Orleans, for defendant/appellant.
    Before BOUTALL, CHEHARDY, and BOWES, JJ.
   BOWES, Judge.

Defendant-appellant, Paul Young, appeals a judgment by the 24th Judicial District Court making executory in Louisiana a judgment of the First Judicial District Court, Harrison County, Mississippi, in the amount of $31,650.79, plus legal interest and court costs rendered in connection with a suit on a promissory note filed by plaintiff against defendant-appellant in the Mississippi court. We affirm.

Plaintiff, Coast Wholesale Supply Company (hereinafter referred to as “Coast”), filed suit in the 24th Judicial District Court on February 23, 1981, praying that a judgment of a Mississippi District Court rendered against the defendant on February 8, 1980, be accorded full faith and credit and be made executory in the state of Louisiana.

After some delay, on June 2, 1981, defendant answered the petition of Coast, alleging that Mississippi was without personal jurisdiction to render such judgment and, therefore, the judgment is null and void and not valid under the full faith and credit clause of the United States Constitution.

Thereafter, this matter was set for trial on April 12,1982, May 26,1982 and November 2, 1982; all these dates were continued at the request of the defendant. The matter was set again for January 21, 1983, at which time counsel for defendant once more sought to have the trial continued due to the continued ill health of his client, suggesting that his client could be deposed in order to move the matter along. The trial judge noted that this case had been before the court for almost two years, that defense counsel was well aware of the health of the defendant, and that counsel had been afforded ample opportunity over the preceding months in which to depose his client. The court remarked further “... you assured me that if I gave you a continuance the last two times that you could get him [the defendant] here.... ” Thereafter, plaintiff was allowed to present his case and judgment was rendered in his favor.

Defendant’s only specification of error on appeal is that the trial judge erred in not giving the defendant a continuance due to Mr. Young’s illness and “thus denied him his right to a trial on the merits of this matter.”

We find this argument without merit. Throughout the almost two years that the case dragged on before the district court, the defendant was represented by the same attorney. That attorney was present and representing his client at the trial on January 21, 1983, therefore we cannot conclude that Mr. Young was denied his right to a trial on the merits. We further note that under Louisiana law and jurisprudence the trial judge has wide discretion in acting upon a motion for a continuance and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of that discretion. LSA-C.C.P. art. 1601 and 1602, Heap v. Weber Const. Co. of Louisiana, Inc., 407 So.2d 799 (La.App. 4th Cir.1981), Dillard v. Stamm, 400 So.2d 1112 (La.App. 1st Cir.1981), Bryer Insurance Agency, Inc. v. Bruno, 261 La. 177, 259 So.2d 55 (1972). Under the circumstances of this case, we find no abuse of discretion by the trial judge.

Accordingly, we affirm the judgment of the district court. Appellant is to bear all costs of this appeal.

AFFIRMED.


author: GAUDIN, Judge.

text:
    COMMERCIAL BANK & TRUST CO. v. Byron MARKS, Bel Builders, Inc., Ed Rutman and Leonard M. Berins, Esquire.
    No. 82-CA-170.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.

      A. Russell Roberts, Graffagnino, Perez & Roberts, Metairie, for plaintiff-appellant Commercial Bank & Trust Co.
    Patrick A. Juneau, Jr., Voohries & Labbe, Lafayette, for defendant-appellant Leonard M. Berins.
    Philip J. Boudousque’, New Orleans, for defendants-appellees Ed Rutman and Bel Builders.
    Before KLIEBERT, BOWES and GAU-DIN, JJ.
   GAUDIN, Judge.

This is an appeal by plaintiff Commercial Bank and Trust Company from a district court judgment in favor of defendants Byron Marks, Bel Builders, Inc., Ed Rutman and attorney Leonard M. Berins.

The tort suit, alleging an abuse of legal process, is entitled:

“PETITION FOR DAMAGES FOR MALICIOUS PROSECUTION OF CIVIL ACTION VEXATIOUS SUIT, AND TORTIOUS OBSTRUCTION OF LEGAL REMEDIES.”

We agree with the trial judge’s decree; and, for the following reasons, affirm it.

This sequence of events led up to the filing of appellant’s petition in the 24th Judicial District Court:

(1) Mr. Marks and his wife, Darlene, owned a warehouse in Kenner, Louisiana, which was encumbered by a mortgage held by the Commercial Bank.

(2) On June 8, 1979, the warehouse was leased to Bel Builders, Inc., a company owned by Mr. Rutman. Various improvements were subsequently made.

(3) Bel Builders had the option to purchase the warehouse as part of the lease agreement.

(4) Mr. and Mrs. Marks were divorced in April of 1980.

(5) Mr. Marks experienced what the trial judge called “... financial difficulties...” On November 24,1980, a petition for execu-tory process was filed by the bank.

(6) On February 11, 1981, notice of the seizure was served on Mr. Marks at his residence, 4644 Ithaca Street in Metairie, Louisiana; and service was left for Mrs. Marks at the Ithaca Street address even though Mrs. Marks did not reside there and had never resided there.

(7) On March 31,1981, the day before the scheduled sheriff’s sale of the warehouse, Mr. Marks advised his former wife of the insufficiency of service on her.

(8) On the morning of April 1,1981, Mrs. Marks met with Mr. Berins, who was Mr. Rutman’s attorney; and, in representation of Mrs. Marks, Mr. Berins (a) filed a petition, (b) obtained a temporary restraining order without posting bond and (c) stopped the sale.

(9) Mr. Berins withdrew as Mrs. Marks’ attorney.

(10) Mrs. Marks filed for reorganization under Chapter 11 of the Federal Bankruptcy Act, which stayed all proceedings, including a hearing on the bank’s motion to dissolve the temporary restraining order which had been scheduled for April 10, 1981.

In its petition against Mr. Marks and the others, the Commercial Bank contends that the April 1, 1981 pleadings on behalf of Mrs. Marks were actually for the benefit of “interlopers” who had no standing to sue and thereby halt the sheriff’s sale.

Appellant argues that its cause of action is based on the abuse of legal process under the tort article, LSA-C.C. art. 2315, not on malicious prosecution. Clearly, malicious prosecution is not applicable as the necessary elements are missing.

Abuse of process is generally recognized in the common law but the trial judge, in his assigned “Reasons for Judgment,” stated that this theory of recovery "... is not recognized in Louisiana...” Further, the trial judge said:

“Even were the Court to consider recovery under this theory, plaintiff has failed to fulfill one of the required elements, i.e., an act in the use of the process not proper in the regular prosecution of the proceeding.”

As Mrs. Marks had not been properly served as required by LSA-C.C.P. art. 2721, the trial judge reasoned, she had the right to enjoin the sale.

Art. 2721 reads:

“The sheriff shall seize the property affected by the mortgage ... immediately upon receiving the writ of seizure and sale...
“The sheriff shall serve upon the defendant a written notice of the seizure of the property.”

Executory process is a harsh remedy; consequently, Louisiana courts demand strict compliance with Art. 2721 even though the debtor may have actual notice of the seizure. Bank of New Orleans & Trust Co. v. Brule, 389 So.2d 1148 (La.App. 4th Cir.1980).

Considering all facets of this case, we conclude that while the trial judge erred in saying that abuse of process is not recognized in this State, he correctly found that at least one of the two necessary elements of this tort was not present. Abuse of process and its required elements are discussed in Succession of Cutrer v. Curtis, 341 So.2d 1209 (La.App. 1st Cir.1976), Mini-Togs, Inc. v. Young, 354 So.2d 1389 (La.App. 2nd Cir.1978), Vasseur v. Eunice Superette, Inc., 386 So.2d 692 (La.App. 3rd Cir.1980), and in other cases. The two uniformly acknowledged elements are (1) an ulterior purpose and (2) a willful act in the use of the process not proper in the regular conduct of the proceeding.

Because Mrs. Marks had not been adequately served, her use of the injunctive process was not irregular. Thus, a tort action for abuse of process cannot lie, notwithstanding the possibility of questionable conduct on the part of one or more of the defendants.

Accordingly, we affirm the judgment in favor of defendants-appellees, with appellant Commercial Bank and Trust Company to pay all costs.

AFFIRMED.


author: CURRAULT, Judge.

text:
    STATE of Louisiana In the Interest of Phyllis STERLING.
    No. 83-CA-376.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.
    Kenneth Kirchem, Jefferson, for defendant-appellant.
    John M. Mamoulides, Dist. Atty., Greg Gremillion, William C. Credo, III, Andrea M. Price, Asst. Dist. Attys., Research and Appeals, Gretna, for plaintiff-appellee.
    Before CURRAULT, GRISBAUM and DUFRESNE, JJ.
   CURRAULT, Judge.

Initially, Phyllis Sterling was adjudicated in matters 59048 and 59043A by the Juvenile Court to be a child in need of supervision. This adjudication was pursuant to C.J.P. art. 13 § 13(c). On March 23, 1982, at the disposition hearing, she was placed on active probation for two years.

On June 23,1982, while on probation, she was petitioned in matter number 59043B as a delinquent for having allegedly violated LSA-R.S. 14:34 (aggravated battery) by stabbing one Sherry Johnson. On August 24, 1982, Sterling, through counsel, admitted the offense, and was adjudicated delinquent. She was committed to the Department of Corrections for a term of three years. This commitment was suspended and she was placed on active probation for a term of three years. Residential placement, however, was made a condition of the probation and on September 10, 1982, temporary custody of Sterling was awarded to the Department of Health and Human Resources/Division of Youth Services (D.H.H.R./D.Y.S.) for placement.

On September 15, 1982, Sterling was again petitioned as a delinquent for allegedly violating LSA-R.S. 14:67 (theft) by having stolen a bottle of cologne from Barkers on September 10, 1982. This became matter number 59043D.

On October 19, 1982, as a result of plea negotiations, Sterling admitted a violation of LSA-R.S. 14:27; 14:67 (attempted theft) and was adjudicated delinquent in matter number 59043D. At the disposition hearing on December 16,1982, Sterling was committed to the Department of Corrections for six months. This sentence was suspended and Sterling was placed on active probation for three years — the sentence and probationary period to run concurrently with that imposed under case number 59043B. Additionally, Sterling was to remain in the custody of D.H.H.R./D.Y.S. for placement in St. Elizabeth’s Home.

On January 5,1983, the probation department moved to have Sterling’s probation revoked in matter number 59043B (aggravated battery). A hearing was begun on January 18,1983, and concluded on January 24, 1983. As a result of the hearing, the judgment of disposition rendered on August 24, 1982 was modified in that the probation was revoked and the previously imposed commitment of three years in the custody of the Department of Corrections was ordered executed.

It is from the judgment of January 24, 1983, that the defendant, Phyllis Sterling, appeals.

Three assignments of error are presented for review.

ASSIGNMENT OF ERROR NUMBER 1

The following question is presented by the first assignment of error:

Was the defendant-appellant denied her constitutional right to call witnesses on her own behalf to testify for her in her defense?

LSA-Const. Art. 1, Section 16 provides in pertinent part: “[a]n accused is entitled to .confront and cross-examine the witnesses against him, to compel the attendance of witnesses, to present a defense, and to testify in his own behalf.”

Citing In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), the Louisiana Supreme Court observed in State in the Interest of Dino, 359 So.2d 586, 589 (La.1978), “[t]he Constitutional privilege against self-incrimination and the rights to counsel and to confront and examine witnesses are [as] applicable in the case of juveniles as they are with adult accuseds. [Footnote omitted].”

Although not expressly providing for compulsory process, this right was tacitly recognized at the adjudicatory stages of the proceedings by the adoption of LSA-C.J.P. art. 70 which provides, “[t]he child and his parents may introduce evidence, call witnesses, be heard on their own behalf, and cross-examine witnesses called by the state.”

In State in Interest of Wright, 387 So.2d 75 (La.App. 4th Cir.1980), the court applied the minimum due process requirements of Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), to juvenile modification proceedings.

As established by the Supreme Court, these minimum requirements are:

(a) Written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the fact-finders as to the evidence relied on and reasons for revoking [probation or] parole. Gagnon v. Scarpelli, supra, 411 U.S. 786, 93 S.Ct. 1761-62.

Accordingly, as the defendant was entitled to present witnesses at the modification hearing the right to compulsory process to obtain those witnesses is implied. The right to compulsory process is the right to demand subpoenas for witnesses and the right to have those subpoenas served — and in State v. Mizell, 341 So.2d 385, 388 (La.1976) the court observed that “the constitutional right to compulsory process for the attendance of a witness is not to be trifled with.”

The record reflects that on January 10, 1983, the defendant, Phyllis Sterling, in proper person requested subpoenas issued “Annie Smith”, “Sharron” and “Deborah Moore” for their appearance at the modification hearing set on January 18, 1983. At the time of the hearing, the court granted an oral defense motion for continuance, to the following day, in order to secure the appearance of these defense witnesses. Later that day the matter was reset to the 24th of January on motion of St. Elizabeth’s Children’s Home who had custody of the witnesses. On January 24, 1983, the hearing was resumed. At that time, letters were introduced into evidence from Dr. W.R. Gaertner stating that, in his opinion, “it is contraindicated therapeutically for this child to attend or participate in any legal proceedings which would require her to leave St. Elizabeth’s Diagnostic and Evaluation Unit at this time. The possibility of psychotic or antisocial behavior exists, at this time, if such a stressful action is initiated.” (Letters appear to be Xerox forms, identical for all three of the defendant’s witnesses.)

In the instant case, the custodial facility impeded the defendant’s right to secure witnesses for her modification hearing. The use of a standard form indicating the psychological unavailability of all of the witnesses sought to be called without opportunity for the defense to traverse those findings or obtain a continuance to secure their attendance appears to be error.

In State v. Gibson, 391 So.2d 421, 427 (La.1980), the Louisiana Supreme Court adopted the “harmless error” analysis as set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) for review of Fourth Amendment violations and other infractions which may be deemed harmless. Chapman and Gibson recognize there are some Federal constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error; others, however, may be deemed harmless and not require the automatic reversal of the conviction. According to Chapman and Gibson, if the error is the kind that may be deemed harmless, the burden is on someone other than the person prejudiced by it to show that it was harmless.

The Chapman harmless error rule requires a reviewing court to consider the evidence in order to determine if there is a reasonable possibility that the error had prejudicial effect; however, it does not permit a court to substitute for the verdict its judgment of what the trier of fact would or should have decided in the absence of error. Gibson, supra. The court in Gibson, quoting Chapman, states the test:

“whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction” and that “the court must be able to declare a belief that [the error] was harmless beyond a reasonable doubt.... ” (At page 428)

Applying these principles to the present case, we find the trial court’s error in not compelling the attendance of these witnesses was harmless. The trial judge allowed a proffer of the witnesses’ testimony. The defense asserts the witnesses would have testified as follows: (1) defendant did not initiate escape plans; (2) defendant did not indiscriminately punch or hit people; and (3) defendant was involved in only two incidents where she hit individuals and, in one of these incidents, she was provoked. The trial judge observed after the proffer that, even if the facts were true, “the case would not turn on that basis.”

The record amply demonstrates that even after full consideration was given to the proffered testimony, there was sufficient evidence presented which would substantiate the finding of the trial court that the defendant had violated the conditions of her probation. At the hearing, St. Elizabeth’s staff reported an episode where defendant had been seen by a staff eyewitness to have intentionally bumped another resident. The staff also reported numerous other incidents of violent or disruptive behavior including the destruction of furniture while engaged in a fight and the theft of another resident’s clothing.

Since defendant Sterling’s probation could have been revoked as a consequence of any one incident alone, we find that there is no reasonable possibility that the failure to compel the attendance of defendant’s witnesses contributed to the revocation of defendant’s probation; and we conclude the refusal of the trial court to compel the appearance of defendant’s subpoenaed witnesses to be harmless beyond a reasonable doubt.

ASSIGNMENT OF ERROR NUMBER 2

By this assignment, the defense presents the following issue for review:

Can the defendant-appellant be penalized for being terminated from an inappropriate placement into which she never should have been placed?

Defense counsel’s argument is based on testimony by Valerie Savoie, the unit supervisor at St. Elizabeth’s Children’s Home, that Phyllis was never appropriate for the program at the home.

The purpose of probation is to promote the defendant’s rehabilitation by allowing him or her to reintegrate into society without confinement. See State v. Carey, 392 So.2d 443 (La.1981) and State v. Clark, 391 So.2d 1174 (La.1980). However, it holds no promise and serves no purpose if the probationer is destined for failure at the outset. State v. Labure, 427 So.2d 855 (La.1983) and State v. Carey, supra.

At the time of the defendant’s placement in St. Elizabeth’s Home, the psychological and educational assessments available to the court and D.H.H.R./D.Y.S., although indicating aggressive tendencies, did not reflect a history of chronic physically disruptive or abusive behavior. With unanimity, the psychiatric, psychological and educational consultants recommended residential placement.

The testimony of Mr. James Rowell, the probation officer assigned to Phyllis Sterling’s case, reflects that on August 24,1982, a search for a proper placement facility was initiated in response to a plea agreement on the charge of aggravated battery, but no facilities other than St. Elizabeth’s would accept her into their programs. Faced with an additional delinquency adjudication for attempted theft and a petition for child in need of supervision due to habitual truancy, placement became of paramount importance.

La.C.J.P. art. 86 provides, “[t]he court should impose the least restrictive disposition which the court finds is consistent with the needs of the child and the best interest of society.” Considering the options available to the court, either immediate placement at St. Elizabeth’s or confinement at L.T.I. and the mandate of C.J.P. art. 86, the action of the trial court is amply justified.

Accordingly, this assignment of error is likewise dismissed for lack of merit.

ASSIGNMENT OF ERROR NUMBER 3

By the third assigned error, the defense asserts that confinement in the Diagnostic and Evaluation Unit of St. Elizabeth’s was not “placement” under the terms of probation.

The defense requests the court to take judicial notice that the Diagnostic and Evaluation Unit of St. Elizabeth’s was not a treatment unit nor is it intended to be a permanent residential facility.

A thorough examination of the record does not reflect any indication that the placement at St. Elizabeth’s was to be only an interim confinement for evaluation purposes. Nor does it reflect any evidence introduced by the defense to substantiate his argument.

However, even assuming such to be true, a fair reading of the transcript reflects that the intent of the trial court was to remove Phyllis from her current home environment for placement in a group home. Considering the dispositional alternatives available, confinement at St. Elizabeth’s was the least restrictive choice and was made by the trial judge as an alternative to L.T.I.

At the time of placement, the trial judge observed:

THE COURT:
And Pam [Phyllis], I’m telling you, a long, long time ago, I could have said, “go and do the three years for the serious, serious behavior, been shown.” Been thrown out of school. Up in detention, I just made a call about in detention and I said, “how you doing there?” And they said, “up very well and with some of the counselors, you fight and are very hostile and belligerent.” You want to go to the State school today, I’ll say State School today. It’s going to be the State and I really think now, I’m beginning to think it’s a waste of time to send you to St. Elizabeth’s. I really think that you’re going to fight. Most people don’t want to touch...
JUVENILE:
Fight?
THE COURT:
You. That’s right. Most people don’t want to touch you because of your temper.

The record further reflects no objection by defense counsel to the nature of the facility either at the time of the placement or at the modification hearing.

Considering the foregoing, this assignment is also dismissed.

Accordingly, for the above stated reasons, the judgment of the juvenile court revoking the defendant’s probation is hereby affirmed.

AFFIRMED.

      . Chapman cited as examples coerced confessions [Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958) ]; right to counsel [Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) ]; and right to an impartial judge [Turney v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) ]. Other rights seem also inappropriate for harmless error review such as double jeopardy. [Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970) ] and grand jury selection [Peters v.

        Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972) ].


text:
    STATE of Louisiana v. Grover B. HOWARD.
    No. 83-KA-394.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.
    Philip E. O’Neill, Gretna, for defendant-appellee.
    John M. Mamoulides, Dist. Atty., Douglas A. Allen, Stephen J. Windhorst, William C. Credo, III, Andrea M. Price, Asst. Dist. Attys., Research and Appeals, Gretna, for plaintiff-appellant.
    Before CURRAULT, GRISBAUM and DUFRESNE, JJ.
   CURRAULT, Judge.

In a bill of indictment filed on May 24, 1982, defendant, Grover B. Howard, was charged with violation of LSA-R.S. 14:34.2, simple battery on a police officer. A bench trial was held on December 7, 1982, following which he was found guilty as charged and sentenced to thirty days in Parish prison. Defendant now appeals, relying on one assignment of error.

On March 24,1982, at about 9:41 p.m., the defendant, Grover B. Howard, was found unconscious in his vehicle by two uniformed officers of the Jefferson Parish Sheriff’s Office. The car was resting on top of a fire hydrant. The officers were eventually able to wake the defendant at which point he got out of his car and walked to the rear of the vehicle where he urinated, soiling his clothes. Deputy Gray Thurman then approached the defendant and asked for some identification. The defendant gave no response, but suddenly punched the deputy in the middle of his chest. The other deputy attempted to subdue the defendant, but was resisted. Consequently, two more deputies were summoned to the scene and the defendant, after about ten to fifteen minutes of struggle, was placed in the rear seat of the police vehicle.

Secured in the rear of the car, the defendant continued to struggle and attempted to kick out the windows. The subject’s legs were restrained and he was subsequently transported to the Third District Station and then to the Jefferson Parish Correctional Center. Deputy Thurman sustained a hairline fracture above his right eye as a result of this incident.

Defendant appeals his conviction, asserting as error that no rational trier of fact could have found defendant guilty of battery on a police officer, applying the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The defense submits that battery on a police officer requires the special knowledge that a person is a “commissioned officer acting in the performance of his duty”, LSA-R.S. 14:34.2. Consequently, it is incumbent on the State to prove that the defendant was acting with specific criminal intent. The defense maintains that the defendant was so intoxicated he was totally unaware that the deputy he struck was a commissioned police officer performing his duty.

In summation, defense contends that the evidence of the defendant’s general demeanor and his failure to even acknowledge the officers’ presence was such that no rational trier of fact could have found that the essential element of specific intent was proven beyond a reasonable doubt. We agree.

LSA-R.S. 14:15, Intoxication, states that:

The fact of an intoxicated or drugged condition of the offender at the time of the commission of the crime is immaterial, except as follows:
* * * * * *
(2) Where the circumstances indicate that an intoxicated or drugged condition has precluded the presence of a specific criminal intent or of special knowledge required in a particular crime, this fact constitutes a defense to a prosecution for that crime.

Battery is defined as “the intentional use of force or violence upon the person of another....” LSA-R.S. 14:33. Simple battery is a battery committed without the consent of the victim. LSA-R.S. 14:35. The definition of battery of a police officer is a “battery committed without the consent of the victim when the offender has reasonable grounds to believe the victim is a commissioned police officer acting in the performance of his duty.” LSA-R.S. 14:34.2.

The only difference between Article 35 and Article 34.2 is the addition of the element of the special knowledge that the victim is an on-duty police officer.

The Jackson standard provides that a verdict must be set aside, if when the evidence is viewed in the light most favorable to the prosecution, ■ a rational trier of fact could not conclude that all of the elements of the offense have been proven beyond a reasonable doubt. When the conviction, however, depends upon circumstantial evidence, LSA-R.S. 15:438 must be considered as well.

LSA-R.S. 15:438 states that:

The rule as to circumstantial evidence is assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.

The Louisiana Supreme Court has in recent years articulated several different approaches in correlating the Jackson standard and the revised statute. In the most recent opinion authored by Justice Blanche, State v. Johnson, 438 So.2d 1091 (La.1983), the court noted:

“Where an essential element of the crime is not proven by direct evidence, LSA-R.S. 15:438 applies. That rule restrains the fact finder, as well as the reviewer on appeal, to accept as proven all that the evidence tends to prove and then to convict only if every reasonable hypothesis of innocence is excluded.” [p. 1097]

While this court recognizes the disparity in the Supreme Court’s analysis of Jackson and LSA-R.S. 15:438, regardless of the approach this court applies to our facts, we must conclude the conviction herein was erroneous. The facts reveal that no concrete evidence was introduced to show that the defendant was aware of the fact that the man he hit was a police officer, notwithstanding the fact that he was in uniform. The defendant was discovered passed out at the wheel of his car and had to be awakened. The odor of alcohol was pervasive. When the officer requested some identification, the defendant did not acknowledge the officers’ presence. The defendant never spoke, but simply looked at the police officers and gave no response to questions asked. As the special knowledge required of Article 34.2 has not been proven, the burden of proof of the distinguishing element of battery on a police officer has not been met. The elements of simple battery (LSA-R.S. 14:35) have, however, been met.

LSA-C.Cr.P. art. 821(E) states that:

If the appellate court finds that the evidence, viewed in a light most favorable to the State, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.

The court in State v. Byrd, 385 So.2d 248, 252 (La.1980), held that:

[W]hen it is clear from the verdict that the trial judge or jury necessarily found the elements of a lesser and included offense had been proved beyond a reasonable doubt, and the state, constrained by the double jeopardy clause, cannot seek anew a conviction on the greater offense, a remand for a new trial would serve no useful purpose. [Citations omitted]
[See also State v. Greenway, 422 So.2d 1146 (La.1982).]

LSA-C.Cr.P. art. 814 does not give responsive verdicts for the crime of battery on a police officer; however, Article 815 states, “[i]n all cases not provided for in Article 814, the following verdicts are responsive:

(1) Guilty;

(2) Guilty of a lesser and included grade of the offense even though the offense charged is a felony, and the lesser offense a misdemeanor; or

(3)Not guilty.”

Simple battery is a lesser and included grade of the offense of battery on a police officer and, therefore, is a responsive verdict to the crime originally charged.

Therefore, after a review of the record and the law, the conviction of battery on a police officer is vacated. Since the evidence supports a conviction of simple battery, a judgment of conviction of that lesser and included grade of the aforementioned offense will be entered. LSA-C.Cr.P. art. 814; LSA-C.Cr.P. art. 815; LSA-C.Cr.P. art. 821(E); State v. Byrd, supra; and State v. Greenway, supra.

Defendant, Grover B. Howard, is guilty of violating LSA-R.S. 14:35. This matter is hereby remanded to the trial court for re-sentencing according to the guidelines set forth in LSA-C.Cr.P. art. 894.1.

CONVICTION SET ASIDE; NEW CONVICTION ENTERED; REMANDED.

      . State v. Austin, 399 So.2d 158 (La.1981). State v. Graham, 422 So.2d 123 (La.1982). State v. Williams, 423 So.2d 1048 (La.1982). State v. Shapiro, 431 So.2d 372 (La.1982). State v. Moore, 432 So.2d 209 (La.1983). State v. Chism, 436 So.2d 464 (La.1983). State v. Sutton, 436 So.2d 471 (La.1983). State v. Johnson, 438 So.2d 1091 (La.1983).


text:
    SEARS, ROEBUCK AND COMPANY v. SHAMROCK CONSTRUCTION CO., INC. and Commercial Union Insurance Company.
    No. 83-CA-417.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.

      Bruce C. Butcher, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for plaintiff-appellant.
    Edward A. Rodrigue, Jr., Boggs, Loehn & Rodrigue, New Orleans, for defendants-ap-pellees.
    Before CURRAULT, GAUDIN and GRISBAUM, JJ.
   CURRAULT, Judge.

Plaintiff, Sears, Roebuck and Company brought an action for property damages against defendant, Shamrock Construction Company, a contractor employed by plaintiff, Sears Roebuck and Company, to repave a concrete area located at its facilities on Jefferson Highway. Also made party defendant was defendant’s insurer, Commercial Union Insurance Company.

The facts reveal that by letter dated February 6, 1979, William J. Hogan, the president of Shamrock Construction Company, Inc. (Shamrock), submitted a proposal to Charles Easterling, the manager of the Sears Regional Distribution Center located at 1601 Jefferson Highway, Jefferson, Louisiana (Sears). Pursuant to that proposal, Shamrock provided Sears with a suggestion for alleviating a water drainage problem at the receiving area of the warehouse by removing the concrete driveway and replacing it at a higher elevation.

The concrete which Shamrock contracted to remove was located directly over two 3,000 gallon underground gasoline storage tanks, and the filler caps for the underground tanks were apparent on the surface of the driveway area.

On the basis of the Shamrock proposal, a written contract dated February 26, 1979 was entered into by Sears and Shamrock pursuant to which Shamrock agreed to perform all of the labor, materials and work necessary to, among other things resolve the water drainage problem.

On April 23, 1979, three employees of Shamrock proceeded to break the concrete above the gasoline tanks. In the afternoon of the first day of work, Sears personnel were informed by a Shamrock employee that an underground waterline had been broken by Shamrock. Later that same afternoon, gasoline began leaking from the underground storage tanks and the fire department was contracted in Jefferson Parish. An emergency unit arrived at the scene and took immediate measures to prevent a dangerous explosion. A chemical substance known as “light water” was pumped over the area to minimize the possibility of fire and the area was covered with sand. The fire department also ordered that the gasoline be pumped out of the tanks, trucked away and safely disposed of.

Pursuant to their request, Sears reimbursed the fire department for its expenses, and also paid for all of the costs of pumping, removing and disposing of the gasoline. In addition, the two underground gasoline storage tanks were replaced. Written request was subsequently made by Sears to Shamrock for reimbursement of these expenses, including a portion of the tank replacement costs. Shamrock and its insurance carrier refused; and, as a result, plaintiff filed this action for damages alleging the defendant’s negligence. Trial was held on April 8, 1982 and September 27, 1982.

On the first morning of the hearing, the court granted plaintiff leave to amend the petition to include the issue of contractual liability. At that time, plaintiff also attempted to increase the amount of damages sought in its petition from Six Thousand Three Hundred Five Dollars and Twelve Cents ($6,305.12) to Fourteen Thousand Three Hundred Seventy-Six Dollars ($14,-376), which motion was denied by the trial court. On October 28, 1982, the trial court rendered judgment in defendant Shamrock’s favor dismissing plaintiff’s case. That judgment was amended on November 5, 1982 to include a finding in favor of the defendant-insurer, Commercial Union Insurance Company.

Plaintiff, Sears, consequently perfected this appeal from the judgment of the trial court.

The issues presented for appeal are:

(1) Whether the damage to the underground storage tank was due to the negligence of Shamrock;

(2) Whether the terms and conditions of the contract between Sears and Shamrock, as a matter of law, require Shamrock, and its defendant insurer, to fully indemnify Sears for all of the damages it sustained;

(3) Whether Sears is entitled to indemnification for reasonable attorneys’ fees as an expense under the indemnification provision in the contract;

(4) Whether Sears should have been granted leave to amend its petition to set forth an additional item of damage;

(5) Whether Sears should have been permitted to introduce evidence at trial to show its additional damages incurred in connection with the emergency.

The first issue presented by appellant alleges defendant’s liability pursuant to LSA-C.C. art. 2762, 2769 (implied warranty) and LSA-C.C. art. 2315 (negligence). Appellant contends that it satisfied its burden of proof under those articles noting that while the burden of proof is by a preponderance of the evidence, that the burden may be satisfied by circumstantial evidence. A & M Pest Control Serv. v. Fejta Const. Co., 338 So.2d 946 (La.App. 4th Cir.1976).

As appellant aptly notes, the test of sufficiency in a circumstantial evidence case is set forth by the Louisiana Supreme Court in Naquin v. Marquette Casualty Company, 244 La. 569, 153 So.2d 395, 397 (La.1963). In Naquin, the court stated:

“... Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes. Otherwise, the mere identification by the record of another possibility, although not shown to be causally active, would break the chain of causation.”

See also Carter v. The City Parish Government of East Baton Rouge, et al, 423 So.2d 1080 (La.1982).

In Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151, 155 (La.1971), the Louisiana Supreme Court stated, citing Naquin, among other cases:

“... Whatever the descriptive term used, however, proof by direct or circumstantial evidence is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not.”

Causation herein, as appellant points out, can only be inferred from the circumstantial evidence surrounding the gasoline spillage.

In this regard, the trial court judge found as a factual matter that:

“The expert testimony introduced at the time of the trial showed that: (1) Sears had previous problems with leaks in the tanks in question; (2) There was no damage done to the tanks themselves by the breaking of concrete by Shamrock; (3) The damages were not caused by any work performed by Shamrock. Likewise, there was no evidence to show that the leaks were caused by the work of defendant, Shamrock. Further, there was evidence to show these tanks were leaking previously.” (Reasons for Judgment)

It is well settled in Louisiana that:

“When there is evidence before the trier of facts which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error .... The reason for this well settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record) but also upon the proper allocation of trial and appellate functions between the respective courts.” Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973).

Applying this standard, the court must thus determine if the trial court’s findings were “manifestly erroneous” or “clearly wrong.” Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The evidence shows that appellee Shamrock began breaking the existing concrete pavement on April 23, 1979. In an area near, but not directly upon the underground storage tanks, the workers discovered that the concrete was unusually thicker than normal. Consequently a drop hammer (a large piece of equipment) was used to break the concrete. The testimony indicated that the drop hammer was not used in close proximity to the filler caps of the gas tanks, but that the concrete in that area was broken manually within an eight foot radius. At approximately 2:45 p.m., an underground water pipe was broken. The existence of the pipe was unexpected by defendant because of its unusually close proximity to the bottom of the concrete slab. Appel-lee immediately notified appellant as well as a plumber. The plumber arrived shortly thereafter, but not expecting to find galvanized pipe, lacked the necessary equipment to make repairs and thus was unable to repair the pipe that day. Appellee notified appellant of the fact and, since quitting time was approaching, asked the Sears manager, Charles Easterling, whether or not to shut off the water. Mr. Easterling opted to leave the water running until closing time, at which time he stated that they would shut the water off. As usual at 3:30 p.m., the Shamrock employees left for the day.

Shortly after the construction crew departed, a gasoline odor was noticed by Sears’ employees. Upon investigation it was discovered that gasoline, mixed with water, was leaking onto the pavement from the underground tanks. The fire department was called out and took the emergency measures mentioned earlier. The Shamrock supervisor also was notified and returned to the construction area.

In attempting to determine whether the leak occurred as a result of the activities of defendant, the trial court placed great weight on the testimony of Mr. Bob Ballance of Beacon Enterprises. Mr. Bal-lance was the only qualified, expert witness to testify on the testing, installation, repair and maintenance of underground gasoline storage tanks. In addition, his company also serviced the Sears tanks. His testimony indicated that the only damage incurred as a direct result of defendant’s conduct was the minor and unavoidable damage to the bushings which were connected to the filler caps. Mr. Ballance, as well as other witnesses, noted that the bushings were embedded in the concrete. He noted that installation in that manner was unusual and undesirable and that the concrete could not be broken without breaking the bushings. Bushings, he testified, are fragile and are easily broken even while installing them. He further stated that the tanks were old and had been leaking for several years. On several occasions his company had been called to pump groundwater from the tanks. Mr. Ballance tested the tanks shortly after the accident, confirming the existence of bottom leaks in the tanks. He stated that the water table at the time was high and that it was his opinion that the cause of the spillage was groundwater already in the tanks from the old bottom leaks which forced the gasoline up and out when the bushings broke apart from the tank. Appellant, on the other hand, asserted that the gasoline spillage occurred either because of defendant’s use of heavy equipment causing extreme vibration or because of the broken water pipe. The testimony of appellant’s witnesses, however, failed to preponderantly link either the vibration or the broken water pipe to the accident. It is our opinion that the reasonable hypothesis opined by the critical expert was not excluded; and, further, that the trial judge’s findings after weighing the credibility of the witnesses were not clearly wrong.

The second issue is related to contractual liability of the contractor under the indemnification provision. The question in this regard is whether the indemnification or “hold harmless” clause applies with or without a finding of the contractor’s negligence.

Paragraph 3 of the Sears contract deals primarily with the obligation of Shamrock to obtain its own insurance, but also contains a brief sentence dealing with indemnity:

“The Contractor shall also protect, defend, save harmless and indemnify the Company, its employees and public, from any claims, demands, or expense on account of any injury, alleged or real, to persons, or damage, alleged or real, to property, arising out of anything done or omitted to be done under this agreement.”

Another indemnity provision is contained in the General Conditions of the Contract for Construction as published by the American Institute of Architects (AIA) which is incorporated by reference in the beginning of the Sears contract. That provision provides in case of conflict that the Sears provision overrides the A.I.A. provision. The A.I.A. provision stated in Paragraph 4.18, INDEMNIFICATION:

“To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner and the Architect and their agents and employees from and against all claims, damages, losses and expenses, including but not limited to attorney’s fees arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense (1) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including the loss of use resulting therefrom, and (2) is caused in whole or in part by any negligent act oí omission of the Contractor, any Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this Paragraph 4.18.” (Emphasis added)

Appellant argues that negligence is not a requirement of indemnity provisions. However, whatever the merits of that argument may be in other cases where the language involved does not insert negligence as a criteria for indemnity, the contract herein does so state and Louisiana law mandates that the contract is the law between the parties. LSA-C.C. art. 1945.

If these clauses are “conflicting” as appellant further asserts, then by the terms of the contract, the Sears provision, which does not require negligence by the contractor, would apparently prevail entitling appellant to a judgment in its favor. Appel-lee, however, argues that the A.I.A. provision does not conflict, but is a specific clause that clarifies the general Sears provision.

Citing Breaux v. Rimmer and Garrett, Inc., 320 So.2d 214 (La.App. 3d Cir.1975), appellee argues that general words of indemnity provisions are restricted by more specific terms. As the court notes in Breaux:

“It is a general rule of construction of contracts that, unless a contrary intention appears from the contract as a whole, the meaning of general words will be restricted by the more specific terms or descriptions of the subject matter. Mixon v. St. Paul Fire & Marine Ins. Co. of St. Paul, Minn., 147 La. 302, 84 So. 790 (1920); Lafleur v. Sylvester, 135 So.2d 91 (La.App. 3d Cir.1961); LSA-C.C. arts. 1959-1961.” At page 219.

This court is persuaded after reading the contract, including the A.I.A. document, as a whole, that the indemnity provisions are not conflicting but modifying. In addition, we find that the more specific terms of the indemnity provision found in the A.I.A. clause are such restrictions as contemplated by the Breaux case. Thus, as a negligence finding is a prerequisite to indemnification by the contractor to the owner under this contract and no negligence was found herein, appellant is not entitled to indemnification.

Finally, in consideration of the foregoing, appellant’s issues four and five need not be addressed since they concern plaintiff’s request to amend the petition to include damages not originally demanded.

For the foregoing reasons, after a review of the law and the record, the trial court judgment dismissing plaintiff’s case is hereby affirmed. Appellant is to pay all costs of this appeal.

AFFIRMED.


text:
    Clinton P. GUIDRY, Jr. v. Pamela Kay Martin, wife of Clinton P. GUIDRY, Jr.
    No. 83-CA-430.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.

      Martha E. Walters, Knight, D’Angelo & Knight, Gretna, for plaintiff and appellee-appellant.
    Craig Cimo, Gretna, for defendant and appellant-appellee.
    Owen J. Bordelon, Jr., Gretna, for third party, Ethel Guidry.
    Before KLIEBERT, CURRAULT and DUFRESNE, JJ.
   CURRAULT, Judge.

This appeal arises from the Twenty-Fourth Judicial District Court, Division “B”, wherein the Honorable Frank Y. Zac-earía continued in effect a previous judgment which awarded the custody of Ashley Lauren Guidry to Ethel Guidry, a nonpar-ent; and further ordered alimony pendente lite in the amount of Three Hundred Fifty Dollars ($350) per month in favor of Pamela Kay Martin Guidry.

Clinton P. Guidry and Pamela Kay Martin Guidry were married on August 8, 1980. Of this marriage, one child was born, namely Ashley Lauren Guidry.

On June 6, 1982, the parties physically separated, and on June 9, 1982, Clinton P. Guidry, Jr. filed a petition for separation alleging the defendant abandoned the matrimonial domicile without lawful cause by moving out. Petitioner also sought, and obtained, an ex parte custody order granting him provisional custody of the child until a rule for custody could be heard.

On June 25, 1982, the issue of custody was taken up and tried by the court and, as a result thereof, the trial judge awarded custody of the child to Ethel Guidry (paternal grandmother); refused visitation to Pamela Guidry, but granted visitation to the mother of Pamela Guidry, Doris Morn-ingstar.

On September 13, 1982, Pamela Guidry filed a rule for custody, child support, alimony pendente lite and use of community property. In turn, on November 19, 1982, Ethel Guidry filed a rule to terminate the visitation of Doris Morningstar. Both rules were set and partially heard December 3, 1982. These rules were then concluded on December 17, 1982.

Judgment was entered December 21, 1982, and ordered that the previous custody and visitation awards remain unchanged. It was further ordered that Pamela Guidry be awarded alimony pendente lite in the sum of Three Hundred Fifty Dollars ($350) per month commencing November 12, 1982. From this judgment all parties have appealed. However, on appeal, there is one issue: custody of the child.

CUSTODY ISSUE

We are faced with a contest for custody between a parent and non-parent. When Clinton Guidry petitioned for a separation based on his wife’s abandonment, he was given provisional custody. After a hearing held June 25,1982, custody was awarded to Ethel Guidry, the paternal grandmother of the child. This was done for two reasons: primarily because the trial court found the child’s mother, Pamela Kay Martin, to be unfit and unstable; and because Clinton Guidry was employed by his father as a commercial fisherman and was absent from the home some twenty days of each month during the fishing season.

The trial judge based his initial decision of unfitness on the testimony of some eleven witnesses, including the parties, the continued involvement and abuse of certain drugs and alcohol by Pamela Guidry and her suicidal tendencies. The trial judge was so convinced of Pamela Guidry’s unfitness that he denied her visitation with her own child. Instead, visitation was granted to Doris Morningstar, Pamela Guidry’s mother, with the stipulation that the minor child was to remain constantly under her direct supervision and control.

One day short of two months, after the entry of judgment awarding custody to Ethel Guidry, Pamela Guidry filed a rule to change custody, alleging that she had rehabilitated herself since the previous judgment and was in a better position to care for the minor child. Although filed shortly after the initial hearing, this hearing on the rule was not actually heard until approximately six months later. After the eviden-tiary hearing, the trial judge ordered that custody remain with Ethel Guidry, but went on to award liberal visitation to Pamela Guidry.

In his written reasons for judgment, the trial judge noted that while there was some evidence submitted to show that Pamela Guidry had made some effort to rehabilitate herself, there was also evidence that she, accompanied by her mother, Doris Morningstar, was still drinking and on some occasions was drinking in a bar while the minor child was present. The trial judge stated that after hearing “a parade of witnesses”, he still had doubt about her fitness because of the short period of time that had elapsed since her prior abuse of drugs and alcohol and her suicidal phase. Furthermore, the trial judge found that she had not established a reliable pattern of existence at the time of the hearing on the rule. He went on, however, to state that, hopefully, she would convince the court eventually that she was fit to take care of her child, the innuendo being that he would return custody to her at that time, and for that reason the court allowed liberal visitation rights to be granted in her favor.

It is well settled jurisprudence that in a custody contest between a parent and non-parent, the parent enjoys a paramount or superior right to custody of the child as against a non-parent. Only where “compelling reasons” (i.e., unfitness, being unable to provide a home for the child or having forfeited his/her right to parenthood) have been proven by the non-parent should the parent be deprived custody. Deville v. LaGrange, 388 So.2d 696 (La.1980); Wood v. Beard, 290 So.2d 675 (La.1974).

In the instant case, at the initial hearing, the burden of proof was carried and a finding of unfitness was declared by the trial court. The mother, instead of appealing the ruling of the initial hearing, chose to wait and subsequently file a rule for change of custody. After failing to convince the trial court at this second hearing that a complete change had taken place deeming her a fit and suitable parent, she now argues on appeal that the non-parent again carried the burden of proving her an unfit parent.

The jurisprudence is not abundantly clear as to who bears the burden of proof at a later hearing at which a change of custody is sought by the parent. Clearly, the burden of proof of any of the “compelling reasons” must be carried by the non-parent at the initial custodial contest between them. However, we believe, at a subsequent hearing to change custody brought by the natural parent previously deemed unfit, the burden of proof should rest on that parent to demonstrate that he or she has rehabilitated and the facts which gave rise to him or her being deprived of custody at the initial hearing no longer exist. We find appellant failed to carry this burden.

It is well established principle in our law that when, after an evidentiary hearing, there has been a decree of custody, the appellate courts give great weight to the determination of the trial judge and his findings are overturned only when there is a clear abuse of discretion. The rule was stated by our Supreme Court in Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971) as follows:

“Upon Appellate review, determination of the trial judge in child custody matters is entitled to great weight. He is in a better position to evaluate the best interests of the children from his total overview of the conduct and character of the parties and the children and of community standards. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof. Messner v. Messner, [240 La. 252] 122 So.2d 90 (La.1960); Salley v. Salley, [238 La. 691] 116 So.2d 296 (La.1959); Decker v. Landry, [227 La. 603] 80 So.2d 91 (La.1955); Guillory v. Guillory, [221 La. 374] 59 So.2d 424 (La.1952).”

This rule has been consistently followed in a long line of jurisprudence. The usual rationale given for the rule is stated above; that is, the advantage of the trial judge in being able to personally see, hear and evaluate the parties and witnesses.

Therefore, after a complete review of the record, we cannot say the trial court was either clearly wrong in denying a change of custody to the mother or that such decree was an abuse of his discretion. We are in agreement with the trial court that, although appellant has shown signs of improving her situation, the time that has elapsed between the initial custody hearing and the present rule is not a sufficient amount of time in which she could establish and demonstrate a reliable pattern of existence.

Accordingly, for the above stated reasons, the judgment of the trial court continuing custody of Ashley Guidry with her grandmother, Ethel Guidry, is hereby affirmed. Appellant is to pay all costs of these proceedings.

AFFIRMED.


author: REDMANN, Chief Judge.

text:
    Pamela DENNIS v. Dr. Durable CLAIBORNE.
    No. CA-0554.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1983.

      Michael R. Allweiss, Sessions, Fishman, Rosenson, Boisfontaine & Nathan, New Orleans, for Pamela Dennis.
    W.K. Christovich, Terry Christovich Gay, Christovich & Kearney, New Orleans, for Dr. Duralde Claiborne.
    Before REDMANN, C.J., and SCHOTT and CIACCIO, JJ.
   REDMANN, Chief Judge.

Plaintiff appeals from a judgment dismissing her medical malpractice suit on the basis of jury interrogatories.

We affirm on our independent review of the record, Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975). We are obliged to make that independent review because the wording of the special interrogatories to the jury asked only whether defendant physician lacked the appropriate knowledge and skill, and not whether he failed to exercise it. The jury’s negative answer to that question simply does not justify a judgment for defendant. A knowledgeable and skilled surgeon might by mistake fail to exercise his or her skill and thereby injure a patient and be liable. The trial judge did not (as perhaps he could, under then La.C.C.P. 1811) himself make factual findings or simply decide the case, but instead accepted the jury’s finding as determinative.

Our review of the entire record persuades us that plaintiff did not prove, as more probable than not, that, during the course of the uterine suspension operation that defendant performed on plaintiff, defendant caused plaintiff to lose the function of her left kidney, by ligating or otherwise damaging her left ureter as plaintiff argues. The testimony of Dr. Schlegel, for 23 years head of urology at Tulane Medical Center, is persuasive that the increased urinary pressure from ureteral damage would have caused the kidney to balloon, and that the passage of several years, as occurred here prior to discovery of the kidney’s small size, would not have resulted in shrinkage of the kidney had such ballooning occurred. The testimony of plaintiff’s urologist, Dr. Jaramillo, was thoroughly logical in itself, and if its factual suppositions were supported by the record we would be inclined to agree that, by whatever process, plaintiff’s kidney was somehow injured during the operation. But Dr. Jaramillo’s expert opinion was based upon the factual suppositions that a normal young woman without previous kidney problems experienced constant “excruciating” left flank pain following uterine suspension and later was found to have suffered death of the left kidney. From those factual suppositions he would deem the pain an indication that the later-discovered urinary system damage occurred during the operation and, we repeat, that would appear a quite logical conclusion. But those factual suppositions are not justified by the evidence. Defendant’s records show that plaintiff had been treated with antibiotics for urinary tract infections three times by defendant. Moreover, the expert testimony consistently characterized as very severe the pain that would have resulted from a kidney distended by a blocked or partially blocked ureter, while hospital records do not indicate any extraordinary postoperative pain; and the experts would expect high fever in such a case, and plaintiff did not experience a high fever. Even the lay testimony of plaintiff’s mother and then husband would not support a finding of very severe pain. (Perhaps the most notable instance was plaintiff’s testimony that because of pain she could not have gotten out of bed to go from her mother’s home to defendant’s office on December 27 as his records show she did. That testimony by plaintiff was unsupported by her mother’s testimony that plaintiff had then said she was going to the doctor’s office, but the mother didn’t know whether or not she had in fact gone.)

We conclude that the preponderance of the factual evidence and expert testimony favors the conclusion that the operation that defendant performed did not cause plaintiff the loss of function of a kidney.

We do not rule on plaintiff’s argument that the testimony of Drs. Bohm and Brad-burn should have been excluded for failure to give their names to plaintiff by supplement to answers to interrogatories. We share plaintiff’s chagrin, in a case like this, over defendant’s not naming two of his experts (including a doctor who assisted in the allegedly damaging surgery) until a week before trial. It is perhaps a close question whether those two experts should have been allowed to testify. But we disregard their testimony, as not essential to our view of this case, which is simply that Dr. Sehlegel’s testimony seems more completely reasoned independent of factual circumstances such as prior freedom of urinary tract infections and post-operative severe pain and high fever, while Dr. Jaramillo’s testimony, thoroughly logical in itself, relies on plaintiff’s recital of her history as including those circumstances (which we deem not proven to be present).

Plaintiff attacks Dr. Schlegel’s credibility because, having been plaintiff’s physician and not merely an expert employed for litigation, Dr. Schlegel later revealed his findings and opinion by letter to defendant. Plaintiff argues that that letter violated law and medical ethics and demonstrates a bias against plaintiff. We disagree. La. R.S. 13:3734 implies plaintiff’s consent to disclosure, at trial or during discovery, of relevant but otherwise confidential communications by plaintiff to a physician. In view of the availability of the letter’s information by discovery procedure we cannot conclude that its informal revelation by the letter affects Dr. Schlegel’s credibility.

Affirmed.


text:
    STATE of Louisiana v. Frederick HOWARD.
    No. KA-0620.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1983.
    Writ Denied Jan. 16, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, William R. Campbell, Jr., Asst. Dist. Attys., New Orleans, for appellee.
    Louis A. Heyd, Jr., New Orleans, for appellant.
    Before REDMANN, C.J., and KLEES and BYRNES, JJ.
   REDMANN, Chief Judge.

Defendant’s appeal, from his conviction and sentence for two counts of armed robbery after trial by jury, argues three errors.

Defendant first complains of failure to excuse for cause a juror whose daughter had been a victim of violent crime. That juror never said that she could not render an impartial verdict, although she did say she could not forget what had happened to her daughter. She first said “I guess so” when asked whether she could “be able to be a fair and impartial juror”; and on the final question she answered a simple “yes” to whether she could “independently judge what evidence you hear today and not let what happened to your daughter in any way influence your verdict in this case.” Defense counsel characterizes this as a “feeble” yes, but it is necessarily a decision for the trial judge whether a yes is “feeble,” inherently unreviewable by an appellate court’s reading of a transcript that says “yes.” We can find no abuse of the discretion that is his, State v. Eastin, 419 So.2d 933 (La.1982). See also State v. Heard, 408 So.2d 1247 (La.1982). And the simple fact that a prospective juror was personally the victim of a similar crime is not cause for challenge; State v. Ragsdale, 249 La. 420, 187 So.2d 427 (1966).

Defendant second argues that defendant was prejudiced by the state’s questioning about convictions he had admitted on direct and about defendant’s selling of marijuana (for which he had never been convicted).

The marijuana questioning was the result of defendant’s testimony on direct that he was the victim rather than the perpetrator of the armed robbery. He testified that he had made one sale of marijuana earlier in the vicinity and was about to sell marijuana to the two state witnesses when the male got a gun from the trunk of his car to rob defendant of about a pound of marijuana that he had. The assistant district attorney’s cross-examination on that version of the facts necessarily required questioning on defendant’s marijuana selling activity and it was not error to allow that cross-examination.

As to past convictions, defense counsel on direct asked, as to a concealed weapon conviction, “Were you found guilty, or did you plead guilty?” Defendant’s response was “I plead guilty” and testified of pleading guilty to burglary. (Defense counsel also asked “You were found guilty, or you pled guilty?” to possession of marijuana, but the transcript does not report defendant’s answer.) The state’s cross-examination fairly responded to that context, by asking defendant whether he was guilty of the offenses for which he was convicted. The only instance of repeated questioning concerned defendant’s burglary conviction. Defendant first denied he broke into a car, answered no to whether he in fact committed simple burglary of a specified automobile, then admitted he had pled guilty to doing so, attempted to evade the question whether he was guilty by repeating “I pled guilty to it, yes,” and finally conceded that he did break into the car. After that exchange a quick summary of defendant’s four convictions (he had testified to only three on direct) was not an undue repetition. We agree that the state’s sarcastic “congratulations” to defendant’s having “made it until November” (the date of the offense charged) after being released from prison in February was unnecessary and inappropriate, but we believe that a reasonable jury would resent rather than be unfairly prejudiced by such a comment by the state. We find no undue prejudice to the defendant by the state’s questioning.

Defendant’s final assignment of error is that the second-offender maximum sentence of 198 years was an excessive sentence for a 22-year old not previously convicted of violent crime, and is not supported by the trial judge’s reasons at the sentencing hearing. The trial judge noted defendant’s two previous convictions for carrying concealed weapons (“Anybody carrying a gun intends violence”), and the burglary conviction on which defendant was charged as a second offender, and the “perjury the entire time you sat on that [witness] stand. You told me right then you weren’t going to rehabilitate.” Defendant especially objects to the judge’s statement “You’ve been in jail practically your whole life up to now.” That statement is of course incorrect; perhaps the trial judge meant “in trouble.” In any case it is clear that the judge did not have this defendant confused with anyone else, and recited exactly what this defendant’s past criminal history is.

We could agree, as a theoretical matter, that defendant may not be among the very worst of second-offender armed robbers. He did not, for example, commit personal injury upon his victims (although that in itself would be another crime). But, also as a theoretical matter, we must say that defendant is not among the least of second-offender armed robbers. The trial judge correctly stated that society needs protection from him more than from a simple second offender. To give him the minimum second-offender sentence of 38 years, when he has two concealed weapons convictions in addition to those that would require the 33-year minimum, would be inappropriate. To place him in the middle category between 33 and 198 years might arguably be theoretically more appropriate, resulting in a sentence on the order of 82 years. But such a theoretical nicety is of no practical significance, for an 82-year sentence would imprison him until age 104, decades beyond reasonable life expectancy. Whether he is sentenced to 198 or 82 or even 60 years, the practical result is a life sentence. Unless we are obliged to hold that the Legislature acted beyond its power in requiring a sentence of from 33 to 198 years, we cannot say that a life sentence for this defendant with his criminal history is excessive. We see no point in remanding for sentencing to some lesser number of years that would make no practical difference in his imprisonment for life.

Affirmed.


text:
    Lillian Pulitzer SMITH et al. v. WEMBLEY INDUSTRIES, INC. et al.
    No. CA-0876.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1983.
    David Stone, Paul L. Zimmering, David W. Gruning, Stone, Pigman, Walther, Witt-mann & Hutchinson, New Orleans, for Lillian Pulitzer et al.
    Martin L.C. Feldman, Robert A. Kutcher, Fred Bronfin, Bronfin, Heller, Feldman, Steinberg & Berins, Leon H. Rittenberg, Jr., New Orleans, for Wembley Industries, Inc. and Samuel C. Pulitzer.
    Jack M. Weiss, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for Sidney C. Pulitzer and Arthur C. Pulitzer.
    Herbert J. Garon, Garon, Brener & McNeely, New Orleans, for A.M. Wolff and Anthony J. Peres.
    Before REDMANN, C.J., and KLEES and BYRNES, JJ.
   REDMANN, Chief Judge.

“Plaintiffs’ petition for mandamus and preliminary injunction, construed in the light of the earlier petitions, relies exclusively on the theory that a 1964 ten-year voting trust (that authorized a ten-year extension to be created the same day the trust was created) terminated in 1974 because the same-day extension violated then R.S. 12:33’s limitation of voting trusts to ten years by attempting to create in effect a 20-year trust. That petition does not state a cause of action because R.S. 12:33 contains no limitation on the authority for a ten-year extension other than that the original trust must authorize it (in detail).”

In those unpublished words on November 10,1982 we responded to plaintiffs’ application to our supervisory jurisdiction for review of the trial court’s refusal of mandamus or injunction to enforce their rights as 50% shareholders despite their shares’ having been in 1964 placed in a ten-year voting trust with ten-year extension by the then owner.

We deemed .it appropriate to review the trial court’s ruling under our supervisory jurisdiction, rather than await appeal, because trial court delays (for whatever reason) were consuming the little remaining time before September 17, 1984, when the voting trust at issue would by its terms end. The parties were fighting over a period then less than two years and it would have been a denial of justice to oblige them to await the several months that review by appeal would have consumed. Our action was, in effect, the grant of certiorari, and an affirmation of the trial court’s refusal of mandamus and injunction, although on grounds different from the trial judge’s grounds. Perhaps more accurately we should have used the decree “affirmed” rather than “writ denied.” In any case, the supreme court refused writs, 423 So.2d 1177, with two dissents.

Meanwhile plaintiffs had also filed an appeal of the same ruling of the trial court. We dismissed that appeal, with one dissent, on the theory that we had already ruled on the judgment appealed from. The supreme court granted writs and reinstated plaintiffs’ appeal, with three dissents, 432 So.2d 263. The plaintiffs’ brief notes:

“The plaintiffs therefore appeal from the trial court’s judgment of September 30, 1982, and seek a decision in this Court holding that the ‘extended’ voting trust is invalid as a matter of law, and recognizing the rights of plaintiffs as shareholders of Wembley.”

Plaintiffs’ argument in brief demonstrates that the fundamental issue remains whether the voting trust extension is effective. If so, plaintiffs’ complaints of being denied summary procedure for mandamus and for injunctive relief do not require discussion.

Plaintiffs argue that a 20-year trust was in effect created by executing the voting trust agreement for the statutory ten-year maximum and on the same day (as the trust authorized) executing an extension until ten years after the expiration of the original agreement. Plaintiffs argue that a 20-year trust is prohibited by the law expressly limiting a voting trust to ten years.

We concede that the effect approaches that of a simple 20-year trust, but the difference is that no one was bound to 20 years by one agreement: a second agreement was necessary. Either one of the two 50% shareholders had the power to vote against the extension. But plaintiffs argue that, without the passage of some reasonable time, neither shareholder had a reasonable basis upon which to vote on the extension, and that the statute therefore implies that the trust must be in effect for some reasonable time before an extension can be voted. If we accept that argument, then what is a reasonable time for two 50% shareholders who have had the experience of being 50% shareholders, each unable to act without the other? Is not that experience the same as that they would gain as equal co-trustees of their voting trust? To require them to wait even a single day would not better qualify them to vote on their extension agreement.

We do not accept plaintiffs’ argument that we should read into the statute a limit that the legislature did not place. The legislature presumably could have allowed a 20-year trust (as it now allows a 15-year trust, R.S. 12:78 A (1968 rev.)), and we therefore find no objection to the legislature’s having allowed a ten-year trust with a ten-year extension, so unlimited as to the time for execution as to facilitate a near-equivalent to a 20-year trust.

Former R.S. 12:33 A contained no limitation on the authority for a ten-year extension other than that the original trust must authorize it and specify the terms of voting on it. Plaintiffs’ petition for mandamus or injunction, relying exclusively on the theory that this trust’s ten-year extension violated former R.S. 12:33 A, does not state a cause of action.

Affirmed.


author: SCHOTT, Judge.

text:
    Mrs. Mary Louise JILES, Mother of and Natural Tutor of Minor, Christopher Patrick Jiles v. CHURCH’S FRIED CHICKEN, INC.
    No. CA 0728.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1983.

      Sidney L. Shushan, Gideon T. Stanton, III, Guste, Barnett & Shushan, New Orleans, for plaintiff-appellant.
    Geoffrey P. Snodgrass, Christovich & Kearney, New Orleans, for defendant-ap-pellee.
    Before SCHOTT, WARD and CIACCIO, JJ.
   SCHOTT, Judge.

This is a suit by Mrs. Mary Louise Jiles for damages in behalf of her two year old son, Christopher, arising out of salmonella food poisoning he allegedly contracted from fried chicken purchased from defendant. The court dismissed the suit and plaintiff appealed. The issue is whether plaintiff’s evidence was such that the trial court erred as a matter of law in dismissing the suit.

Christopher Jiles became ill on the morning of October 19, 1980, and was hospitalized that afternoon. He was found to have contracted salmonella food poisoning. Plaintiff sought to prove that the cause was fried chicken purchased the previous day from defendant.

Plaintiff testified that she, her then husband-to-be, Henry Braiden, her fifteen year old son, Kevin, and Christopher ate the chicken shortly after purchasing it on the evening of October 18. Plaintiff’s grown daughter, Charita, testified that she, her four year old brother, Torey, and Christopher ate breakfast and lunch together on October 18 but that she and Torey did not get sick.

On the other hand, plaintiff, Braiden, and Kevin testified that they woke up with diarrhea on October 19. Christopher's treating physician testified that salmonella can be ingested from chicken and that the incubation period for the virus is from twelve to eighteen hours although initial symptoms may begin as late as seventy-two hours after ingestion. The virus has more serious adverse effects on a two year old than a grown person.

Given the hypothetical that the other three family members who ate chicken with Christopher contracted diarrhea and that other family members who did not eat the chicken did not get sick, the physician stated that it was “more probable than not that the salmonella could have been in the chicken.”

In reasons for judgment the trial court observed that the physician’s opinion was based on the facts in the hypothetical. However, those facts depended exclusively upon the credibility of the witnesses which the trial judge clearly questioned. None of the other family members sought medical treatment and the physician had testified in discovery deposition that she asked plaintiff whether her older children had diarrhea when Christopher was admitted to the hospital and plaintiff stated that they didn’t. Plaintiff’s entire case rests on the assumption that Christopher’s salmonella poisoning was shared by his mother, his brother, Kevin, and Braiden. Since the trial judge disbelieved their testimony that they contracted diarrhea the case falls. We cannot substitute our judgment for the trial court’s on such an issue. See Hebert v. Winn Dixie Stores of Louisiana, Inc., 426 So.2d 295 (La.App. 4th Cir.1983).

Finally, we note an additional flaw in plaintiff’s case in that the physician stated that initial symptoms of salmonella may appear as late as seventy-two hours after ingestion. The best plaintiff could show was the food taken by the family from the morning of October 18. They could have ingested the virus as early as October 16 and not had symptoms until October 19.

The trial judge concluded his reasons for judgment with the following succinct statement:

“In sum, the court finds that young Christopher did suffer from salmonella but that plaintiff failed to prove that the source of the bacteria was defendant’s chicken ...”

We find no manifest error in this conclusion and affirm the judgment.

AFFIRMED.