author: GROVER L. COVINGTON, Chief Judge.

text:
    Steven Wayne HARPER v. The LIGGETT GROUP, INC., et al.
    No. CA 83/1205.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Writ Denied Jan. 14, 1985.
    Phil Breaux, St. Gabriel, for plaintiff-ap-pellee, Steven W. Harper.
    Erwin Larose, Baton Rouge, for defendant-appellee, Walter Aertker, Jr.
    L. Michael Cooper, Baton Rouge, for defendant-appellee, Colgate-Palmolive Co.
    Leonard Young, New Orleans, for defendant-appellee, Harbor Ins. Co.
    Francis G. Weller, New Orleans, for defendant-appellant, Diversified Prod., et al and defendants-appellees, Liggett Group, et al.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON, JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this Court pro tempore.

   GROVER L. COVINGTON, Chief Judge.

This is a products liability case. On January 5, 1981, Dr. Steven Wayne Harper, the plaintiff, was playing racquetball with Walter Wright Aertker, Jr., one of the defendants, when Aertker’s racquet separated from the butt cap on the end of the handle, flew out of his hand and hit Dr. Harper in the left eye, causing a serious injury and leaving him legally blind in that eye.

Harper filed suit against Walter Wright Aertker, Jr., Liggett Group, Inc. (Liggett), K-Mart Corporation, Transportation Insurance Company (Transportation), Colgate-Palmolive Company (Colgate), Diversified Products Corporation of Delaware (Diversified of Delaware), Diversified Products Corporation of California (Diversified of California), Leach Industries, Inc. (Leach), Liggett Sporting Goods, Inc., Harbor Insurance Company, Northbrook Excess & Surplus Insurance Company, and Old Republic Insurance Company. Liggett filed a third party demand against Aertker and Colgate. K-Mart filed a third party demand against Liggett and Transportation. Transportation third partied Aertker, Colgate and Kun-Nan Enterprises, Ltd. (Kun-Nan). Leach, Diversified of Delaware, Diversified of California and Liggett Sporting Goods, Inc. third partied Aertker and Colgate. Colgate third partied Aertker and Kun-Nan. The trial court rendered judgment in favor of the plaintiff against Diversified of Delaware and its insurer, Transportation Insurance Company, and against Aertker, in the sum of $924,300.75. The court also dismissed all of the third party demands, except for that of Diversified of Delaware and Transportation for contribution against Aertker and for indemnity against Kun-Nan. Only Diversified of Delaware and Transportation have appealed; Harper answered the appeal seeking an increase in the amount of damages awarded.

The appellants, Diversified of Delaware and Transportation, raise three issues on appeal. First, the trial court erred in denying appellants’ third party claim against Colgate for indemnity under the provisions of the purchase agreement. Second, appellants argue that the trial court’s award is excessive because Dr. Harper can, if he desires, continue his dental practice and, thus, not lose any future income. Third, the trial court erred in basing its award on pre-tax income, rather than net income. The liability of defendants is conceded.

The facts giving rise to this suit are that in October of 1980, Aertker purchased a Leach Topseed racquetball racquet at a Baton Rouge K-Mart store. The racquet in question was designed and manufactured in Taiwan by Kun-Nan. Leach imported the racquet, placed its Leach Topseed label on it and sold it to K-Mart, the sole distributor of the Leach Topseed racquetball racquet. Prior to March 5, 1980, Leach was a subsidiary of Colgate-Palmolive Company. On that date, Colgate sold all of the stock in Leach to the Liggett Group. By the terms of the purchase agreement, Colgate agreed to indemnify Liggett and its successors against any loss, expense or other damages arising out of any claim brought or asserted by a third party against Liggett or Leach arising out of or in connection with the conduct of the business of Leach before the March sale and asserted within four years of the date of the sale. Liggett subsequently became Diversified of Delaware. The trial court, as stated, denied Diversified of Delaware’s claim for indemnity against Colgate. The court based its decision on the grounds that, because the indemnity agreement did not specifically agree to indemnify Leach and/or Liggett against the consequences of their own negligence, Diversified of Delaware, as Lig-gett’s successor, was not entitled to indemnification. The court made no finding on the question of when the racquet was placed in the stream of commerce in order to apply the time limitation of the purchase agreement.

The pertinent provision reads as follows:

6.02 Indemnification.

(a) Seller shall indemnify, defend and save harmless Buyer and Leach, as the case may be, against any loss, expense (including reasonable cost of investigation and legal fees) or other damage caused by or arising out of any action or claim brought or asserted by third parties not affiliated to Buyer against Buyer or Leach, as the case may be, arising out of or in connection with the conduct of the business of Leach prior to the Closing Date provided, however, Seller shall not be liable to so indemnify Buyer with respect to any such actions or claims brought or asserted after four years from the Closing Date.

The trial court held that this provision, lacking a specific reference to indemnity for the consequences of the indemnitee’s own negligence, must be strictly construed as denying indemnification for such acts. On appeal, it is argued that the racquet in question was manufactured prior to the closing date, and that Diversified of Delaware’s liability to the plaintiff is based on strict liability, not negligence, and, thus, not subject to the jurisprudential exclusion based on the indemnitee’s own negligence.

Before deciding the question of the applicability of this provision to the manufacturer’s or Leach’s negligence, we must consider the question of when the “conduct of business” occurred. The testimony of three witnesses: the manager of the K-Mart store, an officer of Leach and Diversified of Delaware and the sporting goods buyer for all K-Mart stores shows that it is uncertain when the racquet in question was manufactured, when it was received by Leach (predecessor of Diversified of Delaware), and when it was received by K-Mart. As stated, this racquet was manufactured in Taiwan by Kun-Nan, shipped to Leach in California and ultimately to K-Mart, where it was purchased by Aertker. The times of each transaction or movement in the stream of commerce are not established by the record.

Kun-Nan had been requested to make changes in the design and construction of the butt end cap and wrist thong of the racquet in late 1979, but was still shipping “unchanged” racquets as late as May 1980. Although Diversified of Delaware attempted to show that racquets with wrist thongs like Aertker’s racquets were not ordered after January of 1980, it was unable to prove that Kun-Nan had ceased manufacturing or shipping such racquets. In fact, the preponderance of the evidence indicates that the Aertker racquet was received by Leach and shipped to K-Mart after March 5, 1980, the date of sale from Colgate to Liggett (Diversified of Delaware).

In order for the third party plaintiffs, Diversified of Delaware and Transportation, to prevail in their claim against Colgate, they would have had to prove that this racquet formed part of the business conducted by Leach prior to March 5. 1980. Since we find that the evidence fails to prove this fact, third party plaintiffs have not borne their burden of proof. Hue v. Blanchard, 337 So.2d 1218 (La.App. 1st Cir.1976). In the instant case the proponents’ witnesses either could not say when the racquet entered the stream of commerce to Leach, or testified to facts indicating that it entered the stream of commerce after the cut-off date for Colgate’s liability. Under these circumstances we find that Diversified of Delaware failed to carry its burden of proof. Consequently, the rejection of the third party demands of Diversified of Delaware and Transportation against Colgate are affirmed.

The second issue raised on this appeal concerns the quantum awarded by the trial court. At the time of the accident, Dr. Harper was a 27-year old dentist who had been in practice for approximately two and one half years. After the accident, he tried to resume his dental practice but has been unable to perform satisfactorily as a dentist. Harper testified that he tried to overcome his disability and accommodate his handicap, but without success. The testimony of Dr. Clinton Pettigrew, a psychologist, established that Harper’s loss of self-confidence in performing the procedures required in dentistry caused his depression and fear of inadequacy in his profession.

There is no disagreement among the plaintiff’s and the defendants’ expert physicians concerning the extent of Dr. Harper’s injury. The force of the blow caused a tear in the retina in his left eye which will never heal. Thus, Dr. Harper has a hole in his vision in the left eye, with no central vision in that eye. He retains some peripheral vision in the left eye, but is considered legally blind in that eye. The result of the loss of vision in one eye is the loss of depth perception at close range.

Based on Harper’s past earnings, as analyzed by Dr. Ronald R. House, Ph.D., Economics, and former chief economist for the American Dental Association, the trial court awarded $822,986.00 as lost future earnings. We agree with this finding.

Additionally, appellants urge this court to overrule the jurisprudential rule that gross income, rather than net income, should be used to compute the loss of future earnings. For the reasons set forth in Reeves v. Louisiana and Arkansas Railway Co., 304 So.2d 370 (La.App. 1st Cir. 1974), writ denied 305 So.2d 123 (La.1974), and its progeny, we will continue to use pre-tax earnings to calculate loss of future earnings. A review of the testimony and documentary evidence convinces us that there has been no manifest error committed by the trial court in this award; and consequently, we affirm its judgment. Copeland v. Louisiana Department of Transportation and Development, 428 So.2d 1251 (La.App. 3rd Cir.1983), writ denied 435 So.2d 448 (La.1983). Likewise, we find the award of $100,000.00 as general damages well within the sound discretion of the trial judge. Batiste v. Iberia Parish School Board, 401 So.2d 1224 (La.App. 3rd Cir.1981), writ denied 405 So.2d 531 (La.1981). The amount of special damages is established by the record.

For the reasons assigned, the trial court’s judgment is affirmed. Costs to be paid by defendants-appellants.

AFFIRMED.

      . Defendant, Walter Wright Aertker, Jr., has not appealed the judgment rendered against him.

      . Kun-Nan Enterprises, Ltd. has not appealed the judgment rendered against it.


source: Caselaw Access Project

author: JOHN S. COVINGTON, Judge Pro Tern.

license: Public Domain

text:
    William D. CARTER, Jr., et ux. v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY, et al.
    No. 83 CA 1212.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Writ Denied Jan. 25, 1985.

      Ben L. Guelfo, Baton Rouge, for plaintiff-appellant.

      Peter T. Dazzio, Baton Rouge, for defendants-appellees.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON , JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   JOHN S. COVINGTON, Judge Pro Tern.

This suit arises out of an incident in which plaintiff Nancy W. Carter tripped on an allegedly defective sidewalk on the Baton Rouge campus of Louisiana State University and fell, injuring her right knee. The trial judge ruled in plaintiffs’ favor, awarding the payment of past medical expenses and $3,500.00 in general damages. Plaintiffs appealed a portion of the judgment, alleging that the general damages award is insufficient. Defendants appealed the judgment in its entirety.

The issues are: (1) whether the trial judge erred in concluding that the sunken and sloped portion of a sidewalk on the grounds of a public university, on which Mrs. Carter tripped, posed an unreasonable risk of injury; (2) whether the trial judge erred in failing to find that fault of Mrs. Carter barred or reduced plaintiffs’ recovery; and (3) whether the trial judge abused his discretion in awarding Mrs. Carter only $3,500.00 in general damages. In their answer to plaintiffs' appeal, the defendants assigned as error the trial judge’s failure to grant their motion for a new trial. However, since defendants failed to brief this issue on appeal, we consider it abandoned. Rule 2-12.4, Uniform Rules — Courts of Appeal.

Amended in part and as amended, affirmed.

FACTS

In the Spring of 1980, Mrs. Carter accompanied a first grade class on a field trip to a museum on the LSU campus. As the bus carrying the children was full, she drove her own vehicle. Mrs. Carter carried in the car’s trunk an ice chest containing cartons of milk for the children’s lunch. About 11 a.m., after the class had completed its museum tour, she returned to her car to get the ice chest and a paper bag containing medication for one of the children. Carrying these items, she began to return to the group when she suddenly fell forward on the sidewalk, hitting both knees on the concrete. As she lay on the ground awaiting assistance, she noticed that a portion of a sidewalk ‘square’ had sunken down, gradually slanting to a depth of approximately two and one-half inches in one corner. She assumed that it was on this drop-off that she had tripped.

DUTY OF LOUISIANA STATE UNIVERSITY

The owner or person having custody of immovable property has a duty to keep such property in a reasonably safe condition. This person must discover any unreasonably dangerous condition on the premises and either correct the condition or warn potential victims of its existence. Farr v. Montgomery Ward and Company, Inc., 430 So.2d 1141 (La.App. 1st Cir.1983), writ denied 435 So.2d 429 (La.1983); Haney v. General Host Corporation, 413 So.2d 624 (La.App. 1st Cir.1982); Albritton v. J.C. Penney Company, Inc., 385 So.2d 549 (La. App. 3rd Cir.1980), writ denied 393 So.2d 727 (La.1980). This duty is the same under both the strict liability theory of LSA-C.C. art. 2317 and the negligence liability theory of LSA-C.C. art. 2315. Kent v. Gulf States Utilities Company, 418 So.2d 493 (La.1982); Farr, supra.

There is a difference in proof between these two theories of liability, however, in that under LSA-C.C. art. 2315, the plaintiff must show that the owner or custodian either knew or should have known of the risk, whereas under LSA-C.C. art. 2317, the plaintiff is relieved of proving scienter on the part of the defendant. Kent, supra.

Under either theory of liability, the plaintiff has the burden of proving that: (1) the property which caused the damage was in the custody of the defendant; (2) the property was defective because it had a condition that created an unreasonable risk of harm to persons on the premises; and (3) the defect in the property was a cause-in-fact of the resulting injury. In both negligence and strict liability cases, the reasonableness of the risk is determined by balancing the probability and magnitude of the risk against the utility of the thing. Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980).

It is undisputed that: (1) LSU was the owner and custodian of the allegedly defective sidewalk; (2) there was some irregularity in the surface of the sidewalk; and (3) the irregularity was a cause-in-fact of Mrs. Carter’s fall and subsequent injury. The trial judge found the defendants liable, but did not articulate whether the basis for his decision was Art. 2315, Art. 2317, or both.

The essential question relevant to liability is whether the sidewalk irregularity constituted a defect; i.e., whether it created an unreasonable risk of harm to LSU campus visitors such as Mrs. Carter.

An LSU policeman, Mark Shaw, came to Mrs. Carter’s assistance several minutes after her fall. Officer Shaw testified that he discovered her lying in a parking lot adjacent to the sidewalk. He noticed that the sidewalk ‘square’ next to her was cracked across its width and had subsided in one corner. He estimated the depth of the sunken area to be approximately one-half inch. Neither he nor his partner, also present at the accident scene, measured the depth.

Mrs. Carter did not measure the depth of the sunken area either, but she estimated it at about two and one-half inches. She based her estimation on this observation: an unidentified man who came to her assistance placed his foot flat on the surface of the recessed area, against the ‘raised’ edge of the adjacent sidewalk square. She was able to see that ‘raised’ portion of the sidewalk showing above the top of his shoe.

She testified that she had approached the sunken area from the ‘high’ side, i.e., from the side where the sidewalk surface made an abrupt drop, rather than a gradual slope. She had not noticed any similar problems with the sidewalks elsewhere on campus, and was not expecting the abrupt change in height. The entire sidewalk looked flat and white from her perspective, and there were no shadows cast by the height differential to warn her.

Plaintiffs’ expert witness, Mr. Dennis Howard, was qualified by the trial court as a safety consultant. Mr. Howard offered his opinion on the degrees of risk presented by varying differentials in height on walking surfaces. He testified that a change or gradation in height of from one to two inches presents a moderate risk to the pedestrian; i.e., a predictable risk of individuals slipping, tripping or falling from loss of balance. A differential of more than two inches would, of course, create a greater risk of injury as it would increase the likelihood of pedestrians tripping and falling from unexpected loss of balance. In his opinion, a differential of two and one-half inches would require immediate remedial attention. He had measured the height of his own shoes over the toes and had found them to measure two inches.

Mr. Howard further testified that the time of day and the condition of other portions of the walking surface could, under certain circumstances, increase the risk caused by a height differential. He stated that if the sun’s position is such that it casts no shadow, and if the condition of a sidewalk is otherwise good, such that a pedestrian is expecting a smooth walking surface, the risk of loss of balance and subsequent injury is increased.

Although the trial judge did not specifically say so, he obviously accepted Mrs. Carter’s testimony. It is well established that where there is a conflict in the testimony, reasonable evaluations of witness credibility by the finder of fact will not be disturbed on appeal, absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Co., 283 So.2d 716 (La.1973); Jacobs v. Grayson, 432 So.2d 1036 (La.App. 1st Cir.1983). We find no such error here.

The record supports the trial judge’s conclusion that the two and one-half inch sunken corner of the sidewalk, unnoticeable to a pedestrian, created an unreasonable risk of harm and was thus defective. We find the defendants liable under LSA-C.C. art. 3217 and need not address the issue of negligence.

VICTIM FAULT

Defendants can escape liability only if they prove that the harm encountered by Mrs. Carter was caused by her own fault, the fault of a third person, or by an irre-sistable force. Shipp v. City of Alexandria, 395 So.2d 727 (La.1981). They contend that she was at fault in attempting to negotiate the sidewalk, carrying objects which obscured her vision, and that this fault should accordingly bar or reduce her recovery.

The trial judge obviously accepted Mrs. Carter’s testimony that she could see the sidewalk over the ice chest and paper bag she was carrying, looked at the sidewalk in front of her, and did not see the sunken area before she fell due to her angle of approach and the lack of shadows. We find no manifest error in the trial judge’s conclusion that Mrs. Carter was not contributorily negligent.

DAMAGES

Finally, both sides complain of the general damages award; defendants contend it is excessive and plaintiffs contend it is inadequate.

Before an appellate court can properly disturb a quantum award, the record must clearly reveal that the trier of fact abused his discretion in making the award. The question we must answer is not whether a different award may have been, in our opinion, more appropriate, but whether the trial court’s award can be reasonably supported by the record. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Black v. Ebasco Services, Inc., 411 So.2d 1159 (La.App. 1st Cir.1982).

The fall cut and bruised both of Mrs. Carter’s knees, but the right knee suffered the most damage in the form of rapid swelling. She was X-rayed at an emergency clinic immediately after the accident, and was released with a diagnosis of a sprain and abrasions on both knees. Approximately one year later, she saw two orthopedists. Dr. Manale diagnosed patella malalignment syndrome in both knees and estimated a ten percent impairment of the lower extremities. Dr. Dowell, defendants’ physician, found swelling in the right knee and diagnosed infrapatella bursitis and possibly chondromalacia of the patellae. He concluded that Mrs. Carter suffered a partial disability of the right knee.

A third orthopedist, Dr. Jones, examined plaintiff about one year later. He diagnosed anterior cruciate ligament injury, which results in excessive wear on the knees over time, and chondromalacia of the right knee. Because of these injuries, he stated that it was possible Mrs. Carter would develop arthritis in the knees and would most certainly suffer periodic aches and pains in her knees for the rest of her life. She would have to continue the performance of strengthening exercises indefinitely. He assigned a fifteen percent permanent disability to her right knee.

Prior to the accident, Mrs. Carter, who was thirty-one (31) years of age, was physically very active; she enjoyed fast dancing and playing sports such as baseball and badminton with her two young sons. Since the fall, she has been precluded from enjoying these activities. Due to fluid buildup, she cannot climb stairs more than occasionally. The plaintiffs had to move from their townhouse to a one-story home to accommodate her limitation. She continues to suffer pain and discomfort during weather changes. She cannot walk significant distances without suffering pain. She is frustrated by these restrictions on what once was normal activity.

We conclude that the trial judge abused his discretion in awarding Mrs. Carter only the sum of $3,500.00. Under the circumstances, this award is inadequate. As an appellate court, we can raise the award only to the lowest amount which the trial court could have reasonably granted. Coco v. Winston Industries, Inc., supra. We feel the lowest amount the trial court could have reasonably granted is $10,-000.00. We therefore amend the award to this amount.

For the foregoing reasons, the judgment is amended in part and as amended, affirmed. That portion awarding Mrs. Carter the sum of $3,500.00 is amended to show an increase to the amount of $10,-000.00. All other aspects of the judgment are affirmed. Costs are to be paid by the defendants.

AMENDED IN PART AND AS AMENDED, AFFIRMED.


author: CRAIN, Judge.

text:
    Gilbert BURATT v. CAPITAL CITY PRESS, INC.
    No. 83 CA 1240.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Writ Denied Jan. 14, 1985.
    Victor L. Marcello and James Marchand, Donaldsonville, for plaintiff-appellee.
    Frank M. Coates, Jr., Baton Rouge, for defendant-appellant.
    Before WATKINS, CRAIN and ALFORD, JJ.
   CRAIN, Judge.

Defendant, Capital City Press, appeals the judgment of the trial court finding in favor of plaintiff, Gilbert Buratt, in a libel action arising out of the publication of a newspaper article by defendant.

FACTS

On July 8, 1979, Capital City Press, through its newspaper, The Sunday Advocate, published an article which concerned Gilbert Buratt, who had been a member of the Ascension Parish Police Jury for over 10 years and was then Parish Manager. That article was entitled, “Records Reveal Gifts to Police Jurors”. It was prefaced with the words, “ ‘Gestures of Friendship’ in Ascension”. The article, in pertinent part, states as follows:

Barber also said that his firm was asked to overlay road beds in a subdivision in Galvez owned by Police Juror and Parish Manager Buratt and a partner.
Buratt said that he never developed any property in the area.
Barber said that the company turned down the request since tests showed the road bed was “insufficient for overlay purposes.” He said Buratt’s unnamed partner later said that he would pay whatever price was necessary since he had been turned down a number of times. He said the work was eventually performed by someone else.

Plaintiff, Gilbert Buratt, subsequently filed suit against Capital City Press seeking to recover damages based on alleged defamation. Defendant filed an exception of no cause of action, which was maintained by the trial court. This court reversed in Buratt v. Capital City Press, 399 So.2d 687 (La.App. 1st Cir.1981), finding that a defamatory implication could be drawn from the words in question and further finding that the petition clearly alleged malice — one of the essential elements of a cause of action for defamation in this case.

Trial was held on January 11, 1983, and, for written reasons assigned, judgment was rendered in plaintiffs favor and against defendant in the sum of $300.0 in damages and $1000 in attorney’s fees.

From that judgment, Capital City Press appeals, specifying the following as error:

1. The lower court erred in finding the reported fact in question defamatory.
2. The lower court erred in failing to find that the defense of truth applied in this case.
3. The lower court erred, as a matter of law, in holding that the newspaper must report the totality of public records on a subject in order to enjoy any privilege and that any summation of particular public records, even though accurate, subjects the newspaper to damages.
4. The lower court erred in finding “actual malice” on the part of the defendant.

LAW

On May 21, 1979, the Louisiana Supreme Court handed down a decision in the case of Fryar v. Guste, 371 So.2d 742 (La.1979). This case held that certain interviews from the Attorney General’s office involving the Ascension Parish Police Jury were public records required to be disclosed by the Attorney General to members of the public, including newspaper reporters. A rehearing was denied on June 25, 1979. The plaintiff in that case, Milford Fryer (Mr. Fryer’s name is incorrectly spelled in the Supreme Court case), was, in fact, a newspaper reporter and wished to view these interviews to see whether or not there was anything of public interest that ought to be published. Mr. Fryer and other reporters went to the Attorney General’s office shortly after the opinion became final and went over the records. As a result of the inspection of these records, there appeared in The Sunday Advocate of July 8, 1979, four newspaper articles based on the records. All of these articles involve excerpts and summaries of material taken from those statements of the Attorney General’s office declared to be public records by the Louisiana Supreme Court. The record is clear that the writers of these articles wrote the articles based on the contents of the public records alone. It is also clear that the articles were not based on all of the available public records, but only on those selected by the reporters.

Plaintiff objected to the statement in one article that he owned an interest in a subdivision where he asked Paul Barber to overlay the road beds. The trial court found that this statement was indeed untrue and when connected with the headlines of the article was defamatory. The trial court’s well-reasoned opinion, utilizing the standards for a defamation action set out by this court in Buratt, supra, is attached to this opinion with our approval.

We conclude after examination of the evidence that the trial judge’s findings of fact to which plaintiff objects in his first, second and fourth assignments of error are not manifestly erroneous and should not be disturbed on appeal. Canter v. Koehring Co., 283 So.2d 716 (La.1978). We also find defendant’s third assignment of error without merit and adopt the trial judge’s written reasons for judgment as our own. We would additionally point out with reference to this assignment of error that the assignment alleges error in a holding of the trial court which we do not find was the trial court’s holding. The assignment states that the trial court holds that public records must be reported in their entirety and cannot be summarized even if the summary is accurate. That is not what the trial judge held and that is not what defendant’s employees did. The trial judge held that if public records are going to be summarized, the summarization should be based on the entirety of the records available. The summary in this case was not. The summary did not include a summarization of other available records which completely refuted the thesis of the article. The disregard of the other available statements which could also have been summarized without further research or investigation, and which would have changed the whole tenor of the disputed statement in the article with reference to Buratt is what makes this a violation of the New York Times actual malice rule. It is illustrated by the following: The article summarized a statement given the Attorney General by Paul Barber. In the article Barber was summarized as referring to “... a subdivision in Galvez owned by Police Juror and Parish Manager Buratt and a partner” and “Buratt’s unnamed partner ...”. The unnamed partner was Earl Stafford. His statement was also there with the documents of the Attorney General that had been declared public, and was in fact examined by the same reporters who summarized Barber’s statement. It completely refuted ownership of the subdivision by Buratt. Yet it was not summarized or referred to by the reporters.

This is what the trial judge meant by summarizing all available material. The trial judge did not require investigation, or verification or verbatim reproduction. He simply held that when other information was there and was in fact known by the reporters, they were not justified in omitting that information from the summary simply because it refuted the point they were trying to make. A reckless disregard for the truth or falsity of the material published follows from such action. New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

Appellee’s request for additional attorney’s fees on appeal may not be considered by this court, as plaintiff did not appeal or answer the appeal. La.C.C.P. art. 2133, Celestin v. Fireman’s Fund Insurance Company, 430 So.2d 1263 (La. App. 1st Cir.1983).

For the foregoing reasons, the judgment of the trial court is affirmed. Appellant is to pay all costs.

AFFIRMED.

APPENDIX

STATE OF LOUISIANA

PARISH OF ASCENSION

23RD JUDICIAL DISTRICT COURT

GILBERT BURATT

VERSUS NO. 26,374

CAPITOL CITY PRESS, INC.

Filed: April 4, 1983

REASONS FOR JUDGMENT

Plaintiff has filed suit to recover damages based upon an alleged defamatory newspaper article published by the defendant.

I.

The first issue this Court must decide is whether the words published by defendant could, in fact, be construed as defamatory.

This Court is in complete agreement with the jurisprudencé cited and the decision of the First Circuit Court of Appeals (who stated in their prior decision of this matter when deciding on an exception of no cause of action):

“Appellee contends that the words contained in the body of the news article are not in themselves defamatory. This may be true. However, appellant has alleged in his petition that the headline or title of the article and a preface connect the idea of ‘gestures of friendship’ and ‘gifts to police jury members’ with the statements in the body of the article concerning appellant, and that the overall implication of these statements is defamatory. We agree.”
“The statements naturally imply conduct by appellant, which is, at least, an unethical use of his public position, and the possible commission of a crime by him. When taken in their entirety, these words, together with the reasonable inferences to be drawn from them, would tend at the least to deprive appelant, a public official, of the benefit of public confidence and injure him in his occupation.”

II.

The second issue this Court must decide is whether the words published by defendant, if defamatory, were in fact truthful.

The evidence presented at the trial of this matter established clearly and without doubt or even contradiction that plaintiff DID NOT in fact have any interest in a subdivision in Galvez or any subdivision anywhere else.

III.

Defendant further alleges as a defense that the article is an accurate report of what is contained in the public records.

This Court is well aware of the provisions of Article 12, Section 3 of the Louisiana Constitution of 1974, and the cases of Bartels v. Roussell, 303 So.2d 833; Fran cois v. Capital City Press, 166 So.2d 84; Wilson v. Capital City Press, 315 So.2d 393 and other cases cited by defendant. This Court is not in disagreement with any of the principles set out therein. It is clear that a newspaper does have the right to publish material taken from public records.

The Judge was instructed, some time ago, that it was a basic principle of law that for every right received there was also an attendent obligation. This Court is of the opinion that this is still a valid principle of law and applicable to this ease. The evidence herein clearly showed that defendant did use as a source for its article information gathered from the public records; however, the evidence also shows the article did not contain matter quoted verbatim from the public records and so identified but only a summarization of what defendant felt the public records reflected.

It is the opinion of this Court that the right to inspect and use public records has an attendent obligation that any use of said public records must accurately and fairly represent what is contained in the entirety of said public records. It is the considered opinion of this Court that any other holding would be unconscionable.

The evidence presented herein established that although the article itself was written by Milfred Fryer and Roy Pritch-ford, the inspection of the public records was only partially done by them. The evidence established that Mr. Fryer, Lawrence Albarado and Roy Pritchford (all employees of defendant) divided the documents among themselves and each reviewed only a portion thereof. The article written was based on their separate notes of what each felt was pertinent of that portion they reviewed and copies of some statements they felt important. The evidence is clear that all three of defendant’s employees were afforded complete access to the records in question, no time limit for their inspection was given and they were allowed to make copies of whatever they wished.

It is the opinion of this Court that the article does not accurately reflect what is contained in the entirety of these public records. The basic thrust of the article is that a police juror owned a portion of a subdivision and asked as a favor that the roads therein be overlaid. While defendant did print a denial of Mr. Buratt, it did not report that another statement of Mr. Bu-ratt and one given by Earl Stafford (who was named by Mr. Buratt as the owner of the subdivision in his statement copies of which defendants had in their possession) were in those records and that the statement of Mr. Stafford completely supported the statements of plaintiff. It is very interesting that on direct examination defendant’s employees testified they did not see or remember Mr. Stafford’s statement or Mr. Buratt’s second statement but on cross examination when Mr. Roy Pritchford reviewed his notes, these notes contained information that could only have come from Mr. Stafford’s statements and/or Mr. Bu-ratt’s second statement.

It is the opinion of this Court that the evidence presented establishes that a fair and accurate report of the public records would change the article from Gilbert Bu-ratt attempting to extort favors or “gifts” from a parish contractor (criminal activity) to Gilbert Buratt introducing a constituent to a possible business associate, a completely innocuous activity.

IV.

The next issue is that of whether there existed actual malice on the part of defendant so as to allow plaintiff, a public official, to recover damages for a defamatory statement.

In its prior decision on this matter the First Circuit Court of Appeals again cited the law applicable herein:

“As to the legal issue of malice, our Supreme Court, in Kidder v. Anderson, 354 So.2d 1306 (La.1978), stated:

‘A public official may not recover damages for a defamatory statement, even if false, relating to his official conduct “unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard or whether it was false or not.” New York Times Company v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964).’ ”

The evidence presented in this case showed clearly that defendant had knowledge that statements contained in its article might be false. Not only did defendant have plaintiff’s denial but other statements were contained in the public records (and known to defendant as shown by the notes introduced into the record) that supported plaintiffs statements. It is very interesting that Mr. Roy Pritchford, defendant’s employee who wrote the portion of the article in question, testified that if he had all the statements before him when he wrote the article (statements that his own notes on cross examination show he had reviewed personally) he would have consulted legal counsel before printing the article.

Despite knowledge as reflected by their notes themselves, that certain statements contained in the article might be false all three of defendant’s employees testified that they did not make ANY EFFORT WHATSOEVER to determine which of the conflicting statements they reviewed might be true. Not one single person was interviewed, no back up work was done whatsoever, and despite fact that one of the employees testified he had consulted the conveyance records on previous occasions to determine whether plaintiff owned a subdivision, no new effort was made or prior notes reviewed.

The evidence herein established that defendant through it’s employees wrote an article based on certain statements contrary to plaintiff’s interest and in writing said article simply chose to ignore statements that refuted the statements they were relying upon. An article if based on public records must be reflective of what is contained in the entirety of said public records, not merely that portion which supports one position. To publish an article based on a portion of some public records that supports only one position when those public records themselves also contain other evidence that shows the portion relied upon might be false, without any independent investigation into which portion might be correct, is clearly to publish “with reckless disregard of whether it is false or not” (actual malice).

V.

The issue of damages is all that remains. In a case of this nature the matter of damages is very difficult. The Court is convinced that plaintiff has suffered embarrassment as a result of this article as the newspaper of defendant is distributed widely in the area of plaintiff’s residence, however, plaintiff has been re-elected to office and the evidence presented has not proven to this Court’s satisfaction whether a decrease in the margin of victory was due to this article, the opponent or other political considerations. Accordingly, plaintiff will be awarded Three Thousand and No/100 ($3,000.00) Dollars as damages and attorney’s fees of One Thousand. and No/ÍOO ($1,000.00) Dollars under Article 2315.1 of the Louisiana Civil Code and defendant also will be assessed all costs of court.

      . We would note that appellant’s reasoning that the material should not be considered defamatory derives from its theory that the statements that plaintiff, as a police juror and parish manager attempted to get a contractor who did business with the parish to overlay a subdivision owned by the juror, admittedly untrue, should not be read in conjunction with the headline under which it appeared. That headline was set up as follows:
      ‘“GESTURES OF FRIENDSHIP’ IN ASCENSION
      RECORDS REVEAL GIFTS TO POLICE JURY MEMBERS"
      We consider this argument without merit. If the material under a headline is not relevant to that headline it shouldn't appear there. Actually, the conclusion is inescapable that the headline is purposely being used to create an inference of wrongdoing from what would otherwise be very weak material. The inference created, as we stated in our original opinion, is that Buratt was guilty of "... at least, an unethical use of his public position, and the possible commission of a crime by him.” Buratt, 399 So.2d at 689. This is defamatory.

      . This fact distinguishes this case from those cited by appellant. In Wilson v. Capital City Press, 315 So.2d 393 (La.App. 1st Cir.1975), writ denied, 320 So.2d 203 (La.1975), the material printed came from the only public record available which turned out to be erroneous. The same is true in Francois v. Capital City Press, 166 So.2d 84 (La.App. 3rd Cir.1964). Conceding also the limited privilege to publish public records is applicable here with reference to the statement summarized, this privilege is conditioned on there being no malice. Francois, 166 So.2d at 88. The trial court correctly applied the New York Times rule of actual malice to this case, Buratt obviously being a public figure. A finding that there is actual malice under the New York Times rule also removes the statement from the limited privilege status accorded by Louisiana law.


author: CARTER, Judge.

text:
    FRANK’S DOOR & BUILDING SUPPLY, INC. v. DOUBLE H. CONSTRUCTION COMPANY, INC. and Stephen K. Heine.
    No. 83 CA 1253.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      Ronny Champlin, Baton Rouge, for plaintiff-appellee.
    E. Wade Shows, Baton Rouge, for defendant-appellant.
    Before COLE, CARTER and LANIER, JJ.
   CARTER, Judge.

This is a suit on an open account filed by Frank’s Door and Building Supply, Inc. against Double-H Construction, Inc. and Steven K. Heine.

Steven K. Heine purchased certain construction goods from plaintiff on open account in the name of Double-H Construction, Inc., leaving an unpaid balance of $5,855.39. Despite demand for payment, the account remained delinquent. Whereupon, plaintiff filed suit against Double-H Construction, Inc. and Steven K. Heine for $5,855.39 plus attorney fees.

Double-H Construction, Inc. failed to answer plaintiffs petition, and a default judgment was taken against the corporation for $5,855.39 plus attorney fees. Defendant Steven Heine filed an answer in the form of a general denial. He later supplemented his answer denying personal liability for the indebtedness and alleging that any goods provided by plaintiff were received by authorized agents of defendant Double-H Construction, Inc.

The trial court rendered judgment in favor of plaintiff and against defendant Heine for $5,855.39, finding that defendant failed to prove disclosure of an agency relationship. From this judgment, defendant Heine appeals, assigning the following errors:

(1) The trial court erred in finding that defendant Heine was personally liable for the debt to plaintiff; and
(2) The trial court erred in rendering judgment in favor of Frank’s Door and against Heine for the same debt for which defendant Double-H Construction, Inc. had been cast in a prior default judgment.

Is defendant personally liable to Frank’s Door and Building Supply for debts incurred?

Under Louisiana law, a principal is bound by the authorized or ratified acts of his agent. LSA-C.C. art. 3021. The agent, however, is liable to those with whom he contracts on behalf of his principal only when he has bound himself personally or has exceeded his authority without informing his co-contractant (person with whom he contracts) of the extent of his powers. LSA-C.C. art. 3013. Generally, an agent is held to have bound himself personally when he enters into an agreement without disclosing the identity of his principal. Williams v. O’Bryan, 257 So.2d 174 (La. App. 3rd Cir.1972); Foshee v. Hand-Enis Realty Co., 237 So.2d 437 (La.App. 3rd Cir.1970). The agent has the burden of proving that he disclosed this agency status and the identity of his principal if he wishes to avoid personal liability. LSA-C.C. art. 3012, 3013; Andrus v. Bourque, 442 So.2d 1383 (La.App. 3rd Cir.1983); Chartres Corporation v. Twilbeck, 305 So.2d 730 (La.App. 4th Cir.1974); Eastin v. Ramey, 257 So.2d 717 (La.App. 3rd Cir. 1972).

Express notice of the agent’s status and the principal’s identity is not required to escape personal liability if the agent proves that sufficient evidence of the agency relationship was known by the third party so as to put him on notice of the principal-agent relationship. J.T. Doiron, Inc. v. Lundin, 385 So.2d 450 (La.Apn. 1st Cir.1980).

In the case sub judice, numerous documents were introduced in an attempt to show that the agency relationship between Double-H Construction, Inc. and Steven Heine was disclosed to Frank’s Door. Several checks drawn on the account of “Double H Construction, Inc.” were cashed by plaintiff and credited to the account of “Double H Const. Co.” Another document contained in the record is a credit application, dated February 27, 1981, which is signed by Steven K. Heine without any notation as to his representative capacity. “Double H Const.” is also named on the credit application. Additionally, a group of ledger sheets in the name of “Double H Const. Co.” were introduced into evidence. These documents, plus the self-serving testimony of Heine, are the only items of evidence showing that Heine disclosed his agency relationship.

We do not feel that Heine proved that express notification was given to plaintiff of any agency relationship. We also do not feel that the isolated references to the corporate status of Double-H Construction, Inc. in the documents presented give rise to facts and circumstances which demonstrate affirmatively that plaintiff was aware of the agency relationship. See Prevost v. Gomez, 251 So.2d 470 (La.App. 1st Cir. 1971). Therefore, we conclude that Heine failed to disclose his agency relationship and is individually liable for the debts incurred.

Is Heine solidarily liable with Double-H Construction, Inc. for the debt?

LSA-C.C. art. 2091 defines an obligation in solido as follows:

There is an obligation in solido on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them, exonerates the others toward the creditor.

It is the coextensive obligation for the “same thing” (and not the source of liability) which creates the solidarity of the obligation. Narcise v. Illinois Cent. R. Co., 427 So.2d 1192 (La.1983). When it is not clear that the parties are obliged to the same thing, then an obligation in solido is not presumed and must be expressly stipulated. However, when it is entirely clear that the parties are all obliged to the same thing, then there is an obligation in solido by definition, as a matter of law, and there is no need to presume solidarity. LSA-C.C. art. 2093; Narcise v. Illinois Cent. R. Co., supra.

Thus, a principal and an undisclosed agent are solidarily liable for a debt. Although the agent’s liability is based upon his failure to disclose his principal and the principal’s liability is imposed by law on the basis of the relationship (Article 3021), both are obliged to the same thing (to pay the debt owed to the third party). See Andrus v. Bourque, supra; Martin Home Center, Inc. v. Stafford, 434 So.2d 673 (La.App. 3rd Cir.1983); Livingston Roofing Co. v. E.E. Rabalais & Son, 401 So.2d 1047 (La.App. 3rd Cir.1981). Therefore, Heine is clearly solidarily liable with Double-H Construction, Inc. for the debt.

Is Plaintiff precluded from obtaining judgment against Heine because of previously rendered judgment against Double-H Construction, Inc. ?

In LaBella Insulation, Inc. v. Connolly, 182 So.2d 117 (La.App. 4th Cir.1966), the court addressed this same issue and held that “in an action ex contractu, one who acts for an undisclosed principal may be sued in the alternative with the alleged principal. However, the plaintiff may recover from one only and not from both, hence he cannot obtain a judgment in solido against both.” However, we agree with the United States Fifth Circuit’s interpretation of LaBella as set forth in Intercontinental Engineering-Mfg. v. C.F. Bean, 647 F.2d 621, 630 (5th Cir.1981).

[I]t [LaBella] stands only for the proposition that where a plaintiff seeks to recover in the alternative from either an agent or his undisclosed principal, he cannot obtain the same judgment against both. At most, LaBella stands in accord with those Louisiana cases, such as Dumaine & Co. v. Gay, Sullivan & Co., 192 So. 117, 119-20 (Orl.App.1939), holding that a party may lose his right to sue the agent by electing to proceed against the undisclosed principal exclusively. We do not view LaBelta as establishing the rule in Louisiana that a plaintiff in such circumstances may not sue both the agent and his principal in a single suit in order to obtain a judgment binding them in solido. Indeed, our examination of the Louisiana cases indicates that the rule is quite the opposite:
The final issue in this case is the respective liability of the defendants, Dr. Hand and the Hand-Enis Realty Co., Inc. Dr. Hand contends that he was merely the agent of the Hand-Enis Realty Co., Inc., of which he was president, and, as such, incurred no personal liability. The record reflects that Dr. Hand at no time mentioned that he was an agent for the Hand-Enis Realty Co., Inc., or that it was involved in the operation of the Natchitoches Geriatrics Hospital.
The evidence as a whole convinces us that Dr. Hand did not disclose, nor was Mr. Foshee aware, that Dr. Hand was acting as the agent of the Hand-Enis Realty Co., Inc. An agent who contracts for a principal without disclosing that fact is personally liable to the party with whom he contracts. The undisclosed principal is also liable.
Foshee v. Hand-Enis Realty Co., 237 So.2d at 440 (affirming judgment holding agent and principal liable in solido on contract).

In Intercontinental Engineering-Mfg. v. Bean, supra, the plaintiff sued both principal and agent in order to obtain a judgment binding the two in solido. The Court held, and we agree, that obtaining a default judgment against one did not preclude pursuing the original suit against the other. This is in accordance with our appreciation of the Louisiana jurisprudence. See also Andrus v. Bourque, supra; Martin Home Center, Inc. v. Stafford, supra; Livingston Roofing Co. v. E.E. Rabalais & Son, supra. Therefore, plaintiff is not precluded from pursuing to judgment his claim against Heine despite the previously rendered default judgment against the corporation.

For the above reasons, the judgment of the trial court is affirmed at defendant Heine’s costs.

AFFIRMED.

      . Steven K. Heine was erroneously sued as Stephen K. Heine, and Double-H Construction, Inc. was erroneously sued as Double H. Construction Company, Inc.

      . Although we will not address each of defendant’s assignments of error individually, the opinion adequately discusses the issues raised by defendant.

      . The text of LSA-C.C. art. 2093 clearly states that a contractual obligation in solido must be stipulated expressly; what has not been clear is whether a solidary obligation arising by law must be expressly stipulated in some provisions of law. Solidarity has been found in a number of cases in which it is not expressly provided in any law, but the courts have directly addressed the meaning of article 2093 in only a few cases. See 41 La.Law Rev. 659 (1981).


text:
    Georgia P. LUSK v. DURHAM PONTIAC-CADILLAC, INC.
    No. 83 CA 1254.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      Johnny S. McGary, Ponchatoula, for plaintiff-appellant.
    Rodney C. Cashe, Hammond, for defendant-appellee Durham Pontiac-Cadillac, Inc.
    R. Michael Caldwell, Baton Rouge, for defendant-appellee Safeco Ins. Co.
    Arthur S. Mann, III, New Orleans, for defendant-appellee General Motors Acceptance Corp.
    Before WATKINS, CRAIN and ALFORD, JJ.
   CRAIN, Judge.

This is an appeal from a judgment of the trial court in a redhibition suit, granting defendant, Durham Pontiac-Cadillac, Inc. (Durham), a new trial and remitting the trial court’s previous damage award to plaintiff, Georgia Lusk.

FACTS

On October 27, 1979, Georgia Lusk purchased a 1979 Toyota Corona from Durham. The car had been used as a demonstrator and had 5105 miles registered on its odometer at the time of sale.

Shortly after the purchase, plaintiff noticed an unusual tendency of the car to wear out tires. She returned the car on at least two occasions to Durham for repair. The first time she brought the car in for repair, it was kept for two or three days. The second time, Durham kept the car for approximately two months. Both of these attempts at repair were unsuccessful, and in October 1980, plaintiff tendered the vehicle to Durham and requested return of the purchase price.

The car remained in Durham’s possession from October 1980 until February 17, 1981. On February 17, 1981, the car was totally destroyed in an auto accident while being test-driven by a representative of Toyota at defendant’s request.

After tender of the vehicle to Durham, plaintiff had discontinued her car payments to GMAC and, consequently, GMAC brought executory proceedings against the plaintiff. The car was seized and placed in defendant’s custody. After the car was wrecked, it was sold at Sheriff’s sale for $667.00 to GMAC.

Safeco Insurance Company (Safeco), liability insurer of the driver of the car which destroyed plaintiff’s vehicle, paid General Motors Acceptance Corporation (GMAC) $5290.49 for property damage to the car.

TRIAL COURT

On November 7, 1980, after returning the car to defendant, plaintiff filed a petition for redhibitory action against defendant. Defendant answered and filed a third party demand against Safeco. Plaintiff filed a so-called “Third Party Demand” against Safeco, which was later amended to read “Petition for Damages”. Safeco answered these demands and named GMAC as third party defendant. GMAC answered and filed a reconventional demand against the plaintiff.

After trial on the merits, the trial court made the following findings of fact:

(1) Defendant made a full disclosure to plaintiff of the fact that the Toyota automobile purchased by her was a demonstrator and had mileage on it at the time of purchase.
(2) There was a defect in the automobile at the time of purchase by plaintiff.
(3) The defect was of such a nature that it could be repaired.
(4) The defect was repaired by defendant.
(5) The last payment to GMAC was made in November of 1980.
(6) The collision damage to the Toyota was caused solely by Mrs. Gladys Treece, the insured of Safeco, in the rear-end collision.
(7) The agents of General Motors and defendant were in no way contributorily negligent in the accident.
(8) The car was a total loss as a result of the rear-end collision.

The court held that plaintiff was entitled to $1250.00 in damages and $750.00 in attorney’s fees. The court also found that Safeco properly paid GMAC $5,290.49 for damage to the vehicle and that GMAC was entitled to judgment against plaintiff in the amount of $3611.34 — the balance due after the proceeds of the Sheriff’s sale and the amount paid by Safeco had been applied.

Plaintiff’s suit against Safeco, defendant’s third party demand against Safeco, and Safeco’s third party demand against GMAC were all dismissed.

Defendant filed a motion for a new trial, which was granted by the trial judge on the sole issue of the amount of damages, if any, to be awarded plaintiff against defendant. After a new trial was held, the trial court amended its earlier damage award, eliminating everything except $80.00 paid by plaintiff for wheel alignment. The previous award of attorney’s fees was also disallowed. From that judgment plaintiff appeals, assigning the following as error:

(1) The trial court’s decision granting defendant a new trial and remitting its previous damage award is contrary to the law and evidence.
(2) The trial court’s original award of only $750.00 as attorney’s fees was inadequate and its failure to award attorney’s fees on the retrial is clearly wrong.

REDUCTION IN PURCHASE PRICE AND DAMAGES

Once a defect is proved in a redhibi-tory action, one of two remedies is appropriate. Under La.C.C. art. 2520, a buyer is entitled to recission of the sale if the defects in the thing bought render it absolutely useless or its use so inconvenient or imperfect that an informed buyer would not have bought it. Leonard v. Daigle Pontiac-Buick-GMC, Inc., 413 So.2d 577 (La.App. 1st Cir.1982). If the defects can not be considered of the magnitude necessary to support recission of the sale, a reduction of the purchase price, rather than a recission, is called for. La.C.C. art. 2541, Leonard, supra.

Apparently, after finding a defect existed in plaintiff’s Toyota, the trial judge determined that the appropriate remedy was a reduction in purchase price (although it is not labeled such in his findings of fact).

In his original findings of fact the trial judge found:

1. Plaintiff is entitled to judgment for the damages suffered by her as a result of the defects in the Toyota purchased from the defendant in the amount of $1,250.00. This amount takes into consideration that plaintiff was able to drive the car approximately 15,000 miles. Plaintiff is also entitled to attorney’s fees in the amount of $750.00. Said amounts are to bear legal interest from the date of judicial demand. Inasmuch as the defects were repairable and were, in fact, repaired by the defendant, plaintiff is not entitled to a rescission of the sale.

On new trial, those findings of fact were amended as follows:

The Court having considered the testimony of the plaintiff at the new trial, and compared it with the testimony of plaintiff given at the original trial, it is the opinion of this Court that it erred in its original findings as pertains to the amount of damages awarded to said plaintiff. In computing the damages, the Court had originally taken into consideration the two months that the vehicle remained in defendant’s shop awaiting repairs. It had considered the monthly payments made by plaintiff during that period of time, as well as the inconvenience of not having the car available. It also considered the value of three new tires which it believed that plaintiff had placed on the vehicle, due to the wear caused by the defect. Having reviewed the testimony of plaintiff at both the original trial and the new trial, this Court finds that plaintiff did not carry out her burden of proof that the vehicle remained on the premises of defendant for a period of two months due to any fault of said defendant, nor that plaintiff was prohibited from using it during that two month period. She did not remember if she had ever contacted the defendant to see if she could have used it. Accordingly, she is not entitled to the original damages awarded for the payments which she made to GMAC, nor the loss of use of the vehicle during the said two month period, nor any inconvenience occasioned thereby.
The testimony at the new trial also revealed that she had no information about the three tires allegedly placed on the car. She did not know if the tires were new, or what their cost was, as the husband allegedly handled that. Therefore, she would not be entitled to the value of the tires.

The proper measure of damages in an action to reduce the sale price is the difference between the actual sale price and the price a reasonable buyer and seller would haye agreed upon, if they had both known of the defect. Leonard, supra; Wade v. McInnis-Peterson Chevrolet, Inc., 307 So.2d 798 (La.App. 1st Cir.1975). One of the principal elements in formulating the award is the cost of repairing the defects which existed at the time of sale. Menville v. Stephens Chevrolet, Inc., 300 So.2d 858 (La.App. 4th Cir.1974), writ denied, 303 So.2d 186 (La.1974). Plaintiff also has a right to be compensated for uncured defects, curtailment of use and the considerable inconvenience caused by the defects, as well as the expenses of the repair. Leonard, supra; Menville, supra.

The cost of repair was never introduced into evidence in this case and therefore never considered by the trial judge. For that reason, we find it necessary to remand this case for the taking of evidence on the cost of repair and a new determination of the reduction in purchase price taking the cost of repair into consideration.

In his original judgment, the trial judge awarded $1250.00 in “damages”, taking into consideration the inconvenience caused by the failure of defendant to cure the car’s defect, the amount of time plaintiff was without transportation, the amount of plaintiffs car payments during the time she was without her car, and the cost of three new tires. We find these to be proper items for which compensation is allowed in addition to cost of repair.

However, upon new trial, the total amount awarded for these items was reduced to $80.00, the trial judge reasoning that plaintiff had failed to prove that-her car remained at defendant’s for a two month period due to defendant’s fault and also failed to prove the purchase and cost of the three tires. While we agree with the trial judge that the purchase of three tires was not proved and the amount awarded should be reduced accordingly, we must agree with plaintiff that the trial court erred in disallowing compensatory damages for the two month period defendant had possession of plaintiff’s car.

Plaintiff testified, that:

(1)She left her car with Durham twice— the first time for 2-3 days, the second time — 2 months. She could not specify dates;

(2) Durham never called and told her the car was fixed during the two month period;

(3) She called Durham at least once during this period and was told that they were waiting on a part;

(4) She had no choice but to leave the car there until it was fixed because she couldn’t afford the tires.

Defendant’s testimony was as follows:

(1) The car was left at Durham for 2 months;

(2) The car was actually repaired within 2-3 weeks;

(3) Durham’s general manager testified that he was told by his service personnel that they had tried to reach plaintiff, but she had changed addresses.

Plaintiff testified that she continued to have the same address and phone number that Durham carried on its records; however, she was never notified of her car’s repair.

Finally, it is clear from the record that regardless of whether plaintiff was notified and could have picked up the car during the two month period, the car was not properly repaired at this time, but continued to give plaintiff problems due to a bent frame after she got it back. The testimony is that the actual repair of the car took place after it was tendered to Durham in October of 1980, not during the original two month period.

In view of those facts, we find that plaintiff’s vehicle remained on defendant’s premises for two months. Although, the plaintiff was not “prohibited” from using the car, she would have been using it without it having been repaired.

Therefore we find that the trial judge’s original award should be reinstated with the exception of the allowance made for the purchase of three new tires. This figure should then be added to the cost of repair in order to determine the appropriate reduction in purchase price.

ATTORNEY FEES

In plaintiff’s second assignment of error, she argues that the trial court’s original award of $750.00 attorney’s fees is inadequate and its failure to award attorney’s fees on retrial is clearly wrong.

A seller of a thing is liable for attorney’s fees in a redhibition action only if it has knowledge of the vice of the thing which it sells. La.C.C. art. 2545. There is no evidence in this case to support a finding of knowledge of the defect on Durham’s part at the time of the sale. For that reason, plaintiff is not entitled to any attorney’s fees.

For the foregoing reasons, judgment of the trial court limiting plaintiff’s reduction in purchase price to $80.00 is reversed. This case is remanded to the trial court for a determination of a reduction in purchase price consistent with the views expressed in this opinion. All costs are to be paid by defendant.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

      . Plaintiff does not assign as error the dismissal of its suit against Safeco. Additionally, neither the defendant nor Safeco appeal the dismissal of their third party demands.


text:
    Nathaniel SUTHERLAND v. BOARD OF COMMISSIONERS, Port of New Orleans.
    No. 83 CA 1272.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      Frank W. Lagarde, Jr., New Orleans, for plaintiff-appellant.
    Joseph W. Fritz, New Orleans, for defendant-appellee.
    Robert R. Boland, Jr., Baton Rouge, for H. Sumrall.
    Before COLE, CARTER and LANIER, JJ.
   CARTER, Judge.

This is an appeal from a decision of the Louisiana Civil Service Commission terminating the employment of appellant, Nathaniel Sutherland, for fighting on the job.

On October 7, 1982, appellant was employed as a work crew foreman for the Board of Commissioners, Port of New Orleans. One of the duties of the work crew foreman was to insure that a sufficient supply of ice was maintained in the ice storage box for the work crew. On the above date, Johnell Campbell and his coworker, James Broadway, were delivering ice to appellant when an argument arose as to whether Campbell would place the ice into appellant’s ice storage box. As a result of this argument, a fight ensued.

After hearing the evidence adduced and viewing the witnesses’ demeaner, the Referee found that appellant abused his authority as foreman and had instigated the fight. Having so found, the Referee affirmed appellant’s termination of employment for cause. Appellant failed to request a review of the Referee’s findings and decision; therefore, they are the findings and decision of the Commission. Civil Service Rule 13:36(e).

In the instant matter, appellant asserts that the Civil Service Commission erred in seven respects. We note that all of appellant’s assignments of error pertain to the Referee’s findings of fact. Accordingly, we will treat them as one.

Permanent civil service employees may be dismissed from employment for disciplinary reasons only for cause. La. Const. Art. X, § 8(A). Cause is found to exist if the conduct complained of impairs the efficiency of the public service and bears a real and substantial relationship to the efficient and orderly operation of the public service in which the employee is engaged. Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (La.1962); Dept. of Corrections v. Murray, 439 So.2d 484 (La.App. 1st Cir.1983). The burden of proving such cause rests upon the appointing authority, requiring that it show by a preponderance of the evidence that the employee’s conduct did in fact impair the efficient and orderly operations of the State service. La. Const. Art. X, § 8; Thornton v. DHHR, 394 So.2d 1269 (La.App. 1st Cir. 1981). Such proof is sufficient to constitute a preponderance when, taken as a whole, it shows that the fact to be proven is more probable than not. Aubert v. Charity Hospital of Louisiana, 363 So.2d 1223 (La.App. 4th Cir.1978), writ denied, 365 So.2d 242 (La.1978). Moreover, the Commission’s findings of fact are entitled to great weight and will not be set aside, absent a showing of manifest error. Thomas v. Dept. of Corn, Office of Prob., 442 So.2d 554 (La.App. 1st Cir.1983), and cases cited therein.

The uncontroverted evidence presented to the referee clearly established the following facts. The Board of Commissioners of the Port of New Orleans had a policy that prohibited employees from fighting, and anyone who violated that policy, other than in self-defense, would be terminated. On October 7, 1982, Campbell and his co-worker Broadway were delivering ice to appellant’s work area. Appellant told Campbell to put the ice into the ice storage box. Campbell refused, whereupon appellant radioed Campbell’s supervisor, Freddie Latham, to inform him of the potential problem. Latham told Campbell to put the ice into the storage box, whereupon Broadway began to do so. Appellant told Broadway to stop loading the storage box with ice and ordered Campbell to put the ice into the box. From this point on, there is considerable conflict in the testimony. Campbell testified that as he turned to walk away from appellant, he was struck by appellant without provocation. He then struck back in self-defense. Campbell testified that appellant then picked up a shovel and attempted to strike him with it. Broadway testified that he did not see who initiated the fight. However, he testified that when he turned around, he saw Campbell’s eyeglasses askew. He testified that Campbell then removed his glasses and commenced to fight. Appellant testified that immediately after the argument, he walked away from Campbell and was hit from behind without provocation. Appellant testified that at that point he picked up a shovel in self-defense. Sam Green, one of appellant’s subordinates, testified that Campbell struck appellant first, knocking him to his knees. Thereafter, Green forcibly removed Campbell from the work shed, but Campbell returned to strike appellant again. Green testified that appellant never threw a punch.

From the facts adduced and the general demeanor of the witnesses, the Referee found Campbell’s version of the incident to be more credible. The Referee concluded that appellant had abused his authority as supervisor in instigating the fight. As such, the Board of Commissioners of the Port of New Orleans had carried its burden of proving that appellant was the aggressor and that his conduct warranted the termination of his employment.

After a careful review of the entire record, we cannot say that the Commission’s findings of fact were manifestly wrong. Arceneaux v. Domingue, supra; Thomas, supra. For the above reasons, the judgment of the Louisiana Civil Service Commission is affirmed. Appellant is to pay all costs of this appeal.

AFFIRMED.

      . Appellant’s assignments of error provide that:
      I. The decision of the Civil Service Commission is contrary to law since the Commission erred in finding that Appellant was the instigator of and the aggressor in reference to an incident between Appellant and another employee of the Dockboard, Board of Commissioners, Port of New Orleans.
      II. The decision of the Civil Service Commission is contrary to law since the Commission erred in finding that Appellant in any way participated in the alleged physical altercation between Appellant and another employee of the Board of Commissioners, Port of New Orleans.
      III. The decision of the Civil Service Commission is contrary to law since the Commission erred in not finding that any of the Appellant’s actions were carried out in self-defense.
      IV. The decision of the Civil Service Commission is contrary to law because the Commission contenanced the removal of employee with fourteen years of service by means of ambiguous, vague, misleading, incomplete and erroneous charges which did not constitute sufficient grounds for the termination of any employee and that further any disciplinary action taken was too severe in light of appellant’s work history.
      V. The decision of the Civil Service Commission is contrary to law because in sustaining the Appointing Authority’s dismissal, the Commission failed to note the obvious weak testimony of the Appointing Authority’s witnesses regarding the charges.
      VI. The decision of the Civil Service Commission is contrary to law and evidence since the evidence adduced at the Civil Service Commission hearing did not support a finding that appellant engaged or provoked an altercation with Johnell Campbell, a fellow employee. The Commission further erred in not accepting the testimony of Appellant nor Appellant’s witness.
      VII. The decision of the Civil Service Commission is contrary to law since the Commission erred in failing to reinstate Appellant, Nathaniel Sutherland, to his former position with all .back pay and emoluments of his office, including reasonable attorney’s fees.

      . La. Const. Art. X, § 8(A) provides in pertinent part:
      No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing.

      . Appellant, in attempting to exonerate himself from any wrongdoing, relies on Campbell’s guilty plea in a criminal prosecution for disturbing the peace, which resulted from the fight in the instant case. Appellant reasons that such guilty plea establishes that Campbell initiated the fight which lead to appellant’s termination and conclusively proves that appellant acted in self-defense. Although a guilty plea is an admission against interest and is admissible as relevant evidence to show fault, it may be given some weight but is not conclusive. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Moore v. Skidmore, 301 So.2d 428 (La.App. 4th Cir. 1974).


author: WATKINS, Judge.

text:
    STATE of Louisiana v. Samilea JACOBSON and Elizabeth Strain.
    No. 84 KA 0118.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Writ Denied Feb. 8, 1985.

      Ossie Brown, Dist. Atty., by Jeffrey Hollingsworth, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Stephen L. Wanninger, Spedale, Sanders & Pennington, Baton Rouge, for defendant-appellant.
    Before WATKINS, CRAIN and ALFORD, JJ.
   WATKINS, Judge.

Samilea Jacobson and Elizabeth Strain were charged by a single bill of information, filed on September 24, 1981, with one count each of obscenity in violation of LSA-R.S. 14:106 by exposing their breast nipples in a public place or place open to public view with the intent of arousing sexual desire or appealing to prurient interest. Defendants pleaded not guilty, waived trial by jury, and were tried by the Judge alone. Each defendant was found guilty as charged and sentenced to imprisonment at hard labor for a period of one (1) year. Execution of the sentencés was suspended and each defendant was placed on supervised probation for one (1) year with special condition that each pay a One Thousand ($1,000.00) Dollar fine and court costs.

From these convictions, defendants have brought the present appeal urging four assignments of error, as follows:

1. The trial court erred in not granting defendants’ motion for acquittal.
2. The trial court erred in rendering a guilty verdict at the close of trial.
3. The trial court erred in denying motion in arrest of judgment.
4. The trial court erred in failing to hold LSA-R.S. 14:106A(1) unconstitutional on its face in violation of the United States Constitution and alternatively unconstitutional as applied to defendants in this case.

We affirm the convictions and sentences.

On September 4, 1981, Officers Thompson and Laird, both detectives with the Baton Rouge City Police Department, while within premises known as Fox Hunter Lounge located in the City of Baton Rouge, observed five different women perform on a stage. After discussing their observations regarding the manner in which the women had performed and their belief that the women were clad only in G-strings, Officers Thompson and Laird summoned additional police officers to the scene by radio.

The five women performers, which included defendants herein, were thereafter arrested and transported for booking. The present charges were brought based on this incident.

ASSIGNMENT OF ERROR NUMBERS 1 AND 2:

By means of these assignments, defendants contend that the evidence presented at trial was insufficient to support their convictions on charges of obscenity.

Assignment of Error Number 1 is based on denial of a motion of acquittal, sought by defendants at the close of the state’s evidence. La.C.Cr.P. art. 778 provides that at a bench trial the court should enter a judgment of acquittal (either at the close of the state’s evidence or of all the evidence) if the evidence presented is insufficient to sustain a conviction. Procedurally, Assignment of Error Number 2 raises sufficiency of evidence by formal assignment.

The applicable standard for reviewing sufficiency of the evidence, whether raised by formal assignment or motion for acquittal, is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the essential elements of the crime were proven beyond a reasonable doubt. La.C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983).

LSA-R.S. 14:106 defines the crime of obscenity in several ways. LSA-R.S. 14:106A(1), the subsection pertinent to the instant prosecution, provides:

A. The crime of obscenity is the intentional: (1) Exposure of the genitals, pubic hair, anus, vulva, or female breast nipples in any public place or place open to the public view with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive.

Evidence adduced at trial as to the appearance and conduct of defendants, on the night in question, is grounded on the testimony of Officers Dean Thompson and Sharon Laird.

Officer Thompson testified that after entering the Fox Hunter Lounge he and Officer Laird took seats next to the stage. From that vantage point, he observed five female dancers (later identified as the five women charged in the instant bill of information) individually come on to the stage, perform, and leave.

Officer Thompson described the appearance of each dancer as being clad only in a G-string as each of the dancer’s breast nipples appeared visible to him. The lighting in effect during the performances was at times flashing with the dancers’ breast area sometimes completely lit up. In addition, as a dancer performed, she would approach within a distance of one foot of a patron seated by the stage. Because of this proximity, at least one of the five dancers was observed to have been physically touched by a patron.

Detective Laird’s testimony as to defendants’ appearance and conduct on stage was in accordance with that of Officer Thompson.

After the arrival of other police officers summoned by radio, Officer Laird had further opportunity to view defendants in their dressing room. She testified that it was only then that she observed each of the dancers had a small amount of translucent surgical tape covering the breast nipple area.

Detective Robert Howie, one of the officers who responded to the radio summons, testified that upon arrival at the Fox Hunter Lounge he proceeded to close down the business activity. Thereafter, one of defendants approached him and explained that she had tape on her nipples. However, he testified that upon observing her breasts “it didn’t appear to me that there was any tape on it.”

The assignment of error that the evidence introduced at trial is not sufficient is based upon three contentions. The first is that the state failed to prove beyond a reasonable doubt that defendants intentionally exposed their breast nipples as defined by the statute. The second contention is that any such exposure was not proven beyond a reasonable doubt to have been with the intent of arousing sexual desire or appealing to prurient interests. The final contention is that the state failed to prove beyond a reasonable doubt that the proscribed conduct occurred in a public place or place open to public view.

In presenting the argument with respect to the first contention, defendants urge that since their breast nipples were covered with translucent tape during the instant performances they were not exposed as proscribed by LSA-R.S. 14:106A(1).

LSA-R.S. 14:3 provides in pertinent part that “... all of its (the criminal code’s) provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.”

The article under which defendants were prosecuted does not give a specific meaning for the word “expose” as it is there used. Webster’s Third New International Dictionary, in discussing the many uses and meanings of the word, gives among others “to lay open to view” and “to deprive of concealment.” Although we do not hold that the word “expose” as used in this statute is limited to meaning “exposed to sight” that is a construction generally in use and one which gives a fair import to the word.

Had the legislature intended to limit the proscribed appearance aspect of the statute to a bare, naked, or uncovered breast nipple it could have easily chosen such a word or words to express its intention.

At trial, each of the three police officers stated that the defendants’ entire breasts, including breast nipples, were clearly visible when viewed during the on stage performances. We need not decide whether the exposure was due to complete bareness or the visibility provided by translucent tape coupled with lighting conditions.

Despite some semantical variance in the testimony of the three officers in describing what was seen, viewing the evidence in the light most favorable to the prosecution, as we are required, we conclude that the trier of fact could have found beyond a reasonable doubt that, during the performances in question, the defendants’ breast nipples were exposed in violation of LSA-R.S. 14:106A(1).

Defendants also urge that, based on the evidence introduced at trial, the trier of fact could not have reasonably found that any exposure by defendants of their breast nipples was with the intent of arousing sexual desire or appealing to prurient interest.

Intent is a state of mind which need not be proven as a fact, but may be inferred from any facts or circumstances that may be shown to exist in a case, and thus is a matter for the trier of fact. LSA-R.S. 15:445; State v. Vines, 245 La. 977, 162 So.2d 332 (1964). State v. Antoine, 444 So.2d 334, (La.App. 1st Cir.1983). Moreover, specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. Graham, 420 So.2d 1126 (La.1983).

As noted above, the officers who witnessed the performances testified as to defendants’ conduct. The setting of the performances, the attire of the performers, the proximity of the patrons to the performers, and purposeful directing of attention to the breasts by flashing lights, depict circumstances from which a trier of fact could have found beyond a reasonable doubt that such conduct was with the intent of arousing sexual desire or appealing to prurient interest.

The fact that the performances were not shown to have produced sexual desire of the police officers or any other person is immaterial, for the statute does not require that sexual desire be actually aroused. All that is required under the statute is that there be the intent of arousing sexual desire. State v. Vines, supra.

Finally, defendants urge that the State failed to prove that the proscribed conduct occurred “in any public place or place open to the public view” as required by LSA-R.S. 14:106A(1).

Section 106A(1) was amended in 1979. The legislative intent of Act 252 of 1979 was made clear in the Act’s title, which states that the purpose of the amendment was “to include within the scope of the statute obscenity which takes place in any enclosed or unenclosed area operated to receive or accommodate the public or people at large.” In view of the clear purpose of the amendment, we conclude that sufficient evidence was presented at trial from which the trier of fact could have found that the Fox Hunter Lounge was a “public place” within the contemplation of this statute.

Accordingly, these assignments lack merit.

ASSIGNMENTS OF ERROR NUMBERS 3 AND 4:

In these assignments, defendants argue that LSA-R.S. 14:106A(1) is unconstitutional on its face in violation of the United States Constitution, and alternatively unconstitutional as applied to the instant prosecution.

Specifically, defendants urge that LSA-R.S. 14:106A(1) is not only vague but, also, goes beyond the permissible scope of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, reh. denied, 414 U.S. 881, 94 S.Ct. 26, 38 L.Ed.2d 128 (1973) by adding “exposure ... with the intent of arousing sexual desire”.

In State v. Walters, 440 So.2d 115 (La.1983), defendants challenged the constitutionality of LSA-R.S. 14:106A(1) as vague, overbroad, and impermissibly restrictive of their freedom of expression under the First Amendment.

In addressing the argument of vagueness the Louisiana Supreme Court noted the following:

The statute required the state to prove that the offender acted with a specific intent to arouse sexual desire, either of the actor or of the viewer. The requirement of a state of mind indicating an active desire to arouse sexual appetite could not be more clearly defined. See La.R.S. 14:10. Virtually the same words are used in La.R.S. 14:81 to define indecent behavior with juveniles, and its constitutionality has never effectively been challenged, [citations omitted] The phrase “arousing sexual desire” is certainly one which gives an ordinary person of reasonable intelligence fair notice of the proscribed conduct. See State v. Jackson, 404 So.2d 952 (La.1981). 440 So.2d at 121.

The alleged vagueness of the term “exposed” was not directly at issue in State v. Walters; however, legislators are not required to effectively nullify the purpose of legislation by the use of specific terms which would afford loopholes through which many could escape. The United States Supreme Court has held that statutes are not invalid as vague simply because it is difficult to determine whether certain marginal offenses fall within their language. If the general class of offenses to which a statute is directed is plainly within its terms, the statute will not be struck down because hypothetical cases could be put where doubt might arise.

In State v. Walters, the Louisiana Supreme Court squarely addressed the applicability of the test for obscenity announced by the United States Supreme Court in Miller v. California (a case involving printed materials and photographs) to a prosecution proceeding under LSA-R.S. 14:106A(1). Relying on footnote 8 of Miller v. California the Court in State v. Walters noted that Miller did not limit prosecution for “live” lewd exhibitions of the genitals in an offensive and “unartistic” manner to statutes which incorporate the Miller standards. State v. Walters, supra, 440 So.2d at 122.

There is no evidence that the performances in the present case possessed any redeeming feature of art.

We, therefore, conclude that prosecution of defendants’ conduct under LSA-R.S. 14:106A(1) did not impermissibly restrict their First Amendment rights of freedom of expression as defendants contend.

Defendants’ further argument that LSA-R.S. 14:106A(1) is unconstitutional as applied to the instant facts is also without merit, for the reasons given above. Accordingly, Assignments of Error Nos. 3 and 4 are without merit.

ERROR PATENT:

We do note ex proprio motu an error patent on the face of the record which requires that the sentences herein imposed be amended. See, La.C.Cr.P. arts 882 and 920.

The 1977 legislature amended LSA-R.S. 14:106A(1) in two acts with divergent results. Act 97 established the penalty for obscenity as follows:

“G. (1) Whoever commits the crime of obscenity shall be fined not less than one hundred dollars nor more than one thousand dollars, or imprisoned in the parish prison for not more than one year, or both.
“(2) When a violation of Paragraph (1), (2), or (3) of Subsection A of this Section is with or in the presence of any unmarried person under the age of seventeen years, the offender shall be fined not more than ten thousand dollars and shall be imprisoned at hard labor for not less than two years nor more than ten years, without benefit of parole, probation, or suspension of sentence.”

In contrast, Act 717 enacted the following penalty provision:

“B. Whoever commits the crime of obscenity shall be fined not less than one hundred dollars nor more than one thousand dollars, or imprisoned for not more than one year with or without hard labor, or both.
“When a violation of Paragraphs (1), (2), or (3) of Subsection A of this Section is with, or in the presence of, an unmarried person under the age of seventeen years, the offender shall be fined not more than two thousand dollars, or imprisoned for not more than five years with or without hard labor, or both.”

In State v. Entertainment Specialists, Inc., 386 So.2d 653 (La.1980), the Supreme Court addressed the issue of conflicting punishments for the same crime. In applying the principles of conflicting punishments, the Court found that the statute must be construed in order to afford defendant the advantage of the lesser punishment. Accordingly, defendant therein was held to have been convicted of a misdemeanor as provided by Act 97.

The instant offenses occured on September 4, 1981 and any applicable penalty was governed by Act of 97. Defendants could have each been sentenced to one year imprisonment in the parish prison and fined not more than one thousand dollars; however, it was error to sentence each defendant to imprisonment for one year at hard labor.

Each sentence is amended to provide that it shall be served in the parish prison. In all other respects each conviction and sentence is affirmed.

CONVICTION AFFIRMED, SENTENCE AFFIRMED AS AMENDED.

      . Prosecution proceeded exclusively under LSA-R.S. 14:106A(1).

      . Trial on the merits began on March 23, 1982; however, verdict was not rendered on that date. An out of time motion to quash was filed on June 2, 1982, argued and denied on June 22, 1982. A stay of proceedings was granted by the trial court pending disposition of a writ application seeking review of denial of motion to quash.
      The Louisiana Supreme Court granted the writ solely for the purpose of transferring to the Court of Appeal for consideration. See State v. Jacobson, 417 So.2d 374 (La.1982). Court of Appeal First Circuit, No. 82 KW 0555, denied the writ on July 19, 1982 noting that defendant had an adequate remedy by review in event of conviction. Guilty verdict was rendered, thereafter, by the trial court on February 7, 1983.

      . Under LSA-R.S. 14:106A(1), the state could have also charged “or is patently offensive” but elected not to do so.

      . Each of the three police officers who testified at trial was able to enter the Fox Hunter Lounge where the presence of other patrons was noted during defendants’ performances.

      . By means of Assignment of Error Number 3 defendants sought review of denial of motion in arrest of judgment. That motion was grounded on La.C.Cr.P. art 859(2) urging that the offense charged is not punishable under a valid statute. Assignment of Error Number 4 raised the constitutionality of LSA-R.S. 14:106A(1) by formal assignment.

      . See United States v. National Dairy Products Corp. 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963).

      . See United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954).

      . Although live performance was not at issue in Miller v. California, the Court noted at footnote 8 that:
      Although we are not presented here with the problem of regulating lewd public conduct itself, the States have greater power to regulate nonverbal, physical conduct than to suppress depictions or descriptions of the same behavior. 413 U.S. at 26, 93 S.Ct. at 2616.

      .In State v. Amato, 343 So.2d 698 (La.1977), a case involving review of works and materials, the Court noted that although the “female breast nipple” was not one of the examples of human anatomy mentioned by the United States Supreme Court in Miller v. California it was sufficiently similar. Depictions of conduct displaying that portion of human anatomy could likewise be regulated.

      . The penalty provision of LSA-R.S. 14:106 was next amended and reenacted by Acts 1981, No. 159 § 1 effective September 11, 1981.