author: LOBRANO, Judge.

text:
    STATE of Louisiana v. Johnny NELSON.
    No. KA-0782.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John H. Craft, Asst. Dist. Atty., New Orleans, for appellee.
    Dwight Doskey, Frank Larre, Orleans Indigent Defender Program, New Orleans, for appellant.
    Before LOBRANO, CIACCIO and WARD, JJ.
   LOBRANO, Judge.

Appellant, Johnny R. Nelson, was charged by bill of information with the April 9, 1982, armed robbery of Raphael and Juan Suarez in violation of R.S. 14:64. On January 4, 1983 a twelve person jury found him guilty as charged. He was sentenced to serve ninety-nine years at hard labor without benefit of parole, probation or suspension of sentence. He was also given a two year sentence to be served consecutively for violation of La.R.S. 14:95.2. The trial court subsequently amended the sentence by withdrawing the time imposed under R.S. 14:95.2.

FACTS:

On April 9, 1982, two men entered the auto parts store of Raphael and Juan Suarez, Uptown Auto Parts, Inc., located at the corner of Washington Avenue and Magazine Street. One of the men drew a gun, pointed it at the head of Juan Suarez, and demanded money. They were given $37.00 from the cash register (twenty-two one dollar bills, a five and a ten dollar bill) as well as approximately $1,300.00 in a bank bag that had been prepared for deposit. The men then threatened to shoot the victims if they followed them. They then fled the store with both brothers giving chase. Appellant turned and shot at Juan Suarez. Police Officers joined in the chase, sealed off the block and began searching the yards, one by one. During their search, the police heard a noise in the alleyway between 2705 and 2707 Chippewa St. They entered the alley, which was cluttered with garbage and abandoned appliances, and observed appellant hiding in a corner in the rear of the alleyway. He attempted to break away and climb a fence but the officers subdued him. He was led out of the alley and was identified by Raphael Suarez as the man who held the gun and robbed the store. The subsequent search for the gun proved to be fruitless. A search of appellant yielded $37.00 from his pocket, consisting of twenty-two ones, one five and a ten dollar bill all facing the same direction. Neither the bank bag with the $1,300.00 nor the other assailant were ever found.

SUFFICIENCY OF EVIDENCE

Although appellant does not allege as an assignment of error the sufficiency of the evidence to support his conviction, such will be reviewed in accordance with State v. Raymo, 419 So.2d 858 (La.1982).

In cases where direct evidence is used to prove the defendant’s guilt, the reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state had proven every element of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306, 310 (La.1982).

In order to support appellant’s conviction for armed robbery, the state had to prove that he committed (1) a theft; (2) of anything of value; (3) from the person of or in the immediate control of another; (4) by use of force or' intimidation; (5) while armed with a dangerous weapon.

In the instant case, $37.00 was taken from the cash register of the victims and $1,300.00 in a bank bag. The robbers used a gun during the robbery to force and intimidate the victims to hand over the money. Appellant was identified by the victims as the man who held the gun during the robbery and who shot at Juan Suarez during the ensuing chase. When apprehended, moments later, appellant was found with $37.00 in his pocket, consisting of the exact number and denominations of the cash taken from the register. Further the victims identified the cash because all the bills were facing the same way exactly as they were placed in the register previously.

Therefore, viewing the evidence in the light most favorable to the prosecution, the jury could have found that the State proved all the elements of armed robbery beyond a reasonable doubt. State v. Boelyn, 432 So.2d 260 (La.1983); State v. Bruins, 407 So.2d 685 (La.1981); State v. Tucker, 405 So.2d 506 (La.1981).

For the foregoing reasons, appellant’s conviction is affirmed.

ASSIGNMENT OF ERROR:

Appellant asserts one assignment of error:

The trial court erred in imposing an excessive sentence.

Appellant was sentenced to ninety-nine (99) years at hard labor without benefit of parole, probation, or suspension of sentence.

Appellant argues that in respect to the circumstances of his offense, the sentence imposed is excessive.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-prong. First, the record must show that the trial court took cognizance of the criteria set forth in C.Cr.P. Art. 894.1 in determining the sentence. Second, the reviewing court must then determine whether the sentence imposed is too severe given the circumstances of the case and the background of the defendant.

Article 894.1 sets forth eleven criteria to be used by the trial court in determining its sentence. It is not necessary that there be a full recitation by the trial court of the factors listed in Art. 894.1 in its reasons for sentence as long as there is evidence elsewhere in the record that the factors have been considered and that the sentence was tailored to fit the particular defendant and his particular crime. State v. Soco, 441 So.2d 719 (1983); State v. Telsee, 425 So.2d 1251 (La.1983); State v. Robinson, 423 So.2d 1053 (La.1982); State v. Bradley, 414 So.2d 724 (La.1982); State v. Washington, 414 So.2d 313 (La.1982).

In the instant case, the trial court judge noted the crime for which appellant' was convicted and the fact that appellant fired his gun at one of the victims and threatened to shoot both victims. He noted that at the time of this robbery, appellant was on probation from a Florida conviction for “assault to commit robbery”.

The judge determined that none of the mitigating factors listed in Art. 894.1 applied to this case. The judge concluded by noting that a lesser sentence would deprecate the seriousness of appellant’s crime.

Thus, while the trial judge did not enumerate every factor listed in Art. 894.1, it is clear that he was aware of these factors and considered them before imposing sentence. Having determined that the trial judge complied with Article 894.1 in sentencing the defendant, we must determine whether that sentence is excessive under Article 1, Section 20 of the 1974 Louisiana Constitution. Such a review is proper even though the sentence is within statutory limits. State v. Soco, supra; State v. Guajardo, 428 So.2d 468 (La.1983); State v. Telsee, supra. Here, the trial court used its great discretion in sentencing defendant to the maximum term of 99 years citing several factors including his prior conviction in Florida and the fact that defendant actually took a shot at one of the victims. We find no abuse of that discretion and agree that any lesser sentence would deprecate the seriousness of the crime.

For the reasons assigned herein, appellant’s conviction and sentence are affirmed.

AFFIRMED.

      . R.S. 14:64
      A. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
      B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence.

      . R.S. 14:95.2
      Notwithstanding any other provisions of law to the contrary, any person who uses a firearm or explosive device at the time he commits or attempts to commit the crime of second degree murder, manslaughter, aggravated battery, simple kidnapping, aggravated escape, aggravated burglary, or aggravated arson or attempted aggravated rape, attempted first degree murder or attempted aggravated kidnapping shall upon conviction serve a term of two years imprisonment for the first conviction and upon conviction for each second and subsequent offense listed in this Section, he shall serve a term of five years imprisonment. The penalty provided herein shall be in addition to any other penalty imposed under the provisions of this Title and such person shall serve the additional term of imprisonment without benefit of parole, probation, suspension of sentence or credit for good time and any adjudication of guilt or imposition of sentence shall not be suspended.

      . R.S. 14:67

      Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently or whatever may be the subject of the misappropriation or taking is essential.

      . The trial court stated that the evidence and record sets forth affirmative answers to sections B(l), (2), (7), (8) and (9), and negative answers to (3), (4), (5), (6) and (10).


source: Caselaw Access Project

author: WARD, Judge.

license: Public Domain

text:
    Audrey Mae MUSE v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. CA 1202.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.
    Writ Denied June 1, 1984.

      Floyd F. Greene, New Orleans, for defendant-appellee, New Orleans Public Service, Inc.
    Matthew B. Collins, Jr., Schafer & Schafer, New Orleans, for plaintiff-appellant, Audrey Mae Muse.
    Before REDMANN, GARRISON and WARD, JJ.
   WARD, Judge.

Audrey Muse fell and injured her left ankle as she was leaving a New Orleans Public Service bus at the corner of Du-maine and North Miro Streets. Ms. Muse filed suit against NOPSI and requested a. jury trial. At the close of her case, NOPSI moved for a directed verdict, and the Trial Judge granted it. Ms. Muse appeals that verdict.

We reverse in light of the facts and the law.

To prove her case, Ms. Muse presented three witnesses: herself; the driver of the bus; and her treating physician. She testified that she was a school teacher, riding the bus to work on the morning of the accident. Although she usually rode to school in a co-worker’s automobile, she rode the bus to work “ten or fifteen times a year” and on those occasions she got off at the North Miro and Dumaine bus stop where the accident occurred. On the morning of the accident, a car was parked in the bus stop zone, making it impossible for the driver to pull the bus to the curb, and the driver stopped and let Ms. Muse and other passengers off in the street, a car’s width or about ten feet from the curb. Ms. Muse was carrying a purse and a school bag with a shoulder strap, leaving one hand free as she stepped from the bottom step of the bus onto the street. She testified the heel of her shoe caught in an “indented space in the street”, and she fell, injuring herself.

The driver of the bus, Woodrow Manego, was called by Ms. Muse as a witness under the rule of court which permits cross-examination of adverse parties and their agents. He had been a NOPSI driver for fourteen years. At the time of Ms. Muse’s accident, he had been driving the same route about two months and his recollection was that the accident occurred during his second trip on the route that morning. He also recalled that he was unable to pull the bus completely to the curb because of the parked automobile and that the street was “bumpy”. However, he testified that there were no holes where the passengers disembarked and that, “[he] picked that spot because it was the safest part of the street without going into the intersection and staying as close to the auto as possible.” Additionally, he testified that Ms. Muse had taken two or three steps after leaving the bus before she fell.

Ms. Muse called only one other witness, Dr. Calvin M. Johnson, who testified as to her injuries. After she rested her case, NOPSI moved for a directed verdict and the Trial Judge granted it. We believe the Trial Judge erred.

Campbell v. Mouton, 373 So.2d 237 (La. App. 3rd Cir.1979), set the standard for directed verdicts which has been recognized by other Louisiana appellate courts:

[The statute allows] the judge to conclude the litigation (in a jury trial) if the facts and inferences are so overwhelmingly in favor of the moving party that the court believes that reasonable men could not arrive at a contrary verdict.

The court, in Campbell, also approved the Federal standard, quoting Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969):

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

The question in this case, however, is not the standard to be applied, but whether the evidence or lack of evidence supports a directed verdict. When considering the evidence before granting the directed verdict, the Trial Judge stated:

plaintiff has not proven his [sic] case from the evidence that is required in order to prove a ease of this type, and a directed verdict is issued that the negligence of Public Service is not shown in that instance.

We, however, believe that before the Trial Judge grants a directed verdict he must first consider the applicability and consequences of the presumption that a public carrier is negligent when a fare-paying passenger is injured.

Courts have consistently held that a common carrier operating a public conveyance owes a special duty to its fare-paying passengers. Because of this special duty, a carrier is presumed negligent when a passenger proves an injury occurred while she was under the care of the public carrier. This presumption shifts the burden to the carrier to prove that it was not negligent. Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963); McDermott v. New Orleans Public Service, Inc., 420 So.2d 993 (La.App. 4th Cir.1982). In this instance, when Ms. Muse proved she was a fare-paying passenger, and injured while under the care of NOPSI, the presumption of negligence has the procedural consequences of shifting the burden to NOPSI to prove that it was not negligent.

And, as a result of the shifting of the burden of proof, Ms. Muse was relieved of the obligation of proving negligence. Ms. Muse, therefore, proved all that was necessary to defeat NOPSI’s motion for a directed verdict.

This is not to say NOPSI would never be entitled to a directed verdict at the close of the plaintiffs ease. It may of course be entitled to one if the plaintiff’s case in chief showed that she was not a fare-paying passenger, or that she was not in fact injured, or that the injury occurred after she reached her destination, etc. — all facts which would destroy the presumption which insulates the plaintiff from a directed verdict at the close of her case.

Reversed and remanded for a new trial.

New Orleans Public Service, Inc. must pay the cost of this appeal.

REVERSED AND REMANDED.


text:
    Melvin Jean BALDWIN v. SCHWEGMANN GIANT SUPER MARKETS, INC.
    No. CA-1406.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.
    Writ Denied June 1, 1984.
    Ralph S. Johnson, New Orleans, for defendant-appellant Schwegmann Giant Super Markets, Inc.

      J. Paul Demarest, Pavret, Favret, De-marest & Russo, New Orleans, for plaintiff-appellee Melvin Jean Baldwin.
    Before WARD, CIACCIO and LOBRA-NO, JJ.
   WARD, Judge.

Melvin Jean Baldwin sued Schwegmann Giant Super Markets, Inc. for damages sustained when she slipped and fell when entering Schwegmann’s store. After trial before the bench, the Trial Judge found Ms. Baldwin’s injury was caused 70% by the negligence of Schwegmann and 30% by her own negligence, and he awarded Ms. Baldwin $15,498.05 for:

Lost Wages $ 2,780.80
Medical Expenses $ 718.05
General Damages $12,000.00

Both parties appeal the judgment. Schwegmann contends it exercised reasonable care to protect its customers from injury and that the Trial Judge erred in finding it negligent. Ms. Baldwin appeals the 30% reduction in her damage award, asserting that there is no evidence that she was negligent. She also contends that the award for lost wages and for general damages is inadequate and seeks an increase.

The record shows that on Saturday, July 31, 1982, at approximately ten o’clock in the morning, Ms. Baldwin went to the Schwegmann’s store on the Westbank Expressway near her home in Harvey. It had been raining for quite some time. Holding her closed umbrella to her left side, Ms. Baldwin walked through the door into the store. As she stepped from the door mat onto the wet floor, she fell onto her right side, injuring her head, right shoulder, and arm. Schwegmann employees came to Ms. Baldwin’s aid and helped her to a back room in the store. Her mother was called and immediately took her to West Jefferson Hospital.

Ms. Baldwin first consulted Dr. Mark Juneau, an orthopedic surgeon, the following Tuesday. He diagnosed her injury as a break in the right humerus near the shoulder joint. Ms. Baldwin’s arm was immobilized in a sling for three weeks, after which the arm gradually regained its strength and full range of motion. Dr. Juneau discharged Ms. Baldwin from his care on October 27, 1982. He testified that she had no permanent disability, but she did consult him once in December of 1982, complaining of continuing aching pain in her arm.

NEGLIGENCE

A storekeeper in Louisiana owes a duty of reasonable care to those who come on his premises. While Schwegmann is not the insurer of the safety of its customers and need not keep its floors and entranceways in perfect condition, it must exercise ordinary care and prudence to provide reasonably safe conditions. In rainy weather, a standard of reasonable care may require extraordinary precautionary measures, including warnings to customers and continuous inspection and cleanup procedures to prevent dangerous accumulations of water near entranceways.

When a store’s customer steps in a foreign substance, causing her to slip and fall and injure herself, a presumption arises that the store has breached its duty of reasonable care. The evidentiary burden shifts to the defendant to exculpate itself from the presumption that it was negligent. Kavlich v. Kramer, 315 So.2d 282 (La.1975); Smith v. Winn-Dixie Stores of Louisiana, Inc., 389 So.2d 900 (La.App. 4th Cir.1980).

The Trial Judge concluded, and we agree, that Ms. Baldwin made the necessary showing to shift the burden to Schwegmann to exculpate itself when she proved there was some water on the floor where she fell. She proved it was a busy Saturday morning at the supermarket and people were tracking rain water into the store and entering carrying dripping umbrellas. She testified that after she was helped up from the spot where she had fallen her dress was wet from water on the floor. The Trial Judge found, and Schweg-mann does not dispute, that the water on the floor caused Ms. Baldwin to slip and fall.

Nonetheless, Schwegmann contends that it rebutted the presumption of negligence by showing that it exercised reasonable care in protecting its customers from the dangers of slippery floors due to tracked-in rain water:

1. Schwegmann’s employees placed mats inside the doors where customers entered the store.

2. A porter was stationed beside the doors and mopped up the water after customers entered. He testified that he had mopped the area where Ms. Baldwin fell immediately before the accident.

3. Schwegmann’s employees were taping sheets of cardboard onto the floor in the entrance area to absorb excess water when Ms. Baldwin entered, although cardboard had not yet been placed on the spot where she fell.

Schwegmann contends that these precautions were adequate and reasonable under the circumstances and to require more would impose an unreasonable standard of care, making it, in effect, the insurer of its customers’ safety.

The Trial Judge gave no written reasons for his judgment concluding Schwegmann was negligent to the extent of 70% of Ms. Baldwin’s damages and that she was 30% at fault. We assume that the Trial Judge found that Schwegmann did not exculpate itself from liability because it might have taken additional precautions and that Ms. Baldwin did not exercise sufficient care for her own safety under the circumstances. We do not find the judgment of the Trial Court to be manifestly erroneous.

DAMAGES

Ms. Baldwin contends that, aside from the 30% reduction, the amount of damages awarded by the Trial Court is inadequate compensation.

As to lost wages, the record reveals at the time of her accident Ms. Baldwin was employed as a sitter by the daughter of an elderly bedridden woman. Her broken arm made it impossible for Ms. Baldwin to perform her duties adequately, and a replacement sitter was hired during her period of disability. Her employer testified that the only reason that Ms. Baldwin was not rehired was because by the time Ms. Baldwin had regained the use of her arm, the patient had become accustomed to the replacement sitter, and it seemed best not to make another upsetting change in the patient’s routine.

Ms. Baldwin was paid an hourly wage and often worked twelve hour shifts or seven-day weeks. At the time of the accident, she was earning $221.00 per week.

Her treating physician testified that Ms. Baldwin was physically able to resume working by the end of October and perhaps earlier. The Trial Judge’s award of $2,780.80 for lost wages compensates her for the maximum term of her disability, three months at $221.00 per week. We find this award supported by the evidence.

We must review the $12,000.00 award for general damages in light of the individual facts and circumstances of the case. Reck v. Stevens, 373 So.2d 498 (La. 1979). The record indicates that Ms. Baldwin sustained no permanent impairment of function of her arm, but may have occasional pain. During the period of her conv-elescence, she experienced some pain and discomfort and was partially dependent upon her family and friends for her personal care.

Considering this evidence, we find no abuse of discretion by the Trial Judge in the amount he awarded for general damages.

Accordingly, the judgment is affirmed.

AFFIRMED.


author: WILLIAMS, Judge.

text:
    STATE of Louisiana v. Lawrence SLY.
    No. KA-0714.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.
    William Guste, Jr., Atty. Gen., Harry F. Connick, Dist. Atty., James A. Williams, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Henry P. Julien, Jr., New Orleans, for defendant-appellant.
    Before AUGUSTINE, LOBRANO and WILLIAMS, JJ.
   ON APPLICATION FOR REHEARING

WILLIAMS, Judge.

Petitioner, Lawrence Sly, requests a rehearing of his appeal from a conviction and sentence for simple burglary, a violation of La.R.S. 14:62.

Judgment on the appeal of petitioner’s co-defendant, Richard Deverney, was rendered in State v. Sly, 443 So.2d 1163 (La. App. 4th Cir.1983). On October 5, 1983, the date his co-defendant’s appeal was argued before this court, petitioner’s motion for leave of court to file a brief after date of submission, was granted. This court did not originally consider his appeal in its judgment, because the brief was not timely filed.

Out of an abundance of caution, however, in order to afford the criminal defendant full justice, we have decided to address the issues presented in petitioner’s brief. Petitioner specifies that the trial court erred in: (1) requiring petitioner to go to trial without the retained counsel of his choice; and (2) sentencing petitioner to 12 years at hard labor as opposed to 6 years for his co-defendant, for violation of the same statute, La.R.S. 14:62.

ASSIGNMENT OF ERROR NO. 1

After the trial of this case was called on March 2, 1982, Jasper Pharr for the first time requested permission to withdraw as counsel for petitioner. He explained that on February 26, 1982, petitioner’s wife had retained Milton Masinter and no longer desired Pharr’s services. Mr. Pharr tried to justify his failure to file a motion to withdraw as counsel by explaining that he had just learned of his replacement as defendant’s counsel that very morning of trial, and that his client “didn’t have a chance” to put Masinter’s name on the record before the day of trial. Masin-ter was unavailable, as he was representing another client in criminal court on the day of petitioner’s trial. The trial judge felt that the defendant and his counsel were engaged in a ploy to obtain a continuance and ordered the trial to proceed with Pharr, petitioner’s counsel of record, representing petitioner.

We find no abuse of discretion in the trial court’s decision to conduct the petitioner’s trial with the attorneys of record. No attempt was made to inform the court of any change in counsel before the actual commencement of the trial. We do not consider the defendant to have suffered any injustice.

ASSIGNMENT OF ERROR NO. 2

Petitioner contends that his sentence of 12 years at hard labor, twice as long as that given his co-defendant for conviction of the same crime, was an excessive one and failed to meet the requirements of Article 894.1 of the Louisiana Code of Criminal Procedure.

Although a sentence is within the statutory limit, in a particular case it may nevertheless be excessive. La. Const, art. 1, Section 20 (1974). State v. Sepulvado, 367 So.2d 762 (La.1979). The transcripts of the sentencing hearings of petitioner and his co-defendant indicate that the trial court considered the guidelines set forth in La.C.Cr.P. art. 894.1 in sentencing both parties. The court noted that in addition to the present charges, petitioner had a long list of arrests, a pending charge of open burglary of an inhabited dwelling, and a previous conviction for burglary. The court felt petitioner evinced no intent to rehabilitate and sentenced him to 12 years at hard labor. Petitioner’s co-defendant, the court noted, was on probation due to the conviction of a previous offense, and had a history of prior criminal activity. Deverney was sentenced to six years at hard labor.

Sentences must be individualized to be compatible with the offenders as well as the offenses. State v. Jones, 398 So.2d 1049 (La.1981). A trial judge is given great discretion in the imposition of sentences within statutory limits. Absent manifest abuse, his sentence should not be disturbed. State v. Willis, 420 So.2d 962 (La.1982). We do not consider the trial court to have exceeded its discretion in sentencing petitioner to six years more at hard labor than his co-defendant, given petitioner’s more serious criminal background and the trial court’s impression that petitioner was highly recidivist.

For the foregoing reasons, the conviction and sentence of petitioner is AFFIRMED.

AFFIRMED.


text:
    Johnny THOMPSON v. GIBBENS POOLS, INC. and Sentry Insurance Co.
    No. CA-1428.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.

      Robert T. Hughes, New Orleans, for plaintiff-appellee.
    Eugene M. McEachin, Jr., Bernard, Cas-sisa, Babst & Saporito, P.C., Metairie, for defendants-appellants.
    Before SCHOTT, AUGUSTINE and WILLIAMS, JJ.
   WILLIAMS, Judge.

Defendant appeals a trial court judgment awarding plaintiff forty-seven weeks of workers’ compensation benefits at $163.00 per. week for a facial disfigurement, arguing that the disfigurement was self-inflicted.

On August 12, 1981, plaintiff, Johnny Thompson, was struck in the eye with a rope while in the employ of defendant, Gib-bens Pools, Inc. He received fifty-three weeks of compensation benefits at $163.00 per week, as well as medical benefits of $3,627.61. These payments ceased on August 18, 1982, and plaintiff brought this suit, alleging that he was permanently and totally disabled from returning to the same or similar type of employment and demanding continued compensation. The trial court granted plaintiff $163.00 compensation per week for forty-seven additional weeks, as the remaining balance of the one hundred weeks compensation allowed under La.R.S. 23:1221(4)(p) when the employee is “seriously and permanently disfigured.” Explaining his holding at the trial’s end, the trial judge stated:

After listening to the evidence and testimony of the parties the Court is impressed with only that part of the background of Mr. Thompson to show that he was industrious, that he did work at all times, that he worked for five years, I believe, in McCombe, and he worked for approximately seven months steady at the place of employment of the defendant, Gibbens Pools, Inc. That he was injured in the eye. I don’t think there’s any conflict as far as that is concerned. Dr. Pardue has testified that he is capable of inflicting on himself injury, and it may be that he is capable of anything but I didn’t see, and nor did Dr. Pardue testify that there was anything in the record to show he did inflict the injury on himself. In fact Dr. Pardue did not see the injury itself, but only testified as to his psychiatric disorder. What you (indicating Mr. McEachin) called factitious. And the Court believes the testimony of the brother Jessie Thompson who says he saw his brother Johnny Thompson with the injury and that somebody had given him some salve to put on it, and the salve evidently was used to try to heal it if it was possible, and it shows that even during the time it was attempted to be healed but it didn’t heal, and he has on his face now a scar that is no doubt totally permanent and I believe that everybody will admit it’s a total and permanent scar that he has, and under the jurisprudence I find that the total and permanent portion of the scar is a continuation of the initial injury, and he will be entitled to workman’s compensation ...
The Court will award him the balance of forty-seven weeks at $163.00 a week.

Defendant asserts the trial court erred in awarding judgment to plaintiff, and in refusing to grant defendant’s motion for a new trial, in light of the law and evidence adduced at trial showing the injuries to be self-inflicted. If plaintiff did in fact wilfully seek to prolong his compensation benefits by repeatedly injuring or prolonging the injury to his eye, as defendant asserts he did, resulting in the permanent facial scar, plaintiff would be precluded from additional compensation pursuant to R.S. 23:1081 which provides that “No compensation shall be allowed for an injury caused: (1) by the employee’s wilful intention to injure himself_”

Examination of defendant’s exhibits uncovered substantial evidence to support a diagnosis of self-inflicted injury. In a letter of February 22, 1982, Dr. Sanford Pallet, who saw plaintiff several times in October and November of 1981, told defendant’s insurer, “I am unable to give a prognosis as requested because we felt that the continuing abrasions were of a self-inflicted nature.”

Dr. Kenneth Haik saw plaintiff several times in November and December of 1981, and January of 1982. On the day of plaintiff’s final visit, Dr. Haik wrote a letter to Dr. Caldwell referring plaintiff to him for consultation, explaining, “[i]t is very difficult to tell whether there is really anything going on with this man or not. There is some question of a self-inflicted injury, particularly since this man has been on Workmen’s Compensation and out of work for a long period of time.”

Dr. Caldwell saw plaintiff from February through June of 1982. In a letter of February 25, 1983, he reported to defendant’s insurer:

After he failed to respond to appropriate medication, it was almost immediately suspected that he was self-inflicting injury.... Certainly on both occassions [sic] when we patched the eye to prevent him from instilling or traumatizing the eye in any manner, the eye promptly healed. This was done on two ocassions [sic] so that it would remove any doubt as to the possibility of him self-inflicting the injury. It is also my opinion that the lesion which developed on his nose while the eye was patched was a result of him trying to dig at the patch and then possibly injecting or putting some chemical on the skin which caused the tremendous ulceration and produced the scar. I do not feel that either of these complications was a result of the original injury. Had Mr. Thompson not specifically inflicted the injury to himself, he would have had no residual problems from his original injury.

In a deposition taken in March, 1983, Dr. Caldwell who could not be present at trial, noted that bacteria cultured from the lesion on plaintiff’s nose was that normally found in feces. He testified that there was “no question in my mind that everything that has happened to him since the original injury has probably been self-inflicted.”

Dr. Price, who saw plaintiff in February, March, and April of 1982, wrote in his last progress notes that plaintiffs condition “may well be self-induced with [illegible] on skin abraded under loose areas of patch. Discussed with patient this possibility.”

Plaintiff was admitted to the Tulane Medical Center on July 20, 1982; his admission record contained the diagnosis “probably self-inflicted injury.” During his 8 day stay, plaintiff was examined by Dr. James Pardue, a psychiatrist. Dr. Pardue reported in his findings that plaintiff had been consulting an attorney regarding a possible settlement for his eye injury. He also wrote, “Patient denies any knowledge of why the eye may be slow to heal. Feels he will be fired if he is cleared to return to work because several days ago he was told to turn in his uniforms.” Dr. Pardue recommended that it be explained to plaintiff that his current eye problems were not work related and were unlikely to result in further compensation benefits; that plaintiff be prevented physical access to the affected eye; and that he undergo vocational rehabilitation or other counseling to facilitate a return to employment.

Only plaintiffs first physician, Dr. Rodney Kalil, stated in a letter of reply to defendant’s insurer that he had not considered plaintiffs injury to be self-inflicted. Dr. Kalil had treated plaintiff over a thirteen day period beginning only six days after the rope injury.

Four witnesses testified at trial. In addition to his own testimony, plaintiff presented that of his brother, Jessie Thompson and his friend, James Alexander, both of whom lived with plaintiff. Defendant presented the expert testimony of Dr. James Pardue, a psychiatrist.

Plaintiffs witnesses all testified that plaintiff had always been steadily employed. Plaintiffs testimony that he had never purposefully rubbed or abused his eye in order to prolong his injury was corroborated by his brother and Alexander, who testified they never saw plaintiff engage in such behavior. Plaintiff testified that the lesion around his eye occurred when, while he was hospitalized at Tulane, the flesh around his eye patch came off with his bandages when his dressings were removed by a nurse. Since that incident, plaintiff testified, the area on the side of his nose near the injured eye “stays sore all the time.” Plaintiff’s other witnesses also testified to the lesion suffered by plaintiff and the great pain and discomfort it caused plaintiff.

Dr. Pardue conducted a 35-45 minute personal psychiatric evaluation of plaintiff. He testified that he did not examine plaintiff’s eye, but relied only on the hospital records he was given, stressing that he was “not there to assess his eye, just his psychiatric status.” Dr. Pardue noted that plaintiff’s condition “was not following a usual course of events for the eye;” that plaintiff indicated he had been in trouble with the law at some point in the past; that plaintiff was concerned over loss of income and anxious about difficulty with his present job; and that plaintiff had consulted an attorney and had expressed concern that his attorney had not pursued a settlement for plaintiff’s eye problems vigorously enough. It was Dr. Pardue’s opinion that “[t]hese things pulled together would indicate to me that probably the most reasonable explanation that was going on was that he was engaging in some voluntary base to try to continue his eye and essentially to obtain financial satisfaction. I couldn’t rule out the factitious disorder.”

The trial judge was impressed by the testimony of plaintiff’s witnesses. Evidently he gave less weight to Dr. Pardue’s testimony, considering it speculative, and the hospital records, deposition, and other written exhibits introduced by defendant.

The Louisiana Supreme Court has held:

... on appeal, the Court of Appeal must give great weight to the factual conclusions reached by the trial court; and ‘when there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.’ Canter v. Koehring Co., 283 So.2d 716, 724 (La. 1973). The reviewing court must give great weight to the conclusions of the trier of fact, and should not disturb reasonable evaluations of credibility and reasonable inferences of fact, even though other evaluations and inferences are as reasonable.”

Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977), at 263-4. Although evaluations and inferences in this case might as reasonably have led a trial court to hold that plaintiffs injuries were self-inflicted to prolong his workers’ compensation benefits, we cannot hold that the trial court was manifestly erroneous in reaching a conclusion to the contrary.

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

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    STATE of Louisiana v. Charles Ray SMITH.
    No. CR 83-556.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Rehearing Denied May 10, 1984.
    Michael I. Murphy, Kelly & Salim, Fred Gahagan, Gahagan & Gahagan, Natchi-toches, for defendant-appellant.
    Eric Harrington, Asst. Dist. Atty., Natchitoches, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   DOMENGEAUX, Judge.

On March 11, 1983, the defendant, Charles Ray Smith, pleaded guilty to simple possession of marijuana, in violation of La.R.S. 40:966, possession of a schedule IV C.D.S. with intent to distribute, a violation of La.R.S. 40:964 possession of a schedule III C.D.S. with intent to distribute, in violation of La.R.S. 40:964, and possession of a schedule II C.D.S., in violation of La.R.S. 40:967. He was subsequently sentenced to serve six months in the parish jail on the charge of simple possession of marijuana. He was sentenced to five years on each of the three felony charges, with all four sentences to run concurrently. It is from these convictions and sentences that the defendant has, upon this appeal, perfected three assignments of error.

MERITS

ASSIGNMENT OF ERROR NO. 1

By this assignment defendant argues that the trial court erred in accepting the defendant’s guilty pleas and then sentencing him in excess of a plea bargaining agreement.

The trial judge indicates that the policy of the court is to provide that all criminal trials be discussed in a pre-trial conference. This case was scheduled and dialogized on February 16, 1983. What was said and what was meant, as to the defendant’s punishment, appears to be in conflict.

At the time of the defendant’s guilty pleas, on March 4, 1983, defense counsel filed, into the record, an affidavit of understanding of maximum penalty and constitutional rights. In this affidavit, the essence of the plea negotiations are set forth. Attached to the affidavit is the purported transcript of notes taken by the trial judge’s secretary during the pre-trial conference. This transcript sets out the sentence allegedly promised to the defendant: either a suspended sentence and a $500.00 fine, for a favorable pre-sentence report, or one year in the Department of Corrections, for an unfavorable report. The defendant was given three five-year sentences for the felony convictions and a six-month sentence on the possession of marijuana charge. All sentences were to run concurrently. It is apparent that defense counsel did not intend to advise his client to plead guilty to the sentence given. The minutes indicate that both trial counsel and appellate counsel for the defendant, made a motion to withdraw the guilty pleas at a post-sentencing hearing. The motion was denied; however, both attorneys still felt that there had been a misunderstanding between what was intended and what was understood.

The trial judge, in a per curiam opinion, alluded to what he understood the results of the plea bargain negotiations to be. If the defendant had a favorable pre-sentenc-ing report, without any serious, previous criminal activity, he would receive six (6) months on the misdemeanor charge and a sentence of one (1) year with the Department of Corrections, with all sentences suspended and the defendant placed on supervised probation. The trial judge makes no mention, in his per curiam, as to what, if any, sentence was agreed on for the defendant, in the event of an unfavorable presentence report.

It is well settled that when a guilty plea is induced by a plea bargain or by what a defendant justifiably believes is a plea bargain, and that bargain is not kept, defendant is denied due process of law because the guilty plea was not freely and knowingly given. State v. Hayes, 423 So.2d 1111 (La.1982).

The question is whether this defendant was induced to plead guilty by a promise or what he justifiably believed was a promise from the court to follow certain sentencing guidelines.

The record in this instance is quite convincing that there was no meeting of the minds between the State, defense counsel and the trial court. While the trial judge gives legitimate reasons for his sentence, the transcript of the pre-trial conference substantiates defense counsel’s understanding of how the defendant-would be sentenced. If defense counsel advised his client to plead guilty, based on his understanding of the terms of the bargaining arrangement, the guilty plea was not knowingly and intelligently made. If this is the case then the defendant’s assignment has merit.

However, another case, State v. Lockwood, 399 So.2d 190 (La.1981), draws a distinction between a breached promise and a misunderstanding. A misunderstanding does not have the same implications that a breached plea bargain has. While it is clear that there were certain promises made if the defendant were to have a favorable pre-sentence investigation, it is not as definite as what would occur with an unfavorable pre-sentence report. The contention that both defendant and counsel were mistaken does not constitute reversible error or render the guilty plea not “free and voluntary”. State v. Lockwood, supra. The facts of this case are distinguishable from the Lockwood case. Here it is evident that some bargain was intended. The details appear to be clearly set out in the documents contained in the record. However the trial judge did not follow these guidelines. He either breached the bargain or did not clearly communicate his intentions to the defendant.

We believe both defendant and defense counsel were justified in their understanding of the plea bargaining arrangement. Inasmuch as their well-founded beliefs are supported by the record, then the plea bargain to that extent has been breached. We therefore feel that in the interest of justice we are compelled to remand this case to the trial court with instructions to the trial judge that defendant be allowed to withdraw his guilty pleas.

Because we find merit in defendant’s first assignment of error we find it unnecessary to pass on his second and third assignments dealing with the sentencing procedure and the excessiveness of the sentence imposed.

DECREE

For the above and foregoing reasons defendant’s sentences are vacated and the -case is hereby remanded to the district court with instructions to the trial judge to allow defendant to withdraw his guilty pleas and to conduct any further proceedings that may follow in connection with this case.

SENTENCE VACATED AND CASE REMANDED.

      . The bill of information, No. 75,977, charges the defendant with a violation of La.R.S. 40:964. As La.R.S. 40:964 deals with the composition of schedules, the statute cited appears to be improper. If an indictment states the essential facts of an offense charged, an error or omission in the statutory citation does riot warrant reversal of a conviction if the error or omission did not mislead the defendant to his prejudice. La.C.Cr.P. art. 464; State v. Johnson, 404 So.2d 239 (La.1981). The proper cite should be La. R.S. 40:969.

      . The proper cite should be La.R.S. 40:968. (See Footnote No. 1).

      . The transcript reads as follows:

        "Charles Ray Smith

      D.A. said that they had one misdemeanor and rest possession of controlled substances. D.A. does not have him shown with a prior record. Atty. Murphy asked Court if he would wait until pre-sentence investigation is completed to decide on sentence. The Court will fine him $500 on simple possession; on the Schedule II, III, and IV, if the pre-sentence shows no serious previous convictions, he will be given a suspended sentence. If the pre-sentence shows that he is a dealer or if he has a previous record, he will be given 1 year sentence with the Dept, of Correction or something like that; depends on what the pre-sentence reveals. The Court advised that if he wants to go to trial and the jury finds him guilty, he will be given a 5 year sentence. with the Dept, of Corrections; if he pleads guilty, he will receive I year with the Dept, of Corrections; restitution to the Indigent Defender Board."

      . However, it is noted that the transcribed notes are merely attached to the affidavit of understanding of maximum penalty and constitutional rights and are not an official court record. Nevertheless, they are in the record and they convince us that defendant and his attorneys were justified in their belief that the plea bargain was breached.


author: DOUCET, Judge.

text:
    Nigel R. NICHOLSON, Plaintiff-Appellant, v. LOUISIANA DEPARTMENT OF TRANSPORTATION & DEVELOPMENT, Defendant-Appellee.
    No. 83-567.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.

      H. Dillon Murchison, Lafayette, for plaintiff-appellant.
    Robert J. Jones, Baton Rouge, for defendant-appellee .
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   DOUCET, Judge.

Plaintiff, Nigel R. Nicholson, brought this action against the Department of Transportation and Development (DOTD) alleging a defect in State Highway 467 contributed to injuries received in a vehicular collision. The trial judge found the plaintiff failed to establish the existence of a contributing defect and dismissed plaintiff’s demands. Plaintiff appeals. We affirm.

Plaintiff, brought suit seeking damages allegedly resulting from a head-on collision between his 1978 Mercury and one Timothy Brown’s 1977 Chevrolet. The accident occurred at the crest of a hill on Highway 467 near Leesville, Louisiana, when Brown allegedly swerved to avoid a deep pothole, and crossed into plaintiff’s lane. Plaintiff suffered personal injuries as did his three year old daughter, Victoria.

Defendant answered, denied negligence, pleaded contributory negligence on the part of plaintiff, and brought a third party demand against Brown, averring that Brown’s negligence was the sole, proximate cause of the accident. The defense of contributory negligence was later abandoned.

The third party defendant, Brown, filed this motion for summary judgment, showing that he and his insurer, Prudential, had settled with plaintiff for $10,000.00, and that they had obtained a full release, reserving all rights against defendant, DOTD. The motion for summary judgment was granted and is not before this court.

Plaintiff alleged that the driver of the vehicle, Timothy Brown, swerved to his left to avoid a deep pothole and that the highway was improperly designed, constructed and maintained. On that basis, he seeks recovery from Louisiana DOTD. There is no dispute that the collision occurred entirely within plaintiff’s lane.

Plaintiff’s evidence included testimony of Timothy Brown, Mrs. Nicholson, wife of plaintiff, and that of Sgt. Lionel Chance. When asked the condition of the roadway, Brown stated it contained “potholes” and at the time of the accident he was “swerving to avoid some object or obstruction.”

Mrs. Nicholson stated that subsequent to the accident, the following Monday, she drove along that highway in the vicinity of the accident where Brown had been traveling when she hit a hole in the road that caused her automobile to veer toward the center. The trial judge regarded her testimony as being “contradictory, of a self serving nature, and confusing.”

The most favorable evidence for plaintiff's cause consisted of the testimony of Sgt. Lionel Chance. Admittedly a close acquaintance of the plaintiff, he testified that the road had been patched, that there was a depression in the highway of approximately five inches, when compared with the other part of the road surface. Photographs were introduced, one of which showed this witness at the place about which he testified, measuring, with his hands, the extent of the depression. Mr. Chance added that the reason that he swerved to avoid this place was that he had a broken tire rod and that hitting the depressed area would cause his car to shimmy.

Mr. Chance stated that the defect was situated approximately 30 to 40 feet from the crest of the hill which, he assumed, was the point of impact. On cross examination he admitted that he personally did not know where the accident occurred.

State Trooper Cain who investigated the accident testified that he inspected the roadway and found no defects which might have been a contributing cause thereof.

Another State Trooper, Sgt. Edward Spurgeon, similarly stated that he looked for any defect and found none. He testified that there was a patched area but it would cause no difficulty in maintaining control.

Among the numerous photographs taken of the road, none reflected a condition similar to that described by Chance. It is illogical then to conclude that the officer would have failed to photograph the hole or depressed area 5 or 6 inches deep extending several feet in width and length and situated only 30 to 40 feet from the crest of the hill.

The business records of the Highway Department, introduced through the testimony of Walter Jeane, Highway Maintenance Superintendent in the Leesville area since 1977, further rebutted the existence of any such defect in the particular area.

The trial judge held the plaintiff failed to discharge his burden of proof by establishing that there was a defect in the highway, whether a pothole or other such depressed area, which was or could have been a cause in fact or a legal cause of the collision. The court held the mere existence of patch work on the highway, even if that were shown, is insufficient to establish that it was necessary for the driver, Timothy Brown, to swerve into the left lane as he did. The trial judge concluded “The evidence preponderates that the accident was caused solely by the negligence of Timothy Brown. Although the evidence was insufficient to establish that he was under the influence of intoxicating beverages, there was evidence that he had been drinking. For whatever reason, he failed to maintain proper control, was inattentive, and crossed the center line causing the accident. The evidence is insufficient to show that any condition of the road was a contributing factor.”

Plaintiff specifies five assignments of error: (1) The trial judge erred in his evaluation of the testimony of certain witnesses; (2) The trial court erred in accepting as opinion certain testimony given by state troopers regarding the condition of the road; (3) The trial court erred in finding plaintiff failed to carry his burden of proof as to the defect and causal relationship to plaintiff’s harm; (4) The trial court erred in failing to apply strict liability to the case at bar; and (5) The verdict is contrary to law.

The plaintiff states that the trial court ignored the testimony of Sgt. Brown and further ignored the testimony of Linda Nicholson and Lionel Chance regarding the facts of the accident, particularly the alleged depression in Sgt. Brown’s lane of travel. However, the record reveals the trial court did not ignore any of the testimony alluded to by the appellee. On the contrary, the trial court specifically addressed itself to the testimony of Mrs. Nicholson, the answers of Timothy Brown rendered by written interrogatories and testimony of Lionel Chance as to the causes of the accident. In fact, the trial judge made specific findings as to the credibility of each of these items of evidence introduced before it.

Appellant contends the trial judge gave undue weight to the guilty plea Sgt. Timothy Brown entered in response to a charge of driving left of center, a violation of La.R.S. 32:71. Applicable here is the established jurisprudence that where a motorist goes into the wrong traffic lane, and there causes an accident, he is presumed to be negligent. He has the burden of showing there were circumstances justifying his violation of the rule that he drive on the right side of the road. Duet v. Cheramie, 176 So.2d 667 (La.App. 1st Cir.1965); Brown v. Head, 158 So.2d 442 (La.App. 2d Cir.1963); Coody v. Nicholson, 142 So.2d 583 (La.App. 2d Cir.1962); Schaubhut v. Liberty Mutual Insurance Company, 157 So.2d 346 (La.App. 3rd Cir.1963); Noland v. Liberty Mutual Insurance Company, 232 La. 569, 94 So.2d 671 (1957). Belgard v. Aetna Casualty & Surety Company, 227 So.2d 24 (La.App. 3rd Cir.1969) writ denied 255 La. 146, 229 So.2d 731.

In Gregorie v. Hartford Accident & Indemnity Company, 348 So.2d 186 (La. App. 3rd Cir.) writ refused 350 So.2d 1210 (La.1977), this court, quoting Davis v. Bankston, 192 So.2d 614 (La.App. 3rd Cir. 1966) stated:

“Ordinarily, evidence is not admissible in a civil tort action to prove either that a party was charged with, Bertoli v. Flabiano, La.App. 1 Cir., 116 So.2d 76, or convicted of, Reid-Elliott Motors v. Lee, La.App. 1 Cir., 94 So.2d 160, a criminal offense arising out of the same accident. To the contrary, however, the usual rule is that in the absence of a prohibitory statute, a plea of guilty in a criminal case is considered an admission against interest which is competent evidence in a civil action involving the same subject matter. American Casualty Co. v. Lennox, La. App. 4 Cir., 169 So.2d 707; Smith v. Southern National Ins. Co., La.App. 4 Cir., 134 So.2d 337; 4 Wigmore on Evidence, Section 1066 (3d ed., 1940); 31 A C.J.S. Evidence § 300b; 20 Am.Jur., Evidence, Section 648.”

While such an admission is not conclusive, the record reveals that the trial judge considered other factors in reaching his factual conclusion regarding the existence of any defect.

Evidently, the trial judge placed greater weight on the testimony of State Trooper Cain who claimed he found no such defect after investigation. Cain’s testimony was supported by that of Sgt. Edward Spur-geon who also investigated the accident scene and photographs and business records of the road entered into evidence. A proper foundation was laid for the record’s introduction. It was shown that the highway was subject to regular, periodic inspection by employees of the Department of Transportation and Development.

As was stated in Veazey v. Nassar, 285 So.2d 263 (La.App. 3rd Cir.1973):

“The testimony adduced by each of the respective parties to this controversy is diametrically opposed to that of the opposition. The trial judge could in no way reconcile the antipodal stories. Consequently, the only solution was to employ his discretion and determine which side was telling the truth. Thus, the case presents solely a question of fact, the resolution of which, in view of the hopeless conflict between the evidence of plaintiff and that of defendant, depends exclusively on the credibility of the witnesses. Conclusions of fact of the trial judge are entitled to great weight and should not be disturbed upon review in the absence of manifest error, especially when based upon an evaluation of the credibility of opposing witnesses.”

Id. at 265. Accord: Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We have reviewed the evidence and find the trial court’s evaluations and inferences meet the standard of reasonableness demanded by Canter and progeny.

Appellee seeks to define the testimony of Trooper Cain and Sgt. Spurgeon as expert opinion testimony, not admissible before the trial court and improper for the findings of fact which were made by the trial court.

The testimony of Trooper Michael A. Cain demonstrates that he did not offer any opinion testimony which was objected to at the trial by counsel for the appellant. On the contrary, the testimony of Trooper Cain was clearly directed only to the physical facts which he found when he was called upon to investigate the accident which is a basis of this litigation.

Likewise, the testimony of Sgt. Edward L. Spurgeon is clear that he offered no opinion testimony whatsoever on direct examination by counsel for defendant. The only definition of a highway defect contained in the testimony of Sgt. Spurgeon was the testimony elicited by counsel for plaintiff when counsql for plaintiff asked Mr. Spurgeon to define a defect whereupon he responded “a defect would be anything that would be wrong with the roadway or something which — that would cause an accident.” We find no reversible error in this regard.

The Department has a duty to maintain safe highways. Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979); Sinitiere v. Lavergne, 391 So.2d 821 (La.1980). But all rules of conduct are designed to protect some persons under some circumstances against some risks, thus each case must be evaluated on its own facts to determine the scope of the rule. Hill v. Lundin, 260 La. 542, 256 So.2d 620 (1972); LeBlanc v. State, 419 So.2d 853 (La.1982).

Not only did plaintiff fail to establish the existence of a defect, the evidence shows the accident was the result of third party fault. Where La.Civ.Code Art. 2317 is applicable, the defendant can escape liability by showing the harm was caused by the fault of a third party. Jones v. City of Baton Rouge, 388 So.2d 737 (La.1980). Violation of the duty to remain in one’s own lane of travel and being involved in an accident in the opposing lane is third party fault under La.Civ.Code Art. 2317. Devall v. Morgan, 424 So.2d 522 (La.App. 5th Cir.1983); Simon v. Ford Motor Co., 282 So.2d 126 (La.1973).

In finding fault of a third party, the trial judge relied, inter alia, on Brown’s plea of guilty to a charge pursuant to La. R.S. 32:71 and evidence indicating his intoxication and familiarity with the roadway in question. We find no manifest error in the trial judge’s factual conclusions and further find that he properly applied the law.

For the reasons assigned hereinabove, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.

STOKER, J., concurs.


text:
    Al Benjamin GUILLORY, et al., Plaintiffs-Appellants, v. Michael ORTEGO, Defendant-Appellee.
    No. 83-569.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.

      Whiteand Pitre, Marion Overton White, Opelousas, for plaintiffs-appellants.
    Young & Burson, I.J. Burson, Jr., Eunice, for defendant-appellee.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   DOMENGEAUX, Judge.

The plaintiffs, Al and Regina Guillory, individually and as natural tutor and tutrix respectively of their minor child, Reginald Guillory, filed this suit against Michael Or-tego (a teacher at Opelousas Senior High) seeking to recover damages for injuries allegedly sustained by Reginald Guillory as a result of disciplinary action administered by the defendant-teacher. From a judgment in favor of the defendant plaintiffs have perfected this appeal.

We find the essential facts leading up to this suit to be as follows: On or about April 29, 1980, Reginald Guillory was sixteen years of age and a student at Opelou-sas Senior High School. On this date Reginald was late for his physical education class. When the defendant, a PE teacher and coach, inquired as to the reason for the child’s tardiness, Reginald failed to respond. The question was again repeated. To which Reginald replied that he had forgotten his athletic shoes and was waiting to use those of his cousin. Thereupon Coach Ortego explained to him the importance of being on time. This verbal reprimand was concluded by the coach asking, “Do you understand, Reginald.” The response was “Yeah.” Coach Ortego then told Reginald to respond correctly because he required all students to address any member of the faculty with Sir or Mam, respectively. Reginald refused to comply and turned to walk away. The coach then grabbed Reginald by the shoulders, turned him around, and told him to say “Yes, sir.” Coach Ortego testified that after Reginald had properly responded he was irritated with the child and thus admits to releasing him in a forceful manner. Coach Ortego further testified that it would have been impossible for Reginald to sustain anything more than transistory pain from this affray.

Reginald, on the other hand, claims that Coach Ortego was trying to provoke a fight by throwing him into some lockers. Reginald’s somewhat incredulous explanation was that the coach antagonized him in order to incite a violent response so that the coach could expel him.

As to the extent of plaintiff’s injuries, Dr. George Prather, a pediatrician in Opel-ousas, testified that on April 29, 1980, he examined Reginald Guillory for complaints of pain on the right side of his back. Doctor Prather found the muscle “just around and above and remial to” the right flank to be in spasm or “in other words, a little more rigid.” He found “no bruises” and prescribed an ice pack and Tylenol if needed.

On May 5, 1980, young Guillory returned and still claimed to be experiencing tenderness and spasms. Doctor Prather stated that just as a precaution he took an x-ray of Guillory’s back, which was negative. Doctor Prather did not see Reginald Guillo-ry again and his final diagnosis was “a muscular spasm on the right side of the back above the flank.” He also thought Reginald probably had a slight internal bruise because there was a swollen area, about 2V2 inches by 3V2 inches but “it wasn’t apparent by any blueish or dark area.” Doctor Prather further testified that an injury of this nature could be caused simply by stepping off of a curb.

Roy v. Continental Insurance Company, 313 So.2d 349 (La.App. 3rd Cir.1979), writ denied, 318 So.2d 47 (La.1975), is the leading case which squarely dealt with the question of whether a teacher has the right to use corporal punishment. In Roy, this Court construed all applicable Louisiana statutes and three earlier cases. We there held that: “Corporal punishment reasonable in degree, administered by a teacher to a pupil for disciplinary reasons is permitted in Louisiana.” Roy, supra, 313 So.2d at 354.

Subsequent to that decision La.R.S. 17:223 was amended in pertinent part to read as follows:

“Every teacher is authorized to hold every pupil to a strict accountability for any disorderly conduct in school or on the playground of the school, or on any school bus going to or returning from school, or during intermission or recess. Any teacher or school principal may use corporal punishment in a reason-ble manner against any pupil for good cause in order to maintain discipline and order within the public schools, subject to the provisions of R.S. 17:416.1.” (Emphasis added).

La.R.S. 17:416.1 was also amended following the Roy decision to read as follows:

“A. In addition to the specific disciplinary measures authorized in R.S. 17:416 teachers, principals, and administrators of the public schools may, subject to any rules as may be adopted by the parish or city school board, employ other reasonable disciplinary and corrective measures to maintain order in the schools; provided, however, that nothing in this Section shall be construed as superseding the provisions of R.S. 17:416 relative to the disciplining of students, suspensions, and expulsions.”

The Attorney General has opined that any rule or regulation adopted by any local school board prohibiting corporal punishment in schools under their jurisdiction is contrary to La.R.S. 17:223. Op.Att.Gen. No. 77-704, May 25, 1977.

This Court also interpreted La.R.S. 17:416.1(A) as amended in McKinney v. Greene, 379 So.2d 69 (La.App. 3rd Cir. 1980), writ denied 381 So.2d 1233 (La. 1980). There we stated that “[i]t [was] clear that in enacting LSA-R.S. 17:416.1(A) the Legislature did not intend to prohibit the use of reasonable corporal punishment by teachers and school officials.” McKinney, supra, 379 So.2d at 71.

The U.S. Supreme Court in Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) held that the disciplinary paddling of public school students did not constitute cruel and unusual punishment in violation of the Eighth Amendment.

Further, numerous Louisiana Courts of Appeal decisions have stated that corporal punishment is permissible if reasonable in degree and administered by a teacher to a pupil for disciplinary reasons. See, McKinney v. Greene, supra; LeBoyd v. Jenkins, 381 So.2d 1290 (La.App. 4th Cir.1980), writ refused 386 So.2d 341 (La.1980); Thomas v. Bedford, 389 So.2d 405 (La.App. 2nd Cir.1980); Thompson v. Iberville Parish School Board, 372 So.2d 642 (La.App. 1st Cir.1979), writ denied 374 So.2d 650 (La. 1979).

It is well settled from the foregoing stautes and jurisprudence that corporal punishment, reasonable in degree, is permitted in Louisiana. Thus the only remaining question is whether under the particular facts and circumstances herein the punishment imposed was excessive or unreasonable. We opine that it was not.

The medical testimony in no way indicates that Reginald Guillory was injured as a result of this disciplinary action. It does reveal the possible existence of a “slight” internal bruise “about 2½ inches by 3V2 inches.” The doctor gave no indication that he felt the bruise was severe. In fact, Doctor Prather’s testimony as a whole indicates to this Court that he was of the opposite opinion.

If we were to reverse the trial court and hold this set of circumstances to constitute “unreasonable” corporal punishment we would be in effect establishing an absolute rule against corporal punishment which has clearly been sanctioned by the laws and jurisprudence of this State.

The trial court here had the opportunity to observe the demeanor of both Reginald Guillory and Coach Michael Ortego, and to hear what tone of voice they responded to questions by Court and counsel. Thus the trial court was in a unique position to determine what provocation Coach Ortego had before disciplining young Guillory. It determined that Coach Ortego’s account of the incident was most probably true. We cannot say this determination was manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). In fact, the judgment of the trial court is amply supported by the record.

Discipline is a necessary ingredient to public education. If the frail remanants of authority in our society are not to be totally erroded, the disciplinarians in our public school system should be encouraged, not detered, from enforcing stern but reasonable discipline.

For the above and foregoing reasons the judgment of the trial court in favor of the defendant is affirmed. Plaintiffs are to pay all costs of this appeal.

AFFIRMED.

      . The plaintiffs filed their petition bringing suit individually and as natural tutor and tutrix respectively of their minor child. However, there is no occasion for tutorship absent the death of one parent or the separation from bed and board of the parents. See C.C. Arts, 246-362. The proper procedure would have been for the father to bring suit on behalf of the minor as administrator of the child’s estate. See C.C. Art. 221. Nevertheless, Louisiana’s liberal pleading requirements do not prohibit us from considering the merits of this case despite this inadver-tancy, and besides, no issue is made of it.

      . In this case the student is black and the teacher is white. In a pretrial motion filed by attorney for the plaintiff he suggests the existence of some racial overtones. Again in his appellate brief he alludes to some motives of racial discrimination. After a thorough review of the record, we find these claims to be unsupported.

      . These three earlier decisions were: Houeye v. St. Helena Parish School Board, 223 La. 966, 67 So.2d 553 (1953); Frank v. Orleans Parish School Board, 195 So.2d 451 (La.App. 4th Cir. 1967), writ refused, 250 La. 635, 197 So.2d 653 (1967); and Johnson v. Horace Mann Mutual Ins. Co., 241 So.2d 588 (La.App. 2nd Cir.1970). Although closely related to the Roy decision these cases avoided the issue of permissibility of corporal punishment and on each occasion found, in effect that, assuming corporal punishment was permitted the amount imposed in each specific instance was excessive and unreasonable.


author: KNOLL, Judge.

text:
    Malcolm HEBERT, Plaintiff-Appellee, v. Herbert MYERS, Defendant-Appellant.
    No. 83-588.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.

      Baggett, McCall & Badon, Robert C. McCall, Cameron, for defendant-appellant.
    Raleigh Newman and Donald McKnight, Lake Charles, for plaintiff-appellee.
    Before CUTRER, YELVERTON and KNOLL, JJ.
   KNOLL, Judge.

The defendant, Herbert Myers, perfected this appeal from an interlocutory judgment denying his exception of improper venue. The defendant raised two exceptions under a pleading styled declinatory exceptions. The exception of improper cumulation of actions, although premised on the question of venue, is more properly referred to as a dilatory exception. The judgment of the trial court ruled solely on the exception of venue. The exception of improper cumulation of actions addressed three tort claims and two contract claims in plaintiff’s petition. The issue to be determined is whether the petition alleged interrelated facts which would allow venue to lie in Cameron Parish.

LSA-C.C.P. Art. 2083 provides:

“An appeal may be taken ... from an interlocutory judgment which may cause irreparable injury.”

An exception of venue is one that causes irreparable injury because the appellate court has no practical means of correcting the error on appeal after a trial on the merits. Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., et al, 396 So.2d 878 (La.1981); Erdey v. American Honda Company, et al., 404 So.2d 1351 (La.App. 1st Cir.1981). Therefore, we have granted this appeal from the interlocutory judgment.

FACTS

Malcolm Hebert brought suit in Cameron Parish against Herbert Myers, a domiciliary of Allen Parish, cumulating the following causes of action: trespass on Hebert’s home in Cameron Parish in the latter part of 1982; cutting a fence on Hebert’s property in Cameron Parish in 1982; conversion of diesel fuel owned by Hebert in 1980 or, alternatively, unjust enrichment because of Myers’ use of the fuel; past due rental on a house in Cameron Parish during 1981 and 1982; rental for farm equipment owned by Hebert in 1980; and finally a general claim for mental anguish and embarrassment.

The trial court noted that several of Hebert’s claims against Myers were in tort and some were contractual or quasi-contractual. The trial court gave oral reasons for judgment stating that “all the claims are interrelated. It would be a lesson in judicial inefficiency to try to dissect the causes one from the other and try half of them in Cameron Parish and half in [Allen Parish]... So the Court’s going to overrule the exceptions of venue.”

Myers does not complain of the venue for the causes of action based in tort. However, he contends that venue for the actions of unjust enrichment and rental are improper in Cameron Parish, and are not so interrelated with the tort actions to allow suit in Cameron Parish.

VENUE

Proper venue is determined by applying the following articles and jurisprudence, to-wit:

LSA-C.C.P. Art. 41 provides:

“Venue means the parish where an action or proceeding may properly be brought and tried under the rules regulating the subject.”

LSA-C.C.P. Art. 42 provides in pertinent part:

“The general rules of venue are that an action against:
(1) An individual who is domiciled in the state shall be brought in the parish of his domicile; of if he resides but is not domiciled in the state, in the parish of his residence;....”

LSA-C.C.P. Art. 43 provides:

“The general rules of venue provided in Article 42 are subject to the exceptions provided in Articles 71 through 85 and otherwise provided by law.”

An action for an intentional tort or an unintentional tort may be brought in the parish where the damages were sustained. LSA-C.C.P. Art. 74 states:

“An action for the recovery of damages for an offense or quasi offense may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained. An action to enjoin the commission of an offense or quasi offense may be brought in the parish where the wrongfull conduct occurred or may occur.
As used herein, the words ‘offense or quasi offense’ include a nuisance and a violation of Article 667 of the Civil Code.”

If there is a conflict between the venue provisions of Art. 42 and Art. 74, the plaintiff may select either parish having venue. LSA-C.C.P. Art. 45 reads in pertinent part:

“The following rules determine the proper venue in cases where two or more articles in this Chapter may conflict:
(3) If Article 78, 79, 80, 81, 82, or 83 is not applicable, and there is a conflict between two or more of Articles 42 and 71 through 77, the plaintiff may bring the action in any venue provided by an applicable article.”

Myers first contends that venue concerning the allegation of unjust enrichment was improper in Cameron Parish. He maintains that the proper venue for this action is his domicile, Allen Parish, under Article 42(1). This argument disregards plaintiffs alternative plea of unjust enrichment.

When a plaintiff institutes an action on more than one theory, arising out of one factual circumstance, and venue is proper as to any theory, the trial court has venue to decide any or all claims. Thibodeaux v. Hood Enterprises, Inc., 415 So.2d 530 (La. App. 1st Cir.1982).

The common law tort of conversion has long been recognized in Louisiana as a quasi offense. Central Fidelity Bank v. Gray, 422 So.2d 670 (La.App. 3rd Cir. 1982). The alleged conversion in the case at hand occurred in Cameron Parish. Hebert’s alternative plea alleged that Myers had been unjustly enriched. We find that Article 74 permits venue to lie in Cameron Parish in the conversion action. Thus the exception of improper venue for this cause of action was properly overruled.

Myers next maintains that the trial court improperly relied on the reasoning of Smith v. Baton Rouge Bank & Trust Company, 286 So.2d 394 (La.App. 4th Cir. 1973) and its progeny in overruling his exception to the venue of Cameron Parish as it relates to the claims for home and equipment rental.

In Smith, supra, the plaintiffs brought an action against the defendant to enjoin it from executing a default deficiency judgment rendered after foreclosure of plaintiff’s mortgage, and to recover damages for the defendant’s alleged unjust enrichment. The defendant filed a declinatory exception of improper venue on the grounds that venue was in its domicile, East Baton Rouge Parish. The trial court had venue pertaining to the allegation for injunctive relief. Venue did not lie in Orleans Parish pertaining to the allegation for unjust enrichment. However, in this case the two causes of action were related, therefore the Smith court correctly held:

“... [WJhere venue is proper as to one claim, the disposition of which will necessarily affect a related second claim as to which venue might otherwise be improper, the court has the authority to decide both claims in the interest of efficient judicial administration, .... ” (Emphasis added)

We agree with the holding in Smith, supra, which based its judgment on the issue of venue on a finding of related facts. In the casé at hand we find that the facts are not interrelated, therefore the test in the Smith case would require a transfer of venue for the claims of home and equipment rental.

We have carefully reviewed Hebert’s petition. Article two of Hebert’s supplemental petition only hints of possible interrelated facts concerning the allegations of trespass and house rental. There are no allegations that qualify as interrelated facts which would permit venue to lie in any other court than the defendant’s domicile.

We appreciate and understand the trial court’s reasoning concerning “judicial inefficiency” and it is for that reason that we reluctantly reverse the trial court’s ruling pertaining to plaintiff’s claims for rental of the house and equipment. We therefore remand with instructions to transfer the rental actions to Allen Parish.

For the foregoing reasons the judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions. Costs of this appeal and the trial court are assessed half to plaintiff-appellee and half to defendant-appellant.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.


author: FORET, Judge.

text:
    STATE of Louisiana, Appellee, v. Harrison LLOYD, Appellant.
    No. CR 83-593.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Rehearing Denied May 10, 1984.
    Glynn W. Reynolds, Alexandria, for defendant-appellant.
    R. Greg Fowler, Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
    Before GUIDRY, FORET and CULPEP-PER, JJ. •

       Judge William A. Culpepper, Retired, Judge Ad Hoc.

   FORET, Judge.

Defendant, Harrison Lloyd, was charged by a grand jury indictment with the crime of second degree murder, a violation of LSA-R.S. 14:30.1. On February 24, 1983, he was found guilty as charged by a unanimous verdict of a jury of twelve. Subsequently, he was sentenced to serve life imprisonment at hard labor without benefit of probation, parole or suspension of sentence.

The defendant filed a motion for appeal, along with three formal assignments of error, but he failed to either brief or argue those assignments. Assignments neither briefed nor argued are considered abandoned. State v. Smith, 430 So.2d 31 (La.1983). Therefore, this case is reviewable only for errors discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. LSA-C.Cr.P. Article 920; State v. Jackson, 332 So.2d 211 (La.1976). We have fully reviewed the record for these errors and find none.

For the reasons assigned, the conviction and sentence are affirmed.

AFFIRMED.


author: YELVERTON, Judge.

text:
    SUCCESSION OF A.W. McKAY, Proponents-Appellees, v. Eva McKay MOUNT, et al., Opponents-Appellants.
    No. 83-645.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.

      Griffing & Johnson, Kathy J. Johnson, Jonesville, for opponents-appellants.
    Smith, Taliaferro, Seibert, Boothe & Pur-vis, Virgil Russell Purvis, Jonesville, for proponents-appellees.
    Before CUTRER, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

This is a will contest. The substantial issue on appeal is whether the opponents of the will of A.W. McKay proved beyond a reasonable doubt that the deceased was not physically able to read when the will was made on July 25, 1980. The trial court found that the deceased was physically able to read and ordered the will probated and executed. We affirm.

Aside from the factual issue of the deceased’s physical ability to read, there are two other issues raised by the appeal. One is burden of proof and the other is the denial of a new trial. We will discuss these three issues after first outlining the procedural facts.

Procedural Facts

On July 25, 1980, A.W. McKay executed a testament in statutory form in accordance with the provisions of LSA-R.S. 9:2442. He bequeathed certain property to his nephew David Cruse and the remainder of his property to two other nephews and his sister Mae McKay Cruse. He appointed David Cruse as his testamentary executor.

A.W. McKay died on January 17, 1983. On February 11, 1983, David Cruse filed a petition for probate of the testament. On February 28, 1983, three of the deceased’s sisters filed an opposition to the probate. The opponents contended that the deceased was physically unable to read when he made the will.

LSA-R.S. 9:2442 sets forth the formal requirements of the statutory will for a person who knows how to sign his name and knows how to and is physically able to read. The next statute, R.S. 9:2443, provides the requirements of the statutory will for a person whose sight is impaired to the extent that he cannot read or who does not know how to read. A principal distinction between the formal requirements of these wills is that the first requires two witnesses while the second requires three witnesses. The will of A.W. McKay was executed before two witnesses. Thus it is that the opponents of the will bring into question the deceased’s physical ability to read, because if he was physically unable to read three witnesses would have been required and the will would be invalid.

A contradictory trial of the opposition to probate was held in accordance with LSA-C.C.P. article 2901 and the question of the deceased’s physical ability to read at the time the will was made was fully explored. The trial court rendered judgment declaring the testament to be valid. The opponents filed a motion for a new trial which was denied.

We will now discuss the three issues in the order of (1) burden of proof, (2) deceased’s physical ability to read, and (3) the denial of a new trial.

Burden of Proof

Burden of proof was treated as an issue by the parties at the trial level and is similarly argued on appeal. It is contended by the proponents of the will that the burden of proving the deceased was physically unable to read was on the opponents and the standard was beyond a reasonable doubt. The opponents argue, on the other hand, that the burden of proof was on the proponents to establish by a preponderance that the deceased was physically able to read. The trial court did not consider it necessary to determine which burden of proof test was applicable. The trial court found that by either test the will should stand.

In the recent case of Succession of Budwah, 441 So.2d 39 (La.App. 3rd Cir.1983) this court was faced with a determination of the burden of proof regarding the issue of whether a deceased was physically able to read at the time of execution of a testament. After reviewing the jurisprudence on the subject, we reached the following conclusions:

(1) A testator’s physical ability to read is an element of testamentary capacity;
(2) There exists a “very strong presumption” that the testator possessed the requisite testamentary capacity, and
(3) A party attacking a will on the basis of a testator’s incapacity must prove it beyond a reasonable doubt.

Applying Budwah to the instant case, the burden of proof was on the opponents of the will and the standard was beyond a reasonable doubt.

Deceased’s Physical Ability to Read

The trial lasted three days and over 20 witnesses were heard. The trial judge took the matter under advisement and gave excellent, detailed reasons for judgment.

Mr. McKay died in his eighties, a lifelong resident of rural Catahoula. It was undisputed that he was literate. He attended high school. At age 17 or 18 he sustained an eye injury which left his eyesight permanently impaired. The vision problems did not prevent him from leading an active, successful life. He kept up with current events as well as the stock and commodities market. He did business regularly across the Mississippi River in Natchez where his stockbroker’s office was located, and he liked to buy and sell commodities futures. Although he could not drive a car, once he got where he was going he could manage for himself. He did not use a cane or a seeing eye dog or other people’s help in getting about and doing his business.

The specific testimony regarding deceased’s physical ability to read was conflicting. A number of friends and relatives testified he could not read and that they had to read newspaper articles and stock reports to him, as well as addresses on bills. They said he kept different denominations of currency in separate pockets for identification.

Other witnesses testified that if Mr. McKay held papers close to his eyes, he could read. Reverend Jack Crews testified that he regularly filled out the deceased’s tax returns. McKay claimed the blind exemption on the form. However, this witness stated that McKay would take the tax return and look at it “real close to his eyes.”

W.A. Book, Clerk of Court of Catahoula Parish, testified that the deceased regularly voted absentee and generally did not need assistance in filling out the forms but would occasionally ask for help in determining a person’s name. The ballot forms utilized regular sized print. Mr. Book also testified that he would often pull records in the Clerk of Court’s office for the deceased, who then appeared to have no trouble reading tRe records.

Ronnie Darden, a local banker, testified that he often loaned the deceased money and obtained mortgages from him. He stated that the deceased would look over the loan papers holding them close to his eyes.

Mr. H.A. Taliaferro, the attorney who prepared and notarized the execution of the will in this case, testified that he had done legal work for the deceased for years and that McKay would always examine legal documents before signing them. He recited an example about the deceased correcting one of the documents. With regard to this will Mr. Taliaferro stated that he told McKay the requirements of law about being able to read and McKay told him that he could.

The trial court was particularly impressed by the testimony of persons with whom the deceased had had business dealings. About this testimony the court said:

“The central theme of all these witnesses [sic] testimony was to the effect that although Mr. McKay had severe visual impairment, that none of them treated him as a blind person and, in fact, treated him as a person with adequate eyesight who could, with difficulty, read the various documents and legal instruments which they dealt with for him from time to time over a long period of years. In other words, none of these persons in dealing with Mr. McKay on important matters of business and personal affairs ever treated him as being totally unable to read.”

The positive testimony of the several witnesses who did observe Mr. McKay read should be given more credence than the negative testimony. See Estate of Moreau v. Moreau, 261 So.2d 293 (La.App. 3rd Cir.1972), writ denied 262 La. 193, 262 So.2d 789 (1972). The negative testimony is insufficient to overcome the heavy burden of proving beyond a reasonable doubt that the decedent was unable to read at the time he executed the will. Furthermore this was a factual determination which should not be disturbed in the absence of manifest error. Succession of Kite, 366 So.2d 602 (La.App. 3rd Cir.1978), writ refused 369 So.2d 155 (La.1979). We find no error in the trial court’s ruling.

Denial of a New Trial

Concerning appellants’ denial of a motion for a new trial, two questions are before the trial court in deciding whether to grant a motion for a new trial under LSA-C.C.P. article 1972: (1) whether the judgment is clearly contrary to the law and evidence, and (2) whether the party seeking the new trial should have discovered the new evidence with due diligence. Succession of Budwah, supra.

Under the first situation we have determined that the evidence at trial clearly shows the judgment is not contrary to the law or evidence. The second situation is not applicable because the party is not alleging newly discovered evidence.

Under LSA-C.C.P. article 1973 a trial court may also grant a new trial if there is good ground therefor. In the present case appellant sought to introduce a deposition taken after trial. Appellant argues that the testimony was not introduced at trial since the witness was in Europe at the time of the hearing. However at the hearing the trial judge asked appellants’ counsel if she wished to have the record left open for the taking of depositions of the witnesses who were subpoenaed but failed to appear at the trial. Counsel replied that the evidence was sufficient without the depositions of the witnesses that did not appear. The trial court thereupon decided the case. Under these facts we find the trial court did not abuse his discretion in denying appellant’s motion for a new trial for the introduction of additional testimony-

For the above reasons the judgment is affirmed at appellant’s costs.

AFFIRMED.