author: WARD, Judge. WILLIAMS, Judge, WARD, Judge, WARD, Judge. WILLIAMS, Judge, PER CURIAM.

text:
    STATE of Louisiana v. Bernard HAYES, Jr.
    No. KA-0371.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 1, 1983.
    On Rehearing Sept. 20, 1983.
    On Rehearing Feb. 6, 1984.
    On Rehearing March 1, 1984.

      Harry F. Connick, Dist. Atty., John H. Craft, William R. Campbell, Asst. Dist. At-tys., New Orleans, for State, appellee.
    Daniel S. Foley, New Orleans, for Bernard Hayes, appellant.
    Before WARD, WILLIAMS and LOBRA-NO, JJ.
   WARD, Judge.

The defendant, Bernard Hayes, was indicted by an Orleans Parish Grand Jury for the second degree murder of his son, Bernard Dennis. La.R.S. 14:30.1. Hayes waived his right to a trial by jury and was tried by a judge. Hayes was found guilty of manslaughter and was sentenced to 21 years imprisonment. La.R.S. 14:31. On appeal, Hayes requests the Court to review the record for errors patent, and he argues five assignments of error. We do not reach the issues raised by his various specific assignments of error because our review of the record reveals that the Trial Judge may have erroneously decided the defendant's guilt on the basis of an incorrect appreciation of the applicable legal principles. Accordingly, we reverse and remand.

The State’s case- against Hayes rests al-. most exclusively on circumstantial evidence. La.R.S. 15:438 provides that in order to base a conviction on circumstantial evidence, assuming every fact to be proved that the evidence tends to prove, it must exclude every reasonable hypothesis of innocence. The Trial Judge’s pre-sentencing monologue indicates that this standard may not have been applied by the Trial Judge in assessing the circumstantial evidence against Hayes.

A brief summary of the facts revealed at trial will show the importance of circumstantial evidence in this case. The two year old victim, Bernard Dennis, was the son of Bernard Hayes and Elizabeth Dennis. On March 6, 1981, the child was unable to attend nursery school because he had chicken pox. His mother asked Hayes, who did not live with the mother, to babysit the child while she went to school and to work. Hayes picked the child up from Ms. Dennis early in the morning and Hayes and the child spent the day visiting one of Hayes’ friends, Joe Wilson, at Wilson’s apartment. Wilson left Hayes and the child alone briefly twice during the day. When Hayes returned the child to Ms. Dennis around five that afternoon, the child was unconscious and had several bruises on his head. He never regained consciousness and died two days later.

The State sought to prove that the child died of child abuse, specifically, forceful blows to the head, and they presented much medical evidence in support of their theory. The State presented no direct evidence that Hayes .purposeful injured the child, however, and Hayes denies striking the child. He admits to administering minimal physical discipline on two occasions; once when the child spilled his milk and once when the child used profanity.

As a reasonable hypothesis of innocence, the defense sought to show by evidence during the trial that the child received the head injuries in an accident when the defendant accidentally slammed a door and struck the child. According to the defense’s theory, the child fell off a bed while alone in a bedroom and struck his head either on a mantle or on a protruding capped gas pipe. The child then attempted to leave the bedroom, possibly searching for his father, who was at that time trying to open a jammed bedroom door. While Hayes was pushing and pulling the door to jar it loose, the child allegedly wandered partially through the slightly opened door and was caught between the door and the door frame when Hayes unknowingly forced the door closed, injuring the child. The defense produced several medical experts who testified that the child’s head injuries could have been caused in such a manner. Additionally, the defense sought to show through expert medical testimony that the child’s death could have resulted from Reyes Syndrome, Infantile Diabetes, or Viral Encephalitis.

On appeal, the defendant argues that the evidence was insufficient to convict, either under the Constitutional standards of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), or State v. Shapiro, 431 So.2d 372 (La.1983), but we do not reach that issue because our examination of the record leaves us with a serious doubt as to whether the fact finder applied the appropriate legal standard in assessing the sufficiency of the circumstantial evidence against Hayes. At the close of the trial, the Judge indicated for the record that he would charge himself on the law of circumstantial evidence. In order to base a conviction on circumstantial evidence, assuming every fact to be proved that the evidence variously offered by both sides tends to prove, it must exclude every reasonable hypothesis of innocence. La. R.S. 15:438, State v. Shapiro, 431 So.2d 372 (La.1983). In his pre-sentence monologue, however, the Judge did not discuss his decision in terms of whether the evidence had excluded every reasonable hypothesis of innocence. Rather, he explained his decision in terms of “reasonable doubt”:

This Court ... ultimately determined that the appropriate verdict, beyond a reasonable doubt in this case, was guilty of manslaughter.
... The Court realizes that circumstantial evidence played a significant part in this case. But, the Court ultimately resolved in its mind beyond a reasonable doubt, that this defendant was actively responsible ... for the trauma that was inflicted upon that little child. (Emphasis ours).

Although application of the appropriate standard for sufficiency of circumstantial evidence may have yielded the same result, it appears that the Trial Court did not base its determination of guilt on that standard, and we are not at liberty to presume what the fact finder’s assessment of evidence would be under the appropriate standard.

Accordingly, we reverse for trial error,, as distinguished from evidentiary insufficiency. Thus, our reversal does not constitute a decision that the government has failed to prove its case. Because our reversal is based on trial error, it would not violate double jeopardy principles to retry the defendant. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

REVERSED AND REMANDED.

WILLIAMS, J., dissents with written reasons.

WILLIAMS, Judge,

dissenting.

I respectfully dissent.

The distinctions drawn by the Louisiana Supreme Court in State v. Shapiro, 431 So.2d 372 (La.1983) (No. 81-KA-1905) and followed by the majority, between the standards of “beyond a reasonable doubt” and the “exclusion of every reasonable hypothesis of innocence” are simply a matter of semantics, or, as noted by Judge Wisdom, “merely verbalistic distinctions.” United States v. Warner, 441 F.2d 821 (5th Cir.1971), as quoted in United States v. Bright, 541 F.2d 471 (5th Cir.1976).

ON REHEARING

In our ruling of June 1, 1983, we reversed and remanded the instant case for a new trial based on the trial court’s error in not applying the appropriate standard for sufficiency of circumstantial evidence in determining the guilt of the defendant. Our ruling was based on references by the trial judge in his pre-sentence monologue wherein he did not discuss his decision in terms of whether the evidence had excluded every reasonable hypothesis of innocence. Rather, he explained his decision in terms of “reasonable doubt”, clearly error in a circumstantial evidence case. In conjunction with the request for rehearing filed by the State, the trial court filed a per curiam. The purpose of the per curiam was to simply and emphatically state for the record that as the fact finder, the trial judge charged himself on the law regarding circumstantial evidence and applied that law in reaching the verdict in this case.

Appellant argues that we should not consider the trial judge’s per curiam as the trial court no longer has jurisdiction. It is unnecessary to decide that issue since a subsequent review of the record bears out the correctness of.the trial judge’s charge. Since the majority’s analysis of the case on this point was originally in error, that ruling is reversed and we affirm the verdict and sentence of the trial court.

WARD, J., dissents in part and assigns reasons.

WARD, Judge,

dissenting in part.

I find merit in defendant’s contention that the imposition of the maximum sentence under La.R.S. 14:30.1 is excessive. Article 1, § 20 of the 1974 Louisiana Constitution prohibits the imposition of excessive punishment. In State v. Sepulvado, 367 So.2d 762 (La.1979), the Louisiana Supreme Court held that “the imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment.” 367 So.2d at 767. See also State v. Telsee, 425 So.2d 1251 (La.1983); State v. Williams, 397 So.2d 1287 (La.1981); State v. McDonald, 390 So.2d 1276 (La.1980). A punishment is unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering, or if it is grossly out of proportion to the severity of the crime. State v. Telsee, supra.

The nature of the offense and the offender are to be analyzed in determining whether the punishment is constitutionally disproportionate. La.C.Cr.P. Art. 894.1 provides the criteria to be considered in tailoring the individual sentence imposed on the particular defendant to the particular circumstances of the case. As stated by the Louisiana Supreme Court in State v. Telsee, supra, “the result which obtains [from implementation of C.Cr.P. Art. 894.1] is that the maximum sentences are to be reserved for the most egregious and blameworthy of offenders within a class.” In considering the nature of the offender and his offense, insight may be gained from a review of each of the factors listed in C.Cr.P. Art. 894.1, including whether there is undue risk that the defendant will commit another crime, whether the defendant needs to be institutionalized, and whether a lesser sentence will depreciate the seriousness of the crime. Additionally, the court should consider sentences imposed in other cases for similar crimes to assure that the defendant’s sentence will be proportional in comparison with that of other offenders. Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382, Powell, J., dissenting, State v. Telsee, supra.

In State v. Kimble, 407 So.2d 693 (La.1981), the defendant, who was found guilty of manslaughter, had two prior felony convictions. Thus, his sentence of twenty-one years was upheld by the Louisiana Supreme Court. In State v. Roussel, 424 So.2d 226 (La.1983), a twenty-one year sentence was affirmed where the jury found the defendant guilty of manslaughter, but the Trial Judge considered the evidence sufficient for a verdict of second degree murder. The defendant had attempted to take a second life and was prevented from doing so only by the jamming of the gun. In State v. Tompkins, 403 So.2d 644 (La.1981), the defendant was convicted of manslaughter and given a fifteen year sentence, which the Supreme Court termed as “apparently severe.” Finally, in State v. Gomez, 365 So.2d 1313 (La.1979) the Supreme Court affirmed the imposition of a five year sentence for manslaughter.

In the instant case, Hayes has no prior criminal history and the Trial Judge indicated in his reasons for sentencing that he felt Hayes was unlikely to commit another crime. He could not find that Hayes intended to kill the child or that he even intended to inflict great bodily harm. Hayes was eighteen years old at the time of the offense, barely old enough to have been charged as an adult. In light of these facts, I conclude that Hayes does not fall into the category of “the most egregious or blameworthy of offenders.” Admittedly, Hayes was convicted of a despicable act and deserves to be punished by a substantial period of imprisonment at hard labor. However, in comparison to similar cases and in light of the above mitigating factors, I conclude that the imposition of the maximum sentence constitutes excessive punishment under Article 1 § 20 of the 1974 Louisiana Constitution.

ON REHEARING GRANTED

WARD, Judge.

The Orleans Parish Grand Jury indicted Bernard Hayes, charging him with the second degree murder of his son, Bernard Dennis. The boy, a two year-old born out of wedlock, was the child of Hayes and his former girlfriend, Elizabeth Dennis. Hayes waived his right to trial by jury, and, after trial the Trial Judge found him guilty of manslaughter, a lesser crime, but one included within the original charge of second degree murder. The Trial Judge immediately ordered a pre-sentence investigation, but the report was not returned to him until several months after he delivered his verdict. After receiving the pre-sen-tence report, the Trial Judge reviewed it and considered the evidence against the defendant. He then sentenced Hayes to twenty-one years at hard labor, the maximum sentence permitted under La.R.S. 14:31.

Hayes appealed both his conviction and the sentence. As to his conviction, Hayes argues it should be reversed because the evidence against him is insufficient to meet the standards of due process, set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). As the sentence, Hayes argues that it is excessive and prohibited by the Louisiana Constitution, Article I, Section 20.

Before turning to the merits of Hayes’s argument, we must first explain our earlier decision in this same case, when a majority of a panel of this Court reversed and ordered a new trial. We reversed because the Trial Judge, when sentencing Hayes, indicated that he found Hayes guilty because, in his opinion, the evidence proved guilt “beyond a reasonable doubt”. However, the State’s case against Hayes was based almost exclusively on circumstantial evidence, and La.R.S. 15:438 provides that, in order to base a conviction on circumstantial evidence, assuming every fact to be proved that the evidence tends to prove, that evidence must exclude every reasonable hypothesis of innocence. The Trial Judge neglected to say that he had considered the evidence in light of the circumstantial evidence rule. At that time, we believed the Trial Judge erred in not applying the rule. After our decision, the State timely moved for a rehearing and the Trial Judge filed a per curiam explaining the apparent error and dispelling any doubt which may have arisen as to the standard of proof he applied: He had applied the circumstantial evidence rule when rendering his verdict, but when sentencing Hayes several months later, he unfortunately only said he was convinced of Hayes’s guilt beyond a reasonable doubt. The record supported the Trial Judge, and we granted a rehearing. We are convinced the Trial Judge did not err, but correctly applied the circumstantial evidence rule.

When the State’s case is based solely on circumstantial evidence, our Supreme Court requires this Court to review the trial record to determine if the evidence is sufficient to meet the Louisiana circumstantial evidence rule. State v. Graham, 422 So.2d 123 (1983). Additionally, after first determining that the circumstantial evidence is sufficient to support a conviction, Graham holds that the Due Process Clause of the Fourteenth Amendment requires this Court to further review the evidence upon which that conviction is based to determine whether it is minimally sufficient under Jackson v. Virginia, supra. A brief summary of the record will show why we believe the Trial Judge’s verdict meets both standards.

The two year-old victim, Bernard Dennis, lived with his mother, Elizabeth Dennis. On March 6, 1981, because the child had chicken pox, he was unable to attend nursery school. His mother asked Hayes, who did not live with her, to babysit while she went to work. Hayes picked the child up from Ms. Dennis early in the morning and he and the child spent the day visiting one of Hayes’ friends, Joe Wilson, at Wilson’s apartment. Hayes and the child were alone in the apartment most of the day. When Hayes returned the child to Ms. Dennis around five that afternoon, the child was unconscious and had several bruises on his head. Ms. Dennis immediately rushed the child to Charity Hospital, but he never regained consciousness and died two days later. Medical doctors testified that the child died of trauma caused by multiple blows to the head. Because of the circumstances, the State could not prove by direct evidence who administered the blows or whether they were intentionally inflicted. The relevant part of the manslaughter statute requires proof of an intent to inflict the blows as an essential element of the crime:

La.R.S. 14:31 Manslaughter is:

(2) A homicide committed, without any intent to cause death or great bodily harm.
(A) When the offender is engaged in the perpetration ... of any intentional misdemeanor directly affecting the person;
A battery is the intentional use of force or violence upon the person of another. La.R.S. 14:33.

Thus, the State was forced to rely upon the above described circumstantial evidence to prove that Hayes intentionally struck young Dennis several times, and that death resulted from the blows.

In a circumstantial evidence case, the State’s evidence must exclude every reasonable hypothesis of innocence, and when a defendant presents evidence which poses a hypothesis of innocence, the State’s evidence must exclude that hypothesis in particular. State v. Graham, supra. As a reasonable hypothesis of innocence, Hayes sought to show the child’s injuries were caused by a series of unfortunate incidents. Hayes speculates that the child fell off a bed and struck his head either on the mantle or on a protruding capped gas pipe, accounting for one of the bruises. As to the others, Hayes testified that he was trying to open the jammed bedroom door, pushing and pulling on it, attempting to reach the boy who was crying, when the door suddenly flew open and struck the boy in the head, causing him to fall, his head striking the door frame as he fell. Several medical doctors testified the child’s head injuries could have been caused that way. Hayes, nonetheless, admitted that he struck the child twice to discipline him; once for spilling milk and again for using obscenities. Hayes further admitted that even though he saw the injuries, he did not take the boy to the hospital, but instead handed his unconscious body to his mother later in the afternoon when she returned from work.

The Trial Judge concluded that Hayes’s story was incredible. So do we. Applying the rule of circumstantial evidence, we conclude that, assuming as true, every fact which the evidence tends to prove, that evidence excluded every reasonable hypothesis of innocence. Additionally, applying Jackson v. Virginia standards, we conclude that Hayes was not denied due process of law and that this conviction is clearly based upon evidence which when viewed in the light most favorable to the State, could lead a rational trier of fact, in this case the Trial Judge, to conclude that the essential elements of manslaughter were proved beyond a reasonable doubt. Hence, we affirm Hayes’s conviction.

Nonetheless, we feel compelled to vacate the Trial Judge’s sentence. Hayes was sentenced to serve twenty-one years at hard labor, the maximum sentence permitted under the statute. When considering a maximum sentence for the crime of negligent homicide, the Second Circuit Court of Appeal has aptly stated:

Maximum sentences are appropriately imposed in eases involving the most serious violations of the described offense, and for the worst kind of offender. Nothing else will justify the great sentencing discretion given the trial judge in Louisiana. The imposition of a maximum possible sentence usually can only be justified in extreme cases — classified as such by the factual circumstances of the offense and the apparent dangerous proclivities of the defendant.

State v. Jerome Ransome, No. 15,565-KA, Court of Appeal Second Circuit, 441 So.2d 425 (La.App. 2nd Cir.1983).

Hayes was twenty-two years old when he committed this offense. Even though the offense is a most serious one because an innocent two year-old boy was the victim, every manslaughter is serious and reprehensible because someone has caused the death of another. While correctly considering the seriousness of the offense, the Trial Judge failed to give appropriate credit to the mitigating factors in this case.

The pre-sentence investigation reveals that prior to this incident, Hayes had never been arrested, let alone convicted of any crime. He lived with his mother and father who stood by him throughout his trial and appeal. The chances that he would commit another similar crime were thought to be slim indeed, and the pre-sentence investigation report recommended probation. We are aware that deterence of others is a valid factor to be considered when sentencing a defendant. However, in this case, while we feel that incarceration is warranted, we also feel that imposition of the maximum sentence will hinder rather than enhance the rehabilitation of Hayes.

Because we believe the sentence is excessive and prohibited by the Louisiana Constitution Article I, Section 20, we vacate the sentence and remand the case to the Trial Court for further consideration of mitigating factors before re-sentencing. Defendant’s conviction is affirmed.

CONVICTION AFFIRMED, SENTENCE VACATED AND REMANDED FOR RE-SENTENCING

WILLIAMS, J., dissents with reasons.

WILLIAMS, Judge,

dissenting.

Considering the gravity of the crime, the sentence imposed by the trial court was not an abuse of discretion.

ON REHEARING

PER CURIAM.

We erred when we said the probation officer recommended probation. We have now reviewed the probation officer’s report and we are more convinced than ever that the maximum sentence was excessive. The report contains confidential information that is favorable to the defendant; and it also shows that after his marriage he left school and worked as a porter when only 16 years old, that he continued his high school studies, hoping to obtain a General Education Diploma. This is his first and only offense, either as an adult or a juvenile. The rule which both trial and appellate courts must follow was stated in State v. Alex Lathers, 444 So.2d 96 (La.1983):

... Sentences must be imposed to correlate with the nature of the offense and the offender and should be imposed with consideration of the sentences imposed for similar crimes by other courts. Such considerations insure proportionality such that the most severe sentences are imposed for the most egregious crimes or criminals. (Emphasis theirs)

WILLIAMS, J., adheres to his original dissent.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    Samuel L. LIEBER, Plaintiff-Appellant, v. Charles M. HAMEL, et al., Defendants-Appellants.
    No. 15829-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.
    Rehearing Denied Dec. 22, 1983.
    Writs Denied Feb. 27, 1984.
    Kennedy, Goodman & Donovan by Frank S. Kennedy, Shreveport, for plaintiff-appellant.
    Peters, Ward, Bright & Hennessy by Hugh T. Ward, Shreveport, for defendants-appellants.

      Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

In this petitory action, both litigants appeal a judgment which attempted to resolve ownership of strips of land underlying existing and former portions of the Red River levee system in east Caddo Parish immediately north of 70th Street in Shreveport.

On this simplified plat, the strips in dispute are approximately 75 feet in width and extend about 500 feet from point A to point B and about 1,200 feet from point B to point C:

The A-B strip, which is shown by dotted lines, once was underneath a levee that was severed from the levee system by the levee board and that was later bulldozed and removed by the Hamel defendants’ ancestor who first acquired title to lots in Dixie Meadows Subdivision contiguous to the A-B strip by a deed of June 1, 1938. Hamel acquired title to other lots and property between the first acquired property and 70th Street at later times. The Hamel property is north and east of the levees which now exist. Hamel does 'not have record title to either strip in dispute. Ha-mel was recognized as owner of the A-B strip on the basis of 30-year acquisitive prescription because of his acts of possession. CC Art. 3486. Hamel also exercised similar acts of possession over the B-C strip. The B-C levee was not abandoned and, of course, had not been removed.

The plaintiff, Dr. Lieber, was recognized as owner of the B-C strip by virtue of a May 2, 1974, deed from a liquidator, who was appointed by order of the district court on that date, for a corporate successor in title to the subdividers who developed and sold lots on both sides of the levee system. Dr. Lieber instituted the petitory action on' April 19, 1968, but was found not to have record title to these strips until he obtained the liquidator’s deed in 1974. Dr. Lieber does not dispute the finding that he has not corporeally possessed the strips in dispute. In his original 1968 petition he alleged Ha-mel’s possession of the strips, but amended his allegations in 1973, and has contended since then that Hamel could not legally possess the A-B or B-C levees or property beneath these levees.

Dr. Lieber contends the trial court erred in making findings that he did not have title before the liquidator’s deed of May 2, 1974, that his original petition of April 19, 1968, did not interrupt accrual of acquisitive prescription, and that Hamel had acquired title to the A-B strip by 30 years acquisitive prescription.

The Hamel defendants contend that the trial court erred in holding that Dr. Lieber acquired title to the strips by virtue of the liquidator’s deed in 1974 and in holding that they could not legally possess the B-C strip to acquire ownership by acquisitive pre-. scription, notwithstanding the finding of physical acts of possession for 30 years. We affirm the judgment for reasons here assigned which summarize, with some modification, the findings and reasons assigned by the trial court.

ADDITIONAL FINDINGS

On June 1, 1938, Hamel acquired Lots 1, 2, 3, and the north half of Lot 4 of Dixie Meadows Subdivision, which was created by a plat filed on May 4, 1928. Earlier in 1928, Dixie Gardens Subdivision had been created west of the levee. The levees A-B and B-C are shown on the subdivision plats. Dixie Meadows Road was dedicated as a public road on the Dixie Meadows plat parallel to and between the levee (A-B, B-C) and the lots of Dixie Meadows Subdivision east of the levee. This road between those points, however, was never used or developed as a public road and the area between the lots and the levee remained open land, unfenced. The east line of the lots of Dixie Gardens Subdivision was fenced from points B-C. The west line of Dixie Meadows Subdivision was not fenced.

Hamel’s 1938 deed to the Dixie Meadows lots states that it “is executed in compliance with provisions of contract of sale entered into by the parties [on] March 31, 1937 ...” Hamel moved onto the lots in 1937 and operated a dairy farm and began possessing the A-B, B-C levee as owner. Hamel’s cows grazed across the levee and up to the Dixie Garden fence. He also pastured cows west of the A-B levee and grew corn and raised a garden across this levee. The Hamels later purchased this small tract. The Hamel homesite was and is situated on the south bank of the Ox Bow Lake near the A-B levee. The driveway to the home is essentially parallel to and within a few feet of the A-B strip.

As is shown on the plat which we have simplified and reproduced, the course of Red River changed after the Dixie subdivisions were platted in 1928. The record reveals that the banks of the river caved in and that most of Lots 1 and 2 of Dixie Meadows was lost to the river and is now under the ox bow lake. The original levee, which was built sometime before 1928, extended northwesterly about 1,200 feet from point B beyond point A before it turned southwesterly. The dotted lines show these extensions of the A-B levee. The northernmost 700 feet of this levee was taken by the river so that only about 500 feet remained in 1937-38 when Hamel began his possession. The 500 foot (A-B) remnant extends only to the edge of the Ox Bow Lake. The 1938 deed to Hamel recites that the property contains approximately 155 acres, that the seller does not guarantee the amount of acreage, and that it is understood that the “greater part of Lot 1 has caved into ... the river.” The acreage originally platted in Lots 1, 2, 3, and the north half of Lot 4 totaled more than 165 acres. Lot 1 originally contained 23.7 acres of this total.

The river had made its maximum encroachment and the “new” levee extending westerly from point B had been constructed before Hamel moved onto the property. The administrator, executive officer, of the Caddo Levee District was not asked to and did not deny this testimony during the trial. In a motion for a new trial in the district court, which was eventually denied, Dr. Lieber sought to have the case reopened to allow this executive to establish that the new levee was constructed in late 1936. A reproduction of the levee district’s map, filed there and also filed here as a part of a supplemental brief, purports to show the changes in the course of Red River. This map is also in evidence as plaintiffs exhibit eight. The bank lines of Red River shown on this map confirm that the river made its maximum encroachment onto the levee system north of and onto the Dixie subdivisions between 1931 and 1936. It also indicates that the A-B extended levee which was taken by the river was not built until 1930 or 1931, but this indication is contrary to affirmative testimony and to the 1928 subdivision plats, showing that the levee existed in 1928. In any event, the evidence clearly establishes that the new levee was constructed and the A-B levee was cut from the system more than 30 years before Dr. Lieber instituted the petitory action. Hamel had the remnant of the A-B levee leveled when he erected a new home in the early 1950s.

THE LEVEE SERVITUDE AND ACQUISITIVE PRESCRIPTION

The levee servitude is a peculiar legal servitude which has a most interesting history in Louisiana. CC Art. 655, Dickson v. Board of Com’rs of Caddo Levee Dist., 210 La. 121, 26 So.2d 474 (1946); Yiannopoulos, Vol. 2, Louisiana Civil Law Treatise, “Property,” 2d Ed., § 56. A continuous and effective levee system has been and is of vital importance to this state.

The exercise of a levee servitude, however, does not make the levee or the land beneath the levee a public place, incompatible with the retention of private ownership within the meaning of CC Art. 482. Green v. Chamberlain, 60 So.2d 120 (La.App. 1st Cir.1952). While this case recognized that the owner of an estate which is burdened with an existing levee servitude may be deemed to be in possession of the levee for some purposes, a person who is not the owner of the subservient estate cannot legally possess the existing levee adversely to the owner. That is the apparent holding of Caillier v. Profito, 171 La. 693, 131 So. 851 (1930). There the court held that Profito’s adverse possession “could not have commenced until the levees were abandoned...” 131 So. at p. 852, emphasis supplied. The most obvious reason for precluding adverse possession of an existing levee that serves the public purpose is that the public purpose is of such importance that it is incompatible with private ownership except in limited situations such as Green. Caillier, supra. CC Art. 482. See Dickson, supra. Compare Louisiana Highway Commission v. Raxsdale, 12 So.2d 631 (La.App. 2d Cir.1943).

The right of the levee authority to remove obstacles placed on levees by private citizens which may obstruct the maintenance and efficiency of the levee has been long recognized. See Hathorn v. Board of Commissioners, 218 So.2d 335 (La.App. 3d Cir.1969), cases and statutes cited therein.

In Raxsdale supra, it was squarely held that the proprietors of a city lot could acquire, by adverse possession, title to an adjoining strip of land sold by their ancestors to the city for a public street more than 50 years before, but which was never used as a street. Caillier, supra, held that a levee, once abandoned but not removed by the levee board, could be acquired by adverse possession.

Dr. Lieber recognizes such holdings, but contends that acquisitive prescription should not begin to accrue until the servitude is extinguished by 10 years nonuse liberative prescription. CC Art. 753. This argument fails to distinguish liberative from acquisitive prescription and implies that a levee servitude may be extinguished by and only by the 10 year nonuse libera-tive prescription. See CC Arts. 3445, 3448. Dr. Lieber cites Champagne v. Bourque, 117 So.2d 325 (La.App. 1st Cir.1959) to support his contention. Champagne held that the strip there in question was never used as a public road and added the observation that ^/it was a public road it had long been abandoned by 10 years nonuse. We see valid distinctions between the public road servitude and the public levee servitude.

In the absence of a written or other formal dedication of a public road, the public may acquire a servitude or right of way only by formal expropriation or by public maintenance or use for a period of years. See Yiannopoulos, supra, § 61. A levee servitude may be exercised almost instantaneously and without expropriation. The levee authority has the “greatest possible latitude” in exercising and re-exercising its authority to appropriate riparian lands for levee purposes. See Dickson, supra. The public road servitude, once established, is an affirmative servitude, requiring use, while the levee servitude is a negative servitude. CC Art. 706. The ordinary public road servitude on private property must somehow be created. The levee servitude on private property exists by operation of law and need not be created in the sense that a public road is created.

Once the levee board built the new levee and cut the A-B remnant at point B from the levee system, the public purpose of the A-B levee ended and it became susceptible of being adversely possessed. Certainly the levee board could have tied the A-B remnant onto a newly constructed levee to complete and continue the system of levees designed for controlling floods. The levee board chose to tie the new levee to the system at point B rather than at point A and severed the A-B remnant from the system.

CC Art. 751, adopted by Act 514 of 1977, reproduces the substance of Articles 783(1) and 784 of the Louisiana Civil Code of 1870 and does not change the law as to how servitudes are extinguished. Comments, LSA-CC Art. 751. Servitudes are extinguished, not only by liberative prescription of nonuse in the case of affirmative servi-tudes such as right of way, but by the destruction or change in the thing subject to the servitude which precludes the use or existence of the servitude. CC 751.

CC Art. 751 speaks of the permanent and total destruction of the part of the servient estate which is burdened with the servitude. Former CC Art. 783(1) spoke of such a change taking place that the thing subject to the servitude could not be used. Former CC 784 echoed and spoke' of extin-guishment of the servitude when the things were perpetually in such a situation that they could no longer be used. Former CC Art. 783(5) spoke of the tacit remission of a servitude by the one to whom the servitude was due.

A levee servitude should not be subject to the liberative prescription of 10 years nonuse. CC Art. 753. This should be axiomatic because of the very nature and purpose of the levee servitude. A levee simply is not used by humans in the legal sense of the use made of an affirmative servitude such as a right of way. A levee exists only as a part of a continuous system or series of levees designed to control and protect against flooding. Once erected and incorporated into the system, it need not be “used” by man to maintain its legal existence. Once a strip of levee caves in and is then intentionally disjointed from and physically abandoned by that system, it may still exist, not as a levee, but simply as a manmade accumulation or pile of dirt. It is true in the ordinary sense that the disjointed strip is no longer “used” as a part of the system, but that nonuse is not the servitude use concept of the civil code, in the legal sense, which is applicable to affirmative servitudes. Since Act 514 of 1977, it may be that nonuse liberative prescription could be held applicable to a negative servitude but we need not, and do not, reach that issue. See footnote one.

Dr. Lieber emphasizes the absence of a recorded title in Hamel to the levee. A title based on acquisitive prescription of 30 years does not depend upon a written or recorded title, but upon acts of adverse possession which meet the requirements of law. CC Art. 3486. We assume, as Dr. Lieber argues, that his title to the strips in dispute antedate his institution of the peti-tory action in 1968. This assumption makes it unnecessary for us to decide whether Hamel may question the efficacy of the 1974 liquidator’s deed to Dr. Lieber. We find, however, that Hamel began his acts of possession as owner over the strips in dispute in 1937, more than 30 years before Dr. Lieber instituted the action.

Hamel’s claim of prescriptive title is asserted against Dr. Lieber, as the assumed [and alleged] record title owner, and not against the levee authority, which owns nothing other than the legal levee servitude, according to this record. LRS 38:295, which states that acquisitive prescription does not run against lands owned by levee boards, has no application to this ease because the levee board did not own the land. When all arguments and specifications of error are considered, the issues, as we perceive them, essentially are

—whether an acquisitive prescriptive title may be acquired against a servitude levee which exists as a part of a continuous levee system designed to control and protect against flooding,

—whether an acquisitive prescriptive title may be acquired against the remnant of a servitude levee which no longer exists as a part of a continuous levee system, and if so, when does that prescription begin to accrue.

We answer and hold that an adverse possessor may not acquire prescriptive title to a servitude levee which exists as a part of a continuous levee system designed to control and protect against flooding. We make this holding because of the paramount importance of that system. Caillier, Dickson, supra.

As to a levee which no longer exists as a part of the continuous levee system because it is no longer important and necessary to the purpose of the system and which has been effectively and substantially destroyed within the meaning of CC Art. 751 and intentionally severed from the system, our answer is different. We hold that an adverse possessor may acquire prescriptive title against the owner of lands underlying the severed levee in such circumstances. We further answer that this prescription begins to accrue when the levee authority effectively completes the destruction of such a levee by severing or cutting that substantially destroyed levee from the system and builds a new levee to preserve the continuity of the system. We find that the A-B levee was cut or severed from the system by the levee authority before Hamel began his possession. Even though the southernmost 500 foot remnant of the 1,200 foot original levee remained after the river encroached and caved in 700 feet of the original levee, the remnant was effectively destroyed when the levee authority cut its southernmost connection at point B and there built and continued the levee system in a westerly direction. This destruction extinguished the levee servitude that once was exercised by the levee authority on the A-B strip and its northernmost extension. CC Art. 751.

Except to the extent here modified, we adopt the findings and detailed reasons for judgment of the trial court. We find no error in the judgment appealed. Costs of the appeal are assessed one-half to each appellant.

AFFIRMED.

      . Former CC Art. 816 also stated that servitudes may be renounced or released, expressly or tacitly, by the owner of the dominant estate. CC Art. 771, adopted by Act 514 of 1977, suppresses the rule of Arts. 817, 816, and 783(5) that renunciation may be tacit. Comments (a), LSA-CC Art. 871. This change in the law is not retroactive and became effective on January 1, 1978.


author: AUGUSTINE, Judge.

text:
    Dorothy Landry, Wife of/and Norman J. LANDRY v. ST. CHARLES INN, INC., and Aetna Insurance Company.
    No. CA-0774.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.

      Levy, Marx, Lucas, & Rosen, William W. Rosen, New Orleans, for plaintiffs-appel-lees.
    Jones, Nabonne & Wilkerson, Walter J. Wilkerson, New Orleans, for defendant-appellant.
    Schafer & Shafer, Ralph J. Aucoin, New Orleans, for defendants-appellants, St. Charles Inn, Inc. and Aetna Insurance Company.
    Before GARRISON, AUGUSTINE and BYRNES, JJ.
   AUGUSTINE, Judge.

Mrs. Dorothy Landry instituted this action for damages against St. Charles Inn, Incorporated and Project Square 376, a partnership, alleging that the defendants were negligent in not preventing an assault upon her by an unknown assailant in the hotel’s parking lot. The case was tried to a jury, who rendered a verdict in favor of the plaintiff in the amount of $20,000.00. Both defendants now appeal.

The factual allegations which gave rise to this litigation are these:

In November of 1979, Mr. Norman Landry, a cancer patient from Alexandria, Louisiana, travelled to New Orleans with his wife Dorothy for treatment at Touro Infirmary. Mr. Landry was admitted to the hospital on November 18th. That same day, Mrs. Landry took lodging in the St. Charles Inn, a small hotel located within walking distance of the hospital.

The hotel, operated by St. Charles Inn, Inc., occupies part of a three-story red brick structure in the 3600 block of St. Charles Avenue. Other parts of the building are occupied by a bar known as Que Sera and the Audubon Federal Savings and Loan Association. The building itself is owned by Project Square 376, a partnership whose other interests include ownership and operation of a parking lot which sits adjacent to the building. The lot is open to the public between the hours of 9:00 a.m. and 5:00 p.m., during which time a service attendant is present.

The hotel’s occupancy of the building is pursuant to a lease from Project Square; the lease also includes the land occupied by the adjacent parking lot. It is upon this lot that the attack upon Mrs. Landry allegedly took place.

At about seven o’clock on the morning of November 20,1979, Mrs. Landry was in the lobby of the hotel, about to make the short trip to Touro Infirmary. She paused to inquire of the desk attendant whether it would be safe to walk to the hospital alone at that hour of the morning. The attendant assured her that she would be alright, and so she left the building following a route which took her across the previously mentioned lot. When Mrs. Landry was about half-way across the lot, she heard footsteps coming from behind and turned to see an unknown man running toward her. Her flight was futile. The much younger attacker caught Mrs. Landry, and when she resisted, he threw her to the ground and snatched her purse forcibly. The assailant then escaped through an alley which runs alongside the hotel.

Although Mrs. Landry was not physically injured as a result of this assault, she contends that she was subjected to great stress and fright, and that her experience of such violence has caused lasting emotional damage.

In support of her claim, Mrs. Landry introduced the deposition of Dr. Wayne Keller, a psychiatrist who testified that as a result of the pursesnatching, Mrs. Landry developed certain phobias, namely, an irrational fear of being attacked in parking lots and of entering her house alone when no one has been there. Dr. Keller also reported that the plaintiff’s anxieties have caused insomnia and nightmares. He recommended that Mrs. Landry attend psychiatric counselling once a week for six months.

For whatever reason, Mrs. Landry did not pursue psychotherapy. She did state, however, that she has read certain self-help books recommended to her by Dr. Keller, and that these books have helped her to cope with anxiety, at least to the extent that she no longer has nightmares about the pursesnatching. Despite that improvement, however, Mrs. Landry stated that her fears of being attacked in parking lots and of going into her house alone persist.

As to other items of damage alleged, Mrs. Landry itemized and evaluated the property stolen from her as follows:

1. One 14-carat gold charm bracelet with eight gold charms — $500.00.

2. Two gold wedding bands, each $150.00.

3. One Bulova Accutron watch — $175.00.

4. One gold Tulane class ring — $400.

5. One gold Rotary Club president’s ring with .10-carat diamond — $235.00.

6. One pair of 18-carat gold and topaz cuff links — $500.00.

7. Gold pocket knife — $20.00.

8. One 14-earat gold cocktail ring containing thirteen small diamonds — $1,615.00.

9. Pen and pencil set with gold bands— $200.00.

10. One 14-carat gold 60" chain with pearl —$3,735.00.

11. One 14-carat cluster ring with four diamonds, .90-carats each — $12,500.00.

Mrs. Landry’s personal opinion was the only evidence as to the value of the first nine items mentioned above. Regarding the last two pieces of jewelry, however, the plaintiff offered the appraisal of an expert witness, a jeweler named Jonas Hiller. Mr. Hiller stated that he was the maker of Mrs. Landry’s cluster ring, described as fourteen-carat white gold, containing four .90 carat round diamonds, adjoined to a second ring of fourteen carat yellow gold. Hiller appraised the fair market value of this piece at $12,500.00.

On the basis of a description given to him by Mrs. Landry, Hiller also appraised her 60-inch gold rope saut collier with a slide and twist containing seed pearls. He testified that the article’s fair market value is $3,785.00.

On the above facts, the jury returned a verdict in Mrs. Landry’s favor and awarded her a “lump sum” of $20,000.00.

We begin our discussion of the merits of this appeal by noting that the relationship between an innkeeper and his guest imports special duties on the part of St. Charles Inn, Inc. which do not burden the other defendant, Project Square 376. We shall therefore analyze the defendants’ liability separately.

INNKEEPER’S LIABILITY

In seeking recovery against the hotel operator, St. Charles Inn, Inc., Mrs. Landry relies upon well-settled precedent which regards the relationship between an innkeeper and his guest as a special one, similar to that which exists between a common carrier and a passenger. The innkeeper is thus required to exercise a high degree of care in order to protect his guests against the tortious acts of third persons. Kraaz v. LaQuinta Motor Inns, Inc., 410 So.2d 1048 (La.1982). See also Restatement of Torts (Second), § 314A.

Mrs. Landry contends that, given the frequency of criminal assault in the immediate vicinity of the hotel, the St. Charles Inn failed in its duty to protect her by not providing her any form of security whatsoever as she walked across the parking lot. Police records introduced into evidence at trial of this matter show no less than seven robberies or assaults to have occurred in the immediate area during the year preceding this incident. The defendant, St. Charles Inn, conceded that as of the time of the attack upon the plaintiff, there were no security guards on the premises, no fences to insulate hotel guests from the general public, no cameras to allow hotel employees to monitor activity in the lot; indeed, there were no security precautions of any kind whatsoever.

With respect to the issue of liability, St. Charles Inn’s sole contention is that the pursesnatching did not occur on the hotel’s premises, and that since there is no precedent for imposing upon an innkeeper the duty to protect his guests against off-premises assault, there can be no liability on its part in this case.

St. Charles Inn maintains, first, that the assault took place on a Foucher Street sidewalk, outside the perimeter of the hotel parking lot.

In response to this, we note that the plaintiff’s sworn testimony was explicit and forceful in defining the site of the attack as the parking lot adjacent to the St. Charles Inn. The only contradiction was that contained in the police report of New Orleans police officer David Talley, who investigated the crime shortly after it occurred. His written account (which purports to contain Mrs. Landry’s own statements regarding the incident) places the attack on Foucher Street, away from the hotel’s grounds.

The plaintiff denied having made such statements to Officer Talley, however, and it is evident from the verdict that the jury accorded more credibility to Mrs. Landry’s in-court, sworn testimony than to the investigating officer’s report. Such determinations of credibility are not to be disturbed unless manifestly erroneous, and since we find no such error here, we must accept the jury’s conclusion that the attack upon Mrs. Landry occurred in the parking lot.

St. Charles Inn maintains, however, that even if the assault occurred in the parking lot, there can be no liability on its part because the hotel’s premises do not encompass that area.

We cannot adhere to such a restrictive application of the term “hotel premises”. By its own admission, St. Charles Inn leased the adjacent parking lot from Project Square 376 primarily to provide a convenience for its hotel guests, who were allowed to park on the property at no extra charge. By virtue of that lease, the adjacent parking lot became as much a part of the hotel’s premises as the hotel rooms themselves. The plaintiff has thus refuted the defendant’s sole argument with respect to its liability.

Given the repeated instances of assault that had taken place within the previous year in or around the parking lot, the jury was warranted in finding that St. Charles Inn’s failure to provide any security whatsoever constituted a clear breach of the innkeeper’s special duty to his guests, and that this breach substantially contributed to the attack upon Mrs. Landry.

LAND OWNER’S LIABILITY

The jury found defendant Project Square 376 to be jointly liable with St. Charles Inn for the injuries suffered by the plaintiff. Project Square now appeals that finding, contending that its status as the owner of the parking lot did not impose upon it the duty to protect Mrs. Landry from assault by third persons. We agree.

It is a well recognized principle of tort law that there is no duty to control the conduct of a third person so as to prevent him from causing physical harm to another unless a special relation exists between the actor and the other which gives the other a right to protection. Restatement (Second) of Torts, § 315. Innkeepers and guests stand in a special relation to each other (hence St. Charles Inn’s liability in this case), as do common carriers and their passengers. Landowners, however, do not stand in such a special relation with those who live upon their premises. This should be clear when it is recalled that under Louisiana law, an owner-lessor owes no legal duty to his lessee to protect him from the tortious acts of third persons who claim no right to the leased premises. La.C.C. art. 2703. Gant v. Flint-Goodridge Hospital of Dillard, 359 So.2d 279 (La.App. 4th Cir.1978); Reynolds v. Egan, 48 So. 940 (La.1909); Bright v. Bell, 37 So. 976 (La.1905); Gulf Coal Co. v. Bingaman, 6 La.App. 107 (Orl.1927). It follows that the landowner/lessor in this case (Project Square) owes no such duty to his lessee’s guest (Mrs. Landry). Therefore, under general tort law, Project Square does not share liability with St. Charles Inn.

In the alternative, plaintiff contends that St. Charles Inn, Inc. was merely the corporate alter ego of Project Square 376, and that because of the pervasive intertwining of their operations, management, and interests, Project Square is also culpable for the injuries suffered by Mrs. Landry.

Plaintiff emphasizes that the four individuals who comprise the Project Square partnership are the same persons who, together, hold almost all the stock of St. Charles Inn, Inc. Plaintiff regards it as especially probative that while Mr. Ed Christiansen managed the hotel for the corporation, he also managed the parking lot on behalf of the partnership.

It is fundamental that a corporation is a legal entity separate and distinct in identity from the members who compose it. La.C.C. art. 435; Buckeye Cotton Oil Co. v. Amrhein, 168 La. 139, 121 So. 602 (1929). Only exceptional circumstances warrant the radical remedy of “piercing the corporate veil”. Kingsman Enterprises, Inc. v. Bakersfield Electric Co., 339 So.2d 1280 (La.App. 1st Cir.1976); Johnson v. Kinchen, 160 So.2d 296 (La.App. 1st Cir.1964).

Those “exceptional circumstances” are not present in this case, for it is well established that courts will not deprive several corporations of their distinct identities merely because those corporations have stockholders and officers in common. Adams v. Associates Corp. of North America, 390 So.2d 539 (La.App. 3rd Cir.1980); Fletcher Cyc. Corp. 28, p. 332; 18 C.J.S. Corporations, 5j. Absent additional evidence (e.g., of failure to keep separate accounting records, or of failure to observe corporate formalities, or of undercapitalization or insolvency, or of control by one corporation of the affairs of another), there is no justification for piercing the corporate veil. See Hock v. Sea Camper of New Orleans, Inc., 419 So.2d 1315 (La.App. 4th Cir.1982); Kingsman Enterprises, Inc. v. Bakerfield Electric Co., supra.

The plaintiff has offered no such additional evidence to warrant the finding that St. Charles Inn, Inc. and Project Square 376 were the same entity. Accordingly, the liability of Project Square 376 in this case is to be determined solely by its' status as the owner of the premises. As we have already held, that status imposes upon Project Square no special duty to protect any person against the tortious conduct of a third party.

EVIDENTIARY ISSUES

During trial of this matter, Mrs. Landry enumerated and described the various items which were stolen during the robbery. Over objection by defense counsel, plaintiff was allowed to state her personal opinion as to the value of several pieces of jewelry which, according to her, had a total value of approximately $25,000.00.

St. Charles Inn, Inc. now contends that the jury’s award of $20,000 to the plaintiff cannot be maintained because it was based, in part, upon Mrs. Landry’s objectionable testimony. St. Charles Inn, Inc. argues that such valuations can be given only by expert witnesses and that lay testimony on the subject', being in the nature of an opinion, is inadmissible.

We do not share appellant’s view that the plaintiff’s valuation of her jewelry was inadmissible opinion testimony. It is widely recognized that an owner of personal property is ordinarily qualified, by reason of his presumed familiarity with the object, to testify as to its value. Dumas v. Grain Dealers Mutual Insurance Co., 204 So.2d 120 (La.App. 2d Cir.1967); Berkshire Mutual Insurance Co. v. Moffett, 378 F.2d 1007 (5th Cir.1967); Kestenbaum v. Falstaff Brewing Corp., 514 F.2d 690 (5th Cir.1975); Meredith v. Hardy, 554 F.2d 764 (5th Cir.1977); also see cases cited at C.J.S. Evidence, 546 (116). As stated in Kestenbaum, supra, whether the owner’s opinion is accurate is a matter for cross-examination and goes to the weight of the evidence, not its admissibility. Id. at 699.

Most of the jewelry and other items stolen from Mrs. Landry were her own, and since there was sufficient evidence of her familiarity with the objects which she valuated, we find no error in the trial court’s allowing her to testify as to these matters.

QUANTUM

St. Charles Inn, Inc. contests the jury’s award, arguing that the jury did not return with the required number of votes to sustain a verdict as to quantum.

The record reveals that among the several interrogatories submitted to the jury for deliberation was the following:

“7. If your answer to questions five and six are ‘No’, you must find for the plaintiff and you must make an award ‘in money’ to her. What amount do you award to the plaintiff?
$_”

After the jury had apparently completed its deliberation, the foreman tendered to the court the jury’s answers to the various interrogatories. The blank in Interrogatory No. 7, supra, was filled in: “$20,000.”

The court then conducted a final poll. The transcript of this proceeding reveals that only eight of the jurors voted in favor of the $20,000 sum, and that four jurors voted against it. It is apparent that neither the trial judge nor the defense attorneys noted the one-vote deficiency, for immediately after the poll (and without objection) the trial court stated:

“Let the record reflect that the votes toward the plaintiff, twenty thousand dollars is nine yes and three no.”

The verdict was then officially recorded.

Louisiana Code of Civil Procedure Art. 1795 provides:

In order to render any verdict, nine of the jurors must concur therein. The parties may stipulate, however, that the concurrence of a stated majority of the jurors shall be sufficient for a verdict, and must do so when they have stipulated for a trial by a lesser number in accordance with Article 1761. (Emphasis added).

Given the clear expression of the above article, the jury’s award, being supported by only eight votes, should not have been recorded as part of the final verdict. We consider that error to have been harmless, however, for if we were to disregard the award and conduct a de novo review on the question of damages, we would be inclined to render judgment in excess of $20,000.00. We decline to increase the plaintiff's recovery only because doing so would penalize the defendant for having raised a legitimate issue. Under these circumstances, the defendant cannot be heard to complain that the jury’s verdict was deficient by one vote.

For the reasons assigned, the judgment of the lower court with regard to the defendant St. Charles Inn, Inc. is affirmed in all respects. The judgment of liability on the part of Project Square 376 is hereby reversed and vacated.

AFFIRMED IN PART; REVERSED IN PART.

      . Art. 2703: The lessor is not bound to guarantee the lessee against disturbances caused by persons not claiming any right to the premises; but in that case the lessee has a right of action for damages sustained against the person occasioning such disturbance.

      . Some of the items stolen which belonged to Mr. Landry: his college ring, Rotary Club ring, watch, and pen set.

      . The Louisiana Constitution invests the lower courts of appeal in this State with jurisdiction to decide questions of law and fact. La. Const, of 1974, Art. 5, § 10. This constitutional provision is implemented by the Louisiana Code of Civil Procedure which defines the scope of review of courts of appeal as follows:
      "The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.” Art. 2164.
      This article was intended to embody the articles of the Code of Practice of 1870 which, while referring specifically to the Supreme Court, applied as well to the lower courts of appeal. The two Code of Practice Articles had provided as follows:
      "Art. 905. When the Supreme Court reverses the judgment of an inferior court, it shall pronounce on the case the judgment which the lower court should have rendered, if it be in possession of all the facts and testimony to enable it to pronounce definitively.”
      "Art. 906. But if the court shall think it not possible to pronounce definitively on the cause, in the state in which it is, either because the parties have failed to adduce the necessary testimony, or because the inferior court refuse to receive it, or otherwise, it may, according to circumstances, remand the cause to the lower court, with instructions as to the testimony which it shall receive, to the end that it may decide according to law.”
      Louisiana jurisprudence has interpreted these constitutional provisions to mean that, notwithstanding a civil litigant’s statutory right to trial by jury, where a finding of fact is interdicted because of some legal error in the fact finding process and where the record is otherwise complete, the appellate court should, if it can, render judgment on the record. Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707 (La.1980); American Machinery Movers, Inc. v. Continental Container Service, Inc., 436 So.2d 1289 (La.App. 4th Cir.1983).


author: WILLIAMS, Judge. GARRISON, Judge,

text:
    Steven M. CROSS v. CITY OF NEW ORLEANS, Department of Safety and Permits and Board of Zoning Adjustments.
    No. CA-0588.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Rehearing Denied March 21, 1984.
    Writ Denied May 4, 1984.
    P. Fred Siegel, New Orleans, for plaintiff-appellant.
    Salvador Anzelmo, City Atty., Karen Mil-ner, Asst. City Atty., New Orleans, for defendant-appellee.
    John H. Ryan, New Orleans, for interve-nors-appellees.
    Before GARRISON, BYRNES and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a trial court judgment affirming the New Orleans Board of Zoning Adjustments’ decision to deny a variance to Steven M. Cross, plaintiff. We affirm.

In February 1981, plaintiff applied for an occupational license to operate a youth hostel at 2253 Carondelet Street, New Orleans. The following month, the Department of Safety and Permits inspected the premises and granted a license to operate a rooming house. Plaintiff then converted seven of the building’s nine apartments into a hostel with ten sleeping rooms accommodating 47 guests.

In September, 1981, the Department of Safety and Permits sent plaintiff a Zoning Law Violation Notice informing him that he lacked the required number of off-street parking spaces for the hostel. Plaintiff applied to the Board of Zoning Adjustments (Board) for a variance waiving the requirement of additional spaces. After a hearing upon due notice, the Board denied the variance. Plaintiff applied to the trial court for a writ of certiorari, which was denied without reasons on June 27, 1982. Plaintiffs suspensive appeal of that judgment is based upon two contentions.

First, plaintiff asserts that in reliance upon the occupational license granted him in March, 1981, he expended considerable time and money in converting the building to a youth hostel before he was notified, six months later, of a zoning violation. Plaintiff contends that the Department of Safety and Permits’ failure to call attention to the zoning violation during the licensing process created a hardship which merits the granting of a variance.

Second, plaintiff argues that evidence presented clearly demonstrates that additional parking spaces would not be utilized by hostel guests. Plaintiff contends that the Board erred in refusing the variance in light of that evidence, and that the trial court committed manifest error in affirming the Board’s decision.

ISSUANCE OF THE LICENCE

The plaintiff in Nassau Realty Co. v. City of New Orleans, 221 So.2d 327 (La.App. 4th Cir.1969), had begun construction on his house when the Department of Safety and Permits ordered the work stopped because it had issued the permit erroneously, the lot being smaller than zoning ordinances permitted. The trial court affirmed the Board’s denial of a variance, stating, “[t]he mere fact that a building permit was issued in error and contrary to the laws of the City does not vest an irrevocable right to proceed under that permit contrary to subsequent action cancelling the permission previously granted.” At 330. This court, affirming, noted:

If plaintiff has sustained a loss and has been subjected to undue hardship through no fault of its own but as a result of the Director of the Department of Safety and Permits having erroneously issued a permit upon which it relied, it may have a just grievance against that Department. However, we express no opinion with respect to that aspect of the case. Whatever remedy it might have, however, does not lie in any action which will merely pass the hardship on to its neighbors...

At 330-331.

The plaintiff in Dunn v. Parish of Jefferson, 256 So.2d 664 (La.App. 4th Cir.1972) asserted she had a vested right to her permit when the Jefferson Parish Council informed plaintiff, after she had installed her mobile home permanently on her lot, that it had “changed its mind” and was revoking the permit authorizing the home. This court accepted plaintiff’s argument specifically because in that case “there was no error in fact or law ... which induced the issuance of the permit ...” At 667. At the same time, we reconfirmed the principle of law enunciated in Nassau, supra, that a governing authority unlawfully issuing a building permit as a result of error or a mistake in fact or law has a right to cancel that permit.

The plaintiffs in Pailet v. City of New Orleans, Department of Safety and Permits, 433 So.2d 1091 (La.App. 4th Cir.1983), spent ten months renovating a four-family dwelling before the Department of Safety and Permits discovered that the property had earlier lost its nonconforming status and thus had been erroneously licensed in violation of zoning laws limiting the neighborhood to single and double-family dwellings. This court again considered Dunn, supra, and reiterated, “[t]he instant case is clearly distinguishable because the permit for the renovations was improperly issued.” At 1095. This court concluded, “[w]e hold that Dr. and Mrs. Pailet have not acquired a vested right in the erroneously issued building permit; their reliance on the permit was unjustified, and neighbors and property owners should not suffer because an employee of the City erroneously issued a permit.” At 1096.

Steven M. Cross’s permit was erroneously issued despite the fact that the premises lacked the number of off-street parking spaces required of a rooming house under City zoning ordinances. Legal precedent clearly establishes the Board’s right to revoke that permit.

Mr. May of the Department of Safety and Permits admitted at the Board hearing that the inspector responsible for plaintiff’s licensing erred in failing to follow normal Department procedure of ascertaining compliance with all zoning and building code requirements before approving an application for an occupational license. Perhaps plaintiff may have some recourse against the Department for the fault of its employee. Plaintiff’s neighbors, however, should not be deprived of the benefits and protection of their zoning laws because of the oversights of their City’s employees.

STRENGTH OF THE EVIDENCE

This court repeatedly has held that a prima facie presumption of validity attaches to the acts of the Board of Zoning Adjustments. A reviewing court cannot substitute its own judgment; it cannot interfere absent a showing by the appellant or relator that the Board was arbitrary and capricious or abused its discretion. Gertler v. City of New Orleans, 346 So.2d 228 (La.App. 4th Cir.1977), writ ref'd., 434 U.S. 1068, 98 S.Ct. 1248, 5 L.Ed.2d 770 (1978); Roy v. Kurtz, 357 So.2d 1354 (La.App. 4th Cir.1978); State ex rel Maple Area Residents v. Board of Zoning Adjustments, 365 So.2d 891 (La.App. 4th Cir.1978). With this standard in mind, we have reviewed the evidence presented by the parties.

The Carondelet property has two off-street parking spaces and is entitled to nine on-street spaces as a nine apartment building constructed under the old zoning laws. Plaintiff argues that the additional parking spaces required under the zoning laws will not be used, and that in fact, the change to a youth hostel has resulted in less on-street parking than before. To support his argument that very few of the hostel’s patrons bring automobiles with them, plaintiff hired an independent research firm to analyze the parking situation. After questioning 95% of the hostel guests over a four day period in mid-October, 1981, the firm concluded that the guests had used no more than four on-street parking spaces on any day.

Appellees are a group of plaintiff’s neighbors who intervened in the suit against the Board at the trial level. They assert that plaintiff’s brief study cannot stand up against the testimony of neighbors familiar with the situation year-round. Appellees testified to increased parking congestion which at times necessitated the towing of vehicles blocking their driveways. They alleged that the increased congestion after the opening of the hostel was especially marked during popular tourist months, and discredited the probative value of a study carried out in the less popular month of October. Appellees conclude that the requirements for variance were not met, as the evidence clearly establishes that the hostel, with its transient occupancy, would significantly alter the neighborhood’s residential character, and that the increased vehicular congestion caused by the hostel would be detrimental and injurious to the surrounding properties. (Comprehensive Zoning Ordinance of the City of New Orleans, Art. 15, Section 2.3(l)(e & h).

Plaintiff asserts that his hostel, as one of a respected international association, attracts only upstanding young persons. He adds that the very theory of travel of the organization shuns the use of automobiles. All this may be true. Once granted, however, a waiver of zoning requirements would remain with these premises as long as they continued as a rooming house. Were the clientele to become less upstanding and more car-conscious, this would be a burden the neighborhood would have to bear. Were the building sold and its operations to degenerate, the neighborhood would be forced to endure this, having granted the variance that legitimated the property’s operation as a rooming house. Based upon the arguments and evidence presented to the Board and trial court, we cannot find an abuse of discretion.

For the foregoing reasons, the decision of the trial court is affirmed.

AFFIRMED.

GARRISON, J., dissents.

GARRISON, Judge,

dissenting.

I respectfully dissent in the following particulars.

This is an appeal from a judgment of the district court, denying plaintiffs application for review and reversal of the actions of the City Board of Zoning Adjustment in denying a variance. From that judgment, plaintiff appeals.

In February 1981 the plaintiff, Steven M. Cross, applied for an occupational license to operate a youth hostel at 2253-2255 Caron-delet Street in New Orleans. The Department of Safety and Permits examined the application and decided to treat it as an application for licensing for a rooming house. The City inspected the premises, and granted the license in March 1981. Upon receiving the license and approval of the City, plaintiff subsequently converted the premises in question, which had formerly been a 9-unit apartment building, into a hostel and two apartments.

Six months after the grant of the license, or September 1981, plaintiff received a Zoning Law Violation notice informing him that the type of operation he was running required more off-street parking spaces than he was able to provide. In response thereto, plaintiff applied for a variance under the City’s Comprehensive Zoning Ordinance in the form of a waiver of eight off-street parking spaces, by appealing the Department’s determination to the Board of Zoning Adjustments (Board). After a Rearing on the matter, the Board denied plaintiff’s application, concluding that the requested variance would have an adverse impact on the neighborhood.

Plaintiff applied to the district court for review of the decision and directed a rule to the Board and the Department of Safety and Permits to transmit its records in the matter to the court. At that time several property owners in the neighborhood intervened in the proceeding. After the trial (by rule), the court rendered judgment in June 1982, without assigning reasons, denying the application. Plaintiff has appealed suspensively.

Plaintiff alleges on appeal that the denial of the requested variance was arbitrary and capricious, and was manifestly erroneous in light of the probative evidence adduced. I agree. Plaintiff’s license constitutes prima facie evidence of the City’s approval of plaintiff's application and pri-ma facie evidence that all requirements for the proposed operation have been checked by the City and successfully met. Plaintiff has a right to rely upon the City’s granting of its license, inasmuch as it is the duty of the City to check for potential violations and to inform the applicant of those potential violations prior to the issuance of the license. Absent # 1 a fraudulent application or # 2 a later developing situation not ascertainable upon inspection of the application prior to granting of the license, the City, cannot revoke its approval of the plaintiff’s operation. To hold otherwise would be to find that the City’s license is nothing but a worthless piece of paper.

It is noted that several neighbors objected to the zoning variance application arguing that property values declined and crime increased as a result of the hostel. No comparables of sales were introduced or other evidence that property values had in fact declined. Likewise, the “evidence” of crime increase was not only weak and insubstantial, but also failed to prove correlation between the crime increase and the operation of the hostel. It is noted that crime has increased citywide and that the area in question is a relatively high-crime area within the Metropolitan Area. Accordingly, these make-weight arguments are without merit and deserve no further discussion.

Lastly, I note that the neighbors argue that the operation of the hostel increases parking problems for the residents. This bogus argument is blatantly unsupported by the record. The majority opinion questions the timing of the study “in the less popular month of October.” I note that the two biggest tourism months in New Orleans are in fact April and October. The only evidence of parking was introduced by plaintiff who produced a marketing study indicating ample parking space on the street despite a calculated campaign by the neighbors of parking their vehicles on the street in order to aid to the congestion:

“The 2200 block of Carondelet was observed each evening for parking space availability. Space available each evening was as follows:
10/14 16 Vacant parking spots
10/15 24 Vacant parking spots
10/16 23 Vacant parking spots
10/17 13 Vacant parking spots

Exhibit P-10

The study further indicated that most hostel guests do not have vehicles:

“Transportation:
Hostel guests come to New Orleans by a variety of means. Most arrive in New Orleans by bus. Cars, planes and hitchhiking were the next most popular modes of transportation.

TABLE 1

Hostelers Come To New Orleans By:

10/14 10/15 10/16 10/17 Total Í»L Ü2I (IS. Í§L Í55L

Car

Bus

Plane

Ship

Train I |

Other* to cn

Hostel guests come to the hostel itself predominantly by trolley. Automobiles were the secondary means of arrival.

TABLE 2

Hostelers Come To Hostel Itself By:

10/14 (28) 10/15 (12)** 10/16 (13)** 10/17 i§L Total (55)

Car 9

Bus 2 2

Trolley 12 7 29

Walked 4 3 9

Cab 2 3 5

Other 3 4

! most hitchhiked

'* multiple responses (bus/walked included)

Of those arriving by car, 2 on October 14 and 1 on the 15th were dropped off by friends. They did not have their own cars and did not require parking space. On October 14, 2 people arrived in the same vehicle. Parking needs are assessed as those of all guests during their stay at the hostel. The maximum number of vehicles parked any evening during the study period was 4 (this included 3 cars and 1 motorcycle), while the average registration was 39 guests. This represents approximately 1 vehicle per 10 registered guests (with a range from 1 vehicle per 8 guests to 1 per 21 guests).
TABLE 3
Date Day Total Guests Total Guests Interviewed Total Respondents Vehicles With Old And Vehicles New Guests
10/14 Wed. 28
10/15 Thurs. 10
10/16 Fri. 13
10/17 Sat. 3
Total Differenct Guests SB
Total Responding To Survey 55 (
Exhibit P-10

The neighbor’s proof generally consisted of statements to the effect that “parking is worse” via a form letter. No attempt was made to link a parking problem with the hostel. We note that there are a number of commercial operations in the immediate area, including a health clinic, a synagogue, and a hotel which may be the cause of any parking problems, as it is obvious that the hostel is not such a cause. The “evidence” provided by the neighbors failed to overcome the prima facie evidence of plaintiffs existing license. Accordingly, the Board acted arbitrarily, capriciously, and unreasonably in failing to grant the variance.

For the reasons discussed, I would reverse the judgment of the district court and grant judgment issuing a mandamus to the Board of Zoning Adjustments as follows:

“IT IS ORDERED, ADJUDGED, AND DECREED that a writ of mandamus be and hereby is issued to the Board of Zoning Adjustments via its Chairman, the Honorable Claude J. Kelly, Jr. ordering the Board to issue to Steven Cross the variance requested.^