text:
    Eddie Frank PLEASANT, Plaintiff-Appellee, v. Jerri Anita Thomas PLEASANT, Defendant-Appellant.
    No. 16094-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.

      James L. Fortson, Shreveport, for defendant-appellant.
    Burnett, Sutton, Walker & Callaway by Bobby D. Sutton, Shreveport, for plaintiff-appellee.
    Before HALL and SEXTON, JJ., and McCLENDON, J. Pro Temp.
   HALL, Judge.

In this child custody proceeding, the district court ordered custody of the two boys, ages six and four, changed from the mother to the father, and the mother appealed.

The mother and father separated in June 1982. A judgment of separation was granted in August and, after a trial on the child custody issue, custody was awarded to the mother in October. On the father’s petition, specific visitation rights were set forth in a judgment rendered in January 1983. In May the mother petitioned for a final divorce and custody, and the father reconvened for custody, alleging the mother’s moral unfitness because she was living in open concubinage with her boyfriend. After trial in August 1983, the district court found that the boyfriend frequently stayed overnight with the mother in the presence of the children. Noting that the question of her moral fitness had been at issue in the first custody trial and was closely resolved in her favor at that time, the court concluded that the mother’s behavior appeared to be of a continuing nature and it was not in the best interest of the children for her to retain custody.

On appeal, the mother argues that the evidence was insufficient to prove sexual impropriety in the presence of the children, that there was no showing of conduct detrimental to the children, that the mother was otherwise shown to be a good and caring mother, and that it is not in the best interest of the children to remove them from the custody of their mother who has been the primary nurturing parent all of their lives and under whose care they have thrived and done well.

Although the mother and her boyfriend denied that he ever stayed at her home overnight when the children were at home, private detectives hired by the father testified that the boyfriend spent the night at her home on the four separate random occasions when they watched the home, and that the children were present on those occasions. The mother admitted that they slept together on occasion when the children weren’t home, and that they all slept together in one motel room while on a trip to Florida and then to Texas. The testimony of a child psychologist indicates the children’s awareness of the relationship between the mother and her boyfriend. There is substantial evidence to support the trial court’s factual finding that the boyfriend was staying with the mother “very frequently”, and that “the relationship was sufficient ... to have an improper effect upon the children and demonstrate the character and attitudes of the mother toward the ultimate stability of the children.”

Accepting these factual findings, and agreeing that the mother’s conduct may have a detrimental effect on the children even though they are now very young, it remains an extremely close decision on whether the proven indiscretions establish that a change in custody would be in the best interest of the small children.

According to the evidence, the mother is in all other respects a good, caring and loving mother. The children have been with her from the time the parties separated more than a year prior to the trial of this matter, and they are doing well. She has regular employment and earns a good salary to help support herself and the two children. She seldom leaves them other than to work, takes them to church, and encourages and supports the older son's activities in kindergarten, ball games, and other activities in which he has done well. She has moved from the small rural community where she and her boyfriend lived to a nice home in Shreveport where her employment is located, and has terminated her relationship with the boyfriend.

Also, according to the evidence, the father is a good man, regularly employed, and living with his parents in Shreveport at the time of trial. He testified that he would get a home near his parents, who are available to help with the children, if awarded custody. He has exercised his visitation rights with the children. However, in comments to the mother which she secretly recorded, he remarked that he was not really in a position to raise the children and that she could do a better job.

The standard of appellate review of a custody judgment is that great weight is given to the trial court’s decision which will not be overturned in the absence of a clear showing of an abuse of discretion. Because each custody case involves peculiar relationships between the parents and children, each case must be determined on its own facts and circumstances. See and compare Stewart v. Stewart, 430 So.2d 189 (La.App.2d Cir.1983) and the cases cited therein.

In this case the trial court heard and viewed these parties, their families, and witnesses over a period of several days in two trials which took place about a year apart. Unquestionably, the trial court is in the better position to evaluate the circumstances and the best interest of these children. Applying the standard of appellate review stated above to this very close case, we find no clear abuse of discretion and affirm the judgment of the trial court changing custody.

As an alternative contention, the mother asserts in her appellate brief that joint custody should be awarded under LSA-C.C. Arts. 157 and 146, as amended in 1982 and 1983. This custody proceeding was tried in August 1983, after the effective date of the 1982 amendments to Articles 146 and 157, but prior to the effective date of the 1983 amendment to Article 146. However, the issue of joint custody was not posed by the pleadings or considered in any manner at trial or in the trial court’s decision. Joint custody should have been considered under the express mandate of Article 157 that in all cases of change of custody, custody shall be granted to the parents in accordance with Article 146, which, in turn, establishes joint custody as the first preference in the best interest of the children and sets forth certain procedures and criteria for determining custody.

We do not regard the failure to follow the requirements and guidelines of Articles 146 and 157 as requiring reversal of the judgment rendered or a remand to the district court in this case because, at this point in time after trial, decision and appeal, it would not be in the interest of the children to prolong this litigation. However, any future proceedings brought to change or modify the custody award should be considered in accordance with the provisions of Articles 146 and 157 and the present judgment should not be regarded as precluding in any way a proper consideration of the joint custody provisions of those articles.

The judgment of the district court is affirmed at appellant’s costs.

Affirmed.


source: Caselaw Access Project

author: SEXTON, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Jerry Dale LEWIS, Appellant.
    No. 16096-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Rehearing Denied May 2, 1984.

      Nathaniel Graves Thomas, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Scott J. Crichton, Catherine M. Estopinal, Asst. Dist. Attys., Shreveport, for appellee.
    Before MARVIN, SEXTON and NORRIS, JJ.
   SEXTON, Judge.

The defendant, Jerry Dale Lewis, was charged by Bill of Information with violation of LSA-R.S. 14:34, Aggravated Battery. Pursuant to an agreement between his retained counsel and the district attorney’s office, the defendant pled guilty to Aggravated Battery with a stipulated maximum sentence of 5 years at hard labor. He was sentenced to 4 years at hard labor and now appeals that sentence.

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. Hammonds, 434 So.2d 452 (La.App. 2d Cir.1983); State v. Brooks, 431 So.2d 865 (La.App.2d Cir.1983); State v. Square, 433 So.2d 104 (La.1983).

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. Tully, 430 So.2d 124 (La.App. 2d Cir.1983); State v. Sepulvado, 367 So.2d 762 (La.1979). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in Art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Hammonds, supra; State v. Cunningham, 431 So.2d 854 (La.App. 2d Cir.1983); State v. Smith, 433 So.2d 688 (La.1983).

The conviction of the defendant arose from the following factual circumstances. The defendant and his wife were present in Cheyenne Lily’s, a bar in Shreveport, Louisiana. The defendant’s wife was approached by another young woman, a former friend of the defendant’s, and a fist-fight erupted between the two women. The defendant pulled the other woman off of his wife by grabbing her hair. The date of the other woman, also a former friend of the defendant, responded by striking the defendant on the back of the head with a beer bottle and punching him in the face. The defendant and his wife then left the bar premises and went several blocks to defendant’s home where he obtained a .38 caliber revolver. The defendant-appellant returned and with the pistol in hand, walked up to the table where the victim and his companion were sitting. He opened fire striking the victim five times and grazing the victim’s companion. Although the defendant’s weapon was loaded with “wadcutters,” the victim was seriously injured. However, he survived the assault.

The defendant adverts to the following alleged mitigating circumstances.as factors making the sentence of 4 years hard labor excessive. Defendant adverts to an alleged medical condition as creating a hardship condition on the defendant such as to render this sentence excessive. We note that none of the matters presented to this Court as exhibits constitute any part of the trial court record lodged with this Court. Counsel on appeal was not the counsel for the defendant during his plea and sentencing. However, we note that the medical condition of the defendant, though undiagnosed, was known to the defendant for a substantial period of time prior to the entry of his guilty plea. Out of an abundance of caution, we have reviewed the materials attached to the brief in the instant matter and from our review find nothing there which leads us to the conclusion that defendant’s medical condition makes imposition of a 4 year hard labor sentence excessive.

Defendant claims that the defendant’s successful completion of two prior terms of misdemeanor probation make it likely that the defendant would be able to successfully complete a period of probation in the instant matter. The trial court concluded otherwise. The trial court reasoned and articulated that in spite of probated sentences being given in an earlier possession of marijuana and an earlier misdemeanor theft, the defendant continued to commit crimes.

The trial court obviously made the reasonable determination that the fact of the defendant’s previous convictions should more logically be considered as a propensity to commit crimes, rather than be considered in the defendant’s favor because he managed to successfully complete the probated sentences rendered for these offenses.

The defendant asserts in brief that the difficulties brought on by the defendant’s behavior caused his father to suffer a stroke and to die prior to the imposition of sentence by the district court judge in this matter. We are unable to determine how any imprisonment sentence would cause hardship to his father, now deceased.

The defendant asserts in brief that the nature of the ammunition used in the instant matter by the defendant mitigates the offense. Defendant asserts that the ammunition used, “wadcutters” somehow mitigates the defendant’s crime. While no evidence was adduced on the relative degree of damage done by regular ammunition versus wadcutter ammunition, it is clear from the record that the victim of this offense suffered serious wounds as a result of the firing of 5 bullets into his body by the defendant. Furthermore, the victim’s companion narrowly escaped serious injury. This argument is meritless.-

From our review of the entire record available to the district court at the time of sentencing as well as a review of the exhibits attached to the appeals brief by counsel on appeal, we are unable to determine that the trial court judge abused his discretion in sentencing the defendant to a term of imprisonment of 4 years at hard labor out of a possible stipulated maximum sentence of 5 years at hard labor for this offense of aggravated battery. Accordingly, the defendant’s sentence is affirmed.

AFFIRMED.


author: MARVIN, Judge.

text:
    Mary Jean Pullig WILSON, Plaintiff-Appellant, v. WAL-MART STORES, INC., Defendant-Appellee.
    No. 16-097-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.

      Paul B. Wilkins, Columbia, for plaintiff-appellant.
    Theus, Grisham, Davis & Leigh by Phil D. Myers, Monroe, for defendant-appellee, Wal-Mart Stores, Inc.
    Mayer, Smith & Roberts by Alex S. Lyons, Shreveport, for third party defendant-appellee, Paul F. Stewart.
    Lunn, Irion, Switzer, Johnson & Salley by Michael S. Hubley, Shreveport, for third party plaintiffs-appellees, Robert E. Riddle and Charles Harold Allen.
    Grant, Dean, Kneipp, Luffey, Price & Dunn by Kirby O. Price, Monroe, for third party defendant-appellee, Triple R. Construction Co., Inc.
    McLeod, Swearingen, Verlander & Dollar by Richard A. Bailly, Monroe, for defendant-appellee, Ruston Glass and Mirror Company, Inc.
    Before MARVIN, SEXTON and NORRIS, JJ.
   MARVIN, Judge.

From a judgment awarding personal injury damages to plaintiff, a 49-year-old grandmother, who slipped and fell entering a Wal-Mart store, plaintiff appeals, seeking to increase the award.

In answer to the appeal, Wal-Mart claims that if plaintiff was not contributorily negligent, as it contends, the owner of the building should be liable on Wal-Mart’s third party demand. Wal-Mart does not complain that its demands against other third party defendants were rejected. We amend to increase the award from $154,000 to $174,000 and otherwise affirm.

It rained intermittently on May 16, 1980, but was not raining when plaintiff entered the vestibule of the store about 2:20 p.m., accompanied by her daughter and two young grandchildren. The vestibule had recently been extended six feet on each end where new doors had been installed. Puddles of water had accumulated in the vestibule. Plaintiff slipped and fell after she walked across the door mat and onto the asbestos-type tile floor in the west end of the vestibule. Plaintiff and her daughter testified that plaintiffs shoe left a mark or impression in what they described as the dirt, mud and grime that covered the floor where plaintiff fell. Plaintiff intentionally protected the 10-month-old child in her arms and was unable to cushion her fall. She sustained serious injury.

Wal-Mart contended that the accumulation of water was caused by leaks around the new doors and brought third party actions against the architect, the general contractor, the sub-contractor, as well as against the owner of the building, Wal-Marf s lessor. Wal-Mart questions the correctness of the rejection only of its third party demand against the owner.

A female employee immediately investigated the accident and reported that the floor was tracked with mud and with puddles of water. She indicated that the area had last been cleaned or swept about 9:00 p.m. the night before. A male employee testified that he found a large puddle of water in the west end of the vestibule before the store opened on the morning of the accident and instructed a stock boy to mop the area. This employee said that he saw a stock boy mopping at the west end of the vestibule where plaintiff fell when he left for a late lunch about 2:00 p.m., 20 minutes before the accident. The trial judge was not impressed, and did not find this employee’s testimony convincing.

The record shows that Wal-Mart knew of the accumulation of water, had not replaced the door mats during the day, and did not have a specific policy requiring periodic inspection of the vestibule area during business hours by any particular employee. The circumstances revealed in this record support the conclusion that Wal-Mart was negligent in failing to correspond to the standard of care required of a retail merchandiser with a large volume of merchandise and customers.

Where a customer of a retail establishment shows that she slipped on a foreign substance on the floor of the establishment, the retailer may avoid liability only by showing that it took reasonable measures to protect against such an occurrence, periodically inspecting and cleaning the floors, changing mats, and providing adequate lighting and warnings. See Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976).

CONTRIBUTORY NEGLIGENCE

Once the retailer’s liability is established, as it is here, the issue of the customer’s contributory negligence is one which must be decided in the light of the circumstances of each case. Soileau v. South Cent. Bell Tel. Co., 406 So.2d 182 (La.1981); Moran v. Montgomery Ward & Co., Inc., 424 So.2d 1207 (La.App. 1st Cir.1982). In Moran, for instance, a plaintiff was found contributorily negligent because she had shopped before in the garden department of the store where the floor remained wet because of the operation of a sprinkler system that watered the plants displayed for sale. The court of appeal affirmed the jury’s finding, stating that the area was “well li[ghted]” and that plaintiff had been through the garden shop before where the water was “quite noticeable.” 424 So.2d at 1210.

Here the trial court agreed with plaintiffs belief that she was “proceeding with prudence” with her grandchild in her arms, apparently because plaintiff was confronted first with the door mat which was not noticeably wet when she entered the vestibule. The floor of the vestibule was not wet down by a sprinkler system as was the Montgomery Ward garden shop but held puddles of water near the door mat. Even though these puddles were noticeable to everyone after the accident when attention was drawn to them, we cannot say that the trial court erred in concluding plaintiff was not contributorily negligent in not noticing them under the circumstances. We agree that plaintiff, with an infant in her arms, proceeded reasonably.

THE OWNER’S LIABILITY

Wal-Mart argues that CC Arts. 2317, 2322, and 2695 should be applied to require the owner-lessor of the building to indemnify Wal-Mart for the “loss” that resulted to it (the liability to plaintiff) from the alleged “defect” in the doors of the vestibule. CC Art. 2695.

Wal-Mart urges that water had leaked into the vestibule on the morning of the accident before the store was open and that the newly constructed doors caused more exposure to rain water and constituted a defect in the premises.

Whether a building poses an unreasonable risk of injury to others is an issue that requires careful legal analysis to determine the scope of the duty or legal cause of the injury, relating or balancing the risk created by the thing with the social utility of the thing. Entrevia v. Hood, 427 So.2d 1146 (La.1983). The issue is more than one of cause-in-fact and is resolved in the “strict” liability case by the analysis that is similarly employed in the negligence case. 427 So.2d at 1149.

Even should we agree, arguendo, with the premise that water had leaked around and under the doors, we cannot agree with Wal-Mart’s ultimate conclusion. The expert testimony can easily be interpreted to establish that it is impossible to make swinging doors of the type used here and on most retail buildings completely watertight. It may also be easily concluded that the mud and grime that accumulated on the floor caused the fall and resulted from customer traffic rather than from leakage or seepage of rain water around the doors.

It has not been shown that the assumed leakage produced a quantity of water which, with reasonable attention, could not have been controlled or sealed off from customers, especially if Wal-Mart knew of the water as early as its employee indicated. Compare Burgess v. City of Shreveport, (La.App. 2d Cir.1984), and Entrevia, supra. In the light of these circumstances, the trial court’s conclusion that there was no defect which presented an unreasonable risk of harm was not clearly wrong.

GENERAL DAMAGES

As a result of the fall, plaintiff sustained injuries to her lower back, right knee and ankles. She was taken to Dr. Dennie’s office in Jonesboro immediately after the fall and was admitted to the hospital on that same day. Dr. Dennie diagnosed a severe lumbosacral sprain, a contusion to the right hip and knee, and a mild sprain to both ankles. He admitted her to the hospital because of severe pain in the lower back and right hip and treated her with pain and anti-inflammatory medication. She continued to see Dr. Dennie for pain until August 1980.

On July 3, 1980, plaintiff saw Dr. Ram-bach, an orthopedic surgeon. He found that she had bruised her lumbosacral area, but did not find indications of any mechanical nerve root compression. Dr. Rambach hospitalized plaintiff on August 26, 1980, for treatment of possible intervertebral disc herniation and for low back and leg pain. A lumbar myelogram could not be performed because plaintiff was allergic to the dye. An electromyographic study (EMG) was performed. This study did not then indicate a ruptured disc. Plaintiff was given physical therapy and pain medication and was released on September 5, 1980. Dr. Rambach then referred plaintiff to Dr. Greer, a neurosurgeon.

Dr. Greer saw plaintiff on October 13, 1980. He conducted some neurological tests and thought that plaintiff might have a ruptured disc at the L5 level. Dr. Greer sent plaintiff to Dr. Wood in Memphis. Dr. Wood recommended that a CT scan be done since a myelogram could not be performed. Plaintiff was hospitalized by Dr. Greer on November 30, 1980, for the CT scan. The CT scan indicated a ruptured disc at the L5 level which was surgically removed on December 5, 1980. Dr. Greer noted during surgery that the SI nerve root was very swollen. Plaintiff saw Dr. Greer again on December 30, 1980, and February 10, 1981, with complaints of pain in her lower extremities. She was hospitalized again on February 11, 1981, for testing of her upper back. These tests were negative. During this hospitalization plaintiff saw Dr. Erwin, a psychiatrist, who said that plaintiff was suffering from an anxiety neurosis. Upon discharge, plaintiff was referred to Dr. Joe M. Smith of Shreveport, a specialist in physical medicine and rehabilitation.

Dr. Smith began treating plaintiff in February 1981. He found evidence of pain over her left hip caused by nerve root pressure in ¿he L5 area. He hospitalized plaintiff, performed an epidural nerve block to relieve the pain, and began physical therapy. After discharge plaintiff continued on pain medication and was given an exercise program. Dr. Smith hospitalized plaintiff again in July and September 1981 and in July, October, and December of 1982. Treatment during these hospitalizations consisted of epidural nerve blocks, physical therapy and pain medication.

Three of the doctors opined that plaintiff may have exaggerated the severity of her pain. Dr. Greer assessed plaintiff with a twenty percent permanent disability. Under these circumstances we cannot find that the general damage award of $100,000 is an abuse of the trial court’s discretion.

LOSS OF EARNINGS

FUTURE MEDICAL

MAID SERVICE

Dr. Smith, who began his treatment in February 1981, said that plaintiff could and should perform employment duties where she could stand and move around from time to time. He was of the opinion that this type activity would increase the pain killing substances in the body and would benefit plaintiff and ease her pain. Dr. Smith suggested that plaintiff should begin working three or four hours a day and gradually increase her working time.

Plaintiff had worked from time to time before the accident and at other times chose to be unemployed for several months at a time. Her working history in the last decade was:

1971-1972 — Horton’s Grocery, part-time and full-time cashier.
1972-1973 — Jackson Parish School Board, part-time lunchroom worker.
1974-1975 — Salley Grocery Company, cashier.
1976-1978 — Gravel’s Drug Store, part-time clerk.

Plaintiff was not employed for several months at a time in between these jobs. She was never fired from these jobs, but rather she chose to quit her employment. She quit working for Gravel’s Drug Store in 1978 because her husband wanted her to stay home. Most of the jobs she held paid only the minimum wage and she did not work 40 hours weekly with any consistency-

About a month before the accident, plaintiff separated from her husband and sought employment. She and her husband reconciled before the trial.

Dr. Smith said that plaintiff would probably require some future hospitalization and treatment for pain. He said she might be sent to a chronic pain center for treatment, but explained that he had done everything for her that would be done in a pain center. Dr. Smith would discourage further hospitalization because, in his opinion, it would psychologically reinforce plaintiffs complaints of pain.

As before mentioned, three of the doctors agreed that plaintiff was at least guilty of “some exaggeration” of her complaints. The trial court also made this observation.

It is true that earning capacity is not measured by actual loss (Folse v. Fakouri, 371 So.2d 1120 (La.1979)) and that future medical expenses should not be denied because it is impossible to establish the exact cost of it (Cushman v. Fireman’s Fund Ins. Co., 401 So.2d 477 (La. App. 2d Cir.1981)). Cushman affirmed a trial court award for maid service. There, however, a maid had been employed. Here plaintiffs unemployed husband attends to services that plaintiff cannot do.

Even though the trial court did not discuss plaintiffs claim of loss of earning capacity, future medical expense, or maid service, we must view the record most favorably toward supporting the judgment which did not award damages for these items. Commercial Union Ins. Co. v. Stidom, 408 So.2d 285 (La.App. 2d Cir.1981). The award for general damages and lost wages ($124,000), plus medical expenses ($30,759.83) is within the range of discretion afforded a trial court. Any increase for impairment of earning capacity and future medical that we might award should be the lowest amount we would have affirmed. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

The trial court obviously was not impressed with plaintiffs complaints. In view of the circumstances, any finding that the trial court erred in failing to award damages for loss of earning capacity, future medical expense and maid service becomes somewhat tenuous. Nonetheless, this plaintiff has shown some impairment of earning capacity and some probability of some future medical treatment. We shall minimally increase the awards as the law directs. We believe a minimal increase of $20,000 is reasonable under the circumstances of this record for both items. We find no error in the trial court rejecting plaintiffs demand for maid services, past and future.

DECREE

As here summarized, and except to the extent we have modified, we adopt the reasons given by the trial court for the judgment. At the cost of appellee, we amend to increase the judgment from $154,759.83 to $174,759.83, and as amended, we AFFIRM the judgment.

SEXTON, J., concurs.


author: NORRIS, Judge.

text:
    STATE of Louisiana, Appellee, v. James H. BALDWIN, Appellant.
    No. 16100-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.

      Edward L. Henderson, Grambling, for appellant.
    William J. Guste, Jr., Atty. Gen., T.J. Adkins, Dist. Atty., Baton Rouge, Dan J. Grady, III, Asst. Dist. Atty., Ruston, for appellee.
    Before MARVIN, SEXTON and NORRIS, JJ.
   NORRIS, Judge.

Defendant, James H. Baldwin appeals a jury conviction of attempted second degree murder in violation of La.R.S. 14:27 and 30.1 , respectively, and the resulting sentence of fifteen years at hard labor without benefit of probation, parole, or suspension of sentence. Finding no merit to the two assignments of error raised, we affirm.

FACTS

On February 1, 1983, the defendant and Leroy Mayfield were engaged in a game of pool at Cornell’s Kitchen in Ruston, Louisiana, when an altercation occurred. The two men were separated and the defendant left the premises. A short time later, the defendant returned with a .12 gauge sawed off shotgun. Upon his entry into the establishment, he was grabbed from the rear by Mayfield who was unarmed and a struggle resulted over the possession of the gun. Ultimately, Mayfield was thrown or fell to the ground at which time the defendant regained control of the gun. While on the ground, Mayfield grabbed a metal folding chair which he placed between himself and the defendant in an area covering his chest. The defendant then fired one shot at May-field. The chair caused pellets fired from the gun to be deflected into Mayfield’s chest.

Thereafter, defendant was charged by bill of information with attempted second degree murder, tried, convicted and sentenced.

ASSIGNMENTS OF ERROR

Defendant assigns the following errors:

(1) The court erred by overruling defendant’s objection to questions by the State directed at defendant’s past criminal record; and

(2) The court erred by imposing a sentence upon the defendant that was excessive, harsh and without necessity for purpose of rehabilitation of defendant.

ASSIGNMENT OF ERROR NO. 1

In connection with this assignment of error, defendant argues that it was error for the trial court to allow the state to continuously question the defendant with regard to his past criminal record because the line of questioning directed to the defendant on cross examination was not relevant to any respect regarding the charge for which the defendant was being tried. Defendant argues that because the state had no “rap sheet” in its file at the time of trial that it did not intend at the outset to impeach this witness and that the true issue is whether or not the evidence introduced was relevant.

During the trial, the defendant took the stand on his own behalf attempting to establish the defense of an accidental shooting which occurred while the defendant was attempting to defend himself against Mayfield. The state’s first question to the defendant on cross examination was:

Q. Mr. Baldwin have you ever been convicted of anything yourself?
A. Yes sir.

At this point, counsel for defendant stated that he wished to make an objection and the jury was removed. Thereafter, the defense related that it had filed a motion for discovery which the state had answered to the effect that it had no “rap sheet” on the defendant causing the defense to be unaware of any past convictions. Therefore, the defense objected to any questions regarding any convictions or the “rap sheet” since it was not made available by the state. The state responded that it had no “rap sheet” on the defendant and offered to allow the court to view the state’s file to verify this fact. However, it was the state’s position that it still had the right to ask the defendant about past convictions even in its absence. Defense counsel responded that he would agree that the state could perhaps ask the defendant about his past convictions but that if it tried to impeach his testimony through the use of a “rap sheet” or a certified copy of a conviction that the defense would object. The state then went on to ask the defendant about his past convictions and the defendant admitted to convictions for felony theft and simple battery.

La.R.S. 15:495 permits evidence of prior conviction of a crime to impeach the credibility of a witness. State v. Shelton, 377 So.2d 96 (La.1979). When an accused takes the stand in his own defense, evidence of a prior conviction is admissible for the purpose of impeaching his credibility. La.R.S. 15:495; State v. Finley, 341 So.2d 381 (La.1976); State v. Brent, 347 So.2d 1112 (La.1977). The questions propounded by the district attorney fully complied with this established rule of law and were proper relevant inquiries.

The failure of the state to obtain a rap sheet prior to such questioning is of no effect. La.C.Cr.P. Art. 717 provides that upon motion of the defendant, the court shall order the district attorney or the appropriate law enforcement agency to furnish to defendant a copy of any record of his criminal arrests and convictions that is in their possession or custody; accordingly, the defendant was entitled to a copy of any rap sheet or record of his criminal arrest and conviction in the possession of the state. See State v. Clement, 368 So.2d 1037 (La.1979). However, there is no duty on the part of the state to disclose information which it does not possess. State v. Alpine, 404 So.2d 213 (La.1981). Accordingly, exclusion of the evidence, a sanction of La.C.Cr.P. Art. 729.5 is not a sanction which is available where there is nothing [here, a rap sheet] to disclose.

Defendant’s arguments in connection with this assignment of error lack merit.

ASSIGNMENT OF ERROR NO. 2

Defendant next argues that the court erred by imposing a sentence that was excessive, harsh and without necessity for purposes of rehabilitation.

Article I, § 20 of the Louisiana Constitution of 1974 prohibits the imposition by law of excessive punishment. Although a sentence is within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762 (La.1979). In imposing sentence a trial judge must comply with the mandatory requirements of La.C.Cr.P. Art. 894.1 and individualize the sentence by stating for the record the considerations taken into account and the factual bases therefor, [State v. Jones, 381 So.2d 416 (La.1980).] because sentencing guidelines of La.C.Cr.P. Art. 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983); State v. Sepulvado, supra. However, Article 894.1 does not require that the trial judge set forth for the record all of the factors listed in the statute which were accorded weight by him in determining to impose a sentence of imprisonment. State v. Jacobs, 383 So.2d 342 (La.1980). Furthermore, when the trial judge uses a form listing the aggravating and mitigating circumstances of Article 894.1 and articulates some of the reasons contemplated by the statute for the sentence, the guidelines of the statute have been substantially met. State v. Lemons, 430 So.2d 150 (La.App. 2d Cir.1983). While a sentence may be vacated and a case remanded for re-sentencing when the reasons for an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record, a sentence should not be set aside as excessive in the absence of an abuse of the wide discretion accorded a trial judge in the imposition of sentences within statutory limits. State v. Trahan, 425 So.2d 1222 (La.1983).

There is no need for a remand in this case. Contained within the record is a detailed written statement of the trial judge in which he meticulously lays out the factors and considerations taken into account in arriving at this particular sentence. Included among the factors considered were defendant’s nine arrests without conviction, five misdemeanor convictions [all involving violent crimes against the person] and one prior felony conviction. Based upon the record in this proceeding and other information provided to the court, including the pre-sentence investigation, the trial judge found that there appeared to be an undue and significant risk that during the period of any possible suspended or probated sentence that the defendant would commit another crime; however, it was noted that under La.C.Cr.P. Arts. 893 and 893.1 that a suspended sentence was prohibited. It was further found that the defendant was in need of correctional treatment and custodial environment that could be provided most effectively by his commitment to an appropriate institution and that a lesser sentence would deprecate the seriousness of the crime. The trial judge concluded that the defendant’s criminal conduct not only caused serious bodily harm to the immediate victim but threatened such harm to innocent bystanders all of which was contemplated by the defendant. It was finally concluded that the defendant has an obvious history of disregard for the law, particularly showing a tendency toward violence and that the defendant’s criminal cqnduct was based on circumstances that are likely to recur. Based on the foregoing considerations and others not enumerated herein, the trial judge imposed the sentence of fifteen years at hard labor without benefit of parole, probation or suspension of sentence.

Our review of the record leads us to conclude that this sentence is commensurate with, rather than grossly disproportionate to, the severity of defendant’s offense. The extended imprisonment is not needless and purposeless but is imposed to negate the defendant’s opportunity to commit such crimes in the future. The sentence is adequately particularized to this particular defendant in light of his particular crime. But for the location of a metal folding chair, the crime could well have been second degree murder rather than a mere attempt. Consequently, we find that the trial judge did not abuse his discretion, and the sentence is not excessive.

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

CONVICTION AND SENTENCE AFFIRMED.

      . La.R.S!' 14:27 provides:
      A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
      B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.
      C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.
      D.Whoever attempts to commit any crime shall be punished as follows:
      (1) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not more than fifty years;

      La.R.S. 14:30.1 provides:
      Second degree murder is the killing of a human being:
      (1) When the offender has a specific intent to kill or to inflict great bodily harm; or
      (2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.
      Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

      . La.C.Cr.P. 893.1 provides:
      When the court makes a finding that a firearm was used in the commission of a felony and when suspension of sentence is not otherwise prohibited, the court shall impose a sentence which is not less than:
      (1) The maximum sentence provided by law, in the same manner as provided in the offense, if the maximum sentence is less than five years, or
      (2) Five years, in the same manner as provided in the offense, if the maximum sentence is five years or more.
      Imposition or execution of sentence shall not be suspended and the offender shall not be eligible for probation or parole.


text:
    SUCCESSION OF James Edmond PRICE, Appellee, Irene Hampton Stewart, Legatee, v. Billy Jack PRICE, Appellant.
    No. 16101-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Shadoin & Sheehan by Robert E. Sha-doin, Ruston, for appellant.
    Sharp & McVea by Robert W. Sharp, Jr., Ruston, for appellee.
    Before HALL and SEXTON, JJ., and McCLENDON, J. Pro Tempore.
   SEXTON, Judge.

Billy Jack Price brought an action to annul the probated statutory testament of his uncle, James Edmond Price, an inter-diet, claiming that the decedent did not possess the requisite capacity to dispose of his property mortis causa. The trial court upheld the validity of the will, finding that the opponent had not proven the testamentary incapacity of James Edmond Price. We affirm.

James Edmond Price died on August 23, 1981. He left a statutory will which he executed on May 3, 1971 designating Irene Hampton Stewart, his neighbor, as his sole testamentary heir and universal legatee. The will was probated on March 23, 1982 and Mrs. Stewart was sent into possession. Shortly thereafter, this attack upon the validity of the will was initiated.

The sole issue presented by this appeal is whether the trial judge erred in his finding that James Edmond Price was mentally capable of executing a testament on May 3, 1971.

One must be of sound mind to donate mortis causa. LSA-C.C. Art. 1475. The determination of capacity is tested at the moment at which the donation is made. LSA-C.C. Art. 1472. Testamentary capacity is always presumed until the contrary is established. Succession of Schmidt, 219 La. 675, 53 So.2d 834 (1951); Succession of Lambert, 185 La. 416, 169 So. 453 (1936); Succession of Mithoff 168 La. 624, 122 So. 886 (1929). The degree of proof required to overcome this presumption of capacity is great and is sometimes said to be similar to that required in criminal cases, namely, any reasonable doubt must be resolved in favor of the validity of the testament. This burden rests with the opponent of the will. Succession of Mithoff, supra; Succession of Schmidt, supra; Succession of Lambert, supra; Succession of Keel, 442 So.2d 691 (La.App. 1st Cir.1983); Succession of Lyons, 441 So.2d 229 (La.App. 4th Cir.1983); Succession of Budwah, 441 So.2d 39 (La.App. 3d Cir.1983); Succession of Kilpatrick, 422 So.2d 464 (La.App. 2d Cir.1982), writs denied, 429 So.2d 126; Succession of Littleton, 391 So.2d 944 (La.App. 2d Cir.1980); Succession of Arnold, 375 So.2d 157 (La.App. 2d Cir.1979); Succession of Patterson, 329 So.2d 925 (La.App. 2d Cir.1976).

Interdiction, standing alone, does not ipso facto incapacitate the interdict from making a will, but is only evidence of decedent’s incapacity to be evaluated in light of the other evidence. Succession of Lanata, 205 La. 915, 18 So.2d 500 (1944).

The determination of testamentary capacity is a question of fact and the trial judge’s finding in this respect will not be disturbed unless clearly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Succession of Kilpatrick, supra; Brown v. Dunbar, 375 So.2d 148 (La.App. 2d Cir.1979); Succession of Smith, 261 So.2d 679 (La.App. 2d Cir.1972).

At trial, the opponent introduced in his case in chief the interdiction proceedings and rested. These proceedings reveal that a petition for interdiction of James Edmond Price was filed by his sister, Julia Cooper, on June 16, 1925. A neuro-psychiatric report completed upon examination of Mr. Price by T.J. Seale, ward surgeon, and dated January 26, 1925, forms a part of the interdiction record. This report states that James Edmond Price was discharged from the Army on March 20, 1918 for the reason of “mental defect, moron.” The report quotes the present complaint of the patient as “I have been crazy but I am getting right again.” Mr. Price was diagnosed in the ward surgeon’s report as suffering from Dementia Praecox — Simple Type, and it was recommended that he be transferred to a hospital for prolonged care and treatment. Based on this evidence, judgment was signed interdicting James Edmond Price on June 29, 1925. The judgment of interdiction was never lifted and remained in effect on the date of Mr. Price’s death, August 23, 1981.

The proponent introduced the testimony of six witnesses in addition to her own. Each witness had known Mr. Price for a number of years and each testified that they were unaware of any mental infirmity. These witnesses testified that James Edmond Price had never exhibited bizarre or irrational behavior and had not seemed confused, disoriented, or unable to comprehend or communicate. To the contrary, the witnesses portrayed Mr. Price as a friendly, kind and gentle man who remembered birthdays and holidays and who was a shrewd trader, frugal with his money. Particularly noteworthy is the testimony of Dr. Joseph L. Smith, an internist who was Mr. Price’s personal physician. Dr. Smith testified that he had examined Mr. Price on May 3, 1971, the day the will in question was executed. The decedent was being treated for high blood pressure and came in for a routine examination. The doctor testified that Mr. Price appeared to have no mental problems on that day and “had his mind,” as he had on all other occasions when Dr. Smith had examined him.

In rebuttal, plaintiff called Mr. A.K. Goff, the attorney for Ruston State Bank, curator of the deceased. Mr. Goff testified that the latest entry in his file concerning Mr. Price was 1957. Although Mr. Goff admitted that he had not seen Mr. Price during the period in which the will was confected, he described the decedent as walking with an abnormal gait, with facial expressions of one not capable of actions of a normally competent person. Mr. Goff opined that, as an attorney, he would not have prepared and executed a testament for the deceased.

Finally, a letter from Mr. Hale M. Walker, the attorney who prepared the testament for James Edmond Price, was introduced by stipulation. The letter states that although Mr. Walker had no independent recollection of drawing up Mr. Price’s will, he would not have prepared a will for a person whom he did not believe knew what he was doing.

An evaluation of this evidence in light of the applicable legal principles leads us to conclude that the strong presumption of Mr. Price’s sanity was not overcome by the fact that he had been interdicted some 56 years before his death. In fact, the evidence shows that Mr. Price was a mentally capable individual who carried through with his oft expressed desire that his neighbor, who was his friend and cared for him for a number of years, should have his worldly possessions. The trial judge’s finding that James Edmond Price possessed testamentary capacity on May 3, 1971 is not clearly erroneous and is accordingly affirmed.

AFFIRMED.


author: HALL, Judge.

text:
    Larry D. AVERY, Plaintiff-Appellant, v. Aaron Purvis NASH, Defendant-Appellee.
    No. 16103-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.

      Culpepper, Teat, Caldwell & Avery by Bobby L. Culpepper, Jonesboro, for plaintiff-appellant.
    Robert W. Levy, Ruston, for defendant-appellee.
    Before PRICE, HALL and NORRIS, JJ.
   HALL, Judge.

This suit originated as a possessory action filed in March 1982 by Larry D. Avery against his neighboring property owner, Aaron Purvis Nash, and involves a strip of land located on the east side of the property to which Nash has record title, containing .19 acres and measuring 913.4 feet in length north and south and from 2 to 11 feet in width. Alleging that he had been in possession of the property for more than one year and that Nash had disturbed his possession by cutting a portion of a fence erected by him, Avery prayed to be maintained in possession of the disputed property. Nash filed an answer and reconven-tional demand denying Avery’s allegations and asserting ownership of the disputed strip. Nash alleged that he acquired the property by inheritance from his parents who had owned and possessed it since 1930 and he prayed for judgment recognizing his ownership of the disputed property, thereby converting the action into a petitory action. LSA-C.C.P. Art. 3657.

After trial the district court held that Nash established a prescriptive title to the ideal boundary between the .respective properties by virtue of possession under color of title and that Avery failed to establish a 30-year prescriptive title to the disputed strip of land. From a judgment rejecting Avery’s demands and recognizing the boundary line between the properties to be the ideal boundary as established by a survey filed into evidence, Avery appealed. For reasons expressed in this opinion, the judgment of the district court is affirmed.

On appeal, the appellant specifies that the trial court erred (1) in finding that Nash sustained his burden of proving ownership by title or acquisitive prescription; (2) in holding that Nash’s possession was sufficient to establish a prescriptive title considering the fact that Avery had civil or corporeal possession for periods of 10 and 30 years; (3) in concluding that Avery could not tack the possession of his predecessors in title onto his own possession; and (4) in recognizing the boundary line between the properties to be the ideal boundary as established by the survey.

By asserting ownership in answer to Avery's possessory action, Nash converted the suit into a petitory action and judicially confessed Avery’s possession. LSA-C.C.P. Art. 3657; Suire v. Primeaux, 363 So.2d 963 (La.App.3d Cir.1978); Lemoine v. Couvillon, 321 So.2d 37 (La.App.3d Cir.1975).

Nash, as plaintiff in a petitory action against a defendant in possession of disputed property, in order to obtain judgment recognizing his ownership of the disputed property, is required to prove that he acquired ownership from a previous owner or by acquisitive prescription. LSA-C.C. Arts. 531 and 532; LSA-C.C.P. Art. 3653. Without regard for the character or quality of Avery’s title, Nash must be able to trace his title back to the sovereign or to a common author, or prove that he has acquired ownership of the disputed strip by acquisitive prescription. See Weaver v. Hailey, 416 So.2d 311 (La.App.3d Cir.1982), confirming the viability of the rule of Pure Oil Company v. Skinner, 294 So.2d 797 (La.1974), after the adoption of LSA-C.C. Arts. 531 and 532 by Act 180 of 1979, effective January 1, 1980, and the amendment of LSA-C.C.P. Art. 3653 by Act 256 of 1981. See also Raymond v. Simmons, 424 So.2d 544 (La.App. 5th Cir.1982) and Whitley v. Texaco, Inc., 434 So.2d 96 (La. App. 5th Cir.1983).

Nash makes no claim that he established title good against the world or acquisition from a common author in title. The chain of title introduced by him does not stem from the sovereign or a common author and there is also a break in the chain of conveyances. Consequently, if Nash is to prevail he must rely on proof of acquisitive prescription. We conclude, as did the trial court, that Nash established ownership of the disputed strip by 10 years acquisitive prescription based on possession, corporeal, constructive and civil, to the limits of the property described in the deed by which his parents purported to acquire title, which title devolved to Nash by inheritance and a partition with his co-heirs.

The evidence establishes that after obtaining a deed to the property from the record owner, the Nash family moved onto the tract which includes the disputed strip in 1930 and began possession of all of the property described in their title. According to Nash, who was 16 years old at the time, there was at that point in time a 3-strand barbed wire fence along the ideal boundary between the Nash tract and the tract which Avery later acquired. A survey performed by a surveyor named Crowson one or two years after the Nash family moved onto the tract confirmed the barbed wire fence as the ideal boundary.

From 1930 until approximately 1935 the Nash family cultivated their property up to the fence along the ideal boundary. At that time, in connection with their plans to begin running cattle on the property, they erected a combination net and barbed wire fence on their property west of the old barbed wire fence then existing along the ideal boundary. Construction of the net and barbed wire fence was required because the fence along the boundary was in a state of disrepair. Because a thicket of underbrush and trees had grown up around the boundary fence, it was decided as a matter of convenience to place the net and barbed wire fence slightly over onto their property at the edge of the cultivated area rather than to attempt to clear the thicket and rebuild the old fence.

Nash testified that it was not his family’s intention to abandon the small portion of their property between the two fence lines or to have the new net arid barbed wire fence mark the boundary. After 1935, until the time of this dispute, the Nash family allowed the strip outside of the net and barbed wire fence to remain idle, except that Nash did cut some fence posts from timber growing on that strip and crossed it while hunting on his property. The Nash family continued to actively and corporeally possess the balance of their tract of land.

Avery acquired approximately 30 acres east of the Nash property in 1970, and constructed a new fence slightly east of and along the line of the net and barbed wire fence, which he assumed to be the boundary of his property. Avery bulldozed and cleared his property east of the fence, which was wooded until that time, and thereafter used it for pasture.

Although there was testimony by witnesses on behalf of Avery disputing the existence of the old 3-strand barbed wire fence along the ideal boundary line, the preponderance of the evidence is that such a fence existed at the time the Nash family moved onto the property in 1930. The evidence presented by Avery as to possession prior to 1970 of the property east of the net and barbed wire fence built by the Nash family in about 1935 was meager. The testimony showed that the previous owner, a Mr. Whitten, had allowed the tract to grow up in timber. There was testimony that a Mr. Pepper, who owned a tract which adjoined the Nash and Whitten properties, had run some cattle on the Whitten property for an unspecified period of time after 1946 in the 1950s or 1960s and that he had performed some maintenance and repair work on the net and barbed wire fence.

In 1981 the Nash property was surveyed by A.D. Hullet, Jr., in connection with a partition of the Nash property among family members. After the survey and after Nash acquired full title to a part of the Nash property in the partition, he cut the fence which had been built by Avery with the intent of locating a new fence on the ideal boundary line. This litigation ensued.

Ownership of an immovable may be acquired by 10 years prescription when the possessor has been in good faith and held by a just title during that time. LSA-C.C. Art. 3474. Four conditions must be proved, that is, good faith on the part of the possessor, a legal title sufficient to transfer the property, possession during the time required by law, and an object which may be acquired by prescription. LSA-C.C. Art. 3479. The possession must be continuous and uninterrupted, peaceable, public, and unequivocal. Civil possession shall suffice, if preceded by corporeal possession. LSA-C.C. Art. 3487. The possessor may tack onto his own possession that of his author in title. LSA-C.C. Art. 3493. Particularly pertinent to this case, when a person has a title and possession conformably to it, he is presumed to possess according to the title and to the full extent of its limits. LSA-C..C. Art. 3498.

Essentials of possession are the intention of possessing as owner and the corporeal possession of the thing. LSA-C.C. Art. 3436. It is sufficient if one enters on and occupies a part of the land, provided it be with the intention of possessing all that is included within the boundaries. LSA-C.C. Art. 3437. When a person has once acquired possession of a thing by the corporeal detention of it, the intention which he has of possessing suffices to preserve the possession in him, although he may have ceased to have the thing in actual custody. LSA-C.C. Art. 3442. This intention of retaining possession is always supposed, where a contrary intention does not appear decidedly; so that, although a person may have abandoned the cultivation of his estate, he shall not therefore be presumed to have abandoned the possession, but shall be presumed on the contrary to have the intention of retaining it, and shall retain it in fact. LSA-C.C. Art. 3443. Possession is “civil” when a person ceases to reside on the land which he occupied, but without intending to abandon the possession. LSA-C.C. Art. 3429. Civil possession is the detention of a thing by virtue of just title, and under the conviction of possessing as owner. LSA-C.C. Art. 3431.

In Whitley v. Texaco, Inc., supra, the court held:

“... Actual possession of part of the tract of land, with title to the whole, and intent to possess the whole, is possession of the whole; and when thus commenced, such possession is continued by a mere civil possession unless ousted by a counter actual possession of one year....
“When a person has once acquired actual possession, his intention may serve to preserve the possession, though he may have ceased to have the thing in actual custody; and the intention is always supposed where a contrary intention does not appear....
“A possessor does not lose possession against his consent unless he is forcibly expelled or unless the disturber usurps possession and holds it for more than a year....”

That Nash had just title and was in good faith is not disputed. Good faith is always presumed. LSA-C.C. Art. 3481. The Nash family exercised corporeal possession of the whole property to the limits of the boundaries described in their title from 1930 to 1935, when they built the fence inside of their boundary for convenience. After 1935, they continued to exercise corporeal possession of their property, possession of the strip outside the fence being constructive and civil. The evidence establishes that the Nashes did not abandon the disputed strip and establishes their intent to exercise possession to the full extent of their title, including the disputed strip. This possession continued uninterrupted until 1970, long after the accrual in 1940 of 10 years acquisitive prescription and acquisition of ownership of the entire property included in their title.

Avery’s possession of the disputed strip outside of the fence for 10 or 11 years commencing in 1970 when he built a new fence, did not serve to divest the Nash family of ownership. Since the strip is not contained within Avery’s title, in order for him to prevail he must show that he and his ancestors in title possessed adversely and as owners beyond their title to a visible boundary continuously for 30 years in accordance with LSA-C.C. Art. 794. Avery’s possession was for only 10 or 11 years and the meager evidence of possession by Avery’s ancestors in title is insufficient to establish possession of the strip of land sufficient to support 30 years acquisitive prescription.

The trial court was correct in fixing the boundary along the ideal boundary line in accordance with Nash’s title, thereby implicitly recognizing Nash’s ownership of the strip of land lying between the fence and the ideal boundary line.

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

Affirmed.

      . All citations in this opinion are to the Civil Code articles on possession and prescription prior to their revision by Act 187 of 1982, effective January 1, 1983.


author: PRICE, Judge.

text:
    Rudolph WILLIAMS, Plaintiff-Appellant, v. Roy REYNOLDS, et ux., Defendants-Appellees.
    No. 16114-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.

      Cameron C. Minard, Columbia, for plaintiff-appellant.
    Paul B. Wilkins, Columbia, for defendant-appellee.
    Before PRICE, HALL and NORRIS, JJ.
   PRICE, Judge.

This is an eviction suit. Plaintiff appeals the trial court judgment denying his prayer for eviction of the defendants from the leased property.

He contends the trial court erred in allowing defendants-lessees to question the title of their lessor, in considering the outcome of a petitory action allegedly concerning the subject property which was pending at the time of plaintiff’s rule to evict, and in taking the matter under advisement and failing to render judgment for more than six months.

In March 1982 plaintiff and defendants entered into an oral month-to-month lease of plaintiffs’ small tract of land in the southwest corner of Section 18, T 14 N, R 5 E, fronting on the Boeuf River in Caldwell Parish. The price agreed upon was $35.00 per month which was paid for the month of March. Defendants placed their mobile home on the property. Defendants failed to pay the rent due for the months of April and May and on May 13, 1982, plaintiffs filed suit seeking the past due rent, recognition of his lessor’s lien and privilege on defendants’ mobile home, and eviction of defendants. Defendants responded to this suit with a general denial answer filed in proper person.

An intervention was filed by parties collectively known as the “Brown Heirs” who claimed to be the true owners of the property leased to defendants, and alleging that they had entered into a written lease of the property with defendants. The intervention was dismissed on an exception of no cause of action.

After trial of the matter, judgment was rendered in this first suit on August 5, 1982, awarding plaintiff four months’ past-due rent in the amount of $140 and recognizing plaintiff’s lien and privilege on defendants’ mobile home, but denying the prayer for eviction. This judgment stated that the “lease contract is recognized and will continue in effect until further proceedings.” No appeal was taken from this judgment.

At this point, plaintiff simply wanted the lease terminated and purportedly had his attorney so inform defendants by letter. However, there is no letter to this effect in the record. Sometime thereafter, defendants tendered to plaintiff a check dated August 30, 1982, in the amount of $70 purporting to be rent for August and September. Plaintiff took the check to his attorney who returned it and wrote defendants another letter dated September 1, 1982, stating plaintiff desired to terminate the lease. On October 13, 1982, plaintiff filed this rule in the same numbered proceedings as the first eviction suit. Hearing was held November 18, 1982, at which defendants did not appear but were represented by their appointed curator.

Plaintiff testified that he had a small piece of property located across the road from his house and fronting on Boeuf River which he leased to defendants on a monthly basis; that defendants paid one-month’s rent, missed a month’s rent and he sued them; that defendants paid the judgment resulting from that suit, satisfying the rent through July 1982; that he then refused to accept further rent and took steps to notify them of termination of the lease through his attorney.

Over objection of plaintiff’s counsel, defendants introduced into the record a copy of the lease granted to them by the Brown Heirs on property which they claim to be the same land they leased from plaintiff. The trial court took the matter under advisement and after a long delay dismissed plaintiff’s demand for eviction, continuing defendants in possession of the property. This conclusion was apparently reached on the basis of a trial court ruling in favor of the Brown Heirs in a suit concerning certain property located in Caldwell Parish and entitled Beula Howell Brown, et al v. Verra McClanahan Wood, et vir, No. 13,-652 on the docket of the Thirty-Seventh Judicial District Court. It is from this second judgment denying eviction, rendered June 10, 1983, that plaintiff now appeals. We reverse.

La.C.C.P. Articles 4701 through 4705 provide a summary process for eviction of a lessee by a lessor because the lease has ended due to expiration of its term, or for other lawful cause. It is well settled that a summary action for eviction of a tenant or lessee under these articles involves the single issue of whether the lessor is entitled to receive back possession of the leased premises. Roussel v. Dalche, 158 La. 742, 104 So. 637 (1925); Vicknair v. Watson-Pitchford Inc., 348 So.2d 695 (La.App. 1st Cir.1977).

It is likewise well established that a person may lease property of which he is not the owner, under the principle of La. C.C. Art. 2681, and, as long as he is in undisturbed possession of the property, the lessee may not contest the lessor’s title. Ideal Savings and Homestead Association v. Gould, 163 La. 442, 112 So. 40 (1927); Burgess v. Hogan, 175 So.2d 924 (La.App. 2d Cir.1965). Accordingly, since defendants neither alleged nor showed any disturbance of their possession of the property, consideration of the purported claim of another to the leased property as a defense to plaintiff’s rule for eviction was improper.

Plaintiff introduced evidence to show the lessor-lessee relationship between the parties and proper notice of his termination of the lease which was terminable at the will of either party, since it was on a month-to-month basis with no specified duration. See La.C.C. Art. 2686.

This evidence was unrebutted by the defendants. It was conceded, through the testimony of defendants’ agent Mrs. Goins, that defendants took possession of the property through the plaintiff pursuant to the lease agreement between the parties. It was also admitted that plaintiff had given proper notice of his desire to terminate the lease. Under these circumstances, this is all plaintiff was required to show to meet his burden of proof since, absent a disturbance of possession, an adverse claim to the property has no effect upon the lease. See Dyer v. Wilson, 190 So. 851 (La.App. 2d Cir.1939). We therefore find that the plaintiff was entitled to a judgment of eviction against the defendants from the leased property.

Any dispute with regard to the ownership of the property may properly be determined only in an ordinary proceeding between the lessor and the other party asserting a claim to the subject property.

In light of our finding that plaintiff was entitled to a judgment of eviction, it is unnecessary to reach the other issues raised by plaintiff on appeal.

For the reasons assigned, the judgment appealed is reversed. All costs of this appeal are assessed against defendants-appel-lees.

REVERSED.


text:
    Harvey LOWE, Jr., Plaintiff-Appellant, v. Joe Ollie RIVERS, et al., Defendants-Appellees.
    No. 16115-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.

      Simmons, Nelson & Dunn by Otha Curtis Nelson, Sr., Baton Rouge, for plaintiff-appellant.
    Dawkins, Coyle & Carter by Michael S. Coyle, Ruston, for defendants-appellees.
    Before PRICE and MARVIN, JJ., and ENOS C. McCLENDON, J. Pro Tempore.
   PRICE, Judge.

This workmen’s compensation suit reaches this court on an appeal from the trial court’s sustaining of an exception of prescription by defendant, International Paper Wood Company, Inc.

International Paper was named as a defendant in plaintiff’s second supplemental and amending petition filed more than one year after the date of plaintiff’s alleged on-the-job accident. Plaintiff contends on appeal that the trial court erred in its holding that this amendment of the pleadings does not relate back to the date of the filing of the original petition.

Plaintiff filed his original petition for worker’s compensation benefits against defendant Joe Ollie Rivers on January 25, 1982, alleging that he suffered a job-related injury on March 6, 1981. On March 22, 1982, he filed a first supplemental and amending petition naming- Union Wood Company and an unknown compensation insurer as co-defendants of Rivers. An exception of prescription was filed by Union on April 23, 1982, which was taken under advisement after hearing on the matter on September 21, 1982, and ultimately decided adversely to plaintiff by the trial court.

Meanwhile on October 15, 1982, plaintiff filed a second supplemental and amending petition, once again naming Union as a defendant, naming its worker’s compensation insurer as Georgia Casualty and Surety Company, and further naming International Paper Wood Company, Inc., as a fourth defendant. Plaintiff’s claim against Union has already been resolved by this court in a separate appeal and is not before us at this time.

The plaintiff’s allegation regarding International Paper’s liability for worker’s compensation is extremely vague. It states:

III.
That at all material times herein mentioned the work in which Joe Ollie Rivers and Union Wood Company, Inc. were engaged in was hazardous and particularly the work performed by plaintiff, within the contemplation of the state of Louisiana Workmen’s Compensation Act under contract with International Paper Wood Co., Inc. doing business in the parish of Morehouse, city of Bastrop, Louisiana.

He prayed that all defendants named in his amending petition be held liable jointly and in solido.

International Paper responded to these allegations with an exception of prescription contending plaintiff’s claim against it has prescribed since it was not named as a defendant in the proceedings until well over a year after the date of the alleged accident. The trial court took the matter under advisement after a hearing on the merits, and subsequently rendered judgment sustaining the defendant’s exception of prescription and dismissing plaintiff’s claim against International Paper.

Plaintiff’s action against defendant has clearly prescribed on its face under La.R.S. 23:1209 which provides in pertinent part:

In case of personal injury (including death resulting therefrom) all claims for payment shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have begun as provided in Parts III and IV of this Chapter.

Plaintiff’s accident was alleged to have occurred on March 6, 1981. Suit was not brought against International Paper until October 15, 1982, more than a year after the date of accident. Thus plaintiff bears the burden of proving an interruption or suspension of the running of the time limitation.

Plaintiff contends the running of prescription was tolled by the filing of his original petition on January 25, 1982. He argues that International Paper is jointly and solidarily liable with the original defendant Joe Ollie Rivers and thus a necessary and indispensable party to the suit. He relies primarily on La.C.C.P. Art. 1153 and La.R.S. 9:5801, which was recently repealed because its substance is now contained in La.C.C. Art. 3462.

Former R.S. 9:5801 provided that commencement of a civil action in a court of competent jurisdiction and proper venue interrupts all prescriptions affecting the cause of action therein sued upon as to all defendants. Although plaintiff argues this provision is applicable even to those defendants who are not named as such until after the prescriptive period has expired, it is well settled that the reference to “all defendants” in this section implies only those defendants who are so named in the petition relied upon for the interruption of prescription. The statute has been so interpreted because the legal basis for the interruption of prescription is not simply the filing of suit, in and of itself; the only legal manner by which a defendant can receive notice and knowledge of a claim, and of the origin and basis of the suit thereon, is by service of citation and petition. It thus follows that, ordinarily, a defendant not named in the original petition cannot be served and therefore receives no notice and knowledge of the claim against him sufficient to interrupt prescription. See Majesty v. Comet-Mercury-Ford Company of Lorain, Michigan, 285 So.2d 314 (La.App. 4th Cir.1973), affirmed 296 So.2d 271 (La.1974). See also Schlumbrecht v. Executive Officers of Brown and Root, 371 So.2d 389 (La.App. 4th Cir.1979); Morgan v. Epps, 356 So.2d 1027 (La.App. 1st Cir.1977).

La.C.C.P. Art. 1153 provides:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment dates back to the date of filing of the original pleading.

It has long been accepted that the purpose of this article is to permit the amendment of pleadings despite technical prescriptive bars where the original pleading gives the parties notice of the general fact situation out of which the amended claim or defense arises. Baker v. Payne and Keller of Louisiana, Inc., 390 So.2d 1272 (La.1980). However, the article does not authorize the addition of a new defendant as a mere “amendment” relating back to the time of the original petition since such a defendant has not received a notice of the claim against him by virtue of the original petition. McClendon v. Security Insurance Company of Hartford, 340 So.2d 426 (La.1976).

In Ray v. Alexandria Mall, supra, the Supreme Court established the following criteria for determining whether Article 1153 allows an amendment which changes the identity of the party or parties sued to relate back to the date of filing of the original petition:

(1) The amended claim must arise out of the same transaction or occurrence set forth in the original pleading;
(2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits.
(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him;
(4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.

In that case the plaintiff merely made a mistake as to the proper name of the defendant and service was ultimately made upon the proper party defendant. The court held that, where the above-quoted standards are met, an amending petition to correct a “misnomer” will relate back to the filing of the original petition, thus limiting the Majesty holding to cases in which a wholly new or unrelated defendant, with no knowledge of the original suit, was added. Under such circumstances, the filing of the original petition would not provide notice to the new defendant of the institution of the action.

It is clear the purpose of the amendment in the instant case was clearly not merely to correct a misnomer, but to add a wholly new defendant. The filing of the original petition against Joe Ollie Rivers provided no notice to International Paper of any claim against it by plaintiff. Under these circumstances, the amendment does not relate back to the date of filing the original petition to interrupt the prescription running in favor of defendant.

The critical question in this case is whether La.C.C. Art. 2097, providing that suit brought against one of the debtors in solido interrupts prescription with regard to all, is applicable to the factual situation before us. Under this article, if International Paper were the statutory employer of plaintiff as a result of the relationships between it, Union Wood, and plaintiffs immediate employer, and thus solidarily liable for worker’s compensation benefits under La.R.S. 23:1061, then the earlier suit would be sufficient to interrupt the prescription of plaintiffs claim. See Welch v. Crown Zellerbach, 359 So.2d 154 (La.1978). Plaintiffs petition does not specifically allege that defendant was his statutory employer at the time of his accident. It does state that defendants Rivers and Union Wood were “under contract with” International Paper, and prays that all defendants be held jointly and solidarily liable. However, at the hearing on defendant’s exception of prescription, there was absolutely no evidence introduced to show any relationship between this defendant and either of the other defendants or the plaintiff. It is axiomatic that the party claiming solidary liability between two or more parties bears the burden of proving it. See O’Brien v. Delta Gas Inc., 426 So.2d 262 (La.App. 4th Cir.1983), writ denied 433 So.2d 163 (La.1983).

Not one fact has been introduced into this record to show that the work being performed by the plaintiff was a part of the defendant’s trade, business, or occupation under La.R.S. 23:1061, and that defendant was thus solidarily liable to plaintiff for worker’s compensation benefits along with his immediate employer, although plaintiff was afforded every opportunity to introduce such proof.

Since the plaintiff has failed to show any basis for interruption of the prescription accruing in favor of defendant, we affirm the trial court’s sustaining of the defendant’s exception of prescription.

For the reasons assigned, the judgment appealed is affirmed. All costs of appeal are assessed against plaintiff-appellant.

AFFIRMED.

      . We are aware, in citing Majesty, that its holding has recently been modified to a certain extent by the Supreme Court in Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983); however, we feel that Majesty’s rationale remains viable as far as application to the instant factual situation is concerned, and the Ray holding is reconcilable, as will be shown.


text:
    James STAFFORD, et al., Plaintiff-Appellant, v. LOUISIANA STATE UNIVERSITY, et al., Defendant-Appellee.
    No. 16116-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Ike F. Hawkins, Jr., Shreveport, for appellant.
    Booth, Lockard, Politz, LeSage & D’Anna by Nyle A. Politz, Shreveport, for appellee.
    Before PRICE, HALL and NORRIS, JJ.
   NORRIS, Judge.

In this medical malpractice action, plaintiffs appeal a judgment rejecting their claims against a university hospital and its governing authority for damages arising from an operation. The pivotal issue on appeal is whether a valid informed consent to the surgery was required. For the reasons hereinafter stated, we affirm.

James Stafford and Willie Holmes, the surviving husband and son respectively of Ada Stafford, brought suit against Louisiana State University and Agricultural and Mechanical College Medical School at Shreveport and the university’s Board of Supervisors (hereinafter collectively referred to as “LSUMC”) after Mrs. Stafford’s death. Mrs. Stafford, who was 64 years old and had been confined to a wheelchair for several years, was admitted to LSUMC on February 18, 1980 complaining of abdominal pain, vomiting and weight loss. One of the purposes of this admission was to rule out gastric cancer, and a series of tests was scheduled. After a gastroscopy was performed but before the other studies and tests could be completed, Mrs. Stafford developed ketoacidosis, a life threatening complication of diabetes. She responded affirmatively to the immediate steps undertaken to control that particular condition but developed a severe form of thrombophlebitis in her left leg which presented another life threatening situation because of her condition. Consequently, on February 26, 1980, her treating physicians obtained a consent and authorization from Willie Holmes to initiate surgical procedures to combat this condition. Thereafter, the vena cava was litigated in an effort to prevent blood clots from breaking loose, flowing to the lungs and resulting in pulmonary embolism. However, because of Mrs. Stafford’s condition, the planned thrombectomy designed to remove blood clots in the veins was too risky and was foregone. Following this surgery, the severity of the vascular disease present in Mrs. Stafford’s left leg caused gangrene to develop which progressively worsened despite efforts to control it with conservative treatment. During the evening hours of February 29, 1980, this particular condition was discovered to have deteriorated to the point where surgery was required to amputate the left leg above the knee.

On March 4, 1980, Mrs. Stafford died from acute heart failure resulting from a large pulmonary embolus in the right lung. Thereafter, Dr. George McCormick performed an autopsy and confirmed the cause of death. However, he was unable to state with any certainty that the amputation had contributed to her death. The autopsy did reveal cancer of the pancreas which had mestastasized which Dr. McCormick opined was not the immediate cause of death but which may have contributed to it. Because of the extensive spread of this cancer, Mrs. Stafford probably would not have lived ninety days.

After trial,- the trial court rejected plaintiffs’ contentions that the surgery was unauthorized, performed in a negligent manner or was a contributing factor in

Mrs. Stafford’s death stating in pertinent part:

[Cjonsent of a patient, express or implied, is not required prior to a surgical procedure “in case of an emergency requiring immediate surgery for preservation of life or health, under circumstances in which it is impractical to obtain the consent of the patient or someone authorized to assume such responsibility.
The court finds that the defendant’s conduct was not negligent. Proceeding to amputate without written authorization, either from Mrs. Stafford, her husband or her son, when presented with a life threatening emergency, did not subject the hospital nor the Board of Supervisors to liability in damages to these petitioners.

Plaintiffs contend on appeal that the surgical procedure which resulted in the amputation óf Mrs. Stafford’s leg was performed without a valid informed consent in that a purported telephone consent which LSUMC contends was obtained was not a valid informed consent as is required' by law. It is further contended that the trial court’s determination that a bona fide “emergency” existed which rendered La. R.S. 40:1299.54 operable is erroneous.

The pertinent statutes applicable to this case are La.R.S. 40:1299.40, 1299.54, 1299.53 and 1299.55. The doctrine of consent is explained in Pizzalotto v. Wilson, 437 So.2d 859 (La.1983):

The doctrine of consent to medical treatment is rooted in the idea that a person has the right to make major decisions regarding his own body. Justice Cardozo, when on the high court of New York,- wrote "Every human being of adult years and sound mind has a right to determine what shall be done with his own body and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages.” Schloendorff v. Society of New York Hospitals, 211 N.Y. 125, 105 N.E. 92, 93 (1914). A surgeon commits a battery on his patient when he undertakes a particular surgical procedure without the consent of the patient or an authorized person except, when an emergency requires immediate surgery for the preservation of life or health under circumstances when such consent cannot be practicably obtained. Beck v. Lovell, 361 So.2d 245 (La.App. 1st Cir.), writ den. 362 So.2d 802 (La.1978); Coppage v. Gamble, 324 So.2d 21 (La.App. 2d Cir.), writ den. 325 So.2d 819 (La.1976); Carroll v. Chapman, 139 So.2d 61 (La.App. 2d Cir.1962); Rogers v. Lumbermens Mutual Casualty Co., 119 So.2d 649 (La.App. 2d Cir.1960); 1 F. Harper & F. James, The Law of Torts §§ 3.1-3.3, at 211-20 (1956). An emergency is statutorily defined as a situation, wherein, in competent medical judgment, the proposed surgical or medical treatment procedures are reasonably necessary, and a person authorized by statute to consent is not readily available, and any delay in treatment could reasonably be expected to jeopardize the life or health of the person affected or could reasonably result in disfigurement or impair faculties. La.R.S. 40:1299.54. Though a battery is generally manifested as an act of hostility, the basis of this battery is not the hostile intent of the physician, but rather the absence of consent on the part of the patient to a treatment that may in fact be beneficial. Thus, an unauthorized operation that is skillfully performed still constitutes a battery. Id. Prosser, Law of Torts, 4th Ed. Ch. 2 § 9. The general rule prohibiting the performance of an operation extends to the performance of operations different in nature from that for which consent was given, and to operations involving risks and results not contemplated. Carroll v. Chapman, supra; Rogers v. Lumbermens Mutual Casualty Co., supra. See generally, Lacaze v. Collier, 434 So.2d 1039 (1983). [Emphasis supplied.]

The evidence in the instant case clearly reveals that Willie Holmes was the person who authorized the surgical procedures performed on his mother three days prior to the surgical procedure in question. He admitted that he informed LSUMC personnel that he was the party to be contacted at any time — day or night — in the event that anything occurred regarding his mother’s condition. He furnished LSUMC with his telephone number. These facts are not disputed by Mr. Stafford. Because of these instructions, LSUMC acted in accordance with them and Dr. Dennis O’Bannion called Holmes at his home at approximately 8:00 p.m. on February 29, 1980 to inform Holmes of his mother’s worsened condition and to obtain his oral consent to perform the operation. This call was taken by Holmes’ wife because Holmes was not there. When informed that Holmes’ whereabouts and time of return were unknown, O’Bannion, with nurse Peter Vla-hakis listening to the conversation, explained to Mrs. Holmes that Mrs. Stafford’s condition had deteriorated to the point where it posed an emergency situation because her gangrenous leg was lifeless and without immediate amputation death would result in the near future. O’Bannion requested that Mrs. Holmes consent to this surgical procedure which he stated that she did. Mrs. Holmes’ testimony confirmed that of O’Bannion and Vla-hakis regarding the phone conversation to the point where the consent was allegedly given which she denied.

Although it was known by the treating physicians as early as February 27, 1980 that some portion of the leg would have to be amputated because of the gangrene, the condition was being treated conservatively prior to taking this drastic step in order to attempt to save as much of the leg as possible and to avoid an above the knee amputation. The evidence established that surgeons do not normally obtain consent to amputate a limb until it is known with certainty what portion of the limb will be removed.

In connection with the treatment and procedure followed in Mrs. Stafford’s case by LSUMC the trial court made certain findings of fact. It found that Mrs. Stafford received no treatment that fell below the accepted standard of medical care. It further found that when it became certain on the night of February 29, 1980 that the leg was actually dead, could not be salvaged and required amputation above the knee, that the situation was life threatening because of Mrs. Stafford’s condition and the danger of infection. Accordingly, it was determined that there existed a situation of urgency at a time when Mrs. Stafford was not competent to consent to the surgery. It was finally found that when the urgency of the situation became apparent, neither Holmes nor Stafford were present and a good faith effort was made to contact Holmes, the person LSUMC was informed to contact in case of an emergency and from whom LSUMC had earlier received a surgical authorization and consent. All of these findings of fact are supported by the evidence.

Accordingly, we conclude that the trial court’s determination that the emergency exception of La.R.S. 40:1299.54 was applicable to this factual situation was not manifestly erroneous because based on competent medical judgment the condition of Mrs. Stafford on the night of February 29, 1980 was acutely life threatening, the surgical procedure was necessary, a person authorized to consent was not readily available and any delay in treatment could reasonably have been expected to jeopardize her life and health. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Therefore, the judgment of the trial court rejecting plaintiffs’ demands is affirmed at the cost of appellants.

JUDGMENT AFFIRMED.

      . Holmes is not the son of the marriage between Ada and James Stafford but is of a prior union.

      . La.R.S. 40:1299.40 provides:
      A.Notwithstanding any other law to the contrary, written consent to medical treatment means a .consent in writing to any medical or surgical procedure or course of procedures which (a) sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss or loss of function of any organ or limb, of disfiguring scars associated with such procedure or procedures, (b) acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner, and (c) is signed by the patient for whom the procedure is to be performed, or if the patient for any reason lacks legal capacity to consent by a person who has legal authority to consent on behalf of such patient in such circumstances. Such consent shall be presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts.
      B. Except as provided in Subsection A of this Section, no evidence shall be admissible to modify or limit the authorization for performance of the procedure or procedures set forth in such written consent.
      C. Where consent to medical treatment from a patient, or from a person authorized by law to consent to medical treatment for such patient, is secured other than in accordance with Subsection A above, the explanation to the patient or to the person consenting for such patient shall include the matters set forth in Paragraph (a) of Subsection A above, and an opportunity shall be afforded for asking questions concerning the procedures to be performed which shall be answered in a satisfactory manner. Such consent shall be valid and effective and is subject to proof according to the rules of evidence in ordinary cases.

      . See note 3 on page 854.

        3. La.R.S. 40:1299.54 provides:
      In addition to any other instances in which a consent is excused or implied at law, a consent to surgical or medical treatment or procedures, suggested, recommended, prescribed or directed by a duly licensed physician, will be implied where an emergency exists. For the purposes hereof, an emergency is defined as a situation wherein, (a) in competent medical judgment, the proposed surgical or medical treatment or procedures are reasonably necessary, and (b) a person authorized to consent under Section 1299.43 is not readily available, and any delay in treatment could reasonably be expected to jeopardize the life or health of the person affected, or could reasonably result in disfigurement or impair faculties.

      . La.R.S. 40:1299.53 provides:
      In addition to such other persons as may be authorized and empowered, any one of the following persons is authorized and empowered to consent, either orally or otherwise, to any surgical or medical treatment or procedures including autopsy not prohibited by law which may be suggested, recommended, prescribed or directed by a duly licensed physician:
      (a)Any adult, for himself.
      (b) Any parent, whether an adult or a minor, for his minor child.
      (c) Any married person, whether an adult or a minor, for himself, and for his spouse.
      (d) Any person temporarily standing in loco parentis whether formally serving or not, for the minor under his care and any guardian for his ward.
      (e) Any female regardless of age or marital status, for herself when given in connection with pregnancy or childbirth.
      (f) In the absence of a parent, any adult, for his minor brother or sister.
      (g) In the absence of a parent, any grandparent for his minor grandchild.

      .La.R.S. 40:1299.55 provides:
      The provisions of this Part shall be liberally construed, and all relationships set forth herein shall include the marital, adoptive, foster and step-relations as well as the natural whole blood. A consent by one person so authorized and empowered shall be sufficient. Any person acting in good faith shall be justified in relying on the representations of any person purporting to give such a consent, including, but not limited to, his identity, his age, his marital status, his emancipation, and his relationship to any other person for whom the consent is purportedly given.