text:
    STATE of Louisiana, Appellee, v. Charles R. COOK, Appellant.
    No. 15895-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.
    Rehearing Denied March 28, 1984.
    Writ Denied May 25, 1984.

      Donald R. Minor, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Terry L. Lindsey, Tommy J. Johnson, Asst. Dist. Attys., Shreveport, for appellee.
    Before HALL, JASPER E. JONES and SEXTON, JJ.
   HALL, Judge.

The defendant, Charles Ray Cook, appeals his convictions after a jury trial for aggravated burglary and attempted aggravated rape in violation of LSA-R.S. 14:27, 14:42, and 14:60, and concurrent sentences of 20 years at hard labor on the aggravated burglary charge and 40 years at hard labor on the attempted aggravated rape charge. On appeal, the defendant contends by three assignments of error (eight other assignments were not briefed or argued and are considered abandoned) that the trial court erred in denying his motion to suppress certain inculpatory statements and fingerprint evidence, in denying his motion for a new trial, and in denying his challenge for cause of a prospective juror. Finding these contentions to be meritless, we affirm the defendant’s convictions and sentences. Facts

Shortly after midnight on December 27, 1981, the defendant, while armed with a knife, entered the home of an elderly Shreveport woman, took some valuables, and attempted to rape her. Upon responding to a call, police officers received a description from the victim and lifted latent fingerprints from the scene. However, their initial investigations produced no suspects.

On February 23,1982, the defendant was arrested by Shreveport police officers almost immediately after the commission of a residential burglary unrelated to this case. While in custody, the defendant’s fingerprints were compared with the latent fingerprints discovered at the residence of the complainant in this case. Upon learning there was a print match, police detectives questioned the defendant about the instant offenses and an incriminating statement was recorded and subsequently introduced at trial. The victim identified the defendant as her assailant from a photographic lineup and in court.

The defendant presented alibi evidence, claiming that he was at the home of some of his relatives on the night of and at the time of the offenses in question. However, the jury returned a guilty verdict as to both charges.

Assignments of Error Nos, 1 and 10 — Denial of Motion to Suppress and Denial of New Trial Motion

Following his arrest on the unrelated residential burglary charge, the defendant made certain inculpatory statements to police officers. In Assignment of Error No. 1, the defendant contends these statements, and the fingerprint evidence, should have been suppressed because defendant’s arrest on the unrelated charge was without probable cause and the statements given were involuntary and were coerced from the defendant through a lengthy detention prior to arraignment. We find both these arguments to be meritless.

In reviewing a ruling on a motion to suppress, the court looks at the totality of the evidence produced at the hearing on the motion and at trial. State v. Foster, 437 So.2d 309 (La.App.2d Cir.1983).

Concerning the probable cause for the defendant’s arrest on the unrelated burglary charge, the testimony of detectives, adduced in substantial part on cross-examination by defense counsel, although mostly hearsay, establishes that the defendant was seen by the owner of the burglarized house during the commission of the offense and was stopped and arrested nearby approximately five minutes after the burglary was reported because he fit the description given by the complainant. A gold watch taken from the burglarized residence was found on the defendant's person at the time of the stop and arrest.

Based on this evidence, the trial judge found that probable cause for the defendant’s arrest existed. The trial judge’s conclusions as to probable cause are entitled to great weight and we find no error in the conclusions reached in this case. State v. Foster, supra. Consequently, the defendant’s motion to suppress in-culpatory statements due to an insufficient showing of probable cause for his arrest on the unrelated burglary charge was properly denied.

The defendant also contends that the trial court erred in denying the motion to suppress because his statements were involuntary. Specifically, the defense argues that the confession relating to these offenses was involuntary because the 17-year-old defendant was held without bail or counsel and interrogated over the course of a three-day period by several police officers. The defendant testified that a police officer used profane language and a detective stated that he would go to Angola if he didn’t talk. The record reflects that the defendant was implicated in numerous other offenses, and, after investigation by several police officers, the defendant was in fact charged with the commission of several other offenses. The delay in bringing the defendant before a judge for the appointment of counsel and the fixing of bail in this case was within the 72-hour statutory period, LSA-C.Cr.P. Art. 230.1, and was not inordinate due to the numerous investigations by different officers which had to be conducted to determine what charges should be filed against the defendant. State v. Reed, 390 So.2d 1314 (La.1980), relied on by defendant, is distinguishable because in Reed the defendant was prevented from seeing counsel retained by his father, a factor not present in this ease.

The detectives testified that the statements given by the defendant were free and voluntary, and were not induced by threats, promises, or coercion. The evidence rebuts defendant’s allegations of police misconduct. It was not an abuse of the court’s discretion to believe the testimony of the police officers over that of the defendant. State v. Neslo, 433 So.2d 73 (La.1983). Consequently, the trial court did not err in denying the defendant’s motion to suppress based on the involuntariness of the inculpatory statements at issue. Assignment of Error No. 1 is without merit.

Concerning the denial of the defendant’s motion for a new trial which was based, in essence, upon the same allegations previously discussed with respect to the inculpatory statements admitted at trial, since we have found the trial court’s ruling on the motion to suppress proper, we find no error in the denial of a request for a new trial based upon those same allegations. Consequently, Assignment of Error No. 10 is without merit.

Assignment of Error No. 4—Challenge for Cause

In this assignment of error, the defendant objects to the trial court’s refusal to sustain his challenge for cause lodged against a prospective juror, Harvey D. Teasley, due to Teasley’s law enforcement associations, particularly with certain law enforcement officers called as witnesses in this case. Upon the trial court’s refusal to excuse Teasley for cause, the defendant exercised a peremptory challenge and the prospective juror was excused. Subsequently, the defendant exhausted his peremptory challenges.

Voir dire examination revealed that Teas-ley was a police officer for 34 years. For 16 years he was Chief of Police of the Shreveport City Police Department. Prior to becoming police chief he was Captain of Personnel, and as such was responsible for screening applicants and making recommendations as to hiring. He had performed this function with respect to some of the officers listed as prospective witnesses in this case. However, Teasley did not know some of the prospective officer/witnesses and had made no such recommendation with respect to their employment.

Teasley had been retired from the police force for about 10 years prior to being called for jury duty in this case. He served on the Police Federal Credit Union until approximately one year prior to his summons for jury duty. He testified he has occasional contact with persons in the Shreveport Police Department. Teasley is a member of the Fraternal Order of Police, and the Louisiana Police Officers’ Association.

Teasley also testified that he had no pri- or knowledge concerning this case and did not know the defendant, the prosecutor, or the defense counsel. Teasley further stated he had never served on a jury before and had not personally been the victim of a crime. He further stated his opinion that merely because a complaint is filed in a particular case does not mean that the accusation is true or the accused is guilty. He further testified that he would judge the case only on the basis of the evidence presented and would judge the witnesses’ credibility solely on the basis of their testimony, not whether the witness was a police officer.

The defendant may challenge a juror for cause on the ground that the juror is not impartial, whatever the cause of his partiality. LSA-C.Cr.P. Art. 797(2). While service on a criminal jury by one who is associated with law enforcement duties must be closely scrutinized and may justify a challenge for cause, the mere presence of such an association does not automatically disqualify that individual as a prospective juror. State v. Chapman, 410 So.2d 689 (La.1981); State v. Baldwin, 388 So.2d 664 (La.1980). Rather, given the totality of the circumstances involved, the revealed details of the relationship must be such that bias or prejudice can be reasonably implied. State v. Lewis, 391 So.2d 1156 (La.1980); State v. McIntyre, 365 So.2d 1348 (La.1978). It is the responsibility of the challenging party to show that the relationship in question is of such a nature as to influence the juror in arriving at a verdict. State v. Chapman, supra. A trial judge has broad discretion in ruling on a challenge for cause and his ruling will not be disturbed on appeal absent a showing of abuse of that discretion. State v. Smith, 437 So.2d 802 (La.1983).

From the record before us, Teasley is only shown to have had occasional contact with active police officers from his old department and to have retained his membership in two fraternal-type, law enforcement organizations. The record does not clearly establish that the prospective law enforcement witnesses were among the officers with whom Teasley had occasional contact, only that he knew some of these individuals and had been involved somewhat in the process of their hiring many years ago.

Under these circumstances, Teas-ley’s past and present associations disclose no prejudice in and of themselves. A retired officer’s continued occasional association with those actively engaged in law enforcement duties does not act to automatically disqualify that individual from criminal jury service. State v. Chapman, supra, and State v. Baldwin, supra. The voir dire testimony, taken as a whole, was sufficient to convince the trial court that Teasley could be impartial, and we agree. The trial court correctly denied the for cause challenge of prospective juror Teas-ley and committed no abuse of discretion in so doing.

Additionally, we note that the case of State v. McIntyre, supra, in which, a sufficient showing of bias or partiality on the part of a retired state trooper who was a prospective juror was made to warrant a reversal due to the trial court’s erroneous refusal to sustain a challenge for cause, is readily distinguishable from this case because of the existence of several factors in that case other than law enforcement associations which affected the juror’s ability to be impartial.

This assignment of error is without merit.

Decree

The defendant’s convictions and sentences are affirmed.

Affirmed.


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Robert DUNN, Appellant.
    No. 15905-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.
    John L. Sheehan, Ruston, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, T.J. Adkins, Dist. Atty., Dan J. Grady, III, Asst. Dist. Atty., Ruston, for appellee.
    Before PRICE, JASPER E. JONES, and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

Defendant has appealed his conviction and sentence for attempted possession of Phenmetrazine, a Schedule II drug. (LSA-R.S. 40:964, 967; R.S. 14:27) Defendant, Robert Dunn, and a co-defendant, Gloria Malcolm, were charged in a joint bill of information with possession of Phenmetra-zine. The co-defendant, Malcolm, pled guilty to a lesser count of conspiracy to possess Phenmetrazine.

Defendant Dunn, after a jury trial, was found guilty of attempted possession of Phenmetrazine and was sentenced to two and one-half years at hard labor.

The issues presented as framed by the assignments of error and brief are whether there was sufficient evidence to support a conviction, and whether the sentence imposed was excessive.

We find the evidence insufficient to satisfy the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and for the reasons stated herein reverse the conviction.

On December 6, 1982, at 3:45 p.m. Ru-ston Police Officers Randall Hermies and Tommy C. Doss, made a search of the premises at 1106 Olla Street, Apartment No. 2, in Ruston. The search was pursuant to a search warrant describing the location of the premises and declaring that the house was known to be occupied by Robert “Yakki” Dunn.

At the time of the search the only persons present at this address were Gloria Malcolm and her small child. The officers found and seized a small scorched glass vial; two syringes, an envelope with a small quantity of seeds (which were suspected to be marijuana), a plastic bottle cap with a wire attached, and a plastic band. The officers also seized an empty medicinal container labeled with a prescription for Benadryl in defendant Dunn’s name.

Gloria Malcolm was arrested at the time of the search. Defendant Dunn was arrested at this same address at about 9:45 a.m. on December 8, 1982.

At trial the state presented the North Louisiana Criminalistic Laboratory report ■ showing that the small glass vial and the plastic bottle cap seized under the search warrant each contained traces of Phenme-trazine. In an effort to prove that defendant knowingly possessed the controlled substance, the state offered the testimony of Officer Hermies who testified that at the time of his arrest defendant gave his place of residence as 1106 Olla, apartment number 2. As further corroborating evidence he offered the empty prescription bottle bearing defendant’s name which was found at this address.

In support of his defense that he had no knowledge or control over the small trace of the controlled substance seized, defendant offered the testimony of his father, Jay Vance Dunn, and Gloria Malcolm. The gist of the testimony of Jay Vance Dunn was to the effect that defendant’s actual residence was at his home located at 505 Ash Street in Ruston; that defendant kept all of his clothes and received his mail at that address; that he occasionally spent more than one day at a time away from home when he had available spending money.

Gloria Malcolm testified that the apartment at 1106 Olla Street was leased to her and that she alone paid the rent and lived there with her child; that defendant visited her frequently and often spent the night with her; that none of his clothing was kept at her apartment; that defendant had given her some money which she had used to pay utilities; that defendant had not been at the subject address the day or night before the search warrant was executed although he had spent the night with her preceding his arrest on the morning of December 8th.

Gloria Malcolm further testified that she had pled guilty to the conspiracy to possess charge following a plea bargain with the state; that the controlled substance had been used in her apartment by one or more persons who had attended a party there some time prior to the December 6 search; that defendant came by her home late on the occasion of one of the parties, but he had no connection with the use of the Phen-metrazine.

Defendant contends the foregoing evidence does not meet the due process standards required under Jackson v. Virginia, supra. Jackson holds that the record evidence, viewed in the light most favorable to the prosecution, must be sufficient for a rational juror to conclude that the essential elements of the crime were proved beyond a reasonable doubt.

To convict for the crime of possession of a controlled substance the state must present evidence showing the defendant exercised actual or constructive possession of the substance by having it under his control or dominion. State v. Alford, 323 So.2d 788 (La.1975). An attempt to commit the offense requires proof of an act or omission for the purpose of or tending directly toward the accomplishment of the offense. La.R.S. 14:27.

The state has attempted to prove defendant’s guilt by showing he was in constructive possession in this instance. The rule of constructive possession is set forth in State v. Alford, supra, as follows:

Under our law, an individual need not personally possess a drug to violate a law against its illegal possession, because constructive possession is sufficient. But for a person to constructively possess a drug it must be subject to his dominion and control, and he must have knowledge of its existence....

Further in State v. Walker, 369 So.2d 1345 (La.1979), the Supreme Court ruled:

... The prosecution is not required to prove actual possession, but needs only to show that the defendant exercised dominion or control over the illegal substance. State v. Edwards, 354 So.2d 1322 (La.1978); State v. Roach, 322 So.2d 222 (La.1975). However, the mere presence of someone in the area where the controlled dangerous substance is found, or mere association with the person found to be in possession of the contraband, is insufficient to constitute constructive possession. State v. Alford, 323 So.2d 788 (La.1975); State v. Cann, 319 So.2d 396 (La.1975).

There is no evidence in the instant case to show defendant was in control or had dominion of the vial or bottle cap containing the residue of Phenmetrazine or that he had actual knowledge of its existence.

At most the state’s evidence shows he had a close personal relationship with Gloria Malcolm, the lessee of the apartment where the substance was found. Mere association with a possessor is not sufficient; nor is being a resident of premises where a drug is found in and of itself sufficient to prove constructive possession. State v. Alford, supra. Also see State v. Johnson, 404 So.2d 239 (La.1981) and State v. Trahan, 425 So.2d 1222 (La.1983).

Although defendant gave 1106 Olla as his residence when being booked, the evidence does not show he had a key or free access to these premises at all times. The state did not present any evidence to rebut the testimony of Gloria Malcolm that she was the sole lessee of the premises. No clothing or other personal items belonging to defendant were found in these premises at the time of the search with the exception of the empty Benadryl prescription bottle. The date on the prescription was more than a year prior to the date of the search.

There was no visible quantity of any drug found in the premises. There is no evidence showing defendant regularly occupied the bedroom in Malcolm’s apartment in which these articles were found during the search. At the time of his arrest on December 8th he and Malcolm had been sleeping on a mattress on the floor of the living room.

Although Gloria Malcolm testified under cross-examination that defendant had come by her apartment late one night during a party when other persons were using the Phenmetrazine, she testified defendant did not participate in this activity. There is no evidence to show defendant had any actual knowledge the drug was being used on this occasion.

On the basis of the evidence presented, even when reviewed in the light most favorable to the prosecution, a rational juror could not conclude that the essential element of an attempt to have or share control or dominion over the drug by defendant was proved beyond a reasonable doubt. Therefore, we must reverse the conviction and sentence.

For the foregoing reasons, the conviction and sentence of Robert Dunn are reversed, and judgment of acquittal is entered.

REVERSED.


author: NORRIS, Judge.

text:
    Bennie REED, Plaintiff-Appellant, v. MISSOURI PACIFIC RAILROAD, et al., Defendant-Appellee.
    No. 15948-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.

      Bruscato, Loomis, Deal & Street by Phillip T. Deal, Monroe, for plaintiff-appellant.
    Hudson, Potts & Bernstein by B. Roy Liuzza, Monroe, for defendant-appellee.
    Before PRICE, JASPER E. JONES and NORRIS, JJ.
   NORRIS, Judge.

In this wrongful death/survival action, Benny Ray Reed, Della Mae Reed, Arlene Reed and LeRoy Reed appeal a judgment sustaining an exception of no right of action. Finding that the ruling of the trial court was erroneous, we reverse and remand for further proceedings consistent with this opinion.

On October 26, 1981, Bennie Reed filed suit against Missouri Pacific Railroad Company and its employees for damages sustained when his vehicle collided with a tank car stationed on the Missouri Pacific tracks at their intersection with Grammont Street in Monroe. On September 2, 1982, a motion to substitute parties plaintiff was filed on behalf of Curtis Thompson, Benny Ray Reed, Della Mae Reed, Arlene Reed and LeRoy Reed alleging that on August 3, 1982, Bennie Reed died from causes relating to the injuries sustained in the accident and that the substitute plaintiffs were the acknowledged illegitimate children of the deceased, who as his survivors, were entitled under La.C.C. Art. 2315 to be substituted as parties plaintiff in lieu of their deceased father. Simultaneously with the filing of the order of substitution, a second amending and supplemental petition was filed by the substituted plaintiffs incorporating a wrongful death action with the survival action. Contained within this pleading is the allegation that the plaintiffs are the illegitimate children of Bennie Reed thereby entitling them to maintain their survival and wrongful death action.

Defendants filed an exception of no right of action based on two grounds: (1) that the plaintiffs were not the illegitimate children of Bennie Reed and (2) in the alternative, that the actions of the parties in seeking to establish filiation were not timely brought under the provisions of La.C.C. Art. 209.

At the hearing on the exception, the parties stipulated that the factual issues of the plaintiffs’ relationship to and/or acknowledgment by Reed, as raised by the exception, would be referred to the merits to be determined at the time of trial and submitted to the trial court for decision the issue of peremption or prescription of the filiation action under La.C.C. Art. 209.

In written reasons, the trial court maintained the exception upon its finding, ex proprio motu, that La.C.C. Arts. 208 and 209 require that filiation be established in a separate proceeding vis-a-vis other possible heirs or family members before illegiti-mates who are not formally acknowledged may assert a tort claim after which it pre-termitted any finding regarding defendants’ contention that the action was not timely.

On appeal, plaintiffs contend that the trial court erred in (1) holding La.C.C. Art. 209 to be applicable to the facts of this case; (2) holding that plaintiffs had not complied with its provisions; and (3) failing to declare it to be unconstitutional insofar as it relates to this case. Because of the particular posture in which this case is presented to us for review, it is only necessary that we address plaintiffs’ second contention. Therefore, we expressly pretermit any discussion of or holding regarding their remaining arguments.

It is significant that the parties referred the factual question of the acknowledgment by or biological relationship of the plaintiffs to Reed to the merits. For this reason, the only issues actually before us for review are (1) whether or not these plaintiffs may cumulate their filiation action with their wrongful death/survival action? and (2) if so, whether or not the action filed by plaintiffs was timely? We answer both affirmatively.

The wrongful death/survival action is provided for by La.C.C. Art. 2315:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person.
The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.
The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover the damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.
As used in this article, the words “child”, “brother”, “sister”, “father”, and “mother” include a child, brother, sister, father, and mother, by adoption, respectively.

After the decision of the United States Supreme Court in Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), wrongful death and survival actions have been available to illegitimates. Under the rationale of Levy, it is the biological relationship and dependency which is determinative of the child’s rights in these cases and not the classification (legitimate or illegitimate) into which the child is placed by the statutory law of the state. Warren v. Richard, 296 So.2d 813 (La.1974). However, it has been held that Article 2315 cannot be isolated from other sections of the Civil Code in interpreting its meaning. Simmons v. Brooks, 342 So.2d 236 (La.App. 4th Cir.1977); Clark v. Tenneco, Inc., 353 So.2d 418 (La.App. 4th Cir.1977).

In recent years, the legislature has sought to delineate and limit the circumstances under which an illegitimate may assert and prove filiation. In furtherance of this aim, the following articles of the Civil Code were amended to provide at the time that this action was brought:

Art. 3556(8)

Whenever the terms of law, employed in this Code, have not been particularly defined therein, they shall be understood as follows:
(8) Children — Under this name are included those persons born of the marriage, those adopted, and those whose filiation to the parent has been established in the manner provided by law, as well as descendants of them in the direct line. [Emphasis added.]

Art. 208

In order to establish filiation, a child who does not enjoy legitimate filiation or who has not been filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must institute a proceeding under Article 209. [Emphasis added.]

Art. 209

A. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation by a preponderance of the evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this Article.
B. The proceeding required by this Article must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation.
C.' The right to bring this proceeding is heritable.

The purposes of the act (Act No. 720 of 1981) amending and reenacting Articles 208 and 209 expressly stated therein are to provide for proof of filiation by children, or on their behalf; to provide a procedure and time limitations for proceedings to establish filiation; to provide for the method and standard of proof in such actions; and to provide that the failure to institute timely such a proceeding shall bar the claims of the persons covered by the act. According to the comments to Article 209 ‘[informally acknowledged’ children, as defined in the jurisprudence, do have to comply with this article.” Further contained in the amendment to Article 209 is a “grace period” which provides:

Section 2. Any person against whom the time period provided in this Act would otherwise have accrued except for the provisions of this Section shall have one year from its effective date to brinj. a proceeding to establish filiation of a child. If no such proceeding is timely instituted, such filiation may not thereafter be established.

Assuming for the purposes of this lawsuit that these articles are applicable to these illegitimates who seek to assert wrongful death/survival claims, we can find nothing contained therein that would prohibit the statutory beneficiaries in this case from combining their action to establish filiation under Article 209 with their wrongful death/survival action. All Article 209 requires is that a civil proceeding be filed asserting filiation. Furthermore, we have been unable to find any other procedural bar or other legal basis on which to deny them this right to cumulate because there is no requirement that a proceeding asserting filiation be a separate proceeding. In fact, there is jurisprudential authority expressly allowing such cumulation. See Smith v. Stephens, 412 So.2d 570 (La.1982); Succession of Clivens, 426 So.2d 585 (La.1982); Succession of Hawkins, 429 So.2d 194 (La.App. 1st Cir.1983). See also 43 La.L.Rev. at 541.

Therefore, the trial court’s ruling that such an action must be brought in a separate proceeding was clearly wrong and is reversed.

The trial court pretermitted a determination of the timeliness of the filing of this action. The 1981 amendment to Article 209 was specifically considered and interpreted in Succession of Clivens, supra, to mean that by virtue of this particular amendment, the legislature granted a second grace period for proving filiation because of the inadequacies of the grace period of the prior act (Act 549 of 1980) which gave unacknowledged illegitimates until September 11, 1982, to file a filiation action. See also Succession of Hawkins, supra; Bedford v. Sanders, 437 So.2d 914 (La.App. 2d Cir.1983). Consequently, plaintiffs’ action filed September 2, 1982, is timely because it was filed prior to September 11, 1982.

As noted earlier herein, the parties stipulated that the factual question of whether the plaintiffs were the biological children of Reed would be referred to the merits. Because under Smith v. Stephens, supra, the issue of paternity may be raised by an exception of no right of action, its final disposition must await trial.

For the foregoing reasons, the judgment of the trial court sustaining the exception of no right of action is reversed and the case is remanded to the district court for proceedings consistent with this opinion.

JUDGMENT REVERSED; CASE REMANDED.

      . Curtis Thompson was found by the court to be the formally acknowledged child of Reed thereby removing him from the requirement that he bring a filiation action in order to assert his claim, and the exception was not maintained as to him.

        . This article was amended subsequent to the death of Reed; however, this amendment does not effect the result herein.


text:
    OUACHITA PARISH POLICE JURY, Plaintiff-Appellant, v. Ray WRIGHT, Defendant-Appellee.
    No. 15992-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.

      C. Lynn Tubb, Asst. Dist. Atty., Fourth Judicial Dist., Monroe, for plaintiff-appellant.
    Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for defendant-appellee.
    Before PRICE, MARVIN and SEXTON, JJ.
   PRICE, Judge.

This is a suit for declaratory judgment by the Ouachita Parish Police Jury to have the section of Cypress Bluff Road traversing defendant’s property declared a public road under the authority of La.R.S. 48:491. The plaintiff appeals the trial court judgment in favor of the defendant, contending the trial court erred in holding that there had been insufficient maintenance by the police jury to support the invocation of La.R.S. 48:491, and in holding that, even if there had been a tacit dedication, public use of the road since 1965 was insufficient to prevent the loss or abandonment of the public servitude under La.C.C. Arts. 753 and 3546.

Defendant owns a 20-acre tract of property in Ward 9 of Ouachita Parish. This property fronts on Cypress Creek and is traversed by a portion of Cypress Bluff Road leading to the creek. Defendant acquired the property around 1965 and shortly thereafter erected a fence around it and placed a gate across the road. He also erected and maintained “no trespassing” and “private property” signs although certain persons were apparently allowed ingress and egress to their own property or the creek through defendant’s property.

The record reveals no evidence of parish maintenance of the road on defendant’s property since he erected the gate. The trial court specifically found that plaintiffs failed to show sufficient parish maintenance before that time to support a tacit dedication of the road under the statute.

The evidence presented at trial was conflicting in some aspects. One of plaintiffs’ witnesses testified he had personally seen his father-in-law, who was a motorgrader operator for the parish, grade the road two or three times between 1946 and 1957. Another motorgrader operator for Ward 9 from 1960 to 1969 testified he bladed the entire length of Cypress Bluff Road about four times a year until the gate was erected. However, he could not identify the road in question from photographs introduced into evidence. Another parish employee who drove a gravel truck from 1959 to 1966 testified he could not recall ever having worked the road. Two other witnesses testified to having seen a grader on Cypress Bluff Road several times during the 1940’s or 1950’s, but not necessarily on defendant’s property.

Defendant and other witnesses testified, however, that the road on his property was little more than a path through the woods when he acquired it and he had to hire someone to widen this route to provide access for an eight-foot-wide house trailer which was moved onto the property. Robert Fuller testified he cleared the space alongside the original road to make way for defendant’s trailer. He saw no signs of maintenance at that time. Two of defendant’s witnesses who had been familiar with the property since the early 1950’s testified that they had never seen the parish grade the road nor had they seen any other signs of maintenance.

It was also shown that the entire length of Cypress Bluff Road was too rough and too narrow to permit passage by a school bus until four or five years after defendant’s acquisition of the property. The bus driver for that period testified that the parish later began to maintain the road up to defendant’s gate and built a turn-around just outside the gate but never performed any maintenance beyond that point.

Plaintiff contends the road in question is a public road by virtue of the parish maintenance shown at trial pursuant to La.R.S. 48:491 which provides in pertinent part:

B. All roads or streets in this state which have been or hereafter are kept up, maintained, or worked for a period of three years by authority of a parish governing authority within its parish ... shall be public roads or streets, as the case may be ....

The issue of public maintenance sufficient to support a tacit dedication is an issue of fact peculiarly within the purview of the trial court. Thus this court must adhere to the principle that factual conclusions and assessments of credibility by the trier of fact are entitled to great weight. Furthermore, where there is conflicting testimony the reasonable evaluations of credibility and reasonable inferences of fact by the trial court should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Garner v. Waddill, 421 So.2d 1144 (La.App. 2d Cir.1982).

It is well settled that an occasional “brushing up” or token maintenance will not suffice to establish a tacit dedication. Garner v. Waddill, supra; Jackson v. Town of Logansport, 322 So.2d 281 (La.App. 2d Cir.1975) and authorities cited therein. The trial court found plaintiff failed to establish maintenance to the degree or duration necessary for application of the statute. This conclusion is well supported by the record, as evidenced by the testimony recounted above, and will not be disturbed on review.

It is uneontradicted that the parish never placed any gravel on the road. Parish workers may have occasionally bladed defendant’s portion of Cypress Bluff Road, but the worker who testified to regular blading of the entire road could not identify it in a photograph. In any case the blading apparently amounted to no more than the evening out of some of the ruts in the road. Plaintiff failed to show that it did any work on the road which was any more significant than the mere “brushing up” of the surface from time to time.

Furthermore, the evidence regarding the condition of the road at the time defendant acquired the property is inconsistent with the degree of maintenance the parish claims to have done in the preceding years. Defendant produced corroborative evidence that when he bought the property neither an eight-foot trailer nor a schoolbus could pass on the road, nor was the road passable in any type of vehicle during wet weather. Finally, there is no question that there was absolutely no public maintenance on defendant’s property and the general public did not travel that portion of the road after defendant put up the gate.

Inasmuch as plaintiff has failed to prove by a preponderance of the evidence that there was a degree of maintenance by the parish necessary under La.R.S. 48:491, we find no clear error in the trial court’s conclusion that there was no tacit dedication of the road by the defendant. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). There is therefore no need for this court to address the remaining issues raised on appeal.

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

AFFIRMED.


author: HALL, Judge.

text:
    Carolyn B. MADRID, d/b/a Credit Collection Service, Plaintiff-Appellant, v. Connie Jo LAWSON and Robert G. Lawson, Defendants-Appellees.
    No. 15996-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.

      Cady, Thompson & Duncan by Thomas N. Thompson, Shreveport, for plaintiff-appellant.
    Claudius E. Whitmeyer, Shreveport, for defendants-appellees.
    Before HALL, FRED W. JONES, Jr., and SEXTON, JJ.
   HALL, Judge.

The plaintiff collection agency as assign-ee of Snelling and Snelling, an employment service, sued defendant Mrs. Lawson to collect a fee allegedly due under a contract between Snelling and Snelling and defendant. It was alleged that Snelling and Snell-ing secured a position for the defendant with a company and that under the terms of the contract a fee of 10 percent of the starting annual salary was owed. Defendant answered, denying liability on several grounds, including a denial that Snelling and Snelling had procured the position for her. After trial, the city court found that the position was not procured by the efforts of Snelling and Snelling and rejected plaintiff’s demands. Plaintiff appealed and we affirm.

Plaintiff relies primarily on a provision of the employment service contract by which defendant agreed: "Should I accept employment with an employer ..., directly or indirectly, to which you have referred me within 12 months from date of referral, I agree to pay a fee for professional services in accordance with the schedule contained herein .... ”

Defendant relies primarily on LSA-R.S. 23:111 B.(l) which provides:

“No employment service shall charge or collect any fee from an applicant except for employment procured through the efforts of the employment service.”

The trial court made the following factual findings:

“The defendant refused employment suggested by Snelling at Analytical Logging because of a fee dispute and went to work with A.M.I. instead.

“A week later she went to work for Analytical Logging. Before going to work at A.M.I. the defendant spoke to Mr. Parker at Analytical Logging and it was about a ‘computer position.’ However, when she did accept employment at Analytical Logging she spoke to a Mr. Robinson and not Mr. Parker.

“Mr. Robinson is president of Analytical Logging and ran an ad in the paper for a ‘division accountant.’ Mr. Robinson said that the defendant had worked for Dresser Industries and could, therefore, work for him.

“The court feels that the defendant’s securing a job at Analytical Logging was free of, and therefore unconnected to, any efforts on the part of Snelling. In this case she refused to work at Analytical Logging, accepted employment elsewhere, and went back to Analytical Logging by knowledge obtained in a newspaper ad, for a different position [than the one] discussed previously and with a different person. The court is aware that it would be convenient for anyone to decline employment found by an agency and then go back later and claim entry was made from a newspaper ad. In the instant case the employment is far enough removed from the contract and Snelling’s efforts to prevent Snelling from saying it was from their efforts the defendant found employment and none other. In this case the court sees no connection between defendant's job and Snelling’s efforts to secure it. Despite the broad language of paragraph 2 this connection should be an indispensable ingredient.”

These findings are supported by substantial evidence and are not clearly wrong or manifestly erroneous.

The employment was not “procured through the efforts of the employment service” and, under the statute, the employment service is precluded from charging or collecting a fee from the defendant-applicant.

Alexandria Employment Service, Inc. v. Box, 282 So.2d 776 (La.App. 3d Cir.1973) and Retail Merchants Association, Inc. v. Love, 311 So.2d 26 (La.App. 2d Cir.1975), relied on by the plaintiff, are distinguishable because in each of those cases there was a finding that the employment was procured by or resulted from the efforts of the employment service.

For the reasons assigned, the judgment of the city court is affirmed at appellant’s costs.

Affirmed.


author: MARVIN, Judge.

text:
    CITY OF SHREVEPORT, Plaintiff-Appellant, v. Major James E. STANLEY, Jr., Defendant-Appellant. Major James E. STANLEY, Jr., Plaintiff-Appellant, v. CITY OF SHREVEPORT, Defendant-Appellant.
    Nos. 16002-CA, 16003-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.
    Rehearing Denied March 28, 1984.
    Writ Denied May 25, 1984.

      Nelson, Hammons & Johnson by John L. Hammons, Shreveport, for Major James E. Stanley.
    Charles B. Peatross, City Atty. by Donald C. Martin, Shreveport, for City of Shreveport.
    Before MARVIN, JASPER E. JONES and CULPEPPER, JJ.
   MARVIN, Judge.

From a judgment in consolidated actions, this appeal by the City of Shreveport questions whether the Municipal Fire and Police Civil Service Board has the statutory authority to compel the city, through its police chief, to appoint or promote an applicant to assistant chief of police. In the applicant’s mandamus action, which was consolidated with the appeal of the board’s 3-2 decision, the district court effectively affirmed the board and ordered the city to make the promotion retroactive to the date of the board’s decision. LRS 33:2471 et seq. We reverse and remand to the board for further proceedings.

The skeleton facts are not disputed. The applicant is Major James E. Stanley, Jr., who performed some of the duties of assistant chief from time to time before and after the retirement of McDowell, who served as assistant chief until his retirement on January 31, 1981. Before McDowell’s retirement, Stanley passed the civil service examination and apparently was certified by the board as eligible for the position of assistant chief. Stanley is indisputably qualified for the job.

On April 29, 1981, Stanley informed the board of his “desire to have a hearing ... in regards to the [vacancy in the] position of Assistant Chief ... since ... January 31, 1981, [and] that [he is] ... the only one eligible for this position.”

The only testimony before the board was given by Stanley. The chief of police, Cliff Heap, did not testify. The record indicates that the mandamus action was consolidated and was tried on the basis of the record made before the board. In that record is a letter from Chief Heap to the Mayor of Shreveport dated February 13, 1981, advising the mayor that Major Stanley would be in charge of the police department for three days while the chief attended a law enforcement conference out of the city.

The record further indicates that Chief Heap, in an earlier hearing before the board involving another person, stated that he wanted time to assess whether an assistant chief was needed, and that one or more board members “assumed” that if it was decided that an assistant chief was not needed, Chief Heap would then formally request the board to “abolish” the classification of assistant chief. The board has the authority to adopt and maintain a plan classifying civil service employees. § 2477(8). The appointing authority, here the chief of police, has the authority to appoint an employee to a position within a particular classification. § 2473(2), 2494.

This controversy arose because the job of assistant chief of police is a board classification but that classification contains only one position. An appointing authority may not refuse to fill the only position in a classification so as to indirectly, but intentionally, abolish that classification. Odom v. City of Minden, 300 So.2d 462 (La.1974). Compare Gwatney v. City of Lafayette, 424 So.2d 1028 (La.App. 3d Cir.1982), writ den. The trial court followed Odom, holding that to allow the city the discretion of not promoting anyone to a vacant class would be impermissible under the statute.

We do not disagree with the district court’s statement in the abstract or in the factual context of Odom where the appointing authority’s announced intention was not to fill a vacancy in a classification because the appointing authority wanted the classification abolished. Here, and at best, we have the appointing authority, the Chief of Police, stating that he wanted more time to assess the situation to decide whether or not to ask the board to exercise its power to abolish the classification. We believe that the issue here presented should be more narrowly stated as it was stated by Stanley’s counsel before the board: “Does the chief have the right to delay a promotion and, if so, for what length of time?”

Even should we agree with the district court, affirmance does not follow. While it may be in the public interest that a vacancy in the classification of assistant chief should be filled within three months after it occurs, as the district court reasons imply, it may be just as much within the public interest to allow the chief of police a “reasonable time” to operate his department without an assistant for the purpose of determining whether to seek formal abol-ishment or modification of that classification. This record contains no evidence upon which any forum can conclude whether the delay was or was not reasonable, and contains no evidence other than what one or more of the board members understood the chief of police to have said in an earlier hearing.

Odom explains the design of that civil service statute. The statute under consideration here is of similar design. The board maintains a classification plan. Each class may contain one or more positions. The board administers tests and certifies to the appointing authority which employees are eligible for appointment or promotion to positions. The appointing authority fills the position or positions within a classification. The appointing authority may abolish a position. Only the board may modify or abolish a classification.

Section 2487 lists seven methods by which vacancies in positions shall be filled. Each of these methods is considered in a specific statutory section. Demotion (§ 2487(1)), e.g., is covered in § 2488, transfer (§ 2487(2)) is covered in § 2489, reinstatement (§ 2487(3)) is covered in § 2490. Section 2494 states that whenever the appointing authority proposes to fill a vacancy he shall request the board to certify the names of persons eligible for appointment to the vacant position. This section states, in other subsections, how the appointing authority shall make the appointment in each case. Part F of this section also requires the appointing authority to notify the board of the filing of a vacancy.

The statute states that the board shall have the power to affirm the action of the appointing authority or to reverse or modify disciplinary action. § 2501. Compare § 2486. The only other instances in the statute which authorizes the board to order the appointing authority to do anything are in § 2484 and in § 2500:

“Whenever the board finds any change in the duties of any position in the classified service was brought about by the appointing authority to effect a reduction in the classification of any employee because of political, religious, or discriminatory reasons, or without just cause, it shall refuse to recognize any- such action, and shall order the appointing authority to continue the employee in the position and class with all rights and privileges.” LRS 33:2484, in part.
“Although it is incumbent upon the appointing authority to initiate corrective or disciplinary action, the board may, and shall upon the written request of any qualified elector of the state which sets out the reasons therefor, make an investigation of the conduct and performance of any employee in the classified service and, thereupon may render such judgment and order action to be taken by the appointing authority. Such action shall be forthwith taken by the appointing authority.” LRS 33:2500(C).

The purpose of the law, formerly Act 102 of 1944, which is contained in the Source comment under LSA-R.S. 33:2471 of 1950, does not suggest that general plenary power is given the board over the appointing authority. §§ 1, 37, and 40, Act 102 of 1944.

The statute expressly requires that the board and the-appointing authority work in concert to achieve the statutory purpose. See §§ 2483, 2484. The penultimate paragraph of § 2484 appears to afford plenary power to the appointing authority to radically abolish a position and create a new position of a different class. But see Odom, supra.

“Whenever the duties of a position are so changed by the appointing authority that the position in effect becomes one of a different class from that to which it is allocated, the change shall operate to abolish the position and to create a new position of the different class.” LRS 33:2484, in part.

The statute was obviously designed to afford classified employees judicial relief from actions of the appointing authority which were not made in good faith or which were made for arbitrary, political, religious, or discriminatory reasons without just cause. § 2484. It is equally apparent that the statute was not designed otherwise to foster litigation over the authority of the board as opposed to the authority of the appointing authority. Professional counsel in the public service should be competent to advise their respective clients of the obvious statutory policy and resolve most of the disputes that might arise between them. We do not fail to observe that the board has some authority, stated in §§ 2478, 2502-2505, to enforce its rules and its decisions and may call upon the Attorney General, the City Attorney, or hired counsel to seek judicial enforcement. § 2506.

In summary, we conclude that the statute does not clearly and unequivocally forbid the appointing authority some reasonable time in which to fill the vacancy in a one position classification and, in the absence of a more detailed record, we simply cannot determine from the circumstances presented whether the delay in filling the vacancy was or was not either reasonable or in good faith. See § 2501.

MANDAMUS

Because of our above conclusions, we must also reverse the companion case. The law is well settled that mandamus is an extraordinary remedy, used only sparingly, and then to compel the performance of a ministerial duty that is clearly required by law. Arts. 3861-3863, CCP. Mandamus does not issue in the “doubtful” case. Gautreau v. Board of Electrical Examiners, 167 So.2d 425 (La.App. 1st Cir.1964). The statute under consideration does not require the appointing authority to fill a vacancy in a one position classification under civil service immediately or other than within a reasonable time after it occurs.

CONCLUSION

Because the action of the board which is the subject of this appeal occurred almost three years ago, and without our further belaboring the issue, we reverse the judgment which orders the city to appoint the applicant to assistant chief of police. We remand to the board for further proceedings to determine the reasons for the delay in filling the vacancy, whether the applicant has performed substantially all of the duties of the former assistant chief during the interim, and whether it is in the public interest for the classification of assistant chief to be modified or abolished.

At the cost of appellee, as the law may provide, the judgment appealed is reversed and this matter is remanded to the board for further proceedings not inconsistent with this opinion.

      . "[The law] clearly envisions classes of positions or jobs; each class can be composed of any number of positions, or of only one, as in the case before us. One position within a classification could be abolished without leaving that classification of duties unmanned regarding the public’s protection; abolition of an entire classification, however, also abolishes an entire category of services to the public. Clearly, a class cannot exist if no one is employed in any job within it and there is no intention that anyone be employed therefor. To permit a class to exist under such circumstances would be tantamount to granting to the appointing authority the power to alter the classification plan, in direct contravention of the clear wording of [the law]. The Minden City Council decided that the duties of a full-time ‘Fire Inspector' were insufficient to justify the continued expense of maintaining an employee in that classification. Thus the substance of the City Council’s action discharging Odom was to eliminate that classification entirely. This was accomplished without prior written notice to Odom, without a public hearing, and without any action by the Board, all of which are required by ...” 300 So.2d at 464.

        See also "The Municipal Fire and Police Civil Service Law — R.S. 33:2471 et seq.’’, 29 La.Bar J. 304 (1982).

      . Compare LRS 33:2471 et seq., Fire and Police Civil Service Law for Municipalities Between 13,000 and 250,000, with LRS 33:2531 et seq., Fire and Police Civil Service Law for Small Municipalities.

      . §§ 2477(8), 2481, 2483-2485.

      . § 2481.

      . § 2492-2495.

      . § 2494.

      . § 2498.

      . § 2483. See Odom, cited supra.

      .§ 2487 reads:
      "Vacancies in positions in the classified service shall be filled by one of the following methods:
      (1) Demotion
      (2) Transfer
      (3) Reinstatement
      (4) Promotional appointment
      (5) Competitive appointment
      (6) Reemployment
      (7) Temporary appointment
      "A vacancy shall be considered filled under any of the methods specified above, and employment thereunder effective, as of the date on which the employee enters upon the duties thereof.”


author: JASPER E. JONES, Judge.

text:
    Morris Lee HARRISON, Plaintiff-Appellee, v. CHICAGO MILL & LUMBER COMPANY, Defendant-Appellant.
    No. 16010-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.

      Raymond L. Cannon, Tallulah, for plaintiff-appellee.
    Sevier, Yerger & Bishop by Henry C. Sevier, Jr., Tallulah, William D. Carlson, Greenville, Miss., for defendant-appellant.
    Before MARVIN and JASPER E. JONES, JJ., and CULPEPPER, J. Pro Tem-pore.
   JASPER E. JONES, Judge.

In this worker’s compensation case the defendant, Chicago Mill & Lumber Company, appeals a judgment awarding compensation benefits for present total disability to the plaintiff, Morris Lee Harrison.

The plaintiff answers the appeal seeking penalties and attorney’s fees. We amend and affirm.

FACTS

Plaintiff, a laborer, was injured on February 2, 1982 when he was struck in the lower abdominal area by a piece of waste lumber that was protruding from a truck. The plaintiff was standing behind the truck which was backing up. He was pushed by the stick into a trailer which the truck had been pulling but which had become detached from the truck. The plaintiff immediately reported the accident to a co-worker who was driving the truck and within a few minutes after the incident he reported the accident to his supervisor. He worked the remainder of the day. With the exception of October 26 and 27, 1982, he has performed no work since the accident.

Following the accident he experienced pain in the abdominal area and lower back. After the plaintiff arrived home on the day of the accident he observed blood in his urine and was carried to the emergency room of a Vicksburg hospital. He was found to have a contusion in his abdominal midline but no blood was found in his urine.

On February 4th plaintiff began a series of visits to Dr. Walter Johnston, a general practitioner. Dr. Johnston found tenderness, limitation of motion and muscle spasms in plaintiff’s back. While under Dr. Johnston’s care plaintiff’s pain in his abdomen subsided but he continued to experience substantial pain in his back. On March 5th Dr. Johnston referred plaintiff to Dr. John Evans, an orthopedist. Dr. Johnston’s final diagnosis was “contusion of the back which is going to be slow in resolving.” Dr. Evans treated the plaintiff until December 11th in conjunction with Dr. van den Hoven who commenced assisting him in June. Dr. Evans conducted numerous orthopedic examinations upon plaintiff during this time. Some of these examinations indicated nerve root irritation which Dr. Evans believed to have been caused by disc pathology in the plaintiff’s back. Dr. Evans was of this opinion even though an EMG test, a CAT scan, and a myelogram performed in August did not indicate plaintiff had an impaired disc in his back.

On December 3rd Dr. Evans performed an examination upon plaintiff’s back and continued to find signs of nerve root irritation and had plaintiff report to the hospital on December 11th for another myelogram and exploratory disc surgery. He did not admit the plaintiff to the hospital because the defendant refused to guarantee payment of this medical expense. Dr. Evans believes the plaintiff to be unable to work due to his back injury. He has maintained this opinion since March with the exception that there were a few days in May and June when he released the plaintiff to return to work.

Dr. van den Hoven treated plaintiff in conjunction with Dr. Evans commencing in June. He is a doctor of physical and rehabilitative medicine and was primarily responsible for plaintiffs treatment between June and December. This doctor saw the plaintiff twice in June, three times in July, once in August, once in September, twice in October, twice in November and once in January, 1983. During the course of these many examinations he found tenderness and limitation of motion in plaintiffs back. The orthopedic tests he performed indicated nerve root irritation. He believed the plaintiff possibly had a disc injury. He expressed the opinion that plaintiff was unable to work. He had been of this opinion throughout the period of this treatment with the exception of a three day period commencing October 25th. Plaintiff had attempted to work October 26 and 27 but because of back pain was unable to continue. He returned to Dr. van den Hoven who on October 28 again found him unable to work.

Dr. van den Hoven had plaintiff examined by Dr. J. Patrick Barrett, a Jackson orthopedist on September 24th. Dr. Barrett expressed the opinion that plaintiff had sustained a lumbar strain which had healed to the maximum extent. He expressed the opinion that plaintiff had “no apparent serious underlying orthopedic pathology.” He found the plaintiff able to return to work.

The defendant paid plaintiff compensation benefits from the date of his injury through October 25th, when benefits were terminated at the time Dr. van den Hoven temporarily released plaintiff to return to work. The defendant refused to reinstate compensation benefits. Dr. van den Hoven certified plaintiff as disabled following his examination of October 28.

On December 12th plaintiff filed suit for maximum compensation benefits and for penalties and attorney’s fees.

On January 4, 1983, plaintiff was examined by Dr. Douglas C. Brown, a Monroe orthopedist, at defendant’s request. This doctor found the plaintiff to have no back disability and believed he was able to work. Because the plaintiff had reacted positive to false tests during Dr. Brown’s examination, this doctor expressed the opinion that he was a malingerer.

The defendant "made three assignments of error, all of which raise the single issue of whether there was substantial evidence to support the trial judge’s determination that plaintiff was disabled. The only other issue presented in this appeal is whether the trial judge erred in denying plaintiff’s claim to penalties and attorney’s fees.

DID PLAINTIFF ESTABLISH HE WAS DISABLED

The employee in a worker’s compensation case has the burden of establishing his disability by a preponderance of evidence. It is not necessary for the experts to determine the exact cause of his disability in order for the employee to recover. It only must be established that the work accident caused the disability. If an otherwise healthy worker suffers an accident at work it is presumed there is a causal connection between the work and the disability as long as the medical evidence establishes a reasonable possibility of such a connection. The presumption is not conclusive but it forces the defendant to come forward with sufficient evidence to rebut it. Allor v. Belden Corp., 393 So.2d 1233 (La.1981) and cases therein cited.

The testimony of the treating physician is entitled to more weight than that of an examining physician who only sees the claimant once. Harris v. Argonaut Insurance Company, 142 So.2d 501 (La.App. 2d Cir.1962); Grigsby v. Argonaut Insurance Company, 297 So.2d 698 (La.App. 1st Cir.1974); Williams v. Liberty Mutual Insurance Company, 327 So.2d 462 (La.App. 3d Cir.1976).

Lay testimony may be considered along with medical testimony to determine if the plaintiff has met his burden of proof. Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975); Grigsby v. Argonaut Insurance Company, supra.

The defendant does not deny plaintiffs accident though it questions some of the details of it. Plaintiff immediately reported the accident to a co-worker at the time it occurred and to his supervisor a short time later. A contusion was found on his abdomen by the doctor who examined him in the emergency room on the night of the accident. Dr. Johnston who examined him two days following the accident found tenderness, limitation of motion along with muscle spasms in his back. Dr. John Evans and Dr. van den Hoven, who examined and treated the plaintiff extensively, both found evidence of a disabling back injury. Even Dr. J. Patrick Barrett, whose testimony was produced by defendant, found plaintiff had sustained a back injury diagnosed by him as lumbar strain.

Plaintiff had six lay witnesses who testified that before the accident plaintiff had no trouble with his back and that since the accident he is unable to do many things he did before.

The testimony of Dr. Johnston, Dr. Evans, Dr. van den Hoven and Dr. Barrett all establish a back injury as a result of plaintiffs compensable accident. The testimony of Dr. van den Hoven and Dr. Evans, who are plaintiffs present treating physicians, establish that plaintiff remains disabled by his back injury. Plaintiffs lay witnesses corroborate these physicians. The testimony of Dr. Barrett and Dr. Brown, who each examined the plaintiff only once, found plaintiff able to work. Though they are both orthopedists, their testimony is entitled to less weight than plaintiffs treating physicians, one of whom is also an orthopedist.

Though there was a negative myelogram and two other negative electronic tests performed upon plaintiffs back which failed to confirm that plaintiff has a disc problem, plaintiffs treating physicians consider these tests inconclusive. They each believe the plaintiff has a disabling back injury even though their opinion is based in part upon subjective complaints of plaintiff. They have each performed numerous orthopedic tests designed to determine the existence of nerve root irritation and believe these tests indicate nerve root irritation to exist. Nerve root irritation is often caused by disc pathology. These doctors recommend another myelogram and exploratory disc surgery. The fact they have been unable to positively establish the exact cause of plaintiffs disabling back condition does not result in the conclusion that plaintiff has not established his disability by a preponderance of the evidence.

Defendant contends the plaintiff is not worthy of belief for the following reasons:

(A) details of his accident were not corroborated by a co-worker;
(B) he reported blood in his urine numerous times that his doctors were never able to confirm;
(C) he failed to disclose two prior compensation claims (one in 1978 and one in 1980) on his employment application; and
(D) he failed to return to work when released by his treating physician in the two prior cases and failed to return to work twice, in May and June of 1982, when Dr. Evans believed him able to do so.

Defendant has admitted the accident. The fact plaintiff’s co-worker, who was told of the accident at the very time it occurred, was unable to corroborate plaintiff on some of the details is entirely insignificant.

One of plaintiffs doctors explained that it was entirely possible for plaintiff to observe blood in his urine and subsequent tests for the blood in the urine fail to affirm it.

The failure of plaintiff to disclose two prior compensation claims on an application for employment does not establish that he is presently misrepresenting his back disability.

We have reviewed the evidence in the record of the prior compensation claims and they both appear to have been based on well proven accidents creating resulting disability for which plaintiff thereafter received substantial settlements. His failure to immediately return to work following his release by his treating physicians does not establish that he lacks credibility.

We find no error in the trial judge’s failure to discredit plaintiffs veracity based upon these contentions of the defendant.

Defendant contends for the reasons A, B, C and D, hereinabove set forth, together with Dr. Brown’s testimony that plaintiff reacted positive to false tests, that it has established that plaintiff is a malingerer.

The appellate courts of this state are reluctant to brand as a malingerer a compensation claimant who has been held to be disabled, and will not do so unless the trial court’s finding is manifestly erroneous. Pringle v. Milner-Fuller, 7 So.2d 253 (La.App. 2d Cir.1942). See also, Yelverton v. Louisiana Cent. Lumber Co., 19 La.App. 21, 138 So. 684 (2d Cir.1932). The claimant will not be so stigmatized in the absence of positive and convincing evidence. Miller v. United States Fidelity and Guaranty Co., 99 So.2d 511 (La.App. 2d Cir.1957); Istre v. Molbert Brothers Poultry and Egg Co., 125 So.2d 436 (La.App. 3d Cir.1960). See also, Price v. Blythe Bros., 46 So.2d 159 (La.App. 2d Cir.1950); Williams v. Texsun Supply Corporation, 47 So.2d 93 (La.App. 1st Cir.1950); Yelverton v. Louisiana Cent. Lumber Co., supra.

For the reasons given by us in our initial discussion of these contentions, together with the fact that plaintiff’s treating physicians in their examinations found evidence of back disability, we find no manifest error in the trial judge’s refusal to find plaintiff a malingerer.

The trial court's determination of disability is supported by substantial evidence in the record and we find no manifest error in this factual determination.

PENALTIES AND ATTORNEY’S FEES

Plaintiff seeks penalties and attorney's fees for defendant’s termination of his benefit after October 24, 1981. In her written reasons the trial judge found defendant arbitrary and capricious and then rejected this part of plaintiff’s claim because she found that the employer’s action was not intentional. Plaintiff claims the trial judge used the wrong standard in deciding this issue. We agree. An employer shall be liable for penalties and attorney’s fees for terminating benefits when its action is arbitrary, capricious or without probable cause. La.R.S. 23:1201.2. See also, La.R.S. 22:658. Whether the employer’s action is intentional has nothing to do with the issue.

Whether or not a termination of or refusal to pay benefits is arbitrary, capricious or without probable cause depends primarily on the facts known to the employer at the time of its action. Lee v. Smith, 248 La. 16, 176 So.2d 413 (1965); Scott v. Sears, Roebuck & Co., 406 So.2d 701 (La.App. 2d Cir.1981); Edwards v. The Hartford Insurance Company, 445 So.2d 499 (La.App. 2d Cir.1984). The question is ultimately one of fact and the trial court’s finding should not be disturbed on appeal absent manifest error. Scott v. Sears, Roebuck & Co., supra; Edwards v. The Hartford Insurance Company, supra. We must, therefore, determine whether the trial court’s finding that defendant’s termination of benefits was arbitrary and capricious is manifestly erroneous.

At the time defendant terminated compensation on October 25th, plaintiff had been, examined on September 24th by orthopedist Dr. J. Patrick Barrett who found no underlying orthopedic pathology. Dr. Barrett found plaintiff able to return to work. In addition to Dr. Barrett’s opinion defendant was aware of the facts upon which it based its malingering defense which, while insufficient to establish that defense, they did,- when combined with Dr. Barrett’s opinion, establish a serious question as to plaintiff’s continuing disability beyond October 25. We further note that Dr. Brown’s examination of January 4, 1983 corroborated Dr. Barrett’s opinion.

The termination of or failure to pay benefits is not arbitrary and capricious when it is based upon substantial bona fide factual contentions. See Saia v. Hartford Accident and Indemnity Company, 214 So.2d 173 (La.App. 4th Cir.1968).

We find the judgment correctly rejected plaintiff’s claim for penalties and attorney’s fees.

The judgment states that the plaintiff is “presently totally disabled” and though neither litigant complains of this identification of plaintiff’s disability we find it ambiguous. The evidence establishes plaintiff is entitled to an award of compensation because his injury produced permanent total disability under the provisions of La. R.S. 23:1221(2). See Bourgeois v. Fireman’s Insurance Co. of Newark, N.J., 316 So.2d 3 (La.App. 1st Cir.1975); Montgomery v. Delta Concrete Products Co., Inc., 290 So.2d 769 (La.App. 1st Cir.1974).

In order to correct this ambiguity we amend paragraph two of the judgment to read as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff, Morris Lee Harrison, and against defendant, Chicago Mill and Lumber Company, adjudging plaintiff as permanently totally disabled from injuries he sustained while in the employment of defendant, Chicago Mill and Lumber Company and is entitled to benefits as provided in La.R.S. 23:1221(2).”

As amended the judgment is affirmed at plaintiff’s cost.

      . Specification of Error No. 1:

      The Trial Court erred in its complete disregard of the testimony given by the only eye witness to the alleged accident whose testimony attacks, with clarity, the credibility of the claimant.

        Specification of Error No. 2:

      The Trial Court erred in concluding that the medical testimony was in substantial conflict and therefore further erred in according significant weight to the testimony of lay witnesses.

        Specification of Error No. 3:

      The Trial Court erred in its failure to consider and carefully analyze the claimant’s "pattern of behavior” in his three asserted compensation claims since 1978. In this regard the Trial Court gave no significance to the fact that claimant persisted in his “complaints” and refused to return to work after being released by his doctors in each of said claims.


author: WILLIAM A. CULPEPPER, Judge Pro Tern.

text:
    CHANEY OIL COMPANY OF VICKSBURG, Plaintiff-Appellee, v. Gayle “Red” BEARD, Defendant-Appellant.
    No. 16019-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.

      C. Calvin Adams, Jr., Tallulah, for plaintiff-appellee.
    LeRoy Smith, Jr., Tallulah, for defendant-appellant.
    Before HALL and MARVIN, JJ., and WILLIAM A. CULPEPPER, J. Pro Tern.
   WILLIAM A. CULPEPPER, Judge Pro Tern.

In this suit filed by Chaney Oil Company of Vicksburg, Inc. for charges incurred for gasoline by the use of a -Citgo credit card, defendant Gayle “Red” Beard appeals a judgment in the sum of $3875.86 with credit card service charges thereon from the date of each purchase reflected on each credit card purchase until judicial demand and thereafter with legal interest until paid, an attorney’s fee of 25% of the unpaid balance, and all costs of these proceedings. The two issues presented in this appeal are the adequacy of proof of the balance due and owing and the nature of the cause of action asserted by Chaney Oil. For the reasons hereinafter given, we affirm the judgment in its entirety.

FACTS

During 1981, Beard charged purchases of gasoline on his Citgo credit card at the Chaney Oil Mini-Mart in Tallulah, a franchise branded Citgo distributorship. Under the terms of the agreement between Chaney Oil and Citgo (City Service Company), a major oil company, Chaney Oil sells gasoline under the Citgo brand. Chaney Oil agrees to buy a pre-determined quantity of gasoline from Citgo who agrees to guarantee a fixed supply. This contract is represented by the “Distributor Franchise Agreement.” There are other regulations pertaining to the use of Citgo credit cards in connection with this sale of gasoline which are found in the booklet “Credit Card Guide and Regulations.” Included within this particular booklet is the provision which relates to dealer assignments and Citgo charge back procedures.

In December, 1981, Chaney Oil Co. received charge back notices for certain charges made by Beard. In accordance with the contractual agreement between Chaney Oil Co. and Citgo, Chaney Oil Co.’s account was charged for these amounts which were paid by Chaney Oil Co. to Citgo and these particular transactions were reassigned to Chaney Oil Co. for collection. Thereafter, Chaney Oil Co. contacted Beard in an effort to amicably collect the sums due. Unsuccessful in these attempts, Chaney Oil brought this suit.

At trial, Chaney Oil Co., introduced xerox copies of charge tickets for gasoline charged on an account in the name of Red Beard Dusting Service. Each charge slip bears the signature “Red Beard”. Also introduced into evidence were signature samples of Red Beard and documents evidencing the contractual agreement between Citgo and Chaney Oil. Further introduced into evidence was a cancelled check on the account of Red Beard Dusting Service, Inc. dated March 17, 1982, payable to Citgo in the amount of $428.14. Gary Grantham, the head accountant and treasurer of Chaney Oil testified as to the transactions which had occurred prior to and after the charges made the subject of this suit. He identified all of the contractual documents and explained the contractual relationship between Citgo and Chaney Oil. He did testify that he was not familiar with the bookkeeping procedures utilized by Cit-go and that Chaney Oil had accepted the charge slips back as being due and owing.

In his testimony Beard verified that he is engaged in the farming and flying business and that he had purchased gasoline with a Citgo credit card at the Mini-Mart in Tallu-lah owned by Chaney Oil. He testified that he had put this gasoline not only in his pickup truck but also in a tank contained on the back of the truck which has a capacity of approximately 100 gallons. He admits making certain charges during 1981 on this credit card and using some of the gasoline purchased in his airplane. While denying that he received a demand letter sent by certified mail with copies of the charges incurred, he admits receiving a second letter which contained a copy of the first letter with all of its attachments. Beard further testified that he had never let anyone else use his Citgo credit card nor had it ever been lost. In essence, he simply did not believe that he had charged that much gasoline. However, while contending that he had mailed Citgo a check in payment of certain charges prior to the check entered into evidence representing a payment made to Citgo, he produced no further proof of payment.

ACTION OF THE TRIAL COURT

In oral reasons, the trial court made the following factual findings: It found that Red Beard had signed all of the charge slips, that the amount of gasoline purchased exceeded the capacity of the tank of the vehicle, and that the truck license of Red Beard appeared with regularity on the charge slips. After taking the matter under advisement, the trial court rendered judgment in favor of Chaney Oil Co., as prayed for.

Beard appeals assigning the following errors:

(1) Plaintiff failed to prove the balance due and owing by competent evidence; and
(2) That the Plaintiff, Chaney Oil Company of Vicksburg, Inc. was erroneously awarded attorney’s fees because this suit was not a suit on open account nor were the proper formalities of 9:2781 followed.

ASSIGNMENT OF ERROR NO. 1

Beard argues that the records of Citgo which were offered as proof of the amount due and owing were insufficient to form a basis for rendering a judgment in favor of Chaney Oil. Beard argues that the procedure utilized deprived him of any opportunity to question the correctness of the accounting procedures utilized by Citgo because the only evidence of the correctness of the amount due were the records from Citgo which were charged back to Chaney Oil. In support of his argument that the evidence introduced was inadmissible, Beard cites the case of Newspaper Production Co. v. Perry, 404 So.2d 1331 (La.App. 2d Cir.1981), where we stated:

Louisiana has long recognized the business records or regular entries in the course of business exception to the hearsay rule in both civil and criminal cases. State v. Monroe, 345 So.2d 1185 (La.1977); State v. Hodgeson, 305 So.2d 421 (La.1974); Theus, Grisham, Davis & Leigh v. Dedman, 401 So.2d 1231 (La.App. 2d Cir.1981); Herlitz Construction Co. v. Clegg Concrete, Inc., 378 So.2d 1002 (La.App. 1st Cir.1979).
This exception to the hearsay rule provides, in general, that a permanent record made in the ordinary course of business, by a person unavailable for testimony, from personal knowledge of the facts recorded or from information furnished by one having a business duty to observe and report the facts, is admissible as proof of the facts recorded, in the absence of a strong motive to misrepresent, if the record is the first collected and recorded memorial. McCormick, On Evidence, § 307, p. 721.

See also Comment, “Business Records in Louisiana as an Exception to the Hearsay Rule,” 21 La.L.Rev. 449, 486 (1961).

We find it unnecessary to decide whether the business records exception applies. The proof is not based solely on “business records”, but on copies of charge slips signed by Béard, which clearly showed purchases made by Beard. These slips were prepared by Chaney Oil and ultimately assigned to Citgo for collection under the terms of the contractual agreement between the parties. Compare Carte Blanche Corp. v. Pappas, 216 So.2d 917 (La.App. 2d Cir.1968). Because these particular charges were in violation of the contractual agreement between Citgo and Chaney Oil, they were reassigned back to Chaney Oil for collection. Accordingly, these charge slips are the first collected record available rather than a summary and in fact are the only record available since under the regular practice of the company, the original of the charge slip is available only to the purchaser who receives it at the time that the purchase is made. The only summary introduced which can be depicted as a business record of Citgo is a summary of Beard’s account which was introduced to show the payment made by Beard for which he was given credit.

Consequently, we hold that the evidence which was offered by Chaney Oil Co. was sufficient to prove the existence of the debt incurred in connection with the purchases of gasoline by Beard. The evidence as a whole was clearly sufficient to establish a reasonable basis for the trial court’s factual finding that the account was proved. See Gulfcoast Newspapers, Inc. v. Cart, 331 So.2d 177 (La.App. 3d Cir.1976). Once a prima facie case has been established by a plaintiff in such an action, then the burden of proof shifts to the defendant to disprove the existence or correctness of the account either, in part or in whole. Shear v. Castrinos, 327 So.2d 558 (La.App. 4th Cir.1976). The only credit or payment proven in the instant case was the $428.14 for which Beard was given credit.

Accordingly, the trial court did not err in finding that Beard was indebted unto Chaney Oil in the amount of $3875.64.

ASSIGNMENT OF ERROR NO. 2

Beard next argues that Chaney Oil failed to comply with the provisions of La.R.S. 9:2781 which provides in pertinent part:

A. When any person fails to pay an open account within thirty days after receipt of written demand therefor correctly setting forth the amount owed and a copy of the invoices in support thereof, that person shall be liable for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Evidence of receipt of written demand by the spouse of the debtor, when they are living together as husband and wife, on behalf of the debtor may be introduced as evidence of written demand on the debtor.
B. If delivery of written demand on the debtor is attempted, but not accomplished because circumstances made delivery of written demand impossible, a notation, on the envelope containing the written demand, made by the person attempting delivery stating the date of the attempted delivery, the reasons why delivery could not be accomplished along with the initials of the person attempting delivery and making said notation may be introduced as evidence of written demand on the debtor. If the judge in his discretion finds that sufficient evidence of due diligence in delivery of written demand has been made, he may make a conclusion of written demand for purposes of justice and find that there has been written demand on the debtor.

This article must be strictly construed. A Better Place, Inc. v. Giani Investment Co., 445 So.2d 728 (La.1984).

It was stipulated that the attorney for Chaney Oil would testify that he mailed a certified letter to Beard which included copies of all the tickets and an itemized statement of account, that Beard did not receive the first letter causing plaintiff’s attorney to mail Beard a second letter with all of the items aforementioned which Beard admits that he did receive. We conclude that under these circumstances, the requirements of the statute were adequately complied with.

Finally, Beard argues that this is not a suit on open account because the account was between Beard and Citgo rather than between Beard and Chaney Oil and the total amount sought is based upon charges made by Beard on his Citgo credit card.

We conclude that this argument is without merit. According to the evidence, Chaney Oil extended credit to Beard with the understanding that the account would be assigned to Citgo. Citgo had issued a credit card to Beard pursuant to an approved application. This card was honored by Chaney Oil to charge sales made to persons possessing such cards. In accord with the contractual relationship between Chaney Oil and Citgo, the account was then assigned to Citgo upon whom devolved the right of collecting from the purchaser. See Carte Blanche Corp. v. Pappas, supra. Because the charges incurred were in violation of the contractual agreement, these amounts were “charged back” or reassigned to Chaney Oil for collection. All of the rights which Chaney Oil had originally and assigned to Citgo were thus re-assigned to Chaney Oil. Clearly, this was an open account which was assigned to Citgo and re-assigned back to Chaney Oil for collection. Carte Blanche Corp. v. Pappas, supra.

Accordingly, we conclude that attorney’s fees were properly awarded upon the proof of the indebtedness. .

DECREE

For the foregoing reasons, the judgment appealed from is affirmed in its entirety at the cost of appellant.

AFFIRMED.


author: MARVIN, Judge. CULPEPPER, Judge,

text:
    In re The Bossier Parish School Board Applying to Perpetuate the Testimony of Nathan DOWDEN, Bob Burford, Jerry W. Griffin and Frank Boston.
    No. 16024-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.
    Dissenting Opinion March 2, 1984.
    Rehearing Denied March 28, 1984.
    Writ Denied May 25, 1984.

      Henry N. Brown, Jr., Benton, for Bossier Parish School Bd.
    Fayard & Snell by M.F. “Rick” Fayard, Jr., Bossier City, for appellees, Dowden, Burford, Griffin and Boston.
    Before HALL, MARVIN and CULPEP-PER, JJ.
   MARVIN, Judge.

The school board appeals a judgment of the district court which reversed the board’s disciplinary suspension of two of its teachers under LRS 17:443.

The factual issue presented is whether these teachers, Burford and Dowden, willfully neglected their duty by using deceit and subterfuge in claiming sick leave to allow them time between October 30 and November 6, 1980, to go on a scheduled hunting trip to Colorado, and then “obstructing” attempts by supervisory employees of the board to contact them and to discuss their whereabouts. This conduct was alleged to have been contrary to the policies and procedures of the board. The board’s policies and procedures were not introduced into this record in any form.

The board contends that the district court exceeded its authority by allowing into the record, and over the board’s objection, the deposition testimony of four witnesses who were present at the board hearing under a subpoena but who did not testify at the hearing. The board secondly contends that once the district court found that the board’s determination was supported by considerable circumstantial evidence, the court should have upheld the board’s judgment as not arbitrary.

LRS 17:443 B. provides that a permanent teacher, who is subjected to discipline by a school board, may petition a court of competent jurisdiction for a full hearing to review the action of the school board.

In Lewing v. DeSoto Parish School Board, 238 La. 43, 113 So.2d 462 (1959), the board unsuccessfully sought to introduce additional and primary evidence in the district court to support its discipline of a teacher. The supreme court found no error in the district court requiring the board to prove its grounds for discipline in a board hearing. The court then made, obviously as dicta, these observations:

“Our study of the Teachers’ Tenure Act and the jurisprudence convinces us that the provision in LSA-R.S. 17:443, supra, providing ‘for a full hearing to review the action of the school board’ is for the benefit of discharged teachers. If a school board decides that sufficient evidence was adduced before it to sustain the dismissal of a teacher, she is entitled, if she desires, to a full hearing on the merits in the district court with a presentment of additional evidence in her behalf. Article 476, Code of Practice. The defendant school board would then be given an opportunity to negate this evidence. Article 477, Code of Practice. If the discharged teacher is content with the record as made up at the hearing before the school board, she has a right to have her case submitted on the record, subject, of course, to the discretion and ruling of the trial judge. In that event, the school board should not be allowed to prove its case in the district court. If sufficient evidence is not adduced before a school board to sustain a teacher’s dismissal, she should not be required to present additional evidence at the hearing in the district court. We find no error or abuse of discretion on the part of the trial judge in deciding the instant case upon the record as made up before the De Soto Parish School Board.” 113 So.2d at 465.

The observation in Lewing was “noted” by the supreme court in Howell v. Winn Parish School Board, 332 So.2d 822, 824 (La.1976). Howell did not present the issue of additional evidence in the district court and was decided upon the record of the hearing before that school board.

In the one case where the issue was squarely presented, the court found that a teacher should have been allowed to present additional evidence in the district court, short of a trial de novo. Lewis v. East Feliciana Parish Sch. Bd., 372 So.2d 649, 652 (La.App. 1st Cir.1979), writ refused. The distinction was not explained other than as a prohibition against duplication of testimony which had been heard by the board. The articles of the former Code of Practice, cited in Lewing, are now incorporated into Art. 1632, La.CCP and shed little illumination on the issue.

The issue here is “clouded,” as the district court observed, because the four witnesses were among 35 witnesses subpoenaed to the board hearing by the teachers, who had the opportunity to present their witnesses but apparently chose not to. We are also inclined to agree with the district court’s observation that the legislature probably did not intend that a teacher could intentionally elect to withhold evidence available to him at a school board hearing and present his defense at the district court level. Nonetheless, we do not find that the district court abused its discretion in allowing the depositions on the authority of the cases cited and discussed.

We assign the usual weight to the determination of the board who saw and heard most of the witnesses. The district court did not see and hear the witnesses in question and made its determination from the later depositions of the four witnesses and from the record of the school board hearing and depositions introduced at that hearing. The board heard from 11 witnesses and had depositions of two others. Our review of the record compiled in the district court then is made independently and without the recognition and weight usually afforded a trier of fact that assesses live testimony and credibility issues. Compare Fabiano v. Bryan, 438 So.2d 719 (La.App. 2d Cir.1983).

The four witnesses whose deposition testimony was allowed by the district court were the mother and a neighbor of teacher Burford and the mother and stepfather of teacher Dowden.

After our independent review of the record, we find that the conclusions of the district court are not in error and are well supported by the record. As the trial court noted, it was shown that Burford planned and coordinated with Dowden and others the hunting trip to Colorado for about a year. Each teacher arranged to be off duty on October 30 and 31. Each teacher had a relative report that he would be sick for the week of November 3, the Monday following. Each teacher left sufficient lesson plans for that week. The Colorado guide, Boston, in deposition, stated that three of the seven hunters who were scheduled to hunt on Burford’s trip did not show up. He did not know the four who hunted or the three who did not, although he later listed both Burford and Dowden on a list of numerous hunters that he filed with Colorado wildlife officials. Dr. Florence of Ru-sten, who was one of the four Louisianians on the trip, identified two others, neither of which was Burford or Dowden. The fourth hunter did not hunt with Dr. Florence. Dr. Florence knew only of himself and the two who were with him and did not know who else might have made the trip from Louisiana.

The district court correctly observed that while no one testified that the teachers were hunting in Colorado at the time in question, there was considerable circumstantial evidence before the board that the teachers had planned and participated in the hunt. The district court then observed that when the additional evidence from the “alibi-type” witnesses was considered, that is from the neighbor and the parents or step-parent, respectively, of the two teachers, the totality of the evidence presented a different picture. The board had the opportunity to rebut this alibi evidence in the district court but did not do so. The district court concluded that the circumstantial evidence that the teachers went on the hunt was not sufficient to overcome the direct and corroborated evidence that the teachers were in Louisiana and not in Colorado during the time in question. Our independent review of the record causes us to reach the same conclusion.

The district court’s reasons for judgment details the testimony. We adopt those reasons with this summary, and affirm the judgment.

CULPEPPER, Judge,

dissenting.

I agree with the majority’s observation that the Lewing, Howell and Lewis cases permit the presentation of additional evidence in the district court, short of a trial de novo. The difficult question, under these decisions, is when does the additional evidence become a trial de novo.

In Lewing and Howell our supreme court recognized that the school board should be the principal finder of fact. Otherwise, the court would not have stated that the hearing in the district court should not be a trial de novo. In the present case, the decisive issue is the credibility of the witnesses. The school board heard the witnesses for the board and it heard the testimony of the two teachers and several of their witnesses. The board voted nine to two to believe the board’s witnesses and not to believe the teachers and their witnesses who testified before the board.

For some reason which has never been explained by the two teachers they had four witnesses who could have given direct evidence before the board that the teachers were at home sick and were not in Colorado deer hunting. Fred Jones, Burford’s next door neighbor for 12 years, Mabel Grafton, Dowden’s mother and James Grafton, Dow-den’s stepfather, had actually been subpoenaed and were present at the board hearing but were not called to testify by the teachers. Mrs. Jerry Burford, mother of Bob Burford, was not present at the school board hearing but she said that she would have been glad to testify had she been called. Since the principal issue was the credibility of the two teachers, I think they should have called these four witnesses to testify before the board. The teachers should not be permitted to wait until the case is before the district court on judicial review and have this crucial testimony introduced by deposition. I think this case reaches the point at which the hearing in the district court became a trial de novo. The result reached by the district judge and by the majority on the court of appeal denies to the school board the fact finding function intended by the legislature and recognized by our supreme court.

Moreover, even considering all the evidence which was heard by the board as well as the four depositions admitted in evidence in the district court, my independent review of this record leads me to the conclusion that the testimony of the two teachers and their witnesses is incredible. It would simply be too much of a coincidence to be worthy of belief that both teachers planned the hunt, advanced fees and costs totaling almost $500 which was nonrefundable, left sufficient lesson plans for the entire week they were gone, had their wife and their mother respectively telephone the school board on Sunday night and report that they had bronchial infections which prevented them from talking on the telephone and then to be out of communication with the school board during the entire week when they must have known through their families that the school board authorities were looking for them and asking for them to return telephone calls. With all due respect to the four witnesses whose depositions were filed in the district court, they are clearly biased.

It is my view that this case should be remanded all the way back to the school board for a full hearing in order that the board can perform its proper fact finding function.

For the reasons assigned, I respectfully dissent.

      . See and compare appellate procedure and review of determinations by other administrative boards: Fire and Police Civil Service Boards, LRS 33:2501, 33:2561 and Division of Employment Security of the Department of Labor Board of Review, LRS 23:1634.