author: PONDER, Judge.

text:
    GULF-WANDES CORPORATION, et al. v. VINSON GUARD SERVICE, INC., et al. AETNA CASUALTY AND SURETY COMPANY v. GULF-WANDES CORPORATION, et al.
    Nos. 83 CA 1035, 83 CA 1036
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Rehearing Denied Nov. 21, 1984.
    Writ Denied March 8, 1985.

      W. Luther Wilson, Baton Rouge, for plaintiffs-appellants Gulf Wandes Corp., J.D. Atkinson, III, Travelers Indem., and plaintiffs-appellees Aetna Cas. & Sur., J.D. Atkinson, Jr., Terry Grenat, Paul James and Travelers Ins. Co.
    Louis Koerner, New Orleans, for plaintiffs-appellants G.W. Leasing Co. and J.D. Atkinson, III.
    Robert N. Habans, Jr., New Orleans, for defendant-appellant Admiral Ins. Co.
    M. O’Neal Walsh, Baton Rouge, for defendant-appellant Houston General Ins.
    Clinton Hyatt, Jr., Baton Rouge, for third party defendant-appellee Rocky Powell.
    Donald Phelps, Baton Rouge, France Watts, III, Franklinton, James Hynes, Rob- . ert Rainer, Baton Rouge, for defendant-ap-pellee Vinson Guard Service Inc.
    Paul Marks, Jr., Baton Rouge, for plaintiff-appellee Aetna Cas. & Sur. Co.
    Before COVINGTON, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

Plaintiffs, J.D. Atkinson, III, Gulf-Wandes Corporation, G.W. Leasing Company, Inc., and Travelers Indemnity Company, appealed the trial court’s judgment dismissing their claims for property damages. Third party defendants, Houston General Insurance Company and Admiral Insurance Company, appealed the court’s judgment holding them liable to Vinson Guard Service, Inc. for attorneys’ fees.

The issues in the first appeal are:

(1) whether the trial court erred in failing to enter judgment in favor of J.D. Atkinson, III, in accordance with the court’s ruling on a motion for directed verdict made on behalf of J.D. Atkinson, III;

(2) whether the trial court erred in failing to consider the contractual relationships between the parties, with particular respect to: (a) jury instructions, (b) the answers to the jury interrogatories, (c) plaintiffs’ motion for judgment notwithstanding the verdict;

(3) whether the trial court erred in failing to enter a judgment on liability in favor of plaintiffs by application of La.C.C. art. 2317;

(4) whether the trial court’s instructions to the jury regarding assumption of the risk were so misleading that they tainted the jury’s answers to the other interrogatories;

(5) whether the jury’s answers to the interrogatories regarding causation and assumption of the risk were contrary to the law, the evidence and the instructions of the trial court.

The issues in the second appeal are:

(1) whether the excess insurance policies issued by Houston and Admiral provide coverage under the circumstances of this case;

(2) whether the court erred in awarding Vinson the attorneys’ fees that were incurred in litigating the issue of coverage.

Defendant, Vinson, answered the appeal filed by Admiral and Houston seeking additional attorneys’ fees and damages for frivolous appeal.

We amend and affirm as amended in part and reverse and remand in part.

On the afternoon of September 22, 1976, some welding work was performed on one of the doors of a warehouse owned by J.D. Atkinson, III, leased to Gulf-Wandes Corporation and insured by Travelers Indemnity Company. Sparks from the welding caused some of the phenolic dust from the plastics to smolder. Gulf-Wandes employees took action to extinguish the fires. James Jenks, an employee of Vinson Guard Service, Inc., with whom Gulf-Wandes had a contract for watchman services, volunteered to monitor the fire, area in addition to making his routine rounds, and to call the local fire department and Gulf-Wandes personnel if he observed a fire. Mr. Jenks failed to monitor the fire area as agreed upon. A fire erupted during the evening of September 22, 1976, causing extensive damages to the warehouse and its plastic contents and to movable property owned by G.W. Leasing Company, Inc. As a result of the fire, Travelers paid $168,166.52 to J.D. Atkinson, III and $391,783.94 to Gulf-Wandes and is subrogated for those amounts.

Plaintiffs-appellants filed suit against defendants Vinson, Houston General Insurance Company, and Admiral Insurance Company, alleging that defendants, due to the negligence of James Jenks, were soli-darily liable to plaintiff for the damages caused by the fire in the following amounts: Gulf-Wandes, $200,000.00; J.D. Atkinson, III, $25,000.00; G.W. Leasing Company, $4000.00, and Travelers, $558,-950.46.

Vinson filed a third-party demand against Admiral and Houston asserting that if Vinson was cast in judgment, Admiral and Houston should also be cast in judgment to the extent of their respective policy limits, $250,000.00 and $1,000,000.00, and for reasonable attorney’s fees and reasonable costs of defense.

The case was tried before a jury in a bifurcated trial. At the close of defendants’ case, the trial court granted a motion for directed verdict made on behalf of J.D. Atkinson, III, in his capacity as plaintiff, and third-party defendant. However, the issues regarding Vinson’s liability were later submitted to the jury. Among other findings, the jury found that Mr. Jenks was guilty of negligence but that his negligence was not a proximate or legal cause of the damages claimed by the plaintiffs. The jury also found that Gulf-Wandes was guilty of contributory negligence which was a proximate or legal cause of plaintiffs’ damages and that Gulf-Wandes assumed the risk of its damages.

The court rendered judgment in favor of defendants in the main demand and against plaintiffs, dismissing plaintiffs’ suit at plaintiffs’ costs. The court also rendered judgment in favor of Vinson on its third party demand against Houston and Admiral in the amount of $13,863.79 for attorneys’ fees.

In response to a motion for a directed verdict on behalf of J.D. Atkinson, III, the court ruled as follows:

“The court will grant the motion as a third-party defendant on behalf of J.D. Atkinson, III, and also in Mr. Atkinson’s favor as a plaintiff. I will not submit interrogatories to the jury relative to contrib, negligence, contrib and/or assumption on behalf of J.D. Atkinson, III.”

Plaintiffs contend that by the above ruling the court granted the motion on the issue of liability in favor of J.D. Atkinson, III. Defendants-appellees claim that the motion was granted solely on the issues of contributory negligence and assumption of the risk with regard to J.D. Atkinson, III, only.

In view of our disposition of the remaining issues, we find that a decision regarding the trial court’s action on the motion for directed verdict is unnecessary.

Appellants next argument is that the court failed to consider the contractual relationships between the parties in the jury instructions, the answers to the jury interrogatories and plaintiffs’ motion for judgment notwithstanding the verdict.

Plaintiffs-appellants requested jury instructions concerning breach of contract theories. The trial court limited the instructions to the jury and the jury interrogatories to delictual fault concepts. Plaintiffs-appellants argue that the distinction between contractual and delictual obligations is important with regard to the matter of burden of proof as to fault and causation of damage. Plaintiffs contend that the jury found the contractual relationship between the parties to have been breached by their finding that Mr. Jenks was negligent in the performance of his duties on the night of the fire and, thereby, the burden of proof was shifted to the defendants to demonstrate that the cause of the damage was not the fault of the defendants.

Appellees’ response is that the contract issue was not properly raised by appellants and that the answers of the jury to the interrogatories rendered the contract issue moot because the same result would be reached under either tort or contract theories.

In a jury trial, the judge is not required to give the precise instructions submitted by either party, but he must give instructions which properly reflect the law applicable in light of the pleadings and facts in each particular case. If instructions concerning negligence and liability are confusing or misleading, or omit an applicable essential legal principle, such instructions constitute reversible error. Kaplan v. Missouri-Pacific Railroad Company, 409 So.2d 298 (La.App. 3d Cir. 1981); Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975); Beck v. Lovell, 361 So.2d 245 (La.App. 1st Cir.1978), writ denied, 362 So.2d 802 (La.1978).

We find that contractual theories of recovery are applicable and essential to the facts of this case and therefore, the trial court’s failure to instruct the jury regarding the contractual rights and obligations of the parties constituted reversible error. Plaintiffs pleaded the contractual theory of recovery in their original petition, listed the contract issue in the pretrial order, presented evidence of a contractual relationship, and made a timely objection when the trial court excluded the contractual theory from the requested jury charges. Therefore, we find that the contract issue was properly raised and that the jury should have been instructed on the law of contracts.

Although we have concluded that the trial court’s actions constituted reversible error, we must further determine the issue of liability in this ease. Where an appellate court has the complete record of all necessary evidence before it, it should under its constitutional authority review fact as well as law and render judgment on the merits. Gonzales v. Xerox Corporation, supra, Boyette v. Auger Timber Company, 403 So.2d 800 (La.App. 2d Cir.1981), writ denied, 407 So.2d 731 (La.1981).

The next assignment of error raised by plaintiffs that is relevant to our disposition of the case is that the jury’s answers to the interrogatories regarding causation and assumption of the risk were contrary to the law, evidence and instructions of the court. Our review of factual issues is controlled by the principle established by the Supreme Court in Canter v. Koehring Company, 283 So.2d 716 (La.1973) and Ar-ceneaux v. Domingue, 365 So.2d 1330 (La.1978). In those two cases, the standard of review to be applied to factual determinations by the trial of fact, whether judge or jury, was declared to be manifest error.

After carefully reviewing the record, we believe that the factual determinations of the jury on the issues of causation, assumption of the risk and contributory negligence were manifestly erroneous.

Gulf-Wandes’ personnel and representatives engaged in actions to ensure the safety of the area where the smouldering fires had taken place. All persons present at the scene of the fires testified that they believed the fires had been completely extinguished. The guard employed by Vinson volunteered to monitor the fire area and to establish his post in that area. We find that the representatives of Gulf-Wandes were not negligent in depending on the guard service to monitor the area. Furthermore, no evidence was presented to show that Gulf-Wandes had knowledge that the fire would rekindle or that Gulf-Wandes had any reason to believe that the guard would not monitor the area as agreed upon.

We also find that reasonable men could not have reached the conclusion that the guard’s negligence was not the proximate cause of the damages claimed by plaintiffs. If the guard had complied with his duty to observe the fire area and report any fire activity to the Gulf-Wandes personnel, the property damage involved herein would not have occurred. Furthermore, since the guard’s duty was specifically to protect the premises from the risk of fire, there is no question that the guard’s negligence was the proximate cause of the damages resulting from the fire.

APPEAL OF THIRD PARTY DEFENDANTS

The excess insurers, Houston and Admiral, raise the issue of whether the excess insurance provides coverage under the factual circumstances of this case. The relevant exclusion provides that the liability coverage does not apply to damage to property “... entrusted to the Insured for storage or safekeepingf.]” Appellants assert that this exclusion refers to the same property that is encompassed by the “care, custody, or control” exclusion that is commonly found in liability policies and that the purposes for these exclusions is to prevent a general liability insurer from becoming a guarantor of the insured’s workmanship in his ordinary operations. Appellants argue that the Vinson guard was the “custodian” of the property at the time of the fire due to his position of responsibility and, therefore, the property damage falls within the pertinent exclusion. Appellee urges that the guard was merely performing his duties to observe the Gulf-Wandes property and report irregular activity, which did not place the property in the “care, custody or control” of the guard. Appellee also emphasizes that the guard did not possess any keys to the buildings on the premises and that he had no decision-making authority regarding the operation of the warehouse facility.

We find that the policy exclusion does not apply to this particular factual situation. The apparent purpose for this type of exclusion is to protect insurers from the risks concerned in insuring property under the care, custody or control of the insured in the sense of being owned, rented or used by the insured and where there might be some advantage to the insured in falsifying or exaggerating a loss. This reason for the exclusion does not apply with reference to property belonging solely and unconditionally to others as in the instant case. Hendrix Electric Company, Inc. v. Casualty Reciprocal Exchange, 297 So.2d 470 (La.App. 2d Cir. 1974). Furthermore, the primary object of all insurance is to insure, and exclusion clauses are strictly construed against the insurer, especially if they are of uncertain import. Commercial Capital Systems, Inc. v. Paille, 383 So.2d 293 (La.App. 1st Cir.1976).

Appellants cite Stewart Warner Corporation v. Burns International Security Services, Inc., 527 F.2d 1025 (7th Cir.1975) in which the court found that goods stored in a warehouse were in the “care, custody, or control” of the named insured which was providing a night watchman to protect the warehouse premises. Since Stewart Warner, supra, there has been at least one case from the same jurisdiction in which the court found that a security guard did not have the requisite control over the warehouse premises to invoke the “care, custody or control” exclusionary clause. Greater New York Mutual Ins. Co. v. Professional Security Bureau, Ltd., 61 App. Div.2d 975, 402 N.Y.S.2d 448 (1978). We are not convinced by the Stewart Warner case.

We cite the jurisprudence concerning the definition of “custody” in the context of La.C.C. art. 2317. In Bonvillain v. Realty Operators, 26 So.2d 25, 28 (La.App. 1st Cir.1946), the court gave the following guidelines:

“We construe the Article to mean by things in one’s custody, such things over which that person maintains some sort of supervision and control either because he has an interest in them or derives a benefit from their use.”

The Vinson guard had neither a proprietary or monetary- interest in the Gulf-Wandes operations nor did he derive any benefit from its operations.

Appellants contend that they have the right to seek a judicial interpretation of whether a policy clause applies to a particular factual situation and that a finding of coverage by the court should not necessarily result in attorney’s fees being awarded to the insured.

An insurer’s liability to pay penalties and attorney’s fees is based on whether their action in denying coverage is arbitrary, capricious and without probable cause. La.R.S. 22:658. The Supreme Court addressed this issue in Carney v. American Fire & Indemnity Company, 371 So.2d 815, 819 (La.1979). The court stated:

“An insurer must take the risk of misinterpreting its policy provisions. If it errs in interpreting its own insurance contract, such error will not be considered as a reasonable ground for delaying the payment of benefits, and it will not relieve the insurer of the payment of penalties and attorney’s fees.”

A trial court’s conclusion with regard to the assessment of penalties and attorney’s fees under La.R.S. 22:658 is partially a factual determination which should not be disturbed absent a finding that it is manifestly in error. Carter v. American Mutual Liability Insurance Company, 386 So.2d 1072 (La.App. 3d Cir.1980).

Defendant-Vinson has answered the appeal seeking additional attorneys’ fees and damages for frivolous appeal. Vinson claims that the trial court overlooked the testimony of one of the attorneys that represented Vinson that he worked forty hours in defense of the insurance companies’ denial of coverage. Vinson requests this court to increase the trial court award by the sum of $3000.00.

Evidently, the trial court did overlook the attorney’s testimony that he had spent at least five hours on the question of coverage. At the trial court’s approved rate of $75.00 per hour, this would amount to $375.00. Accordingly, we amend the trial court’s judgment to award additional attorneys’ fees in the amount of $375.00.

Vinson also claims that the trial court failed to consider the time required for Vinson’s counsel to prepare post-trial briefs on the issue of attorneys’ fees. Vinson seeks an additional $1000.00 award for these legal services. The briefs were submitted to the trial court. We find no proof that the court did not consider the time required.

La.C.C.P. art. 2164 authorizes a claim for damages for frivolous appeal. However, appeals are favored under the law and damages for frivolous appeal will not be granted unless they are clearly due. Maxwell v. State, Department of Transportation and Development, 391 So.2d 1230 (La.App. 1st Cir.1980), writ denied, 394 So.2d 281 (La.1980). Damages will be awarded only when there are no serious legal questions, when the appeal is taken solely for the purpose of delay, or when it is evident that appellant’s counsel does not seriously believe in the position he advocates. Pickering v. City of Baton Rouge, 442 So.2d 522 (La.App. 1st Cir.1983); Salmon v. Hodges, 398 So.2d 548 (La.App. 1st Cir.1979).

We find that this case presents a serious legal question on the issue of insurance coverage. Therefore, we reject appel-lee’s request for damages for frivolous appeal.

For the above reasons, we reverse the trial court’s judgment in the first appeal and render judgment in favor of plaintiffs on the issue of liability. We remand the case to the trial court for further proceedings.

The judgment of the trial court in the third-party demand brought against Houston and Admiral is affirmed and amended to award additional attorneys’ fees in the amount of $375.00.

All costs of this appeal are to be borne by Admiral Insurance Company and Houston General Insurance Company.

AMENDED AND AFFIRMED AS AMENDED IN PART AND REVERSED AND REMANDED IN PART.

      . Vinson Guard Service, Inc., Houston General Insurance Co., and Admiral Insurance Co. filed a third-party demand against J.D. Atkinson, III and several other parties, alleging that these parties were guilty of contributory negligence and that these third-party defendants assumed the risks that the premises would be destroyed. The trial court dismissed this demand at plaintiffs’ costs. There is no issue on appeal arising from this demand.

      . John W. Dussouy and Company, Inc. and the Insurance Market Place, Inc. were also named as third-party defendants. However, the claims against these parties were severed and are not relevant to the issues presented on appeal.

      . A $50,000.00 primary insurance policy issued to Vinson Guard Service, Inc. by Charter Oak Insurance Company was in effect at the time the fire occurred. Coverage was acknowledged by the insurer.
      The insurance coverage provided by Admiral Insurance Co. and Houston Insurance Co. is excess coverage.

      . Plaintiffs entered into a settlement with Vinson Guard Service, whereby Vinson Guard Service was dismissed for the full $50,000.00 of the Charter Oak policy.

      . La.C.C. Art. 2317.
      We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

      . La.R.S. 22:658
      All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount. Provided, that all losses on policies covering automobiles, trucks, motor propelled vehicles and other property against fire and theft, the amount of the penalty in each of the above cases shall be 25% and all reasonable attorney’s fees.


source: Caselaw Access Project

author: CARTER, Judge:

license: Public Domain

text:
    Carolyn MOORE and Ella Moore v. Lucius BRUMFIELD.
    No. 83 CA 1041.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Rehearing Denied Nov. 21, 1984.

      Michael I. Rodriguez, New Orleans, for Carolyn Moore.
    Marvin C. Grodsky, New Orleans, for Ella Moore.
    Delos Johnson, Franklinton, for Lucius Brumfield.
    J. David Malone, New Orleans, for Coronet Ins. Co.
    Before COLE, CARTER and LANIER, JJ.
   CARTER, Judge:

This is a suit for damages arising out of a rearend collision.

On July 25, 1980, Ella Moore (passenger) and her daughter, Carolyn Moore (host-driver), were following a pick-up truck owned and operated by defendant, Lucius Brumfield. Both vehicles were traveling north on Louisiana Highway 25 in Washington Parish when defendant, in attempting a left turn, veered into the southbound lane of travel. Defendant was either in the process of turning or had completed his movement when his vehicle was struck in the rear by the vehicle driven by Carolyn Moore. As a result of this accident, Ella Moore sustained certain injuries to her neck.

The host-driver and passenger of the following vehicle filed suit against the driver of the preceding vehicle. Coronet Insurance Company (hereinafter referred to as Coronet), the liability and UM carrier of the host-driver, was subsequently made a party defendant. The district court determined that the accident was caused by the negligence of the host-driver who rear-ended the defendant driver’s vehicle. Accordingly, the trial court dismissed the claims against the preceding driver and rendered judgment in favor of the passenger against the liability insurer of the host-driver, for $6,100.00 ($4,000.00 for personal injury and $2,100.00 for loss of wages) with legal interest from date of judicial demand and all cost. From this judgment, the passenger devolutively appeals. The insurer and host-driver did not appeal or answer the appeal.

Appellant contends that the trial court erred in: (1) refusing to award statutory penalties for Coronet’s failure to tender payment timely under its policy without probable cause; (2) finding defendant, Lucius Brumfield, free from negligence; (3) awarding appellant only $4,000.00 for the injuries she sustained; (4) rendering a decision from the bench without reading the depositions of the treating physicians; and, (5) denying plaintiff’s discovery of certain Coronet file documents relevant to the issue of cause for failing to pay appellant’s claim within sixty days.

Appellant’s assignments of error will be hereinafter treated, but not in the order assigned.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, appellant contends that the trial court erred in finding defendant, Lucius Brumfield, free from negligence. It is well settled that negligence must be determined in each case according to the particular facts and circumstances therein. Dupree v. Louisiana Transit Management, 441 So.2d 436 (La.App. 2nd Cir.1983), writ denied, 445 So.2d 1233 (La.1984). Once the applicable standards of care are established, negligence and contributory negligence are questions of fact to be determined by the judge or jury. Prestridge v. Commercial Union Assur., 413 So.2d 959 (La.App. 3rd Cir. 1982); Steele v. St. Paul Fire & Marine Ins. Co., 371 So.2d 843 (La.App. 3rd Cir. 1979), writ denied, 374 So.2d 658 (La.1979); Cooksey v. Central Louisiana Electric Co., Inc., 279 So.2d 242 (La.App. 3rd Cir. 1973). In the absence of manifest error, a reviewing court should not disturb these factual determinations. In order to find manifest error, the record must support the conclusion that the factual determinations were clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

In the case sub judice, we cannot say that the trial court was manifestly erroneous in finding that defendant Lucius Brumfield was free from negligence. Carolyn Moore testified that she followed defendant’s vehicle for approximately 300 yards prior to his turning or veering left into the southbound lane of traffic. Further, she stated that defendant had his left turn signal in operation during this entire period. Based on this and other evidence, we cannot say that the trial court’s determination that Lucius Brumfield was free from negligence is manifestly erroneous. Accordingly, appellant’s second assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

In these assignments of error, appellant contends that the award of $4,000.00 as general damages for the injuries sustained is grossly inadequate and that the trial court erred in rendering judgment from the bench immediately upon the conclusion of trial without reading the depositions of the medical experts. Before an award for damages may be questioned as inadequate or excessive, the appellate court must look to the individual circumstances of the particular case to determine whether the award for the injuries sustained and their effects upon the injured person were a clear abuse of the trier of fact’s great discretion. LSA-C.C. art. 1934(3); Reck v. Stevens, 373 So.2d 498 (La.1979); Johnson v. Folse, 438 So.2d 1137 (La.App. 1st Cir. 1983).

In this initial determination of ex-cessiveness or insufficiency, an examination of prior awards has a limited function and may serve as an aid in this determination only when the present award is greatly disproportionate to the mass of awards in prior cases involving closely similar injuries, facts, and circumstances. Reck v. Stevens, supra; Johnson v. Folse, supra.

An examination of the record reveals that the depositions of Dr. Kroll and Dr. Jarrott were introduced. Dr. Kroll, appellant’s treating physician, stated that appellant had a cervical strain which was superimposed upon a degenerative disease of the cervical spine, namely, cervical spondylosis. He also stated that there were objective findings of involuntary spasticity which required appellant to be in a cervical collar for an extended period of time. Due to this strain, there was considerable pain and soreness in her neck. Moreover, appellant was required to place herself in home traction for an extended period of time which required that she cease work for approximately three months.

Dr. Jarrot, a neurosurgeon, stated that appellant exhibited limited cervical motion, tenderness of the brachial plexus, spinous processes of the vertebrae and the interior scalene muscles, a positive Adson’s test, and irritation of the brachial nerve to her arm. Further, he stated that these symptoms would continue for an extended period, perhaps indefinitely.

After reviewing the entirety of the record, we conclude that the $4,000.00 award for personal injury is inadequate and an abuse of discretion. When a damage award is found to be inadequate, we are required to increase it to the lowest point which would reasonably be within the discretion of the fact finder. Cheatham v. City of New Orleans, 378 So.2d 369 (La.1979); Prevost v. Cowan, 431 So.2d 1063 (La.App. 1st Cir.1983).

Based upon the uncontested testimony of Dr. Kroll and Dr. Jarrot, we find that the trial court erred in its personal injury award and that a personal injury award of $15,000.00 is appropriate under the facts and circumstances of this case. See Landry v. Aetna Ins. Co., 422 So.2d 1287 (La.App. 4th Cir.1982), writ denied 429 So.2d 150 (La.1983); Cornish v. Ford, Bacon & Davis Construction Corp., 304 So.2d 361 (La.App. 1st Cir.1974), writ refused 305 So.2d 123 (La.1974).

Although an award of $15,000.00 for personal injury is appropriate, we are unable to increase the award more than $3,900.00 for reasons which will hereafter be apparent. In seeking recovery for her damages, Ella Moore asserted claims against Coronet, the liability and UM insurer of Carolyn Moore, and Lucius Brum-field. However, upon finding that Brum-field was not negligent, he is absolved of any liability to Ella Moore. Therefore, Ella Moore must look solely to Coronet for recovery.

Both the liability and UM portions of the Coronet policy have limits of $10,000/$20,000. However, there is no UM coverage affordable to Ella Moore under the policy provisions for the negligence of the host-driver because the Coronet policy expressly excludes “an insured automobile” from the definition of “uninsured automobile” for the purposes of uninsured motorist coverage. The vehicle which Carolyn Moore was driving when the accident occurred was described in her policy as an insured automobile; therefore, it is excluded as an uninsured automobile under the policy definition. This exclusion has been upheld in many cases. See Nall v. State Farm Mut. Auto. Ins. Co., 406 So.2d 216 (La.1981); Breaux v. Government Emp. Ins. Co., 369 So.2d 1335 (La.1979); Shipp v. State Farm Mut. Auto. Ins. Co., 415 So.2d 582 (La.App. 3rd Cir.1982). The rationale of these cases is dispositive of the issue involved herein. A guest passenger is not entitled to recover under both the liability and UM coverages in a situation such as the one at bar. In all three of the above mentioned cases, the guest passenger was allegedly injured or killed due to the negligence of the host driver. In all three cases, it was held that recovery could not be had under both liability and UM coverages of the policy insuring the automobile involved in the accident, when the accident is solely the result of the host-driver’s negligence. This case presents an identical situation in theory. Thus, under the liability portion of the policy, our award must be limited to $10,000.00. Since the trial court awarded $2,100.00 for lost wages, the maximum award we can render for personal injury is $7,900.00, an increase of $3,900.00.

ASSIGNMENTS OF ERROR NOS. 1 AND 5

Appellant contends she is entitled to an award of statutory penalties for Coronet’s failure to pay her claim within the statutory period. Appellant reasons that LSA-R.S. 22:658 required Coronet to pay appellant’s claims within 60 days of demand whether recovery was sought under the liability portion or under the UM portion.

LSA-R.S. 22:658 provides that all insurers issuing any type of contract, other than specifically provided for, shall pay the amount of any claim due any insured within sixty (60) days after receipt of satisfactory proof of the insured’s loss. Although Ella Moore is an “insured” under the terms of the UM coverage of the Coronet Insurance policy, recovery herein is under the liability portion of Carolyn Moore’s policy and not the UM portion. Under the liability portion, Ella Moore is not an insured and is not entitled to an award of penalties and attorney’s fees under LSA-R.S. 22:658. Therefore, LSA-R.S. 22:658 is not applicable as a matter of law, and the trial court was correct in denying an award for statutory penalties. Appellant’s first assignment of error is without merit, and her fifth assignment of error is, therefore, moot.

CONCLUSION

Por the above and foregoing reasons, the judgment of the trial court is hereby amended to reflect an increase of the award to Coronet’s policy limits of $10,-000.00, and in all other respects the judgment is affirmed. Defendant Coronet Insurance Company is to pay all costs of this appeal.

AMENDED AND AFFIRMED.

      . In oral reasons for judgment, the district court set forth that an award of $2,140.00 was made for loss of wages. The judgment only awards $2,100.00. However, this issue is not raised on appeal.

      . Carolyn Moore, the party determined to have caused the accident, was not made a defendant in the proceeding. The guest passenger instead elected to sue Carolyn Moore’s liability and UM insurer directly.

      . The Coronet policy, under Part IV, Family Protection, provides that the company agrees:
      “To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury ... sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile ..(emphasis added)

      . In such situations, recovery may be had under the liability portion of the policy; however, recovery is unavailable under both the liability and UM portions of the policy when the only negligence involved is the negligence of the host-driver.

      . The liability portion of the Coronet policy defines persons insured as:
      “(1) the named insured and any resident of the same household;
      (2) any other person using such automobile with the direct permission of the named insured, provided his actual operation of [sic] (if he is not operating) the other actual use thereof is within the scope of such direct permission....”
      In contrast, however, the family protection portion of the Coronet policy adopts most of the definitions under the liability portion, but expressly excepts the term "insured.” Under this portion of the policy, "insured” means:
      "(a) the named insured and any relative of the named insured; (b) any other person while occupying an insured automobile; and (c) any person, with respect to damages he is entitled to recover because of bodily injury to which this Part applies sustained by an insured under (a) or (b) above_”


author: LOTTINGER, Judge.

text:
    JEFFERSON LEVEE DISTRICT v. John LANZA.
    No. 83 CA 1078-1079.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Rehearing Denied Nov. 21, 1984.
    Bruce G. Reed, Reed & Reed, New Orleans, for appellant.
    Dale C. Wilks, New Orleans, for appel-lee.
    Robert R. Boland, Jr., Civ. Service Legal Counsel, Dept, of State Civ. Service, Baton Rouge, for Herbert L. Sumrall.
    Before COVINGTON, LOTTINGER and PONDER, JJ.
   LOTTINGER, Judge.

Defendant was indefinitely suspended from his position as police lieutenant for the Jefferson Parish Levee District on March 6, 1981. The basis of the suspension was that defendant allegedly discharged his firearm into a telephone book within the Jefferson Parish Levee District substation located in Kenner, Louisiana.

On March 6, 1981, defendant was ordered to submit to a lie detector test administered by Goodwin and Associates. Upon appearing at the offices of Goodwin and Associates, defendant was asked to sign a release form purporting to release Goodwin and Associates, the Jefferson Parish Levee District and I.C. Villanueva, Chief of Police, from any liability resulting from taking the examination. Defendant refused to sign the release but made it known to the examiner that he was willing to take the examination if the signing of the release was waived. The examiner refused to administer the exam without having the release signed by defendant. Defendant returned to the police chief’s office where he was indefinitely suspended by I.C. Villan-ueva. The verbal suspension was confirmed later by a letter which stated the cause of the suspension being that defendant had discharged a firearm within the Jefferson Levee District substation.

Defendant was again requested to submit to a polygraph examination.upon the release being signed by the Jefferson Levee District. Defendant agreed to take the examination under the condition that the presence of his attorney be allowed during the examination. The examination was scheduled for March 20, 1981, however, on March 19 defendant’s attorney cancelled the appointment. The examination was rescheduled for March 26, 1981, but again was cancelled. A letter was then sent by I.C. Villanueva requesting that defendant attend the appointment set for March 26, 1981. Defendant did not appear. Defendant filed a timely notice of appeal to review the indefinite suspension. Additionally, by letter dated April 7, 1981, Lanza was advised of his immediate termination. As cause for the termination, Lanza was charged with: 1) discharging a firearm in the substation on February 2, 1981; 2) refusing to cooperate with the Department’s investigation regarding the incident; and 3) refusing Chief Villanueva’s direct order to take a polygraph examination in furtherance of the investigation. Separately, Lan-za timely gave notice of his appeal of his termination.

Both appeals were consolidated for hearing before a commissioner appointed by the Civil Service Commission. The Commission reviewed the evidence and ordered Lanza reinstated with back pay from the date of the suspension subject to an offset in favor of the Jefferson Levee District for any wages earned by Lanza during the period of his suspension and termination. From this ruling, the District has appealed.

In a single assignment of error the Levee District questions whether the Civil Service Commission correctly concluded that defendant in fact agreed to take the polygraph examination and that his later refusal was based upon a legitimate refusal to sign a release agreement.

The Levee District argues that defendant unreasonably refused to submit to a polygraph examination, even though he had been ordered to appear by I.C. Villanueva in writing. The Levee District argues that it did all that was within its powers to have defendant comply with the scheduling and rescheduling of the polygraph examination.

A careful review of the facts reveals that defendant was scheduled to appear for a polygraph examination at the offices of Goodwin and Associates on March 6, 1981. Defendant appeared as scheduled. He then refused to co-operate in the examination only because he would be forced to sign not only a release in favor of Goodwin and Associates, but also in favor of the Jefferson Levee District and I.C. Villanueva.

Although it has been recognized that a police department may require a police employee to submit to a polygraph examination, the rule is not unqualified. Creadeur v. Department of Public Safety, 364 So.2d 155 (La.App. 1st Cir.1978). In that case this court stated:

The eases recognize, however, that the rule is not unqualified and is subject to the exception that an officer is not required to submit to such an order which is unreasonable or when legitimate reason exists for refusal to obey such an order.

We view the refusal to sign the release agreement as a legitimate exercise of defendant’s rights. Reasoning otherwise would in effect force defendant to give up his right of civil suit against the Jefferson Levee District and Chief Villanueva. It should also be noted that the initial visit to the polygraph examiner’s office did not result in a completed examination because defendant refused to take the examination. Defendant merely refused to sign the release, but steadfastly stated that he was willing to take the examination if his signing of the release was dispensed with. Thereafter, the decision not to give the examination was the decision of Goodwin and Associates.

After the decision was made by Goodwin and Associates not to allow defendant to take the polygraph examination defendant returned to his duty where he was subsequently notified that he was being placed on indefinite suspension. Defendant was told the reason for the suspension was that he discharged a firearm within the confines of the substation. Defendant was then directed to surrender his commission and badge and ordered to remove his belongings from the substation. Defendant was notified of his suspension in writing on March 9, 1981. Again the reason given for the suspension was not related to the failure to take the polygraph examination, but instead was based on an accusation of his discharging the firearm in the substation.

Any request to appear for the polygraph examination after March 9, 1981, was after defendant had been placed on indefinite suspension, having been accused of discharging the firearm in the substation. At this point the investigation into the matter ceased and an accusing finger was pointed at defendant. Defendant during this time period was suspended to the extent that he could not be held amenable for failure to perform the duty required of a police officer.

A police officer placed in this situation should naturally be allowed to deal with his accuser at arm’s length. Therefore, defendant’s refusal to submit to polygraph examination scheduled for March 26, 1981 was also justified.

Por the above and foregoing reasons the judgment of the Civil Service Commission is affirmed at plaintiff-appellant’s costs.

AFFIRMED.


text:
    STATE of Louisiana v. Larry Charles JAMES.
    No. 83 KA 1131.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Rehearing Denied Nov. 21, 1984.

      James L. Alcock, Asst. Dist. Atty., Hou-ma, for appellee, State of La.
    Indigent Defenders Bd., Houma, for appellant, Larry Charles James.
    Before COVINGTON. LOTTINGER and PONDER, JJ.
   PONDER, Judge.

Defendant was found guilty of second-degree murder, a violation of LSA-R.S. 14:30.1. He was sentenced to mandatory life imprisonment at hard labor, without benefit of probation, parole or suspension of sentence.

Defendant assigns as reversible error solely the trial judge’s ruling that a written inculpatory statement, dictated and signed by the defendant, was freely and voluntarily made and thus admissible evidence.

We affirm.

Defendant shot his estranged wife four times, after a brief argument, before several witnesses. After defendant had turned himself in at the Thibodaux City Police Station and was transferred to the Terre-bonne Parish Sheriff’s Department in Hou-ma, he signed a waiver of rights form and made a written inculpatory statement, admitting that he had shot his wife. He argues that the statement was not freely and voluntarily made because law enforcement officials taking his statement: (1) failed to inform him that his wife had died and (2) told him that it would be “better on” him if he made a statement.

Before a confession or inculpato-ry statement can be introduced into evidence, the state has the burden of affirmatively proving, beyond a reasonable doubt, that it was free and voluntary,' and not made under the influence of fear, duress,, intimidation, menaces, threats, inducements or promises. LSA-R.S. 15:451; State v. Simmons, 443 So.2d 512 (La.1983); State v. Green, 443 So.2d 531 (La.1983); State v. West, 408 So.2d 1302 (La.1982). Additionally, the State must show that an accused who makes a statement or confession during custodial interrogation was first advised of his Miranda rights. State v. Green, supra; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Once a defendant alleges specific instances of police misconduct in reference to a statement, it is incumbent upon the State to specifically rebut each instance. State v. Dison, 396 So.2d 1254 (La.1981); State v. Franklin, 381 So.2d 826 (La.1980). The trial court’s conclusion about the admissibility of a confession or statement, if supported by the evidence, will not be disturbed on appeal. State v. Burkhalter, 428 So.2d 449 (La.1983); State v. Nathan, 444 So.2d 231 (La.App. 1st Cir.1983), writ denied 445 So.2d 1232 (La.1984).

Defendant first argues that the action of the interrogating deputies in withholding from him the knowledge of his wife’s death constituted a form of inducement or coercion, rendering his statement inadmissible as not being freely and voluntarily made.

At trial, defendant gave contradictory statements as to when he was told of his wife’s death; the testimony of the deputies who took his statement was also inconsistent on this issue. Assuming, for the sake of argument, that defendant did not know the fatal effect of the wounds he had inflicted upon his wife, and that the interrogating deputies failed to inform him of her death, these facts alone would not compel a conclusion that defendant’s statement was not freely and voluntarily made. The Louisiana Supreme Court has established that the central determination of vol-untariness is whether the statements made are the product of the defendant’s free and rational choice. State v. Richey, 364 So.2d 566 (La.1978); State v. Glover, 343 So.2d 118 (La.1977). Making this determination requires an examination of the totality of the circumstances. Edwards v. Arizona, 451 U.S. 477,101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

Defendant knew at the least that his wife was in extremely serious condition after having been shot by him a number of times at close range. He was aware of the illegal nature of his act, as is evident from his turning himself in to the police. He had been arrested and charged either with suspicion of murder or attempted murder. He was fully informed of his Miranda rights at least three times. Although defendant was emotionally distraught, that clearly did not affect his understanding of his rights. He agreed to make a statement and signed a waiver of rights form.

Defendant does not argue that he did not understand that he had a constitutionally protected right to remain silent, to refuse to make a statement, and that anything he said could be used against him in a criminal prosecution. The record supports the conclusion that the defendant fully understood these rights and the consequences of waiving them. Defendant’s statements were the product of his free and rational choice, despite the fact that he may not have known of the fatal effects of his criminal actions. In light of all of the circumstances, the record supports the trial court’s conclusion that the defendant’s statement was freely and voluntarily made, and thus admissible.

Defendant next contends that his statement was not freely and voluntarily made because one of the deputies improperly influenced his decision by telling him that giving a statement would “make it better on” him.

Both deputies denied ever making such a statement to the defendant. The ruling that the statement was freely and voluntarily made could have been based upon the finding that the deputies’ testimony was more credible than the defendant’s. Moreover, defendant does not contend that the deputies made any specific promises to him in an effort to get him to make a statement. The Louisiana Supreme Court has held that general statements to the effect that an accused would be “better off” if he cooperated by giving a statement are not “promises or inducement designed to extract a confession”, and thus do not render a subsequently given statement or confession inadmissible on the grounds that it was not freely and voluntarily made. State v. Petterway, 403 So.2d 1157 (La.1981).

Defendant’s second argument is also without merit.

For the foregoing reasons, we affirm defendant’s conviction and sentence.

AFFIRMED.

      . In State v. Davis, 162 La. 500, 110 So. 733 (1926), the court inquired as to whether the failure to inform defendant of the fact that his victim was dead was treatment "designed by effect on body or mind to compel a confession”, and determined that under the circumstances, it was not. Thus the defendant's confession was held to be admissible. Determining whether a statement was the product of a defendant's free and rational choice involves a determination of whether the failure to inform, in this instance, was designed to coerce or compel a statement or confession from the defendant.


text:
    STATE of Louisiana v. Robert L. RICHARDSON.
    No. KA 84 0017.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Rehearing Denied Nov. 21, 1984.

      Margaret A. Coon, Asst. Dist. Atty., Cov-ington, for the State.
    David J. Knight, Indigent Defender, Cov-ington, for defendant.
    Before COVINGTON, LOTTINGER and PONDER, JJ.
   LOTTINGER, Judge.

Robert L. Richardson was charged by bill of information with one count of armed robbery in violation of La.R.S. 14:64. Defendant pled not guilty and, after a jury trial, was found guilty as charged. Defendant was subsequently charged and sentenced as a Second Felony Habitual Offender. The court sentenced defendant to be confined in the custody of the Department' of Corrections for a period of thirty-three years without benefit of probation, parole, or suspension of sentence.

Defendant brings this appeal urging eight assignments of error:

1. The court erred in denying defendant’s pre-trial motion to suppress identification.

2. The court erred in denying defendant’s pre-trial motion to suppress evidence.

3. The court erred in denying defendant’s requested jury charge.

4. The court erred in allowing the state to impeach its own witness.

5. The court erred in denying defendant’s motion for a new trial.

6. The court erred in denying defendant’s motion for post-verdict judgment of acquittal.

7. The court erred in sentencing defendant as a multiple offender.

8. Because of patent error on the face of the record, the conviction should be reversed.

On the evening of November 24, 1982, Shirley Speed was working as a cashier at Quickstop Number 4, a store located in Covington, Louisiana. A man came behind the counter where Ms. Speed was working, grabbed her and while holding her at knife point removed money from the cash register and a receipt box.

Summoned by activation of a silent alarm, Covington police officers arrived on the scene some ten minutes after the robbery. Descriptions of the robber were provided police by Shirley Speed and Ronnie Knight, another store employee, who had been sweeping the parking lot while the robbery was in progress. Both Shirley Speed and Ronnie Knight recognized the robber as a store customer on prior occasions, but neither was able to give police his name.

From the descriptions provided by the victim and witness, the police assembled a photo array. A short time later they returned to the store and the photos were shown to Shirley Speed and Ronnie Knight, individually. Defendant, whose picture was one of six in the photo array, was positively identified as the robber by each.

A short time thereafter, defendant was arrested at his residence and transported for booking. Defendant’s residence was later searched pursuant to a consent for search authorized by defendant’s girlfriend/roommate, Loretta Brown.

ASSIGNMENT OF ERROR NUMBER 1

By means of this assignment, defendant urges that the trial judge erred in denying the motion to suppress his identification as perpetrator of the instant crime because the circumstances of an alleged one-on-one confrontation were impermissibly suggestive.

Testimony adduced at the hearing on the motion to suppress indicates that, after closing the Quickstop Number 4 store at about 11:00 p.m. on the night of the robbery, Shirley Speed and Ronnie Knight went to the Covington Police Station to aid the police in preparing a detailed report of the incident unaware that police had already arrested defendant. Both Shirley Speed and Ronnie Knight testified that, as they entered the police station, they immediately recognized defendant who was seated in an adjacent room.

Shortly thereafter, Shirley Speed and Ronnie Knight had further opportunity to observe defendant as he passed near them while being escorted from the police station.

Shirley Speed testified that the police did not draw her attention to defendant nor ask her to identify him. Ronnie Knight’s testimony differed somewhat as he indicated that a police officer did inquire, after defendant was taken outside the station, if defendant was the right man.

From the record, it appears that Shirley Speed’s and Ronnie Knight’s encounter with defendant at the police station is governed by those cases dealing with inadvertent meetings between victim and/or witness and suspects. See State v. Loyd, 425 So.2d 710 (La.1982). There is no indication of impropriety or of police suggestiveness. Both Shirley Speed and Ronnie Knight had previously made immediate and definite identifications of defendant as the robber after examining the photo array. Those identifications were both reliable and admissible. •

Defendant’s contention that the accidental sighting at the police station was prejudicial to his identification lacks merit for it is clear from the record that this sighting was not until after defendant had already been identified from the photographic array. See, State v. Douglas, 389 So.2d 1263 (La.1980).

Moreover, it is the likelihood of mis-identification which violates due process and not merely a suggestive identification procedure. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

In the instant case, the victim observed the robber clearly and at very close range during the armed robbery. The photographic identification occurred within an hour of the offense. The victim’s identification of defendant was unequivocal. Although the witness, Ronnie Knight, was some distance from the actual robbery, he observed the robbery in progress through the store window, and saw the robber at close range as he passed by him when entering the store. Further, he recognized the robber as someone he knew by sight and, independently-, unequivocally identified defendant. Thus, there is no substantial possibility of misidentification due to the inadvertent sighting.

Defendant further argues that his Sixth Amendment right to counsel was violated because he did not have assistance of counsel during the encounter at the police station. Absent special circumstances, the presence of counsel is not even required at a pre-indictment line-up, Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), and the instant situation involved only an inadvertent sighting. Since due process safeguards usually provide adequate protection for a defendant before a formal charge, the right to counsel was explicitly limited in Kirby to a criminal prosecution, which commences only with the initiation of adversary judicial proceedings by formal charge, preliminary hearing, indictment, information or arraignment.

In the present case, the police station encounter was a short time after the robbery. The record does not reveal that defendant had an attorney at that time or that he requested presence of counsel. Moreover, defendant does not assert any special circumstance which would justify an exception to the general rule that the presence of counsel is not required. See State v. Bickham, 404 So.2d 929 (La.1981).

The trial court’s determination that identification testimony was admissible is to be given great weight and should not be disturbed unless a preponderance of evidence mandates. State v. Marchese, 430 So.2d 1303 (La.App. 1st Cir.1983).

Based on the facts, we are of the opinion that the accuracy of the victim’s identification was reliable and therefore properly admissible.

Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2

By means of this assignment, defendant urges that the trial court erred in denying his motion to suppress physical evidence, including defendant’s wallet and cash money, seized as a result of a search of his residence.

Evidence adduced at the hearing on the motion to suppress reveals that following defendant’s arrest, various police officers, including Sgt. Blount, sought permission of defendant’s girlfriend/roommate, Loretta Brown, to search the residence that she shared with defendant.

Loretta Brown testified that she did sign a form before the house was searched, but was not made aware of the contents of that form. She also stated that Sgt. Blount advised her that he already had a search warrant and that she would be in trouble for any failure to cooperate.

Allegations of wrongdoing were expressly refuted by Sgt. Blount who testified that he read the contents of the consent to search waiver to Ms. Brown prior to her signing and otherwise explained that she could deny permission to search. Sgt. Blount also denied having threatened Loretta Brown.

One of the specifically established exceptions to the requirements of both a search warrant and probable cause is a search conducted pursuant to consent. When the state seeks to rely upon consent to justify the lawfulness of a search, it has the burden of proving that the consent was given freely and voluntarily. State v. Ossey, 446 So.2d 280 (La.1984). Voluntariness is a question of fact to be determined by the trial judge under the facts and circumstances surrounding each case.

Because consent is a question of fact involving credibility of the witnesses, the determination of the trial judge, who had an opportunity to observe and hear the witnesses, is given great weight on review. Id.; State v. MacDonald, 390 So.2d 1276 (La.1980); State v. Wright, 441 So.2d 1301 (La.App. 1st Cir.1983).

We find the trial judge properly analyzed the totality of the circumstances and correctly denied the motion to suppress ruling that the seized items, which included defendant’s wallet and some cash money, were obtained after a valid consent. The assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER 3

As assignment of error number three, defendant contends that the trial judge erred in refusing to give a special requested jury charge concerning misidentification.

It is the duty of the trial judge to give a requested charge, which does not require qualification, limitation, or explanation and is not included in the general charge or in another special charge to be given, if it is wholly correct and pertinent to the case. La.Code Crim.P. art. 807; State v. Shilling, 440 So.2d 110 (La.1983).

The record reflects that the trial judge properly instructed the jury to consider witnesses’ abilities and opportunities to observe in determining the credibility of testimony relating to identification and weight to be given to such testimony.

Defendant’s requested special charge was sufficiently included in the general charge given by the court. State v. Foy, 439 So.2d 433 (La.1983). Moreover, the fallibility of eye witness identification was argued orally to the jury. Thus, the trial court did not err in refusing to give this charge to the jury, and as such, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER 4

By this assignment of error, defendant argues that it was error for the trial court to allow the state to impeach the testimony of its own witness, Loretta Brown, by means of prior inconsistent statements.

At trial on the merits, on direct examination, the state claimed surprise as the result of the following colloquy:

Q. Now did he (defendant) tell you anything when he handed you that money?
A. No, he did not.

The jury was then retired during which time the state sought to establish a predicate to show surprise and lay a foundation for proof of prior inconsistent statements.

Ms. Brown’s attention was drawn to the existence of a taped statement made by her at the police station on November 24,1982.

Ms. Brown denied having given a taped statement and the relevant portion of the taped reply to police questioning was played back, providing in pertinent part: “[w]hen he came back, he had some money, and I asked him where he got the money from and he told me he wasn’t going to tell me because I talk to [sic] much.”

The state again claimed surprise when Ms. Brown denied that she had said defendant was wearing a hat when he left their house on the night of the robbery. The state expanded its basis for seeking impeachment by claiming that Loretta Brown was a hostile witness arguing:

She [Loretta Brown] had admitted talking to defense counsel. She is obviously a hostile witness. She is living with the man [defendant]. She doesn’t want to be here today.

The trial judge then ruled that the state had a right to impeach the witness’ testimony in front of the jury, and the jury was returned into open court.

Ms. Brown then testified consistently with her taped reply with respect to the source of the money, but maintained that defendant was not wearing a cap, and was wearing a plaid coat when he left their home on the night of the robbery. She also maintained that she had not stated otherwise when she gave a taped statement to the police.

Relevant portions of the taped statement, where Ms. Brown had described defendant’s clothing inconsistently with her trial testimony, were played for the jury.

La.R.S. 15:487 provides that one may impeach his own witness with prior inconsistent statements if taken by surprise by the testimony of such witness, or if the witness shows hostility toward him.Therefore, either surprise or hostility will permit impeachment by prior inconsistent statements, and both need not be present. State v. Edwards, 419 So.2d 881 (La.1982).

Ms. Brown’s hostility toward the state is evidenced by the record. Her answers concerning the night of the robbery were evasive, often denying that she made the answers attributed to her in the taped statement. Her hostility to the state is further evidenced by her relationship with defendant, with whom she was still residing at the time of trial. Thus, it was not improper to allow her to be impeached when she testified to facts directly contrary to her prior taped statement.

Defendant further contends that the manner of impeachment was improper. Defendant argues that once the witness admitted that she had made the prior inconsistent statements it was error for the state to present the detailed contents of those statements before the jury.

La.R.S. 15:493 provides the guidelines for admissibility of a prior contradictory statement. In the instant case, contrary to defendant’s contention, it was not until after the relevant portion of the tape had been played that Ms. Brown admitted making any particular statement.

Prior inconsistent testimony is relevant only to a witness’ credibility and is not to be used as substantive evidence of the defendant’s guilt. The jury is better able to assess a witness’ credibility by having access to his prior self-contradictory statement.

In the instant case, it was introduced after a proper predicate had been laid in which Loretta Brown was given an opportunity to admit, deny or explain the facts therein. Accordingly, the court properly admitted into evidence the relevant portions of the taped statement given by the witness to police officers, as she had not admitted making, in substance, those prior inconsistent statements.

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NUMBERS 5 AND 6

By means of Assignment of Error Number 5, defendant urges that the trial judge erred by failing to grant defendant’s motion for a new trial based on three grounds.

The second ground argued in the overruled motion formed the basis for Assignments of Error Numbers 1 and 2. Accordingly, a new trial is not justified for reasons fully set forth in our discussion of each of those assignments of error.

The third ground is made pursuant to La.Code Crim.P. art. 851(5). Where the defendant’s motion for a new trial is based on La.Code Crim.P. art. 851(5), allowing the trial court to consider the weight of the evidence, the granting or denial of a new trial is not subject to review by the appellate courts. La. Const, art. V, § 10(B); La.Code Crim.P. art. 858; State v. Bell, 442 So.2d 715 (La.App. 1st Cir.1983), writ denied, 444 So.2d 1244 (La.1984).

Only the weight of the evidence, and not the legal insufficiency of the evidence (the first ground urged herein) can be reviewed by the trial judge in a motion for new trial under La.Code Crim.P. art. 851. State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983). If the trial judge finds the evidence legally insufficient, he must do so under La.Code Crim.P. art. 821. See, State v. Korman, supra.

Defendant argues that the state failed to prove his identity as the perpetrator of the instant offense. By means of Assignment of Error Number 6, defendant cites the same basis as providing error from denial of his motion for post-verdict judgment of acquittal, filed pursuant to La.Code Crim.P. art. 821.

Where the key issue is defendant’s identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification. State v. Long, 408 So.2d 1221 (La.1982); State v. Thomas, 439 So.2d 629 (La.App. 1st Cir. 1983).

After viewing the entire record of evidence received at trial, we find that the state proved each element of the crime, and negated any reasonable probability of mis-identification beyond a reasonable doubt. La.Code Crim.P. art. 821; State v. Long, supra.

To prove that it was defendant who committed the crime, the state presented evidence of Shirley Speed’s and Ronnie Knight’s identification of defendant in a photographic lineup, an in-court identification of defendant by each eye-witness, and evidence that a short time after the crime defendant gave his girlfriend a sum of cash money from an unidentified source.

Defendant attempted to rebut the evidence with alibi testimony, provided by relatives and friends, that he was either at his mother’s house or outside the Ponderosa Bar around the time of the robbery. However, this testimony also placed defendant in the vicinity of Quick Stop Number 4 near the time of the robbery.

To explain the cash money found at his home, defendant testified that he derived it from gambling on Sunday or Monday before the robbery, which occurred on a Wednesday. One of the defendant’s friends testified as to a gambling incident but recalled it had occurred in early November.

Defendant also offered as his witness a St. Tammany Parish deputy sheriff, who had known defendant since 1975, and testified that a man other than defendant wanted for armed robbery in another case, looks exactly like defendant.

The jury’s verdict indicates that after considering the credibility of the witnesses and weighing the evidence it accepted the testimony of Shirley Speed and Ronnie Knight.

Where there is conflicting testimony about factual matters, the resolution of which depends on a determination of credibility of the witnesses, this is a matter of the weight of the evidence, not its sufficiency. State v. Norman, 448 So.2d 246 (La.App. 1st Cir.1984).

The trier of fact may accept or reject, in whole or in part, the testimony of any witness. Id, For the foregoing reasons, these assignments of error are without merit.

ASSIGNMENTS OF ERROR NUMBER 7

Defendant contends that the trial judge erred in adjudging him a second felony offender. In bringing this argument, defendant urges that the documents introduced to prove the predicate felony were inadmissible hearsay; and that the state failed to offer competent evidence that the guilty plea which formed a basis of the predicate conviction was knowing and voluntary.

The contention that there was inadequate or incompetent proof tendered to establish the predicate felony conviction is without merit.

In order to prove defendant is an habitual offender, the state need establish by competent evidence that there is a prior felony conviction and that the defendant is the same person who was convicted of the prior felony. State v. Chaney, 423 So.2d 1092 (La.1982). Prima facie proof of a prior felony conviction may be established by compliance with La.R.S. 15:529.1 subsection F. Nevertheless, jurisprudence has additionally provided that necessary facts which permit enhanced punishment may be proved by other competent evidence. State v. Curtis, 338 So.2d 662 (La.1976).

To establish the predicate felony conviction in the instant case, the state introduced certified copies of a bill of information, sentence, and committment of Robert L. Richardson, Jr. from the Twenty-fourth Judicial District Court of the Parish of Jefferson, the conviction trial court.

These documents are admissible under the traditional public documents exception to the rule against hearsay. See State v. Nicholas, 359 So.2d 965 (La.1978).

The exception is founded primarily upon the presumption that an individual entrusted with a duty [such as a clerk of court] will do his duty and make a correct statement ... [Moreover] ... the usual hearsay requirement that the de-clarant [here the custodian of the court records]12 ... be shown to be unavailable, is dispensed with, largely because of the public inconvenience that would otherwise result from the disruption of public business to be occasioned by the continual summoning of public officers to prove routine facts reflected by their records with a high probability of accuracy. [footnote omitted] 359 So.2d at 968, 969.

Once the state establishes a prior felony conviction, it must offer proof that the accused is the same person who was convicted of the prior felony. State v. Curtis, supra.

In the instant case, the probation officer who supervised defendant’s probation in connection with the July 17, 1980, conviction testified that defendant was the same person whom she had supervised.

Defendant also testified at the instant trial for armed robbery admitting in substance to the predicate felony conviction in Jefferson Parish, Louisiana.

The trial court has a right in an habitual offender proceeding to take judicial cognizance of any prior proceeding which was part of the same case he had previously tried. State v. Martin, 400 So.2d 1063 (La.1981) on rehearing; State v. Jones, 332 So.2d 461 (La.1976). The copies of the Twenty-fourth Judicial District Court records and cognizance of defendant’s admission of his previous conviction during his trial were adequate proof of the prior felony conviction.

The state also introduced a certified copy of defendant’s acknowledgement of constitutional rights and waiver of rights on en- . try of a plea of guilty, executed by defendant, his attorney, and the judge, and transcript of plea of guilty.

Defendant did not contend in the trial court that there had not been a proper waiver of his full Boykin rights on the predicate felony; but rather, that the documents offered by the state were not properly authenticated.

In State v. Nelson, 379 So.2d 1072 (La.1980), the Louisiana Supreme Court noted that:

[W]ith respect to a conviction based on a guilty plea in a Louisiana court subsequent to December 8,1971, if the defendant objects to the predicate for the state’s evidence that the guilty plea was knowing and voluntary, the state has the burden of showing affirmatively a contemporaneous record that, at the time of the plea, the accused was informed of and made a knowing waiver of his privileges against self-incrimination, his right to a jury trial, and his right of confrontation. If the defendant does not object on this ground, the state, in order to establish the knowing and voluntary guilty plea, is required only to prove that the prior conviction resulted from the defendant’s guilty plea at which he was represented by counsel, [emphasis added] 379 So.2d at 1074.

Accordingly, the waiver of rights form authenticated by signature and seal of a deputy clerk of court for the Twenty-fourth Judicial District Court and admissible by virtue of the public documents exception to the hearsay rule, discussed more fully above, satisfied the state’s burden.

The assignment of error is, therefore, without merit.

ALLEGATION OF ERROR BRIEFED BUT NOT FORMALLY ASSIGNED (ARGUMENT 8 IN BRIEF)

By means of this argument, defendant urges an additional error which appears for the first time in his brief. Defendant contends that his sentence of 33 years at hard labor without the benefit of probation, parole, or suspension of sentence is excessive.

As an habitual offender, whose second felony conviction was for armed robbery, defendant’s sentencing exposure was from a minimum period of incarceration of 33 years at hard labor without benefit of probation, parole or suspension of sentence to a maximum sentence of 198 years imprisonment at hard labor without benefit of probation, parole or suspension of sentence. La.R.S. 14:64; La.R.S. 15:529.1(A)(1).

Defendant was sentenced to the statutorily mandated minimum period of incarceration. La.R.S. 15:529.1, which provides enhanced penalties for multiple offenders based on repetition of criminal conduct, has been upheld against attacks that it deprived the trial judge of control over sentencing. See, State v. Lawson, 410 So.2d 1101 (La.1982). La.R.S. 15:529.1 is a valid limitation on the sentencing considerations listed in La.Code Crim.P. art. 894.1. Id.

Accordingly, this argument lacks merit.

ASSIGNMENT OF ERROR NUMBER 8 (NUMBER 9 IN BRIEF)

This assignment designates as error all errors patent on the face of the record. There being none, this assignment is without merit.

Therefore, the conviction and sentence are affirmed. AFFIRMED.


text:
    STATE of Louisiana v. Robert MATTHEWS.
    No. 84 KA 0395.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Rehearing Denied Nov. 21, 1984.

      William G. Carmichael, Clinton, for plaintiff-appellee.
    Ernest Lee Caulfield, New Orleans, for defendant-appellant.
    Before COLE, CARTER and LANIER, JJ.
   CARTER, Judge:

Defendant, Robert Matthews, was charged by grand jury indictment with the second degree murder of Jimmy Charles in violation of LSA-R.S. 14:30.1. After pleading not guilty, defendant was tried by a jury and found guilty as charged. He received the mandatory sentence of life imprisonment without benefit of probation, parole or suspension of sentence. Defendant appeals his conviction, alleging five assignments of error.

FACTS

On the night of June 25, 1983, a confrontation occurred in East Feliciana Parish between defendant, Robert Matthews, his brother Raymond Matthews, and Hollis El-zey on one side and Jimmy Charles, the decedent, on the opposite side. Jimmy Charles had been living common-law with Mary Elzey, mother of Hollis Elzey. At approximately 9:00 p.m. on the night of the confrontation, Jimmy Charles went to Raymond Matthews’ home and pulled Theresa Elzey, a fifteen-year-old female, out of the house. He drove her around for awhile and then released her on the streets of Clinton, Louisiana. Shortly thereafter, Jimmy Charles armed himself with a .38 caliber revolver and around 10:30 p.m. met Hollis Elzey, Raymond Matthews, and defendant, Robert Matthews, at the American Legion Club and Tucker’s Liquor Store in Clinton, Louisiana.

Raymond, Robert, and Hollis had apparently learned of the events concerning Theresa, and a heated argument occurred. Hollis Elzey and Jimmy Charles exchanged words, and a fight subsequently ensued resulting in Jimmy Charles shooting Hollis Elzey five times and Jimmy Charles being shot and killed by Robert Matthews.

The state contends that Robert Matthews, Raymond Matthews, and Hollis El-zey conspired to and actually carried forth with their plan to kill Jimmy Charles. The defendant maintains that the homicide was justifiable in self-defense and/or in defense of others.

Shortly after defendant’s arrest on June 26, 1983, his account of the events which led to the shooting are as follows:

On June 25, 1983 at around 10:30 p.m. I was at home and Elaine and Ola Mae came to the house and told me that Jimmy Charles [the victim], Hollis Elzey and Raymond Matthews were around at James Wilson’s place [a grocery store] arguing and wanted me to go around there and talk to them, so me and my wife went to James Wilson’s place and when I arrived Hollis and Raymond were in the street talking to Calvin Befley. Hollis said he was going over to talk to Jimmy Charles who was standing near the ice machine in front of James Wilson’s place and Raymond got a 12 gauge shotgun and shood (sic) it up against a truck parked in front of the American Legion [Club] and I was standing next to the shotgun. Raymond then waled [sic] over to where Jimmy Charles and Hollis was. Raymond stayed over there for approximately 5 to 10 minutes then started walking back towards where I was and I saw Jimmy Charles and Hollis arguing. Then Hollis turned and walked away from Jimmy Charles and then Jimmy Charles started shooting at Hollis with a 38 caliber pistol. I picked up the shotgun and shot Jimmy Charles after Hollis (my brother-in-law) fell to the ground. Raymond is my brother.

However, defendant, in his testimony at trial, denied that Raymond Matthews had brought the shotgun to the scene and placed it against the truck prior to the shooting. Defendant testified that when the shooting began, he fell to the ground and “the gun was there.” He could not explain how the gun came to be by the truck.

Richard Davis, the owner of the American Legion Club, gave the following account of the events which led to Charles’ death: When defendant reached the scene, Hollis and Raymond were already there. The three men (defendant, Hollis, and Raymond) conversed for a short period of time. Hollis and Raymond walked over to the victim who was in front of the grocery store near the ice machine. Hollis began talking to the victim and hitting on the ice machine. During the course of the conversation, the defendant positioned himself behind the bed of a truck. Defendant then armed himself with a pistol and aimed it in the direction of the three men. Hollis and Raymond then walked a short distance away from the victim, and Raymond handed defendant the shotgun saying, “Take this. You might miss him with that little ole (sic) pistol.” Defendant put away the pistol and aimed the shotgun over the bed of the pickup truck in the direction of Jimmy Charles. Hollis and Raymond then walked back to where Jimmy Charles was standing, and Jimmy Charles then drew the pistol and shot Hollis. Defendant then shot Jimmy Charles with the shotgun.

Other witnesses testified that defendant had aimed a pistol at Jimmy Charles and that Raymond had placed the shotgun near defendant. Another version noted that pri- or to the shooting, Hollis Elzey hit Jimmy Charles several times with his fist and once with a coke bottle.

ASSIGNMENTS OF ERROR

Defendant-appellant, Robert Matthews, relates the following assignments of error:

1. The jury erred in finding the accused guilty in that it failed to properly apply LSA-R.S. 14:18; 14:20; 14:21; and, 14:22;
2. The jury erred in finding the accused guilty in that the verdict is contrary to the law and the evidence;
3. The court as a matter of law erred in failing to grant a judgment of acquittal notwithstanding the verdict because the accused could not possibly be found guilty if the jury had properly applied LSA-R.S. 14:18; 14:20; 14:21; -and 14:22;
4. The court as a matter of law erred in failing to grant a new trial; and,
5. The jury and the court erred under the rule of Jackson v. Virginia and LSA-C.Cr.P. art. 804 and LSA-R.S. 15:271 in that they did not require the state to prove beyond a reasonable doubt that the accused was not acting in self-defense and in defense of another as authorized by law.

Defendant, in support of his assignments of error, advances two specific arguments. First, defendant contends that the state’s evidence was insufficient to sustain the conviction of defendant on the charge of second degree murder. The second argument advanced by defendant is that the homicide was justified because it was done in self-defense as a result of the aggressive actions of the victim.

A defendant, who has been indicted for homicide and asserts that he acted in self-defense of himself or another, does not assume any burden of proof whatsoever on that issue; the state has the entire and affirmative burden of proving beyond a reasonable doubt that a homicide was felo-niously committed and was not perpetrated in self-defense or in defense of another. LSA-R.S. 14:20, 22; State v. Patterson, 295 So.2d 792 (La.1974); State v. Pittman, 428 So.2d 979 (La.App. 1st Cir.1983), writ denied, 433 So.2d 155 (La.1983); cert. denied. — U.S. —, 104 S.Ct. 122, 78 L.Ed.2d 120 (1983).

In State v. Brockington, 437 So.2d 994, 996-997 (La.App. 3rd Cir.1983), our brethren of the Third Circuit summarized the jurisprudence on self-defense as follows:

A homicide is justified as self-defense only if a person using such force reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that deadly force is necessary to save his life. State v. Guinn, 319 So.2d 407 (La.1975).
An aggressor or one who brings on difficulty, as a general rule, cannot claim the right of self-defense unless he withdraws from the conflict in good faith and indicates his intention of abandoning the difficulty. State v. Stroud, 198 La. 841, 5 So.2d 125 (1941); State v. Leslie, 167 La. 967, 120 So. 614 (1929); La.R.S.' 14:21. Where doubts exist as to whether the accused was an aggressor, the possibility of retreat is only one of many factors for the jury to consider in determining whether the defendant has a reasonable belief that the killing was necessary. State v. Collins, 306 So.2d 662 (La.1975).

In the instant case, the state presented evidence that defendant accompanied Hollis and Raymond when they confronted the victim, that prior to this confrontation defendant armed himself with a pistol and took cover behind a parked truck, that defendant subsequently armed himself with a shotgun, and that Hollis Elzey struck the victim thereby instigating the ensuing violence.

At trial, defendant denied that he had a pistol and denied that Raymond had brought the shotgun to the scene. Defendant maintained that just prior to the shootings Raymond and the victim shook hands. Immediately thereafter, Raymond and Hollis turned to walk away from the victim. The victim then shot Hollis. Based on this scenario, defendant argues that the evidence was insufficient to sustain his conviction.

When reviewing the sufficiency of evidence, it must be determined whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. LSA-C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983). However, where there is conflicting testimony about factual matters, the resolution of which depends on a determination of the credibility of the witness, this is a matter of the weight of the evidence, not of sufficiency. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); State v. Kent, 434 So.2d 1258 (La.App. 1st Cir.1983), writ denied, 440 So.2d 727 (La.1983). A determination of the weight of the evidence is a question of fact. Korman, 439 So.2d at 1101. This Court has no appellate jurisdiction to review questions of fact in appeals in criminal cases. La. Const, of 1974, art. V, § 10(B). A determination of the weight of the evidence rests solely in the sound discretion of the trier of fact and is not reviewable on appeal. Korman, 439 So.2d at 1101.

In the instant case, the facts are in dispute. The jury’s verdict indicates that it chose to believe the evidence presented by the state, rather than that presented by defendant, and concluded, based on the facts as outlined by the state and after consideration of LSA-R.S. 14:18-22, that defendant could not avail himself of the defense of self-defense or defense of another. The evidence is sufficient to prove the offense charged.

We find no merit in any of defendant’s assignments of error.

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED.

COLE, J., concurs.