author: NORRIS, Judge SEXTON, Judge,

text:
    Betty Ann JACKS, Plaintiff-Appellant, v. ALLSTATE INSURANCE CO., et al., Defendants-Appellants.
    No. 16645-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.
    Writ Denied April 1, 1985.

      Brown, Williams & Tucker by J. Waddy Tucker, Shreveport, for plaintiff-appellant, Betty Ann Jacks.
    Nelson & Achee Ltd. by Roland J. Achee, Shreveport, for defendant-appellant, Allstate Ins. Co.
    Rountree & Hicks by Gordon E. Roun-tree, Shreveport, for defendant-appellee Sec. Nat. Ins. and Leman L. Williams.
    Bodenheimer, Jones, Klotz & Simmons by James P. Bodenheimer and G.M. Boden-heimer, Shreveport, for defendant-appel-lees, David Thompson and United Services Auto. Ass’n.
    Before HALL, FRED W. JONES, Jr., SEXTON, NORRIS and PRICE, JJ.
   NORRIS, Judge

This is an appeal by the plaintiff in a personal injury case. After a three-day judge trial, she was awarded $35,000 for her pain, suffering and permanent partial disability, $3,106 for loss of earnings, and other sums for her medical expenses. She contends on appeal that these sums are inadequate, but her chief argument is that the trial court erred in failing to find any negligence on the part of one of the defendants, David Thompson. Her appeal is directed only to Thompson and his insurer and, although she advances three separate arguments, the appellees have seriously argued only the negligence issue. For the reasons expressed, we reverse the lower court ruling on Thompson’s negligence, amend the judgment to include Thompson and his insurer, amend and correct the lost earnings award, and otherwise affirm.

The accident.

The accident occurred shortly after midnight on May 19, 1982. Plaintiff, Betty Ann Jacks, is a woman in her forties and the mother of two teenaged girls. She spent the evening of May 18 at the Red Coach Lounge in Shreveport. She had been invited there by her friend, Jo Anne Turley, who was the bartender. During the course of the evening, from about 6:30 til she left, around 11:30, plaintiff drank two, or “possibly” three mixed drinks from the bar, and ate a sandwich. Plaintiff did not have a car that evening and she had “tentatively” arranged for Ms. Turley to drive her home after closing time.

At about 11:30, however, plaintiff decided she “needed” to leave earlier. She got a ride with defendant Charles Slough. Slough was a regular patron at the Red Coach and a friend of Ms. Turley’s, but only an acquaintance to plaintiff. Slough had come to the bar earlier in the evening, left, and returned between 10:30 and 11:00. He testified that during his first stop at the bar, he had one beer; that when he left, he went home and had another beer, which he finished in his car on the return drive to the bar; and that back at the bar, he had one more beer, for a total of three that evening. This testimony was perhaps impeached on cross examination by introduction of a prior statement to an insurance adjuster in which he seemed to say he might have drunk more. Mr. Slough denied this inference and said that he had lately quit drinking altogether. Nevertheless he and plaintiff left the bar shortly before midnight. Slough was driving his 1978 Ford LTD and plaintiff, in the front passenger seat, had to tell him the best route to her apartment.

Meanwhile, defendant Leman Williams had got off work from Sansone’s Restaurant, where he was head chef. He was due at the Western Electric plant commissary at 6:00 a.m., where he held a second job. On his way home that evening, he stopped at the self-serve Gulf station at the corner of Youree and Southfield Drive. His car was a dark green 1973 Ford Torino. He pumped gas, paid, and returned to his car, only to find it would not start. He assumed the battery was dead.

At about the same time, defendant David Thompson had pulled into the Gulf station in his pickup truck. He was seventeen years old at the time, had just got off work from a fast-food restaurant, and was wearing brown pants and a black tee shirt. He did not know Williams, but when Williams asked him for a start, he got some jumper cables from the truck and linked them from Williams’s battery to his. This was unsuccessful, so Thompson suggested a push start. Williams agreed and positioned himself by the open driver’s door, with one hand on the steering wheel and the other on the car frame. Thompson assumed the heavy task of pushing the Torino directly from behind. In this manner they pushed the car off the Gulf lot and onto Southfield. Williams alone steered the car; Thompson merely pushed.

Once on Southfield, both Williams and Thompson noticed their signal at the intersection of Youree was green. Instead of taking the car straight through the intersection, Williams decided to make a right turn onto Youree. He hopped into the driver’s seat to negotiate the turn; Thompson continued pushing and was by then providing the car’s only motive force. He pushed a very short distance on Youree when his legs began to cramp. Thompson stopped pushing and jogged up alongside Williams’s door to ask him why he had not engaged the ignition. At approximately that instant, Williams was rammed from behind by Slough’s car, causing the plaintiff’s injuries.

There were some minor inconsistencies in the testimony about the accident. Both Williams and Thompson are sure their light was green when they made the right turn, but Slough is also sure the light was green for him when he went through the intersection only a few seconds later. Slough does seem to remember the light changing to green, but he is not sure when or where he noticed this. Similarly, Mr. Slough remembered neither the landmarks along Youree Drive nor the conversation with plaintiff during the drive. Williams admits he saw Slough’s car coming, but only after he had already turned onto Youree; Thompson claims he did not see Slough’s car until the impact occurred; and Slough says he did not see Williams’s car turning onto Youree, although he did see the car when it was too late to stop. Williams claimed he did not hear Slough’s brakes squeal, but there were skid marks fifty-three feet long, and Thompson heard the squeal. Finally, when Thompson quit pushing, Williams says he applied his brakes, even though he saw Slough in the rear-view mirror, speeding toward him; and Slough insists he never saw any brake lights on Williams’s Torino.

Most of the evidence, however, is not disputed. Williams’s car was dark green and he had not turned on its lights or hazards. Thompson was wearing dark clothes. All witnesses agreed the area was exceptionally well lit, the pavement dry, the visibility good. Neither Williams nor Thompson made any attempt to alert southbound cars to the potentially dangerous stalled vehicle, but by all accounts the amount of traffic out at that hour is minimal. The time of impact was only seconds after Williams’s turn. Slough’s car skidded fifty-three feet to the place of impact and stopped cold when it hit the Torino; Williams glided 219 feet before he was able to climb back into his seat and apply the brakes.

Because he was standing to the side, Thompson was not injured, though he was emotionally rattled. Williams and Slough both sustained personal injuries which were fortunately not serious; both cars were damaged, and Williams’s car was to-talled. The trial court apportioned fault twenty percent to Slough, eighty percent to Williams, and none to Thompson.

The injury.

The real victim was plaintiff. The collision caught her completely unawares, as she was looking down at the time, trying to tend to a cigarette; she had no way to brace herself for the jolt as did Williams. She was thrown forward very suddenly and broke her right humerus or arm bone close to the shoulder. She suffered immediate pain and could not move the arm. An ambulance came to the scene but she refused to get out of the car. When she finally got out, she walked to the Citgo gas station on the southwest corner of Youree and Southfield and called Ms. Turley, who drove her to Schumpert Hospital. There plaintiff was examined, X-rayed, and anesthetized for surgery to set her broken arm. The doctors placed her arm in an immovable sling which was very uncomfortable. She could not use her right arm or hand and had trouble sleeping. She remained in the hospital for four days. Then on June 5 she had to return to the hospital for another surgery. It seems the bone was setting improperly, so the area had to be reopened, the fracture broken, the bone reset. This operation was painful, although it was performed under anesthesia.

Recovery was also painful. Plaintiff was instructed to perform “exercises” to the extent pain would allow. She made numerous trips to her physician, Dr. Etheridge, who noted varying degrees of recovery. Dr. Etheridge discharged her on October 12, 1982. Plaintiff had also complained of some neck problems since then, but Dr. Etheridge was of the opinion that her present neck pains were in no way related to the accident.

Dr. Etheridge estimated that plaintiff suffered a residual loss of 25% of shoulder mobility and 20% of total shoulder functions. She has a 1⅝ inch scar on her shoulder. She testified that she has difficulty doing certain things, such as working a calculator, zipping a zipper, or brushing her hair. She admitted, however, that these incapacities were a combination of physical inability and pain, and that Tylenol would relieve the pain. She also admitted she is able to do her daily chores with some “help.”

Issues.

This accident spawned two lawsuits and several incidental actions, with pleadings that add up to 120 pages. Before trial, Slough and his liability insurer, Allstate, settled the liability claim for $10,000 with Jacks only. Allstate remained in the suit, however, as a defendant with respect to its underinsured motorist coverage on Slough’s vehicle. Allstate also remained in the suit as a plaintiff to recover its medical payments to Jacks and property damage to Slough. Thus it joined in the appeal. There are, however, only three issues for review on appeal:

(1) Whether the trial court erred when it found David Thompson free of negligence or fault;
(2) Whether the trial court abused its discretion in awarding plaintiff only $35,-000 general damages; and
(3) Whether the trial court abused its discretion in the award of lost earnings.

ARGUMENT NO. 1

In this argument plaintiff contends the trial court erred in failing to find David Thompson solidarily liable with Leman Williams for the latter’s share of the damages. She contends, in essence, that the trial court committed manifest error in absolving Thompson of fault for his participation in the transaction. If Thompson is negligent, then he will be solidarily liable with Williams under LSA-C.C. Art. 2324, which provides:

He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.
Persons whose concurring fault has caused injury, death or loss to another are also answerable, in solido; provided, however, when the amount of recovery has been reduced in accordance with the preceding article, a judgment debtor shall not be liable for more than the degree of his fault to a judgment creditor to whom a greater degree of negligence has been attributed, reserving to all parties their respective rights of indemnity and contribution.

There is no real question of Williams’s fault. His conduct breached a duty to protect against an unreasonable risk of foreseeable harm. Powers v. Nat’l Indent. Co., 350 So.2d 943 (La.App. 2d Cir.1977); Fairbanks v. Travelers Ins. Co., 232 So.2d 323 (La.App. 2d Cir.1970), writ denied 255 La. 1097, 234 So.2d 194 (1970); Traders & Gen’l Ins. Co. v. Robison, 289 So.2d 178 (La.App. 1st Cir.1973). He violated a regulation, La. DOTD Office of Highways Orders 1978, No. 44, and in so doing he created a risk that extended to plaintiff.

As for Thompson’s fault, however, we cannot agree with the trial court’s determination that he was free of fault. We are, of course, reluctant to disturb the trial court’s factual findings and will do so only when they are clearly erroneous. Arcen-eaux v. Domingue, 365 So.2d 1330 (La. 1978). Under the circumstances of this case, we conclude the trial court was clearly wrong in finding Thompson free of fault. Rather, his conduct fell below the minimum standards established by law for the protection of others against unreasonable risk or harm. LSA-C.C. Arts. 2315 and 2316 provide:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it....
Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.

Criteria for determining whether the legal duty exists under given circumstances were outlined in Straley v. Calongne Drayage & Storage, Inc., 346 So.2d 171 (La.1977):

... Whether a legal duty is owed by one party to another depends on the facts and circumstances of the case and the relationship of the parties. In all cases, duty can be stated generally as the obligation to conform to the standard of conduct of a reasonable man under like circumstances...
(346 So.2d at 176)
[Citations omitted.]

See also Seals v. Morris, 410 So.2d 715 (La.1981); Craft v. Caldwell Parish Police Jury, 455 So.2d 1226 (La.App. 2d Cir.1984).

In the present case, we find Thompson was more than a simple motive force for Williams. He suggested a push of an unlighted, disabled vehicle from a place of safety. R.p. 273. He did not notice that Williams’s car was unlighted. R.p. 304. Regardless of the abundance of street lighting or the sparseness of traffic, it was not reasonable for Thompson to think he could safely propel Williams’s car down a major thoroughfare or highway. Nor is Thompson’s negligence mitigated by Williams’s unilateral decision to make the right turn onto Youree. It was negligent for Thompson to start pushing without first ascertaining the direction or plan for starting the car. Had Thompson merely asked, a moment’s consideration might have shown them the improvidence of their scheme, and some other, safer, measures might have been taken.

The case of McGrath v. Industrial Piping Co., 340 So.2d 1037 (La.App. 1st Cir. 1976), cited by Thompson and his insurer in brief, is clearly distinguishable from the present situation. In McGrath, Mr. McGrath’s car had become disabled on the highway and he called his wife for a push start. She arrived and proceeded to push him with her own car. Although the reported decision does not relate the time of day, it does say Mrs. McGrath was running her hazard lights. Plaintiffs stopped momentarily when defendant’s employee struck them from behind. The court refused to find plaintiffs contributorily negligent, holding, “there is nothing negligent per se in pushing one vehicle with another on a highway.” 340 So.2d at 1038. The instant case is distinguishable for the obvious reason that neither Thompson nor Williams took the precautions that Mrs. McGrath took, in running her hazards. We also consider it significant that Williams’s vehicle, unlike the McGraths’, did not become disabled on the highway. Thus there was no real emergency. Furthermore, it was in a place of safety before they began pushing. Cf. Rowe v. Travelers Ins. Co., 253 La. 659, 219 So.2d 486 (1969).

Since the trial court’s holding on this point is clearly wrong, we find David Thompson was guilty of personal fault. We accordingly will amend the judgment to cast Thompson with Williams solidarily for eighty percent of the damages.

There remains the further question of apportioning fault between Williams and Thompson. See LSA-C.C. art. 2103. This determination does not affect plaintiff’s right of full enforcement against either solidary debtor. LSA-C.C. arts. 2324, 2088. Rather, it regulates the potential contribution between the debtors themselves after one has paid the entire debt. This is an integral part of the system of comparative negligence. See Wade, Comparative Negligence—Its Development in the United States and Its Present Status in Louisiana, 40 La.L.Rev. 299, 310 (1980).

We conclude that Leman Williams was more at fault in this case than David Thompson because Williams made the decision to turn onto the main traffic artery, failed to turn on his lights and failed to attempt to steer his disabled car off the road when he saw Slough’s vehicle approaching. Thompson’s negligence is limited to pushing the car from a place of safety and failing to warn other motorists of the danger. We therefore set Williams’s fault at 60% and Thompson’s at 20%. The judgment will be amended accordingly.

ARGUMENT NO. 2

In this argument plaintiff contends the trial court abused its discretion in awarding only $35,000 damages. Plaintiff has suggested that an award of $65,000 would be more appropriate, citing one case, Locicero v. State Farm Mut. Ins. Co., 399 So.2d 712 (La.App. 1st Cir.1981).

Our guidelines for approaching such an argument are laid out in Reck v. Stevens, 373 So.2d 498, 501 (La.1979):

Thus, the initial inquiry must always be directed at whether the trier [sic] court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s “much discretion”, La. Civ. C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reasons, be considered either excessive, ... or insufficient ... Only after such determination of abuse has been reached, is a resort to prior awards appropriate ... for purposes of then determining what would be an appropriate award for the present case.
In the initial determination of exces-siveness or insufficiency, an examination of prior awards has a limited function—if indeed the facts and circumstances of the prior awards are closely similar to the present. The prior awards may serve as an aid in the determination only where, on an articulated basis, the present award is shown to be greatly disproportionate to past awards (not selected past awards, but the mass of them) for (truly) “similar” injuries ...

[Citations omitted.]

See also Coco v. Winston Industries Inc., 341 So.2d 332 (La.1976).

Our initial duty is to consider whether this plaintiff’s injuries are worth so much more than the sum awarded as to amount to abuse of discretion. Plaintiff testified that before the accident, she had no pain. Upon impact, she experienced sudden pain and was unable to move her arm although she turned down an ambulance ride to the hospital. Plaintiff had a broken humerus that required immediate attention. After the first surgery plaintiffs arm was fixed in a sling that made movement impossible. About two weeks later, she underwent another surgery to reset the bone which, according to Dr. Eth-eridge, was “not in optimum position.” During surgery, plaintiff was under anesthesia and was taking morphine-like drugs; she stayed in the hospital until June 12. By June 28, when Dr. Etheridge next saw her, he could report she was “doing better” and prescribed mild exercise for her arm. The exercises were to be performed “as tolerable,” or as pain allowed. By July 15, plaintiff was progressing well, exercising vigorously, and suffering “mild discomfort.” By August 10, he pronounced plaintiff doing “very well.” He released her on October 12, 1982.

Plaintiff returned to Dr. Etheridge later with neck pain she attributed to the accident. Dr. Etheridge testified that the neck problems were in no way related to the accident, and when plaintiff took the stand, she did not mention her neck.

Plaintiff complained that her lack of mobility during recovery interfered with her daily chores, dressing and coiffure. We will not minimize the inconvenience and frustration that must have attended this recovery. We do note, however, that plaintiffs daughters and sister were with her almost constantly; as a result, plaintiff does not complain that her personal needs ever went unanswered, or that she ever despaired.

The fact of disability is not disputed. According to Dr. Etheridge, plaintiff sustained a residual loss of 25% of shoulder mobility and 20% of total shoulder function. She cannot button, hook or zip garments from the back, although she admitted this incapacity was partly due to pain, not disability. She is able to work a calculator although her arm tires easily. At the time of the trial, she had a job working for an insurance agency. She also claims she can brush her hair only with difficulty. We accept this but also note that one of plaintiff’s daughters is a licensed beautician, and perhaps her skill and companionship have lessened plaintiffs incentive to do her own hair.

On her right shoulder plaintiff has a large scar which necessitated the purchase of some new clothes. The trial judge failed to mention the scar in his written opinion, but we feel it is subsumed in the general award for permanent disability.

Under the circumstances, we can find no abuse of discretion on the trial court’s part. An award of $35,000 for injuries such as plaintiff sustained is not unreasonably low and is certainly not less than the lowest possible award. Coco v. Winston Industries, Inc., supra. We therefore affirm the trial court’s award.

ARGUMENT NO. 3

Finally, plaintiff contends the trial court miscalculated her loss of earnings. The testimony about her earnings was confusing but the salient details are clear.

On the date of the accident, May 19, plaintiff was unemployed. She had been terminated from her bookkeeping job at C & G Honda about six weeks earlier and was drawing unemployment of $139 a week. She was also job-hunting and had previously interviewed with a Mr. Cryer from Royale Airlines for an account-clerk supervisor position paying around $18,000 a year. In mid-June, Mr. Cryer telephoned her to offer the job. He testified that the job was hers for the taking, but that due to her injury, she did not accept it. Within two weeks, Mr. Cryer hired someone else.

The trial court found plaintiff proved her disqualification from unemployment benefits from May 19 until mid-June, or four weeks. There was some dispute at trial about a Department of Labor printout that allegedly reported plaintiff to have exhausted all available comp two weeks before the accident. No one proved, on the record, that this was the case; instead, the trial judge deferred ruling on that point and apparently decided plaintiff would have drawn comp until mid-June. We will not disturb this conclusion.

The trial court also found plaintiff had proved loss of earnings from the missed opportunity with Royale Airlines. These he awarded her for the period between mid-June until August 8, the date she filed suit. On appeal, plaintiff claims she suffered those lost wages until October 10, when Dr. Etheridge finally discharged her. Plaintiffs petition demanded only “Past lost wages,” and the trial court interpreted “past” to mean until date of filing. We disagree. Although LSA-C.C.P. Art. 861 requires that items of special damage be specifically alleged, we can find no persuasive authority for confining past lost wages to those accrued before filing. We feel she is entitled to past lost earnings from the date of the accident until the date of trial. These damages were conclusively proved. See Johns v. Hunt Lumber Co., 250 So.2d 543 (La.App. 2d Cir.1971); Jones v. Hall, 419 So.2d 523 (La.App. 2d Cir. 1982); Young v. South Central Bell Tel. Co., 412 So.2d 147 (La.App. 4th Cir.1982). Plaintiff did pray for “all general and equitable relief in the premises.” Her petition adequately informed defendants that she was seeking lost wages. We therefore amend plaintiff’s judgment to include lost wages from mid-June until October 10, or four months. Cf. Brodhead v. Aetna Cas. & Sur. Co., 233 So.2d 619 (La.App. 3d Cir.1970).

Furthermore, we find a number of arithmetical errors on the part of the trial court. Although plaintiff did not complain of them, we notice them on our own motion and amend the judgment accordingly.

When items of special damage are claimed, they shall be specifically alleged.

First, the trial court calculated plaintiffs lost earnings on a basis of $1,700 a month. According to Mr. Cryer, the job paid between $17,500 and $18,500 a year, which divides into only $1,500 a month. Since this amount can be calculated with accuracy, it does not fall within the trial court’s much discretion. Young v. South Central Bell Tel. Co., supra. Four months at $1,500 makes $6,000, instead of the $2,550 assigned by the trial court. Thus we figure the plaintiff’s losses as follows:

(1) Pain, suffering, and perma-
nent partial disability $35,000.00
(2) Medical expenses (stipulated) 5,370.92
(3) Lost unemployment benefits
(4 weeks at $139) 556.00
(4) Lost wages (4 months at
$1,500) 6,000.00
TOTAL $46,926.92

The total must be reduced to eighty percent to allow for Slough’s share of the fault, leaving a difference of $37,541.54. Garrett v. Safeco Ins. Co., 433 So.2d 209 (La.App. 2d Cir.1983).

We therefore reverse the lower court’s ruling that Thompson was not negligent, amend the lower court judgment to include Thompson and his insurer, and to correct the lost earnings award and arithmetical errors. The pertinent portions of the judgment are amended, in accordance with this opinion, to read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, BETTY ANN JACKS, and against the defendants, LE-MAN L. WILLIAMS, DAVID W. THOMPSON, and UNITED SERVICES AUTOMOBILE ASSOCIATION, in soli-do, in the principal amount of Thirty-seven Thousand Five Hundred forty-one dollars and 54/100 ($37,541.54) Dollars with twelve percent per annum interest thereon from August 3, 1982 until paid.
* * * * * *
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, BETTY ANN JACKS, and against the defendant, ALLSTATE INSURANCE COMPANY, in the principal amount of Ten Thousand and 00/100 ($10,000.00) Dollars with twelve percent per annum interest thereon from August 3, 1982, until paid. In the event that Allstate Insurance Company pays any sums under this judgment to the plaintiff, BETTY ANN JACKS, it shall be entitled to judgment rendered herein in its favor against the defendants, LEMAN L. WILLIAMS, DAVID W. THOMPSON, AND UNITED SERVICES AUTOMOBILE ASSOCIATION, to the extent of any such payment made by ALLSTATE INSURANCE COMPANY by virtue of judgment rendered in this paragraph.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of ALLSTATE INSURANCE COMPANY and against defendants, LEMAN L. WILLIAMS, DAVID W. THOMPSON and UNITED SERVICES AUTOMOBILE ASSOCIATION, in solido, in the principal amount of Sixteen Hundred and 00/100 ($1,600.00) Dollars with twelve percent per annum interest thereon from May 17, 1983, until paid.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of ALLSTATE INSURANCE COMPANY and against defendants, LEMAN L. WILLIAMS, DAVID W. THOMPSON and UNITED SERVICES AUTOMOBILE ASSOCIATION, in solido, in the principal amount of One Thousand One Hundred seventy-four and 33/100 ($1,174.33) Dollars with twelve percent per annum interest thereon from August 25,1983, until paid.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the plaintiff, BETTY ANN JACKS, pay the first One Hundred Fifty and 00/100 ($150.00) Dollars of the costs incurred in the trial court; the balance is to be paid, eighty percent by LEMAN L. WILLIAMS, AMERICAN SOUTHERN INSURANCE COMPANY, DAVID W. THOMPSON, and UNITED SERVICES AUTOMOBILE ASSOCIATION, in soli-do; and twenty percent by ALLSTATE INSURANCE COMPANY.

In all other respects, the judgment appealed from is affirmed. Costs of this appeal are assessed one half to appellant Allstate Insurance Company and one half to appellees David W. Thompson and United Services Automobile Association.

REVERSED IN PART; AMENDED IN PART; AFFIRMED IN PART AND RENDERED.

SEXTON, J., dissents in part and assigns written reasons.

SEXTON, Judge,

dissenting in part.

I respectfully dissent in part.

I agree with the views expressed in this opinion with the exception of the finding that the trial court was manifestly erroneous in failing to find negligence on the part of the defendant David Thompson. From my review of the record, I consider this to be a close factual issue, and I am not prepared to say that the trial judge was manifestly in error.

Particularly, I believe that the record is inconclusive as to who conceived the idea to push the vehicle. Moreover, I do not believe that Thompson can be held responsible for a) the failure of Williams to illuminate the vehicle, b) the decision of Williams to turn right rather than to continue through the intersection on the green light, or c) the failure of Williams to observe the Slough vehicle prior to making the turn and clear the roadway.

In other words, it can be said that this record shows that all Thompson did was to help push a disabled vehicle down a vacant, well lit four lane street toward a green light at the apparent request of the owner. This conduct does not amount to negligence.

      . Allstate Insurance Co. also joined in the appeal with respect to plaintiffs argument No. 1.

      . Plaintiff claims the amount awarded was $3,556. Medical expenses were stipulated at $5,370.92. Before trial, plaintiff received $10,-000 under Slough’s liability policy (Allstate) and $2,000 from Slough’s Med-Pay (Allstate).

      . The printout shows the Department resumed benefits in mid-August. This action was probably taken on the strength of a "work release” plaintiff claims to have received from Dr. Ether-idge on July 28. R.p. 366. Dr. Etheridge had no record of issuing such a document, nor was it brought into evidence. We feel it has little or no probative value.

      . LSA-C.C.P. Art. 861 provides:

      .LSA-C.C.P. Art. 2164 provides in part:
      The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.
      LSA-C.C.P. Art. 1841 provides in part:
      A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled.
      See also Guin v. Guin, 378 So.2d 1022 (La. App. 2d Cir. 1979); Cox v. W.M. Heroman, 298 So.2d 848 (La.1974).


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Clen ROLLINS, Appellant.
    No. 16657-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.

      Richard V. Burnes, Alexandria, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, L.B. Loftin, Dist. Atty., Rayville, E. Rudolph McIntyre, Jr., Asst. Dist. Atty., Winnsboro, for appellee.
    Before HALL, MARVIN and SEXTON, JJ.
   HALL, Judge.

The defendant, Cien Rollins, appeals his conviction of simple criminal damage to property, LSA-R.S. 14:56. The defendant was originally charged with two counts of simple criminal damage to property. However, in a bench trial, the court found the defendant guilty only on one count. The court sentenced the defendant to two years at hard labor under the supervision of the Department of Corrections. The court suspended the sentence and place the defendant on active supervised probation for a period of two years upon the special condition of probation that the defendant make restitution in the amount of $1,350 within 90 days. Finding no error by the trial court, we affirm.

The defendant, a member of the Franklin Parish School Board, was charged by bill of information with two counts of simple criminal damage to trees belonging to the Franklin Parish School Board with the damage amounting to more than $500. The state contended that on October 23 and 29,1982, the defendant willfully and unlawfully cut and removed trees on land owned and designated by the school board as “Nature’s Acres.” The trial court found that there was insufficient evidence to find the defendant guilty of cutting and removing the trees on October 23, count one of the bill of information. However, the court did find that there was sufficient evidence to find the defendant guilty of cutting and removing the trees on October 23, count one of the bill of information. However, the court did find that there was sufficient evidence to find the defendant guilty of cutting and removing the trees on October 29, count two of the bill of information.

On October 29,1982, Charles Cureington, a Franklin Parish deputy sheriff, investigated a complaint received by the sheriff’s office that someone was cutting trees on “Nature’s Acres.” Deputy Cureington testified that he went out to Nature’s Acres at approximately 4:30 in the afternoon and saw four or five people and the defendant standing in the woods. Deputy Cureington testified that the defendant came out of the woods to where he had stopped his patrol car. Deputy Cureington advised the defendant that he had received a complaint that someone was cutting trees and was sent out there to advise them to stop cutting the trees. The defendant told Deputy Cureington that the timber did not belong to the school board, that it belonged to the citizens of Franklin Parish. After the conversation, Deputy Cureington left the scene.

Deputy Cureington testified that he did not hear any chain saws, see any fallen trees, or notice any type of shavings or sawdust on the clothing of the defendant.

At approximately 5:30 to 5:45 p.m. on the same afternoon, Don McDuffie, another Franklin Parish deputy sheriff, saw a four-wheel drive truck, which he knew to be the defendant’s, approximately 200 yards from “Nature’s Acres.” Deputy McDuffie testified that as he was passing the defendant’s vehicle, the man who he saw inside appeared to be the defendant although he could not give an absolute positive identification. Deputy McDuffie testified that the bed of the defendant’s pickup truck was loaded with freshly cut timber.

On November 4, 1982, the Franklin Parish School Board met in executive session. As a member of the school board, the defendant attended. Several members of the school board testified at trial that the defendant denied cutting all the trees which had been removed from “Nature’s Acres.” The defendant indicated to the school board that he had not removed any more than five or six trees from “Nature’s Acres.”

Finding the defendant guilty on count two of the bill of information, the court found the value of the trees removed by the defendant to be $1,350. On appeal, the defendant filed the following assignments of error:

“The defendant, Cien Rollins, pursuant to Article 841 and 844 of the Louisiana Code of Criminal Procedure assigns as errors the rulings and actions taken by the Honorable Sonny Stephens, Judge of the Fifth Judicial District Court in the following:
“1.
“In overruling the motion to suppress evidence.
“2.
“In ruling that Paul R. Orr, is an expert witness #and entitled to give expert testimony.
“3.
“In finding the defendant guilty of count two when there is a lack of sufficient evidence to establish each of the elements of the offense.
“4.
In relying on the uncorroborated purported statement of the defendant to establish the corpus delicti.”

Assignment of Error No. 1:

By this assignment, the defendant contends that the trial court erred in denying motions to suppress statements allegedly made by the defendant to the Franklin Parish School Board in connection with the instant offense. Specifically, the defendant contends that his statements to the school board are inadmissible due to the failure of the school board to advise him of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The record reflects that on November 4, 1982, the Franklin Parish School Board met in executive session to discuss the problem of persons cutting trees on property owned by the Franklin Parish School Board, specifically, “Nature’s Acres.” The defendant, as a board member, attended the meeting with the other board members. Additionally, the superintendent of the Franklin Parish School System and the district attorney for the Fifth Judicial District attended the meeting. During the meeting, the defendant was asked by a board member how many trees he had cut on “Nature’s Acres.” The school board members testified that the defendant responded that “it couldn’t have been more than five or six.”

The defendant contends that the school board meeting constituted the legal equivalency of a custodial interrogation, requiring that he be advised of his constitutional rights. The defendant contends that since he was not advised of these rights, the state failed to show that the defendant made a knowing and intelligent waiver of his Fifth and Sixth Amendment rights.

In order to introduce a defendant’s statement, the state must make an affirmative showing that it was made freely and voluntarily, and not influenced by fear, intimidation, threats, inducements, or promises. State v. West, 408 So.2d 1302 (La.1982); State v. Dunn, 454 So.2d 1229 (La.App.2d Cir.1984). If the statement was made in the course of custodial interrogation, the defendant must be advised of his Miranda rights before making the statement. Miranda v. Arizona, supra. If the interrogation and subsequent confession are in a noncustodial situation, the only showing which the state must make is whether the confession is free and voluntary, as the Miranda warnings apply only to custodial interrogations. State v. Hat-horn, 395 So.2d 783 (La.1981); State v. Pittman, 368 So.2d 705 (La.1979).

By “custodial interrogation”, the Miranda court meant “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706.

In the instant case, it is apparent that the defendant was not subject to a “custodial interrogation.” Specifically, the questioning was not initiated by law enforcement officers; rather the questioning occurred in a school board meeting which the defendant voluntarily attended as a school board member. While the district attorney did attend that meeting, the record does not reflect that the district attorney at any time questioned the defendant. The record is void of any facts which indicate that the defendant was deprived of his freedom of action. Therefore, finding that the defendant was not entitled to Miranda warnings, the state must only have shown that the statement was free and voluntary.

There is nothing in the record to indicate that the defendant was compelled to attend the school board meeting. The members of the school board questioning the defendant had no authority to compel any statements by the defendant. The record clearly reflects that the statement made by the defendant was made in response to questions by school board members. The record reflects that the statement was not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises.

Therefore, the trial court correctly denied defendant’s motion to suppress. This assignment of error is without merit. Assignment of Error No. 2:

By this assignment the defendant contends that Paul Orr, an urban forester for the Louisiana Department of Natural Resources, was not qualified as an expert witness and entitled to give expert testimony. However, the defendant has not argued this assignment of error in brief. Assignments of error made but not argued nor briefed are considered to be abandoned. State v. Domingue, 298 So.2d 723 (La. 1974); State v. Williams, 338 So.2d 672 (La.1976).

Assignment of Error No. 3:

By this assignment, the defendant contends that the trial court erred in finding the defendant guilty of count two because there was a lack of sufficient evidence to establish each of the elements of the offense.

The record reflects that on October 29, 1982, the Franklin Parish Sheriffs Department received a call that someone was cutting trees on Nature’s Acres. A deputy responding to the call, saw and spoke with the defendant at Nature’s Acres at approximately 4:30 in the afternoon concerning the call. Approximately one hour later, the defendant was seen by another deputy, parked on the highway 200 yards from Nature’s Acres. The deputy testified that the defendant’s truck was loaded with freshly-cut timber. School board officials inspected Nature’s Acres soon thereafter and found freshly-cut tree stumps. Additionally, several days later, the defendant at a school board meeting, admitted cutting five or six trees.

In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under that standard, the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proven beyond a reasonable doubt. State v. Johnson, 453 So.2d 279 (La.App. 2d Cir.1984).

As defined by LSA-R.S. 14:56, simple criminal damage to property is the intentional damaging of any property of another, without the consent of the owner, and except as provided in LSA-R.S. 14:55, by any means other than fire or explosion. Where the damage amounts to five hundred dollars but less than fifty thousand dollars, the offender shall be fined not more than one thousand dollars, or imprisoned, with or without hard labor, for not more than two years, or both.

The defendant contends that the state failed to prove that the trees belonged to the Franklin Parish School Board. Additionally, the defendant contends that the trial court erred in taking judicial notice that the land belonged to the school board.

Royce Bryan, Superintendent of the Franklin Parish Schools, testified at trial that “Nature’s Acres” was owned by the Franklin Parish School Board. Additionally, Bryan testified that to his knowledge neither he nor anyone else on the board gave the defendant permission to cut trees on Nature’s Acres. J.W. Dean, Franklin Parish Tax Assessor, testified that the “Nature’s Acres” property was owned by the Franklin Parish School Board.

During trial, the state asked the court to take judicial notice of a 1785 congressional land ordinance, passed by the United State Congress, providing that the 16th section of every township was set aside for the support of the public schools. The records reflects that “Nature’s Acres” consisted of approximately 100 acres of Section 16 in Franklin Parish. After objection by defendant, the trial court ruled that it was common knowledge that the 16th section in Franklin Parish belonged to the school board.

In the present case, the record reflects that a rational trier of fact could find that the Franklin Parish School Board was the owner of “Nature’s Acres.” The state need only prove that the property was not the defendant’s. The superintendent of schools and the parish tax assessor both testified that the land was owned by the school board. It is not necessary to determine whether the trial court erred in taking judicial notice that 16th section land belongs to the school board. Even without that consideration, the record clearly reflects that the property was not owned by the defendant but was owned by the Franklin Parish School Board.

In addition to proving the intentional damaging of the property of another, the state must also prove that the damage was done without the consent of the owner by any means other than fire or explosion. Bryan, Superintendent of the Franklin Parish Schools, testified that he periodically gave permission to persons to remove dead or damaged trees on the school board property. Bryan also testified that the school board periodically sold timber from Section 16. Bryan also testified that he did not give the defendant permission to remove trees from the school board property. Additionally, Bryan testified that, to his knowledge, the school board had not authorized the defendant to remove the trees. Therefore, the record reflects that the defendant removed the trees without the consent of the owner.

The state called a forester from the Louisiana Department of Natural Resources to testify concerning the value of the trees removed. The forester valued 10 of the trees which had been cut and found the total damages to be $3,140. However, the court found the damages to be $1,350. This finding does not appear to be erroneous.

The record reflects that a rational finder of fact could have found that the state had proven beyond a reasonable doubt that the defendant had committed the crime of simple criminal damage to property. This assignment of error is without merit. Assignment of Error No. 4:

By this assignment, defendant contends that the trial court erred in relying on the uncorroborated statement of the defendant in establishing the corpus delicti.

It is well settled that an accused party cannot be legally convicted on his own uncorroborated confession without proof that a crime has been committed by someone; in other words, without proof of the corpus delicti. State v. Willie, 410 So.2d 1019 (La.1982); State v. Ashley, 354 So.2d 528 (La.1978); State v. Freetime, 334 So.2d 207 (La.1976). The corpus delicti must be proven by evidence which the fact-finder may reasonably accept as establishing that fact beyond a reasonable doubt. State v. Carson, 336 So.2d 844 (La.1976).

In the present case, the record clearly shows that a crime has been committed. The superintendent of schools testified that no one had been given permission to remove trees from “Nature’s Acres.” The record also contains ample testimony that trees had been recently removed from Nature’s Acres without authorization. According to an urban forester who testified at trial, the tree stumps which remained showed signs that they had been recently cut. Therefore, the record clearly reflects that the defendant’s statement is corroborated by the evidence of the crime in the present case.

This assignment of error is without merit.

Decree

Finding no merit to defendant’s assignments of error, the conviction and sentence are affirmed.

Affirmed.


author: PRICE, Judge Pro Tem.

text:
    STATE of Louisiana, Appellee, v. Johnny J. MAIDEN, Appellant.
    No. 16688-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.
    Rehearing Denied Feb. 22, 1985.

      Indigent Defender’s Office by Ford E. Stinson, Jr., Benton, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., New Orleans, Henry Brown, Dist. Atty., James M. Bul-lers, Asst. Dist. Atty., Bossier City, for appellee.
    Before MARVIN and SEXTON, JJ., and PRICE, J. Pro Tem.
   PRICE, Judge Pro Tem.

The defendant, Johnny J. Maiden, appeals his conviction of two counts of simple burglary of an inhabited dwelling contrary to the provisions of LSA-R.S. 14:62.2. The defendant was sentenced to seven years at hard labor on each charge, to be served concurrently, one year of each term without benefit of probation, parole, or suspension of sentence. Finding no error by the trial court, we affirm.

FACTS

On October 11, 1982, the homes of Luke Boggs and Mrs. J.R. McCartney, both located on Thornton Road in Bossier Parish, were burglarized. Among the items missing from the Boggs’s residence were a Browning automatic 12 gage shotgun, a Baretta automatic 12 gage shotgun, and a Marlin Winfield 22 caliber rifle. One of the items taken from the McCartney residence was a L.C. Smith 12 gage shotgun.

On November 29, 1982, the Shreveport Police Department arrested a William Parker for receiving stolen goods. Shreveport police officers searched Parker’s apartment at the Quail Creek Apartments in Shreveport and discovered numerous firearms. Among the items recovered were the guns missing from the Boggs and McCartney residences. Parker then identified the defendant in the present ease as the person who had sold him the weapons which were owned by Luke Boggs and Mrs. McCartney.

At that time defendant was being held in the DeSoto Parish jail. After an interview with Bossier Parish sheriffs deputies, the defendant gave an oral statement confessing his involvement in the burglaries of the Boggs and McCartney residences. After trial by jury, the defendant was found guilty on both counts of simple burglary of an inhabited dwelling.

On appeal, the defendant filed the following assignments of error:

1. The trial court erred in admitting State Exhibit #11 into evidence in that said exhibit was purportedly a copy of a rights card similar to that allegedly signed by defendant and thus to allow its introduction was contrary to the best evidence rule.
2. The trial court erred in admitting State Exhibit # 12 and # 13, alleged confessions by defendant, in that the State of Louisiana failed to affirmatively show that such confessions were free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises.
3. The trial court erred in not granting defendant’s request for a mistrial when reference was made within the hearing of the jury, of other inadmissible crimes alleged to have been committed by defendant.
4. The sentence imposed was excessive and constitutes cruel and unusual punishment.

ASSIGNMENT OF ERROR NO. 1

By this assignment, the defendant contends that the trial court erred in admitting Exhibit S-ll, a Miranda rights card, on the basis that the card was not the best evidence.

Under LSA-R.S. 15:436, the best evidence which from the nature of the case must be supposed to exist, and which is within a party’s control, must be produced. In the present case, the officers who testified stated that the Miranda rights card which the defendant had signed when they had initially interviewed him was lost. However, the officers did testify that Exhibit S-ll was an identical card to the Miranda rights card which they had read to and was signed by the defendant.

Introduction of Exhibit S-ll was not necessary to prove that the defendant had been given Miranda rights. Exhibit S-ll was only offered to show a card identical to the one which the defendant had signed. The card was not related to the offenses in the present case. The card was relevant only to the issue of whether the defendant had been given his Miranda rights prior to giving a statement to the police officers.

The record reflects that the trial court was fully aware that the card offered into evidence was not the card signed by the defendant. The officers testified that the original card was lost. Therefore, the best evidence was not available for introduction into evidence. The fact that Exhibit S-ll was not the original Miranda rights card simply goes to the weight of the evidence. We find this assignment of error to be without merit.

ASSIGNMENT OF ERROR NO. 2

By this assignment, the defendant contends that the trial court erred in admitting Exhibits S-7 and S-13, alleged confessions by the defendant, on the basis that the state has failed to show that the confessions were freely and voluntarily given.

Under LSA-R.S. 15:451, before what purports to be a confession can be introduced in evidence, it must be affirmatively shown that the confession was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. The state has the burden of affirmatively proving that the confession was free and voluntary. LSA-C.Cr.P. Art. 703. The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of testimony relating to the voluntariness of a confession will not be overturned on appeal unless such conclusions are not supported by the evidence. State v. Burkhalter, 428 So.2d 449 (La.1983); State v. Broadway, 440 So.2d 828 (La.App. 2d Cir.1983).

As a matter of federal constitutional law, a confession obtained by any direct or implied promises, however slight, or by the exertion of any improper influence must be considered involuntary and inadmissible. Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897); State v. Morvant, 384 So.2d 765 (La.1980); State v. Jackson, 381 So.2d 485 (La.1980); State v. Hall, 434 So.2d 517 (La.App. 2d Cir.1983). Even the slightest inducements held by a person in authority, such as a police officer or a prosecutor, may render a confession involuntary. State v. Jackson, supra.

In the present case, the defendant contends that his confession was not free and voluntary for two reasons. First, the defendant contends that he was threatened and coerced into giving the confession due to the conduct of an officer from Texas. Additionally, the defendant contends that he was promised leniency by the Bossier Parish deputies in return for his confession.

The record reflects that the defendant’s statements were given to Bossier Parish sheriffs deputies on December 1, 1982, while the defendant was incarcerated in the DeSoto Parish Jail. The Bossier Parish sheriffs deputies went to DeSoto Parish to interview the defendant regarding his involvement in the burglaries in Bossier Parish. The deputies testified that an officer from an East Texas County also was present when they interviewed the defendant. The Bossier Parish deputies testified that the officer from Texas told the defendant that his girlfriend was also implicated in the Texas burglaries and might also be arrested. At that point, the defendant became upset about the possible implication of his girlfriend, and an argument then developed between the defendant and the Texas deputy. Defendant then stated that he would not talk to the officer from Texas.

One of the Bossier Parish deputies, Deputy Anderson, the only black officer present, requested to privately talk to the defendant who was also black. Upon his request, the other officers left. Deputy Anderson then attempted to calm the defendant. Deputy Anderson testified that he told the defendant that he was concerned solely with the defendant’s involvement in the burglaries in Bossier Parish. Deputy Anderson stated that while he was alone in the room with the defendant he never claimed that any of the defendant’s charges would be dropped. Deputy Anderson testified that he stated to the defendant that he felt that the Lord would be lenient on the defendant if he would talk to him. After speaking with the defendant approximately ten minutes, the defendant agreed to cooperate with the Bossier Parish deputies.

In State v. Dison, 396 So.2d 1254 (La.1981) the sheriff admitted telling the defendant that “in the past, anybody that tried to help themselves, usually got help.” The Supreme Court found the defendant’s confession to be admissible. In State v. Petterway, 403 So.2d 1157 (La.1981) the deputy testified that he told the defendant that “things would go easier for him” if he cooperated. The court held that the deputy did not make a specific promise to the defendant or say anything that could be construed to be a promise. Therefore, the court again found the confession to be admissible.

In the present case, any threat or coercion on the part of the deputy from Texas was dissipated by the conversation between the defendant and Deputy Anderson. Deputy Anderson testified that he had informed the defendant and the defendant had understood that he would not be forced to cooperate with anyone. The evidence also reflects that the deputy’s promise of leniency did not concern any of the defendant’s legal rights, but was based solely upon the deputy’s religious belief of the moral and spiritual rewards in trying to make up for wrongful conduct. The record does not reflect that the defendant was promised any leniency in the prosecution of the present case.

We find that the trial court’s conclusion that the statements were given freely and voluntarily are supported by the evidence. Therefore, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

By this assignment, the defendant contends that the trial court erred by not granting his motion for mistrial due to an improper reference to other crimes evidence on the part of a state’s witness.

The record reflects that upon cross examination, defense counsel questioned Deputy Anderson about statements contained in the transcript of the statement given to Deputies Padgett and Anderson in the De-Soto Parish Jail. The transcript reflects the following question asked by defense counsel and answer given by Deputy Anderson:

Q. “And Deputy Padgett is questioning Johnny. This is on the Boggs burglary, now this is Deputy Padgett talking, not Johnny Maiden, this is Detective Padgett. Detective Pad-gett says, okay, now there were several guns taken and an eight track tape player, an old class ring, a wedding band, and a couple of bedspreads off the bed. You don’t consider that suggesting an answer? Why was Johnny not allowed to tell what was taken out of the house?
A. I can say one reason its a possibility of that. Was because Johnny had broken into so many different places and he told us he had taken so much stuff — .

Defense counsel immediately objected to the statement and moved for a mistrial. The trial court denied defendant’s motion for a mistrial and admonished the jury that they were to disregard the last statement or last answer given by the witness.

Defendant contends that while he was on trial in the present case, he also had two additional burglary charges pending against him. Defendant contends that the comment by Deputy Anderson was an obvious reference to other crimes which were clearly not admissible as evidence. Therefore, the defendant contends that the trial court should have granted a mistrial under LSA-C.Cr.P. Art. 770(2). LSA-C.Cr.P. Art. 770(2) provides as follows:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment made within the hearing of the jury by the judge, district attorney, or a court official during the trial or in an argument, refers directly or indirectly to: 2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.

In State v. Perry, 420 So.2d 139 (La.1982), the Supreme Court found that under LSA-C.Cr.P. Art. 770(2) neither a state witness nor a deputy sheriff is a “court official” under Art. 770. Rather, the court found that LSA-C.Cr.P. Art. 771 is the applicable article in cases such as this.

LSA-C.Cr.P. Art. 771(2) provides in pertinent part as follows:

In the following cases, upon the request of the defendant or the state, the court shall promptly

admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and as such a nature that it might create prejudice against the defendant, or the state, or in the mind of the jury:

(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Art. 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

A mistrial is a drastic remedy and should be declared only when there is unnecessary prejudice to the accused. The determination of whether prejudice has resulted lies within the sound discretion of the trial judge. State v. Smith, 430 So.2d 31 (La.1983). We do not find any abuse of the trial court's discretion in denying defendant’s motion for mistrial. The remark of the witness did not substantially prejudice the rights of the defendant. The trial judge’s admonition was sufficient to prevent any prejudice to the defendant’s right to a fair trial.

Therefore, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 4

In this assignment, the defendant contends that the sentence imposed was excessive and constitutes cruel and unusual punishment. The trial court sentenced the defendant to serve seven years at hard labor on each count to run concurrently with each other but consecutive to any other sentences which may be imposed.

The defendant contends that while the sentence imposed is within the statutory limits, it is unconstitutionally excessive when considered in conjunction with certain mitigating factors such as his status as a first offender; his having earned a G.E.D.; and his having been honorably discharged from the United States Army after serving three years. Defendant contends that these factors should have been given greater weight by the court in imposing sentence.

A sentence is unconstitutionally excessive where it is grossly out of proportion to the severity of the crime or it is nothing more than a needless and purposeless imposition of pain and suffering. State v. Smith, 433 So.2d 688 (La.1983). The sentence of the trial court should not be set aside as excessive in the absence of a manifest abuse of discretion by the trial court. State v. Conn, 420 So.2d 1123 (La. 1982).

We find no abuse of the trial court’s sentencing discretion in the present case. The defendant’s sentences were well within the statutory limits. Defendant could have received a maximum possible sentence, under LSA-R.S. 14:62.2, of twelve years at hard labor on each count. Both sentences are justified considering the severity of the offenses. The record reflects that both residences were burglarized and ransacked in broad daylight. We do not find that the imposed sentences amount to a needless and purposeless imposition of pain and suffering, considering the defendant’s extensive record of involvement in residential burglaries throughout this region. Therefore, this assignment of error is without merit.

DECREE

Finding no merit to defendant’s assignments of error, the defendant’s convictions and sentences are affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Appellee, v. Elijah RICHARDSON, Appellant.
    No. 16700-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.

      E. Roland Charles, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Dist. Atty., Baton Rouge, Johnny Parkerson, Dist. Atty., Earl Cox, Asst. Dist. Atty., Monroe, for appel-lee.
    Before HALL and FRED W. JONES, Jr., JJ., and PRICE, J. Pro Tern.
   HALL, Judge.

The defendant, Elijah Richardson, appeals his sentence pursuant to his conviction of Driving While Intoxicated, Third Offense, LSA-R.S. 14:98. The defendant entered a plea of guilty and was sentenced by the court to a term of imprisonment of five years at hard labor without benefit of parole, probation, or suspension of sentence. Finding no error by the trial court, we affirm.

The pre-sentence investigation report in the present case indicates that the defendant was arrested by the Monroe Police Department on May 1, 1983. According to the PSI, Monroe police officers saw the defendant driving a vehicle and knew that his license was revoked. The officers stopped the vehicle, found the defendant very unsteady on his feet, and smelled an odor associated with alcohol. The defendant was given a field sobriety test and failed. Defendant was taken to the Monroe City Jail where he refused to take the PEI breath test.

On appeal, the defendant asserts the following assignment of error:

“Defendant was sentenced to five years at hard labor for DWI, Third Offense without benefit of parole, probation or suspension of sentence, which sentence is excessive and out of proportion for sentences rendered in the past for convictions under similar circumstances and which sentence shows little regard for the sentencing guidelines as outlined in the code of criminal procedure.”

The defendant contends that the conclusions reached by the trial court at the sentencing hearing are unfounded and not well grounded in the provisions of Article 894.1. Additionally, the defendant contends that although the sentence was within the statutory limits, the sentence was unconstitutionally excessive.

It is well settled that the sentencing judge is given wide discretion in imposing a sentence within the statutory limits, and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Square, 433 So.2d 104 (La.1983); State v. Browning, 454 So.2d 1241 (La.App. 2d Cir.1984).

The sentencing guidelines of LSA-C.Cr.P. Art. 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in Article 894.1, the record must reflect that he has adequately considered these guidelines in particularizing the sentence to the defendant. State v. Smith, 433 So.2d 688 (La.1983).

A sentence is constitutionally excessive in violation of Art. 1, § 20 of the Louisiana Constitution of 1974, if it is grossly out of proportion to the severity of the offense or nothing more than a needless or purposeless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980).

Under LSA-R.S. 14:98, on a third DWI conviction, the offender shall be imprisoned with or without hard labor for not less than one year nor more than five years, and may be fined not more than one thousand dollars. At least six months of the sentence of imprisonment imposed shall be without benefit of probation, parole, or suspension of sentence.

In the present case, the defendant was sentenced to the maximum possible term of imprisonment of five years at hard labor without benefit of parole, probation, or suspension of sentence. The Louisiana Supreme Court has previously determined that maximum sentences are to be reserved for the most egregious and blameworthy of offenders within a class. State v. Telsee, 425 So.2d 1251 (La.1983); State v. Quebe-deaux, 424 So.2d 1009 (La.1982); State v. Jones, 398 So.2d 1049 (La.1981).

The defendant’s pre-sentence investigation report revealed that the defendant had been convicted of operating a vehicle while intoxicated 11 times within the previous 9 years. The trial court gave great weight to the defendant’s apparent inability to refrain from driving while drinking alcoholic beverages. The court referred to the defendant’s most recent suspended sentence from a South Carolina conviction of Driving Under the Influence and noted that the defendant had continued his conduct of drinking and driving. The trial court found that the defendant’s conduct did cause or threaten serious harm to society even though no property damage or physical injury arose from the conduct in the present case. Due to the defendant’s record, the court found that the defendant is not likely to respond affirmatively to probationary treatment. The court found that there was an undue risk that during the period of a suspended sentence the defendant would commit another crime, that the defendant was in need of correctional treatment, and that a lesser sentence would deprecate the seriousness of the defendant’s crime due to the nature of the defendant’s extensive history of DWI offenses.

The record in the present case reflects that the trial court adequately considered the guidelines set forth in Article 894.1. Although the defendant’s present crime did not cause property damage or physical injury, defendant has an extensive history of driving while intoxicated offenses which justify the maximum sentence imposed. In view of the defendant’s repeated violation of the driving while intoxicated laws, the sentence imposed is not out of proportion to the severity of the offense, is not a needless and purposeless imposition of pain and suffering, and the defendant may be categorized as a most egregious and blameworthy offender.

Finding no merit to defendant’s assignment of error, the defendant’s sentence is affirmed.

Affirmed.


author: SEXTON, Judge.

text:
    Alvin J. ARLEDGE as Administrator of the Succession of Joseph Alton Arledge, Plaintiff-Appellee, v. Arlen C. BELL, Defendant-Appellant.
    No. 16706-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.

      Dimos, Brown, Erskine, Burkett & Smith by Wade R. Baggette, Monroe, for defendant-appellant.
    Howell H. Heard, West Monroe, for plaintiff-appellee.
    Before HALL, MARVIN and SEXTON, JJ.
   SEXTON, Judge.

Arlen C. Bell appeals a declaratory judgment finding that he is indebted to the succession of Joseph Alton Arledge in the amount of $9,000, representing the unpaid balance of a loan from decedent to defendant. We reverse and remand for a new trial.

Decedent, Joseph Alton Arledge, was a single man with no children who died intestate on November 17, 1982. One sister, Willie Travis Arledge Bell, predeceased Joseph. He was survived by one brother, Alvin Julius Arledge, the duly qualified administrator of this succession. Defendant herein is one of the three children born to Willie Bell and is therefore a nephew to the decedent.

The administrator of the succession brought suit for declaratory judgment separately against defendant, and his sister Charlotte Bell, seeking declarations of the amounts of their respective indebtedness to the succession. Arlen Bell’s answer alleged that the transaction was a gift and, in the alternative, that if the initial transaction was characterized as a loan, the debt was extinguished by remission in a long distance telephone call between Arlen C. Bell and the decedent. In interrogatories which were admitted into evidence, appellant conceded that the money was originally advanced from his uncle as a loan. The cases were consolidated for trial. Judgment was rendered in favor of the succession and against, both defendants. Only Arlen C. Bell has appealed.

At trial Arlen Bell testified that in 1980 he borrowed $10,000 from his uncle in order to place a down payment on a home for his family. He subsequently paid ten installments of $100 each on the loan, reducing the unpaid balance to $9,000.

On appeal, defendant urges the applicability of LSA-C.C. Art. 1888, et seq., claiming that the debt had been remitted by his uncle.

All that is required under the remission articles is a determination that the creditor intended to remit his claim or that he has estopped himself to claim the contrary. Cowley Corporation v. Shreveport Packing Co., 440 So.2d 1345 (La.App. 2d Cir.1983), writ denied, 444 So.2d 122 (La. 1984). While the remission of a debt cannot be revoked by a creditor, remission is never presumed unless it clearly appears that the creditor intended it. The burden of proving remission, express or tacit, rests with those claiming the benefit. Cowley, supra; Succession of Martin, 335 So.2d 494 (La.App. 2d Cir.1976), writ denied, 337 So.2d 516 (La.1976). No particular form for remission is necessary and the remission may either occur by oral declaration or in writing. Gulf States Finance Corporation v. Moses, 56 So.2d 221 (La.App. 2d Cir.1951).

At trial, defendant’s attorney attempted to elicit testimony concerning the substance of the long distance telephone conversation. Counsel for the succession objected on hearsay and relevancy grounds. The objection was sustained, and the evidence was admitted by proffer. Appellant contends that the trial court erred in refusing to admit and consider this evidence.

In regard to his relevancy argument, ap-pellee contends that LSA-C.C. Art. 1536 precludes the admission of this evidence. Appellee claims that the alleged conversation relative to forgiveness of Arlen Bell’s debt constituted a gift of a credit, an incorporeal thing. Thus, he asserts that LSA-C.C. Art. 1536, which stipulates formal requirements for the donation of incorporeal movables, is controlling, thus rendering appellant’s evidence irrelevant.

Our initial inquiry, then, must be directed to the character of the transaction here involved to determine whether the formal requirements of Article 1536 are pertinent. It is clear from the testimony and answers to interrogatories of the defendant Arlen C. Bell that this transaction was originally intended to be a loan and not a donation. Therefore, if the deceased acted as the defendant asserts, that action forgave an existing obligation.

While the forgiveness of a debt may in some respects appear to be a donation because of the gratuitous intent manifested by the act of forgiveness, in specific terms it is the remission of a previous obligation. It therefore must be considered within the context of our law on remission.

As Professor Levasseur explains:

When remitting a debt, the creditor is usually motivated by a gratuitous intent (animus donandi). Such a gratuitous juridical act is tantamount to a donation and should, therefore, be subjected to the conditions of substance applicable to lib-eralities (collation, reduction, revocation ...). However, the conditions of form pertaining to donations are not applicable (LCC 1536 et seq).

A. Levasseur, Precis in Conventional Obligations: A Civil Code Analysis, at 84 (1980). Accord, S. Litvinoff, 6 Louisiana Civil Law Treatise: Obligations, § 371 (1969). See also Hicks v. Hicks, 145 La. 465, 82 So. 415 (1919).

The redactors comment (b) to the new Article 1888 is succinctly in accord with Professor Levasseur:

' (b) Although remission is an act gratuitous in principle, it is considered a sort of indirect liberality not subject to the requirements of form prescribed for donations. See 4 Aubry et Rau, Cours de droit civil francais — Obligations 223 (Louisiana State Law Institute trans. 1965); 2 Colin et Capitant, Cours elemen-taire de droit civil francais 403 (10th ed. 1953); 7 Planiol et Ripert, Traite pratique de droit civil francais 716 (2nd ed. 1954); 1 Litvinoff, Obligations 627-628 (1969). See also Hicks v. Hicks, 145 La. 465, 82 So. 415 (1919); Reineche v. Pelham, 199 So. 521 (La.App.Orl.1941). [Emphasis ours]

Therefore, while a remission may involve a donative intent on the part of the creditor, the authentic form requirements of LSA-C.C. Art. 1536 do not apply. A remission may be perfected by an oral agreement and appellant’s evidence which sought to establish an oral remission was relevant.

We now turn to a consideration of the hearsay portion of the objection. Appellant argues that the conversation constituted a declaration against the decedent’s interest and therefore fell within an established exception to the hearsay rule.

Appellant’s assertion is correct. The general rule is that declarations of a party deceased are inadmissible if the same would be excluded as hearsay were he alive. Micheli v. Toye Bros. Yellow Cab Co., 174 So.2d 168 (La.App. 4th Cir.1965). However, such statements may be admitted into evidence under an exception to the hearsay rule if they constitute a declaration against the deceased’s interest. Abunza v. Olivier, 230 La. 445, 88 So.2d 815 (1956); Wall v. Murrell, 280 So.2d 865 (La.App. 3rd Cir.1973). The court explained in Abunza that although a declaration against interest by a deceased is the weakest kind of testimony, it is admissible and does have some probative value. It must be scrutinized with great care, however, since it can be so easily fabricated, a fact which concerns the weight of the proof rather than its competency.

In summary, it is apparent that appellant’s evidence was both relevant to his plea of remission, and fell within an established exception to the hearsay rule. Consequently, the trial court erred in refusing to admit this evidence.

In his final specification, appellant contends that the trial court erred in excluding testimony of the decedent’s close familial ties with his nieces and nephews, and testimony concerning other transactions, both gifts and loans, from decedent to other nieces and nephews. Counsel for the succession urges the correctness of the trial court’s ruling and argues that the evidence was irrelevant. This evidence, like the testimony concerning the telephone conversation, was admitted by proffer, and not heard or considered by the trial court.

For evidence to be relevant, it must have some probative value and be reasonably connected to the transaction in question. State in the Interest of Miles, 441 So.2d 61 (La.App. 3rd Cir.1983); Associates Financial Services Company, Inc. v. Ryan, 382 So.2d 215 (La.App. 3rd Cir. 1980); Vignes-Bombet Co., Inc. v. Rowe, 288 So.2d 889 (La.App. 1st Cir.1973). The trial court is, however, granted a great deal of discretion in assessing the probative value of evidence. City of Baton Rouge v. Tullier, 401 So.2d 422 (La.App. 1st Cir. 1981), writ denied, 406 So.2d 605 (La.1981).

In this case, the proffered testimony concerning decedent’s close relationship with his nephew, and his custom of giving money or loaning money to his family members is generally relevant to show decedent’s course of liberality and financial dealings with his family members, i.e., whether the deceased expected repayment of the loan or intended a remission of the debt. The objection tendered, therefore, is more appropriately considered as an argument against the weight to be afforded the evidence in question.

We therefore determine that the trial court erred in refusing to admit evidence of the telephone conversation between appellant and decedent and the evidence concerning decedent’s relationship with this family members including his acts of generosity toward them. We therefore remand this matter to the district court for a new trial in order that appellant’s proffered evidence be considered in determining whether a remission of this debt occurred. We adopt this course rather than deciding the cause as we usually do when all of the evidence is before us for the following reasons.

While the law instructs an appellate court to sparingly remand when all of the facts are presented to it as here, the law also indicates that a remand is appropriate where a view of the witness is essential to judge his credibility. Ragas v. Argonaut Southwest Insurance Co., 388 So.2d 707 (La.1980); Ketcher v. Illinois Central Gulf Railroad Co., 440 So.2d 805 (La.App. 1st Cir.1983), writ denied, 444 So.2d 1220 (La.1984). Obviously, the linchpin of the defendant’s case is the defendant’s testimony that the deceased remitted the debt. Thus, the credibility of the defendant is all important to a resolution of the issues in the case, just as it was in the similar cause of Wall v. Murrell, supra. Because the trial court is obviously in a better position to determine this credibility than this court, we believe the ends of justice are best served by a remand for new trial. LSA-C. C.P. Art. 2164.

The judgment of the district court is reversed and the case is remanded for a new trial in accordance with the views expressed in this opinion. Costs of this appeal are taxed against appellee.

REVERSED AND REMANDED.

       Prior to the revision of the "Obligations" articles of the Civil Code by Act No. 331 of 1984, the remission articles were contained in Article 2199, et seq. As the redactors comment to the new Article 1888 indicates, that Article does not change the law. While some changes were made in the remission articles, these changes primarily deal with the effects of remission on sureties and have no effect on the instant litigation. See generally, Section 4, Chapter 6 of the Exposé Des Motif of the Project of Titles III and IV of Book III of the Civil Code of Louisiana.


author: NORRIS, Judge.

text:
    RUSTON STATE BANK & TRUST COMPANY, et al., Plaintiffs-Appellants, v. CRYSTAL OIL COMPANY, et al., Defendants-Appellees.
    No. 16713-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.
    Rehearing Denied Feb. 22, 1985.

      Blanchard, Walker, O’Quinn & Roberts by J. Jay Caraway, Shreveport, for plaintiffs-appellants, Ruston St. Bank and M & 0 Oil.
    Bodenheimer, Jones, Klotz & Simmons by David Klotz, Shreveport, for defendant-appellee Crystal Oil Co.
    Emmons & Stokes by W. Jackson Em-mons, Jonesboro, for defendant-appellee “Unopened Succession of Mary Wyatt”.
    Before JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.
   NORRIS, Judge.

Plaintiff Ruston State Bank and its mineral lessee filed a petitory action claiming ownership of a tract of land in Jackson Parish. Defendants were Crystal Oil Company, lessee of the tract by virtue of mineral leases from the adverse claimants, and the unopened successions of the three original adverse claimants. Crystal Oil excepted on the grounds that its individual mineral lessors were indispensable parties. The court-appointed representatives of the unopened successions also excepted on the grounds that the succession administrators were indispensable parties. The trial court sustained all these exceptions and gave plaintiffs thirty days to amend by joining the mineral lessors and administrators. When plaintiffs failed to do so, the trial court dismissed the suit without prejudice. Plaintiffs appealed. For the reasons expressed, we affirm.

The issues presented are whether a plaintiff, seeking a judgment of ownership of an immovable, an accounting and cancellation of certain mineral leases, may sue the court-appointed attorney of the lessors’ ancestors in title, or whether he must join (1) the lessors themselves or (2) the ancestors’ succession representatives. Appellants bring three assignments of error:

(1) The ruling of the trial court fails to recognize plaintiffs’ right to sue unopened successions and have attorneys appointed for such successions under LSA-C.C.P. art. 5091(2)(a);
(2) The ruling of the trial court fails to recognize that plaintiffs’ action is a proceeding in rem; and
(3) The ruling of the trial court misapplies LSA-C.C.P. art. 3121, which provides for the appointment of a succession administrator in succession proceedings.

FACTS

Plaintiffs trace their title to one Mary Wyatt, who acquired the tract in the early 1900s. Ruston State Bank allegedly purchased the tract from her by a deed dated August 31, 1926, properly recorded. There was no further activity in the Bank’s chain until April 2, 1982, when the Bank granted a mineral lease, properly recorded, to M & 0 Oil and Gas Corporation. The latter assigned its lease to plaintiff M & 0 Oil and Gas (a partnership) in February, 1983.

Defendants also trace their title to Mary Wyatt. She was survived by ten children, all issue of her first marriage; there was no issue of her second marriage, and her second husband predeceased her. R.p. 71. Mary Wyatt herself died in April, 1936. No succession proceedings of any kind were initiated; her heirs never formally accepted her succession. Some years later, however, two of Mary Wyatt’s children, Minnie Timmons and William Wyatt, conveyed their interest in the tract to Jesse and Isabella Calloway. These sales were by separate acts, properly recorded. In her deed, Minnie Timmons represented herself as the heir of Mary Wyatt. At the time of these sales, in 1956, there were three other surviving children and one grandchild who represented a predeceased son; the other four children had died earlier, without issue. The vendee Isabella Cal-loway died in 1964, leaving eight surviving children and seven grandchildren through a predeceased daughter. The vendee Jesse Calloway was survived by two children of his own, but the exact date of his death is not given in the record. As with Mary Wyatt, no succession proceedings were ever initiated for the Calloways and their heirs never formally accepted. Defendant Crystal Oil entered the scene in the early 1980s when it sought to acquire mineral rights to the tract. It executed a total of thirty-one mineral leases or royalty deeds, properly recorded, with the heirs of Mary Wyatt, Isabella Calloway and Jesse Callo-way. Crystal then secured Office of Conservation Orders and established drilling units on the tract in August and December, 1982. One of these wells is currently in production.

Asserting the strength of the 1926 deed, plaintiffs filed the instant suit on October 17, 1983, requesting appointment of attorneys to represent the unopened successions, a decree of plaintiffs’ ownership, erasure of defendants’ leases and mineral deeds, and an accounting of all proceeds of unit production.

ASSIGNMENTS NOS. 1 & 2

The substance of these related assignments of error, urged at trial, in brief and in argument, is that the method appellants chose for enforcing their petitory and related claims was proper under LSA-C.C.P. art. 5091, which provides:

The court shall appoint an attorney at law to represent the defendant, on the petition or ex parte written motion of the plaintiff, when:

(1) It has jurisdiction over the person or property of the defendant, or over the status involved, and the defendant is: (a) a nonresident or absentee who has not been served with process, either personally or through an agent for the service of process, and who has made no general appearance; or (b) an unemancipated minor or mental incompetent who has no legal representative, and who may be sued through an attorney at law appointed by the court to represent him; or
(2) The action or proceeding is in rem and: (a) the defendant is dead, no succession representative has been appointed, and his heirs and legatees have not been sent into possession judicially; (b) the defendant is a corporation or partnership on which process cannot be served for any reason; or (c) the defendant’s property is under the administration of a legal representative, but the latter has died, resigned, or been removed from office and no successor thereof has qualified, or has left the state permanently without appointing someone to represent him.
All proceedings against such a defendant shall be conducted contradictorily against the attorney at law appointed by the court to represent him.
The improper designation of the attorney appointed by the court to represent such a defendant as curator ad hoc, tutor ad hoc, special tutor, or any other title, does not affect the validity of the proceeding. [Emphasis added.]

Ordinarily, suits must be brought against the true parties affected. Nevertheless, appellants contend that they may sue the court-appointed attorney of an unopened succession under subsection (2)(a) of article 5091. This subsection, they claim, is tailor-made to the situation here, where the action is in rem (to enforce a real right), there is a large number of heirs or legatees not yet sent into judicial possession, and no administrator has been appointed. Thus the article should entitle a plaintiff to pursue his action without the necessity of waiting for succession proceedings to name the heirs and distribute the estate. By appellants’ reasoning, the article is designed to assist a plaintiff in a situation like this.

In addition to the technical propriety of applying article 5091 to this case, appellants argue there are sound policy considerations served by the procedure. Our jurisprudence clearly holds that an effective judgment cannot be had against a potential defendant who was not joined in the suit. See LSA-C.C.P. art. 641; Gajan v. Patout et Burguieres, 135 La. 156, 65 So. 17 (1914). The law requires a full disposition of the case, they claim, in order to avoid later duplicative proceedings against unknown heirs.

Appellants’ argument is intriguing in that it would provide a relatively easy means for a plaintiff to assert a right against heirs of a long-dead defendant, through the expedient of appointing a 5091 attorney to represent his unopened succession.

We do not agree, however, that article 5091 was designed to operate under these circumstances. In the first place, subsection (2)(a) applies by its own terms to in rem proceedings only. Appellants have not given us any help in defining an in rem proceeding, nor in citing jurisprudence on point, yet they urge their suit is perfectly in rem, nothing more than in rem. According to LSA-C.C.P. art. 8, in rem jurisdiction is the power of a Louisiana court to enforce a right in or against property having a situs in the state, when the property is claimed or owned by a non-resident not subject personally to the jurisdiction of the court. Professor McMahon, in his comments on the new Code of Civil Procedure, said, “An executory proceeding to enforce a mortgage or privilege on property having situs in Louisiana is a proceeding in rem, over which a court of this state has jurisdiction.” See “Summary of Procedural Changes in Chapter 2,” 6 West’s LSA Civil Procedure, 325. The instant suit prays for a judgment that would wrest ownership from the defendant, cancel mineral leases and require an accounting of production proceeds. We do not think that a suit for an accounting or money judgment is truly in rem. See Spencer v. Collins, 338 So.2d 148 (La.App. 2d Cir.1976).

Furthermore, a plain reading of the whole article shows that 5091 is designed to facilitate service when the defendant is out of service’s reach. We feel that this sort of unavailability is not present in the instant case. The property of Mary Wyatt and of the Calloways passed, by operation of law, to their descendents. LSA-C.C. arts. 880, 888; Succ. of Coco, 185 La. 901,

171 So. 70 (1936); Tulane University of La. v. Board of Assessors, 115 La. 1025, 40 So. 445 (1905); Dion v. Knap, 230 So.2d 842 (La.App. 1st Cir.1970); cf. Succ. of Lewis, 440 So.2d 899 (La.App. 2d Cir.1983), writ denied 443 So.2d 1119 (La.1984). These heirs tacitly accepted the successions when they later granted mineral leases on the tract. LSA-C.C. art. 988. These considerations are very general but they illustrate the usual function of our law so plainly that there can be no real doubt about who succeeded to the property here. Thus the instant situation is different from those contemplated by article 5091, where there is no other adequate method of reaching the affected parties.

Finally, the legislative history of article 5091 undermines plaintiff's argument. The provisions of article 5091(2) were originally contained in LSA-R.S. 13:3411 and 3412, which were repealed in 1960 and replaced by LSA-C.C.P. arts. 2672 through 2674. These articles provide for executory actions against heirs, administrators and unrepresented defendants. Subsection (2) was then added in 1964, to provide the same options for in rem suits by ordinary proceedings. See LSA-C.C.P. art. 5091, Revision comment (b) (1964). We will not infer that the 1964 amendment created the greater right of exempting plaintiffs of the duty to sue and serve defendants whose identities and domiciles are known. In sum, there is no justification for applying article 5091. to the instant case.

We note parenthetically that we have not been able to find any cases directly on this point, but that in the parallel situation of a petitory suit to settle a tax title, the jurisprudence holds that heirs must be joined in the suit if their identity and whereabouts are known. See Garry v. Zor Inc., 181 So.2d 828 (La.App. 4th Cir.1966); Wood v. Rovira, 372 So.2d 762 (La.App. 4th Cir. 1979); cf. Warner v. Garrett, 268 So.2d 92 (La.App. 1st Cir.1972), writ denied 263 La. 987, 270 So.2d 123 (1972). The cases reach this conclusion in spite of a special statute that would allow for appointment of a curator ad hoc under circumstances similar to those in article 5091. LSA-R.S. 47:2228.-1C.

ASSIGNMENT OF ERROR NO. 3

This leads us directly to appellants’ third assignment, the claim that the trial court improperly required joinder of the administrators to be appointed under LSA-C.C.P. art. 3121. Since the issue of joinder was posed differently by different defendants, we will consider them separately.

First, defendant Crystal Oil contended that appellants should have joined the individual landowners. The trial court was correct in maintaining this exception. See LSA-C.C.P. arts. 3651, 641; LeSage v. Union Producing Co., 249 La. 42, 184 So.2d 727 (1966); Terrett v. Brossett, 34 So.2d 671 (La.App. 2d Cir.1948); Humble Oil & Refg. Co. v. Jones, 241 La. 661, 130 So.2d 408 (1961). These cases hold that the lessors’ interests are “deeply intertwined with the subject matter of the suit and are so affected by a judgment that a complete and equitable adjudication cannot be made unless they are joined.” LeSage, 184 So.2d at 732. Thus they are indispensable, or at least necessary, parties. LSA-C.C.P. arts. 641, 642.

Second, the defendant successions contended that an administrator should have been appointed under LSA-C.C.P. art. 3121 which provides:

When no qualified person has petitioned for appointment as administrator of a vacant succession within three months of the death of the deceased, the court may appoint an attorney at law as administrator thereof and set his compensation. * * *

The trial court maintained this exception. This was incorrect because the successions are not “vacant” under LSA-C.C. art. 1095:

A succession is called vacant when no one claims it, or when all the heirs are unknown, or when all the known heirs to it have renounced it.

We pretermit further discussion of this exception because the trial court correctly dismissed the suit under Crystal Oil’s exception. A reversal of the article 3121 issue would not change the result.

There is one final issue permeating appellants’ argument: policy considerations. We agree they apply in this case, but we disagree about which policies must be served. Appellants correctly assert that courts must promote methods and procedures that foster judicial economy and prevent repetitive relitigation. There are, however, the larger considerations of promoting timely litigation, and of the stability of titles. Appellants have waited fifty-seven years to assert a claim through an instrument whose validity was seriously questioned. R.p. 22. If the instant action had been brought sooner, appellants could have avoided the kaleidoscope of heirs and issues that seem so insurmountable today. Appellants may have a valid title claim, and they are still free to pursue it, but the law would be unfair to permit them to cast a cloud on these landowners’ rights at this late date without requiring full compliance with the procedural articles on joinder and successions. This is all the more true where the procedural expedient chosen by appellants is not applicable, and the names and whereabouts of the heirs are known. Under the circumstances, we see no justice in stretching the bounds of article 5091 as appellants would have us do.

For these reasons, we affirm the judgment of the trial court. Appellants’ suit is dismissed without prejudice; costs are assessed to appellants.

AFFIRMED.

      . Even if the lessors were only necessary parties, their joinder was required because Crystal Oil timely objected to their nonjoinder. LSA-C. C.P. art. 642, 2d paragraph; LeSage v. Union Producing Co., supra 184 So.2d at 732.

      . The trial court was probably guided in granting the article 3121 exceptions, by the general principal that the administrator is “always” the property party in a suit against a succession. LSA-C.C.P. arts. 734, 3249. (A creditor may even provoke proceedings to appoint an administrator under LSA-C.C.P. art. 1072.) Though universal, this rule is of no avail when the landowners, and not the successions, should have been sued.