author: STOKER, Judge.

text:
    Elrena Marie LEDET, Plaintiff-Appellant, v. Dr. A.C. MILLER, et al., Defendants-Appellees.
    No. 83-1014.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Rehearing Denied Dec. 13, 1984.
    Writ Denied Feb. 8, 1985.

      Newman, Thibodeaux and Marshall, H. Gayle Marshall, and Raymond D. Fuljenz, Lake Charles, for plaintiff-appellant.
    Guillory, McGee and Mayeux, A. Frank McGee and A. Gerard Caswell, Eunice, for defendants-appellees.
    Before GUIDRY, STOKER and YEL-YERTON, JJ.
   STOKER, Judge.

Mrs. Elrena Marie Ledet, the plaintiff in a medical malpractice case, appeals the dismissal of her suit against Dr. A.C. Miller, Jr. and Dr. Thomas P. LaHaye on an exception of prescription. We affirm the trial court’s judgment.

On -November 2, 1981, Elrena Ledet underwent surgery at Moosa Memorial Hospital for tubal litigation. Dr. Miller- performed the surgery and Dr. LaHaye assisted him. They are partners in the practice of obstetrics and gynecology. About forty-five minutes after the surgery she began having abnormal arm movements. She then began having generalized convulsions. According to the petition, plaintiff has apparently suffered serious brain damage and cannot walk, talk properly or use either hand. She alleges in the petition that during the surgery Drs. Miller and LaHaye and/or some other employee of either Dr. Miller, Dr. LaHaye or Moosa Memorial Hospital did or failed to do something, the exact nature of which is unknown to claimant, which caused claimant to become comatose and become totally and permanently incapacitated.

The suit was filed on April 13, 1983, 17½ months after the surgery. Defendants filed an exception of prescription. The trial judge sustained the exception.

On appeal, plaintiff contends the trial judge erred in sustaining the exception of prescription because prescription had not even begun to run.

The prescriptive period in actions for medical malpractice is provided by LSA-R.S. 9:5628:

“A. No action for damages for injury or death against any physician, chiropractor, dentist, or hospital duly licensed under the laws of this state, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, om-mission or neglect; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.
“B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.”

Mrs. Ledet contends the prescriptive period has not begun to run because she has no knowledge of any specific act, omission or neglect that caused her disability.

Prescription does not begin to run against one who is ignorant of facts that would entitle him to bring an action as long as such ignorance is not willful and does not result from his neglect. Young v. Clement, 367 So.2d 828 (La.1979). However, the prescriptive period set out in 9:5628 will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge. Sartin v. St. Paul Fire and Marine Insurance Co., 359 So.2d 649 (La.App. 1st Cir. 1978). Constructive knowledge is whatever is notice enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which inquiry may lead, and such information or knowledge as ought to reasonably put the owner on inquiry is sufficient to start the running of prescription. Cartwright v. Chrysler Corporation, 255 La. 597, 232 So.2d 285 (1970).

Mrs. Ledet and her husband had constructive notice of enough facts to bring a malpractice action shortly after her surgery. Mrs. Ledet’s problems began forty-five minutes after surgery. Mr. Ledet was told on the morning of the surgery that his wife was having problems. Mrs. Ledet stayed in Moosa Memorial Hospital for a week following surgery and was then transferred to a hospital in Lafayette where she remained for about a month. Mr. Ledet testified that a doctor in Lafayette told him that in six months his wife would be back on her feet. The fact that such serious problems began almost immediately after the tubal ligation put them on enough notice to call for inquiry. Knowledge that the condition was so serious that Mrs. Ledet would not be able to walk for six months further shows that some inquiry should have been made. Even though Dr. LaHaye told the Ledets that he did not know what happened to cause the condition, that should not have ended the inquiry.

We find that prescription began to run sometime shortly after Mrs. Ledet’s surgery. The trial judge was correct in sustaining the exception of prescription. Therefore, we affirm the judgment of the trial court. The costs of this appeal are assessed to the plaintiff-appellant.

AFFIRMED.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    STATE FARM FIRE & CASUALTY COMPANY, Plaintiff-Appellee, v. ZURICH AMERICAN INSURANCE COMPANY, Defendant-Appellant.
    No. 83-1021.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Rehearing Denied Dec. 13, 1984.
    Writ Denied Feb. 8, 1985.
    Brame, Bergstedt & Brame, Joe A. Brame, Lake Charles, for defendant-appellant.
    Stockwell, Sievert, Viccellio, Clements & Shaddock, John S. Bradford, Lake Charles, for plaintiff-appellee.
    Before FORET, DOUCET and KNOLL, JJ.
   FORET, Judge.

This appeal is from a judgment rendered in favor of the plaintiff, State Farm Fire and Casualty Company (State Farm), against the defendant, Zurich American Insurance Company (Zurich). The issues presented by the defendant in this appeal are:

(1) That the trial court erred in finding that Mrs. Bell Modisette did not “occupy or use” or have in her “care, custody or control” the residence of James Modisette,
(2) That the trial court erred in not finding Mrs. Modisette to be an insured under the State Farm policy, and
(3) That the trial court erred in not finding that the qualities of debtor and creditor had become united in State Farm, thereby creating legal confusion which would bar its claim.

We affirm the judgment of the trial court.

Plaintiff, State Farm, filed suit against Zurich to recover the sum of $12,204.65, representing the amount it paid for damages to the residence of its insured, James Modisette. The damage to Mr. Modisette’s home resulted from a fire which the trial court determined to have been negligently caused by Mrs. Bell Modisette, Mr. Modi-sette’s mother. Zurich had at the time of the fire a policy of homeowners insurance providing liability coverage to Bell Modi-sette and her husband. Upon paying the amount of damages, State Farm became legally and conventionally subrogated to the right of Mr. Modisette to seek recovery of the damages paid from Zurich. Zurich denied any liability on the claim based on an exclusion in its policy which denies coverage under its personal liability provision for any property damage to property occupied or used by the insured or rented to or in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control. Additionally, Zurich asserted that Bell Modi-sette would be an insured under State Farm’s policy as an additional insured and in that event any sums paid by Zurich to State Farm would of necessity be paid back to Zurich in the form of an indemnification. The trial court, in its reasons for judgment, found that Zurich had not sustained its burden of proving that the exclusion applied in that Bell Modisette was not occupying or using or had in her care, custody and control her son’s home and that she was not an insured under the State Farm policy. We find no error on the part of the trial court in its judgment.

Bell Modisette had been asked by her son to come to his home in nearby Westlake to help manage his household and supervise his minor son while his wife and another son were in Houston. Mrs. Modi-sette and her husband left their home in Shongaloo and arrived at her son’s home on a Thursday evening. On Friday, Mr. Modi-sette, his son and parents left to go to Houston for the weekend. They returned to Westlake on Sunday evening. The fire started Monday morning after Mr. Modi-sette and his son left home while Bell Modi-sette was preparing to cook beans for a later meal. Mrs. Modisette mistakenly turned on the stove burner under a pot of grease instead of the pot of beans, which resulted in the fire and extensive damage to the home. Based upon these facts, the trial court found that Mrs. Modisette was negligent and that Zurich had agreed to pay on her behalf all sums which she became legally obligated to pay as damages because of either bodily injury or property damage to which its policy of insurance applied caused by an occurrence. The trial court also found, and we agree, that Mrs. Modisette was only temporarily present in her son’s household for limited purposes and was not occupying or using the house, nor was it in her care, custody or control. Borden, Inc. v. Howard Trucking Co., Inc., 372 So.2d 242 (La.App. 1 Cir.1979), writ denied, 373 So.2d 544 (La.1979), said, at page 244:

“Insurance policies are for the benefit of the insured. The burden of proof is on the insurer to show that the exclusion applies, Aladdin Oil Company v. Rayburn Well Service, Inc., 202 So.2d 477 (La.App. 4th Cir.1967) writ denied 251 La. 388, 391, 392, 204 So.2d 573, 574 (1967). Exclusionary clauses are strictly construed against the insurer, especially if they are of uncertain import, Commercial Capital Systems, Inc. v. Paille, 333 So.2d 293 (La.App. 1st Cir. 1976).” (Emphasis ours.)

It went on to say that:

“... the jurisdictional [sic] rule in Louisiana is to strictly limit the application of a ‘care custody and control’ exclusionary clause.” Borden, at page 244.

We find no error with the judgment of the trial court that Zurich did not prove by a preponderance of the evidence that Mrs. Modisette was excluded from coverage under its policy.

Zurich, in its reconventional demand, argued that Mrs. Modisette was an insured under the State Farm policy because of her status as a “relative” of Mr. Modisette and as a “resident” of his household. We agree with the trial court that Mrs. Modi-sette was not a resident of h.er son’s household.

“Ultimately, whether a person is a member of a given household is a question of fact, to be determined after consideration of all the circumstances.
Webster’s Third New International Dictionary (1971) defines “household” as “those who dwell under the same roof and compose a family; a domestic establishment; specifically, a social unit comprised of those living together in the same dwelling place.” Black’s Law Dictionary (4th ed. 1957) defines it as “a family living together; those who dwell under the same roof and compose a family.” However, living technically “under the same roof” has been found not to be essential. See Taylor v. State Farm Mutual Auto Ins. Co., 248 La. 246, 178 So.2d 238 (La.1965); Vinet v. Hano, 281 So.2d 183 (La.App. 4th Cir.1973), writ refused [283 So.2d 501 (La.1973)]; Fidelity and Casualty Company of New York v. Jackson, 194 F.Supp. 431 (E.D. N.C.1961) and citations therein.
Perhaps the most appropriate definition of “household” was set forth by the court in Leteff v. Maryland Casualty Co., 91 So.2d 123 (La.App. 1st Cir.1956):
“Whether the term ‘household’ or ‘family’ is used, the term embraces a collection of persons as a single group, with one head, living together, a unit' of permanent and domestic character, under one roof; a ‘collective body of persons living together within one cur-tilage, subsisting in common and directing their attention to a common object, the promotion of their mutual interests and social happiness.’ ” 91 So.2d at 130.”

Hernandez v. Comco Insurance Company, 357 So.2d 1368 (La.App. 4 Cir.1978), writ denied, 359 So.2d 1305 (La.1978).

Using the above cited case for guidance, we do not agree with Zurich’s assertion that Mrs. Modisette would be covered under the State Farm policy as a relative residing in her son’s household.

The issue of legal confusion need not herein be addressed as we find no liability on State Farm’s part as the alleged insurer of Mrs. Bell Modisette by virtue of her relation to James Modisette.

Accordingly, the judgment of the trial court in favor of the plaintiff, State Farm, and against the defendant, Zurich, awarding it the sum of $12,204.65, with legal interest until paid, is hereby affirmed. Costs of this appeal are to be borne by the defendant-appellant.

AFFIRMED.


text:
    Nolan GRIFFIN, Plaintiff-Appellee, v. Carl LECOMPTE, Jr. and General Agents Insurance Company of America, Inc., Defendant-Appellant.
    No. 83-1044.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Rehearing Denied Dec. 13, 1984.
    Writ Granted Feb. 15, 1985.

      Plauché, Smith & Nieset, Jeffrey M. Cole, Lake Charles, for defendant-appellant.
    Jones, Jones & Alexander, J.B. Jones, Jr., Cameron, for plaintiff-appellee.
    Before FORET, DOUCET and KNOLL, JJ.
   FORET, Judge.

This appeal is from a case involving an injury which plaintiff, Nolan Griffin, sustained while aboard a boat owned by defendant, Carl Lecompte, Jr. Plaintiff filed suit against Carl Lecompte, Jr. and his liability insurer, General Agents Insurance Company of America, alleging that he was entitled to recover damages for breach of the warranty of seaworthiness under the general maritime laws of the United States. The trial court rendered judgment for plaintiff finding that defendant had owed the warranty of seaworthiness to plaintiff and breached it. The court found plaintiffs proven damages to be $42,149.70 but, finding plaintiff to have been 80% at fault, reduced that amount by 80% to $8,429.94, with costs and interest from April 9, 1981. Defendant appealed the court’s decision.

This appeal presents this Court with two major questions:

(1) Whether plaintiffs accident fell within admiralty jurisdiction, and if so,
(2) Whether defendant-boat owner owed the warranty of seaworthiness to plaintiff.

FACTS

In October or November of 1979, defendant, Carl Lecompte, Jr., purchased a twenty-foot, homemade, aluminum hull boat which was powered by a 175 horsepower outboard motor. The design of the boat and its appurtenances were for commercial fishing, primarily shrimping. Mounted on the inside of the hull was a single drum aluminum winch which was powered by an electric motor.

On September 2, 1980, defendant went shrimping in Calcasieu Lake. The lake is salt water and only a few minutes running time from the Gulf of Mexico. It is highly productive of shrimp and the scene of extensive commercial fishing. Lecompte was accompanied by his father, Carl Lecompte, Sr. and by his father-in-law, plaintiff, Nolan Griffin.

Defendant testified that he was reluctant to go out that morning because the winch’s dog (a device which acts as a brake on the drum of the winch) was missing. At trial, he testified that plaintiff urged him to go out and that finally he agreed. The three men planned to “make a drag or two” to test out equipment. They were going to let defendant’s father take home any shrimp they caught.

Up until that morning, the winch mounted on the hull of defendant’s boat did not have a cable on it. On the suggestion of plaintiff and under his supervision, plaintiff, defendant, and defendant’s father rigged a cable on the winch so that the winch could be used to lift the large net on defendant’s boat. Plaintiff apparently did most of the installation himself, and it is clear that defendant relied on plaintiff’s knowledge and experience for the installation.

The three men had only been shrimping a short time when the engine of the boat stopped. The water was choppy and the net was left out to act as an anchor. The men were able to signal a passing boat which agreed to tow defendant’s boat in. At this point, on his own initiative, plaintiff began to take the net in using the winch. Plaintiff used his left hand to guide the cable onto the winch. This was necessary because there was nothing on the winch itself to guide the cable. As plaintiff was taking in the cable, the movement of the boat in the choppy seas apparently threw him off balance and the cable drew his left hand into the winch, which had no protective device to prevent such an occurrence. Plaintiffs left hand received a crushing-type injury. Although there were no broken bones, there were lacerations and damage to the soft tissue. As a result of the injury, plaintiffs hand was 20% disabled.

There was a great discrepancy in the knowledge and experience which the participants in the fishing trip had. Defendant was not a fisherman by profession. The boat he owned at the time of the accident was the largest boat he had ever owned and the only one with a winch on it. Plaintiff, on the other hand, had been a commercial fisherman all of his working life. He had served on or captained a number of shrimping vessels and had extensive experience using winches similar to the one involved in the accident.

ADMIRALTY JURISDICTION

The court below found that at the time of the accident the boat was engaged in commercial activity. Specifically, it found that the boat was making a “test run”, ironically trying out the winch and cable for the first time. There was no evidence to contradict the testimony that defendant’s boat was a commercial shrimping boat in design and not suitable for sport fishing or other types of recreational activity.

Given these factual findings of the lower court, we think that the incident which forms the basis of this suit falls within admiralty jurisdiction. The boat involved was a commercial boat and, at the time of the accident, it was involved in a commercial endeavor. For a claim to be cognizable in admiralty, the wrong must bear a significant relationship to traditional maritime activity. Foremost Insurance Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982). Clearly, in this case, the requisite condition for admiralty jurisdiction was met.

WARRANTY OF SEAWORTHINESS

The next question which we must consider is whether plaintiff was a member of that class to which the owner of a vessel owes the warranty of seaworthiness.

The warranty of seaworthiness makes the ship owner liable for injuries caused by the unseaworthiness of his vessel or appurtenances. This liability is liability without fault and is not limited by the concept of negligence. Seas Shipping Company v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). Initially, the warranty of seaworthiness was only owed to seamen, but in Sieracki, the court held that the warranty of seaworthiness was not limited to seamen in the ship’s service under the immediate hire of the ship’s owner but extended to longshoremen aboard the ship who, with the owner’s consent or arrangement, were doing the traditional work of seamen and incurring a seaman’s hazards. Conversely, in Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959), the Supreme Court held that the warranty of seaworthiness was not owed to social guests of the seamen aboard ship. Clearly, the present case falls somewhere between Sieracki and Kermarec. Plaintiff was not an employee, but neither was he only a social guest.

In Klarman v. Santini, 503 F.2d 29 (2d Cir.1974), the court held that an auxiliary police officer killed aboard a police launch was not entitled to bring an action for unseaworthiness. At the time of the fatal accident, the police launch was attempting to free a sloop that had run aground. San-tini, who was being trained in the operation of the launch, was on board for the first time. Although, he assisted in the operation of the launch and twice fastened the line from the sloop to a towing bar on the launch, the court found that he was not owed the warranty of seaworthiness by the owner of the police launch. In so finding, the court stressed that he had had no duty to perform any service in connection with the operation of the launch. Similarly, in the present case, plaintiff had no duty to assist in the operation of defendant’s boat. Whatever services he performed were strictly voluntary. He was under no compulsion to perform any service and any hazards he faced, he faced voluntarily.

Although Sieracki, supra, explicitly held that there need be no employer/employee relationship between the ship owner and the injured party, the holding did not nullify the importance of the existence of some employment relationship in determining if an injured party is owed the warranty of seaworthiness. In In Re Read’s Petition, 224 F.Supp. 241 (1963), the court had to determine if a member of the crew of a recreational yacht was owed the warranty of seaworthiness. Although the court held that in that case the crew member was entitled to bring an action for unseaworthiness, we feel that the court’s rationale argues for the opposite conclusion in the present case. In In Re Read’s Petition, the court felt that the existence of an employer/employee relationship was an important consideration in determining if an action for unseaworthiness could be maintained. There, the court stressed that although the injured crew member was not paid for his services, he was a member of a crew and subject to the orders of the ship’s master. The case before this Court involves a totally different situation. The plaintiff was not a member of a crew and was not subject to the orders of defendant. At trial, plaintiff testified that his principal occupation when he went fishing with the defendant was to teach the defendant how to use the boat and its equipment. It is clear that, under the circumstances, if anyone was giving orders, it was plaintiff.

The evidence indicates that plaintiff was able to exert a good deal of control over the boat and its operation. Defendant followed plaintiff’s directions in choosing a place to fish and defendant took his boat out that morning due, at least in part, to the urging of plaintiff. These things considered, it is apparent that plaintiff was more of a co-adventurer than a crew member or a guest. At least in the context of recreational boating, it has been held that when a party is a co-adventurer, the policy in historical function of the seaworthiness doctrine will not support unseaworthiness liability. Armour v. Gradler, 448 F.Supp. 741 (1978).

Having considered the status of plaintiff on defendant’s boat, we are forced to conclude that plaintiff was not entitled to the protection of the warranty of seaworthiness. The court below erred in granting judgment based on the unseaworthiness of defendant’s boat.

DECREE

For the foregoing reasons, we reverse the decision of the trial court. All costs of this appeal and at the trial level are assessed against plaintiff-appellee.

REVERSED.


text:
    Wilbert TRAHAN, Plaintiff-Appellant, v. John G. BROUSSARD, Defendant-Appellee.
    No. 83-1045.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.

      Patricia A. Thomas, Abbeville, for plaintiff-appellant.
    Ruele P. Bourque, Kaplan, for defendant-appellee.
    Before GUIDRY, STOKER and YEL-VERTON, JJ.
   STOKER, Judge.

Wilbert Trahan, the. plaintiff in this case, claims acquisitive prescription of a strip of land in Vermilion Parish and claims damages to the property caused by the defendant, John G. Broussard. The trial court found that the plaintiff had not established by a preponderance of evidence that his possession was adverse to that of the record owners and that there was a positive intention to take and commence possession of the property as owner. Trahan appeals.

The property in dispute, and which Wilbert Trahan (Trahan) claims by virtue of acquisitive prescription, is located in a one hundred and fifty-foot strip, the record title to which was held by Acadia Vermilion Rice Irrigation Company (AVRI). The strip of land runs in an east-west direction and formerly contained an irrigation canal with levees along its north and south sides. The property south of the strip was and is still owned by defendant-appellee, John G. Broussard (Broussard). AVRI appears to have ceased to operate the irrigation canal and sold the strip to Broussard. Thereafter Broussard filled in the canal utilizing the earth from the levees as fill.

Destruction of the north levee sparked the present controversy and litigation. In his petition as amended Trahan asserts that he acquired by adverse possession a portion of the former AVRI property by reason of having maintained a road over it for more than thirty years.

Mr. Trahan is the record owner of a tract of land described below and which is the property we have noted above as being immediately north of the one hundred and fifty-foot strip formerly owned by AVRI and which it sold to Broussard. Trahan’s title of record describes his lands as:

A certain tract or parcel of ground containing 8.5 acres more or less, situated in the Southern portion of the South Half of the Southeast Quarter of Section 6, Township 12 South, Range 2 East, and having a frontage on the public road of 2.015 chains, more or less, and being bounded, now or formerly NORTH by Tract Three (3) of the Partition of the Estate of Euphe Trahan; EAST by the public road; WEST by Oniel Abshire, and SOUTH BY AVRI Company Canal.

The AVRI strip purchased by Broussard is described as:

Such canal strip being designated as strip number 302 on the records of Acadia Vermilion Irrigation Company, Inc., and bordering the southern line of Section 6, Township 12 South, Range 2 East.

The relationship of the three immovable properties mentioned above is shown schematically below in map form which is not drawn to scale.

As will be noted, the canal strip is bordered on the east by a ¡h^blic road which is also the eastern boundary of the Trahan and Broussard tracts. In his petition as amended Trahan claims he has prescribed for property in the canal strip consisting of four and one-half acres, more or less, extending seventy-five feet, more or less, in width along the south boundary of the property he holds by record title and extending east and west a distance of 2,644 feet, more or less.

Trahan argues that Broussard damaged the property acquired by him through prescription by bulldozing down the levee to the north of the canal and scraping off the soil on the access road.

Trahan claims that he used the property in dispute as an access road which ran from the public road on the east to the rear of his property held by record title. Tra-han alleged and testified that his roadway extended to the north toe of the north levee. Thus it is apparent that Trahan believed that a strip of relatively level ground lay between the north toe of the north levee and the south boundary of the property he held. by record title. Other evidence indicated that the roadway, if in truth it could be called more than a trail, was on top of the levee. On the basis of the trial court’s ruling and our review of the record, the location of the road or trail would make little difference.

There is some confusion in this case which might lead one to believe that plaintiff contends that the roadway, or some part at least, was within the land covered by his title. However, the petition as amended clearly indicates that plaintiff contends that the roadway was located on land outside his title and that plaintiffs claim for the land and trespass damages is based on acquisitive prescription. Moreover, if the land in question was within his title, there would be no need for plaintiff to ground his action on prescription.

Although the trial court handed down written reasons for judgment, the trial court did not include any findings of fact in its reasons; the trial court confined itself to stating a conclusion. The trial court found that Trahan “failed to establish by a preponderance of evidence that his possession was adverse to the record owners and that there was a positive intention to take and commence possession of the property.” The court did not indicate where it found the road in question was located.

From our review of the record we find that Mr. Trahan’s title extended to the toe of the levee north of the AVRI Company canal. Clarence Thibodeaux, a witness for the defense who was admitted as an expert surveyor and civil engineer, placed the boundary line at the toe of the levee. We accept his conclusion.

Mr. Trahan argues in his brief that the access road to the back part of his property was at the toe of the levee. If this is the case, the road would have been within Tra-han’s title which we do not find to be the case.

Although Trahan argues that his road was at the toe of the levee, evidence on this point is conflicting. Some of his witnesses said the road was on top of the levee, or on the side of the levee, or partially on the levee. Mr. Broussard testified that at one time there was a road at the toe of the levee, but when he bought the AVRI tract, the Trahans used a road on top of the levee. If the road was actually on the levee, it was on the Broussard-AVRI side of the property line established by Mr. Thi-bodeaux. We conclude that the road was on top of the levee.

We find that Mr. Trahan did not prescribe against the owners of the levee. We agree with the trial court that he did not prove that his possession was adverse to the record owners and that there was a positive intention to take and commence possession as owner. Since Trahan did not have title to the property, he could acquire it only by prescription of thirty years. One of the requirements for thirty-year prescription is that possession be unequivocal. LSA-C.C. 3500 (as it provided prior to the 1982 revision). A possession manifested only by passing over unfenced land is equivocal in the highest degree. Reymond v. City of Baton Rouge, 145 La. 162, 82 So. 75 (1919). Similarly, passing over a levee is equivocal. Driving over a levee does not interfere with its function as a levee. We conclude that Trahan’s use of the levee as a way for vehicles and farm equipment to reach the back part of his property was not adverse to its use as a levee.

We find that Trahan has failed to establish by a preponderance of evidence that Mr. Broussard has damaged his property. Mr. Trahan testified that contractors hired by Mr. Broussard excavated the road, but he was not clear in showing on photographs in evidence where the road had been damaged. Mr. Broussard testified that he instructed the contractors to excavate to the property line located by Mr. Thibodeaux, the surveyor. We find that only the land on the Broussard side of the property line was excavated or scraped in filling in the canal.

We agree with the trial court that plaintiff failed to prove his claim of acquisitive prescription of the access road or his claim for damages. Therefore, we affirm the trial court’s judgment and assess the costs of this appeal to plaintiff-appellant.

AFFIRMED.


text:
    ERNEST SIMON & SON, INC., Plaintiff-Appellee, v. PERMA-CLAD OF GEORGIA, INC., et al., Defendants-Appellants.
    No. 83-1053.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Rehearing Denied Dec. 13, 1984.
    Writ Denied Feb. 8, 1985.

      Mouton, Roy, Carmouche, Bivins, Judice & Henke, Kenneth M. Henke, Lafayette, for defendants-appellants.
    Dupuis, Mayers & Harson, Michael Har-son, Lafayette, for plaintiff-appellee.
    Before FORET, DOUCET and KNOLL, JJ.
   FORET, Judge.

This appeal is from a judgment rendered in favor of plaintiff, Ernest Simon & Son (Simon), against the defendants, Perma-Clad of Georgia, Inc. (Perma-Clad) and its insurer, Aetna Casualty and Surety Company (Aetna), for damages for breach of contract. The plaintiff was awarded damages in the amount of $51,694.00 and costs and attorney’s fees totalling $7,500.00, with interest from date of judicial demand. The issues presented by Perma-Clad and Aetna on appeal are:

(1) That the trial court erred in awarding to Simon the $3,720.00 it paid to Perma-Clad for the purchase of a surety bond;
(2) That the trial court erred in awarding the $10,974.00 spent by Simon to install a temporary roof; and,
(3) That the trial court erred in awarding the $37,000.00 difference in price between Perma-Clad’s bid and the cost of the new subcontract.

We affirm the judgment of the trial court.

The defendant, Perma-Clad, a roofing manufacturer, entered into a contract with Simon on January 2, 1980, to furnish the roof on the J.H. Williams Middle School addition in Abbeville, Louisiana. The defendant had been invited to bid on the construction project and, after a review of the plans and specifications submitted by the project architect, Elliott Lormand, it submitted a low bid of $310,000.00. This bid was based upon the furnishing and installation of their “Versa Pan” roofing system.

Under the terms of the contract, Perma-Clad was to obtain a performance bond for 100% of the contract price. Perma-Clad obtained the required bond from Aetna and Simon paid to Perma-Clad $3,720.00 for the cost of the bond.

Perma-Clad was to install its roofing system on the new construction within two hundred days of the contract date and complete the second phase of the project in five hundred days from the contract date. A great deal of correspondence was exchanged between the parties with no result. By the end of August of 1980, no roof had been installed nor had work on the installation even commenced by that time. The parties continued in their attempts to provide and approve a roofing system for the project with no avail. At the end of September, the Vermilion Parish School Board directed the architect and Simon to take whatever steps were necessary to make the building watertight in order to avoid further damage to the building. A temporary roof was thereafter installed and demands made upon Perma-Clad to provide a roofing system in accordance with the architect’s plans and specifications at the earliest possible time as the project had already been delayed. They were additionally requested to furnish the warranty information and test results required by the contract. Perma-Clad submitted the warranty information on the paint, but was unable to provide current test results satisfactory to Mr. Lormand. On December 16, 1980, Simon informed Perma-Clad that pursuant to their right under Article 7 of the subcontract, they were taking over the project and intended to complete it at Per-ma-Clad’s cost. Simon then contracted with Architectural Engineering and Southwestern Materials and Supply, Inc. to complete the project at an additional cost of $37,000.00 over Perma-Clad’s contract price. Simon then instituted this suit for the damages resulting from Perma-Clad’s breach of its contract.

As to the first issue raised by Per-ma-Clad, we cannot say that the trial court was clearly wrong in reimbursing Simon for the amount paid to Perma-Clad representing the cost of the performance bond. Simon has had the protection of the bond, but it paid for its own protection. The contract did not call for Simon to pay for Perma-Clad’s bond and the record does not reveal Simon’s reason for paying. Therefore, in the absence of any evidence regarding an agreement between the parties that Simon should pay for the bond, we feel that Simon is entitled to be reimbursed for that cost as an element of damages for Perma-Clad’s breach of contract.

The defendants contend that Simon should not recover the $10,974.00 it spent during the months of October, November, and December to install a temporary roof because Simon failed to mitigate its damages when it knew as early as February of 1980 that Perma-Clad would be unable to perform. The record shows that Perma-Clad represented to the plaintiff that it could produce anything to the architect’s specifications and this included adapting the Versa Pan roof system. Despite the architect’s rejection of everything that Per-ma-Clad submitted, Perma-Clad did not tell Simon or Mr. Lormand that it could not perform. As late as September, Perma-Clad was submitting models and mock-ups for the architect’s approval. Perma-Clad was also unable to supply the test results on its roofing system as required by the contract.

The record amply bears out the fact that the parties did everything within their power to perform the contract, with the end result being that Perma-Clad was not able to adapt the roofing system upon which it had submitted its bid to conform with the architect’s plans and specifications. In an August 25, 1980 mailgram sent to Simon, Perma-Clad said that it preferred to withdraw from the project unless Simon would consider a change order increasing the price by $35,000.00 to provide an eave fascia detail demanded by Mr. Lormand. Yet Perma-Clad continued to attempt performance and Simon allowed them every opportunity to perform.

From our review of the record, we cannot say that Simon was unreasonable in continuing to allow Perma-Clad to perform past September even though the project was becoming seriously delayed. Simon relied on Perma-Clad’s representations that it could supply the needed roofing system for the price Simon had agreed to pay and should not therefore be penalized.

“The theory of a ‘duty to mitigate’ is merely that avoidable consequences of a breach are not recoverable (see Restatement, Contracts § 45 Comment d; Willi-ston, Contracts, 3d ed. § 1353); one breaching a contract owes only the damages ‘which the other party has sustained by his default [i.e. breach]’, La. C.C. 1930.” Electrodata Mfg. Corp. v. Domed Stadium Hotel, 362 So.2d 1122 (La.App. 4 Cir.1978).

The record does not support any actual or imputed “knowledge” on Simon’s part that Perma-Clad could not perform and therefore was not required to breach the contract itself in order to mitigate its damages. Perma-Clad did not show that had the contract been terminated in August that the installation of a temporary roof was an avoidable consequence of Perma-Clad's delay in performance and/or failure to unequivocably state that it could not perform. We do not feel that the trial court was clearly wrong in awarding the $10,974.00 as an element of damages.

The above stated reasons are applicable to Perma-Clad’s argument that the additional cost of $37,000.00 in the contract price was attributable to Simon’s failure to mitigate its damages. Again, Simon made every attempt to facilitate Perma-Clad’s performance before and after August, and we do not find that their actions were unreasonable or that any different result was required by law.

Perma-Clad’s failure to provide a roofing system acceptable to the architects, whose plans and specifications can be presumed to have been well known to Perma-Clad, and its failure to provide satisfactory test results for the roofing system prompted Simon to finally take over the job in December of 1980. The defendant, Perma-Clad, is therefore liable for any additional costs required for the completion of the job by the terms of Article 7 in the contract between Perma-Clad and Simon. Again, we will not disturb the finding of the trial court with regard to this element of damages.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against defendants-appellants.

AFFIRMED.

      . Article 7. Should the Sub-contractor become insolvent, or apply to the bankruptcy court to be adjudged a voluntary bankrupt, or proceedings be instituted against the Sub-contractor to have him adjudged an involuntary bankrupt, or proceedings be taken against the Sub-contractor looking to the appointment of a receiver or syndic, or any proceedings be instituted for the seizure or sale of the property used and employed by the Sub-contractor in the execution of the contract or should the Sub-contractor abandon said work or for any reason fail, refuse, or neglect to prosecute the same with all due diligence, dispatch efficiency the General Contractor shall have the right at the General Contractor’s option, upon five days notice to the Subcontractor to take over said work and complete the same at the cost to the Sub-contractor and the Sub-contractor’s bondsman.


author: KNOLL, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. William HAMILTON, Defendant-Appellant.
    No. CR84-56.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Rehearing Denied Dec. 12, 1984.

      Linda Veazey, Abbeville, for Defendant-appellant.
    Calvin Woodruff, Asst. Dist. Atty., Abbe-ville, for Plaintiff-appellee.
    Before FORET, DOUCET and KNOLL, JJ.
   KNOLL, Judge.

The defendant, William Hamilton, was indicted for manslaughter, a violation of LSA-R.S. 14:31. Defendant pleaded not guilty and on June 15, 1983, a twelve-member jury found him guilty as charged. After receiving the pre-sentence investigation, the trial court sentenced defendant to serve five years at hard labor.

Defendant appeals relying on four assignments of error for a reversal of his conviction and sentence, alleging that the trial court erred:

1. In failing to instruct the jury that simple battery is a responsive verdict to the charge of manslaughter;
2. In failing to instruct the jury that if it found beyond a reasonable doubt that defendant committed a battery on the victim but it did not find beyond a reasonable doubt that the battery resulted in the death of the victim, it must find the defendant not guilty;
3. In not ruling that the legislature’s failure to specify in LSA-C.Cr.P. Art. 814 that simple battery can be a responsive verdict to manslaughter constitutionally deprived defendant of due process of law and of a fair and impartial trial; and
4. In that the evidence was insufficient to support a finding beyond a reasonable doubt that defendant’s act caused the victim’s death.

For the following reasons, we affirm defendant’s conviction.

FACTS

At approximately 2:30 a.m. on May 16, 1982, defendant rang the doorbell at his first cousin’s home at 310 Yalcourt Street in Abbeville. His cousin, Kenneth Devoltz, was away for the weekend. Only Kenneth’s wife, Delores Devoltz, their daughters Carrie, Charlotte, and Celissa, and Charlotte’s roommate, Mayóla Landry, were in the house. When they let defendant into the house, he appeared intoxicated and stated, “Call an ambulance, I just beat a nigger to death.” At first Mrs. Devoltz and her daughters did not believe him because he tended to exaggerate when intoxicated. Defendant returned outside and Mrs. Devoltz and her daughters observed the body of the victim, Dalton Stewart, lying on the opposite side of the street, underneath a tree. Defendant kicked the victim’s body and said “Come on. You’re not hurt. Get up.” When Mrs. Devoltz and her daughters asked defendant why he beat the victim, he first responded that he knew Kenneth Devoltz was not at home, that the women were alone, and that he thought the victim would try to break into the house; later defendant, a white man, stated he beat the victim “because he was a nigger.”

Mrs. Devoltz immediately called the Abbeville City Police and within a short period of time Officers Stephen Menard and John Thibodeaux arrived at the scene. They observed a white car parked on the road; to the left of the car, the body of a black male was on the side of the road with his head up against a tree; and defendant standing approximately four feet from the victim. Defendant appeared intoxicated. The victim was partially conscious, smelled strongly of alcohol and, although he was unable to speak, he was groaning in pain.

Officers from the Vermilion Parish Sheriff’s Office met the Abbeville officers at the scene and conducted a joint investigation. When the officers asked defendant what happened, he stated that he beat the victim because he thought the man was trying to break into houses in the neighborhood. We have reviewed the record carefully and it is void of any evidence that the victim was on the premises or in the proximity of the Devoltz home. The officers did not see any cuts, bruises or blood on either the victim or defendant. They did, however, find two knives in the victim’s possession, one in his boot and another in his back pocket.

An ambulance took the victim to the Abbeville General Hospital emergency room where he was treated by Dr. Allen P. Kennedy. Dr. Kennedy observed: massive swelling of the victim’s face, mainly on the right side; he was semi-comatose; he appeared to have suffered a massive soft tissue trauma to the right side of his face, upper lip and right eye; blood was oozing from the victim’s nose and mouth; and, the victim appeared acutely intoxicated. Blood tests determined the victim’s blood alcohol level was in the range of .30.

Despite the initial stability of the vital signs of the victim, he suffered cardiopulmonary arrest at approximately 6:25 a.m. The medical staff resuscitated the victim and placed him on life-support systems. Subsequent EEGs and a brain scan conducted during the next four days revealed that brain necrosis was present (brain death). The victim was removed from the life-support systems and was pronounced dead on May 20, 1982.

ASSIGNMENTS OF ERROR ONE AND TWO

Defendant contends that the trial court erred in failing to instruct the jury concerning two special charges.

Defendant argues that the trial court should have instructed the jury that simple battery is a responsive verdict to manslaughter. We disagree.

Responsive verdicts are provided in LSA-C.Cr.P. Art. 814. In pertinent part, Art. 814 provides as follows:

“A. The only responsive verdicts which may be rendered when the indictment charges the following offenses are
5. Manslaughter:
Guilty.
Not guilty.

From a reading of Art. 814 it is clear that simple battery is not a responsive verdict to the charge of manslaughter.

Furthermore, although defendant contends the trial court failed to instruct the jury that simple battery is a responsive verdict to manslaughter, he did not include such a special charge in writing, nor did he serve the State with a copy of such a proposed instruction. We have consistently held that LSA-C.Cr.P. Art. 807 requires the defendant to reduce his requested special charges to writing. State v. Weems, 358 So.2d 285 (La.1978); State v. Orsby, 261 La. 605, 260 So.2d 639 (1972). Therefore, the trial court properly denied defendant’s oral motion for a special jury charge.

Defendant also argues that the trial court failed to instruct the jury that if it found that defendant committed a battery on the victim beyond a reasonable doubt, but did not find that the battery resulted in the victim’s death, it must find the defendant not guilty.

Again, defendant did not reduce this request for special charge to writing as mandated by C.Cr.P. Art. 807. State v. Weems, supra; State v. Orsby, supra. Yet further, the record does not reflect that defendant even made an oral motion for this special charge. An irregularity or error is waived unless it was objected to at the time of the occurrence. LSA-C.Cr.P. Art. 841. Our consideration is limited to those points objected to in the trial court. State v. Roach, 322 So.2d 222 (La.1975).

These two assignments of error lack merit.

ASSIGNMENT OF ERROR THREE

Defendant contends that he was deprived of due process of law since LSA-C.Cr.P. Art. 814 does not provide that simple battery is a responsive verdict to manslaughter.

Louisiana courts have consistently upheld the constitutionality of LSA-C.Cr.P. Art. 814. State v. Qualls, 353 So.2d 978 (La.1977); State v. Cook, 345 So.2d 29 (La.1977); State v. Smith, 322 So.2d 197 (La. 1975); State v. Hill, 297 So.2d 660 (La.1974); State v. Peterson, 290 So.2d 307 (La.1974).

In State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982), the Supreme Court stated that when the accused requests and is refused an instruction on a lesser and included offense, or when the accused timely objects to the trial court’s failure to give a responsive offense instruction to which he is statutorily entitled, the conviction may be reversed. In the instant case the requested special charges were not reduced to writing and were made spontaneously by oral motion in objecting to the trial court’s jury charges.

As discussed earlier, defendant was not statutorily entitled to a responsive verdict of simple battery under C.Cr.P. Art. 814. The only possible verdicts provided by law to manslaughter are guilty and not guilty. Therefore, that aspect of the Elaire rationale is inapplicable to the case sub judice.

Likewise, in order for the Elaire decision to be applicable, simple battery would have to constitute a “lesser and included offense” of manslaughter. Lesser and included grades of the charged offense are those in which all of the essential elements of the lesser offense are also essential elements of the greater offense charged. State ex rel. Elaire v. Blackburn, supra; State v. Cooley, 260 La. 768, 257 So.2d 400 (1972). Simple battery has an element of lack of consent which is not an element of manslaughter. See LSA-R.S. 14:31, 14:33 and 14:35. Therefore, we conclude that simple battery is not a responsive verdict under the rationale of State ex rel. Elaire v. Blackburn.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR FOUR

Defendant contends that there was insufficient evidence to support a finding beyond a reasonable doubt that defendant’s actions caused the death of the victim. Defendant argues that several other factors such as alcohol intoxication, aspiration, or a blow to the victim’s head precipitated by a fall, could have caused the victim’s death.

The standard of review of sufficiency of the evidence is whether a rational trier of fact, accepting the facts in a light most favorable to the prosecution, could have found defendant guilty of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Chism, 436 So.2d 464 (La.1983).

Several witnesses testified that defendant appeared in the early morning hours of May 16, 1982, at the Devoltz home and declared that he had just beat the victim to death. Later the witnesses saw defendant kick the victim’s body with his foot, telling the victim to get up because he was not hurt.

All of the medical expert opinions found that the primary cause of the victim’s death was due to a large blood clot on the brain’s surface, caused by a traumatic head injury consistent with a beating. Dr. Allen Kennedy, the emergency room physician, found the right side of the victim’s face bloody and massively swollen. Dr. Harold Trahan, Jr., the cardiologist who treated the victim after he suffered cardiopulmonary arrest at 6:25 a.m. on May 16, 1982, said that the cause of the initial cardiopulmonary arrest was a traumatic injury to the brain. Dr. L.E. Buettner, the physician who performed the victim’s autopsy, concluded that the blood clot on the victim’s brain caused pressure to the brain stem and cessation of cardiopulmonary function was the result of trauma to the victim’s head. Dr. Ardley Hebert, the Vermilion Parish coroner, concluded that the victim’s cause of death was pressure on the brain from a large blood clot on the brain surface.

The medical testimony preponderates that the swelling of the victim’s brain was not caused by acute alcoholic intoxication. Dr. Kennedy based his determination on two reasons: (1) when he first examined the victim in the emergency room his vital signs were stable; and (2) because of the victim’s known history of alcoholism, lethal alcohol intoxication usually occurs at a level of .50. Dr. Beuttner cautioned that the effect of intoxication is relative among different persons; some can function at levels approaching .40. Dr. Hebert testified that the victim was a known town drunk, and chronic alcoholics are able to tolerate higher levels of alcoholic intoxication. In conclusion, although each of these medical experts found that the victim’s intoxication contributed to an uncertain degree to the pressure on the brain stem, they agreed that the primary factor in the victim’s death was a traumatic head injury.

The defendant argues that aspiration can cause cardiopulmonary arrest and is a common cause of death among alcoholics. Dr. Beuttner, the treating cardiologist opined that, from his examination, although aspiration did occur, it occurred after the initial cardiopulmonary arrest at 6:25 a.m. in the hospital.

Defendant’s last contention is that the victim’s blood clot on the surface of the brain was the result of a fall. Even though the medical experts were unable to pinpoint the exact cause of the victim’s head trauma, they agreed that the victim’s head injuries were more consistent with a beating rather than a fall.

In summary, all of the medical experts concluded that the victim’s weakened physical condition lessened his resistance to trauma and although all the above-mentioned factors contributed to the victim’s death, the blood clot on the surface of the brain, consistent with a beating, was the primary factor which caused the cardiopulmonary arrest.

In State v. Durio, 371 So.2d 1158 (La.1979), the Supreme Court stated:

“Defendants contend that the trial court erred in denying their motion for a new trial. They argue that because the medical testimony introduced at trial indicated that Mrs. Davidson died of bronchial pneumonia and not from head injuries sustained as the result of a beating, the verdict finding them guilty of second degree murder is contrary to the law and the evidence.
In State v. Wilson, 114 La. 398, 38 So. 397 (1905) a similar argument was raised. In that case defendant was found guilty of murder when the victim he shot subsequently died from pneumonia. Based on medical testimony which indicated that the victim would not have contracted pneumonia but for the gunshot wound, this Court held that causation had been established. The court found that if the defendant ‘hastened the termination of life, or contributed, mediately or immediately, to the death, in a degree sufficient to be a clearly contributing cause, that is sufficient.’ A similar standard for determining causation in fact is approved by LaFave and Scott in their treatise on criminal law. The test adopted there is ‘Was the defendant’s conduct a substantial factor in bringing about the forbidden result.’ LaFave and Scott, Criminal Law, § 35, p. 250 ff. See also Focht, Proximate Cause in the Law of Homicide, 12 Cal.L.Rev. 19, 27 (1938).
It is clear from the testimony produced by the state that the legal cause of the victim’s death was the injuries inflicted on the victim at the time of the beating. All three medical experts testified that Mrs. Davidson died of bronchial pneumonia but stated that the probable cause of the pneumonia was the depressed state of her defense systems due to the head injuries and the operation necessitated by them. In his testimony Dr. McCormick explained that the contraction of pneumonia is a common result of a patient’s position and comatose state following traumatic injury.”

Viewing the evidence in a light most favorable to the prosecution and excluding every reasonable hypothesis of innocence, we find that the defendant’s acts “hastened the termination of the [victim’s] life, or contributed, mediately or immediately, to the death [of the victim], in a degree sufficient to be a clearly contributing cause.”

This assignment of error lacks merit.

DECREE

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: YELVERTON, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Clarence WILLIS, Defendant-Appellant.
    No. CR84-405.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Writ Denied Feb. 4, 1985.

      Thomas K. Brocato, Small, Small, Williamson & Brocato, Alexandria, for defendant-appellant.
    Edward E. Roberts, Jr., Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
    Before GUIDRY, STOKER and YEL-VERTON, JJ.
   YELVERTON, Judge.

Charged with second degree murder, R.S. 14:30.1, defendant, Clarence Willis, was convicted by a jury and given the 'mandatory sentence of life imprisonment without benefit of parole. He appeals the conviction arguing seven assignments of error, all of which attack unfavorable rulings of the trial court having to do with his plea of self-defense. We find no merit to any of these assignments and we affirm the conviction and sentence.

Defendant assigned eleven errors, but briefed only seven: numbers 3, 4, 5, 6, 9, 10 and 11; these are the only assignments we will consider, as assignments of error which are not briefed are considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982).

The facts are uncomplicated. Defendant and the victim, Jon Paul Stewart, met at the Lake Sharamee Club in Rapides Parish on the night of October 9,1982. Willis was there with his date, Clara Cole, to celebrate her birthday. Stewart, along with a juvenile friend of his, had walked to the club, where he divided his time inside drinking, and outside with his under-aged friend on the parking lot.

The victim, Stewart, and the defendant, Willis, knew each other. Several weeks earlier Stewart had helped Willis move from one house to another. On the night of the killing the victim had helped the defendant get his truck out of the ditch where it had become stuck on his arrival at the club. Both Stewart and Willis had been drinking before they got to the Lake Sharamee.

In the club, the victim first approached the defendant near the dance floor and pinched him, chiding him for leaving him stranded at. a store three weeks earlier. A little later, as Stewart and Willis shared a table with others, the victim crushed a plastic drinking cup in the defendant’s hand. At the request of another person seated there, the bouncer made the victim leave the table. He went and stood at the bar, staring in the defendant’s direction.

An hour passed, and the victim went outside and began to search for a ride home, talking the while with his juvenile friend. The defendant and Clara Cole then came out of the club, stopped next to a parked car, and began talking, facing each other, defendant facing the club and Clara facing the parking lot. Defendant had come armed to the club, a 9-shot, .22 caliber pistol in his boot. Before stepping outside the club, he had taken the gun from his boot and stuck it in his belt.

As Willis and Clara Cole stood talking, Stewart began walking in their general direction, which was also the general direction of the club. Clara Cole, who was facing Stewart, at this point said, “Oh, Lord, here he comes.” Defendant turned to face the oncoming person, pulled his pistol, and fired it at Stewart until there were no shots left. Hit five times, Stewart fell to the ground. Defendant went over to him, kicked him in the head with his boot, then leaned over and beat him about the head with the empty pistol.

At the trial for Stewart’s murder, Willis pleaded self-defense. All of the assignments of error relate, in one way or another, to rulings of the trial court regarding evidence and argument on behalf of the plea of self-defense. We can group the assignments into four general arguments.

ASSIGNMENTS OF ERROR NOS. 3, 4 AND 6

Defendant admitted the killing. He sought to justify it as an act of self-defense. For this purpose, he tried to introduce evidence of the deceased’s reputation for violence, in the form of statements made by the victim himself to the defendant concerning his reputation for violence. He also wanted to offer evidence of prior acts of violence by the deceased. The trial judge would not allow the testimony, and his rulings are the basis for these assignments of error.

The rulings were correct because there was no appreciable evidence of an overt act or a hostile demonstration by the victim manifesting to the mind of a reasonable person a present intention on the victim’s part to kill or do great bodily harm.

LSA-R.S. 15:482 provides:

“In the absence of evidence of hostile demonstration or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible.”

The Louisiana Supreme Court in State v. King, 347 So.2d 1108, 1110 (La.1977) defined “overt act” as follows:

“Overt act in this context [LSA-R.S. 15:482] means any act of the victim which manifests to the mind of a reasonable person a present intention on his part to kill or do great bodily harm.”

There can be no doubt that evidence of the dangerous character of the victim supports a plea of self-defense. This evidence is relevant to establish the accused’s apprehension and the reasonableness of his defensive measures. State v. Lee, 331 So.2d 455 (La.1975); State v. Brent, 347 So.2d 1112 (La.1977). Although, according to State v. Lee, supra, the trial court may not usurp the function of the jury by making a credibility determination of whether evidence in the record proves a hostile demonstration or overt act, there must be some showing with appreciable evidence to establish a foundation for introduction of the further evidence of the victim’s dangerous character. As stated in State v. Brent, 347 So.2d 1112 (La.1977):

“Under our statutes and jurisprudence, such evidence is not admissible until defendant has made a showing with appreciable evidence that the victim made a hostile demonstration or overt act against him at the time of the incident which would have manifested to a reasonable person that he was in danger of grave bodily harm or of being killed.’.’

In the present case, at the moment when defendant opened fire on the victim all the victim had done was to put his hand in his pocket and start walking in the general direction of the club and Willis. The defendant had his back to the victim. He could not have seen the deceased put his hand in his pocket. He could not have seen the deceased begin walking in his general direction. He responded to his girlfriend’s statement, “Oh, Lord, here he comes,” by spinning around and beginning shooting. He gave the victim no chance to explain or to say anything.

In addition, the coroner testified that, contrary to the defendant’s assertion, “the victim was not approaching the gunman head-on ...” All of the bullets entered the victim on his right side, which would be consistent with the victim either walking away from or turning away from his assailant. Even the girlfriend, Clara Cole, testified that the deceased did not try to attack them.

In our opinion, there was no appreciable evidence in the record tending to establish an overt act. These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 5

The trial court would not let the defendant use a psychiatrist to testify that the killing was a defensive overreaction, and that the actions taken against the victim, although seemingly brutal, were not, from a psychiatric standpoint, inconsistent with measures taken in defense of self or others. This ruling is assigned as error.

In order for the psychiatrist to testify as to the effect of fear upon the defendant’s reaction, he would necessarily have had to testify as to those factors which induced the fear, and these factors would have included the very same evidence which we have just discussed, and found to have been inadmissible.

Defendant may have genuinely feared Stewart. Nevertheless, it does not appear from the record that Stewart made any threatening advance toward the defendant when he turned and shot him down. By the defendant’s own testimony, Stewart tried to run away but the defendant kept shooting. And, even after the victim fell to the ground severely wounded, apparently unable to harm anyone, the defendant did not desist, but went over and beat him with his pistol and kicked him until he was dead. Having done this to Stewart without any immediate and perhaps no prior provocation, evidence of the defendant’s perceived fear of the victim because of his reputation is irrelevant and inadmissible under the law and jurisprudence, just as explained in the discussion of assignments numbers 3, 4 and 6. This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 9 and 10

By these assignments the defendant argues that there was not sufficient evidence to support the conviction, particularly in that the state failed to prove that the homicide was not committed in self-defense and that the evidence did not exclude the reasonable hypothesis of self-defense.

First, it should be noted that there was both direct and circumstantial evidence presented in the court below. As such, the test to be applied on review to determine whether the evidence is sufficient to support a conviction is not whether it excludes every reasonable hypothesis of innocence, but, under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the test is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. State v. Guillot, 389 So.2d 68 (La.1980).

There is no doubt in this case that defendant killed Stewart, and that he had a specific intent to kill or inflict great bodily harm. The Jackson v. Virginia standard has been met insofar as proof of the elements of second degree murder is concerned. LSA-R.S. 14:30.1.

It is well settled, of course, that in a homicide prosecution where the defendant claims self-defense, the state must prove beyond a reasonable doubt, that the homicide was feloniously committed and was not perpetrated in self-defense. State v. Hicks, 395 So.2d 790 (La.1981). Applying the Jackson v. Virginia test to the sufficiency of proof that the defendant did not act in self-defense, the evidence leaves no reasonable room for doubt. There was no evidence tending to show that the victim was the aggressor. The coroner’s examination as well as eyewitness testimony clearly established that the victim was very intoxicated. As the defendant stood some six to eight feet or more away from him, with his back to the victim, the victim put his hand in his pocket and began walking in the general direction of the club and the defendant. Without seeing the victim, without any hesitation at all, and perhaps not even really knowing who was approaching, upon hearing his girlfriend say, “Oh, Lord, here he comes,” the defendant wheeled around and shot Stewart until he ran out of bullets. And then, as Stewart lay wounded, Willis went over to him and beat him to death. Thus it appears from the evidence that the defendant was not provoked, was not attacked, and did not act in self-defense. As the defendant’s girlfriend, an eyewitness, testified, the victim did not attack them.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 11

Through this assignment of error, the defendant argues that the trial court erred in denying defendant’s post verdict motion in arrest of judgment. The defendant contends that the State has not proven the offense of second degree murder which in defendant’s view requires proof beyond a reasonable doubt of the absence of provocation. Briefly stated, the defendant argues that he was denied due process of law in that:

1. the laws of this state relieve the prosecution of the burden of proving, in a second degree murder prosecution, that an accused did not act in sudden passion or heat of blood;
2. the laws and jurisprudence of this state fail to give adequate guidelines as to who bears the burden of proving sudden passion or heat of blood and to what extent such party must carry that burden; and
3. the state failed to carry its burden of proof to negate provocation in this case.

Defendant herein was charged with second degree murder, a violation of La.R.S. 14:30.1:

“Second degree murder is the killing of a human being:
“(1) When the offender has a specific intent to kill or to inflict great bodily harm; ...”

Thus, the State was required to prove beyond a reasonable doubt that Willis killed Stewart, and that he specifically intended to kill or do great bodily harm to Stewart. As the defendant raised the issue of self-defense the State was also required to prove that the defendant did not act in self-defense.

The facts clearly establish that Willis shot and killed Stewart. Defendant does not deny this fact. The circumstances of the victim’s death — the numerous gunshot wounds, the pistol whipping, and the kicking — are themselves evidence that defendant, at the very least, meant to inflict great bodily harm upon Stewart.

The jurisprudence has established that “heat of blood” and “sudden passion” are not elements of the offense of manslaughter, but rather are factors in the nature of mitigating circumstances which may reduce the grade of homicide. State v. Tompkins, 403 So.2d 644 (La.1981).

As stated by the Louisiana Supreme Court in State v. Peterson, 290 So.2d 307 (La.1974):

“If passion reduces a homicide requiring the same scienter, specific intent, from murder to a less serious crime, manslaughter, then lack of passion may realistically be seen as the additional element which elevates a manslaughter to murder. The presence of passion, however, is in the nature of a defense and, for this reason, the additional ‘element’ of lack of passion need not be proven by the state in a murder prosecution. Therefore, the presence of passion is not an additional element of the crime of manslaughter; rather, it is a factor which exhibits a degree of culpability less than that present when the homicide is committed without passion caused by provocation.
“Additionally, a review of our manslaughter statutes ... reveals that the ‘sudden passion’ or ‘heat of blood’ provisions operate in a mitigatory fashion in a murder presecution [sic], not a great deal unlike provisions in the criminal law of other jurisdictions where such factors are considered to be ‘affirmative defenses’ to a charge of murder.” (footnote omitted)

And in State v. Temple, 394 So.2d 259 (La.1981), the court said:

“When the state has adduced sufficient evidence to obtain a murder conviction, yet the defendant is convicted of manslaughter, the state’s failure to prove elements such as ‘passion’ and ‘provocation’ is of no moment. Such ‘elements’ are essentially mitigatory factors, bearing on the character of intent, which the jury is free to infer from the evidence.”

The defendant is not denied due process of law simply because the state is not required to prove the absence of provocation in a second-degree murder case. The only elements which the State was required to prove in this case were that the defendant killed Stewart, that defendant intended to kill Stewart or inflict great bodily harm upon him, and that defendant did not act in self-defense. There appears to be no reason why the State should ever be required to prove that an affirmative defense did not exist, other than to rebut the defendant’s assertions of such a defense. See Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977).

This assignment is without merit.

For the reasons as stated, the conviction and sentence are affirmed.

AFFIRMED.


author: DUFRESNE, Judge. BOWES, Judge,

text:
    Frederick A. MILLER v. E.M. BABST CO., INC. and Mid Continent Underwriters.
    No. 84-CA-246.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 1984.
    Rehearing Denied Dec. 17, 1984.
    Richard S. Vale, Metairie, for plaintiff-appellant.
    Michael D. Meyer, New Orleans, for defendants-appellees.
    Before BOWES, GAUDIN and DU-FRESNE, JJ.
   DUFRESNE, Judge.

Plaintiff, Frederick A. Miller, appeals a judgment of the district court denying him additional workmen’s compensation benefits, penalties and attorney’s fees. We affirm the trial judge’s ruling.

The following facts were stipulated to by counsel at the beginning of the trial. Plaintiff-appellant, a pipefitter, was injured on June 16, 1981, during the course and scope of his employment with E.M. Babst Co., Inc. At that time, plaintiff’s average weekly wage was $753.50 per week and the applicable rate of workmen’s compensation benefits was $163.00 per week (the maximum rate during the period Mr. Miller was disabled). Mr. Miller received workmen’s compensation benefits totaling $4,075.00 at the rate of $163.00 per week from June 16, 1981, through December 7, 1981, a period of twenty-five weeks. Additionally, medical benefits of $1,247.52 were paid on behalf of Mr. Miller by Northwest Insurance Co., the insured of E.M. Babst Co., Inc.

Following his accident, Mr. Miller was treated by Dr. John Garoutte, an orthopedic surgeon. Dr. Garoutte treated Mr. Miller for his injury from June 18, 1981, continuously through October 19, 1981, when Mr. Miller was discharged to return to work. After discharging the patient, Dr. Garoutte continued to follow Mr. Miller’s progress through the end of 1981. At that time, he assigned the appellant a 20% permanent-partial disability of the great toe.

Under the 1981 version of LSA R.S. 23:1221(4)(c), Mr. Miller’s 20% permanent-partial disability of his great toe was com-pensable by $2,009.00. Since he had already received far in excess of this amount, no further payment was tendered by the defendants.

When questioned at trial concerning Mr. Miller's ability to continue working as a pipefitter, Dr. Garoutte testified, “In my understanding of the type of work that plumbers and/or pipefitters do, I would feel good that the injuries which Mr. Miller sustained and his subsequent result would not preclude him from continuing to work in that capacity.”

On March 1, 1982, three months after his last visit to Dr. Garoutte, Mr. Miller consulted Dr. Simeon Isaacs, a podiatrist. According to Dr. Isaacs, Mr. Miller complained that, “... he had pain and discomfort on range of motion and he had trouble with ambulation.” Dr. Isaacs saw appellant only two other times: May 11, 1982, and July 12, 1982. During his treatment of Mr. Miller, Dr. Isaacs prescribed orthotics for the plaintiff's shoes, which appellant reported helped to ease his discomfort. Dr. Isaacs stated, in his testimony, that in his opinion Mr. Miller would probably need surgery on his toe at some future date due to degenerative arthritic changes. (Neither of the orthopedic surgeons who testified agreed with this prediction.) Based upon his examination, Dr. Isaacs assigned plaintiff a five per cent disability to the total body. Since Dr. Isaacs failed to relate the injury to Mr. Miller’s toe to his body as a whole, in any manner other than it formed part of the whole body, recovery of benefits for this injury is properly restricted to the scheduled compensation mandated by the legislature for an injury to the great toe. See Nash v. Knoblock, 381 So.2d 404 (La.1980).

The third and final doctor consulted by Mr. Miller, Dr. Stuart Phillips, an orthopedic surgeon, first examined the plaintiff on June 21, 1982. Dr. Phillips diagnosed the patient as having post traumatic sympathetic dystropy — “an unusual condition that occurs after an injury to the nerves ... [which] causes an overflow of the nerves of the sympathetic nervous system.”

When questioned about the plaintiff’s ability to return to his job as a pipefitter, Dr. Phillips stated that “if he [Mr. Miller] had to climb quickly, he’ll have pain, but if he goes up the stairs slowly, you know, he won’t have as much discomfort. What hurts him is hurrying and using his toe a lot.” Dr. Phillips further testified “... I think he could probably climb for [sic] one story ladder or one story set of stairs without any real discomfort.”

Dr. Phillips also found the patient disabled, stating: “... I rated him a five to ten percent loss of the function of involved extremity and an inability to run and to use the toe vigorously. All of the problems he has is in the great toe and that area.”

The trial judge, in his Reasons for Judgment, stated:

Based on the medical testimony of Doctor Garoutte and Doctor Isaacs, the court concludes that the plaintiff, Frederick A. Miller, suffered an injury to his great toe which left him with a twenty (20%) disability to the toe, and that he was paid the proper amount as required by Statute 23:1221 4(c). The court finds that the plaintiff is not entitled to any additional compensation.

Based upon our review of the record, we cannot say that the trial judge’s conclusions were “manifestly erroneous”. See Arceneaux v. Domingue, 365 So.2d 1330, (La.1979).

Additionally, we find that plaintiff did not carry his burden in relating the injury to his toe to any other part of his body to the extent necessary to exceed scheduled benefits (see Nash, supra), nor did Mr. Miller demonstrate that he was unable to return to any gainful employment without suffering substantial pain and thus entitled to compensation benefits for total disability. See Culp v. Belden Corp., 432 So.2d 847, (La.1983) and Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981).

Accordingly, for the reasons assigned, we affirm the judgment of the district court.

AFFIRMED.

BOWES, J. dissents with written reasons.

BOWES, Judge,

dissenting.

I respectfully dissent from the majority opinion and would reverse the judgment of the trial court and award Frederick A. Miller additional compensation benefits, finding him to have a 10% disability to his foot, as per LSA R.S. 23:1221(4)(g).

On November 5, 1982, Frederick Miller returned to Dr. Garoutte complaining of “continued discomfort in his foot and toe”, consisting of cold, a shooting sensation and numbness. According to Dr. Garoutte, his examination of Miller revealed “that the foot, i.e., the right foot, was cooler than the left to touch ... [and] [h]e had, as I recall, some tenderness.... ” Based upon this visit, Dr. Garoutte testified he reached the following conclusions:

I reaffirmed my previous recommendation for a twenty percent permanent-partial disability of the great toe and I added a ten percent permanent-partial disability of the foot, based on the cold sensations and the discomfort which he was experiencing in that foot. [...]
[A]ll I’m trying to say is that Mr. Miller did sustain an injury and following treatment of such injury his toe is not normal and based upon that in my opinion he has a permanent-partial disability.

Plaintiff-appellant testified that he experiences pain in his foot, “practically every night I go to work.” He stated that when called upon to do a lot of climbing ladders or stairs, he must frequently stop because of foot pain. He also said that “whenever I can take a break and prop it up I do so.” There was both medical and lay testimony buttressing plaintiffs claim of ongoing foot pain, even though the testimony failed to establish that Mr. Miller’s pain prevented him from engaging in “any gainful occupation for wages whether or not the same or a similar occupation as that in which the employee was customarily engaged ... ”, the requirement for total disability under LSA R.S. 23:1221.

I believe that plaintiff is entitled to the 10% disability to the foot assigned by Dr. Garoutte after his examination on November 5, 1982. This finding is based not only on the opinion and diagnosis of the treating physician, but also on the testimony of the appellant and other lay witnesses.

I agree that defendants were not arbitrary and capricious in failing to restart plaintiff’s compensation benefits, after receiving Dr. Garoutte’s report of November 11, 1982. Defendants had received medical reports from three physicians, assigning appellant four different disability ratings. Additionally, Miller had been back to work in the same capacity for approximately a year since his disability rating to his toe had been established.

Accordingly, I would reverse the judgment of the district court and award judgment in favor of appellant and against ap-pellees for workman’s compensation benefits in the amount of $6,279.00 [66%% (statutory percentage) X $753.40 (Miller’s average weekly wage at the time of his accident) x 125 [the number of weeks disability is to be paid under R.S. 23:1221(4)(g) ] x 10% (disability rating assigned), subject to credit for benefits already paid of $4,075.00 (25 weeks of compensation at $163.00 per week) or a net award of $2,204.00.