author: GUIDRY, Judge.

text:
    STATE of Louisiana v. Kirby CHAMPAGNE.
    No. CR84-34.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Rehearing Denied Jan. 2, 1985.
    Kirby Champagne, pro se.
    Michelle Jackson, Asst. Dist. Atty., Lafayette, for plaintiff-appellee.
    Before GUIDRY, STOKER and YEL-YERTON, JJ.
   GUIDRY, Judge.

Defendant, Kirby Champagne, was charged by bill of information on November 19, 1981, with the crime of attempted aggravated arson, in violation of La.R.S. 14:27 and 14:51; simple burglary of an inhabited dwelling, in violation of La.R.S. 14:62.2; and, manufacture and possession of a bomb without a license in violation of La.R.S. 14:54.8. Bond was set at $150,-000.00.

On November 24, 1981, defendant filed a motion for bond reduction. The State replied by seeking an increase in the bond. A bond reduction hearing was held on June 8, 1982, as a result of which the court increased defendant’s bond to $250,000.00. Defendant filed a second request for bond reduction which was denied. He thereafter applied to the Supreme Court for relief. On June 14, 1982, the Supreme Court granted a writ and reduced defendant’s bail to $50,000.00. 416 So.2d 112.

Defendant was formally arraigned on January 6, 1982. At arraignment, defendant entered a plea of not guilty to all three counts against him. A motion for a speedy trial was filed by defendant, requesting that the case be tried on May 11, 1982. The case came up for trial on that date but was continued to May 24, 1982, on the court’s own motion. A second continuance was granted when the case came up for trial on May 24, 1982. Neither the defendant nor his counsel were present in court on that date. The trial was rescheduled for July 20, 1982.

On July 19, 1982, defendant and his counsel appeared in open court. Pursuant to a plea bargain agreement, the defendant on that date pleaded guilty to the crimes of attempted aggravated arson and manufacturing and possessing a bomb. The State then dropped the simple burglary charge against defendant. The court accepted the guilty pleas after a complete Boykinization of defendant and ordered a presen-tence investigation.

The defendant was sentenced on October 22, 1982. The trial judge took into account the plea bargain agreement, the presen-tence investigation .report and the guidelines as set out in La.C.Cr.P. Art. 894.1. On the charge of attempted aggravated arson, defendant was sentenced to serve a term of three (3) years at hard labor, the first year of which to be without parole, probation or suspension of sentence. On the charge of manufacturing and possessing a bomb, defendant was sentenced to serve a term of five (5) years at hard labor, said term being suspended and defendant placed on active supervised probation for two (2) years. The sentences were ordered to run consecutively with credit for time served.

Defendant, in proper person, appeals his convictions and sentences, alleging ten assignments of error.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial court erred in setting an excessive bail before and after conviction and sentencing. Since the defendant failed to present any argument concerning the denial of bail after sentencing and pending appeal, this issue is considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982). As to the issue of the excessiveness of the pre-conviction bail, defendant secured a reduction of such by our Supreme Court. La.C. Cr.P. Art. 322. Nevertheless, the issue of bail after conviction is moot. State v. Jones, 332 So.2d 267 (La.1976); State v. Malvo, 357 So.2d 1084 (La.1978).

ASSIGNMENT OP ERROR NO. 2

By this assignment, defendant urges that the trial court erred in denying him a speedy trial. La.C.Cr.P. Art. 701(D) provides in pertinent part:

“After the filing of a motion for a speedy trial by the defendant, the time period for commencement of trial of a felony or misdemeanor shall be as follows:
(1) The trial of a defendant charged with a felony shall commence within one hundred twenty days if he is continued in custody and within one hundred eighty days if he is not continued in custody...”

Defendant’s motion for a speedy trial was filed on April 20, 1982. After a series of continuances, trial was finally set for July 20, 1982. On July 19, 1982, defendant appeared in open court and voluntarily changed his plea to guilty on counts one (attempted aggravated arson) and three (manufacture and possession of a bomb). This appearance was well within the required 120 days. Further this issue is now moot since, by his guilty plea, defendant waived all nonjurisdictional defects in the proceedings. State v. Jenkins, 419 So.2d 463 (La.1982).

ASSIGNMENTS OF ERROR NOS. 8 AND 4

Through these assignments, defendant urges that the trial court erred in admitting evidence of other acts in the pre-plea proceedings and that there was insufficient evidence on which to base a conviction. In State v. Fontenot, 410 So.2d 1112 (La.1982), the court noted that, “a plea of guilty generally waives all non-jurisdictional defects in the pre-plea proceedings.” The court in State v. Swanson, 439 So.2d 646 (La.App. 1st Cir.1983), emphasized, “a guilty plea is more than a confession which admits that the accused did various acts; it is itself a conviction leaving nothing remaining but to give judgment and determine punishment.” For these reasons, these assignments are without merit.

ASSIGNMENT OF ERROR NO. 5

Through this assignment, defendant urges that the trial court erred in sentencing him contrary to a plea bargain agreement. Defendant appeared in open court with his counsel on July 19, 1982 to change his plea of not guilty to guilty. The record reveals the following conversation between the trial judge, Ms. Jackson, the assistant district attorney, and Mr. Edwards, counsel for defendant:

“MS. JACKSON:
For the record, Your Honor, this is Docket Number 46419, set for trial. The defendant is Kirby James Champagne. He is charged on the bill of information with three (3) counts. Count 1, attempted aggravated arson; Count 2, burglary of an inhabited dwelling; and Count 3, possession and manufacture of a bomb.
At this time, it is my understanding through a receipt of a guilty plea form that the defendant wishes to enter a guilty plea on Count 1 and 3. And, in return, the State would agree to noli pross (sic) the burglary charge or dismiss it as part of the plea bargain. The defendant has filled out — or rather the State has filled out and the defendant has signed and gone over with his attorney a guilty plea form as to each of the counts. I would hand it to the Court at this time and state for the record that in addition to the agreement by the State to dismiss Count 2, the burglary, the State would also recommend that if the plea is accepted by the Court that the Court order a pre-sentence investigation of this matter. And, the State will make no recommendation as to a sentence.
MR. EDWARDS:
Your Honor, it is our understanding on the plea of guilty for those two counts that there be a pre-sentence investigation as recommended to the Court and (sic) the facts are as represented to the Court, that the accused be sentenced to a term of 5 years, 2 of which are on active probation, 3 of which are at hard labor. And, that he will be given credit for all of the time he has served, which would be about 9 months.
THE COURT:
And, of course, the first year would have to be served. You cannot suspend the parole — How does it go again?”

The court minutes of July 19, 1982, appear clearly in accord with the above, the minutes for that date reading in pertinent part as follows:

“The accused at this time changed his previous plea of Not Guilty to Guilty of Count 1 and Count 3 of the Bill of Information. The State at this time dismissed Count 2 of the Bill of Information. The State at this time recommended a presen-tence investigation on the accused if the Court accepted the plea, and the State will make no recommendation as to the sentence of the accused. The Defense informed the Court that it was their understanding that pleading Guilty to the two (2) counts and if the presentence investigation is as represented to the Court and if the facts or (sic) as represented to the Court, that the accused would be sentenced to a term of five (5) years, two of which would be on active probation, three of which would be at hard labor, and that the accused would be given credit for all time served, which would be about nine (9) months. The Court informed the Defense that the first year would be without parole, probation, or suspension of sentence.”

As aforestated, the defendant was sentenced on October 22, 1982, the minutes of court of that date reflecting the sentence imposed to be as follows:

“The Court sentences that (sic) accused on the charge of Attempted Aggravated Arson (sic) be entrusted to the custody of the Louisiana Department of Corrections to serve a term of three (3) years at hard labor, of which the first year shall be without parole, probation or suspension of sentence. The Court will give the accused credit for time served.
The Court sentence (sic) the accused on the charge of Manufacture of a Bomb to be entrusted to the custody of the Louisiana Department of Corrections to serve a term of five (5) years at hard labor, said term being suspended upon the accused being placed on Active Supervised Probation for a term of two (2) years. Said sentence is to run consecutive with the sentence imposed on the Attempted Aggravated Arson.”

As we understand defendant’s argument, he urges that the sentences imposed by the trial court on the two charges to which he pleaded guilty when made to run consecutively, as ordered by the court, exceed by three years the maximum sentence for which he bargained. Thus, defendant argues that the sentences imposed should be amended to run concurrently to the end that defendant would not be exposed to a term greater than five years at hard labor in accordance with the plea bargain agreement.

We find defendant’s contention meritorious. The record clearly reflects an understanding between the defendant and the court that subject to a favorable presen-tence report the defendant would be sentenced on both counts to a term of five years, three of which would be at hard labor and two of which would be on active probation and that the defendant would be given credit for time served. There is nothing in the record to suggest that the presentence report was unfavorable or contrary to the facts represented to the court at the time of sentencing. The sentences actually imposed by the trial court, since ordered to run consecutively, exceed the five years maximum term agreed upon. If the sentences imposed are made to run concurrently, the sentences will be in full compliance with the plea bargain agreement reflected by the record. For these reasons, we will affirm defendant’s convictions, but this matter will be remanded to the trial court for correction of sentence pursuant to the provisions of La.C.Cr.P. Art. 882 and in accord with the views above expressed.

ASSIGNMENTS OF ERROR NOS. 6, 7 AND 8

Through these assignments, defendant argues that the trial court failed to properly apply the sentencing guidelines set forth in La.C.Cr.P. Art. 894.1 and that the sentences imposed are excessive. Since we conclude that we must remand this matter for resentencing in accordance with the plea bargain agreement, we do not consider these assignments of error except to note that the articulation of reasons for sentence as mandated by La.C.Cr.P. Art. 894.1 is not necessary when the defendant has entered into a plea bargain agreement and, further, the defendant is precluded from challenging the sentences for exces-siveness. State v. Buckenburger, 428 So.2d 966 (La.App. 1st Cir.1983) and cases cited therein.

ASSIGNMENT OF ERROR NO. 9

The defendant asserts through this assignment of error that the trial court erred in failing to furnish a transcript of his Boykinization. Although we are aware of no statutory or jurisprudential authority which requires that the court furnish a defendant with a transcript of the Boykini-zation process, we observe that, in the instant case, the trial court did comply with defendant’s request. This assignment of error is therefore moot.

ASSIGNMENT OF ERROR NO. 10

Defendant’s tenth and final assignment of error deals with the trial court’s alleged denial of post conviction relief. La. C.Cr.P. Art. 924.1 states:

“An application for post conviction relief shall not be entertained if the petitioner may appeal the conviction and sentence which he seeks to challenge, or if an appeal is pending.”

It is clear from Article 924.1 that the defendant’s request for post conviction relief was properly denied by the trial court. This assignment of error is without merit.

For the above and foregoing reasons, defendant’s convictions are affirmed, however, this matter is remanded to the trial court for resentencing in accord with the views herein expressed.

CONVICTION AFFIRMED; REMANDED FOR RESENTENCING.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . Defendant does not seek a withdrawal of his guilty pleas, but rather only that the sentences imposed be amended pursuant to the provision of ha.C.Cr.P. Art. 882.


source: Caselaw Access Project

author: WARD, Judge. REDMANN, Chief Judge,

license: Public Domain

text:
    LONE STAR INDUSTRIES, INC. v. AMERICAN CHEMICAL, INC. and Jimmie M. Strickland.
    No. CA-1310.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Rehearing Denied Jan. 24, 1985.
    Writ Denied March 22, 1985.

      John B. Wilkinson, Wilkinson & Wilkinson, New Orleans, for plaintiff-appellant, Lone Star Industries, Inc.
    Carol Lynn Doskey, Dymond, Crull & Castaing, New Orleans, for defendant-ap-pellee, American Chemical, Inc. and Kay Strickland.
    Before REDMANN, C.J., and GARRISON and WARD, JJ.
   WARD, Judge.

This is an action to collect money owed for the purchase of bulk fuel oil and certain expenses of transferring the oil to the buyer. The seller, Lone Star Industries, Inc., recovered $132,785.31 from the buyer, American Chemical, Inc., in a judgment which dismissed Lone Star’s action against Kay Thomas Strickland, American Chemical’s sole shareholder, officer and director. American Chemical and Kay Strickland appeal the Trial Judge’s denial of an exception of prescription of one year and his factual findings concerning the price and amount of fuel oil sold. Lone Star appeals, seeking reversal of the portion of the judgment in favor of Kay Strickland and the Trial Court’s awarding of interest on only a part of the judgment. Alternatively, Lone Star seeks remand of the case because the Trial Judge denied its right to cross-examine Kay Strickland.

In August, 1980, Lone Star was negotiating to sell its cement plant in New Orleans. In preparation for an inspection of the plant by prospective buyers on September 16, Lone Star decided to sell some 10,000 barrels of Number 6 fuel oil which was stored on the premises as a reserve fuel supply. On Friday, September 12, 1980, Lone Star’s local plant manager, Lou Jung, and his assistant, George Framnes, contracted with American Chemical’s agent, Jimmie Strickland, for the sale of the fuel oil. American Chemical was not in the oil business, but was buying the fuel oil for immediate resale. The parties agreed that the sight gauge on Lone Star’s tank revealed approximately 10,000 barrels of oil to be sold. The parties dispute the price they agreed upon, but the Trial Judge found that it was $13.86 per barrel. As part of the agreement, American Chemical was to deliver to Lone Star a certified check for $100,000.00 by Saturday, September 13, with the remainder of the price to be paid after the oil had been loaded on a barge and measured.

On Saturday, September 13, Jimmie Strickland delivered a $100,000.00 check dated September 12,1980, drawn on American Chemical’s account at the First National Bank of Commerce, and signed by Kay Thomas Strickland. The check was not certified. Lone Star’s representative accepted the check because it could not be certified until Monday morning and by that time, the oil would have been transferred to American Chemical.

The pumping of the oil onto the barge commenced on Saturday and from the beginning, there were problems. The oil did not pump as quickly as anticipated and equipment breakdowns caused further delays. Although Lone Star contends that American Chemical had agreed to provide all equipment and pay all costs of transferring the oil, Lone Star lent its credit and furnished pumps and hoses to facilitate removal of the oil from its property. American Chemical hired E.W. Saybolt and Co., Inc. to test the fuel oil and ascertain the quantity after the barge was loaded. When the removal operation was completed early Tuesday morning, September 16, the Saybolt survey showed that 9,580.47 barrels of oil had been loaded onto the barge.

American Chemical immediately sent an invoice, dated September 16, for 9,041.50 barrels of oil at $19.50 per barrel to Bride Oil Co. to whom the oil was being re-sold. Bride Oil paid on September 17, wiring $176,309.25 to American Chemical’s First National Bank of Commerce account.

On September 18, Jimmie Strickland appeared at the Lone Star plant, claiming that only 6,718.07 barrels of oil (a subtotal figure from page 1 of the Saybolt survey) had been delivered to American Chemical and that the agreed upon price had been $9.33 per barrel. Strickland demanded a refund of $37,398.69 from Lone Star. When Lone Star refused, American Chemical stopped payment on the $100,000.00 check. Jimmie Strickland then wrote a letter to Lou Jung, reiterating his claims and tendering a check for $62,678.94. Lone Star refused to accept the check. Lone Star then obtained a copy of the complete Saybolt survey verifying that 9,580.47 barrels of oil had been loaded on the barge.

After failing to collect the price of the oil and equipment costs it claimed were due, Lone Star filed suit on November 4, 1980 against American Chemical and Jimmie Strickland for $136,083.41. Lone Star later dismissed the claim against Jimmie Strickland, who had declared bankruptcy, and in August, 1982, added Kay Strickland as a defendant, alleging that she participated in the fraud so as to make her personally liable to Lone Star. Since American Chemical admits that it owes Lone Star at least $62,678.94 for 6,718.07 barrels of oil at $9.33, the Trial Court ordered American Chemical to deposit that amount in the registry of the Court.

In holding for Lone Star and against American Chemical for $132,785.31, the Trial Judge relied upon the Saybolt survey and the testimony of Lone Star’s employees and found a contract for sale of 9,580.-47 barrels of oil at $13.86 per barrel. The Trial Judge did not order American Chemical to reimburse Lone Star the $3,298.08 it spent for equipment used to load the oil. The Judge ordered American Chemical to pay legal interest from date of judicial demand only on the portion of the award of which was not deposited in the registry of the Court. The Judge found that Kay Strickland could not be held personally liable for the acts of American Chemical’s agent, Jimmie Strickland, and that there was insufficient evidence to prove American Chemical was the alter ego of Ms. Strickland so as to justify “piercing the corporate veil”.

In its appeal, Lone Star contends that Kay Strickland, as sole shareholder, director and officer, is personally liable in solido with American Chemical under La. R.S. 12:95 for acting fraudulently in the performance of the contract for the sale of the fuel oil, and alternatively, that she is liable personally as the alter ego of the corporation. Lone Star also argues that it should be awarded legal interest from date of judicial demand upon the full amount of the judgment since no funds were ever deposited in the Trial Court. Lone Star also assigns as errors the Trial Judge’s denial of its right to cross-examine Ms. Strickland and to present certain testimony regarding an attempted bribery of Say-bolt’s employee.

Kay Strickland contends that she is not liable personally under any theory because there is no evidence that she or American Chemical acted fraudulently or in any manner justifying disregard of the corporate entity, that the fraudulent activity of Jimmie Strickland cannot be imputed to American Chemical or to her, and that in any event, evidence regarding an “alter ego” theory of liability is inadmissible as beyond the scope of the pleadings. Additionally, American Chemical argues that the Trial Judge’s award of interest was proper since interest on an unliquidated claim is due only from the date of the judgment.

We find no error in the Trial Judge’s factual determinations regarding the price and amount of fuel oil sold. The record supports his finding that there was a contract for the sale of 9,580.47 barrels of oil at $13.86 per barrel.

As to the issue of Kay Strickland’s personal liability, we recognize that Louisiana courts are very hesitant to hold a shareholder, officer or director personally liable for corporate obligations. This is especially true when the parties contract with each other as corporations. La.R.S. 12:93(B). However, there is an exception where fraud or deceit has been perpetrated through the corporation. La.R.S. 12:95 provides:

Nothing in this Chapter shall be construed as in derogation of any rights which any person may by law have against a promoter, subscriber, shareholder, director or officer, or the corporation, because of any fraud practiced upon him by any of such persons or the corpo: ration, or in derogation of any right which the corporation may have because of any fraud practiced upon it by any of these persons.

Although in many cases the personal liability of a shareholder, director or officer is based upon both, a R.S.12:95 action is separate from and does not require disregard of the corporate entity under the alter ego doctrine.

Hence, we need not consider whether American Chemical conducted business with the requisite corporate formalities or whether it was the alter ego of Kay Thomas Strickland since we find evidence in the record that she was aware of and participated in the fraud practiced upon Lone Star.

Fraud, as applied to contracts, is the perpetration of an error concerning a material part of a contract, created or continued by artifice, with design to obtain some unjust advantage or cause loss to the other party. La.C.C. art. 1847. The circumstances constituting fraud must be pleaded with particularity, but it may be proved by operation of presumptions. La. C.Civ.P. art. 856; La.C.C. art. 1848.

Testimonial and documentary evidence shows that American Chemical’s account had only $25,465.32 on deposit to cover the $100,000.00 uncertified check, signed by Kay Strickland, when Jimmie Strickland gave it to Lone Star on Saturday, September 13, 1980. In fact, the account did not contain sufficient funds to cover the check until September 17 when Bride Oil wired its payment for resale of the fuel oil, and by then, Kay Strickland had stopped payment on the check.

We find this scheme very similar to the “check kiting” perpetrated by the president and shareholder of the defendant corporation in National Bank of Commerce in New Orleans v. Hughes-Walsh Co., 246 So.2d 872 (La.App.4th Cir.1971). In that case, the Court found fraud resulting in personal liability even though the individual defendant expected to receive and deposit funds in time to cover the overdrafts in a corporate checking account. Basing liability on La.R.S. 12:95, the Court found the advantage gained by the fraudulent scheme ultimately benefitted the individual who signed the checks because he owned 95% of stock in the corporation and held him liable in solido with his corporation.

The only factual conclusion we can reach in this case is that Kay Thomas Strickland drew the $100,000.00 check on American Chemical’s account, perhaps hoping that payment for the resale of the oil would be received and deposited before Lone Star presented the check for payment. However, even before Lone Star’s Dallas bank presented the check to American Chemical’s bank, Kay Strickland decided to go a step further in her scheme and stop payment on the check. Kay Strickland was the only person authorized to sign for American Chemical’s bank account, and Jimmie Strickland testified that she stopped payment on the check at his request. Under these facts we hold Kay Strickland and American Chemical solidarity liable to Lone Star for $100,000.00.

Additionally, the record clearly suggests fraud in the attempt to deceive Lone Star concerning the amount of oil which American Chemical received. The Saybolt survey showed a net total of 9,580.47 barrels loaded onto the barge. Yet at the same time that Jimmie Strickland was telling Lone Star that American Chemical received only 6,718.07 barrels, American Chemical was selling over 9,000 barrels to Bride Oil. American Chemical urges a defense based on modification of its contract with Lone Star, but we believe, as did the Trial ■ Judge, that these facts speak for themselves and prove fraud.

The Trial Judge found evidence that Jimmie Strickland acted fraudulently, but he disregarded this evidence since Jimmie Strickland was not a defendant. Our careful review of the trial record convinces us that not only did Jimmie Strickland act fraudulently, but that he did so as the agent of American Chemical and that Kay Thomas Strickland furthered, condoned and benefitted from the fraud.

Having held that American Chemical and Kay Strickland are solidarity liable to Lone Star for at least the $100,-000.00 amount of the check, we affirm the Trial Judge’s denial of Ms. Strickland’s exception of prescription. A suit brought against one of debtors in solido interrupts prescription with regard to all. La.C.C. art. 2097. The incidents which are the basis of Lone Star’s claim occurred in September, 1980. Lone Star filed suit on November 10,1980. Since American Chemical and Kay Strickland are solidarity liable to Lone Star, the timely suit against American Chemical interrupted prescription of the claim against Kay Strickland as well.

At trial, Lone Star attempted to show irregularities in American Chemical’s corporate operations as well as the involvement of Kay Strickland in the activities of the corporation, especially those which are the basis of this lawsuit. In order to obtain evidence on these substantive issues, Lone Star chose to cross-examine Kay Strickland as an adverse party witness.

Lone Star called Ms. Strickland on the first day of trial for the limited purpose of ascertaining the existence of corporate documents to be procured under a subpoena duces tecum and then excused her “subject to recall”. On the last day of the trial, Lone Star recalled Ms. Strickland as a witness, but the Trial Judge refused to allow questioning beyond the scope of identifying the corporate documents which had been produced.

Louisiana Code of Civil Procedure article 1634 provides:

Any party or his representative may be called as a witness and cross-examined by the adverse party without the latter vouching for his credibility, or being precluded from impeaching his testimony, and immediately thereafter the witness called may be examined or cross-examined to the extent otherwise permitted by law upon the subject matter of his examination in chief by such adverse party. The court may permit the recall and further cross-examination of the party or of his representative as often as it deems such action to be in the interest of justice.
⅜ * * * ⅜: *

Under this statute, Lone Star was entitled to recall and further cross-examine Ms. Strickland even without reserving its right to do so, subject to the court’s discretionary determination of the interests of justice. While the Trial Judge had discretion in the matter, we hold that he erred when he refused to allow Lone Star to cross-examine Ms. Strickland concerning issues at the very heart of its case against her. Since we believe that denial of the opportunity to cross-examine Kay Strickland prejudiced Lone Star, we hold that the case must be remanded to allow Lone Star to cross-examine Kay Strickland concerning the allegations that she is liable to Lone Star beyond the value of the $100,000.00 check. See Lumbermans Sash and Door Co. v. Greenup, 197 So.2d 689 (La.App. 4th Cir.1967).

Lone Star’s final contention concerns interest on the amount of the judgment in its favor. The Trial Judge ordered that Lone Star “shall have and recover legal interest on such portion of the award which was not deposited in the registry of the Civil District Court from the date of judicial demand until paid.”

In its brief to this court, Lone Star alleges that American Chemical did not comply with the Court order to deposit funds in the registry of the court. American Chemical and Kay Strickland’s response to these allegations is that because the claim was an unliquidated debt, interest is due only from the date of the judgment. There is no evidence in the record concerning any deposit of funds in the registry of the court. However, we do not need to examine that issue further since we apply a rule different than that in the Trial Judge’s order.

All debts bear interest from the time they become due. La.C.C.art.1938. Here, the parties agreed that American Chemical owes Lone Star $62,678.94. Interest on that amount began to accrue September 13, 1980, the date American Chemical was to have delivered the check to Lone Star. Interest on the disputed, or unliqui-dated, portion of the contract price is due from the time the amount became ascertainable, that is from the date of the judgment. Roques v. Alfonso, 399 So.2d 1294 (La.App.4th Cir.1981). ■

Therefore, we affirm the judgment in favor of Lone Star Industries, Inc. and against American Chemical, Inc. for $132,-785.31, with interest on $62,678.94 from September 12, 1980 and interest on $70,-106.37 from the date of judgment.

We reverse the judgment in favor of Kay Thomas Strickland, and hold her liable to Lone Star Industries for $100,000.00, with interest from September 12, 1980.

We remand the case for the limited purpose of allowing Lone Star to cross-examine Kay Strickland concerning the allegations in Lone Star’s Supplemental and Amending Petition.

American Chemical, Inc. and Kay Thomas Strickland are to pay all costs of this appeal.

REDMANN, C.J., dissents in part.

REDMANN, Chief Judge,

dissenting in part.

Kay Thomas Strickland should be cast in solido with American Chemical for the full $132,785.31 price of the oil, plus $3,298.08 paid for equipment for American, with interest on the entire amount from judicial demand as prayed and as awarded by the trial court. (The trial court awarded interest from judicial demand “on such portion of the award which was not deposited in the registry of the ... court.” Nothing was deposited prior to judgment.)


author: REDMANN, Chief Judge.

text:
    SUCCESSION OF Edna LaCroix POYNOT. Oscar POYNOT, Provisional Curator v. Gerald PFISTER.
    Nos. CA 1461, CA 1462.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 20, 1984.
    Rehearing Denied Jan. 24, 1985.
    William F. Wessel, Victoria Lennox Bar-tels, New Orleans, and Harry Burglass, Kenner, for appellants Gerald G. Pfister, Trist Pfister, Tracy Pfister and Keith Pfis-ter.
    Arthur C. Reuter, Reuter, Reuter, Reu-ter & Pizza, New Orleans, for appellees Meline Heckler, widow of Edgar Poynot; Elva Poynot, wife of Lionel Boulmay; and Oscar F. Poynot.
    F.L. DeSalvo, Foster & DeSalvo, Gretna, for appellees Joseph Peter Pujol, Jr. and Esther Clements.
    Before REDMANN, C.J., and KLEES and WILLIAMS, JJ.
   REDMANN, Chief Judge.

The beneficiaries of wills and an act of adoption appeal from a judgment invalidating those instruments on the ground of mental incapacity of the testatrix-adopter at the times of their execution.

The question is whether opponents proved the mental incapacity. Their evidence, in the form of both medical expert and lay testimony, is abundant proof, if believed by the trier of fact, that decedent was incapacitated. From the medical point of view, long before the date of the first invalidated will, her brain was so incapacitated by reduction of its blood flow by advanced arteriosclerosis (after one major and other lesser strokes) that substantial improvement thereafter was a medical improbability. From the lay point of view, following the strokes, both before and especially after her husband’s death decedent was severely limited in her ability to understand events (such as her husband’s death or her having defecated upon herself) and to recognize persons including long-time friends. (Even proponents’ expert, who saw decedent the day of the second invalidated will and deemed her having that day defecated on herself before arriving at his office “physical impropriety [having] nothing to do with her mental condition,” also testified “Well, I’m surprised that she had an operable conversation and that she was mobile, or that she had desires she wished to express....”)

There was, however, medical expert and lay testimony presented by the proponents of the questioned documents. What may seem to a reviewing judge an especially credible part of this evidence for proponents is the testimony of some nurse-sitters regarding decedent’s alienation from (and therefore silence in the presence of) her husband’s relatives and in-laws (some of whom were beneficiaries under her will made before her husband’s death). In particular, one sitter testified of decedent’s intense upset upon being served by the sheriff with the petition by her husband’s family for her interdiction. If the best parts of proponents’ evidence were believed, one might infer that, except for the serious stroke that deprived her of fluency of speech, decedent was afflicted with perhaps not much more than the infirmities too often found in old age (including forgetfulness, confusion and incontinence of bladder and, rarely, of bowel). One might further infer that, with no close relatives of her own, she became somewhat estranged from her husband’s relatives, as they visited her far less, perhaps in part because of her stroke-damaged condition: and she became more and more grateful towards the friend who visited her and her husband and, after her husband’s death, visited her alone. There is testimony from several witnesses, including a district judge who saw her at her home on the occasion of her interdiction, that the decedent was happy and relaxed in that friend’s presence, and that she communicated with him rather than with others (including the judge-witness). One might well imagine that such an elderly person, possessing testamentary capacity, could reasonably decide to leave his or her estate not to the relatives of his or her predeceased spouse but to that friend (or, at the friend’s suggestion, to the friend’s children).

But some of the best proponents’ evidence is not very persuasive (such as that of her priest, that she knew him and her eyes lit up when he entered her room, and that he had no doubt of her “contact with reality”); and some is not thoroughly credible (such as that of the lawyer who drafted the first will, that she went to her husband’s' funeral and then to the will-writing ceremony: all other witnesses who testified on the point testified that she did not attend her husband’s funeral).

The entire record considered, we cannot conclude that the trial court was clearly wrong, Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), in its conclusion that, in effect, opponents overcame the presumption of capacity by “clear and convincing evidence,” Succession of Lyons, 452 So.2d 1161, 1166 (La.1984), and proved that decedent lacked testamentary capacity on August 12 and 28, 1977 and April 18, 1978. The two wills and the act of adoption were therefore correctly declared invalid.

Opponents ask by answer to the appeal that the judgment be amended to name the “proponents” cast for the costs. One may agree that, if execution became necessary, a judgment casting “interve-nors” or “third-party defendant” or “proponents” for costs does not tell the sheriff whose property he should seize and sell (although one casting “plaintiff” or “defendant” might do so). But, similarly, a judgment for “costs” does not tell the sheriff the amount of the judgment and it therefore cannot be executed in any case until the costs are fixed. The rule to fix costs, C.C.P. 1920, is filed against persons by name and in that proceeding it will be established not only how much is owed but also the persons against whom the costs are fixed. Only after the judgment on the rule to fix costs can fi. fa. issue as required by C.C.P. 2291. Accordingly there is no necessity that this court amend the judgment to name the “intervenors” cast for costs.

Affirmed.


author: ALFORD, Judge.

text:
    POLICE JURY OF The PARISH OF ASCENSION v. Richard SHAFFETT, d/b/a Farm and Acreage Realty Company.
    No. CA 83 1237.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Rehearing Denied Jan. 10, 1985.
    Vincent J. Sotile, Donaldsonville, for plaintiff-appellee.
    James 0. Irvin, J. MeKernan, Baton Rouge, for defendant-appellant.
    Before WATKINS, CRAIN and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a judgment denying a motion for new trial brought on behalf of defendant-appellant, Richard Shaf-fett d/b/a Farm Acreage Realty. Plaintiff-appellee, the Police Jury of the Parish of Ascension, filed suit seeking to force defendant to comply with certain subdivision plans and specifications, or in the alternative, for damages in the amount of $16,-500.00. Defendant responded to the suit with an answer in the form of a general denial. The case was set for trial on February 19, 1982. The trial court minute entry from that day reflects that neither defendant nor his attorney was present when the case was called. The trial judge called a recess and attempted to reach defendant’s attorney at his office. The court was notified by the attorney's secretary that he had withdrawn from the case. Plaintiff was then allowed to present his evidence and the matter was taken under advisement.

Judgment was rendered in this matter on March 1, 1982, awarding plaintiff $13,-490.00. On March 16, 1982, defendant, through another attorney, filed a motion for new trial. This motion was heard on June 28, 1982, and taken under advisement. Judgment was rendered denying defendant’s motion on October 25, 1982. Defendant was granted a devolutive appeal on December 9, 1982.

We note that while defendant states in the first sentence of his brief that this appeal presents for review both the judg-metn on the merits and the judgment on the motion for new trial, he has only briefed the issue of the denial of the motion for new trial. Therefore, since defendant has failed to assign as error the judgment on the merits, or any action of the trial court regarding that judgment, we will limit the scope of our review to the denial of the motion for a new trial. Uniform Rules of the Courts of Appeal, Rule 1-3.

The denial of a motion for new trial, being an interlocutory judgment, is not appealable absent a showing of irreparable injury. Cargill, Inc. v. The Cementation Company of America, Inc., 429 So.2d 210 (La.App. 1st Cir.1983), writ denied, 434 So.2d 1097 (La.1983). We are of the opinion that defendant has suffered no irreparable injury in that he had the right to appeal the judgment on the merits.

Therefore, for the foregoing reasons, the judgment of the trial court denying defendant’s motion for new trial is hereby affirmed. Defendant-appellant is cast with cost of this appeal.

AFFIRMED.


author: GAUDIN, Judge.

text:
    STATE of Louisiana v. James C. NOLEN.
    No. 83-KA-438.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 1984.

      John M. Mamoulides, Dist. Atty., James Maxwell, Dorothy A. Pendergast, Asst. Dist. Attys., Gretna, for plaintiff-appellee.
    Joseph L. Montgomery, Staff Appeals Counsel, 24th Judicial Dist. Court, Indigent Defender Bd., Gretna, for defendant-appellant.
    Before BOUTALL, CURRAULT and GAUDIN, JJ.
   GAUDIN, Judge.

James Nolen was convicted by a 12-per-son jury of aggravated rape in the 24th Judicial District Court and, seeking a reversal, assigns four errors:

(1) The trial judge committed reversible error by commenting on the evidence;

(2) An incomplete transcript was submitted to this Court;

(3) The trial judge’s instructions were inaccurate with regard to the list of verdicts responsive to aggravated rape; and

(4) The trial judge erred in not declaring a mistrial after excusing a juror for cause during the course of the trial.

The victim was employed as a barmaid in a Jefferson Parish lounge. She testified that she was struck in the face and then raped by Nolen in his apartment. The defendant, a fairly regular customer at the victim’s place of employment, admitted having sexual intercourse but he said that the victim was willing and that he did not strike her.

Photographs taken the day following the alleged crime show the victim with a lacerated face, badly swollen left eye and chipped front teeth.

Subsequent to the guilty verdict, Nolan was sentenced to life imprisonment without benefit of parole, probation or suspension of sentence. For the following reasons, we affirm his conviction.

ASSIGNMENT NO. 1

LSA-C.Cr.P. art. 772 reads:

“The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.”

During the trial, the victim’s sister was called as a witness by the State, resulting in this colloquy:

BY MR. PORTEOUS (ASSISTANT DISTRICT ATTORNEY):
Q. Okay. Ms. Wallace, do you know Ms. Vicki Generos?
A. Yes sir.
Q. And you all are related, are you not?
A. Yes sir.
Q. How is that?
A. My sister.
Q. Were you and your sister on or about November 6th of 1981 living together?
A. Yes sir.
Q. At whose apartment or whose place?
A. It was my apartment.
Q. How long had you all been living together?
A. I’d say about two (2) months.
Q. Did Ms. Generos have a child?
A. Yes sir. Patti, she’s two years old at the time. '
Q. And did Patti live there with you all for this period of time also?
A. Yes sir.
Q. Now, approximately a month before November 6th did Ms. Generos have occasion to gain employment?
A. Yes sir.
MR. JOHNSON (DEFENSE COUNSEL): Your Honor, I’m going to object to the leading nature of these questions. I realize it’s preliminary but it’s going to have to stop^ somewhere.
THE COURT:
Well, they’re also not only preliminary, but they are also undisputed.
MR. PORTEOUS:
That’s exactly right.
THE COURT:
They’re undisputed facts.
MR. JOHNSON:
I don’t know that, Your Honor, until I — I just objecting to the manner in which the questions are being asked. I’m not questioning...
MR. PORTEOUS:
I’ll try to phrase them in a different way.
THE COURT:
Alright.

The defense requested a mistrial because the trial judge, despite the Art. 772 prohibition, “commented upon the facts” by referring to part of the testimony as “undisputed.” Also, appellant suggests that the questions were leading and should not have been allowed. The judge refused to declare a mistrial, but he did state to the jury:

“The Court is going to admonish the jury to disregard the Court’s comment about an undisputed fact. Since this is within the jury’s province as to what has been proved and what hasn’t been proved as facts of the case.”

LSA-C.Cr.P. art. 770 lists the prejudicial remarks within hearing of the jury that require a mistrial, such as a comment relating to race or religion, to another crime allegedly committed by the person on trial or to the failure of a defendant to testify in his own defense. Comments not within the mandatory reach of Art. 770 are covered by Art. 771, which asserts:

“In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
“(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
“(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
“In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.” (Underlining provided.)

Louisiana courts have consistently held that the prohibition of Art. 772 does not apply to the trial judge’s reasons for ruling on objections concerning admission or exclusion of evidence provided the remarks are not unfair or prejudicial. State v. Knighton, 436 So.2d 1141 (La.1983); State v. Williams, 397 So.2d 1287 (La.1981); and State v. Motion, 395 So.2d 1337 (La.1981), certiorari denied at 454 U.S. 850, 102 S.Ct. 289, 70 L.Ed.2d 139 (1981).

Here, the trial judge’s calling preliminary and relatively unimportant facts “undisputed” and his alleged failure to recognize the questions as leading were neither unfair nor prejudicial. The judge correctly applied the guidelines of Art. 771 and admonished the jury to disregard his comment. This assignment of error is without substance.

ASSIGNMENT NO. 2

The defendant contends that an incomplete transcript of the trial court proceedings was submitted by the Clerk of Court, constituting reversible error. Nolen alleges that the record does not contain the jury verdict, the polling of the jury, the argument on the motion for new trial and the sentencing.

LSA-C.Cr.P. art. 914.1 is concerned with the designation of record on appeal, and it reads:

“A. The party making the motion for appeal shall, at the time the motion is made, request the transcript of that portion of the proceedings necessary, in light of the assignment of errors to be urged. Not later than five days after the motion, the opposing party may designate in writing the transcript of that portion or portions of the proceedings necessary to oppose the appeal.
“B. A transcript of any portion of the proceedings which does not relate to anticipated assignment of errors shall not be furnished to a party for purposes of appeal and shall not result in delay of preparation of the appeal record.
“C. An attorney who requests a transcript in accordance with this Article must certify there are good grounds for such request in light of the assignment of errors to be urged.
“D. The trial court or the appellate court may designate additional portions of the transcript of the proceedings which it feels are necessary for full and fair review of the assignment of errors.”

Initially, we note that the record is not as devoid as Nolen suggests. It does contain, for instance, the jury verdict and the argument on the motion for a new trial.

Regardless, we find Section B, above, applicable. Because none of No-len’s assignments of error are directly or even indirectly based on the alleged missing parts, he cannot complain. This assignment of error is without value.

ASSIGNMENT NO. 3

Nolen was tried for aggravated rape in October of 1982. On September 10, 1982, various amendments to LSA-C.Cr.P. art. 814, the responsive verdict article, became effective. “Guilty of sexual battery” was added to the 1⅛⅝ of verdicts responsive to aggravated rape, and “Guilty of simple rape” was deleted.

Aggravated rape is (1) where the victim’s utmost resistance is overcome by force, (2) where the victim is prevented from resisting by threats of great bodily harm accompanied by apparent power of execution or (3) where the victim does not resist because the offender is armed with a dangerous weapon.

The verdicts responsive to aggravated rape, at the time of the trial, were (1) guilty, (2) guilty of attempted aggravated rape, (3) guilty of forcible rape, (4) guilty of attempted forcible rape, (5) guilty of sexual battery and (6) not guilty.

When the trial judge read the list of responsive verdicts, he listed “Guilty of simple rape” as a possible verdict and he omitted “Guilty of sexual battery”. Simple rape is a rape committed when the victim cannot resist or understand the nature of the act because of intoxication or unsoundness of mind.

As a result, Nolen argues (1) that this mistake prevented the jury from considering sexual battery, and (2) that the jury may have been misled by the inclusion of the simple rape verdict.

Sexual battery, although not responsive to aggravated rape before September 10, 1982, was nonetheless a statutorily defined crime before that date.

R.S. 14:43.1 is (and was) as follows: “Sexual battery is the intentional engaging in any of the following acts with another person, who is not the spouse of the offender, where the offender compels the other person to submit by placing the person in fear of receiving bodily harm:
“(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender; or
“(2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim.
“Whoever commits the crime of sexual battery shall be punished by imprisonment, with or without hard labor, for not more than ten years.”

When the trial judge read the charge, he defined aggravated rape, forcible rape, simple rape and sexual battery, and added “... that sexual battery is not a responsive verdict in this case. Therefore, if you find that the evidence only supports a finding of sexual battery, you have a duty to acquit the defendant, that is find the defendant not guilty.”

Accordingly, the jury was given the correct definition of sexual battery and told to find Nolen not guilty if the facts showed him guilty only of that offense. Instead of being prejudiced by the omission of sexual battery as a responsive verdict, Nolen actually benefited from this exclusion and by the trial judge’s instructions because they opened the door for a not guilty verdict if the jury concluded that the testimony and evidence supported only a sexual battery conviction.

Prior to the reading of the charge, the trial judge gave copies to both the prosecutor and defense counsel, and neither voiced any objections. In State v. Mart, 419 So.2d 1216 (La.1982), the Supreme Court of Louisiana discussed at length “... the effect of the absence of an objection to the trial court’s instructions...”

The Court said:
“The contemporaneous objection rule serves two laudable and related purposes. The first is ... to prevent the defendant from having 'an anchor to windward’ to urge for the first time in the event of a conviction. In fairness to the state, defendant cannot simply watch the proceedings unfold and silently hope that the state will introduce inadmissible evidence or that the trial court will commit error. Significantly, the rule also prevents defendant from adopting, as a matter of strategy, one approach at trial, and then, if that approach fails, arguing a contrary view on appeal.
“The second and related purpose is one of judicial efficiency. The defendant has a duty to alert the trial court, if he objects to the admissibility of evidence or the method of proceeding. This allows the trial court to correct (or avoid) error, so that the verdict results from a trial which is as errorfree as possible.
“Nevertheless, this court has recognized exceptions to the rule’s seemingly inflexible assertion that trial error, unless contemporaneously objected to, cannot be asserted on appeal. In State v. Williamson, 389 So.2d 1328 (La.1980), fundamentally erroneous misstatements of the essential elements of the charged offense were found to require reversal, despite the defendant’s failure to raise an objection in the trial court. In that case this court apparently adopted a view, not totally unlike the federal ‘plain error’ approach, that such fundamentally incorrect jury instructions so affect the fairness of the proceedings and the accuracy of the factfinding process that due process of law requires reversal ...
“When counsel for defendant fails to comply with the contemporaneous objection rule, even in the case of a fundamentally erroneous instruction ..., it is not unreasonable to require defendant to carry the burden of satisfying the court that the procedural default (that is, the failure to raise the complaint properly) was excusable and was not the result of trial strategy. See Henry v. Mississippi, 379 U.S. 443 [85 S.Ct. 564, 13 L.Ed.2d 408], Estelle v. Williams, 425 U.S. 501 [96 S.Ct. 1691, 48 L.Ed.2d 126.]”

While we cannot say that defense counsel’s failure to object to the jury charge was either excusable or the result of trial strategy, we do find that the trial judge’s instructions were not so fundamentally incorrect as to adversely affect either the fairness of the proceedings or the accuracy of the factfinding process.

Nolen was convicted as charged. His own testimony and that of his witnesses negated the possibility of sexual battery and simple rape. The defendant denied placing the victim in fear of receiving bodily harm, a necessary element in sexual battery; and there is no indication in the record that the victim could not understand the nature of the act because of intoxication or unsoundness of mind, the requisites of simple rape. Had the jury found the facts, circumstances and testimony supportive of sexual battery, the verdict would have been not guilty, in accord with the trial judge’s inadvertent instructions. '

In State v. Anderson, 440 So.2d 205 (La.App. 3rd Cir.1983) writs denied at 444 So.2d 1241, the trial judge erroneously included a lesser charge in his list of responsive verdicts. The defendant was convicted of the crime charged, and the Third Circuit noted:

“... it appears anomalous for one to allege that he was prejudiced when he was convicted of the precise crime charged, despite the existence of arguably erroneous lesser responsive verdicts which were found to be inapplicable by the trier of fact. See State v. Prestridge, 399 So.2d 564 (La.1981); State v. Beavers, 394 So.2d 1218 (La.1981) ...”
From State v. Prestridge, supra:
“The arguably erroneous inclusion of lesser offense responsive verdicts in the charge to the jury cannot be said to have prejudiced the defendant where the jury returned a verdict of guilty of the offense charged. See State v. Beavers, 394 So.2d 1218 (La.1981); State v. Booker, 385 So.2d 1186 (La.1980). It is not demonstrated how the inclusion of the lesser offense responsive verdicts in the jury charge could have led to confusion which would have had a bearing on the jury’s finding that the defendant was guilty of the offense charged.”

The Supreme Court of the United States has held that the failure to list a lesser included offense among the possible responsive verdicts does not automatically justify reversal. Due process requires, the Court said in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), “... that a lesser included offense instruction be given when the evidence warrants such an instruction. But due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction. The jury’s discretion is thus channelled so that it may convict a defendant of any crime fairly supported by the evidence...”

See also State v. Henry, 439 So.2d 1242 (La.App. 5th Cir.1983), in which a conviction for aggravated rape was affirmed although the trial judge failed to list a statutorily designated lesser verdict (guilty of forcible rape) because it was totally inappropriate to the facts. The court said:

“When the requested lesser offense contains all the essential elements of the greater offense, the defendant is entitled to have the jury consider that lesser included offense. When, however, an essential element of the lesser crime is lacking in the greater charged offense ... a conviction on a legislatively designated lesser offense which is unsupported by the evidence will be constitutionally infirm.
“We hold that the trial judge was correct in excluding the charge of forcible rape in this prosecution for aggravated rape. Though forcible rape is a legislatively designated responsive verdict ... it is not a true lesser included offense ...”

One of the required elements of forcible rape is the use of force, and the court noted that “... no evidence of force was presented at trial by either side ...”

In State v. Anderson, supra, State v. Prestridge, supra, Hopper v. Evans, supra, and in other cases in which a defendant was convicted as charged and later on appeal argued either that an inappropriate lesser included verdict was read to the jury or that such a verdict was erroneously excluded from the jury’s consideration, a reversal is not spontaneous. The defendant still must show that the inclusion or exclusion, as the case may be, was prejudicial and that fundamental due process had been offended.

Two lesser included verdicts are pertinent in Nolen’s case, “Guilty of sexual battery,” which was described for the jury’s benefit but not listed as a possible verdict, and “Guilty of simple rape,” which was listed. As previously stated, the sexual battery exclusion accrued to Nolen’s benefit as it was available as an avenue of escape rather than as a possibility of conviction, and there was not a scintilla of evidence supportive of a simple rape conviction. Clearly, simple rape was inappropriate, as was forcible rape in State v. Henry, supra.

For all practical purposes, the Nolen jury could have found him guilty as charged, guilty of attempted aggravated rape, guilty of forcible rape, guilty of attempted forcible rape, not guilty if it felt the necessary elements of the heretofore listed crimes were not proven or not guilty if it concluded that only the elements of sexual battery had been proven beyond a reasonable doubt.

If the jury felt any sympathy for Nolen, for whatever reason, and was inclined to settle on a lesser verdict, such verdicts were available.

Nolen does not argue, on appeal, that his testimony and the evidence in his favor could support either a simple rape or sexual battery conviction. How, then, could he be prejudiced by the inclusion of the simple rape verdict, which obviously was not germane, or the exclusion of the sexual battery verdict? The exclusion of a lesser included verdict was the situation in Hooper v. Evans, supra, when the defendant, who had been convicted of murder, claimed prejudice because the trial judge had not read a lesser included verdict dealing with the lack of intent to kill. The evidence, including the defendant’s own testimony, had demonstrated a positive intent to kill. The Court said:

“Respondent suggests no plausible claim which he might conceivably have made ... that is not contradicted by his own testimony.” (Underlining provided.)

The Evans jury, in convicting him as charged, no doubt placed credence in the victim’s testimony and in the evidence buttressing her version of the assault. The jury disregarded Nolen’s account of the victim’s willingness and his denial of having struck her. In his charge, the trial judge said that “... in order to convict the defendant of aggravated rape, you must find that the defendant committed an act of anal or sexual intercourse ...” without the victim’s lawful consent, and “... that the victim resisted to the utmost but her resistance was overcome by force or that the victim was prevented from resisting by threats of great and immediate bodily harm with apparent power of execution.”

These are the indispensable elements of aggravated rape and these are the elements proven beyond a reasonable doubt, as evidenced by the jury’s verdict: “Guilty of aggravated rape.”

As Nolen cannot show prejudice or a denial of fundamental due process by either the mistaken inclusion of one lesser charge or the exclusion of the other, or by a combination of the two inadvertencies, this assignment of error is of no consequence.

ASSIGNMENT NO. 4

With the trial in progress, one of the jurors notified the trial judge that he knew the victim and also several witnesses. This juror was removed for cause and replaced by an alternate juror who had been selected in accord with LSA-C.Cr.P. art. 789:

“The court may direct that one or two jurors in addition to the regular panel be called and impaneled to sit as alternate jurors. Alternate jurors, in the order in which they are called, shall replace jurors who become unable to perform or disqualified from performing their duties prior to the time the jury retires to consider its verdict. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges for cause, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the principal jurors ...” (Underlining provided.)

As the trial judge followed the outlined procedure, we find no merit in this assignment of error.

CONCLUSION

As each of the assignments of error is without merit, we affirm James Nolen’s aggravated rape conviction.

AFFIRMED.


author: GULOTTA, Judge. PER CURIAM.

text:
    Granville DILLARD v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.
    No. CA-2086.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 1984.
    Rehearings Denied Jan. 24, 1985.
    Delbert G. Talley, Gretna, Carmelite M. Bertaut, New Orleans, for appellant.

      Michael R. Sistrunk, Linda S. Harang, Caleb H. Didriksen, Raymon G. Jones, New Orleans, for appellee.
    Before GULOTTA, KLEES and ARMSTRONG, JJ.
   GULOTTA, Judge.

We are confronted with the question whether an injured plaintiffs personal uninsured motorist carrier has a right or cause of action against plaintiffs employer’s uninsured motorist carriers for injuries sustained in the course and scope of plaintiffs employment. Granville Dillard was injured while occupying his employer’s vehicle in an accident caused by the sole negligence of a third party driver. We hold that a properly pleaded cause of action exists.

PROCEDURAL BACKGROUND

This intricate legal problem arises out of a petition for damages directed against plaintiff’s personal underinsured motorist carrier, Government Employees Insurance Company (GEICO), growing out of a July 13, 1978 two-truck accident. Plaintiff, an occupant in his employer’s Atlantic and Gulf Stevedores Inc. (A & G) truck, was rear ended by a third party tortfeasor. In a third party demand, GEICO claimed entitlement to recovery over and against Insurance Company of North America (INA) and Admiral Insurance Company (Admiral) as primary underinsured motorist carriers of plaintiff’s employer’s vehicle. The third party defendants’ exceptions of no right and no cause of action as well as their motion for summary judgment were maintained by the trial judge. GEICO appeals. We reverse and remand.

GEICO’s theory of recovery against the employer's underinsured motorist carriers is based upon LSA-R.S. 22:1406(D)(l)(c)(i)(-ii), which provides that when a party is injured while an occupant of a vehicle not owned by him, primary uninsured motorist coverage is assessed against the insurer of the occupied vehicle.

The employer’s insurers’ primary defenses are two-fold. The first contention raised by these third party defendants is based on two releases. One release involves plaintiff’s personal injury suit against the tortfeasor truck driver and his liability insurer, whereby plaintiff released the tortfeasor but failed to expressly reserve his rights to proceed against his own uninsured motorist insurer. The other release is in connection with a separate worker’s compensation suit filed by Granville Dillard against his employer, A & G, whereby Dillard expressly released the employer A & G, but failed to expressly reserve any rights which plaintiff (or presumably plaintiff’s underinsured motorist carrier) has against the co-debtors and solidary obligors (INA and Admiral). According to defendants, those rights, therefore, against solidary obligors have been extinguished. Defendants rely on LSA-C.C. Art. 2203, which reads; in pertinent part:

“The remission or conventional discharge in favor of one of the codebtors in soli-do, discharges all the others, unless the creditor has expressly reserved his right against the latter.”

Third party defendants’ second contention is that because Dillard’s remedy against A & G is exclusively in worker’s compensation under LSA-R.S. 23:1032, neither plaintiff nor GEICO is entitled to recover for uninsured motorist benefits from the employer’s insurers. We reject these contentions.

RELEASES

This matter is before us on exceptions of no cause and no right of action and summary judgment. While reference is made in the defendant insurers’ brief to a draft in full and final settlement of plaintiff’s personal injury suit against the tortfeasor, the copy of the draft attached to the brief is not a part of the record before this court. The draft release was not introduced into evidence nor attached to any affidavit supporting a summary judgment motion. Accordingly, we do not consider that release here.

Turning now to the receipt and release made a part of the worker’s compensation settlement in this record, it is clear that the injured plaintiff’s employer is discharged from any liability for compensation or employee benefits. It is also true that the employer’s uninsured motorist carriers were not included and no specific reservation was made as to them. However, we do not conclude that the release, which fails to contain the reservation against the insurers, is fatal to GEICO’s claim against those insurers.

The release in the worker’s compensation case was a release and discharge from any entitlement that the injured plaintiff may have for worker’s compensation benefits. The instant suit is not a claim for worker’s compensation benefits but for tort damages arising out of the accident with the third party tortfeasor for which there was insufficient coverage by the tort-feasor’s insurer. Because the release in our case is one relating only to worker’s compensation benefits and not personal injury recovery, it has no effect on plaintiff’s claim against his own uninsured motorist carrier or that insurer’s third party demand against the employer’s uninsured motorist carriers for primary uninsured motorist coverage.

Furthermore, the result reached in our case is consistent with latest expression of the legislature and the Supreme Court concerning releases of solidary codebtors. The “express reservation” requirement of LSA-C.C. Art. 2203 has recently been abolished by 1984 La.Act. No. 331 and replaced by LSA-C.C. Art. 1803 (effective January 1, 1985), which provides that a “compromise between an obligee and one obligor, benefits the other solidary obligors in the amount of the portion of that obligor.” Likewise, in Corona v. State Farm Insurance Company, 458 So.2d 1275 (La.1984), the Supreme Court recently held that an injured plaintiff’s settlement with a tort-feasor does not discharge plaintiff’s claim against his own uninsured motorist insurer, even absent an express reservation of his rights against the insurer.

Accordingly, we hold that the release, despite the absence of the reservations, cannot serve to extinguish (for the purposes of the exceptions of no cause, no right of action and summary judgment) the employee’s uninsured motorist insurer’s rights against the employer’s uninsured motorist carriers.

EXCLUSIVE REMEDY

Finally, we reject INA and Admiral’s argument that because plaintiff’s recovery against his employer is exclusively in worker’s compensation, neither he nor his uninsured motorist carrier has a cause of action against the employer’s underin-sured motorist insurer. This question was addressed by the Louisiana Supreme Court in Johnson v. Fireman’s Fund Insurance Company, 425 So.2d 224 (La.1983), where the court held that an employer’s worker’s compensation insurer could recover from an employer’s uninsured motorist carrier the amount that an injured employee was entitled to receive because of the fault of the uninsured motorist. In the Johnson case, the employer and the worker’s compensation insurer intervened to seek reimbursement for compensation they were obligated to pay to the employee. The Supreme Court stated that an uninsured motorist carrier is a “third person” as contemplated by LSA-R.S. 23:1101 and, therefore, is legally liable to pay damages to an injured employee protected by its coverage. The Johnson court further explained, in rejecting the exclusive remedy argument, that the compensation act protects an employee by providing compensation but also reserves to him any tort recovery from a third person that exceeds his compensation benefits. The Supreme Court held that a worker’s compensation insurer therefore can recover, out of uninsured motorist coverage, amounts paid to an injured employee.

The Louisiana Supreme Court’s holding in Johnson is dispositive of the exclusive remedy contention made by the third party defendants in the instant case.

Having so concluded, we hold that third party plaintiff GEICO has stated a right and cause of action in its third party petition directed against INA and Admiral.

In connection with that part of the trial court’s judgment granting a summary judgment in favor of INA and Admiral, we cannot say that there is no genuine issue of material fact. It is apparent that a factual issue remains as to whether or not the third party tortfeasor’s uninsured motorist coverage adequately compensates the injured plaintiff for his injuries. Furthermore, LSA-C.C.P. Art. 966, relating to summary judgment, requires that a mover be entitled to a judgment “as a matter of law.” Based on the foregoing, we cannot say the third party defendants are entitled to a judgment as a matter of law.

Having so concluded, we reverse and set aside the trial court’s judgment dismissing GEICO’s third party demand against INA and Admiral, and remand this matter for further proceedings consistent herewith.

REVERSED AND SET ASIDE; REMANDED.

ON APPLICATION FOR REHEARING

PER CURIAM.

In an application for rehearing, Granville Dillard properly points out that in reversing the trial court’s judgment and remanding the matter for further proceedings on GEICO’s third party demand, we neglected to state that plaintiff has likewise pleaded a viable cause of action against INA and Admiral Insurance Company for underin-sured motorist benefits.

By supplemental and amended petitions in his action against GEICO, Dillard named INA and Admiral as additional defendants to recover the “full sum of combined limits all policies of underinsured motorist coverage issued by all defendants_”. Admiral and INA’s exceptions of no cause and no right of action and motions for summary judgment were directed against Dillard’s amended petitions as well as GEICO’s third-party demands. The trial court’s judgment maintained the exceptions and motion for summary judgment against both Dillard and GEICO and dismissed INA and Admiral from the suit. Both Dillard and GEICO have appealed.

Although the reasoning set forth' in our original opinion primarily addresses the issue of the viability of GEICO’s third party demand, our holding and its rationale apply with equal force to plaintiffs claims against INA and Admiral. Through oversight, we failed to express our intent to remand the matter for trial on plaintiffs demands against the defendant insurers, as well as GEICO’s third party demand against INA and Admiral.

Accordingly, for the reasons expressed in our original opinion, we recast our decree as follows:

“Having so concluded, we reverse and set aside the trial court’s judgment dismissing plaintiff Granville Dillard’s main and GEICO’s third party demands against INA and Admiral, and remand this matter for further proceedings consistent herewith.”

The application for rehearing filed by Admiral Insurance Company and Insurance Company of North America is denied.

      . LSA-R.S. 22:1406(D)(l)(c)(i)(ii) provides in pertinent part as follows:
      D. The following provisions shall govern the issurance of uninsured motorist coverage in this state....
      ******
      (c) .... With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, the following priorities of recovery under uninsured motorist coverage shall apply:
      (i) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
      (ii) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him....

      . In addition to the claims asserted by INA and Admiral to be discussed in the body of this opinion, these third party defendants also claim the trial court’s judgment is entitled to the benefit of the manifest error rule. Because we are concerned here with questions of law and not questions of fact, we reject this contention without further discussion.

      . LSA-R.S. 23:1101 Employee and employer suits against third persons; effect on right to compensation;
      When an injury or compensable sickness or disease for which compensation is payable under this Chapter has occurred under circumstances creating in some person (in this Section referred to as third person) other than those persons against whom the said employee’s rights and remedies are limited in Section 1032 of this Chapter, a legal liability to pay damages in respect thereto, the aforesaid employee or his dependents may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the said employee or his dependents, relations, or personal representatives against such third person, nor be regarded as establishing a measure of damages for the claim; and such employee or his dependents, relations, or personal representatives may obtain damages from or proceed at law against such third person to recover damages for the injury, or compensable sickness or disease.


author: GARRISON, Judge.

text:
    Egbert L. WRIGHT v. OCEAN DRILLING AND EXPLORATION COMPANY.
    No. CA 1963.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 1984.

      Bruce C. Waltzer, Thomas M. DeRose, New Orleans, Joseph Cohn, St. Louis, for plaintiff-appellee.
    Georges M. Legrand, Wilton E. Bland, III, Hebert & Abbott, New Orleans, for defendant-appellant.
    Before GARRISON, BYRNES and LO-BRANO, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court rendered in accordance with a jury verdict dated October 17, 1984 granting damages in the amount of $216,000.00 plus legal interest and expert fees in favor of plaintiff, Egbert L. Wright and against defendant, Ocean Drilling and Exploration Company (Odeco). From that judgment, defendant appeals.

On appeal, defendant argues that the trial court jury erred in finding:

1. With respect to plaintiff’s first accident, that the D/B Ocean King (King) was a vessel in navigation, that plaintiff was a seaman, that Odeco’s negligence was a legal cause of the accident and that the plaintiff was only 10% negligent.

2. With respect to plaintiff’s second accident, that the D/B Ocean Rover (Rover) was unseaworthy and that Odeco’s negligence was a legal cause of the accident.

3. That the amount awarded is excessively high.

4. That the trial court erred in striking three of Odeco’s witnesses and once having done so, erred in failing to grant a mistrial.

In February of 1982 plaintiff was employed as a motorman by Odeco and was assigned to the King. The King was located in the Marathon Le Tourneau shipyard in Brownsville, Texas where it had been undergoing repairs for the past year. Plaintiff alleged and the jury apparently agreed that the rig was afloat on the waters adjacent to the shipyard, that the rig was capable of operating under its own power, that it was fully crewed and that the crew was completely housed and fed aboard the rig. Apparently the rig was substantially geared-up for its return to the Gulf of Mexico when plaintiff arrived. While onboard an additional problem developed when one of the rig’s 8 ton generators became inoperable.

On April 11, 1982, plaintiff was ordered to unbolt the inoperative generator and remove it from the engine room to an adjacent compartment, the watermaker room, where an overhead deck crane could pick up the defective equipment. The engine room design failed to provide any means for the removal of the generator other than manual labor. There was no method of lowering a crane into the engine room, nor were there floor rails or an overhead trolley.

Plaintiffs brief at pages 3-4 contains an excellent description of the process used to move the generator:

“The process of ‘walking’ the generator out of the engine room involved attaching chainfalls to I-beams in the ceiling of the engine room some 10-12 feet above the deck, raising the generator by manually pulling on the chains of the chain-falls attached to the generator and then successively manually moving the chain-falls, one ahead of the other, to the wa-termaker room. The procedure necessitated several seamen on the deck of the engine room alternately to slacken and pull on the chains of the chainfalls attached to the generator and to attach the next chainfall to produce the desired movement, as well as several other seamen in the rafters overhead to detach a chainfall from the I-beams, move it ahead of the generator and lower the chainfall for attachment to the generator. The movement of the generator a distance of some 30 feet took 7 or 8 hours. The extreme difficulty of the work is evident from the uncontroverted fact that the seamen were only able to move the generator 3 or 4 feet per hour.”

In the course of this operation plaintiff apparently hurt his back, but did not file an accident report or complain to his supervisor. Plaintiff finished his 12-hour shift and his tour and returned home in compliance with his “one week on-one week off” schedule. Plaintiff experienced back pain but thought that his back was only “sore” from a hard day’s work. Plaintiffs condition became progressively worse. Plaintiff returned to work on the King and on May 9, 1982, reported the April 11th accident to the safetyman on the King.

On May 12th, plaintiff was transferred to the Rover at his request. Plaintiff traveled to Port Arthur, Texas where the Rover was located. He waited in Port Arthur for a few days in order that the rest of the crew could be flown in from Europe. When the crew was united, they reported to the Rover.

Plaintiff engaged in no heavy labor the first two days of work. On the third day he was instructed to prepare for removal of a recently inoperable generator. Unlike the King, the Rover was equipped with an overhead hatch through which a crane could be lowered. Preparation for removal of the generator included unbolting the 2,000 pound airblower and removing it from atop the generator. The toolpusher told Mr. Wright he had to remove the air-blower in 45 minutes. No other personnel were assigned to assist Mr. Wright. To remove the airblower, Mr. Wright had to crawl on top of it, attach chainfalls to the I-beams in the ceiling of the engine room, and working alone, attach the chainfalls to the air blower, pull it up and off the generator, move the chainfalls overhead and slowly “walk” the air blower to a position out of the way.

Plaintiff finished his shift but was unable to sleep due to back pain. He reported to the safetyman who did not complete an accident report on the second injury as the safetyman felt it should be charged to the King. That same night plaintiff was transported to St. Mary’s Hospital in Port Arthur, Texas where he was diagnosed as having intervertebral disc disease.

Turning to Odeco’s fourth specification of error first, it should be noted that a sequestration order was entered at the commencement of trial.

Byron Bonck, a law student who works in the Claims Department at Odeco, attended the first day of trial. Mr. Bonck testified that he was not assigned to do so by Odeco, but had requested that he be allowed to attend and permission was granted. Mr. Bonck, who had not managed or read the file in the instant case, had never seen a case tried and felt the experience would further his legal education.

On the second day of trial, Mr. Bonck transported several witnesses to Civil District Court. During the ride to the courthouse, some conversation occurred between the witnesses and Mr. Bonck. Mr. Bonck testified:

“Okay. We did — we did discuss one aspect, and that was about his testimony, and I did make a reference to the fact that there was some contradictions about the facts. What he had said before. I’m going to speak frank about that.” (Tr. Yol. Ill, p. 16).

The court further examined the three witnesses who were also party to the conversation. Lois Bailey denied that any conversation occurred. The second witness, Norman Rester, was somewhat evasive, as noted by the trial judge:

“A. Oh, I recall we might have said something between us, but like I say, I don’t recall exactly what was said.
Q. I don’t expect you to know exactly. I want you to tell me what was said by Mr. Bonck and yourself and the other members of the cab. You must remember that. That’s less than an hour and a half ago.
A. Right. Right. That we were going into — into court, and that — I’ll be honest with you. I just can’t recall what was said. It was so — you know, I don’t recall any specifics that was really pointed out.
Q. But you do acknowledge there was a discussion about the case?
A. Some kind of small discussion about the case. I can’t recall what the specifics were.
* * * * * *
Q. But he was telling you — he was telling you something about what Mr. Wright testified to yesterday, isn’t that right, sir?
A. It possibly might have been brought up, sir.” (Tr. Yol. Ill, p. 30-33).

Likewise the trial court judge found that the other witnesses were less than candid. The trial judge ordered the court policeman to accompany Mr. Bonck to his car at the Odeco building and retrieve Mr. Bonck’s notes. Upon examining the notes, the trial judge found that they were specific and responsive to particular witnesses observed by Mr. Bonck and did not deal with general trial tactics or general techniques of examination.

In order to impose sanctions for violation of the sequestration order, the court ordered that Odeco’s witnesses could not testify. Counsel for Odeco moved for a mistrial instead and that motion was denied.

Choice of remedy imposed for violation of a sequestration order is within the discretion of the trial court judge and an appellate court should not substitute its own judgment for that of the trial court in the absence of prejudice to the extent that it would have substantially changed the outcome of the trial. Hopkins v. Dept. of Highways, 350 So.2d 1271 (App. 3rd, 1977); Benoit v. Camelle, 300 So.2d 850 (App. 3rd, 1974) writ denied 304 So.2d 668 (La.,1974). While mistrial is not totally unknown in civil trials, it is exceedingly rare and goes to actions before or actions of the jury. All of the above testimony, motions, etc. occurred outside of the presence of the jury, but for a brief instance when counsel asked the bench who Mr. Bonck was. This question was not unusual to the history of this particular trial, as the trial judge had asked various individuals who they were prior to this instance. The jury had seen Mr. Bonck sitting in the courtroom on the first day.

Odeco proffered the testimony of the witnesses, which testimony appears to be primarily “credibility”-type evidence. The trial judge must have concluded that the proffered testimony would not have substantially changed the outcome of the trial as he could have entered a judgment n.o.v. In view of the wide discretion granted the trial judge, this specification of error is without merit.

Odeco argues that the jury erred in concluding plaintiff was a Jones Act seaman and that the vessel was “in navigation” at the time of the accident and that the error is an error of law, as opposed to an error of fact. It is not. In order for plaintiff to have been a “seaman” the vessel must have been “in navigation” at the time. Odeco cites the testimony of Tony Murkowski, Manager of the Construction and Repair Division of Odeco that the rig was not operational until one or two days before it left the Marathon Shipyard on May 14, 1982 — one month after the accident. In contrast, plaintiff testified that the rig was operational when he first boarded the vessel and that a separate, distinct, and independent unexpected breakdown caused the rig to remain inshore for the additional month. It is clear that this is a credibility call situation and as such, it should not be disturbed absent manifest error.

Failure to exercise reasonable care to maintain a reasonably safe work environment is deemed negligence. Apparently, the jury found that Odeco failed to provide a reasonably safe work environment by not providing access for an overhead crane, or floor rails or an overhead trolley.

Odeco argues that plaintiff should be more than 10% negligent. The chains that were part of the rig’s equipment were rusty and in ill-repair and they did not work as efficiently as well-oiled clean chains would have. Odeco’s witness testified that plaintiff could have requested different chains but failed to do so. Plaintiff testified that the supervisor could have supplied clean chains. Percentage of fault determinations under comparative negligence have been held to be factual determinations and are thus subject to the manifest error rule. It cannot be said that this percentage is manifestly or clearly erroneous.

Turning to the second accident, Odeco argues that it was error to have found Odeco negligent and the Rover unseawor-thy.

The standard for unseaworthiness is stated in the lead case Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 551, 80 S.Ct. 926, 933, 4 L.Ed.2d 941 (1960) in which Justice Stewart as organ of the court stated:

“What has been said is not to suggest that the owner is obligated to furnish an accident-free ship. The duty is absolute, but it is a duty only to furnish a vessel and appurtenances reasonably fit for their intended use. The standard is not perfection, but reasonable fitness; not a ship that will weather every conceivable storm or withstand every imaginable peril of the sea, but a vessel reasonably suitable for her intended service. Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354.”

In Mitchell, a crewmember slipped on a ship’s rail which was covered with slime and fish gurry. The unseaworthy cases cited in Mitchell all deal with conditions of the vessel itself, i.e. defective equipment. In the instant case on the second accident, it does not appear to be a condition of the vessel itself, but rather an unreasonable policy, which caused the accident.

Theories of unseaworthiness and negligence are two separate and distinct basis of liability:

“From that day to this, the decisions of this Court have undeviatingly reflected an understanding that the owner’s duty to furnish a seaworthy ship is absolute and completely independent of his duty under the Jones Act to exercise reasonable care. Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143; Alaska Steamship Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798; Rogers v. United States Lines, 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120; Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354; Crumady v. The J.H. Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed. 413; United New York and New Jersey Sandy Hook Pilots Ass’n v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541.
There is ample room for argument, in the light of history, as to how the law of unseaworthiness should have or could have developed. Such theories might be made to fill a volume of logic. But, in view of the decision in this court over the last 15 years, we can find no room for argument as to what the law is. What has evolved is a complete divorcement of unseaworthiness liability from concepts of negligence. To hold otherwise would be to erase more than just a page of history.” {Mitchell, above, at 932-933) (emphasis supplied).

Apparently the jury concluded that it was negligence for defendant to require one man to remove a 2,000 pound airblower in 45 minutes. Unlike the earlier accident, the jury found plaintiff free from negligence in this instance. Although the jury was incorrect on the unseaworthiness issue, it appears to have been correct on the negligence issue. This court reviews judgments, not reasons for judgments. Accordingly, the judgment is affirmed on this point.

Lastly defendant argues that the amount awarded is excessive. The personal injury damage cases routinely seen by this court use the “clear abuse of discretion” standard of Coco v. Winston Industries, 341 So.2d 332 (La., 1977) and Reck v. Stevens, 373 So.2d 498 (La., 1979). In the instant case, however, the standard for review of damage awards is different and is a stricter, more limited review.

In Sutton v. Central Gulf Lines, Inc., 433 So.2d 888, 891 (App. 5th, 1983), the Fifth Circuit Court of Appeal for the State of Louisiana stated in a Jones Act case:

“In reviewing damages awarded to injured seamen under the Jones Act, such awards will not be disturbed unless they are so large as to shock the judicial conscience or indicate bias, passion, prejudice, corruption or any other improper motive. Allen v. Seacoast Products, Inc., 623 F.2d 355 (5th Cir.1980).” (emphasis added).

Plaintiff is diagnosed as having thoracic degenerative joint disease and thoracic somatic dysfunction. He has been hospitalized three times and wears a Tran-scutaneous Electrical Nerve Stimulator (Tens) unit for the relief of pain. He is diagnosed as unable to return to his previous employment.

Plaintiff’s economic expert testified that Mr. Wright’s losses are as follows:

Past Lost Wages $ 26,271.00
Future Lost Wages $127,202.00
Future Lost Meals $ 15,662.00
$212,062.00

The jury awarded $240,000.00 prior to computation of plaintiff’s 10% comparative negligence amount, which means that $27,-938.00 equals the amount awarded for pain and suffering.

The award does not appear to be biased, prejudicial, or shocking to the conscience and, accordingly, should be affirmed.

For the reasons discussed, the judgment of the district court below is affirmed.

AFFIRMED.

      . Plaintiff had worked for Odeco on other rigs as far back as 1974.

      . Apparently most rigs are equipped with one of these features specifically for the purpose of removing generators.

      . Jones Act cases on review use the "clearly erroneous” test of Cooper v. Keyes Offshore, Inc., 421 So.2d 385 (App. 1st, 1982) instead of the manifest error test of Cantor v. Koehring Co., but the tests are identical.

      . Future work life expectancy of 7 years to age 62 using a discount rate of 7.5% and crediting minimum wage earnings to that age.

      . Meals are provided onboard the rigs.