author: LOBRANO, Judge.

text:
    Helen Anthony, wife of/and Benjamin ANTHONY v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. CA-1350.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.
    Writ Denied June 1, 1984.

      Timothy G. Schafer, Schafer & Schafer, New Orleans, for John P. Hutchings and United Services Auto. Asso.
    Charlton B. Ogden, II., Ogden, Ogden & McCune, New Orleans, for New Orleans Public Service, Inc.
    Joseph M. Bruno, Bruno & Bruno, New Orleans, for Helen Anthony.
    Before LOBRANO, CIACCIO and WARD, JJ.
   LOBRANO, Judge.

This appeal arises out of an accident which occurred on February 25, 1980 in the neutral ground lanes of Canal Street when a New Orleans Public Service, Inc. (NOPSI) bus traveling in a lake bound direction made an abrupt stop and/or deceleration in order to avoid impact with a left turning green Porsche automobile driven by John Hutchings. The plaintiff, Helen Anthony, was a passenger on the NOPSI bus.

Anthony initially sued NOPSI for the injuries allegedly sustained, but later amended her suit to include Hutchings and his insurer, United Services Automobile Association (USAA) as defendants. NOPSI, Hutchings and USAA third partied each other seeking full indemnity and/or contribution. The lower court rendered judgment in favor of Anthony and against both defendants, in solido, in the sums of $25,-000.00 for general damages, $19,463.86 in medicals, $22,083.00 for past lost wages and $30,000.00 for future lost wages and/or diminished earning capacity. Anthony appeals seeking an increase in the award, while both NOPSI and Hutchings seek reversal as to liability. Hutchings also seeks a proper judgment on the third party demand.

The issues of this case are basically factual, and we begin a discussion of same referring to the trial court’s reasons for judgment. We quote his findings as follows:

“The NOPSI buses enter and exit the neutral ground on Canal Street on the lake side of Claiborne Ave. which is also approximately in front of the Saxony and the Delta Towers. Crossing the neutral ground is an auxilliary turn lane so that vehicles travelling from the lake towards the river may make a U turn on the other side of the interstate overpass.
There was no contact made between the bus and the car. However, according to the bus operator, Mrs. Bagneris, she hit the brakes to stop the bus in order to avoid hitting the green Porsche that had entered the auxilliary turning lane and had crossed into her path of travel. She testified that her vision was blocked by two buses that were traveling in the opposite direction and were stopped between Claiborne Ave. and the auxilliary turning lane and as she cleared the rear of the last bus she entered the auxilliary turning lane and travelled to the middle when the green Porsche pulled in front of her and at which time she hit the brakes on the bus. She testified that she did not see the green Porsche until it was directly in front of her. The passenger on the bus, Mrs. Pearl Ferguson, testified that she was standing at the front of the bus and did not see the green car turn but when the brakes were applied she did turn and see the green car in front of the bus and had the bus not stopped, the bus would have hit the car. However, she could not testify as to any other facts leading to that point in time. The driver of the green Porsche, John Hutchings, testified that he turned into the auxilliary lane and stopped completely within the river bound lane for the NOPSI buses and behind the two buses that were stopped for the traffic control signal at the intersection of Claiborne and Canal Streets. He testified that when the bus travelling in a lake direction and being driven by Mrs. Bagner-is appeared within his vision it stopped suddenly and he could offer no explanation. He then backed his car out of the auxilliary turning lane and proceeded on Canal Street across Claiborne and made a U turn and came back on Canal Street in a lake direction to Conti Toyota where he was to meet his wife.
Another NOPSI driver was a passenger on the bus being operated by Mrs. Bag-neris at the time of the accident and this is Mr. Robert Buckley, who testified that the green Porsche came to a stop in the auxilliary turn lane and protruded into the lake bound lane in the neutral ground by only three to six inches. He testified that he had been standing up in the bus and saw the green Porsche for the first time as the bus in which he was traveling crossed Claiborne Ave. travelling towards the lake. Originally under cross-examination Mr. Buckley testified that the green Porsche did not stop in front of the bus. Furthermore, under cross-examination the tenor of his testimony was that the bus made a sudden stop for no reason at all whereas in response to several questions by the Court he testified that had the bus not stopped it would have hit the green Porsche. He also testified that the green Porsche when it stopped, did so only for a brief second and then quickly reversed and backed out of the auxilliary turning lane so that by the time the bus travelled to the point where the front of the car had stopped the car was no longer there and impact was avoided.”

Although the extent of Mrs. Anthony’s injuries are in dispute all parties agree that as a result of the sudden stop, she was thrown off of her seat onto the aisle. Faced with obvious conflicting testimony the learned trial judge applied the rule of this Circuit as enunciated in Payne v. NOPSI, 374 So.2d 189 (La.App. 4th Cir.1979), wherein we stated,

“However, the trial court need not accept all of the testimony of any witness as being true or false. He can, and in many instances must, believe and accept part or parts of a witness’ testimony and disbelieve and refuse to accept any part or parts thereof. Basically, this is a matter of credibility, a matter which is particularly within the discretion of the trial court.” id. at 191.

In cases such as the one at bar, where an innocent third party is injured in an automobile accident, involving two or more vehicles, there is a presumption of negligence on the part of all drivers and each has the burden of exculpating himself of the negligence. Johnson v. Manis, 437 So.2d 359 (La.App. 4th Cir.1983); Poche v. Frazier, 232 So.2d 851 (La.App. 4th Cir. 1970).

As indicated earlier, the trial judge noted that the testimony of Hutchings and of the NOPSI employees were conflicting and irreconcilable. Applying the Poche, supra, burden of proof, the trial judge thus concluded both defendants had failed to exculpate themselves from negligence and that their joint and concurrent negligence caused plaintiff’s injuries. A review of the record convinces this court that the trial judge was correct in his ruling.

NOPSI, as a common carrier, is charged with the duty of exercising the highest degree of care to their passengers. Greenwald v. NOPSI, 414 So.2d 870 (La. App. 4th Cir.1982). The operator of a city transit service owes a duty to its bus passengers separate and distinct from the duty owed by a negligent left turning motorist. Thus the mere showing of injury to a fare paying passenger on a public conveyance imposes upon the carrier the burden of exculpating itself from negligence. Pilipovich v. NOPSI, 422 So.2d 262 (La. App. 4th Cir.1982). The evidence substantiates the factual conclusion that had the NOPSI operator been keeping a proper lookout she would have seen the left turning Hutchings’ vehicle in time to avoid the abrupt stop or deceleration. Clearly the testimony of passenger Buckley is credible on this point. However, the evidence also substantiates the fact that Hutchings attempted to make a left turn across the path of oncoming traffic without first making sure that he could do so safely. Three witnesses, Mrs. Bagneris, and passengers Buckley and Ferguson, all testified that the Porsche stopped in front of the bus, and if the bus had not jammed the brakes it would have collided with the vehicle.

Anthony also specified as error, the failure of the trial judge to allow her case to be tried before a jury. This argument lacks merit.

Originally Hutchings and US A A had requested a jury trial. However, on May 17, 1982 they filed a motion to waive a trial by jury which was signed on May 20, 1982. This pleading contained a certificate indicating that copies of same were sent to all counsel of record. In November of 1982 counsel for Anthony filed a motion for a trial by jury indicating that defendant’s motion to withdraw his request for a jury trial had never signed. Relying on this representation, the trial judge signed that motion granting Anthony a jury trial. That order was rescinded however, in view of the fact that Code of Civil Procedure Article 1733(C) provides for a ten day period within which to file a request for jury trial once the court grants an order to withdraw a previously requested demand for jury trial. The rescinding of Anthony’s motion for jury trial was correct since the request for same was untimely under Article 1733(C) cited above.

Anthony appeals the trial court’s award of $25,000.00 in general damages and $30,-000.00 for future loss of wages and diminished earning capacity as being inadequate.

The record reveals that at the time of her accident Anthony was a 37 year old food service worker at Charity Hospital earning $4.82 per hour. All of the physicians who testified agreed that Mrs. Anthony had a preexisting degenerative disc disease at the C5-6 level. Although she denied that she had any prior problems with her neck, there was evidence of some prior complaints. Furthermore, Dr. Charles Billings acknowledged that he performed surgery on Anthony’s neck because of a positive discogram, and because of Anthony’s continued complaints. Such testimony is particularly significant in this case since Mrs. Anthony had a preexisting degenerative disc at the C5-6 level; underwent a Cat scan which was inconclusive; underwent an electromylographic study which produced no abnormal findings; underwent two my-lograms which revealed no abnormality except for the narrowing at the C5-6 level. The evidence is also clear that the degenerative disc disease did not progress during the year following the accident.

The trial judge, in light of these factors had to consider the necessity for the surgery, to which there was disagreement among the medical experts; the reliability of the tests on which the surgery was based; and the validity of the plaintiff’s complaints. Before a Court of Appeal can disturb a damage award made by a trial court the record must clearly reveal that the trier of fact absued his discretion in making his award. Britsch. v. NOPSI, 422 So.2d 255 (La.App. 4th Cir.1982). We find no such abuse in this case and thus do not find it necessary to consider the prior awards for similar injuries cited in plaintiff’s brief. Sanders v. NOPSI, 422 So.2d 232 (La.App. 4th Cir.1982).

Appellant, Hutchings, argues that in an award for future loss of wages or diminished earnings capacity interest should run not from the date of judicial demand but rather from the date of judgment. As noted in their brief this court recently considered the issue of whether interest on awards of future loss of income should run from date of judicial demand or from the date of judgment. Schackai v. Tenneco Oil Co., 436 So.2d 729 (La.App. 4th Cir.1983). In that case, we clearly held and reaffirm today our holding that in suits for damages “ex delicto”, the court shall award interest from the date of judicial demand.

Since the trial court failed to render judgment on the demands filed by both defendants for contribution, defendant USAA urges us to do so, citing Schackai supra, as authority. The trial court found both defendants to be negligent and held them liable jointly, severally and in solido. We therefore grant judgment in favor of NOPSI, and Hutchings and USAA on their third party demands against each other ordering contribution from each for one-half of the total judgment.

AMENDED AND AS AMENDED AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Noel Many, wife of Ancil BRANING v. Ancil BRANING.
    No. CA-1424.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.

      A.D. Barnes, Jr., New Orleans, for appellant.
    Daniel A. Ranson, Windhorst, Pastorek & Gaudry, Gretna, for appellee.
    Before LOBRANO, CIACCIO and WARD, JJ.
   LOBRANO, Judge.

This appeal arises out of two judgments rendered by the district court, the first making past due alimony executory and the second maintaining permanent alimony in the sum of $350.00 per month and denying appellant’s rule to reduce permanent alimony. The factual situation is as follows:

On September 28, 1981, appellee Noel Many, filed a Petition for Divorce against her husband, appellant, Ancil Braning based on the grounds of adultery or, in the alternative, for a separation based on abandonment and cruel treatment. Appellee also requested a hearing for child support, alimony, custody, and the use and occupancy of the family home.

The matter proceeded to trial on December 23, 1981, at which time a judgment was rendered in favor of appellee, granting her a separation a mensa et thoro based on abandonment. This judgment also ordered appellant to pay child support in the sum of $350.00 per month until the minor reached majority on July 27, 1982, and alimony pen-dente lite in the amount of $350.00 per month. The judgment also provided “... permanent alimony in the amount of $350.00 per month, beginning the date of the judgment.” That portion of the judgment relating to the support obligations was by consent of the parties.

On February 28, 1983, a judgment of divorce was rendered granting appellee a divorce based on living separate and apart for a period of one year from the judgment of separation. The divorce judgment is silent as to any alimony provisions. Subsequently appellant discontinued the $350.00 per month payments, and hence, appellee filed a rule to make past due alimony exec-utory, and for contempt. On May 20, 1983 the lower court awarded appellee $1,050.00 in past due alimony, but dismissed the contempt rule. Appellant, on June 16, 1983, appealed that decision, and at the same time filed a rule to reduce. The trial court denied that rule on July 19, 1983 on the basis that appellant failed to prove a change in circumstances so as to warrant an alimony reduction. That decision has also been appealed, and both are before this Court for decision at this time.

The issues presented are twofold. First, can the husband and wife consent to a judgment for permanent alimony at the time of judicial separation, but prior to divorce? Second, was the trial court manifestly erroneous in his failure to reduce the permanent alimony?

Appellant’s argument on the first issue is that since the divorce decree is silent on the question of permanent alimony, appellee is not entitled to same. He argues that the jurisprudence is clear that a judgment of divorce terminates previously awarded alimony. He further asserts that his due process rights were violated since he had no knowledge of his alimony obligations after the divorce because the judgment was silent.

We first note that appellant does not argue that he didn’t agree to the original separation judgment which set the permanent alimony at $350.00 per month. Although appellee refers this court to the testimony of the separation hearing which resulted in that judgment, we find a review of that is unnecessary. Suffice it to say that appellant acknowledges he agreed and consented to it.

By its very nature, a consent or compromise judgment is a bilateral contract wherein the parties adjust their differences by mutual consent, thereby putting an end to litigation (or anticipated litigation) with each party balancing the hope of gain against the fear of loss. Parkerson v. R-5, Inc., 305 So.2d 592 (La.App. 4th Cir.1974), writ denied 309 So.2d 679 (La. 1975). Appellant is correct in the cases he cites that a divorce judgment terminates previously awarded alimony, but those eases all refer to alimony pendente lite. It is quite clear from a reading of the separation judgment of December 23, 1981 that the parties intended the permanent alimony to be $350.00 per month at the time of the divorce, for the language states “... beginning the date of the judgment”. Obviously this refers to the divorce judgment.

We find no prohibition in the law, and none has been suggested to us, whereby parties cannot agree on permanent alimony prior to the rendering of the divorce decree. Prior to the amendments by Act 627 of 1978 and Act 711 of 1979, La. Civil Code Article 1790 prohibited husband and wife from contracting with each other. However, that prohibition has now been abolished by the above mentioned amendments. Clearly, then, appellant contracted and agreed to pay permanent alimony when, and if the divorce judgment was rendered. He does not deny knowledge of the agreement or the fact that he consented to it. The trial court was correct in ordering that the consent judgment be enforced, and that appellant pay the back alimony due. His (appellant’s) proper remedy was to seek a reduction in alimony, which he did and which was denied. We now turn to the merits of that issue.

In refusing to reduce the award of permanent alimony, the trial court failed to find a change in circumstances to justify a reduction. Furthermore, a trial court is vested with considerable discretion in matters concerning alimony. The trial judge may have considered the amount for permanent alimony fixed by consent as a minimum for the ex-wife’s needs leaving the husband with a comfortable surplus. Absent manifest error these findings should not be disturbed. Loyacano v. Loyacano, 358 So.2d 304 (La.1978); Swider v. Swider, 314 So.2d 372 (La.App. 4th Cir.1975), writ refused, 320 So.2d 551 (La.1975).

To justify altering an alimony award established by a consent decree, the party seeking modification must show a significant change in circumstances of either party from the time of the award to the time of trial of the rule. Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973); Ducote v. Ducote, 339 So.2d 835 (La.1976); Swider, supra.

A review of the evidence produced at trial does not show a substantial change in the circumstances of the parties. Since the divorce, appellant has had a definite increase in his income. He has since remarried and shares his living expenses with his present wife who earns over $16,-000.00 per year which must be considered as part of the overall circumstances of the parties. Swider, supra. See also, Crum v. Crum, 330 So.2d 925 (La.App. 1st 1976). Thus, we find no manifest error in the trial court’s denial of the rule to reduce.

For the foregoing reasons, the trial court’s judgments of May 18,1983 and July 19, 1983 are affirmed. All costs of these proceedings to be paid by appellant.

AFFIRMED.

      . The language of the judgment states "by consent of the parties”.

      . Also that testimony was not included as part of the record of these proceedings. We find it unnecessary, however, to delay this matter to include same.

      . Stolier v. Stolier, 357 So.2d 1334 (La.App. 4th Cir.1978); writ denied 359 So.2d 621 (La.1978).


author: WILLIAMS, Judge.

text:
    Elizabeth WUERTZ v. David CRAIG: John Doe and Mary Doe.
    No. CA-1377.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.
    Writ Granted June 8, 1984.

      Robert T. Garrity, Jr., Harahan, for defendant-appellant.
    Anthony J. Russo, Mark P. Burton, New Orleans, for plaintiff-appellee.
    Before SCHOTT, AUGUSTINE and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a decision of the trial court refusing to allow plaintiff Elizabeth Wuertz to revoke consent to an adoption.

On February 11, 1982, plaintiff signed an act of surrender transferring custody of her child to defendant, David Craig, an attorney representing unnamed parents, for the purposes of adoption. At some time after the signing of this document, plaintiff apparently changed her mind and intended to revoke this consent. Defendant refused to acknowledge the revocation as valid, and this lawsuit was instituted against Craig and the unnamed adoptive parents. After a trial on the merits, the court found in favor of the defendants. It is from this decision that the plaintiff now appeals, assigning four errors in the court below as the basis for the appeal: (1) the trial court erred in finding that the consent was freely given; (2) the trial court was in error in refusing to require the attorney who represented the parents at the adoption to disclose the name of the prospective parents; (3) the court erred in finding that the consent was not revoked; and (4) the court was in error in upholding the validity of the consent document.

EXECUTION UNDER DURESS

The plaintiff asserts as the major basis for reversal that the trial court should have found that the act of surrender was invalid because she executed it under duress.

It appears from the record and from the assertions in brief, that the person allegedly exerting the duress was the plaintiff’s grandmother, Mrs. Bertioniere. Mrs. Ber-tioniere did not testify at the hearing. The plaintiff testified that her grandmother had kept her from seeing her child and that her grandmother had hired the attorney who had represented her at the act of surrender. She also said that her grandmother had threatened her with prosecution for child abuse if she did not give up the child for adoption.

The defense asserts that there was ample evidence presented at trial on which the judge could have based its determination that the act of surrender was freely given. Although she did admit that she was afraid of going to jail, she stated under cross-examination that she fully understood that she was giving up all her rights to her child and that it was explained carefully to her. She stated that the attorney took a lot of time in this explanation. This exchange occurred during cross-examination:

Q. “And you signed this document knowing all this under your own free will; isn’t that correct?
A. Yes sir.

Tr. at 9.

Based on the information contained in the record, we can not find that the trial court abused its discretion in determining that the plaintiff signed the act of surrender freely and voluntarily.

PARENTS’ ANONYMITY

Plaintiff argued that the trial court should have required the disclosure of the adoptive parents’ names by the attorney who represented them, defendant David' Craig. Plaintiff places reliance upon the decision in Brasseaux v. Girouard, 214 So.2d 401 (La.App. 3d Cir.1968) in which the court held that ordinarily no privilege prevents an attorney from testifying as to the name of his client. Id. at 410. We find this case distinguishable from Brasseaux.

Unlike Brasseaux, this is not an “ordinary” circumstance. The anonymity of adoptive parents is provided for by La. R.S. 9:422.9. This statute allows for representation of prospective adoptive parents by an attorney in the adoption proceedings. To require the disclosure of the names of the adoptive parents in cases such as this would clearly violate the intent of the legislature. Furthermore, we find there is no legal reason whatsoever for this disclosure, and the failure of the plaintiff to know the names of the adoptive parents in no way prejudices her in these proceedings.

UNTIMELY REVOCATION

Plaintiff asserts that she revoked her consent pursuant to La.R.S. 9:422.10, and that the trial court was in error in finding that this revocation was untimely. La.R.S. 9:422.10 provides for the revocation of an act of surrender if made within certain procedural guidelines:

The parents executing the act of legal surrender, acting jointly or individually, may oppose the adoption of the child surrendered only by a clear, written declaration of the revocation, made within thirty (30) days after executing the formal act of surrender. The writing must reasonably identify the child surrendered and the act of surrender; attaching a copy of the act of legal surrender being sufficient. A copy of the writing must be sent by certified or registered mail to the person or persons, or their representative, identified in the act of surrender to whom the custody of the child was granted to be of any effect. Proof of actual receipt of the writing must be made by an affidavit of mailing with signed return receipt attached or by other proof as in a civil trial ... The rights and procedures in this Section are exclusive, (emphasis added)

The testimony presented on the time of revocation and the notification of such is, at best, conflicting. The attorney representing the plaintiff testified at trial that he notified David Craig shortly after the act of surrender that his client wished to revoke the surrender. Craig, however, testified that he received a phone call two or three weeks later saying that there would be a revocation. Filed into evidence, was a letter from plaintiff’s attorney to Craig, dated February 19, 1982, confirming a telephone conversation bf the previous day in which the attorney had advised Craig of his representation of the plaintiff and of her revocation of consent. Enclosed with the letter, and also filed into the record is a withdrawal of consent of adoption. This was not sent by registered or certified mail. Craig could not testify as to the date when he did receive the letter, although he indicated that he might have received it after the 30 day period had expired.

Plaintiff argues that the provisions of La.R.S. 9:422.10 states: “[pjroof of actual receipt of the writing must be made by an affidavit of mailing with signed return receipt attached or by other proof as in a civil trial,” allows for regular mailing if this can be proved by testimony or affidavit.

The defense argues that strict interpretation of this provision is required, and that the trial court’s conclusion that no attempt had been made to revoke the act of surrender until the statutory time had elapsed, is supported by the evidence.

We find no error in the trial court’s decision, or its interpretation of the law. The court based its conclusions bn the testimony of Craig who could not testify that he received the required revocation within the statutory limits. This type of problem is exactly why La.R.S. 9:422.10 requires certified or registered mail to be used in these instances. Plaintiffs argument that regular mail can be used is without merit. The provision on which her argument is based simply sets forth guidelines for proving that service in compliance with the statute, i.e. certified or registered mail, has taken place.

The thirty day limit also serves to protect the integrity of the family unit into which the child is placed. To allow a child to remain with the adoptive parents for any length of time and then remove him or her from their custody is disruptive and harmful to both the child and the parents. It would also be extremely detrimental to force the adoptive parents to live for an indefinite period of time with the fear that the child will be taken from them. This type of apprehension would only undermine the healthy family environment to which the child and the adoptive parents would be entitled.

VALIDITY OF ACT OF SURRENDER

In this argument, plaintiff contends that the act of surrender is invalid because it lacks the address of the attorney to whom the surrender was made. Defendant argues that the failure to include this one item in the act of surrender should not invalidate it, and asserts that this argument is not properly before this court because it was not raised in the court below.

La.R.S. 9:422.6 requires:

“The formal act of surrender shall identify the parents or parent of the child by name, parish of domicile, age, and marital status; shall identify the child and the parish of birth of the child; shall indicate the name and address of the person or persons to whom the surrender is made, or the name and address of the representative of that person or persons; and shall recite: (1) the date of birth of the child to be surrendered and that the act is not signed earlier than the fifth day following that date; (2) that the parent or parents freely and voluntarily surrendered custody of the child for the purpose of private placement and adoption; (3) that the parent or parents consent to the adoption; (4) that the parent or parents have been informed and understand that their rights as parents of the child are to be terminated, and; (5) that notice and service of any pleading of any sort and any subsequent adoption proceeding is waived. Should a surrendering parent of a child be under age of 18 and the time of signing, the formal act shall also recite that fact and shall state that the surrendering parent under the age of 18 is joined in signing the formal act of surrender by those individuals indicated in R.S. 9:422.3 [sic]. Each necessary party must sign in the presence of a notary and two witnesses, although it is not necessary that they sign the same instrument.” (emphasis added)

In support of her position, plaintiff cites a number of cases which require strict construction of the adoption laws. In re CTD, 415 So.2d 315 (La.App. 2d Cir.1982); In re G.O., 433 So.2d 1115 (La.App. 3d Cir.1983). As defendants point out in brief to this court, the cases relied upon by plaintiff involve failure of the act of surrender in a more substantive sense. In In re CTD, supra, there were a variety of errors in the formal act, e.g., the act was executed prior to the birth of the child, the date of the child’s birth was not stated, the mother had lied about her marital status, etc. In In re G.O., supra, the consent of the parent to the adoption was not expressed in the act.

In the instant case, the only requirement not included in the formal act of surrender was the address of David Craig, the attorney representing the adoptive parents. At no time in the court below, did the plaintiff allege that Craig was not timely notified of the revocation because of her inability to find him. We cannot find how the failure to include the attorney’s address in the act of surrender could in any way invalidate that act, in this case.

In brief to this court, the plaintiff argues that the reason for including the name and address of the representative of the person who is adopting the child is so that the revocation may be timely made to that person. In this case, there appears to be no question that plaintiff was able to contact Craig and that the failure to include his address in the act had nothing whatsoever to do with the untimely revocation.

Although there may be an instance where the failure to include the name and address of the representative of the adoptive parents may require the invalidation of the act of surrender, such is not the circumstance presented by the case now before the court. Plaintiff has failed to show any prejudice or any reason whatsoever why we should not uphold the conclusion of the trial court finding that act of surrender to be valid. For this reason, this argument is also without merit.

For the foregoing reasons, the decision of the trial court is hereby AFFIRMED.

AFFIRMED.


text:
    Marshall E. TITLE v. PONTCHARTRAIN HOTEL and its Liability Insurer the ABC Insurance Company.
    No. CA-1415.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.
    Writ Denied June 1, 1984.
    Marshall E. Title, pro se.
    Walter C. Thompson, Jr., Owen A. Neff, Henry E: Yoes, III, New Orleans, for defendant-appellant.
    Before SCHOTT, AUGUSTINE and WILLIAMS, JJ.
   WILLIAMS, Judge.

Defendant, the Pontchartrain Hotel, appeals a trial court judgment awarding plaintiff, Marshall Title, $2,810.00 in damages for injuries sustained when he bit down on a pearl while consuming a fried oyster at defendant’s restaurant.

The trial court’s Reasons for Judgment stated: “This is a case of strict liability. The Hotel furnished food that was dangerous for human consumption. The condition was forseeable.” Plaintiff was awarded $2,500.00 for pain and suffering and $310.00 in special damages for dental work.

Defendant argues that the trial court erred in imposing strict liability and contends that because the pearl was a natural part of the oyster eaten, the proper standard was one of negligence. Defendant further asserts that it was not negligent.

Plaintiff urges the court to abandon the “foreign-natural” substance test enunciated in Musso v. Picadilly Cafeterias, Inc., 178 So.2d 421 (La.App. 1st Cir.1964), writs ref. 248 La. 468, 469, 179 So.2d 641, and adopt the “reasonable expectation” test used by a number of other jurisdictions. Plaintiff asserts that under this test the defendant would be strictly liable because a customer consuming fried oysters at defendant’s restaurant should not reasonably expect to encounter a pearl inside the prepared oyster. Plaintiff additionally requests the court increase the trial court award by $620.00 to cover medical expenses and mental anguish for a future root canal procedure.

THE “FOREIGN-NATURAL” TEST VERSUS THE “REASONABLE EXPECTATION TEST”

The court in Musso, supra, thoroughly reviewed the law of other jurisdictions and noted that the vast majority which had considered the question had adopted the “foreign-natural” test for liability rather than the “reasonable expectation” test. The court stated:

We believe the majority view on the subject under consideration to be reasonable and sound. It recognizes and affirms the high degree of care imposed upon the server of foods but does not inflict upon him the unconscionable burden of becoming the absolute, unrestricted and unqualified insurer of his customers. If the server permits alien, extraneous matter not constituting a natural part of the ingredients or finished product (such as glass or other noxious substances), to enter his product during preparation or processing, he is liable for breach of his implied duty to serve a product free of foreign, deleterious substances. However, should the restaurant keeper inadvertently leave in the food substances natural to the ingredients or finished product he is not liable to the customer, as the food is not thereby rendered unwholesome and unfit for human consumption. As a result there is no breach of the implied warranty of wholesomeness.

Plaintiff complains that the “foreign-natural” test “draws a line,” holding liable the purveyor of a foodstuff containing foreign material while arbitrarily exonerating the purveyor of a food when the harm-causing substance happens to be natural to the food itself.

What the plaintiff fails to point out is that the Musso court did not stop with the “foreign-natural” test as defined by other jurisdictions, but gave additional protection to the consumer injured by a “natural substance” in his food by requiring the purvey- or prove himself free of negligence:

“An obvious extension of the foregoing rule must perforce be made where the vendor of foods negligently permits substances natural to the ingredients or finished product to remain in the food served the customer and illness or injury results therefrom. Under such circumstances the restaurant keeper is liable because of his negligence.”

The Musso court first determined that the defendant could not be held strictly liable on the basis of implied warranty for serving a slice of cherry pie containing a cherry pit, since the pit was natural to the pie’s ingredients. Then, the court examined the defendant’s preparation of the pie for negligence after enunciating the following standard of care:

We believe the degree of care incumbent upon the restaurant operator in selecting, preparing and cooking food for customers, including the removal of substances natural to the ingredients or finished product, such as bones from fish or meat and stones or seeds from vegetables or fruit, is the same as that which a reasonably prudent man skilled in the culinary art, would exercise in the selection and preparation of food for his own table.”

Nine years after the First Circuit decided Musso, this court considered the same issue in Loyacano v. Continental Ins. Co., 283 So.2d 302 (La.App. 4th Cir.1973). Plaintiff broke a tooth when she bit into a bone inside the ground meat she had purchased from defendant Winn-Dixie Food Store. This court quoted extensively from Musso and concluded, “[W]e follow the majority view expressed in Musso.... We believe the principles announced to be controlling in a consideration of the facts of this case.” Yet apparently the court then refuted the “foreign-natural” test expressed in Musso and employed the “reasonable expectation” test:

It may be said that a product can be considered defective if it does not meet the reasonable expectations of the ordinary consumer as to its safety. It is not the fact that a defect is a natural one which is important to the inquiry, but the fact that the ordinary consumer would expect that he might encounter it, and thus he would naturally take his own precautions.”

If this can be considered an adoption of the “reasonable expectation” test in spite of this court’s express approval of the Mus-so “foreign-natural” test, it should be noted that this court then excepted the defendant from its newly-established strict liability on the premise that the sealed package of ground meat was not intended to be consumed as is, but rather was to be further processed by the individual cooking the meat for a meal. This court then applied the “foreign-natural” test upon the vendor of sealed packages to be further processed by the consumer, explaining:

... it seems to us that the strict liability imposed upon vendors of sealed packages of that nature, cannot be imposed upon the vendor here, except insofar as a foreign object would be considered. For a natural object, such as a bone, from the only evidence produced in this case, it appears that the inquiry should be directed to the size of the bone left in the ground meat, [the size to determine whether defendant were negligent].

Interestingly, having absolved the defendant of strict liability, this court then determined defendant’s negligence through a “reasonable expectation” test:

“Certainly the reasonable expectation of the ordinary consumer is that the processor and vendor of ground meat would exercise the same care as that which a reasonably prudent man skilled in the art of meat handling would exercise in the removal of bones from the meat. We conclude that the defendant negligently left in the ground meat pieces of bone of a larger size than the consumer might reasonably expect, and is responsible for the damages caused.”

The determination of negligence requires the construction of a “reasonable man” whose “reasonable behavior” must be defined by determined “reasonable expectations.” Musso’s approach to implied warranty of purveyors of food is a two-pronged one. If the harmful substance is foreign, the defendant is strictly liable and the analysis stops. If the substance is natural to the food, however, the analysis continues: the negligence of the defendant must be determined. It is here, where the reasonableness of defendant’s behavior is being determined, that Louisiana’s approach might be being mistaken for the “reasonable expectation” test that a minority of other jurisdictions apply in order to decide whether strict liability is to be applied in the first place. Loyacano is not actually applying the minority “reasonable expectation” test for determination of the defendant’s strict liability. Rather it applied the "foreign-natural” test to determine that the. defendant would not be strictly liable and then moved on to determine negligence using the language of “reasonable expectation.” Thus, despite the language that makes Loyacano appear to be support for 'the minority test, this court did not contradict itself when it stated that it was following the majority view expressed in Musso. Until the Louisiana Supreme Court issues a directive to the contrary, this court will continue to employ the “foreign-natural” test to determine liability in cases such as the one at bar. Because we consider a pearl to be “natural” to a fried oyster, defendant can be held liable only after his behavior is determined to be negligent.

NEGLIGENCE OF DEFENDANT

Because the trial judge considered the defendant strictly liable and refrained from making any judgment on the defendant’s negligence, that factual determination is before this court on first impression. Based on a thorough review of the record in this case, we cannot conclude that the presence of a pearl in one of the fried oysters served plaintiff can be attributed to negligent behavior on the part of the defendant.

If the defendant in Musso, supra, could be absolved of negligence for a cherry pit inadvertently left in a slice of pie, certainly the defendant in the instant case cannot be held liable for a pearl appearing in one of its fried oysters. A pit is a hazard present in every cherry; a pearl is a very unusual and unexpected — although not impossible— natural object to be found imbedded in an oyster which has reached the frying stage.

Plaintiff presented Dr. Dee Dundie, a Ph.D. in Biology, as an expert witness in the field of malocology, the study of mollusks (including oysters). Plaintiff also presented Mr. Joe S. Brown, an oyster shucker and relief fry cook. They testified that even a completely imbedded pearl would create a clearly visible lump in the oyster which when palpitated would be identifiable as a pearl, and that the pearl could be removed with a knife with the oyster remaining intact.

Defendant presented the testimony of Mr. Buddy Weir, Food and Beverage Director of the Pontchartrain Hotel. Three or four months before the incident with plaintiff, Mr. Weir had inspected the processing plant providing defendant’s oysters; he explained the thorough rinsing procedures followed by the plant to remove all debris and pearls from the shucked oysters. He also described the restaurant’s procedure for frying oysters, explaining that the cook visually inspects a handful of processed oysters for “shells or matter like that on the oyster,” then individually breads them, inspecting them “visually and by touch,” and finally, places them in the deep fat fryer. When handling the oysters, the cook is instructed not to press so firmly that the skin of the oyster bruises, rendering the oyster unacceptable for frying.

We do not feel that there is anything further the defendant’s oyster fryers could reasonably do to eliminate the very slim possibility of a pearl remaining imbedded in an oyster. Intense scrutiny and thorough palpation of every oyster to be served is simply not feasible in any restaurant situation. We do not consider the failure to testify of the fry cook on duty the day of the incident to be detrimental to defendant as we cannot envision the cook remembering the preparation of this one oyster in particular.

Accordingly, we reverse the trial court’s decision awarding damages of $2,810.00 to the plaintiff, and hold that the defendant was not negligent. Consequently, we also deny plaintiff’s request for increase in damages.

For the foregoing reasons, the decision of the trial court is REVERSED, and plaintiffs suit is dismissed at his cost.

REVERSED.

      . Among these, plaintiff cites in particular: Zabner v. Howard, 201 So.2d 824 (Fla.Dist.Ct.App. 1967); Jim Dandy Fast Food, Inc. v. Miriam Carpenter, 535 S.W.2d 786 (Tex.Civ.App.1976); Ex Parte Morrison's Cafeteria of Montgomery, Inc., 431 So.2d 975 (Ala.1983); O'Dell v. DeJean’s Packing Co., Inc., 585 P.2d 399 (Okl.Ct.App. 1978).


author: CHEHARDY, Judge.

text:
    Bruce R. SCHWEIGER v. Oliver SANDERS, Jr., individually and on behalf of his minor child, Wesley Sanders, ABC Insurance Company, Anthonia M. Martinez, individually and on behalf of the minor child, Anthony R. Martinez, and XYZ Insurance Company.
    No. 83-CA-701.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 1984.
    Frederick J. King, Jr., New Orleans, for Bruce Schweiger, plaintiff-appellant.
    Schafer & Schafer, Timothy G. Schafer, New Orleans, for Oliver Sanders, Jr., and Wesley Sanders, defendants-appellees.
    Anthony R. Martinez, in pro. per.
    Before CHEHARDY, CURRAULT and GRISBAUM, JJ.
   CHEHARDY, Judge.

This is a suit for personal injuries resulting from an altercation between teenage boys. Plaintiff Bruce Schweiger claims that Anthony Martinez and Wesley Sanders beat him up in front of his mother’s home at about 10:30 p.m. on October 2, 1980.

During discovery plaintiff was informed by Sanders’ counsel that one Dean Whitney had admitted participating in the battery, rather than Wesley Sanders. A supplemental and amended petition was then filed naming Whitney as a joint tort-feasor. Whitney had not been served prior to trial so the case was presented to a jury only against the original defendants.

At the trial plaintiff identified his assailants as Sanders and Martinez. Martinez admitted initiating the fight and identified the other assailant as Whitney.

None of plaintiff’s witnesses saw the fight and could testify only as to what plaintiff told them, but all of defendants’ witnesses were aware of the fight at the time of its occurrence and were in the immediate vicinity or not far removed. They denied that Sanders had participated, and two who had seen the fight identified Whitney as the other antagonist.

Whitney, the last person to testify, was called as a witness by Sanders. He was advised of his rights by the trial court, but nevertheless elected to testify.

Whitney admitted kicking plaintiff on the side of the head without provocation while Martinez held plaintiff on the ground in a headlock. He stated he did not even know Sanders but just saw a chance to get into a good fight.

Following this testimony, the trial court sequestered the jury and ordered that the witness be arrested and charged with the crime of aggravated battery. Bond was set at $35,000 and the witness was remanded to the custody of the sheriff.

At that time counsel for the Sanders defendants moved for a directed verdict dismissing his clients from the suit on the ground that the evidence overwhelmingly established that Dean Whitney and not Wesley Sanders was responsible for the kicking incident. The court maintained the motion over plaintiff’s objection.

Plaintiff then moved for a directed verdict against the Martinez defendants, which was granted. The court then advised the parties it would review the testimony and medical evidence and render an additional judgment relative to quantum at a later date. No objection was made to this announcement by either attorney.

Two weeks later judgment was rendered in plaintiff’s favor against the Martinez defendants in the sum of $15,000. Plaintiff appealed from both judgments. The Martinez defendants have neither appealed nor answered the appeal.

In this court appellant contends the trial court erred in: (1) rendering a directed verdict dismissing the Sanders; (2) in depriving him of his right to a jury determination of quantum; and (3) alternatively the quantum is inadequate.

In addressing appellant’s first contention we note that the motion for a directed verdict is a relatively new procedure available to Louisiana litigants.

The purpose of the directed verdict is that “it serves judicial efficiency by allowing the judge to conclude the litigation (in a jury trial) if the facts and inferences are so overwhelmingly in favor of the moving party that the court believes that reasonable men could not arrive at a contrary verdict.” Civil Procedure — Work of the Louisiana Legislature for 1977 Regular Session, 38 La.L.Rev. 152, 157 (1977).

This standard was maintained in the cases of Campbell v. Mouton, 373 So.2d 237 (La.App. 3d Cir.1979); and Oppenheim v. Murray Henderson Undertaking, 414 So.2d 868 (La.App. 4th Cir.1982).

The court in Campbell further states the standard of proof is based upon the federal standard and cites language in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969), in enunciating the proper state standard.

“On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.” 373 So.2d at 239.

Applying this standard to the present case we find the trial judge did not err in granting a directed verdict.

The record reflects that Martinez was out to get plaintiff because of an earlier fight between the two whereby plaintiff apparently got the best of Martinez.

The incident which precipitated the fight in suit occurred at the lakefront a few weeks earlier when a truck in which Sanders and Martinez were guest passengers pulled alongside of a motorcycle on which plaintiff and his girl friend were riding. Martinez shouted obscenities at the girl. Later that day plaintiff tracked down Martinez and a fight ensued. Sanders was present but did not participate, nor did he insult plaintiffs girl friend.

On the day of the present altercation, Sanders, Martinez, Whitney, and Gary Lotz were at a convenience store a few blocks from plaintiffs home when Schweiger rode by on his motorcycle.

Martinez wanted to fight plaintiff so the four friends started to walk to his home. On the way they met five friends driving home from a local football game. They told the friends of their intentions and continued on foot to Schweiger’s house while the people in the car drove around the block and parked down the street from the house.

Martinez, Lotz and Whitney walked toward plaintiffs home while one of the girls knocked on the door. Meanwhile Sanders and the other girls stayed at the car.

When Schweiger came to the door the girl told him a friend wanted to see him. At that time plaintiff saw a person crouched underneath a camper parked in the driveway about 30 feet away. The person was on all fours, with his face looking upward, underneath the vehicle. The area was illuminated by a street light. Plaintiff identified the person as Sanders.

Plaintiff stepped outside and Martinez, hiding behind some bushes, rushed in from the left and grabbed plaintiff around the neck. They both flipped over onto the lawn and Martinez then got plaintiff in a headloek and punched him in the face until Martinez (and presumably Schweiger also) was exhausted.

Plaintiff testified Sanders then ran up and kicked him in the head, but everyone else identified the assailant as Whitney, including Whitney himself. After the fight, the aggressors ran out to the street and back to the car. One of them said, “We got him.” Schweiger identified the voice as that of Sanders.

After hearing all of the witnesses it is clear the trial court regarded this as a case of mistaken identity.

The inferences most favorable to plaintiff — his identification of Sanders as the person hiding under the camper and the voice identification of Sanders as the person uttering three words as the assailants ran from the scene — are not persuasive in view of the overwhelming testimony and evidence to the contrary, i.e., that Whitney and not Sanders was the other assailant.

The possibility of mistaken identity apparently became obvious to the trial judge when Whitney and Sanders were asked to stand together side by side, full face and profile to show their resemblance to each other.

The evidence became overwhelming when Whitney, advised of his rights prior to testifying, admitted the fact that he kicked Schweiger, thus subjecting himself to serious criminal penalties.

We find the trial court correctly granted the directed verdict.

Appellant’s second contention is that he was deprived of his right to a trial by jury on the question of quantum. He claims the award was improper and should never have been assessed by the trial judge.

Appellant requested and was granted a directed verdict against defendant Martinez. He made no objection when the trial judge announced his intention to examine the evidence and medical testimony and determine quantum thereafter. His objection now, only after quantum has been decided, comes too late.

We now address the contention that the award is inadequate.

Plaintiff suffered painful injuries in particular to the eye and the face. His face was damaged and he was hospitalized for the repair of an orbital fracture of the right eye. The purpose of the surgery was to stop the double vision plaintiff was experiencing as best as possible, and to put the bones in place. Silastic sheeting had to be inserted in the right orbital floor where the bone had been shattered by the blows. There was no bone found to cover the opening, so an implant was shaped to cover the wound. The patient withstood the entire procedure well and left the operating room to recovery in good condition. He does have, and will continue to have, a permanent residual problem with glare.

In Dupree v. Pechinay Saint Gobain Co., 369 So.2d 1075, 1082-1083 (La.App. 1st Cir.1979), the court said:

“In Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977), the Supreme Court made the definitive statement in regard to appellate review of awards for general damages as follows:
We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. Anderson v. Welding Testing Labatory, Inc., [304 So.2d 351 (La.1974) ] supra; Bitoun v. Landry, [302 So.2d 278 (La.1974)] supra; Fox v. State Farm Mutual Automobile Ins. Co., [288 So.2d 42 (La.1973)] supra; Walker v. Champion, [288 So.2d 44 (La.1973)] supra. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. * * *

We have considered the award made in the instant case in the light of the well-established rule and are unable to find that the trial court clearly abused its wide discretion in making its award.

For the reasons assigned the judgment appealed from is affirmed.

AFFIRMED.

      . Plaintiff sued Dr. Oliver Sanders, Jr., and An-thonia Martinez individually and on behalf of their minor sons Wesley Sanders and Anthony Martinez, and their respective insurers, identified only as ABC and XYZ.


text:
    Debra HERVISH, d/b/a La Difference v. GROWABLES, INC., and Ryder Truck Lines.
    No. 83-CA-726.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 1984.

      Peter H. Graber, New Orleans, for plaintiff-appellant.
    David F. Craig, Jr., New Orleans, for Growables, Inc., defendant-appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Debra Hervish, doing business as La Difference, appeals from a judgment granting an exception of lack of personal jurisdiction and dismissing defendant Growables, Inc., from her suit against it. (The other defendant, Ryder Truck Lines, Inc., took no part in the jurisdictional dispute and is not before us on this appeal.) The question to be resolved in this case is whether the State of Louisiana can exercise long-arm jurisdiction over a Florida furniture manufacturer that delivered its goods, through a third-party shipper, to a Louisiana resident.

The relevant facts are as follows:

Growables, Inc., is a corporation domiciled in St. Petersburg, Florida. In July 1982, Debra Hervish was a resident of Florida; she obtained a brochure about Growables’ line of children’s furniture from her mother and decided to purchase some. She went to Growables’ office, in person, to place an order for 14 pieces of furniture. While at Growables’ office, she deposited $2,000 toward the total purchase price of $2,662. At that time she advised defendant she soon would be moving to Louisiana, and would give defendant her new address when she obtained it, so the furniture could be shipped to her there.

In early August 1982, Mrs. Hervish moved to Kenner, Louisiana, and informed Growables of her new address. Thereafter, she contacted Growables three or four times to find out why shipment of the furniture had been delayed beyond the eight weeks estimated by Growables.

On or about November 2, 1982 the furniture was delivered to Mrs. Hervish by Ryder Truck Lines. At the time of delivery, she paid to the Ryder driver the balance of the purchase price, plus the shipping charges, a total of $876.90. Upon opening the cardboard cartons in which the furniture had been shipped, Mrs. Hervish discovered that every piece of furniture was damaged. After making futile demands for recovery from Ryder and Growables, she filed this suit.

The Louisiana “long-arm” statute, R.S. 13:3201, provides, in pertinent part,

“A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s:
(a) transacting any business in this state;
(b) contracting to supply services or things in this state;
(c) causing injury or damage by an offense or quasi offense committed through an act or omission in this state;
(d) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state ⅜ *

This statute was intended by the Legislature to extend the personal jurisdiction of Louisiana courts over nonresidents to the full limits of due process under the Fourteenth Amendment. Drilling Eng., Inc. v. Independent Indon. Amer. Pet. Co., 283 So.2d 687 (La.1973); Adcock v. Surety Research & Inv. Corp., 344 So.2d 969 (La. 1977).

“The finding of jurisdiction over nonresidents involves an evaluation of the factual circumstances of the case in light of federal constitutional principles. In order for the proper exercise of jurisdiction in personam over a non-resident there must be sufficient minimum contacts between the non-resident defendant and the forum state to satisfy due process and 'traditional notions of fair play and substantial justice’ as required by Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977); International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); and McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). Whether or not a particular defendant has sufficient minimum contacts with a state is to be determined from the facts and circumstances peculiar to each case. Drilling Engineering, Inc. v. Independent Indonesian American Pet. Co., 283 So.2d 687 (La.1973).” Soileau v. Evangeline Farmer’s Co-Op, 386 So.2d 179, 182 (La.App. 3 Cir.1980).

See also, U.S. Fidelity v. Hi-Tower Concrete Pumping, 434 So.2d 506 (La.App. 2 Cir.1983).

In Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-1240, 2 L.Ed.2d 1283 (1958), the United States Supreme Court, further defining “minimum contacts”, stated,

“ * * * The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each ease that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. [Citation omitted.]” 357 U.S. at 253, 78 S.Ct. at 1239, 1240.

In World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), the Supreme Court elaborated on this definition as follows:

“When a corporation ‘purposefully avails itself of the privilege of conducting activities within the forum State,’ Hanson v. Denckla, 357 U.S., at 253, 78 S.Ct., at 1240, it has clear notice that it is subject to suit there, and can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with the State. ⅝ * * ” 444 U.S. at 297, 100 S.Ct. at 567.

These standards were recently applied in U.S. Fidelity v. Hi-Tower Concrete Pumping, supra, in which our Second Circuit stated,

“Thus, it appears that knowledge alone or foreseeability that a chattel will come to rest in a particular state is insufficient to subject a defendant to jurisdiction unless the facts and circumstances lead to a conclusion that the defendant purposefully availed itself of the privilege of conducting activities within the forum state in such a manner that the defendant has clear notice that it would be subject to suit there. * * * ” 434 So.2d at 511.

Applying these standards to the case before us, we must examine the contacts between Growables, Inc., and Louisiana to determine whether the relationship is sufficient to satisfy due process requirements. At the time Mrs. Hervish ordered the furniture, she was a Florida resident; she obtained the brochure advertising the furniture in Florida; she went personally to the Growables office in Florida to place the order. The only incidents that took place in Louisiana are Mrs. Hervish’s calls to Growables to question the delay in shipment, the delivery — through a third-party trucker — of the furniture into this state, and Mrs. Hervish’s payment of the balance of the purchase price to the truck driver upon delivery.

There is no evidence that Growables transacts any business in Louisiana, that its representatives or agents travel to Louisiana for business purposes, or that it advertises or otherwise solicits business in Louisiana or from Louisiana residents, either directly or by mail. There is no evidence that Growables derives any substantial revenue from business in Louisiana, or “engages in any persistent course of conduct” in this state.

In fact, the only classification Growables will fit into under R.S. 13:3201 is subpara-graph (b), “contracting to supply services or things in this state.” We can, however, find no other case in which a Louisiana court has found an isolated incident of delivery, without other affiliating circumstances, sufficient to apply long-arm jurisdiction to a foreign defendant. This single transaction would not justify our concluding the defendant purposefully availed itself of the privilege of conducting activities within Louisiana in such a manner that the defendant had clear notice it would be subject to suit here. See Hanson v. Denckla, supra; U.S. Fidelity v. Hi-Tower Concrete Pumping, supra.

For example, in the U.S. Fidelity v. Hi-Tower Pumping case mentioned above, the court held that the isolated sale of one piece of used equipment by a Florida corporation not in the business of manufacturing, selling or supplying such equipment or other goods and services in Louisiana was not a sufficient minimum contact to obtain in personam jurisdiction over the Florida corporation.

In Green v. Luxury Auto Rentals, Ltd., 422 So.2d 1365 (La.App. 1 Cir.1982), the court ruled that a Georgia automobile leasing company that leased an automobile to a Louisiana resident for use in Louisiana and sent a representative to Louisiana to pick up the automobile upon termination of the lease did not have sufficient minimum contacts with this state to be subject to personal jurisdiction here.

In Latham v. Ryan, 373 So.2d 242 (La. App. 3 Cir.1979), the court held that Louisiana courts did not have personal jurisdiction over nonresident defendants sued for compensation allegedly due under an oral employment agreement, where the defendants had never appeared in Louisiana either personally or through an agent, even though the plaintiff was initially contacted by telephone in Louisiana.

Similarly, in Charia v. Cigarette Racing Team, Inc., 583 F.2d 184 (5 Cir.1978), the United States Fifth Circuit held there were insufficient minimum contacts to justify the exercise by the federal district court in Louisiana of personal jurisdiction over a Florida boatbuilder under the Louisiana long-arm statute in a suit by a boat purchaser for redhibition, where the only such contacts were the sale of the boat to the Louisiana resident, telephone negotiations, receipt of the purchaser’s check drawn on a Louisiana bank, sale by the defendant of boats to three other Louisiana residents, and the delivery of the boat to the plaintiff purchaser in Louisiana via common carrier, f.o.b. Florida. See also, Benjamin v. Western Boat Building Corporation, 472 F.2d 723 (5 Cir.1973).

Accordingly, we conclude the district court properly sustained the exception of lack of personal jurisdiction over Growa-bles.

For the foregoing reasons, the judgment of the district court sustaining the exception of lack of personal jurisdiction over Growables, Inc., is affirmed. Costs of this appeal are assessed against appellant.

AFFIRMED.


author: KLIEBERT, Judge.

text:
    STATE of Louisiana v. Timothy COATS. STATE of Louisiana v. Carlo DE SALVO.
    Nos. 83-KA-689, 83-KA-801.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 1984.
    John M. Mamoulides, Dist. Atty., James Maxwell, Asst. Dist. Atty., William C. Credo, III, Asst. Dist. Atty., 24th Judicial District, Parish of Jefferson, Gretna, for plaintiff s-appellees.
    Ralph L. Barnett, Gretna, for defendant-appellant Timothy Coats.
    Paul R. Pasquier, Gretna, Joseph L. Montgomery, 24th Judicial District Indigent Defender Board, Gretna, for defendant-appellant Carlo DeSalvo.
    Before BOUTALL, KLIEBERT and GAUDIN, JJ.
   KLIEBERT, Judge.

Defendants, Timothy Coats and Carlo DeSalvo, were charged by bill of information with two counts each of simple burglary of a building belonging to the Jefferson Parish School Board, in violation of LSA-R.S. 14:62. The defendants were arraigned and pled guilty to both charges.

As a result of a plea bargain, each defendant withdrew his guilty plea and each plead guilty to one count of simple burglary in return for a dismissal of the other count. The only condition of the plea was that a pre-sentence investigation be conducted. Neither agreement contained a stipulation as to the sentence to be imposed. After pre-sentence reports were ordered and received, the trial court sentenced defendant DeSalvo to sixty-one (61) months at hard labor, with credit for time served, and sentenced Coats to thirty-six (36) months at hard labor, with credit for time served. Each appealed. Their appeals were consolidated for review by this court.

Coats raises the following assignments of error: (1) The trial court failed to sentence the defendant in accordance with the sentencing guidelines set out in LSA-C. Cr.P. Article 894.1, and (2) The trial court committed reversible error in imposing an excessive sentence.

DeSalvo’s only assignment of error also refers to his claim that the trial judge failed to properly delineate his reasons in imposing sentence and that the sentence imposed on him was excessive.

Thus, the essence of the assignments of error in both instances is the trial judge’s failure to comply with the guidelines of LSA-C.Cr.P. Article 894.1 and the exces-siveness of the sentences.

From the pre-sentence hearing on DeSal-vo, the following circumstances are shown:

On September 15, 1982, the John Ehret Senior High School, located in Marrero, Louisiana, was burglarized and athletic equipment, office supplies and various other items, with a total value of $370.00, were stolen. This formed the basis for count one of the indictment to which DeSalvo pled guilty and the State dismissed count two of the indictment against him. None of the stolen items were recovered.

On November 18, 1982, the same school building was burglarized again and the school was extensively vandalized. Approximately $5,000.00 worth of property, including two IBM typewriters, two copy machines, four calculators, a camera and laminating machine, two portable heaters, a check and Master Charge credit card belonging to the principal, and other miscellaneous items were stolen. This was the basis for count two of the indictment to which Coats pled guilty. The State dismissed count one of the indictment (the September 15, 1982 break-in) against him. Ultimately, most of the stolen items were recovered. The school officials estimated the actual loss at about $2,500.00.

When DeSalvo’s sister and her boyfriend attempted to use the stolen credit card, they were arrested by the police. They informed the police that they had received the card from someone named “Timmy” and further named the defendants as the perpetrators of a burglary at the John Eh-ret High School during which time the credit card was stolen.

On December 6, 1982, defendant DeSalvo turned himself in and voluntarily told the police he and Coats has perpetrated both burglaries. DeSalvo assisted police officers in recovering some of the stolen items, most of which was either damaged or broken beyond repair. Approximately $600.00 was illegally charged on the principal’s credit card. Coats destroyed some of the stolen property when he learned the police were looking for it.

Recent jurisprudence regarding the appeal of sentences imposed as a result of plea bargain arrangements distinguished between those cases in which the sentence to be imposed is included in the plea bargain and those in which the sentence is imposed without the prior agreement and understanding of the defendant. If the sentence was made a part of the plea arrangement, the Supreme Court had generally disallowed a later appeal for excessiveness or failure to follow the guidelines of LSA-C.Cr.P. Article 894.1.

State v. Bell, 412 So.2d 1335 (La.1982) held that “where a specific sentence has been agreed to as a consequence of a plea bargain, that sentence cannot be appealed as excessive and there is no need for the trial judge to give reasons for the sentence as required by Article 894.1, State v. Curry, 400 So.2d 614 (La.1981).” See also State v. Gray, 404 So.2d 1215 (La.1981); State v. Smith, 430 So.2d 801 (5th Cir. 1983); and State v. Buckenburger, 428 So.2d 966 (1st Cir.1983).

In State v. Curry, supra, the Supreme Court decided that since the sentence had been understood and agreed to as part of the plea bargain, there was no need for the trial court to give reasons for the sentence. Further, when the sentence is bargained for, the defendant cannot later complain the sentence is excessive. Relying on State v. Sims, 410 So.2d 1082 (La.1982) and State v. Jett, 419 So.2d 844 (La.1982), the First Circuit in State v. Edwards, 432 So.2d 318 (1st Cir.1983) considered a review of the defendant’s sentence for excessiveness appropriate although he pled guilty to aggravated burglary because the plea bargain did not include a bargain for the sentence. Therefore, considering the issue of excessiveness is appropriate in this case.

LSA-R.S. 14:62 provides, in pertinent part, that “[w]hoever commits the crime of simple burglary. shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than twelve years, or both.” Thus, the defendants’ sentence of sixty-one (61) months and thirty-six (36) months respectively were within the statutory limits, however, it may be reviewed to determine whether the sentence is excessive under the circumstances of the crime and the particular defendant. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Sepulvado, 367 So.2d 762 (La. 1979). A sentence is excessive if it is grossly out of proportion to the severity of the crime or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Ratcliff, supra; State v. Kersey, 406 So.2d 555 (La.1981). The trial judge is given a wide discretion in the imposition of sentences within statutory limits and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Howard, 414 So.2d 1210 (La.1982); State v. Sepulvado, supra. We have reviewed the sentence imposed on each defendant in light of the foregoing principles. SENTENCE OF CARLO DeSALYO

The trial judge read into the record a portion of the pre-sentence report made by the Division of Probation and Parole on DeSalvo. The portion read into the record did not include the recommendations of the Division. It did not point out that in his statement to the police, DeSalvo admitted to having committed five other burglaries during 1980, at which time he was a juvenile. Although the trial judge did not articulate every mitigating and aggravating circumstance outlined in LSA-C.Cr.P. Article 894.1, he did acknowledge and put into the record the circumstances of the burglaries, the assistance provided by DeSalvo to the police in recovering most of the stolen items and the personal and social background of DeSalvo reflected by the pre-sen-tence investigation report.

In comments made by him prior to sentencing DeSalvo, the trial judge stated that DeSalvo was a menace to society and had chosen to intentionally disrupt the Jefferson Parish School system by committing the burglaries in question.

Absent the plea bargain, the defendant would have been exposed to a far greater penalty. While not controlling, a plea bargain should be considered as a factor in determining whether the sentence imposed is excessive. State v. Smack, 425 So.2d 737 (La.1983).

Our function is not to sentence DeS-alvo, but rather to review the sentence for abuse of the trial judge’s wide discretion. Although the trial court did not make an extensive comment on his reasons for sentencing the defendant DeSalvo to sixty-one (61) months at hard labor, we are unable to conclude that the sentence imposed on DeS-alvo was a manifest abuse of the wide discretion allowed to the trial judge in sentencing. In reaching this conclusion, we are not unmindful of DeSalvo’s age and social history and the assistance he provided to the police after his arrest.

Accordingly, the sentence of DeSalvo is affirmed.

SENTENCE OF TIMOTHY COATS

In sentencing Coats, the court referred to DeSalvo and suggested that the sentence was harsh because he destroyed some of the stolen equipment just immediately prior to his arrest, but not as harsh as that imposed on DeSalvo because his record was not extensive, thus indicating he believed Coats also had a prior juvenile record.

The pre-sentence report on Coats is not in the record. Coats’ counsel, however, points to several mitigating circumstances. He submits that Coats’ record is not as extensive as DeSalvo because this conviction is Coats’ first offense and his commission of the offense was totally out of character and not in keeping with his normal life style.

Although the circumstances of the crime are part of the record, the only personal information concerning Coats which can be determined from the record is that he is nineteen years of age. Whether the guidelines of LSA-C.Cr.P. Article 894.1(B) relative to probation or suspension of sentence would be appropriate as regards to Coats is not determinable from the record.

Notwithstanding the apparent mitigating circumstances, the trial judge did not offer an adequate explanation or justification for the sentence imposed on Coats. The factors guiding the decision of the trial judge are necessary for this court to adequately review a sentence to determine whether the sentence was tailored to the defendant’s background and his potential for rehabilitation and restitution and/or whether there has been a violation of the defendant’s constitutional right against an excessive sentence.

From the facts stated in the arguments, but not made part of the record, the sentence may be excessive. Additionally, the sentence has not been particularized as to Coats. The mitigating circumstances which have been pointed out, if correct, would indicate he is a fit subject for rehabilitation and restitution. When the reasons for an apparently severe sentence in relation to the particular defendant and the crime committed do not appear in the record, the case may be remanded to the trial judge for resentencing. State v. Jackson, 360 So.2d 842 (La.1978); State v. Pike, 426 So.2d 1329 (La.1983).

Accordingly, the sentence of Timothy Coats is vacated and the case remanded to the trial court for resentencing in compliance with LSA-C.Cr.P. Article 894.1 and the views herein expressed.

AFFIRMED IN PART: REMANDED IN PART.


author: BOWES, Judge.

text:
    STATE of Louisiana v. Ronald LADDIN.
    No. 83-KA-535.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 1984.
    Martha E. Sassone, Indigent Defender Board, Gretna, for defendant/appellant.
    Cornelius Regan, William C. Credo, III and Dorothy A. Pendergast, Asst. Dist. Attys., Gretna, for plaintiff/appellee.
    Before BOWES, GAUDIN and DU-FRESNE, JJ.
   BOWES, Judge.

On September 1, 1982, the defendant, Ronald Laddin, was charged, by a bill of information, with a violation of La.R.S. 14:64 (armed robbery). Following a request by the defense, a sanity commission was convened and, after the sanity hearing on October 7, 1982, the defendant was found competent to stand trial.

Thereafter, pursuant to a plea bargain with the State, the defendant entered a plea of guilty to the reduced charge of attempted armed robbery. In accordance with the plea bargain, Ronald Laddin was, on January 17, 1983, sentenced to twelve years at hard labor in the State penitentiary. It is from that sentence the defendant now appeals.

The defense submitted three assignments of error to the trial court; however, none of these assignments have been addressed in defense’s brief. Therefore, these assignments are deemed abandoned. See the Uniform Rules of the Courts of Appeal, Rule 2-12.4 and also State v. Dirden, 430 So.2d 798 (La.App. 5th Cir.1983).

Defense counsel did submit and argue one assignment of error in her brief: That the trial judge “failed to follow the sentencing guidelines under C.Cr.P. Art. 894.-1.”

In State v. Lavene, 343 So.2d 185, 187 (La.1977), the Louisiana Supreme Court held: “[assignments of error are designations in writing of the errors to be urged on appeal and are to be filed with the trial court, which may submit per curiam comments. [citation omitted]. Except for ‘patent error’, the reviewing court may consider only errors so designated, [citation omitted].” See also State v. Spell, 399 So.2d 551 (La.1981) and State v. Spears, 350 So.2d 603 (La.1977).

Recently, in State v. Sonnier, 441 So.2d 359 (La.App. 5th Cir.1983), Judge Du-fresne, a member of this panel, stated:

Initially, it is observed from a review of the record that no assignments of error were lodged in this court. Rather, defense counsel incorporated the assigned error into the brief.

La.C.Cr.P. Art. 844, provides:

The party appealing shall designate, in writing, those errors which are to be urged on appeal. This assignment of errors shall be filed within the time specified by the trial judge, but not later than five days prior to the return date. A copy of the assignment of errors shall be furnished to the trial judge by the appealing party on the date such errors are filed.
The trial judge may submit such per curiam comments as he desires. [...]
Since the defendant did not submit the issue by formal assignment of error, caselaw indicates the matter is not properly before the court for review. See State v. Spell, supra, and State v. Spears, supra.

See also State v. Bridges, 444 So.2d 721 (La.App. 5th Cir.1984).

Accordingly, we find no error to review and affirm the defendant’s conviction and sentence.

AFFIRMED.


text:
    STATE of Louisiana v. Leroy J. BERTHELOT.
    No. 83-KA-733.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 1984.

      Steve Little, William C. Credo, III, Gret-na, for plaintiff-appellee.
    Martha E. Sassone, Staff Appeal Counsel, 24th Judicial District Indigent Defender Board, Gretna, for defendant-appellant.
    Before BOUTALL, BOWES and GAU-DIN, JJ.
   BOWES, Judge.

Defendant, Leroy J. Berthelot, was charged by a Bill of Indictment with one count of violation of LSA-R.S. 14:42, aggravated rape and one count of violation of LSA-R.S. 14:27, 14:30.1, attempted second degree murder. After trial by jury, he was convicted as charged and was subsequently sentenced to consecutive sentences of life imprisonment without benefit of probation, parole or suspension of sentence on the first count and to fifty years at hard labor on the second count. From those convictions and sentences, defendant appealed, alleging twelve assignments of error.

Defendant failed to brief eleven of the assignments of error and we, therefore, deem those alleged errors as abandoned. See Rule 2-12.4, Uniform Rules of the Courts of Appeal, State v. Triplett, 434 So.2d 1270 (La.App. 1st Cir.1983) and State v. Dirden, 430 So.2d 798 (La.App. 5th Cir. 1983).

ASSIGNMENT OF ERROR NO. 10

The Trial Court committed reversible error in sentencing the defendant to a term of life-imprisonment without benefit of probation, jparole, or suspension of sentence and a term of 50 years at hard labor to run consecutively, which sentence is excessive.

Relating to Assignment of Error No. 10, the defendant designates the objection of counsel and the ruling of the trial court, T.T. pp. 1-9 of the hearing held on June 24, 1983.

ARGUMENT

The defense submits that the imposition of consecutive sentences for offenses based on the same act or transaction was contrary to law and jurisprudence. The defense cites La.C.Cr.P. art. 883 which states in pertinent part tht “[i]f the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that same or all be served consecutively.” Because of the imposition of consecutive sentences violates the constitutional prohibition against excessive sentences, (La. Const. Art. 1, Sec. 20), the defense respectfully requests that the sentence should be vacated and remanded for a hearing to determine if the consecutive sentence is appropriate.

Two issues are presented by the defense. The first is whether the fact that the defendant has no prior adult criminal record should have a bearing on the imposition of consecutive sentences and the second is whether this single violent act actually constitutes a danger to society.

In arguing the first issue presented, the defense cited State v. Underwood, 353 So.2d 1013 (La. 1977), as authority for the principle that concurrent, rather than consecutive, sentences are the usual rule, particularly if the defendant has no prior criminal record and if there was no showing that the public safety demands a longer sentence. That case dealt with a defendant whose personal background and offense is clearly distinguishable from the case before us. Underwood, a first offender, was a businessman with a settled family and a lifelong resident of that parish. He had been convicted of selling marijuana on three separate occasions over a two-month period. His sentences totalled twenty-five years when served consecutively. The Supreme Court reasoned that such a cumulative sentence was excessive, absent some explanation which was not found in the record.

In the instant case, the defendant engaged in a particularly violent and heinous crime. In addition to being raped, the victim suffered a fractured skull, three lacerations to the scalp and forehead, a broken right arm, a crushed finger and another broken bone on her left hand, and the left side of her jaw was very swollen and sore.

Although this was the defendant’s only conviction as a major, similar aberrant behavior was the basis of a previous juvenile conviction, which involved sex with and the subsequent killing of horses. It is obvious to us that the trial court was unwilling to allow any further progression of the defendant’s sexual perversion.

In addressing the second issue presented, defense cited State v. Cox, 369 So.2d 118 (La.1979), as authority for the premise that a single violent act does not, in itself, justify characterizing the defendant as a danger to society, especially when no evidence that such behavior would reoccur has been presented.

Cox is analogous to Underwood in that it, too, can easily be distinguished from the case before this court. The single violent act perpetrated by the defendant Cox was an unplanned escalation of a fight over money owed in a pool-hall controversy. As the defendant was a first offender, with no record of ever having lost his self-control, the court found that a remand for a hearing on the imposition of consecutive sentences was appropriate.

In the instant case, the defendant’s behavior exhibited a certain degree of planning, as almost seven hours elapsed between the time he had seen the victim enter her apartment (7:00 p.m.) and the time he climbed into her window (1:30 a.m.). The fact that Berthelot came armed with a sawed-off pool cue and started beating the victim as she lay sleeping elevates the enormity of the violence to a level which cannot be compared to an altercation which intensified in a matter of minutes.

In State v. Carter, 412 So.2d 540 (La. 1982), the Louisiana Supreme Court affirmed the imposition of a life sentence for a conviction of aggravated rape and a second sentence of fifty years for attempted first degree murder which was to be served consecutively with the first. Because of the particularly heinous nature of the crimes and the fact that the defendant had been previously convicted of felony offenses, the court found no abuse of the wide discretion vested in the trial court.

Recently, in State v. Lewis, 416 So.2d 921 (La.1982), consecutive sentences were vacated and the case remanded for failure to adequately comply with Article 894.1. The Supreme Court stated that “[wjhile not controlling the discretion of the court, these [mitigating] circumstances must be accorded weight in its determination of the sentence. Moreover, the imposition of consecutive sentences for crimes arising from a single course of conduct requires particular justification. State v. Jacobs, 371 So.2d 727 (La.1979); State v. Cox, supra.

On the other hand, consecutive sentences were affirmed in State v. Murdock, 416 So.2d 103, 105 (La.1982) because the trial court’s lengthy dissertation on the facts of the case and his application of the guidelines in La.C.Cr.P. art. 894.1 in his sentencing choice. The Supreme Court noted that the purpose of the article “is to assist the court in the exercise of its broad discretion regarding the imposition of a fair and proper sentence in a particular ease [citation omitted].” Later in the opinion, it was noted that “it is our function, as a reviewing court, to not merely substitute our judgment for that of the trial judge, but'to determine whether that court abused its broad discretion in sentence imposition.” Supra at 106.

In the instant case, the trial judge made a direct and conscious effort to apply the guidelines of Article 894.1 to the circumstances of the offense and the background of the defendant. Judge Burns, in sentencing the defendant, stated:

... [A]s to the attempt [sic] second degree murder, this Court is guided by the sentencing guidelines set forth in Article 894.1 of the Code of Criminal Procedure and I considered those sentencing guidelines.
Those guidelines state that this Court shall state for the record the considerations taken into account and the factual basis in imposing sentence.
I sat through the jury trial; I heard the evidence presented. The evidence as to guilt was overwhelming ... [and] left no possible doubt in my view as to this defendant’s guilt....
This was a brutal crime to say the least; a brutal attack. And this lady who testified described how she was clubbed, how her arm was broken, her hand was broken, her jaw was smashed and she suffered — her jaw was fractured, and she suffered a fractured skull. The evidence indicates she could have bled to death, but fortunately she did not die. [...]
I, of course, know a great deal of Leroy Berthelot because I’ve conducted a number of hearings. I know a great deal about his prior psychiatric problems, which I don’t feel is necessary to repeat here this morning. I have considered his entire background and I have considered these guidelines.
Now, Article 883 of the Code indicates that ... “if a defendant is convicted of two or more offenses based on the same act or transaction, the terms of imprisonment shall be moved concurrently unless the Court expressly directs that some or all be served consecutively” ... This type of crime being so vicious and so brutal to me dictates that I impose consecutive time and I will impose consecutive time.
The sentencing guidelines [of C.Cr.P. art. 894.1] direct that I should consider whether he — whether his criminal conduct caused or threatened serious harm. It obviously caused most serious harm, almost death.
Second: Whether the defendant did not contemplate that his conduct would cause — threaten serious harm. The answer to that is obvious. He did contemplate that his conduct would cause serious harm.
Third: That he acted under strong provocation. There’s nothing here to mitigate to say that he acted under any provocation at all.
Four: There were substantial grounds tending to excuse or justify his criminal conduct, though failing to establish a defense. I fail to find any such grounds.
The victim of the criminal conduct induced or facilitated its commission. This lady was in bed at night and was brutally attacked.
Sixth: The defendant has compensated or will compensate the victim. How could he possibly ever compensate her for what he did?
[Seventh]: He has no history of prior delinquency of criminal activity or he’s led a law abiding life for a substantial period of time. That doesn’t apply to Leroy Berthelot.
[Eighth]: His criminal conduct was a result of circumstances unlikely to reoccur.
I’m afraid that it might reoccur if this man were ever allowed to walk the streets again.
Nine: The character and attitude of the defendant indicates he’s unlikely to commit another crime. I don’t think he qualifies there.
Ten: He’s particularly likely to respond to — respond affirmatively to probationary treatment. I can’t say that he would. And,
Eleven: His imprisonment would entail excessive hardship to himself or his dependents. Well, - imprisonment always entails excessive hardship.
In summary, it’s time that society be protected from people like Leroy Berthe-lot. And for those reasons he — the attempt [sic] murder will be the maximum sentence and will be consecutive.

We commend the astute trial judge for his painstaking and articulate compliance with Article 894.1. The factual basis and his reasoning for imposing the sentence he did are clear and sound and we agree with his pronouncements. Accordingly, the conviction and sentence are affirmed.

AFFIRMED.


author: CURRAULT, Judge.

text:
    Larry E. KINNEY v. Wanda HUTCHINSON, et al.
    No. 83-CA-709.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 1984.

      Wayne W. Yuspeh, Wayne W. Yuspeh, P.C., Metairie, for plaintiff-appellant.
    James J. Morse, Law Offices of James J. Morse, New Orleans, for defendants-appel-lees.
    Before CHEHARDY, CURRAULT and GRISBAUM, JJ.
   CURRAULT, Judge.

This appeal arises from a summary judgment granted to defendant, Walgreen Louisiana Company d/b/a Walgreen’s Drug Stores (Walgreen’s), dismissing plaintiff’s, Larry E. Kinney’s, suit against Walgreen’s.

The facts reveal that Mr. Kinney filed suit on November 29, 1979 in the Twenty-Fourth Judicial District Court for the Parish of Jefferson against defendant, Wanda Hutchinson, to recover for severe injuries and damages stemming from his being shot by defendant Hutchinson on or about September 11, 1979. It was alleged that plaintiff was shot by Hutchinson due to her consuming a combination of alcohol and the drug Preludin. In addition to defendant Hutchinson, plaintiff sued Walgreen’s, alleging that Walgreen’s, which filled the prescription for Preludin, was negligent in that they:

“Failed to adequately disclose, warn or inform her of proper use of said drug; and failed to warn, disclose or inform her of possible adverse effects and dangers of said drugs of combinations (sic) and failed to use care in ascertaining the effects, warnings and contraindications for use of said medications including Pre-ludin or to disclose them to defendant, Wanda Hutchinson, and said actions and inactions were a contributing cause of the injuries and damages sustained to petitioner herein.”

Plaintiff also named as defendants Hutchinson’s prescribing physician, Dr. D. Thomas O’Quinn, and the manufacturer of the drug Preludin, Boehringer Ingelheim, Ltd., asserting similar allegations against those parties.

Walgreen’s moved for and was granted summary judgment on April 5, 1983, without written reasons by the trial judge.

Plaintiff, Larry Kinney, thereafter perfected this appeal of that judgment assigning the following as error:

The district court erred in granting defendant’s motion for summary judgment as there were numerous issues of material fact.

LSA-C.C.P. Article 966 provides in pertinent part that:

“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

The courts favor a trial on the merits; however, “a motion for summary judgment must be granted when reasonable minds must inevitably conclude that the mover is entitled to judgment on the facts before the court.” Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772, 775 (La.1980). Assuming facts in favor of plaintiff, the crucial question is whether reasonable minds might conclude that defendant breached a duty. Sanders, supra, at page 775. On the other hand, where there are contradictions on factual issues, and affidavits state conclusions of law rather than evidentiary facts, a party is not entitled to summary judgment. Thompson v. South Central Bell Telephone Co., 411 So.2d 26 (La.1982). Any doubt concerning a dispute as to a material fact must be resolved against the granting of a motion for summary judgment. Pennington v. F. G. Sullivan, Jr. Contractors, Inc. et al, 416 So.2d 192 (La.App. 1st Cir.1982). Furthermore, a mere belief that a litigant is unlikely to prevail upon the merits is not a sufficient basis to warrant the rendition of summary judgment and thus deprive the litigant of a trial. The function of the court is not to determine merits or issues, but rather to determine whether there is genuine issue of material fact. Laufer v. Touro Infirmary, et al., 334 So.2d 541 (La.App. 4th Cir.1976).

In this case, the aforementioned facts are not disputed by Walgreen’s; and, in brief to this court, Walgreen’s admitted the fact that the pharmacist did not warn Wanda Hutchinson of the effects of mixing alcohol and Preludin. Coupled with the argument that a pharmacist is under no duty to warn customers of the effects of qlrugs, appellee, Walgreen’s, asserts summary judgment was properly granted. Appellant, on the other hand, recites for the court numerous factual questions which, it is argued, constitute genuine issues of material facts. Without delineating those issues in detail, it suffices to say that our review indicates that the factual questions raised by appellant are unrelated to the material issue of the failure of Walgreen’s to warn Wanda Hutchinson, which fact is admitted by appellee.

The question remaining then is whether mover, Walgreen’s, is entitled to a judgment as a matter of law.

In the recent case of Cobb v. Syntax Laboratories, Inc., et al, 444 So.2d 203 (La.App. 1st Cir.1983), plaintiff suffered a stroke from taking oral contraceptives. Summary judgment was granted to both the manufacturer of the pills and the drugstore which sold the pills. The First Circuit Court affirmed finding no duty on either the manufacturer or the pharmacy to‘warn consumers directly of adverse effects of a particular drug. Citing Timm v. Upjohn Company, 624 F.2d 536, 538 (5th Cir.1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 921, 66 L.Ed.2d 840 (1981), the court held that the burden to warn of a prescription drug’s adverse effects is placed upon the prescribing physician. Where the manufacturer has informed the prescribing physician of the risks and benefits, the manufacturer is relieved of a duty to warn since the physician is the informed intermediary between the manufacturer and patient. See Stanback v. Parke, Davis and Company, 657 F.2d 642 (4th Cir.1981). The holding in Cobb, supra, included and extended this analysis of liability to the pharmacist as well as to the manufacturer. We agree and therefore hold that the motion for summary judgment was properly granted since reasonable minds must inevitably conclude that mover is entitled to judgment based on the undisputed facts before this court. Sanders, supra.

For the foregoing reasons, after a review of the law and evidence, the judgment granting the summary judgment is hereby affirmed. Appellant is to pay all costs of this appeal.

AFFIRMED.

      . We are aware of only one other case in which the question of a pharmacist's duty to warn the consumer was placed squarely at issue. In that case, Hand v. Krakowski, 89 A.D.2d 650, 453 N.Y.S.2d 121 (3d Dept. 1982), the New York Court found a druggist potentially liable for failure to warn a customer of the possible side effects of taking the drug with alcohol, where it was shown that the druggist knew the customer personally, knew he was an alcoholic, and knew the drug in question was contraindicated for alcoholics. That case is significantly distinguishable on its facts from the case before us, but is noted as a matter of interest due to the paucity of jurisprudence on this issue.