author: DOMENGEAUX, Judge. STOKER, Judge,

text:
    J. Lee TATE, Jr., Plaintiff-Appellee, v. Marcella Thompson TATE, Defendant-Appellant.
    No. 83-450.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      Doris Gates Rankin, Baton Rouge, for defendant-appellant.
    Daine Sorola, Lafayette, for plaintiff-ap-pellee.
    Before DOMENGEAUX, STOKER and YELYERTON, JJ.
   DOMENGEAUX, Judge.

J. Lee Tate, Jr. filed suit seeking a separation from bed and board from his wife, Marcella Thompson Tate. He sought the separation on grounds of cruel treatment. Mrs. Tate denied his allegations and reconvened for a separation in her favor on the grounds of abandonment.

After trial of this matter was held, judgment was signed in favor of the plaintiff-husband and against the defendant-wife granting plaintiff a separation based on the fault of the defendant. She has devolutively appealed from this judgment.

The Tates had been married over twenty-five years at the time these proceedings were initiated. They had apparently experienced marital difficulty for some time. On May 20, 1982, J. Lee Tate, Jr. filed a petition for separation alleging that he was entitled to it based upon certain acts of the defendant which he claimed rendered the parties living together insupportable. After defendant had timely answered, interrogatories were propounded upon plaintiff’s counsel of record. Timely answers were not filed and a motion to compel answers to interrogatories was filed. Before a hearing was held on the motion, answers to the interrogatories were filed and this matter proceeded to trial on the merits.

The parties themselves were the only witnesses who testified at trial. Mr. Tate testified: (1) that his wife wrongly accused him of engaging in adulterous relationships; (2) that she made those wrongful accusations in the presence of the children; (3) that she engaged in long and excessive periods of silence; (4) that she directed excessive negative comments and/or engaged in consistent nagging and berating of the petitioner; (5) that she constantly harassed him at work; and (6) that she harassed his parents with the apparent intention of harming him.

Mrs. Tate denied these allegations and testified that plaintiff had abandoned her on May 1, 1982. The trial judge obviously believed Mr. Tate’s account of what happened because he found that the plaintiff had left the matrimonial domicile with lawful cause and granted him a separation based upon the fault of the defendant.

Mrs. Tate appeals this judgment alleging that the trial court erred when it found that she was at fault in the dissolution of the marriage. She also assigns as error the trial court’s failure to assess attorney’s fees for plaintiff having not timely filed his answers to the interrogatories.

We find no merit in either of defendant’s assignments of error and accordingly affirm.

As to defendant’s first assignment of error it should be noted that in separation proceedings, the trial court’s finding of fact on the issue of fault will not be disturbed on appeal unless manifestly erroneous. Pearce v. Pearce, 348 So.2d 75 (La.1977); Harrington v. Campbell, 413 So.2d 297 (La.App. 3rd Cir.1982); Douglas v. Douglas, 385 So.2d 402 (La.App. 1st Cir.1980), writ refused, 386 So.2d 358 (La.1980); and Aguillard v. Aguillard, 380 So.2d 104 (La.App. 1st Cir.1979), writ denied, 381 So.2d 1206 (La.1980). In his reasons for judgment, the trial judge stated:

“The court suspects that in this case her [defendant’s] physical and mental state are responsible for the marriage breakup, ....
There is no doubt she harassed him until he left; and, he did leave.
However, on the evidence presented, the court believes he proved she made marriage unbearable.” (Emphasis added).

Cruel treatment in any form which renders living together insupportable is a legal ground for a separation from bed and board. La.C.C. Art. 138; McVay v. McVay, 276 So.2d 926 (La.App. 3rd Cir. 1973); Baggett v. Baggett, 311 So.2d 501 (La.App. 4th Cir.1975). In the present case, there is ample evidence in the record to support the judgment in plaintiff’s favor. Although Mrs. Tate denied all of the plaintiff’s allegations the trial judge evidently felt that Mr. Tate’s version of the events constituted a more accurate account of what actually happened and accordingly held the cumulative effect of the wife’s various actions amounted to cruel treatment which rendered the living together insupportable. We cannot say that the trial judge’s finding of fact on the issue of fault was manifestly erroneous and therefore affirm the judgment of separation granted to the plaintiff based on the defendant’s fault.

As to appellant’s second contention, i.e., the trial judge erred in not assessing attorney’s fees for plaintiff’s failure to timely file his answer to the interrogatories, we note that although a hearing was set on the motion to compel answers, no order to compel was granted. No order issued because plaintiff filed his answers prior to the date set for hearing the motion thereby alleviating the necessity of such. Although no order compelling answers to be filed ever issued, the trial judge did sign a rule to show cause why defendant should not be required to answer the interrogatories and condemned to pay attorney’s fees.

La.C.C.P. Art. 1469 is the codal authority for awarding attorney’s fees when a party’s action necessitates an order compelling discovery. That Article states:

“A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
(1) An application for an order to a party or a deponent who is not a party may be made to the court in which the action is pending.
(2) If a deponent fails to answer a question propounded or submitted under Articles 1437 or 1448, or a corporation or other entity fails to make a designation under Articles 1442 or 1448, or a party fails to answer an interrogatory submitted under Article 1457, or if a party, in response to a request for inspection submitted under Article 1461, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order.
If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Article 1426.
(3) For purposes of this Subdivision an evasive or incomplete answer is to be treated as a failure to answer
(4) If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.” (Emphasis added).

“It is well recognized in the jurisprudence ... that as a general rule attorney’s fees are not allowed except where authorized by statute or contract.” Hernandez v. Harson, 237 La. 389, 111 So.2d 320, 327 (1959) (Citations omitted). Thus if attorney's fees are recoverable in this case, such action must be accomplished under the authority of La.C.C.P. Art. 1469. Under the emphasized portion of that Article a trial judge is given authorization to award attorney’s fees only when “the motion is granted, (or denied) ... after opportunity for hearing” or when the “motion is granted in part and denied in part.”

The motion which Article 1469 refers to is a motion for an order compelling discovery, not a motion for a rule to show cause why the order should not issue. The rule to show cause is merely a means by which the end result, the order compelling discovery, is accomplished. Therefore the motion is not “granted” or “denied” as required by La.C.C.P. Article 1469 until “after opportunity for hearing” it is determined that the order should or should not issue. Only at that point may attorney’s fees be granted.

“[T]he trial court may award attorney’s fees if it issues an order compelling an answer to the interrogatories ... [or determines the order is unnecessary.] To award attorney’s fees absent the order contemplated by the cited Codal article is without authorization by the legislative enactments of this state.”

Dural v. City of Morgan City, 407 So.2d 757, 759 (La.App. 1st Cir.1981).

We therefore find that it was not only proper for the trial judge not to award attorney’s fees in this case but he was without authority to do so.

For the above and foregoing reasons the judgment of the trial court is affirmed, with all costs on appeal assessed against defendant, Marcella Thompson Tate.

AFFIRMED.

STOKER, J., concurs in part and dissents in part and assigns written reasons.

STOKER, Judge,

concurring in part and dissenting in part.

I fully concur in the majority’s opinion relative to the separation matter and the affirmance of the trial court’s judgment in that regard. I dissent as to the second matter, the question of the failure of the trial court to award attorney’s fees in connection with the defendant’s motion to compel answers to interrogatories. The trial court set the hearing on the motion on the same day as trial of the merits. The matter did come on for hearing on the date set for trial at the same time as the trial despite the fact that plaintiff had filed answers to the interrogatories on a day or so preceding the trial.

Although defendant’s counsel made some objection that she had not been able to determine the sufficiency of the answers, she appears to have contented herself with a statement that the court should at least consider the claim for attorney’s fees incurred in filing the motion. The trial judge announced that he would “refer the matter to the merits.” It would seem to be more accurate to say that the trial judge took the attorney fee question under advisement because it was not a part of the merits of the case strictly speaking. The motion to compel answers to interrogatories phase of the question was apparently treated as moot. At this stage it obviously is moot.

As the record stands the attorney fee question was never ruled on by the trial court. As the question was not a part of the merits of the case tried, there was no rejection of the claim by the trial court. It is still pending and is not really before us on appeal.

Inasmuch as the attorney’s fee question did come on for hearing and was taken under advisement, I would remand this issue to the trial court for its disposition. It might take the same position as that of the majority, or it might follow Smith v. Smith, 398 So.2d 549 (La.App. 1st Cir.1979), or take some other action. Once the trial court made a ruling, whatever it was, it would then be ripe for the taking of an appeal by a party aggrieved by the trial court ruling. Until such should be done, I feel that we should refrain from entertaining an appeal on the question of attorney’s fees as it is not before us. Therefore, I dissent from this portion of the opinion of the majority in this case.

      . See La.C.C.P. Art. 963 which authorizes the use of the rule to show cause on contradictory motions.

      . But see, Green v. Provencal Tie Mill, 392 So.2d 722 (La.App. 3rd Cir.1980), which appears to imply that the filing of the motion to compel discovery is the action which triggers the authority of the trial judge to award attorney’s fees and from that point the decision to award or not to award would be within the judge’s sound discretion. Green at 724. See also, Smith v. Smith, 398 So.2d 549 (La.App. 1st Cir.1979), writ denied, 399 So.2d 585 (La.1980), which supports the rationale of Green. However, we note that even though the language of Smith supports the proposition that the filing of the motion is the triggering device; attorney’s fees were not awarded until after the rule was heard. Further, the rationale of Green and Smith may more equitably achieve the purpose of La.C.C.P. Art. 1469 in compensating a party for action required by the delay of his opponent. The filing of the motion is equivalent to action taken and expense incurred by the delay of another party. It may well therefore be that the moving party should be allowed attorney's fees for the cost of the motion regardless of whether an order issues. However, the directive of La.C. C.P. Art. 1469 is clearly to the contrary and the problem is one which addresses itself to the legislature because we are obligated to follow the law as written.

      . Although the court in Dural was dealing with former La.C.C.P. Art. 1511, La.C.C.P. Art. 1469 provides substantially the same and the analysis of the court remains correct.


source: Caselaw Access Project

author: STOKER, Judge.

license: Public Domain

text:
    William ANDRUS d/b/a Andrus Speedi-Kopi, Plaintiff-Appellant, v. Jerry Wayne BOURQUE, Defendant-Appellee.
    No. 83-509.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      Brame, Bergstedt & Brame, David B. McCain, Lake Charles, for plaintiff-appellant.
    Levingston, Tynes & Liles, Kenneth Milan and David L. Levingston, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, STOKER and YELYERTON, JJ.
   STOKER, Judge.

This is a suit on an open account. The only issue in this case is what party or parties are responsible for the account; there is no issue as to the fact that the account is owed or the amount owing.

On June 18, 1982, plaintiff, William An-drus, d/b/a Andrus Speedi-Kopi, filed a suit on an open account against defendant, Jerry Bourque, for amounts past due on a printing job contracted by defendant during the period from November, 1981, to February, 1982. By a supplemental and amending petition defendants South Baton Rouge Yellow Page Directory, Inc., (SBR) and J-Wayne Enterprises, Inc., (J-Wayne) were joined in the suit as solidary obligors. The alleged amounts past due were for printing services rendered in connection with a proposed publication to be named The Greater Boston Suburban Yellow Page Directory (Greater Boston).

By way of answers to plaintiffs demands, defendants denied any personal liability on the part of Jerry Bourque but admitted that the indebtedness was owed by SBR. The parties stipulated both SBR and J-Wayne to be lawfully incorporated Louisiana corporations. The trial court, in a judgment signed on February 28, 1983, held, (1) SBR to be liable for part of the debt, (2) SBR and J-Wayne to be liable in solido for the balance of the debt and (3) Jerry Bourque, individually, to be free from any liability on the debt and dismissed plaintiffs demands against him.

Plaintiff appeals from that portion of the judgment rendered in favor of Jerry Bo-urque, individually. He urges that Jerry Bourque did not initially disclose to him that the printing work was requested and done for a corporation; therefore, the defense of agency is not available to Bourque who should be held personally liable for the indebtedness. We reverse.

FACTS

Defendant, Jerry Bourque, headed two private business ventures each of which involved the selling of yellow page advertising space to businesses within specific market areas. Two yellow page directories were to be printed for distribution; one was for the Baton Rouge, Louisiana area and was to be named the South Baton Rouge Yellow Page Directory, the other was for the Boston, Massachusetts area and was to be named the Greater Boston Suburban Yellow Page Directory. Plaintiff was hired to print certain mail-out materials for these business ventures. All printing debts incurred in connection with the South Baton Rouge directory have been paid. This suit concerns only the printing debts incurred in connection with the Greater Boston directory.

In August, 1981, William Andrus began to print mail-out materials to be used in connection with these business ventures. From August, 1981, to October, 1981, materials were printed for the South Baton Rouge directory. As noted above these have been paid for. From November, 1981, to January, 1982, materials were printed for the Greater Boston directory. In substantial part, these remain unpaid. Both of these printing jobs were carried in plaintiffs ledger as being performed for a business by the name of “South Baton Rouge Telephone Directory”.

Jerry Bourque testified that during the summer of 1981, he met with William An-drus to arrange to have some printing work done for the South Baton Rouge directory. He testified that he told Andrus that this work was being done for a corporation and that the account should be billed under South Baton Rouge Yellow Page Directory, the corporation’s name. William Andrus testified that he did not recall meeting with Jerry Bourque at that time. Instead, he testified that he met with Chuck Bourque, Jerry’s brother, to set up the account. Chuck Bourque has no connection with either of the two business ventures. As mentioned, the account was carried in Andrus’ ledger under “South Baton Rouge Telephone Directory”. Andrus claims that he was not made aware that this work was being performed for a corporation. He testified that the name carried in the ledger indicated to him only that it was a business and not that it was a corporation.

It is undisputed that the parties met sometime close to or in November, 1981, to arrange for printing related to the Greater Boston directory and that nothing was specified as to how this job was to be billed. Billing was continued under “South Baton Rouge”. Andrus again testified that Bourque made no representations that he was representing a corporation at this time.

A total of ten (10) invoices were billed for printing work performed on the Greater Boston job. The first four (4) of these, representing printing orders placed through November 30, 1981, were billed to “South Baton Rouge”. The next order for materials was placed on December 4, 1981. Andrus testified that when Bourque placed this order he told Andrus to invoice this and future invoices to J-Wayne Enterprises, Inc. An invoice for the order of December 4, 1981, is billed to “South Baton Rouge”; however, the job order ticket accompanying the invoice indicates that it was placed for J-Wayne Enterprises, Inc. Bourque testified that he never told An-drus to bill any invoices to J-Wayne. Three (3) of the remaining five (5) invoices were billed to J-Wayne. Of the remaining two (2) invoices, one does not appear in the record and the last is billed to Greater Boston.

Only one payment of $3,500 was made on the Greater Boston job. This payment was made with a check from J-Wayne. Bo-urque testified that SBR did not have any money and that J-Wayne loaned it the $3,500.

In its judgment, the trial court held, (1) SBR to be solely liable for the four (4) invoices representing orders placed through November 30, 1981, less a credit for $3,500, (2) SBR and J-Wayne liable in solido for the remaining six (6) invoices on the Greater Boston job, and (3) Jerry Bo-urque, individually, to be free from any and all liability and dismissed Andrus’ demands against him.

POSITION OF PARTIES ON APPEAL

On appeal, plaintiff, William Andrus, urges that Jerry Bourque be found personally liable on the four invoices billed prior to the order which was placed on December 4, 1981, and invoiced on December 9, 1981. He also urges that the $3,500 payment made by the J-Wayne check should be credited to the J-Wayne portion of the debt rather than to the part for which SBR was held solely liable. He also seeks an increase in attorney’s fees to reflect the additional work necessary for this appeal.

The defendant, Jerry Bourque, admits that a debt for all work done in the Greater Boston job is owed but claims in his brief that all such work was requested and done for corporations, SBR and J-Wayne, and not for Jerry Bourque in his personal capacity. Plaintiff urges that the defense of agency is not available to Bourque since he never initially disclosed to plaintiff that the printing was requested and done on behalf of a corporation, SBR.

The sole issue on appeal is whether, as a matter of fact, Bourque disclosed to plaintiff at the time the contract was formed, that he was acting on behalf of the corporation, SBR, as its agent.

APPLICABLE LAW

Louisiana law has long provided that an agent who fails to disclose his status and his principal’s identity becomes personally liable for debts incurred at his behest, even if the work is done for the benefit of his principal. LSA-C.C. arts. 3012, 3013; J.T. Doiron, Inc. v. Lundin, 385 So.2d 450 (La.App. 1st Cir.1980). The agent has the burden to prove he disclosed this agency status and the identity of his principal, if he wishes to avoid personal liability. LSA-C.C. arts. 3012, 3013; Eastin v. Ramey, 257 So.2d 717 (La.App. 3rd Cir.1972); Chartres Corporation v. Twilbeck, 305 So.2d 730 (La.App. 4th Cir.1974). The special defense of agency cannot be proved by the mere testimony of defendant. He must be corroborated by other evidence. Guillory v. Courville, 158 So.2d 475 (La.App. 3rd Cir.1963).

Express notice of the agent’s status and the principal’s identity is not required to escape personal liability if the agent proves that sufficient evidence of the agency relationship was known by the third party so as to put him on notice of the principal-agent relationship. J.T. Doiron, Inc. v. Lundin, supra.

There is no evidence in the record, other than the uncorroborated testimony of Jerry Bourque, to indicate that William Andrus was made aware that any printing was being done on behalf of a corporation prior to the order placed on December 4, 1981, which was invoiced on December 9, 1981. The ledger was always carried under the name of “South Baton Rouge Telephone Directory”. All mail-out materials printed for the South Baton Rouge directory were captioned “South Baton Rouge Telephone Directory”. All mail-out materials printed for the Greater Boston directory were captioned “The Greater Boston Suburban Telephone Directory”. Instead of bearing the full name appearing on the ledger, all job orders and invoices prior to December 4, 1981, were carried under the name of and billed to “South Baton Rouge”, apparently as a shortened version of the company name. Nevertheless, nowhere on the ledger, the job orders, the invoices or on any of these printed materials do the words “corporation” or “incorporated” or their abbreviations in any form appear. The record is totally lacking of any indication of any agency relationship sufficient to have put Andrus on notice of a principal-agent relationship.

Only from December 4, 1981, when Andrus testified that Bourque told him to bill all future invoices to J-Wayne Enterprises, Inc., was Andrus made aware that he was dealing with a corporation and that a principal-agent relationship existed. Pri- or to that time, from our consideration of the transactions between the parties, we conclude that plaintiff was not aware nor should have been aware that Bourque acted in any capacity other than as an individual. Bourque failed in his burden of disclosure. Plaintiff is entitled to recover against Bourque individually for all printing debts accrued on the Greater Boston job prior to the December 9, 1981, invoice.

CREDIT OF $3,500

In its judgment, the trial court held SBR to be solely liable for the four (4) invoices representing orders placed through November 30, 1981, less a credit for $3,500. This payment of $3,500 was made with a check from J-Wayne. Defendant testified that the $3,500 check represented a loan from J-Wayne to SBR. There is no evidence, other than this testimony, to indicate that this was a loan. Plaintiffs ledger indicates that this payment was not made until on or about January 13, 1982. At this time, the ledger indicates that the part of the printing debt for which the trial court held SBR and J-Wayne liable in solido totalled well over $3,500. We hold that this $3,500 payment made by J-Wayne check should have been credited to the part of the debt for which J-Wayne and SBR were held liable in solido rather than to the part for which SBR was held solely liable.

ATTORNEY’S FEES

Plaintiff seeks an increased award in attorney’s fees to reflect the additional work necessary for this appeal. See LSA-R.S. 9:2781. We award plaintiff $500 in attorney’s fees for work done on this appeal.

We hold defendant, Jerry Bourque to be personally liable on the printing indebtedness for all invoices incurred prior to the invoice of December 9, 1981. We also hold that the $3,500 payment made by J-Wayne check is to be credited to the part of the debt for which the trial court held J-Wayne and SBR liable in solido. The judgment of the trial court is reversed insofar as it is inconsistent with our holding above. In all other respects the judgment of the trial court is affirmed. We award plaintiff $500 in attorney’s fees for this appeal.

REVERSED IN PART, AFFIRMED.IN PART AND RENDERED.


author: FORET, Judge.

text:
    Thomas H. CHAPMAN, et al, Plaintiff-Appellant, v. HOME INDEMNITY COMPANY, Defendant-Appellee.
    No. 83-517.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Alvis J. Roche, Lake Charles, for plaintiff-appellant.
    Raggio, Cappel, Chozen & Berniard, Richard B. Cappel, Lake Charles, for defendant-appellee.
    Before GUIDRY, FORET and KNOLL, JJ.
   FORET, Judge.

This is a worker’s compensation suit filed by plaintiff, Ethel Chapman, against defendant, Home Indemnity Company, for accrued worker’s compensation benefits, statutory penalties and attorney’s fees. From a judgment in favor of defendant, Mrs. Chapman has appealed. The issue on appeal is whether the heir of a worker’s compensation beneficiary is entitled to receive the entire amount of scheduled benefits which would have been available to the deceased had he not died.

Plaintiff’s son, Thomas Chapman, was ■ employed as a butcher at Sonny’s Supermarket, earning an average weekly wage of $296.40. On January 21, 1981, Thomas was injured while in the course and scope of his employment which resulted in half of his left index finger being traumatically amputated. Subsequently, the remainder of his finger was surgically removed.

At the time of the accident, Home Indemnity Company was the worker’s compensation insurer for Sonny’s Supermarket. They immediately began paying weekly benefits at the maximum rate of $163 per week and continued paying through June 24, 1981, for a total period of 22 weeks. Home Indemnity also paid all known medical expenses. On July 2, 1981, Thomas Chapman died from an incident totally unconnected to his work-related accident of January 21, 1981.

Home Indemnity timely tendered to Mrs. Chapman a check in the amount of $186.29, which represented the accrued benefits for the period from June 24, 1981, the date of the last payment, to July 2, 1981, the date of Thomas Chapman’s death. Mrs. Chapman refused to accept the tendered amount, and filed suit contending that the amputation resulted in a scheduled loss and that she, as the sole heir of the deceased, was entitled to judgment for the full amount which would have been due under the schedule had her son lived, subject to a credit for the benefits previously paid. The trial judge ruled that the plaintiff was entitled to only $186.29 and rejected all of her remaining claims. She appealed. We affirm.

The right of an employee to enforce the obligation of an employer to pay disability benefits is a heritable property right which is transmitted to his heirs upon his death. This rule, however, is limited to the benefits which had accrued to the employee prior to his death. Weekly benefits which would have been paid, but for the death of the employee, are not considered accrued benefits. Guillot v. Weaver Brothers & Thompson Lumber Company, 31 So.2d 278 (La.App. 2 Cir.1947); Turner v. Southern Wheel and Rim Service, Inc., 332 So.2d 770 (La.1976).

The plaintiff contends that a different rule should apply in the case of a scheduled loss. She argues that on the date of the amputation her son had a vested right in 150 weeks of benefits under LSA-R.S. 23:1221(4)(e), and that upon his death, she inherited his right to those benefits. We disagree.

The general purpose of the disability section of the worker’s compensation statute is to compensate an employee during the “period of such disability”. LSA-R.S. 23:1221, paragraphs 1, 2 and 3. That is why an employer can have no obligation to pay benefits other than on a weekly basis. Once an employee dies, the disability terminates and along with it goes the employer’s obligation to pay. This is the basic rationale behind the Guillot decision and its progeny.

The scheduled benefits portion of the statute is in the same section as the one dealing with general disability benefits and is intended as a parallel remedy. Jacks v. Banister Pipelines America, 418 So.2d 524 (La.1982). Both provide for benefits only on a weekly basis. LSA-R.S. 23:1221. Had the legislature felt a different rule was needed for scheduled benefits, it would have provided for a lump sum award instead of payments on a weekly basis.

When Thomas Chapman died, his disability ended, and along with it went his right to any future benefits. ■ At the time of his death, he had a vested right in the $186.29 in benefits which had accrued, but not to the 150 weeks which were potentially available. Ethel Chapman, as heir of her son, is entitled to $186.29 in accrued benefits, but nothing more.

DECREE

For the reasons set forth above, the judgment of the trial court is affirmed. All costs of this appeal are assessed against Ethel Chapman.

AFFIRMED.

      . LSA-R.S. 23:1221 provides, in pertinent part:
      "SUBPART B. DISABILITY BENEFITS
      § 1221. Temporary, permanent, or partial disability; schedule of payments
      Compensation shall be paid under this Chapter in accordance with the following schedule of payments:

      (4) In the following cases, the compensation shall be as follows:

      (b) For the loss of a first finger, commonly called the index finger, sixty-six and two-thirds per centum of wages during thirty weeks.
      (e) For the loss of a hand, sixty-six and two-thirds per centum of wages during one hundred fifty weeks.”
      Mrs. Chapman contends that the loss of the index finger resulted in a total loss of use of the hand under paragraph (e) and entitles her to 150 weeks of benefits. Home Indemnity argues that should plaintiff be entitled to the full amount of benefits under the scheduled benefits section, paragraph (b) is applicable and only 30 weeks of benefits are due.


author: GUIDRY, Judge.

text:
    Mae HARDEE, Plaintiff-Appellee, v. TATE & SONS, INC., Defendant-Appellant.
    No. 83-589.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Harrington & Harrington, Eric R. Harrington, Natchitoches, for defendant-appellant.
    Gahagan & Gahagan, Marvin F. Gaha-gan, Natchitoches, for plaintiff-appellee.
    Before GUIDRY, FORET and KNOLL, JJ.
   GUIDRY, Judge.

This suit arises out of the rupture of a natural gas line on property belonging to the plaintiff, Mae Hardee. Mrs. Hardee filed suit against Tate & Sons, Inc. (hereafter Tate) seeking damages sustained allegedly as the result of defendant’s negligence and fault. Plaintiff also prayed for attorney’s fees. After trial on the merits, the trial judge rendered judgment in favor of plaintiff and against defendant in the principal amount of $1,639.89 but denied any award of attorney’s fees. After granting defendant’s motion for a new trial for reargument only, the trial judge rendered judgment in favor of plaintiff and against defendant in the principal amount of $1,598.41. Defendant has perfected a sus-pensive appeal. Plaintiff neither appeals nor answers the appeal.

The sole issue presented on appeal is whether the trial court erred in concluding that the plaintiff proved the fault or negligence of the defendant.

The plaintiff’s home is located off of a small rural road in Natchitoches Parish. In order to get natural gas to her home, plaintiff had a gas line laid under adjoining property owned by her daughter, Peggy Wood, connecting the Hardee home with a pipeline owned by Trans Louisiana Gas Company (hereafter the Gas Company).

Subsequently, in the latter part of 1981, Peggy Wood contracted with the defendant, Tate, to clear her property with a bulldozer. At the time of contract negotiations, Ms. Wood pointed out to Tate the exact location of the gas line. For the four months prior to the defendant’s clearing operations, plaintiff’s monthly gas bills ranged from $7.50 to $35.58. Her monthly bill for January, 1982, after the completion of defendant’s operations, was $1,489.89. The Gas Company, suspecting a leak, disconnected plaintiff’s services and plaintiff engaged Allen Wood who discovered a rupture in her gas line. Mr. Wood testified that the rupture consisted of a long split and that, at one point, the line was almost cut in half.

On appeal, the defendant concedes that the evidence offered at trial was sufficient for the court -to find that there was no other reasonable explanation for the break in plaintiff’s line other than that it was caused by defendant’s clearing operations. However, the defendant contends that the trial court erred in concluding that the plaintiff proved negligence (fault) of the defendant by a preponderance of the evidence.

Defendant properly cites the case of Seals v. Morris, 410 So.2d 715 (La.1981) for the proposition that in order to prove a cause of action under LSA-C.C. Arts. 2315 and 2316, the plaintiff must prove fault, causation and damages. The trial judge’s written reasons for judgment fail to articulate the basis for his finding of negligence on the part of the defendant.

The thrust of defendant’s argument is that the evidence was insufficient to prove it breached its duty to conform to the standard of a reasonable man under the circumstances. Defendant urges that the record indicates that the line at the point of the rupture was imprudently laid, being only six inches below the surface of the ground; that no subsurface clearing had been done at the point of rupture; and, that the bulldozer crossed the line at the point of rupture only horizontally. On the basis of these circumstances, the defendant argues that it exercised the required reasonable care and that the accident was unavoidable.

The aforementioned facts asserted by defendant are in fact disputed. A representative of Trans Louisiana Gas testified that the company standards require that such lines be laid 12 to 18 inches underground. Allen Wood, who repaired the line at the request of plaintiff, testified that he checked the depth of the entire line and, except in the area where clearing operations were conducted, the line was buried to a depth of 24 inches. Although Allen Wood did testify that he found the line at the point of rupture to be only six inches below the surface of the ground, his testimony indicates that the proximity of the line to the surface at this point was the result of defendant’s clearing operations. In this latter regard, Mr. Wood testified that trees and debris had been dragged across the line and that the soil had been pushed away from the surface of the ground at the point of rupture.

We conclude that such circumstances, if accepted by the trial judge, are sufficient to prove that defendant breached its duty of reasonable care. We, therefore, find no manifest error in the trial judge’s finding of negligence. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, writ granted 359 So.2d 1303 (La.1978), 365 So.2d 1330 (La.1978), on remand, 370 So.2d 1262 (La.App. 3rd Cir.1979); Bertrand v. Aetna Casualty and Surety Company, 306 So.2d 343 (La.App. 3rd Cir.1975), writ denied, 310 So.2d 641 (La.1975).

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the defendant, Tate and Sons, Inc.

AFFIRMED.


author: COVINGTON, Judge. SHORTESS, Judge,

text:
    ST. TAMMANY PARISH COUNCIL v. James H. “Jim” BROWN, Secretary of State, State of Louisiana.
    No. 83 CA 1096.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 7, 1983.
    James R. Jenkins, Covington, for plaintiff, appellee.
    Cynthia D. Young and David G. Sanders, Baton Rouge, for defendant, appellant.
    Before COVINGTON, LOTTINGER, COLE, WATKINS and SHORTESS, JJ.
   COVINGTON, Judge.

The defendant suspensively appealed from a judgment, pursuant to mandamus proceedings, directing and ordering him to place on the October 22, 1983, ballot for St. Tammany Parish, a proposition to be voted upon regarding a possible Real Estate Transfer Fee as contained in Resolution Council Series No. 83-1571-A as amended by Resolution Council Series No. 83-1589. As thus amended, the ballot would allow the Parish to impose and levy a real estate transfer fee of $100.00 for each recorded transaction in the Parish “wherein the whole or an interest in any improved or unimproved real (immovable) property in the Parish is acquired, with the proceeds of said fee to be dedicated and used for the general operations” of the Parish.

Defendant filed exceptions of venue, prematurity and prescription, all of which were overruled by the court. Hearing was held on September 20 and the judgment was signed on September 21.

Initially, let it be said that although we do not agree with the trial court’s opinion that this is an election contest suit within the intendment of LSA-R.S. 18:1401 et seq., and therefore the time provision of Section 1409 of the Election Code is inapplicable, this is a matter where a subdivision of the state is involved and is deserving of special assignment under Rule 2-11.2, Uniform Rules of the Courts of Appeal, which we have granted.

Having voiced the above, we find that the trial court erred in overruling the exception of venue. We maintain the exception. The Secretary of State must be sued at his official domicile, East Baton Rouge Parish. LSA-C.C.P. art. 42(1); Langlois v. Lancaster, 217 La. 995, 47 So.2d 795 (1950).

The court’s judgment overruling the exception of venue is reversed, and plaintiff’s suit is dismissed at its cost in the amount of $146.50.

REVERSED, AND SUIT DISMISSED.

SHORTESS, J., concurs and assigns reasons.

LOTTINGER, J., concurs for the reasons assigned by SHORTESS, J.

SHORTESS, Judge,

concurring.

The proposition in question states that the proceeds of the fee are to be dedicated and used for the general operation of the Parish. Audubon Ins. Co. v. Barnard, 434 So.2d 1072 (La.1983), held that if revenue is the primary purpose of an assessment, it will be held to be a tax. It was a tax, and the approval of the State Bond Commission should have been obtained. La.R.S. 47:1803, 1804. The exception of prematurity should have been maintained.


author: GAUDIN, Judge.

text:
    Louis J. MELANCON, et al. v. LYN-ROD SERVICES, INC.
    No. 82-CA-69.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1983.
    Michael K. Heltz and Thomas J. Kliebert, Jr., Kliebert & Heltz, Gramercy, for plaintiff-appellant.
    John L. Diasselliss III, LaPlace, for defendant-appellee.
    Before BOUTALL, GAUDIN and GRIS-BAUM, JJ.
   GAUDIN, Judge.

This is an appeal from a district court judgment dismissing a claim for faulty roof repairs. We find no manifest error and affirm the trial judge’s decree.

Plaintiffs-appellants are Mr. and Mrs. Louis J. Melancon, who contracted with defendant-appellee Lyn-Rod Services, Inc., whereby Lyn-Rod was to remove the existing roof and replace it with 20-year fiberglass shingles.

Lyn-Rod finished the job, but shortly thereafter Mrs. Melancon said that ceiling sheetrock began to split and sag throughout the house. She contends the sheetrock problems were caused either by rain entering the house while the roof repairs were in progress or by leaking after the new roof had been installed.

One witness, Bradford Brown, gave testimony supportive of Mrs. Melancon’s contentions. Others who testified at the trial, in addition to Mr. Ory, were:

(1) Melvin Sutton, a roofing expert called by Mrs. Melancon;

(2) Roger Bossier, a sheetrock expert; and

(3) Billy Bird, a Lyn-Rod employee who had worked on the Melancon job.

Mr. Sutton went onto the roof but not into the attic, and he stated that the shingles had been properly installed and were not leaking. If there were any leaks, he said, they would have to be in the vents or in capping at the very top of the roof.

He said:
"... I didn’t check the vents or the caps. That would be the' qnly possibility and I didn’t get into that.”

Mr. Bossier'examined the sheetrock after Lyn-Rod had put on the new roof. He testified that the sheetrock was not sagging because of water damage but because the sheetrock had been improperly installed. Mr. Bossier said that the sheetrock "... was so dry it was crystallized ...”

The trial judge did not assign written reasons for the judgment in favor of Lyn-Rod and against the Melancons, but the record does support his apparent factual findings and his decree.

Accordingly, the appealed-from judgment of the 29th Judicial District Court is affirmed, with appellants to pay costs.

AFFIRMED.


text:
    Damon “Jack” JACKSON v. WAL MART PROPERTIES, INC.
    No. 83-772.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1983.
    Mareantel & Marcantel, David E. Mar-cantel, Jennings, for plaintiff-appellant.
    Donald Jory, Jennings, for defendants-appellees.
    Before STOKER, DOUCET and YEL-VERTON, JJ.
   STOKER, Judge.

MOTION TO SUPPLEMENT THE RECORD

Plaintiff-appellant, Damon “Jack” Jackson and defendant-appellee, Wal-Mart Properties, Inc. have jointly moved to supplement the record. Movers aver that a lien was not introduced into evidence at trial because of an oversight.

They move to stipulate as to the existence and timeliness of said lien and request that the court take judicial cognizance of the existence of and timeliness of the lien. Despite the joint stipulation this lien which was not introduced at trial cannot be added to the record after the transcript of the appeal has been filed in the appellate court.

According to Article 2132 of the Louisiana Code of Civil Procedure, after the record has been transmitted to the appellate court, the record can be supplemented by stipulation of the parties, by the trial court or by order of the appellate court only if the evidence was actually introduced at trial. Bullock v. Commercial U. Ins. Co., 397 So.2d 13 (La.App. 3rd Cir. 1981). In the case at hand the lien was not introduced as evidence at the trial and consequently cannot be added to the record at this time. The motion to supplement the record and to stipulate as to additional evidence, therefore, cannot be granted.

In the alternative, movers ask that the case be remanded to the district court to allow the taking of the additional evidence. Cases are remanded for the introduction of new evidence to prevent a miscarriage of justice. LSA-CCP Article 2164; Jones v. LeDay, 373 So.2d 787 (La.App. 3rd Cir.1979). Since both plaintiff and defendant request that the lien be admitted, the ends of justice would be best served if the case was remanded for the introduction of this evidence.

For the above and foregoing reasons, the motion to supplement the record is denied, and the suit is remanded. Assessments of costs are to await a final determination of this matter.

MOTION DENIED AND CASE REMANDED.


author: KLIEBERT, Judge.

text:
    Susan BREAUX v. Patrick C. BREAUX.
    No. 83 CA 482.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.
    Bruce G. Reed, Reed & Reed, New Orleans, Anthony J. Fontana, Jr., Theall & Fontana, Abbeville, for plaintiff-appellee.
    Neville M. Landry, New' Orleans, for defendant-appellant.
    Before KLIEBERT, BOWES and CUR-RAULT, JJ.
   KLIEBERT, Judge.

Patrick C. Breaux, the husband, appeals from a judgment denying his rule to terminate alimony payments to his wife, Susan Breaux. The issue on appeal is whether the trial judge gave proper consideration to the wife’s earning capacity in refusing to terminate the alimony award. We think he did and, hence, affirm his judgment.

On a rule filed after the granting of a final divorce, the husband was condemned to pay to the wife alimony of $1,760.00 per month and $1,000.00 per month for the support of their children who were 13, 12 and 8 years of age. See Breaux v. Breaux, 425 So.2d 975 (La.App. 5th Cir. 1983), an opinion of this court reducing the trial court alimony award of $1,960.00. While the trial court rule setting the alimony and child support was pending an appeal, the husband, alleging a change in circumstances, i.e., the wife’s earning capacity, filed a rule to terminate the alimony payments. The wife countered with a rule to increase the child support. After hearing the evidence, on a combined hearing for both rules, the trial judge refused to terminate the wife’s alimony and increased the child support to $750.00 per child per month. The husband appealed only the trial judge’s refusal to terminate the alimony award to the wife.

In the trial court and here the husband contends the wife is a young, professional? ly trained and licensed nurse who is in good health and who, at the time of the filing of the rule, .was gainfully employed as a Director of Nursing at a monthly salary of $1,600.00 per month. The record shows that about the same time she was served with the husband’s rule, she terminated her employment.

According to the wife’s testimony, during the marriage and after the divorce she did not work; but, in 1982 she elected to accept employment on a trial basis. During the six month trial period, she found it would not work out because her working was having an adverse effect on the children, particularly on the one receiving psychiatric counseling. Further, she- found her work was restricting her and the children’s activities to the point “[the] children had become very quiet, to themselves; essentially what we had was a house that four people lived in...” She felt a greater obligation to her children than to her employment, hence, she terminated the employment to have more time to spend with the children.

Dr. Roy, a psychiatrist, testified that Mrs. Breaux had sought his advice, about the effect of her employment on the children, prior to accepting the employment. Thereafter, she decided to accept the employment on a trial basis. A few days prior to the trial, she informed him she had elected to terminate the employment because of her concern over the children’s welfare.

Civil Code Article 160-A provides in pertinent part as follows:

“In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; and any other circumstances that the court deems relevant.
In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances.
Permanent periodic alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries.” (Emphasis Supplied.)

From the evidence, the trial judge concluded the wife had made a sincere attempt to be gainfully employed but was unable to keep the job because of a genuine concern for the welfare of her children. We agree with his conclusion. Under our law, the trial judge has “much discretion” in determining the amount of alimony-granted. Super v. Super, 397 So.2d 1084 (La.App. 4th Cir.1981); Kean v. Kean, 388 So.2d 398 (La.App. 1st Cir.1980). Considering the means of the husband (in excess of $250,000.00 yearly), the custody and welfare of the children, along with the wife’s earning capacity, we cannot say the trial judge abused his discretion in refusing to terminate the alimony. Under the circumstances present here, the better welfare of the children is for the wife to stay at home and devote herself to her minor children’s needs as she had done while she was married to the appellant husband.

Accordingly, the trial court’s judgment is affirmed. All costs to be borne by the husband.

AFFIRMED.


text:
    STATE of Louisiana v. Bertha BRITTON.
    No. 83-KA-444.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.
    Anderson Council, Kenner, for appellant.
    John M. Mamoulides, Abbott Reeves and William C. Credo, III, Asst. Dist. Attys., Gretna, for appellee.
    Before BOUTALL, CHEHARDY and GAUDIN, JJ.
   GAUDIN, Judge.

Bertha Britton was convicted of theft and possession of stolen property following a non-jury trial in the 24th Judicial District Court and she assigns five errors, at least one of which has merit. We reverse her conviction and her sentence of 61 months at hard labor, and we remand this matter to the trial court for further proceedings consistent with this opinion.

Following Britton’s arrest because of alleged systematic theft of clothing from her employer, she was accompanied to her residence by two police officers. Britton originally consented to a search of her home but later withdrew the consent when her attorney arrived on the scene. Nonetheless, the police continued to search and they seized various articles of clothing and took a series of photographs.

During a motion to suppress the seized clothing, one of the officers was asked:

Q. Do you recall that person (the attorney) asking you not to search the house?
A. Yes, sir, I do.
Q. But you continued to search the house anyway, is that correct?
A. Right, right.

Following the motion, the trial judge said that:

"... the motion to suppress should be granted ... I think that they should have gotten a search warrant and they did not do so; I think it was poor police work

The photographs were not discussed and were not at issue during this hearing.

We agree with the trial judge’s granting of the motion. Once the consent was withdrawn after Britton’s attorney arrived, the search should have been terminated and a search warrant sought. A search without a warrant is presumably unreasonable unless justified by one of several narrowly drawn exceptions. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, and State v. Johnson, 437 So.2d 350 (La.App. 4th Cir.1983).

The trial judge obviously did not consider the instant search an exception to the general rule as enunciated in Coolidge. Accordingly, the seized clothing was excluded from evidence.

Later, during the trial itself, the State introduced, over defense objections, six 8 X 10 color photographs of allegedly stolen property taken after Britton’s consent to search had been withdrawn. Defendant assigns this introduction as reversible error.

The State argues that the photographs were taken before the consent was recanted, but the record clearly shows otherwise.

If the search was unconstitutional and the items of seized clothing suppressed, the illegally taken photographs should also have been excluded from evidence.

Derivative or indirect evidence obtained during an unconstitutional search is referred to as “fruits of the poisonous tree,” a phrase first used in Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307, and explained further in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. There are exceptions to this rule, but none are applicable here.

Inasmuch as we are prohibited from reviewing or retrying facts in a criminal ease, we cannot say that defendant was proven guilty beyond a reasonable doubt despite the erroneous introduction of the photographs. Instead, we can only remand for a new trial without the inadmissible evidence, as was done in State v. Perniciaro, 374 So.2d 1244 (La.1979), and other similar cases.

' While it is not necessary to consider appellant’s other assignments of error, we note that defendant could not have been found guilty of theft and possession of stolen property.

DECREE

Accordingly, we reverse the conviction and sentence, and remand to the 24th Judicial District Court for further proceedings consistent with the views heretofore expressed.

REVERSED AND REMANDED.

      .Reference the Nardone opinion; also Silverthome Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319; United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537; and United States ex rel. Owens v. Twomey, 508 F.2d 858 (7 Cir.1974).

      . La. Const.1974, Art. 5, Sec. 5(C).

      . LSA-C.Cr.P. art. 482(A).


author: CUTRER, Judge.

text:
    The PATMAR CORPORATION, Plaintiff-Appellant, v. ACADIANA FLORIST WHOLESALE, INC., et al., Defendant-Appellees.
    No. 83-457.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Edwards, Stefanski & Barousse, Russell K. Zaunbrecher, Crowley, for plaintiff-appellant.
    Aaron, Aaron & Chambers, Noble M. Chambers, Jr., Crowley, for defendant-ap-pellee.
    Before CUTRER, DOUCET and LA-BORDE, JJ.
   CUTRER, Judge.

The issue presented by this appeal is whether an officer and stockholder of a corporation had agreed to be personally liable for the debts of the corporation.

The Patmar Corporation, a wholesale distributor of florist supplies, filed suit against Acadiana Florist Wholesale, Inc., and its president and fifty percent stockholder, Lona Broussard, for a past due account of $16,411.42. It was alleged that Mrs. Broussard had personally guaranteed the payment of the debts of the corporation. On this basis she was made a defendant.

By stipulation it was agreed that the defendant corporation was indebted to plaintiff in the amount of $16,411.42. The testimony at trial only concerned conversations between Mrs. Broussard and an agent for plaintiff. The trial court ruled that during the week of August 3, 1981, Mrs. Broussard personally guaranteed the payment of all purchased by defendant corporation after that date, but that since no purchases were made by the corporation after August 3, 1981, Mrs. Broussard sustained no liability. The trial court rendered judgment in favor of the plaintiff and against defendant corporation for the stipulated sum. Plaintiff appeals. We affirm.

PERSONAL LIABILITY OF LONA BROUSSARD

Mrs. Lona Broussard was the president and manager of the defendant corporation. In the operation of the corporate wholesale florist supply business, Mrs. Broussard purchased stock from the plaintiff.

In the summer of 1980, the defendant corporation was in arrears in its account with the plaintiff. The record is unclear as to the amount owed at that time. The plaintiff’s agent, Ron Stevens, became concerned about the delinquency and he, along with Stanley Morgenstern (president of plaintiff), discussed the delinquency with Mrs. Broussard. Mrs. Broussard stated that she told Stevens and Morgenstein that ■ she was having a capital flow problem but that some new investors were coming into the business and she would be able to bring the account up to a current status.

Mrs. Broussard testified that she did get new investors and was able to bring the past due account to a current status. As her business continued, however, the defendant corporation again became delinquent in its account and a second conversation took place between Ron Stevens and Mrs. Broussard regarding the account. This conversation took place during the week of August 3, 1981. It was stipulated that the personal guarantee made by Mrs. Broussard was made during that week.

Mrs. Broussard stated that she wanted to keep the business going and-in her conversation with Stevens in the week of August 3⅛ 1981, she told him as follows:

“A. The only thing I told him, I said ‘Ron, ’ I said, ‘You know I have always paid you, and to the best of my ability, I’ll keep trying to pay you. ’ And I still have in mind if I can sell the goods, I will pay my debtors. I don’t care if there’s Judgments or whatever, if I can sell the merchandise, if they will let me, I still will pay them. ”

This was the last conversation she had with Stevens about the account. No further orders were shipped to defendant corporation by plaintiff after this conversation.

Ron Stevens testified that, at this August 1981 meeting, Mrs. Broussard stated that she would see that the plaintiff would be paid if she had to write checks upon her personal account. He interpreted this to mean that she was guaranteeing the past due account.

The trial court found that Mrs. Brous-sard made a personal agreement which was a guarantee for future purchases which may be made after August 3, 1981, but it was not a guarantee for the past due account. The trial court found that no goods were sold to Acadiana Florist after the August 1981 conversation, thus, Mrs. Broussard sustained no personal liability in this suit.

The trial court’s determination that Mrs. Broussard’s guarantee was only for future purchases is a factual conclusion that will not be disturbed on appeal unless there has been manifest error. A review of the record reveals no manifest error in these findings.

For the reasons assigned, the judgment of the trial court is affirmed. The costs of this appeal are assessed to plaintiff-appellant, The Patmar Corporation.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Larry T. BIZETTE, and/or Theresa J. Bizette, Plaintiffs-Appellants, v. BLUE CROSS OF LOUISIANA, Gallagher/Bassett Insurance Service (a Division of Arthur J. Gallagher & Company), and State Employees Group Benefits Program, Defendants-Appellees.
    No. 83-501.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      D. Warren Ashy, Lafayette, for plaintiffs-appellants.
    Sonnier & Hebert, Paul Hebert, Abbe-ville, Tommy D. Teague, Baton Rouge, Arthur J. Gallagher and Co. by H.H. Wedig, Agent, New Orleans, for defendants-appel-lees.
    Before DOMENGEAUX, STOKER, and YELVERTON, JJ.
   DOMENGEAUX, Judge.

Larry T. Bizette and Theresa J. Bizette, plaintiffs-appellants and domiciliaries of Lafayette Parish, filed suit in Lafayette Parish to recover medical insurance benefits from: (1) Blue Cross of Louisiana, domiciled in East Baton Rouge Parish, Louisiana; (2) Gallagher/Bassett Insurance Company, a foreign corporation with its agent for service of process in Orleans Parish, Louisiana; and (3) the State of Louisiana Employees Group Benefits Program, domiciled in the parish of East Baton Rouge, Louisiana. The State of Louisiana filed a declinatory exception of improper venue. The trial court sustained the exception and dismissed the action as to the State. The Bizettes appeal. We affirm.

The sole issue is whether or not the trial court erred in sustaining the exception of improper venue.

The Bizettes filed suit against all insurance companies which have provided medical benefits to Mr. Bizette. Next, the Biz-ettes allege that all the named defendants including the State of Louisiana are soli-dary obligors. Thus the plaintiffs contend that venue is proper as to the State of Louisiana on the basis of La.C.C.P. Art. 73 which provides as follows:

“An action against joint or solidary obligors may be brought in any parish of proper venue, under Art. 42, as to any obligor who is made a defendant.” (Emphasis added).

The trial court sustained the State’s exception of improper venue basing its decision on La.C.C.P. Art. 84 which provides in pertinent part:

“Actions involving the Louisiana State Employee Group Benefits Program, State Police Pension and Relief Fund, ... shall be brought in the Parish of East Baton Rouge or in the Parish of the domicile of the retirement system or employee benefits program.” (Emphasis added).

Obviously there is a conflict in the venue provisions applicable to this case. The conflict is between the permissive provisions of La.C.C.P. Art. 73, and the mandatory provision of La.C.C.P. Art. 84.

We need not consider whether these defendants are solidary obligors and/or whether Lafayette Parish is the proper venue under La.C.C.P. Art. 42 for any of these defendants, since we conclude that in the case of a conflict between La.C.C.P. Art. 84 and La.C.C.P. 73 that the mandatory provisions of La.C.C.P. Art. 84 should control.

La.C.C.P. Art. 84 specifically commands that an action against the State of Louisiana, Employee Group Benefits Program “shall” be brought in East Baton Rouge Parish while La.C.C.P. Art. 73 only permissively states that an action against solidary obligors “may” be brought in any parish of proper venue. Therefore, we conclude that the trial court did not err in sustaining the exception of improper venue.'

For the above and foregoing reasons, the judgment of the trial court sustaining the State of Louisiana’s declinatory exception of improper venue is affirmed. Costs at trial in connection with this exception, and costs on appeal are assessed against plaintiffs-appellants, Larry T. and Theresa J. Bizette.

AFFIRMED.

      . See La.C.C.P. Art. 76 which provides in pertinent part:
      "An action on a health and accident insurance policy may be brought in the parish where the insured is domiciled, or in the parish where the accident or illness occurred.”

      . Although not necessary for determination of this case, it should be noted that La.C.C.P. Art. 45 provides in pertinent part:
      "The following rules determine the proper venue in cases where two or more articles in this Chapter may conflict:
      (1) Article 78, 79, 80, 81, 82, and 83 governs the venue exclusively, if this article conflicts with any of Articles 42 and 71 through 77, In connection therewith, we take cognizance of the fact that La.C.C.P. Art. 84 was enacted subsequent to Art. 45. Article 84 was placed among the Articles which Article 45 deems as “exclusively" controlling. It is arguable the Legislative intent was for La.C.C.P. Art. 84 also to be an exclusively controlling Article in the case of a venue conflict. It is suggested that the Louisiana Law Institute may wish to study these two Articles in that perspective.


author: KNOLL, Judge.

text:
    Mrs. Jerry SMITH, Born Cheryl Edlyn Stephens, Plaintiff-Appellant, v. Roy B. STEPHENS, Dow L. Stephens and Jeanette Stephens Proctor, Defendants-Appellees.
    No. 83-515.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Writ Denied Feb. 16, 1984.
    Woodley, Barnett, Cox, Williams, Fenet, Robert W. Fenet, Lake Charles, for plaintiff-appellant.

      Gold, Little, Simon, Weems, Bruser, Robert J. Nida, Alexandria, Cabra & Leach, Edwin L. Cabra, Self & Burkett, Thomas A. Self, Tillman & Fontenot, Elvin C. Fon-tenot, Jr., Leesville, for defendants-appel-lees.
    Before GUIDRY, FORET and KNOLL, JJ.
   KNOLL, Judge.

James E. Stephens died intestate in Vernon Parish on December 10, 1957. His three legitimate children were placed in possession of the Stephens’ estate on August 10, 1959. On August 2, 1977, Mrs. Jerry Smith, the alleged acknowledged illegitimate daughter of James E. Stephens, sued the Stephens’ legitimate descendants, and several individuals and corporations who claimed an ownership interest in property belonging to the Stephens’ estate. All of the defendants filed exceptions of no cause of action premised on the holdings of Succession of Clivens, 426 So.2d 585 (La.1983) and Harlaux v. Harlaux, 426 So.2d 602 (La.1983). The trial court followed Cli-vens, supra, and maintained defendants’ peremptory exceptions and dismissed Mrs. Jerry Smith’s suit with prejudice.

The Succession of Clivens, supra, holds:

“... applying Brown [388 So.M 1151 (La.1980) ] retroactively without limit fully vindicates the constitutional rights of the illegitimates, but it gives full sway to potential inequities as concern parties who may have inherited or otherwise acquired property prior to Brown. We thus find that the balance between the vindication and recognition of illegitimates’■ constitutional rights, on the one hand, and the state’s interest in the stability of land titles and preventing prejudice or inequities to gratuitous and onerous acquirers of property, on the other hand, is better struck by a limited retroactive application of the Brown decision to January 1, 1975, the effective date of the new constitution, and no further.”

In its re’roactive limitation of the Succession of Brown, supra, the Clivens’ court carefully balanced the constitutional rights of illegitimates against various state interests.

We adhere to the Clivens’ decision. Accordingly, we hold that the judgments of the trial court in the case sub judice were correct in their holding that plaintiff’s petition fails to state a cause of action.

For the foregoing reasons, the trial court’s judgments sustaining defendants’ exceptions of no cause of action are affirmed. All costs of this appeal are assessed to the plaintiff-appellant.

AFFIRMED.


author: LABORDE, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Russell W. BURRIS, Jr., Defendant-Appellant.
    No. CR83-801.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1983.

      J. Michael Small & Kathrine S. Williamson & Thomas K. Brocato, Small, Small, Williamson & Brocato, Alexandria, for defendant-appellant.
    Joseph P. Beck, II, Dist. Atty., and Gregory Wampler, Asst. Dist. Atty., Colfax, for plaintiff-appellee.
    Before GUIDRY, FORET and LA-BORDE, JJ.
   MOTION TO REMAND

LABORDE, Judge.

Defendant, Russell Burris, pleaded guilty to the offense of cultivation of marijuana, a violation of LSA-R.S. 40:966 A(l) and B(2), and was sentenced to serve three years at hard labor. The defendant has appealed. Thereafter, a joint motion for extension of time within which to file briefs was filed by the defense and the State, and was denied by this Court. The basis for that motion was that the defendant and the State had jointly filed in the trial court a motion to permit the withdrawal of the defendant’s guilty plea, which motion, according to defendant, is still pending in the trial court. Subsequently, the defense filed a motion to remand this matter to the trial court for an evidentiary hearing on the motion to permit the withdrawal of the guilty plea.

In both the motion for the extension of time and in the motion to remand, defendant urges that his plea of guilty was involuntary on the ground that the sentence imposed was not that which had been contemplated by the parties, thus vitiating the voluntariness of the plea.

A plea of guilty cannot be withdrawn after a sentence has been imposed, unless it is shown that the plea and/or sentence are constitutionally infirm. State v. Banks, 383 So.2d 1009 (La.1980). A guilty plea has been found to be unconstitutionally infirm when the State does not fulfill an express or implied part of the plea bargaining agreement which precipitated the defendant’s decision to so plead. State v. Warren Hayes, 423 So.2d 1111 (La.1982). In Hayes, The Court stated: “... [D]ue process may be offended both when there is a promise and when the defendant justifiably believes that there is a promise, which is later broken.” However, a defendant cannot withdraw his guilty plea when a misunderstanding regarding his sentence was not induced by representations made by the State or by the trial court. State v. Lockwood, 399 So.2d 190 (La.1981).

In the instant case, the defendant alleged in his previous motion for extension of time (which was denied) that both the State and the defense understood that the sentence to be imposed would be one year at hard labor, that defense counsel advised her client that such would be the sentence, and that on the basis of such representations the defendant entered his plea of guilty.

In light of the above, it would appear that there may be some validity to the defendant’s allegations that his plea was rendered involuntary when the alleged representations made to him concerning the length of his sentence failed to materialize. Therefore, it is ordered that this matter be remanded to the trial court for the holding of an evidentiary hearing for a determination whether the defendant’s guilty plea was voluntarily made.

REMANDED.

ORDER

After due consideration of the motion by relator, Russell W. Burris, Jr., and for the reasons of the Court attached hereto,

IT IS HEREBY ORDERED that the defendant’s sentence in the above captioned case be remanded to the Thirty-Fifth Judicial District Court for the proceeding ordered herein.


author: PRICE, Judge,

text:
    STATE of Louisiana, Plaintiff-Applicant v. John DAVIS, Defendant-Respondent.
    No. 16170-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 21, 1983.
    Sonia Peters, Catherine Estopinal, Asst. Dist. Attys., Shreveport, for plaintiff-applicant.
    Timothy Fischer, Shreveport, for defendant-respondent.
    Before PRICE, HALL and SEXTON, JJ.
   WRIT GRANTED AND MADE PEREMPTORY.

In this application, the State of Louisiana sought supervisory review of the denial of a motion to produce samples in which they requested that the defendant, charged with Aggravated Rape, be required to submit a sample of his seminal fluid. After reviewing the record and the arguments of counsel, we believe that the taking of the sample is warranted.

Testimony at the hearing on the motion establishes that the rape victim does not secrete blood group specific substances into her body fluids. The male fluids found at the rape scene indicate that the perpetrator of the rape is also a non-se-cretor. The defendant’s saliva test shows that he is a secretor. A test of his seminal fluid is necessary to establish whether he is an atypical or aberrant secretor, i.e. that he secretes blood group specific substances into his saliva but not into his semen.

The Supreme Court has upheld the collection of a penile discharge sample from a rape suspect to test for the presence of gonorrhea. State v. Carthan, 377 So.2d 308 (La.1979). See also State v. Martin, 404 So.2d 960 (La.1981). Testing of Davis’ seminal fluid will have probative value either to exclude him as the perpetrator of the rape or to explain the absence of blood group specific substances from the seminal stains obtained from the victim and from the scene of the alleged rape. The expert testified that atypical or aberrant secretors compose approximately 1% to 2% of the population; therefore, there remains a 98% to 99% chance that the defendant will be excluded.

Because we believe that the evidence is likely to be probative, and the intrusion required to obtain the evidence is minimal and reasonable, we find that the taking of the sample is justified and would best serve the ends of justice.

The writ is therefore granted, made peremptory, and the State’s motion to obtain a sample of penile fluid from the defendant is hereby granted.

PRICE, Judge,

dissenting,

I respectfully dissent for the reason that there has been no showing by the State of an abuse of the discretion of the trial judge in his determination that under the circumstances presented the evidence sought has such limited probative value that the State’s motion to produce the seminal fluid sample should be denied.


text:
    Allen R. YATES, M.D. and W.L. Rone, M.D. v. CITY OF JACKSON, Mississippi.
    No. 53988.
    Supreme Court of Mississippi.
    Dec. 7, 1983.
    Rehearing Denied Jan. 25, 1984.
    Joseph W. Yates, III, Gulfport, for appellants.
    David L. Love, Jackson, for appellee.
    Before BROOM, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   Appeal from Circuit Court, Hinds County; Charles T. Barber, Judge.

AFFIRMED.


author: BROOM, Presiding Justice, DAN M. LEE, Justice,

text:
    Annie Lee BELL v. STATE of Mississippi.
    No. 54443.
    Supreme Court of Mississippi.
    Dec. 7, 1983.
    Rehearing Denied Jan. 18, 1984.

      Carver A. Randle, Indianola,-James D. Minor, University, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
   BROOM, Presiding Justice,

for the Court:

Murder is the crime for which the defendant, Annie Lee Bell, was convicted in the Circuit Court of Humphreys County, Mississippi, and sentenced to life in custody of the Mississippi Department of Corrections, the Honorable Gray Evans, circuit judge, presiding. On' appeal she argues that the evidence was insufficient. She also contends that the trial court erred in its refusal to permit introduction of evidence of the deceased’s character; to permit testimony regarding the events which occurred the night before the murder; to apply the Weathersby rule; and in allowing the sheriff to testify after he heard testimony in the court room following invocation of the rule. Another contention is that she was given incomplete warnings of her rights. We affirm.

The evidence shows that in the morning of April 28, 1982, defendant, Annie Lee Bell, shot her boy friend, Henry Brown (referred to by her as “Sweet”), to death just outside her mobile home where they had been living together. She stated that in the episode preceding the killing Brown hit her, threatened her life, and chased her outside where she shot him at the bottom of the steps as he advanced toward her and was “... two or three hands reaching distance” of her. She shot him with her .25 automatic pistol which she removed from her purse, fired twice, missing him the first time and then hitting him in the right breast with the second shot which was fatal. She testified that after she shot Brown, he went back up the steps and fell in the doorway, where blood was found on the carpet underneath his body. No weapon was found on or near Brown’s body, and no contention is made that any such weapon was removed from about his person. Within a short time she was examined by a doctor who stated that she had some bruises and marks about her body, which resulted from trauma — he said the trauma could have been caused by a fall or her being struck.

Her version of self-defense was substantially contradicted by three Humphreys County law enforcement officials who stated that just after the shooting, defendant Bell told them that she fired the fatal shot from an adjacent lot at a time when her boy friend was at the bottom of the steps. Deputy sheriff Holloway measured about 19 steps (nearly 60 feet) from where she indicated she was situated and where Brown was situated when she shot Brown.

Bell also stated that the night before the fatal incident she and Brown had had a disagreement and she had put him out of the trailer, but that he had returned and persuaded her to let him spend the night upon his agreement to leave the next day. In her testimony it was her contention that previous altercations had occurred, and that he had previously threatened her on Tuesday before the killing on Wednesday, which she said was in self-defense.

First argument made is that the evidence was insufficient. She asserts that the record contains “no direct evidence or motive to indicate murder ...". This argument is without merit in view of the testimony of witness Hutchins. According to him, he was nearby when the shooting occurred and heard her call him “a Son of a Bitch or something, you know, said she would kill him and a couple of shots went off, you know.”

Then she argues that “the verdict was against the weight of the evidence”. Three of the law enforcement officials including sheriff Jones testified that shortly after the killing, defendant Bell told them that she shot from an adjacent lot, which the officers measured and found to be some 19 steps away from where Brown was situated. Deputy Holloway testified that his steps were approximately 3 feet. We find no merit as to the argument on the sufficiency of evidence.

Next argument (designated POINT III in “Brief of Appellant”) is that the trial court erred “in refusing to permit the character of the deceased for peace or violence to be made known to the jury.” In this connection it is to be noted that not even one witness was asked if he knew Brown’s reputation for peace or violence. No one was asked about his “character”. In actuality, no testimony was excluded as to Brown’s reputation for peace and violence. Examination of the assignment of errors reveals that reputation of Brown (victim of the murder) is not mentioned — his “character” is mentioned in this POINT III. In her “Brief of the Appellant” she discusses the “character or reputation” of Brown as if the two words are synonymous, although we all know that “character” means what a person in reality is, whereas “reputation” is what others think of the person. In her “Rebuttal Brief” defendant restates her POINT III using the words “character of the deceased” but makes no argument whatever under POINT III. Then under her POINT IV dealing with “res gestae” as to “events of the night before the homicide” she deals with “character of the deceased” in one sentence. Subsequently, near the bottom of the same page, she switches her argument from “character” to “reputation” though neither assignment of error deals with “reputation”. Not having made any assignment of error on “reputation”, she now should not be heard to make such an argument or rely on cases wherein “reputation” of the deceased was at issue. Our Rule 6 of the Supreme Court of Mississippi clearly says that an “error not distinctly assigned shall not be argued by counsel .... ” Of course, we may notice “plain error” in order to prevent a manifest miscarriage of justice.

Our perusal of the record, as pointed out by the state, shows that in her testimony she (before specific objection was made by the prosecution) extensively detailed in the jury’s presence the alleged (which the jury rejected) antecedent acts of violence between her and victim Brown. She told about how he had broken into her house on Tuesday evening about dark before the killing on the next day. She told about how on Monday he had beaten her up and she had told him to “get out of my house”.

She related how he left and came back and threatened to kill her, after which she ran out into the yard where he caught up with her, choked her, and beat her head against the ground. Further she described how then inside the house he threatened to kill her again, after which she agreed to let him spend the night there. It is true that the judge excluded testimony of the defendant’s sister which was offered “for the purpose of corroborating her testimony regarding the fact that she did call her sister that night and explained to her sister that she had been beaten and was crying on the phone.” Also complaint is made by defense counsel that he

... was attempting to show through my questioning of the Sheriff, or the Deputy, that he in fact knew of this man and knew of his having attacked this lady before — she had filed a complaint against him — and to show the history of his violent involvement with her. It was my understanding from reading the law that that was inadmissible [sic].

The foregoing statement of defense counsel hardly qualifies as a profert of testimony concerning Brown’s reputation for peace or violence, if it were intended as such. It is devoid of any statement as to how the sheriff or deputy knew the deceased Brown had attacked the defendant except “she had filed a complaint against him”. There is no statement as to where such attack occurred or whether any such attack was recent in time, long ago, or when. Defense counsel’s statement to the trial judge that counsel wanted through questioning the “Sheriff, or the Deputy, ... to show the history of his [Brown’s] violent involvement with her.”, does not qualify as an acceptable profert regarding Brown’s reputation. This is so because the trial court could not have committed reversible error by not, upon such a general profert, allowing either law officer to show “the history” of (not reputation of Brown) violence between Brown, the deceased, and defendant Bell.

Argument is asserted that “the present case should be controlled” by Jackson v. State, 426 So.2d 405 (Miss.1983). There Justice Bowling discussed records of Justice Court Judges regarding “convictions as a result of complaints made” by the defendant. The present ease is distinguishable because here no such convictions were offered or stated by counsel or the defendant to have occurred in any prior proceedings. Jackson stated the views of this Court that “much flexibility should have been given appellant in presenting prior harassments, threats and assaults directed toward her.” In the present case, the record contains page after page of testimony given by the defendant whereby she, in great detail, related to the jurors prior harassments, threats and assaults made against her by her boy friend “Sweet” Brown whom she admittedly shot.

Freeman v. State, 204 So.2d 842 (Miss.1967) is instructive on what is an adequate profert. There the witness was asked about the deceased’s “reputation for peace and violence”. District Attorney Finch objected and was sustained by Trial Judge, the Honorable Stanton Hall. Defense counsel Rex Jones then stated:

If the Court please, let the record show that if this last witness had been allowed to testify that I would have proved the general reputation of the deceased for peace and violence in the community in which he lived.
Our opinion states:
It will be noted that the jury was excluded at the conclusion of the prefatory questions, whereupon the witness was asked by his attorney “Did you know his reputation for peace and violence?” This, of course, does not refer to his general reputation in the community which we have many times held to be essential in determining a trait or characteristic of a person. The proffer made by the defendant, however, correctly states the rule, as the defendant’s attorney stated that if permitted by the court, he would prove the general reputation of the deceased for peace or violence in the community in which he lived. (Emphasis added).

204 So.2d at 847.

As set forth in the opinion authored by Patterson, J. (now Chief Justice), after trial judge Hall sustained the prosecution’s objection to the deficient question, then defense counsel caused “the record to show” that had the witness been allowed to testify, he would have “proved the general reputation of the deceased for peace and violence in the community in which he lived”. In the present case, after the court sustained the prosecution’s objection to the question at issue, no profert was made which comes close to Freeman’s requirements. Here counsel did not cause the record to specifically show what he intended to prove by “the sheriff or deputy”. He made no mention whatever of the phrase “peace and violence”, “in the community in which he lived”, and failed to mention either “character” or “reputation”. At most he mentioned that a witness “knew of this man and knew of his having attacked this lady” based upon her having “filed a complaint against him — and to show the history — ”. Accordingly, the present argument cannot rest upon “reputation” or “character” of deceased Brown. Since Freeman, in Kinney v. State, 336 So.2d 493 (Miss. 1976), and Martin v. Wadlington, 337 So.2d 706 (Miss.1976), we have held in accord with Freeman that counsel, when not permitted to present a witness’s testimony, must by some manner or means cause the record to show precisely what he intended to prove by the witness. According to 53 Am.Jur. Trial, § 102 (1945), the profert must be full and specific. Similar ruling was made in McGee v. State, 365 So.2d 302 (Miss.1978), authored by Roy Noble Lee, J., who noted “no proffer was made of the testimony nor was a statement dictated into the record to indicate what was proposed to be shown ... ”. Priest v. State, 275 So.2d 79 (Miss.1973), stated in the words of Walker, J. (now Presiding Justice):

If a trial judge refuses to allow a witness to take the stand, then counsel offering the witness must take the initiative and offer to dictate into the record a detailed statement of the relevant and material facts about which the witness would testify. If that offer is refused by the court, then counsel should see that the offer itself is recorded by the court reporter.

275 So.2d at 82.

The trial judge allowed the defendant to state that she had called her sister the night before, but excluded the details of what she told her sister.

We note the defendant’s testimony (to the jury) that the night before she killed Brown, after the alleged mistreatment of her by him, they slept in different rooms of her residence. She stated further that the next morning she awaked to receive her sister’s baby which defendant eared for during the day, but Brown was still asleep when she (defendant) waked up. Then she even went back to sleep. Their sleeping under such circumstances clearly negates any rational contention that throughout the night there was any continuous episode or on-going violent event by Brown. Other testimony was that during the hours preceding his death, the deceased Brown left the defendant’s residence (trailer) and visited next door.

If it be assumed arguendo that the lower court erred in restricting the testimony as stated above, the error, if any, is harmless because the defendant herself gave detailed testimony as to the substance of that alleged mistreatment of her by “Sweet” Brown. She extensively testified in great detail as to threats and beatings administered by her boy friend Brown prior to the actual killing. Her briefs fail to point out any testimony of prior acts of violence or harassment of her by Brown which the trial judge excluded. Upon this record, there is no reversible error in this regard. Dase v. State, 356 So.2d 1179, 1182 (Miss.1978). '

Next argument advanced is the refusal of the lower court to apply the rule of Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933). We find the Weathersby rule is inapplicable here because the testimony of the defendant given at trial was substantially contradicted by pre-trial statements she made to the investigative officers which the jury accepted as true. For instance, she told them that she shot Brown from an adjacent lot but at trial she testified that she shot him at close range: some “two or three hands reaching distance” away. (There were other inconsistencies in her testimony not necessary to be detailed here) Thus we find that the lower court was correct in not applying the Weathersby rule.

Another argument is that the trial •court erred in permitting the sheriff to testify in rebuttal after the rule of “sequestration of witnesses had been invoked”. In this jurisdiction the prevailing rule is that whether a witness, particularly a law officer, may testify after remaining in the courtroom following invocation of the rule, is within the sound discretion of the trial judge. Under a long line of cases previously decided by us, this argument does not warrant reversal. Ethridge v. State, 418 So.2d 798, 800 (Miss.1982). In good practice, a circuit judge may properly exclude an officer from sitting in the court room and hearing the testimony, and then testifying where his presence in the court room is not needed — if another officer is available to keep security etc. in the court room.

Last argument made is that Bell (page 18, her brief) “was given incomplete warnings of constitutional rights after her arrest”. She states that she “should have been informed that even though she had initially volunteered statements, she could cease talking with police at any time.” In the Interest of Wilder, 347 So.2d 520, 521 (Miss.1977), states our rule that “An individual has a right to stop the interrogation at any time he wishes, but it is not required that he must be so informed.” (Emphasis added).

Review of the record shows that the lower court liberally allowed the defendant to present her theory of self defense, including detailed prior acts of mistreatment which she alleged Brown committed against her. No reversible error is shown, and affirmance is required. She perhaps, as is usually the case, did not receive a perfect trial, but did receive a fair trial. The jury instructions presented clearly the defendant’s theory of self-defense and presumption of innocence.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and ROY NOBLE LEE and HAWKINS, JJ., concur.

DAN M. LEE, BOWLING, PRATHER and ROBERTSON, JJ., dissent.

DAN M. LEE, Justice,

. Just as no rational mind would condone killing as a means of settling disputes, a killing done in self-defense does not give rise to condemnation. Unfortunately the task of determining whether a killing is in self-defense is sometimes a difficult one. The jury must have the opportunity to hear all of the relevant facts before reaching their verdict. In this case, as in any case where the defense is presented almost exclusively through the defendant’s testimony, great latitude must be given to a corroborating witness. Because I believe that the defense was stifled in its efforts to corroborate Ms. Bell’s testimony, I respectfully dissent.

There is a tragic sadness when a loving relationship becomes a war which turns the home into a battlefield and the lovers into warriors and victims. Annie Lee Bell is not before this Court because of a sudden violent act committed in the heat of passion or because she coldly and calculatedly laid a trap for her victim. According to her story when she fired the shots that killed Henry “Sweet” Brown she ended a war between them. It therefore was essential to her defense that she be allowed to show the history of violence and abuse which the deceased had caused to be a part of her life. The majority argues that she was given an adequate opportunity to make this showing through her own testimony. The fallacy of that argument is that it assumes that the defendant’s testimony alone, without corroboration, is sufficient.

Although we make most gallant and noble efforts to see that a defendant is given the presumption of innocence and afforded a trial free from passion or prejudice, we must recognize that these efforts do not always succeed. In a trial of this nature a certain amount of passion on the part of the jurors is the inevitable consequence of confronting the killing of a human being. Also, we must realize that the testimony of the defendant in such a trial will generally be viewed with great suspicion. It is for these reasons that it is so important that we allow the defense an ample opportunity to put on corroborating testimony.

In the instant case Ms. Bell attempted to corroborate her story through the testimony of Officer Holloway and Josephine Bell. Through Officer Holloway she attempted to corroborate her story of repeated abuse and violence. The majority has written that this was an attempt to prove the deceased’s character. If this was so it was clearly admissible under Shinall v. State, 199 So.2d 251 (Miss.1967), which held that the character of an accused is admissible where it is doubtful as to who the aggressor was at the time of the homicide or where the immediate circumstances of the killing render it doubtful as to whether or not the act was justifiable.

There is a far better reason that the corroborating testimony of Officer Holloway and Josephine Bell should have been admitted. Not to prove the deceased's character, but to show Annie Lee Bell’s state of mind when she fired the fatal shot. Indeed, the testimony she attempted to elicit from her sister was that she had called the night before in a fearful voice and asked her sister to call the sheriff. She attempted to have Officer Holloway testify that she had previously filed a complaint against the deceased for physically abusing her. The history of brutal and violent behavior suffered by Ms. Bell is highly relevant to her claim that she feared for her life. In Lee v. State, 160 Miss. 618, 134 So. 185 (1931), we wrote:

We think also the condition of the appellant’s mind, at the time of the fatal shooting is important in the case at bar in determining whether the killing was malicious and willful, or with malice aforethought, or whether justifiable, and, if not, justifiable, was done under a mistaken belief, honestly entertained, as bearing on the question of possible manslaughter. If the previous conduct of the deceased was, as testified to by Lee, hostile, it would constitute a situation highly prevocative in its nature, and such conduct, on repetition, was calculated to highly exasperate and inflame the mind of an ordinarily reasonable man. It is well known that there is a marked difference between the effect of an act when accompanied by previous provocation and one not so accompanied. Men, at best, are fallible and frail beings, and, where there is a persistent effort to provoke a difficulty by one person against another, the mind reacts with violence, although it is the mind of an ordinarily prudent and reasonable man. (Emphasis added).

160 Miss, at 639, 640, 134 So. at 192.

More recently, in Jackson v. State, 426 So.2d 405 (Miss.1983), we held:

Under the undisputed evidence in this case, it is our opinion that much flexibility should have been given appellant in presenting prior harassments, threats and assaults directed toward her. Such evidence is material on the motives of both appellant and deceased in presenting the incidents that occurred in front of the store. The attitude, relationship and feelings of the accused and the deceased toward each other are material. Harley v. State, 345 So.2d 1048 (Miss.1977); Rucker v. State, 248 Miss. 65, 158 So.2d 39 (1963); Clark v. State, 123 Miss. 147, 85 So. 188 (1920); Brown v. State, 88 Miss. 166, 40 So. 737 (1906); Guice v. State, 60 Miss. 714 (1883); and Josephine v. State, 39 Miss. 613 (1861).

476 So.2d at 408.

For the reasons enumerated above, I would reverse and remand, therefore I respectfully dissent.

BOWLING, PRATHER and ROBERTSON, JJ., join in this dissent.

      . On page eight (8) of her Rebuttal Brief, she concedes that Brown was "unarmed".

      . See page 11, Appellant's Brief.

      . See page 12, Appellant’s Brief.

      . See page 6, her Rebuttal Brief.

      . See pages 12-13, Appellant’s Brief.

      .Nowhere in her assignments of error or in her briefs does she specifically argue that her sister’s testimony was erroneously excluded. Nowhere in either of her briefs does she even say what her sister would have testified to. In this connection her sister, Josephine Bell, did in fact take the stand and testify that the defendant called her on the night in question crying and asking her to call the sheriff. Josephine stated she called the sheriff. See page 222 of the record.

      . See page 96 of the record; page 11 of her brief.

      . See pages 125-130 of the record.

      . See pages 21-23 of Appellee’s Brief.


text:
    Excell OWENS a/k/a “Toe” v. STATE of Mississippi.
    No. 54654.
    Supreme Court of Mississippi.
    Dec. 14, 1983.
    Carol L. Henderson, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before BROOM, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   Appeal from Circuit Court, Harrison County; Kosta N. Vlahos, Judge.

AFFIRMED.