text:
    STATE of Louisiana v. Larry WILKERSON.
    No. 84-K-0805.
    Supreme Court of Louisiana.
    May 11, 1984.
   . In re Larry Wilkerson, applying for writ of certiorari, prohibition and mandamus to the Second Circuit Court of Appeal, No. 15854-KA; First Judicial District Court, Parish of Caddo, No. 121712-B.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana ex rel. Isaac SWEENEY v. Donald HATHAWAY.
    No. 84-KH-0691.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Donald Hathaway, applying for writ of habeas corpus to the First Judicial District Court, No. 118028, Parish of Cad-do.

Granted. Application transferred to the district court for its consideration.


text:
    Henry R.J. COURNOYER v. EXECUTIVE OFFICE CENTERS, INC.
    No. 84-C-0559.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Executive Office Centers, Inc., applying for reconsideration of writ granted with Order on April 13,1984, 448 So.2d 109, to the Fourth Circuit Court of Appeal, CA-0786; Parish of Orleans, Civil District Court, No. 83-2513.

Reconsideration denied.


text:
    STATE of Louisiana ex rel. Johnny Michael WILLIAMS v. STATE of Louisiana.
    No. 84-KH-0801.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Johnny Michael Williams, applying for remedial writs to the Fourth Judicial District Court, No. 41221, Parish of Ouachi-ta.

Denied on showing made.


text:
    STATE ex rel. John W. ALLEN v. Hon. Frank A. MARULLO Jr. Judge.
    No. 84-KH-0410.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re John W. Allen, applying for remedial writs to Criminal District Court, for the Parish of Orleans, No. 221-178.

Granted. The trial court is ordered to furnish relator a copy of his Boykin transcript on or before June 8, 1984.


text:
    STATE of Louisiana v. George MEALY.
    No. 84-KH-0507.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re George Mealy, applying for writ of mandamus to the Criminal District Court, Section “G”, No. 244-615, Parish of Orleans.

Granted. The trial court is ordered to act on relator’s petition on or before May 23, 1984.


text:
    STATE of Louisiana ex rel. Ricky HALE v. H.M. “Mike” CANNON Clerk of Court, 19th Judicial District Court, Parish of East Baton Rouge.
    No. 84-KH-0830.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Ricky Hale, applying for remedial writ to the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 2-78-689.

Granted. It is ordered that relator be given a copy of his Boykin transcript.


text:
    STATE of Louisiana, ex rel. Ray Anthony JACKSON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0362.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Ray Anthony Jackson, applying for remedial writs, 16th Judicial District Court, St. Mary Parish, No. 111950.

Motion to dismiss granted.


text:
    STATE of Louisiana ex rel. Tyronne Michael ROLLINS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1439.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Tyronne Michael Rollins, applying for supervisory writs from the Thirty-Second Judicial District Court, Parish of Terre-bonne, No. 812148, Section B-2.

Denied.


text:
    STATE of Louisiana, ex rel., Cynthia MOSES v. Johnnie JONES, Warden, Louisiana Correctional Institute For Women.
    No. 83-KH-1463.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Cynthia Moses, applying for supervisory writs of mandamus, certiorari and habeas corpus, Parish of St. Tammany, No. 57129.

Denied.


text:
    STATE of Louisiana, ex rel. James E. JONES v. Burl CAIN.
    No. 83-KH-1467.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re James E. Jones, applying for writ of certiorari, Parish of Jefferson, No. 81-1153, Twenty-Fourth Judicial District Court.

Denied.


text:
    STATE of Louisiana ex rel., Edward J. BELL v. Hon. Judge PRICE, Division “A”, Parish of Jefferson, 24th Judicial District Court, State of Louisiana At Gretna, Louisiana.
    No. 83-KH-1469.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Edward J. Bell, applying for writs of certiorari and review to the 24th Judicial District Court, Parish of Jefferson, No. 791-101 (80-1629).

Denied.


text:
    STATE of Louisiana ex rel., Joseph FRANK v. Honorable James F. McKAY, III, Judge, Section H, Criminal District Court, Orleans Parish.
    No. 83-KH-1477.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Joseph Frank, applying for writ of certiorari and review, Criminal District Court, Parish of Orleans, No. 268-247.

Denied.


text:
    STATE of Louisiana, ex rel., Cleveland HARRIS v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 83-KH-1492.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Cleveland Harris, applying for writs of certiorari, prohibition, mandamus, or habeas corpus, Parish of Orleans, No. 177-954.

Denied.


text:
    STATE of Louisiana, ex rel., Ronald ALEXANDER v. N. Burl CAIN/Warden, Dixon Correctional Institute.
    No. 83-KH-1509.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Ronald Alexander, applying for writ of certiorari, Parish of Calcasieu, Nos. 1400-81, 1871-81 and 10625-81.

Denied.


text:
    STATE of Louisiana ex rel. Willie E. JONES v. Ross MAGGIO.
    No. 83-KH-1512.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Willie E. Jones, applying for supervisory writ from the Criminal District Court, Parish of Orleans, No. 259-924.

Denied.


text:
    STATE of Louisiana ex rel. James L. BATES v. Charles C. FOTI, Jr., Sheriff.
    No. 84-KH-0470.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re James L. Bates, applying for remedial writs to the Criminal District Court, Section “J”, No. 273-104, Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. John T. MADDOX v. Hon. Judge, MARTIN and Clerk of Court, et al.
    No. 84-KH-0547.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re John T. Maddox, applying for writ of mandamus to the 25th Judicial District Court, Parish of Plaquemines, No. 73542.

Denied. Moot.


text:
    MILLIKEN & FARWELL, INC., Lynne Hecht Farwell, Wife of and F. Evans Farwell, Stella Farwell Leonard, Wife of and George L. Leonard, Lynne Farwell White, Wife of and H. Hunter White, Jr., Martha Farwell Levert and Chevron U.S.A. Inc. v. RIVER LANDS FLEETING CORPORATION, Mai Frances Doles, Trustee of the Edith S. Herlitz Trust, Benjamin R. Badley, Jr., Lorraine Badley Rush and Crutcher-Tufts Corporation.
    No. 84-CC-0625.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re River Lands Fleeting Corporation, Mai Frances Doles, Trustee of the Edith S. Herlitz Trust, Benjamin R. Badley, Jr., Lorraine Badley Rush and Crutcher-Tufts Corporation, applying for supervisory writs to the Eighteenth Judicial District Court, Parish of West Baton Rouge, No. 15814; First Circuit Court of Appeal, No. CW84/0292.

Denied.

DIXON, C.J., and CALOGERO and MARCUS, JJ., would grant the writ.


text:
    STATE ex rel. Michael MYERS v. Hon. James McKAY III, Judge.
    No. 84-KH-0640.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Michael Myers, applying for writ of mandamus, from the Criminal District Court, Parish of Orleans, No. 255-666.

Denied. Moot.


text:
    Kirt A. BECHNEL v. Jeffrey D. CHARLET, et al.
    No. 84-C-0775.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Jeffrey D. Charlet, applying for writ of review to the Fourth Circuit Court of Appeal, No. CA-1013; Civil District Court, Parish of Orleans, No. 76-6911.

Denied.


text:
    Melvin SMITH v. NEW ORLEANS PUBLIC HOUSING TENANTS, INC., Ms. Crystal H. Jones, Mrs. Barbara Stevens, Roy V. Boult, Sr., Mildred Rockett, Sadie Harris, Yvonne Miles, Augusta L. Kerry and Ulysses S. Williams, Secretary of the Department of Labor, State of Louisiana.
    No. 84-CC-0778.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Melvin Smith, applying for writ of certiorari, review, prohibition and mandamus to the Fourth Circuit Court of Appeal, No. C-1994, Civil District Court, Parish of Orleans, No. 84-3130.

Denied.


text:
    Freddie E. FACIANE v. Roger SELIGMAN, Alain Seligman, Hjalmar Breit, Charles S. Smith, Arthur Vaughns, Charles B. Altmann, James Henderson, Earl Cunningham.
    No. 84-C-0791.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Roger Seligman, Alain Seligman, Hjalmar Breit, Charles S. Smith, Arthur Vaughns, Charles B. Altmann, James Henderson, Earl Cunningham, applying for writ of certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Nos. CA 0222 and CA 0223; Civil District Court, Parish of Orleans, Nos. 77-11078 and 77-11079.

Denied.


author: LEMMON, J.,

text:
    Justin G. SERPAS v. Kay Guerra, Wife of Justin G. SERPAS.
    No. 84-CC-0878.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Justin G. Serpas, applying for writ of prohibition, certiorari and mandamus to the Thirty-Fourth Judicial District Court, No. 41-957; Parish of St. Bernard; Fourth Circuit Court of Appeal, No. C-2201.

Denied.

LEMMON, J.,

concurs, noting that relator may reapply to this Court if he does not obtain an expedited appeal.


text:
    Frank S. BRUNO d/b/a Bruno’s Gallery v. Ernest N. MORIAL et al.
    No. 84-CC-0941.
    Supreme Court of Louisiana.
    May 14, 1984.
   In re Frank S. Bruno, applying for writ of certiorari to the Civil District Court, Parish of Orleans, No. 83-7347, from the Court of Appeal, No. C-2309.

Denied


text:
    STATE of Louisiana v. Dorman “D.D.” LACOUR.
    No. 84-KK-0929.
    Supreme Court of Louisiana.
    May 15, 1984.
   In re Dorman “D.D.” Lacour, applying for writ of review, from the Thirty-Fifth Judicial District Court, Parish of Grant, Nos. 45090 and 45091; Third Circuit Court of Appeal, No. K-84-392.

Denied.


text:
    STATE of Louisiana ex rel. William CONGER v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, Hon. Frank J. Shea, Judge.
    No. 84-KH-0947.
    Supreme Court of Louisiana.
    May 15, 1984.
   In re William Conger, applying for remedial writ to the Criminal District Court, Parish of Orleans, No. 297-507, Fourth Circuit Court of Appeal, No. K-2025.

Denied.


text:
    Dennis John RICHOUX v. Clement HEBERT, et al.
    No. 84-C-0306.
    Supreme Court of Louisiana.
    March 16, 1984.
   In re Clement Hebert, et al., applying for writ of certiorari, or writ of review, to the Court of Appeal, Third Circuit, No. 83-192; to the Parish of Vermilion, Fifteenth Judicial District Court, No. 8142963.

Denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana v. Cessen J. JAMES.
    No. 84-KH-0854.
    Supreme Court of Louisiana.
    May 16, 1984.
   In re Cessen J. James, applying for writ of habeas corpus, to the Ninth Judicial District Court, Parish of Rapides, No. 208868.

Granted. This application is transferred to the Court of Appeal, Third Circuit, for filing and its immediate consideration. All applications transferred to the Court of Appeal for action from this Court shall be filed, considered and acted upon by the Court of Appeal.


text:
    STATE of Louisiana v. Robert Eugene MOORE, Jr.
    No. 84-KH-0951.
    Supreme Court of Louisiana.
    May 16, 1984.
   In re Robert Eugene Moore, Jr., applying for writ of habeas corpus, 38th Judicial District Court, Parish of Cameron, No. 43995.

Granted. Application transferred to the district court for its immediate consideration.


text:
    STATE of Louisiana v. Danny SINGLETON.
    No. 84-KK-0962.
    Supreme Court of Louisiana.
    May 16, 1984.
   In re Danny Singleton, applying for writ of review to the Fifteenth Judicial District Court, Parish of Lafayette, to the Third Circuit Court of Appeal, No. K-84-403.

Denied.


author: LOTTINGER, Judge.

text:
    BIG S TRUCKING COMPANY, INC. v. GERVAIS FAVROT, INC., et al. Homer HOYT, Jr. v. GERVAIS FAVROT, INC., et al. Eddie B. MELSON v. GERVAIS FAVROT, INC., et al.
    Nos. 82 CA 0773 to 82 CA 0775.
    Court of Appeal of Louisiana, First Circuit.
    May 17, 1983.
    Before LOTTINGER, COLE and CARTER, JJ.
   LOTTINGER, Judge.

These consolidated appeals arise from three suits brought to demand payment for services rendered and assert privileges under the Private Works Act, La.R.S. 9:4801 et seq. Plaintiffs, Big S Trucking Company, Homer Hoyt, Jr., and Eddie B. Melso'n sued the general contractor and various subcontractors on a construction project on South Sherwood Forest Boulevard in East Baton Rouge Parish for unpaid amounts billed for hauling dirt and other materials away from the construction site. The owner of the office buildings under construction, Prudential Insurance Company, was added as a party defendant. After the three suits were consolidated, the general contractor, Gervais F. Favrot Company, Inc. (Favrot), pleaded the exception of no right and no cause of action, and additionally moved for summary judgment. The motion for summary judgment was granted, resulting in three consolidated de-volutive appeals.

FACTS

From the briefs and the record, we glean the following:

Prudential Insurance Company, as owner of immovable property, contracted with Favrot, a general contractor, for construction of Sherwood Oaks Office Park. Fav-rot recorded its contract and provided a surety bond, as required by statute. Fav-rot then contracted with Addco Construction Company, Inc. (Addco) for installation of the parking lots and other foundation work. Subsequently, Addco arranged with On the Move Land Development and Trucking Company, Inc. (On the Move) for removal of surplus dirt from the site. On the Move contracted with plaintiffs for the trucks and labor needed to haul, the dirt. Plaintiffs rendered labor and supplied trucks in connection with the removal of the surplus dirt and deliverance thereof to defendants Jim Welsh and Michael Choates.

After a default in payment, plaintiffs, recorded sworn statements showing the total amounts of their claims in the office of the recorder of mortgages for East Baton Rouge Parish. Subsequently, plaintiffs gave written notice of claim to Favrot as general contractor. The instant suits followed.

The trial court sustained summary judgment after Favrot introduced an affidavit from Addco’s office manager and bookkeeper stating that Addco had never contracted with On the Move for removal of the dirt, that the dirt was given in exchange for its removal, and that Addco assumed no responsibility for its removal. Favrot also introduced an affidavit by its president which attested to the lack of privity between plaintiffs and Favrot.

SPECIFICATIONS OF ERROR

Plaintiffs-appellants do not assign precise specifications of error, but argue that the trial court committed error in finding that there were no genuine issues of material fact and Favrot was entitled to judgment as a matter of law. Plaintiffs-appellants contend that the record leaves unanswered the following contested issues of fact:

1. what were the factual circumstances surrounding the negotiations between Add-co and On the Move for the removal of the dirt from the job site;

2. was an agreement struck between Addco and On the Move for the removal of the dirt;

3. did that agreement amount to a contract creating a subcontractor relationship between Addco and On the Move; and

4. ultimately, was On the Move a subcontractor to whom labor and equipment was furnished by plaintiffs for moving dirt from Favrot’s construction site?

SUMMARY JUDGMENT

Under La.Code Civ.P. art. 966, a mover is entitled to summary judgment if there is no genuine issue as to material fact, and the mover is entitled to judgment as a matter of law. Only when reasonable minds must inevitably conclude that the mover is entitled to judgment on the facts before the court should summary judgment be granted, Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976), cert. den. 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98.

PRIVATE WORKS ACT

The Private Works Act, La.R.S. 9:4801 et seq., prior to its revampment in 1981, granted a privilege against land and improvements in favor of “every contractor, subcontractor architect, engineer ... cart-man, truckman, workman, laborer ... who performs work or furnishes material for the erection, construction, repair, or improvement of immovable property...” La. R.S. 9:4801. Under La.R.S. 9:4802, every contract for the construction, repair, erection, etc. of immovable property was required to be in writing, signed under authentic act or private signature, and recorded. Such recordation preserved the privileges mentioned in La.R.S. 9:4801. The owner was required to cause the general contractor to record the contract, obtain a surety bond and file same with the recorded contract. If the owner failed to require recordation of the contract, or if a bond was not filed or was of an insufficient amount, the Act mandated the owner’s personal, statutory liability in addition to the privilege against his property, La.R.S. 9:4806 and 9:4812. However, if the contract was recorded and a proper bond filed, the owner was relieved of personal liability and liability for all labor and materials used in construction vested with the general contractor and his surety, La.R.S. 9:4803.

In the instant case, the construction contract was recorded and a bond filed; thus, Favrot, the general contractor, would be liable for any claim privileged under La. R.S. 9:4801, inasmuch as plaintiffs provided proper notice of their claims to Favrot as per La.R.S. 9:4811C. Favrot argues, however, that the services provided by On the Move and plaintiffs are not within the scope of privileged claims set out in La.R.S. 9:4801; thus, absent privity, Favrot cannot be held responsible for amounts not paid to plaintiffs. It is Favrot’s contention that hauling dirt away from the construction site is neither the performance of work nor the furnishing of materials for the erection or construction of immovable property; therefore, plaintiffs’ claims are not within the ambit of the Private Works Act.

Plaintiffs argue that On the Move was the subcontractor of Addeo, a subcontractor on the project, and that because they provided labor to On the Move, their claims are privileged under the Act. There is no dispute that privity exists between On the Move and plaintiffs; thus, the primary question is whether On the Move was a “subcontractor” or a “furnisher of material” who performed work or furnished material for the erection, construction or improvement of immovable property, La.R.S. 9:4801.

We are not convinced that reasonable minds must inevitably conclude that Favrot is entitled to judgment as a matter of law. In Hunt v. La Chere Maison, Inc., 316 So.2d 850 (La.App. 1st Cir.1975), a claim against an owner for hauling four loads of trash from a construction site was held lienable under the Private Works Act. We cannot distinguish hauling trash in Hunt, supra, from hauling away excess dirt and sand in the instant case.

Moreover, a genuine issue as to material fact exists as to the nature of the arrangement between Addeo and On the Move. Affidavits filed by Favrot in support of summary judgment contained allegations by Favrot’s president and Addco’s bookkeeper that no contract existed between Addeo and On the Move. Such allegations are conclusions of law, not statements of fact which would support summary judgment. Affidavits supporting summary judgment must set forth facts which would be admissible as evidence, La.Code Civ.P. art. 967; Barnes v. Sun Oil Company, 362 So.2d 761 (La.1978). The affidavits filed by Favrot do not set forth precise facts which would aid the court in determining whether a contract did exist, which determination is properly made by the court. Thus, the affidavits supporting the motion for summary judgment are insufficient.

Because there are genuine issues as to material fact and because reasonable minds could differ as to Favrot’s entitlement to judgment as a matter of law, we hold that summary judgment herein was improvidently granted by the trial court.

DECREE

Therefore, for the above and foregoing reasons, the summary judgments of the trial court granted in favor of Gervais F. Favrot Company, Inc., dismissing plaintiffs’ suits at their costs, are hereby reversed, and the causes remanded for further proceedings not inconsistent with this opinion. Costs of these appeals are assessed to defendant-appellee, Gervais F. Favrot Company, Inc.

REVERSED AND REMANDED.

      . Made parties defendant were Gervais F. Favrot Company, Inc., erroneously cited as "Gervais Favrot, Inc.”, the general contractor, Addco Construction Company, Inc., On the Move Land Development and Trucking Company, Inc., Jim Welsh, and Michael Choates.

      . The Private Works Act, La.R.S. 9:4801 et seq., was rewritten by Acts 1981, No. 724, § 1, with some changes being made in the substantive provisions thereof. Thus, references to the Private Works Act made herein refer to the version of the act existing previous to the 1981 amendments.


author: KLEES, Judge. REDMANN, Chief Judge, KLEES, Judge.

text:
    James T. CLYNES v. Elaine L. Lowe, wife of James T. CLYNES.
    No. CA-1100.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1983.
    On Rehearing June 6, 1984.

      Charlotte A. Hayes, A.D. Freeman, Sat-terlee, Mestayer & Freeman, New Orleans, for plaintiff-appellee.
    Melanie Kleinpeter Cooper, New Orleans, for defendant-appellant.
    Before REDMANN, C.J., and KLEES and BYRNES, JJ.
   KLEES, Judge.

This is an appeal brought by Elaine Lowe Clynes (appellant) asserting that the court abused its discretion in its awarding of child support and a joint custody plan.

The litigation providing the basis for this appeal commenced in September of 1977, when James T. Clynes (appellee) and appellant separated. Since that time there have been protracted rules to increase and decrease child support, increase and terminate alimony, and partition of the community. Finally, on February 23, 1983, appellant filed a rule to increase child support. Appellee filed a rule to reduce the in globo child support award (as one of the minors had reached majority) and filed a rule to establish a Joint Custody plan with the remaining minor. On March 14, 1983 judgment was rendered granting the joint custody plan. Included in the plan, appellee was held responsible to pay the minor’s school tuition, establish an allowance for the minor; pay or make available to the minor funds necessary for the purchase of clothing; maintain all medical and dental expenses for the minor; and pay the sum of $250.00 per month for her support.

After denial of a motion for new trial, this appeal was filed.

While appellant asserts that the trial judge committed manifest error regarding it’s award of joint custody of the minor. We note that under LSA C.C. art. 146(C), “... There shall be a rebuttable presumption that joint custody is in the best interest of a minor child unless: (1) The parents have agreed to an award of custody to one parent or so agree in open court at a hearing for the purpose of determining the custody of a minor child of the marriage; or (2) The court finds that joint custody would not be in the best interest of the child....”

Appellant offered no proof whatsoever during the trial of the rule that appel-lee was an unfit parent or that joint custody would not be in the best interest of the minor child. Accordingly, we find no error in the trial courts award of the joint custody plan.

The primary issue in this appeal is the assertion that the trial court abused its discretion in its March 14th, 1983 award of child support; specifically the cash award of $250.00.

In brief, appellant states and we agree that:

“In determining child support, the trial court is vested with wide discretion. Such a determination will not be disturbed by an appellate court unless a review of the record indicates that the trial judge abused that discretion.... Guinn v. Guinn, 405 So.2d 620 (La.App. 3rd Cir.1981).” Duplantis v. Monteaux, 412 So.2d 215 (La.App. 3rd Cir.1982).

Articles 227 and 231 establish and our jurisprudence holds that:

[1] Parents share the obligation of supporting, maintaining and educating their children and the degree of support is to be determined according to the need of the child and the ability of the parent who is to pay it. C.C. Art. 227 & 231; Graval v. Graval, 355 So.2d 1057 (La.App. 4th Cir.1978) DeMarcay v. De Marcay, 414 So.2d 845, (La.App. 4th Cir.1982).

Further:

“... If the parents are divorced and the children are living with their mother, the children are entitled to the same standard of living as if they resided with their father whenever the financial circumstances of the father permit. Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (La.1953); Sarpy v. Sarpy, 323 So.2d 851 (La.App. 4th Cir.1975); cert. denied, La. 328 So.2d 166 (1976); Phillips v. Phillips, 319 So.2d 566 (La.App. 4th Cir.1975).” Ducote v. Ducote, 339 So.2d 835 (La.1976).

The transcript of the trial court record indicates that appellant attempted to establish that the requested amount of child support ($1700/month) is well within the financial means of appellee. Though a final figure indicating appellees annual income was never established it was stipulated to at trial that:

“Mr. Freeman: I would like to make another statement for the record if your Honor please. Dr. Clynes is well able to contribute his share of child support, tuition, and care of his daughter coincident with a man who makes in excess before taxes of $100,000.00 a year, which means —...” p. 22 transcript.

The court acknowledges the stipulation:

“The Court: I’m trying to tell you I have enough information. If Dr. Clynes is making allegedly what he makes in his corporation and I think this young lady is entitled to $1,700.00, whether she’s in the same style of living or not, he can afford to pay.” p. 57 transcript.

Obviously appellant adequately demonstrated to the trial court that appel-lee has sufficient income to support a child support award in the amount requested, ($1,700/month) she has not sustained the burden of proof necessary to establish a substantial change in circumstances from the March, 1981 judgment. When viewing the trial court’s award of joint custody and those specific elements of the judgment holding appellee responsible for all of the minor’s clothing purchases, allowance, school tuition and medical and dental needs, we can not say that the trial court was manifestly erroneous.

In calculating the amount of a child support award, the court must consider, the totality of all pertinent circumstances. Marcus v. Burnett, 282 So.2d 122 (La.1973).

The trial judge is best suited to examine the testimony as it is given and his considerable discretion should not be undermined unless there appears to be a clear abuse of discretion. Further:

“... it should be borne in mind that calculation of child support by a mathematical formula is impossible and that all of the varying facts and circumstances of each individual case must be taken into consideration in fixing the amounts awarded.” Fall v. Fontenot, 307 So.2d 779, (La.App. 3rd Cir.1975).

Our reading of the record, however reveals that after presenting the joint custody plan, and while under cross-examination by appellant’s counsel, appellee asserted that he would be willing to pay $350.00 cash per month as part of the plan presented. While the trial court only awarded $250.00 as the cash payment per month, we are constrained to accept the figure presented by appellee as part of the plan and amend the judgment to reflect this amount.

Accordingly, for the reasons expressed above, we amend the cash award of $250.00 per month to $350.00 per month, in all other respects, the judgment appealed from is affirmed.

AMENDED IN PART AND AS AMENDED AFFIRMED.

REDMANN, C.J., dissenting with written reasons.

REDMANN, Chief Judge,

dissenting in part.

La.C.C. 146 D (as amended, Acts 1982 No. 307) declares that “ ‘joint custody’ shall mean the parents shall share the physical custody .... ” Is a judgment that orders a child “shall reside with” the mother, with “visitation” to the father alternate weekends, a judgment ordering “joint custody”?

Or, by proposing that basic arrangement, has not the father “agreed to an award of custody to one parent,” art. 146 C(l), namely the mother, thereby excluding the “re-buttable presumption” that joint custody should be awarded?

The “joint custody” judgment appealed from simply does not award joint custody within the meaning of C.C. 146 D. What it does is subvert C.C. 250’s rule that the custodial parent is the child’s tutor by nature. It awards custody to the mother but gives the father joint tutorship of the child and more. It makes the mother the custodial parent, but gives the father most of the parental authority. It makes the mother responsible for having the 12-year-old girl suitably dressed, but gives the father control of buying the girl’s clothes. It makes the mother sit through the night with the child through toothache or flu, but lets the father decide when to call in a doctor, and what doctor to call. It makes the mother inculcate values, yet lets the father decide what allowance the child should have. Its final debasement of the custodial parent’s authority is that it authorizes the 12-year-old child to dismiss the mother as custodial parent whenever it pleases the child, by providing additional visitation to the father whenever the child chooses.

A parent whose other interests make him or her unable (or unwilling) to “share the physical custody” as specified by art. 146D should be deemed, as a matter of law, equally unable to share the tutorship of the child.

The judgment appealed from should be reversed insofar as it awarded “joint custody” and gave the father joint tutorship, and especially insofar as it gave the father other authority over the child while in the mother’s physical custody.

Evidently the trial judge shared the father’s concern that the mother had been spending part of the former child support money on herself (or perhaps on their other two children, now of age). If so, the trial judge should fashion some remedy other than taking the mother’s parental authority away. Perhaps the mother might be ordered to consider the father's view on what school the child is to attend, but the mother, as the custodial parent, should have the final decision although tuition might be billed directly to the father. A limit could be imposed on the amount to be spent for the child’s clothes and the bills sent to the father for payment (or reimbursement), but the mother, as custodial parent, should have the authority to select the child’s clothes. The father could be ordered to pay an allowance directly to the child, but the mother should have the final authority to decide its amount (within reasonable limits). The mother alone, rather than mother and father as co-tutors, should select medical and dental doctors for the child and decide when a doctor is needed (although she could not reject without good reason doctors who may provide services as a professional courtesy to the dentist father). And, because it is the function of the trial judge rather than of the child to fix visitation, some definite schedule should be fixed rather than visitation “any other time [the child] may desire to visit with [the father].”

The majority’s increase to $350 monthly for the father’s contribution towards the child’s food and other household expenses is reasonable and this writer therefore concurs in it, notwithstanding that the father’s expressed willingness to pay that amount was reached at a time that the mother was unemployed while at trial time she had obtained employment at $16,000 a year.

ON REHEARING

KLEES, Judge.

We granted rehearing for the limited purpose of considering whether the joint custody plan imposed by the trial court complies with the intent of LSA C.C. 146 in light of the recent decisions in Adams v. Adams, 441 So.2d 490 (La.App. 2nd Cir.1983) and Carroway v. Carroway, 441 So.2d 494 (La.App. 2nd Cir.1983).

Our main concern was the portion of the judgment stating that the minor child Elisha Clynes was to reside with the mother with visitation granted to the father from 6:00 P.M. Fridays to 6:00 P.M. Sunday, every other weekend or any other time the minor child may desire to visit with him.

While we might agree that the implementation of this joint custody plan leaves many questions unanswered, we can find none which would fit every circumstance or be agreeable in all respects between all the parties. We note that in the original plan submitted to the court by the father, it was suggested that the child remain living with the mother. In the mother’s proposal submitted thereafter, it was suggested that “V. Elisha will reside with her mother, Elaine Lowe Clynes. She will visit with her father on every other weekend from 6:00 P.M. on Friday to 6:00 P.M. on Sunday, and at other times when Elisha and her father may agree.” emphasis added.

In Plemer v. Plemer, 436 So.2d 1348 (La.App. 4th Cir.1983) this court was faced with an interpretation of joint custody.

“We interpret ‘joint custody’ to mean a physical sharing of the child in addition to both parents participating in decisions affecting the child’s life — e.g., education, medical problems, recreation, etc....
... We don’t interpret joint custody to mean a fifty-fifty sharing of time. Each case will depend on the child’s age, the parents’ availability and desires, and other factors....”

In considering all factors as presented by this record as well as the agreement of both mother and father concerning the physical custody of the child, we again find no error in the trial courts determination of physical custody of the minor.

REDMANN, C.J., dissents.

      . Art. 227. Parental support and education of children.

      Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.

      . Art. 231. Basis for granting alimony.

      Alimony shall be granted in proportion to the wants of the person requiring it, and the circumstances of those who are to pay it.


author: McCLENDON, Judge Pro Tempore.

text:
    STATE of Louisiana, Appellee, v. Onita B. KNOX, Appellant.
    No. 15810-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Rehearing Denied May 2, 1984.

      Emmons & Stokes by Douglas L. Stokes, Jonesboro, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, John C. Blake, Dist. Atty. by Walter E. May, Jr., Asst. Dist. Atty., Jones-boro, for appellee.
    Before HALL and SEXTON, JJ., and McCLENDON, J. Pro Tempore.
   McCLENDON, Judge Pro Tempore.

Onita Knox was convicted of theft of $9,057.00 in violation of LSA-R.S. 14:67 by fraudulent representation in obtaining food stamps and funds from Aid to Families with Dependent Children. She was sentenced to four years at hard labor in the custody of the Department of Corrections. She appeals the conviction and sentence.

Although no formal assignment of errors was filed, the designation of the record for appeal includes a statement of the defense intention to allege the insufficiency of the evidence to uphold the conviction and the excessiveness of the sentence. This filing was made three days after the appeal was granted on March 8,1983 and some 57 days before the return date, and hence timely under C.Cr.P. Art. 844.

The defendant allegedly obtained $9,057 in state Aid to Families with Dependent Children, and food stamps for which she was not qualified through fraudulent misrepresentations as to the composition of her household during the period from January 1975 to November, 1981.

The alleged misrepresentation by Mrs. Knox was her failure to inform the office of Family Security that Roy Charles Jackson, the father of her two youngest children, was living in the household. Entitlement to food stamps is based upon the income of the persons living in the household.

Hence, the State had to prove that Roy Jackson was a parent, living in the household, bringing income into the household, and that Mrs. Knox had intentionally misrepresented this fact in order to defraud the State.

After a lengthy five day trial, including testimony from 26 witnesses and introduction of 18 exhibits, the six-person jury returned a verdict of guilty. On March 8, 1983 defendant was sentenced to four years at hard labor. This appeal followed. We affirm.

Assignment No. 1 strikes at the sufficiency of the evidence to justify the jury’s finding of guilt.

The State’s evidence was primarily circumstantial as to Roy Jackson’s living in defendant’s home and providing any contribution to the family income.

If we use the Jackson v. Virginia, 443 U.S. 308, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) test as it has been applied by the Louisiana Supreme Court and particularly in State v. Chism, 436 So.2d 464 (La.1983), we find that the evidence presented, viewed in the light most favorable to the State, would convince any rational trier of fact that defendant’s guilt had been proved beyond any reasonable doubt.

As Justice Blanche so succinctly stated in his concurring opinion speaking of the two-prong application in appellate review of eases involving circumstantial evidence:

“Upon further reflection, I am now of the view that such a dichotomy is unnecessary and confusing. Whether by direct or circumstantial evidence, any rational trier of fact, in viewing such evidence in the light most favorable to the prosecution, must conclude that the state proved the essential elements of the crime beyond a reasonable doubt; where the evidence against the defendant is circumstantial, every element is proved beyond a reasonable doubt when every reasonable hypothesis of innocence has been excluded per the mandate of LSA-R.S. 15:438. The Jackson standard is a constitutional standard gleaned from the due process clause of the 14th Amendment. R.S. 15:438 is a statutory eviden-tiary standard — not a constitutional standard — and, as such forms part of the inquiry in assessing the sufficiency of the evidence under the Jackson standard of appellate review, i.e., exclusion of every reasonable hypothesis of innocence, where the evidence against the defendant is circumstantial, forms but part of the broader Jackson inquiry. A single standard for appellate review, comporting with the sufficiency standard established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is all that is constitutionally required. ...”

The State presented the testimony of neighbors to establish the activities of Roy Jackson around defendant’s home and the frequency of his presence there while working on or washing his automobile, tending an outdoor barbeque or cooker, and jogging. There was evidence from two investigators who had the house under surveillance for the specific purpose of determining if Roy Jackson did in fact stay there. Roy Jackson testified that he used defendant’s address as his mailing address and had as long as defendant had lived at 118 Gayla Drive.

Both Jackson and defendant admitted that he was the father of defendant’s two youngest children. He claimed these two children as his own to increase benefits he received from the Veterans Administration, checks for which were mailed to Jackson at defendant’s residence address and were either cashed or deposited by defendant in one of two joint bank accounts standing in both their names.

Further, both defendant and Jackson stated to a law enforcement officer, called to defendant’s home by Roy Jackson to investigate a disturbance, that they were married to each other.

If any doubt might have existed before, surely it was dispelled by defendant’s own testimony and that of the rebuttal witness, Claudine Rushing, eligibility worker with the Jackson Parish office of Family Security. On a visit to defendant’s home Ms. Rushing was told by defendant that a Pontiac Grand Prix gold and tan automobile, as well as another one of three cars in her driveway, belonged to her son who was away in the service. On that same visit defendant, when questioned about Roy Charles Jackson as father of two of her children included in the food stamp and AFDC grants, informed Ms. Rushing that Jackson was somebody she had dated when he was in service and she did not know his present whereabouts.

Some 15 days later Ms. Rushing saw defendant and Roy Charles Jackson, whom she did not at that time know, together with the two children in a grocery store buying groceries.- She observed that they were using the Pontiac car defendant had pointed out as belonging to her son away in service. Two days later defendant called Ms. Rushing’s office to ask a question about food stamps and was asked if she had any additional information about Jackson. Defendant replied she had no other information and had not seen Jackson.

Assignment No. 2 complains that the sentence of four years at hard labor is excessive, particularly in light of defendant’s offer to make restitution.

Under LSA-R.S. 14:67 the maximum penalty for the crime of theft when the taking amounts to $500 or more is imprisonment, with or without hard labor, not to exceed 10 years, or a fine not to exceed $3,000, or both imprisonment and a fine. Onita Knox was sentenced to four years in prison at hard labor.

A sentence is excessive if it is grossly out of proportion to the severity of the crime or nothing more than the needless and purposeless imposition of pain and suffering. State v. Howard, 414 So.2d 1210 (La.1982).

The trial judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Prados, 404 So.2d 925 (La.1981); State v. Feeback, 414 So.2d 1229 (La.1982).

The penalty imposed here would have to be classified as mid-range or less and certainly not excessive. We find this is so because it included no fine at all and was only two-fifths of the maximum prison time to which defendant was subject.

Examination of the record failed to reveal an offer to make restitution under any proposal that held any hope of compliance by defendant. We fail to find that defendant ever had any income from any source other than welfare grants in some form. The many applications by defendant for assistance filed in the record, dating back as far as 1975, fail to disclose any admission of income from any source. This court finds, as did the trial judge, it most difficult to conceive of how the defendant would pay $200 a month towards restitution. It is true that mention was made by counsel for defendant, in conference with the trial judge before sentencing, that defendant’s sons “would see that that was paid,” but nothing more substantial was put before the sentencing judge. We find he was justified in not considering probation with restitution.

State v. Carey, 392 So.2d 443 (La.1981) appears to be ample justification for the trial court’s feeling that an insupportable restitution arrangement under a probated sentence was not acceptable.

We find no authority for amendment of the sentence by written order on ex parte motion of defense counsel to limit the time defendant was disqualified to receive public assistance benefits of any type for a period of six months from the date she begins serving her sentence. This is especially so since the appeal had been granted on March 8, 1983, and this order was not signed until March 18, 1983. C.Cr.P. Art. 916 provides that the jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction over the matter except in the limited manner provided in sub-parts (1) through (6) of said article, which do not include provision for ex parte amendments such as this.

We affirm the conviction and sentence and strike the improper amendment.


author: MARVIN, Judge.

text:
    STATE of Louisiana, Appellee, v. James P. TOMLINSON, III, Appellant.
    No. 15826-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Rehearing Denied May 2, 1984.
    Writ Granted June 1, 1984.

      Davenport, Piles & Kelly by Thomas W. Davenport, Jr., Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Earl Cox, Asst. Dist. Atty., Monroe, for appel-lee.
    Before MARVIN, SEXTON and NORRIS, JJ.
   MARVIN, Judge.

Tomlinson appeals his conviction of transferring with intent to defraud, a forged writing, known by him to have been forged (LRS 14:72, in part) and his sentence to five years at hard labor. LSA-Const. Art. 1, § 20.

Defendant’s first three assignments essentially question the legal sufficiency of the bill of information and of the evidence upon which the conviction is based. We affirm.

On the morning of March 12, 1982, an employee of a savings and loan bank in Ouachita Parish, Ms. Banks, was asked by the defendant, who was sitting in a truck in the bank parking lot before the bank opened, whether she was a bank employee and whether she would make a deposit for him. She agreed and watched defendant write what she said was a deposit slip, which he gave her with two checks and some money. The deposit slip listed $231 in cash, a personal check of Donald Brown payable to defendant’s order for $56.56, and a check of the Louisiana Office of Employment Security payable to the order of GARY L. ELLIS for $164. The $56.56 check payable to defendant was endorsed by defendant. The $164 check payable to Gary L. Ellis was endorsed Gary Brooks Ellis. The bank credited defendant’s account with the deposit as the deposit slip directed. A copy of the deposit slip and of the GARY BROOKS ELLIS endorsement on the reverse of the $164 check is reproduced here:

Ms. Jackson, another employee of the bank, who had seen defendant and Ms. Banks in the parking lot, received the deposit from Ms. Banks. Before crediting the deposit to defendant’s account, Ms. Jackson wrote “for deposit” on the reverse of the $164 check and placed defendant’s account number thereon because the bank required this information on the check.

Donald Brown testified that he wrote the $56.56 check to defendant to pay defendant for mechanical work defendant did on Brown’s automobile. Gary L. Ellis testified that he did not know defendant, had never dealt with defendant, did not know how defendant came into possession of the $164 check, that he did not receive his state unemployment check for the week of February 27, and that the endorsement GARY BROOKS ELLIS on the check was not his signature or a name which he had ever used. Police witnesses testified that the driver’s license number written beneath the endorsement did not relate to any GARY BROOKS ELLIS but belonged to a white 51-year-old female in Lake Charles, Louisiana, a Ms. Chasson.

Exemplars of defendant’s handwriting and signature, the deposit slip and the $164 check were given to the Northwest Louisiana Criminalistics Laboratory for analysis. The crime lab was also given exemplars from Gary L. Ellis. The handwriting expert reported that Gary L. Ellis did not endorse the $164 check, that there were some similarities between the defendant’s exemplars and the writing on the deposit slip and the endorsement on the check, that neither the writer of the deposit slip nor the writer of the endorsement GARY BROOKS ELLIS could be identified from the handwriting, and that the endorsement was “disguised” writing.

Defendant did not testify. He argues that identification of him by the two bank employees is suspect or suggested and does not prove that he was the man who gave the checks and deposit slip to Ms. Banks. We find this argument without merit. Both of the bank employees picked defendant’s picture from a photographic line-up when the police conducted an investigation and both identified him in the courtroom as the man in the parking lot. This is direct evidence that defendant was the person who wrote something and who gave the deposit slip, the checks and the money to Ms. Banks and asked her to make the deposit for him when he learned she was a bank employee. Defendant effectively “transferred" these items to Ms. Banks, an employee of the savings and loan bank, in the parking lot just as if he had waited until the bank opened and had conducted business over the counter with her.

The evidentiary issue in these circumstances' is not whether the state proved that defendant transferred a forged writing. The forgery and the transfer were clearly proved by direct evidence and beyond a reasonable doubt. The issue is whether the check was known by defendant to be a forged writing, and if so, whether defendant transferred it with the intent to defraud. LRS 14:72.

Defendant argues that the only evidence from which it could be concluded that he knew the endorsement on the check was forged was the fact of his unexplained possession of the check (assuming its transfer by defendant, which he does not concede, but which we find was proved). From this premise, defendant asserts that his unexplained possession of the check cannot be the basis of proof of knowledge because it would reflect upon his constitutional right to remain silent and to be presumed innocent. The fact of possession of a forged writing, defendant says, is unlike the possession of goods recently stolen, and does not give rise to a presumption of knowledge or a presumption that the possessor is the forger. Compare LRS 15:432. See also State v. Spears, 363 So.2d 479 (La.1978); State v. Bergeron, 371 So.2d 1309 (La.1979); State v. Fournier, 395 So.2d 749 (La.1981); State v. Kaufman, 278 So.2d 86 (La.1973); State v. Rock, 162 La. 299, 110 So. 482 (1926); State v. Goiner, 410 So.2d 1085 (La.1982).

While we do not agree with defendant’s premise or with his ultimate conclusion, we agree that the state bears the burden of proving every element of the crime charged beyond a reasonable doubt and that the mere possession of a forged writing does not prove beyond a reasonable doubt that the possessor knows that the writing is forged. LRS 15:271. State v. Goiner, supra.

In Goiner, Helen Goiner presented a prescription for a CDS to a pharmacist that was written by a doctor to Helen Johnson. Suspecting, and later confirming, that the doctor’s signature on the prescription was a forgery, the pharmacist alerted the police. After Ms. Goiner returned and picked up the prescribed CDS, she was arrested by the police and was charged with knowingly obtaining a CDS by fraud and deceit and with possession of CDS. The trial judge acquitted Ms. Goiner of the charge of obtaining by fraud and deceit and convicted her of possession of CDS. The supreme court reversed that conviction on appeal, saying that the acquittal of the charge of obtaining by fraud and deceit eliminated any evidence of the guilty knowledge element of the possession charge.

In the crime charged in Goiner, it was necessary that the state prove guilty knowledge in two respects, defendant’s knowledge that she possessed a CDS and defendant’s knowledge that the CDS had been obtained by a forged prescription. LRS 40:969 C, 410 So.2d at 1088. When Ms. Goiner was acquitted of the charge of obtaining by fraud and deceit (knowledge of the forged writing), there was, in fact, no evidence upon which to base proof of Ms. Goiner’s possession of CDS with knowledge that it had been obtained by an invalid or forged prescription.

Knowledge, like intent, must often be inferred from the totality of the circumstances of a transaction when it is an element of the crime charged. It need not be proven as a tangible fact. See LRS 15:445.

“Just as we have seen that the word ‘intent’ has not been limited to its dictionary definition, it is also true that the word ‘knowledge’ has likewise sometimes been given a broader definition. Cases have held that one has knowledge of a given fact when he has the means for obtaining such knowledge, when he has notice of facts which would put one on inquiry as to the existence of that fact, when he has information sufficient to generate a reasonable belief as to that fact, or when the circumstances are such that a reasonable man would believe that such a fact existed. Sometimes belief in the existence of an attendant circumstance is deemed sufficient, sometimes it is not. While these decisions, at least in some instances, may have resulted in the setting of desirable limits on the mental state required for various crimes, they have led to considerable confusion because the word ‘knowledge’ has been taken to mean many different things — all the way down to mere negligence in not knowing.” LaFave and Scott, Criminal Law, at p. 198. Footnotes omitted. See also State v. Bagneris, 237 La. 21, 110 So.2d 123, 126 (1959).

The test of knowledge, in the few places where it is explained in the Criminal Code, is not a subjective test (what the offender subjectively knew), but is a completely objective test (what the offender is taken to know that any reasonable person so situated would have known) ... because of the difficulty of proof by the prosecution. See Reporter’s Comment, LSA-R.S. 14:69. LRS 14:3.

While defendant did not testify, Donald Brown’s testimony established that defendant is engaged in business as an auto mechanic. Defendant’s possession of the Donald Brown check for $56.56 was proved by direct evidence. Defendant’s transfer to the bank of that check, along with the $164 check, the money, and the deposit slip, was proved by direct evidence. Unlike the prescription in Goiner that contained the forged signature of the doctor and nothing on its face to alert Ms. Goiner or a trier of fact that the signature was forged, the $164 check, involved here, bore an endorsement, later proved to be forged in fact, that was not the same name as the payee of the check. This discrepancy is notice to a possessor of the check which would put a reasonable mind, a businessman, or a trier of fact, on inquiry about the discrepancy. See LaFave, supra. Whether a reasonable mind would be put on inquiry is the objective standard which prevails in the Criminal Code.

“The term [knowledge] may include that which is imputed and may be used as synonymous with notice of such circumstances as ordinarily, upon investigation, would lead in the exercise of reasonable diligence to a knowledge of the fact. One who intentionally remains ignorant may be chargeable in law with knowledge. And while notice is not actual knowledge, it may be such information as men usually act upon in ordinary human affairs. In this sense, knowledge is such actual notice as would put one on inquiry.” State v. Bagneris, supra, at p. 126, quoting State v. Perkins, 181 La. 997, 160 So. 789, 791 (1935)

Contrary to what defendant argues, there is ample evidence from which it may be objectively determined that defendant Tomlinson knew that the endorsement on the $164 check was a forged writing when he transferred it to the bank employee with his deposit slip. The endorsed name on the reverse of the check is obviously not the name of the payee on the front of the check. The writing on Tomlinson’s deposit slip, which is reproduced above, and writing exemplars of Tomlinson have “some similarities.” Tomlinson was identified as the person who wrote the deposit slip or something similar in the presence of Ms. Banks and who gave her the deposit slips and the checks for deposit, one of which had been given to Tomlinson by Brown and which was endorsed by Tomlinson. Concluding from the totality of this evidence that Tomlinson knowingly transferred a forged writing with intent to defraud does not do violence to the right of Tomlinson to remain silent and to be presumed innocent because the element of knowledge is objectively determined and the inference is not made on the basis of mere possession of a forged writing and defendant’s failure to explain his possession.

The element of intent to defraud in LRS 14:72 is an element of general intent.

“A general intent to defraud should be an essential element of forgery. However, it is unnecessary that an injury result from the actual consummation of the fraud, since the intent to defraud is sufficient. State v. McCranie, 192 La. 163, 187 So. 278 (1939). It is also unnecessary to prove that the offender intended to defraud any particular one, for if he intended to defraud any person the crime is complete. Hence it suffices if the instrument does or may prejudice the rights of another. State v. LaBorde, 120 La. 136, 45 So. 38 (1907).
“The intent should be able to be inferred from the circumstances, as in the case of a forgery of a check the ‘jury ought to infer an intent to defraud the person who would have to pay the instrument if it were genuine * * * ’. State v. Dennett, 19 La.Ann. 395 (1867).” LSA-R.S. 14:72; Reporter’s Comment, in part.

Defendant’s conviction is based in part on direct evidence, the transfer, the forged writing, and on circumstantial evidence, the inference of the elements of knowledge and intent. LRS 15:438. State v. Chism, 436 So.2d 464 (La.1983); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also State v. Knox, 450 So.2d 376 (La.App.2d Cir.1984). From the totality of the evidence, we find that it is reasonable to conclude beyond a reasonable doubt, and to the exclusion of any reasonable hypothesis of innocence, that Tomlin-son knowingly transferred a forged writing with intent to defraud. The evidence is legally sufficient to support the conviction.

Defendant contends that the bill of information should have been quashed because the endorsement Gary Brooks Ellis does not, of itself, constitute a forged writing. Defendant says the endorsement is not a forgery either if the person who endorsed the check was in fact a person by the name of Gary Brooks Ellis, or if the endorsement is a fictitious name. While the cases cited by defendant, on their respective limited circumstances, lend support to defendant’s argument, the law is not as rigid in all respects or in the instant circumstances as defendant suggests.

“Thus, signing one’s own name and representing that one has authority to give the writing in question is not forgery, since the writing itself is just what it purports to be. See State v. Lebo, 166 La. 784, 117 So. 829 (1928). But signing another’s name and making the writing appear to be that of the other is clearly forgery. Signing a fictitious name should also produce a “false” writing and amount to forgery, where the fictitious name is represented as that of a person other than the offender. State v. Hahn, 38 La.Ann. 169 (1886). The writing would not be false if a fictitious name is used by the offender as an alias, however. State v. Melson, 161 La. 423, 108 So. 794 (1926). The latter might amount to ‘false pretenses’ (theft), but not forgery. See State v. Wilson, 168 La. 932, 123 So. 624 (1929). Signing the offender’s own name, with the intent of having the writing appear to be that of another with an identical name, should also be forgery. Clark and Marshall, Law of Crimes (4th ed. 1940) 515, § 395. Any falsification of a writing, besides false signatures, done with intent to defraud (such as misdating a document) would satisfy this section. Any fraudulent alteration would clearly be included.” LSA-R.S. 14:72, Reporter’s Comment, in part.

The bill of information charges the crime defined in the second paragraph of LRS 14:72:

“Issuing or transferring, with intent to defraud, a forged writing, known by the offender to be a forged writing, shall also constitute forgery.”

The overruling of the motion to quash was not error. CCrP Art. 532.

We also do not find the five year sentence excessive. Defendant was exposed to a 10-year sentence and a $5,000 fine. Defendant had a prior criminal history of manipulating checks and bank accounts. He was on five years probation for middle grade theft when this crime occurred. We adopt the articulated reasons given by the trial judge for the sentence which we find is not grossly out of proportion to the severity of the offense.

Defendant’s conviction and sentence are AFFIRMED.


author: COVINGTON, Judge. SAVOIE, Judge,

text:
    Leon JOHNSON, Sr., et al. v. STATE of Louisiana, et al. Linda Fay JOHNSON v. STATE of Louisiana, et al.
    Nos. 83 CA 0551, 83 CA 0591.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Writ Denied May 25, 1984.

      Fernand L. Laudumiey, III, New Orleans, for plaintiff Linda Fay Johnson.
    Kenneth E. Barnette, Baton Rouge, for defendant-appellee Prudential Property & Cas. Ins. Co.
    Carl J. Barbier, New Orleans, for plaintiff-appellant Leon Johnson, Sr. individually & in his representative capacities as administrator of the Estate of his deceased wife, Doretha Johnson and as natural tutor of his minor children Bernard Johnson, Cynthia Johnson, Michael Johnson, Robert Johnson, and Wanda Johnson, Doris Marie Johnson, Betty Raye Johnson, Leon Johnson, Jr.
    Alexis A. St. Amant, Baton Rouge, for plaintiff James Monahan.
    William J. Doran, Baton Rouge, for defendant-appellee State of La., through the Dept, of Transp. and Development.
    Donald R. Smith, Baton Rouge, for defendant-appellee James Monahan.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

These are tort actions. In number 83 CA 0591, the plaintiff-appellant, Linda Fay Johnson, was the driver of one of the two vehicles. She allegedly suffered personal injuries. Also, she sued for damages for the loss of her mother, Doretha Johnson, who was a passenger in the car and died in the wreck. There were multiple defendants. All were dismissed, at plaintiff’s cost. She appealed devolutively, only insofar as the court dismissed her suit against the State of Louisiana, Department of Transportation and Development.

In Number 83 CA 0551, Linda’s father, individually and on behalf of five minor children, together with three major children, sued for damages arising out of Doretha Johnson’s death. Additionally, one of the minors, Cynthia, and a major, Doris, sought damages they sustained as passengers in the car driven by their sister, Linda. Of the multiple defendants, all were dismissed except Prudential Property and Casualty Insurance Company, Linda’s liability insurer. The plaintiffs appealed, devolutively, only as to the dismissal of the State of Louisiana, Department of Transportation and Development and as to quantum.

We have read the record carefully and find that the written reasons of the trial judge, as amended, correctly dispose of the factual and legal issues. They are attached as Exhibit A.

For the reasons assigned by the trier, which we adopt as our own, the judgments appealed are affirmed, at appellants’ cost.

AFFIRMED.

SAVOIE J., concurs in part and dissents in part.

EXHIBIT A

LEON JOHNSON, SR., ET AL SUIT NO. 221,671, DIVISION "I” 19TH JUDICIAL DISTRICT COURT VS. PARISH OF EAST BATON ROUGE STATE OF LOUISIANA, ET AL STATE OF LOUISIANA

* * * ⅜ * CONSOLIDATED WITH t ⅜ *

LINDA FAY JOHNSON SUIT NO. 221,672, DIVISION “l” 19TH JUDICIAL DISTRICT COURT VS. PARISH OF EAST BATON ROUGE STATE OF LOUISIANA, ET AL STATE OF LOUISIANA

* ⅜ ⅜ * * CONSOLIDATED WITH *■ * * * *

JAMES P. MONAHAN SUIT NO. 226,820, DIVISION “I” vg 19TH JUDICIAL DISTRICT COURT PARISH OF EAST BATON ROUGE STATE OF LOUISIANA, ET AL STATE OF LOUISIANA

***** CONSOLIDATED WITH * * * * <

PRUDENTIAL PROPERTY AND SUIT NO. 256,934, DIVISION “l” CASUALTY INSURANCE COMPANY 19TH JUDICIAL DISTRICT COURT VS. PARISH OF EAST BATON ROUGE STATE OF LOUISIANA, ET AL STATE OF LOUISIANA

WRITTEN REASONS FOR JUDGMENT

The above consolidated cases represent claims for damages arising from an inter-sectional collision at Blount Road and Scenic Highway on January 21, 1979, between a vehicle driven by Linda Fay Johnson and a vehicle driven by James P. Monahan.

At approximately 12:45 p.m. Linda Fay Johnson was operating her 1978 Oldsmobile in a westerly direction on Blount Road. Blount Road is a two-lane hardtop road running in an east-west direction. At the same time, James P. Monahan was operating his 1973 Chevrolet pickup in a southerly direction on Scenic Highway. Scenic Highway is a two-lane hardtop road running in a north-south, direction. The intersection of Blount Road and Scenic Highway is controlled by three sets of semaphore lights. The location and operation of the lights are:

Set Number-1

This set is suspended over the intersection near the east side of Scenic Highway and Blount Road. This set has three lights (green, yellow, red) facing motorists traveling north on Scenic Highway and three lights (green, yellow, red) facing motorists traveling west on Blount Road.

Set Number-2

This set is suspended over the middle of the intersection of Scenic Highway and Blount Road. It has three lights (green, yellow, red) facing motorists traveling south on Scenic Highway and three lights (green, yellow, red) facing motorists traveling west on Blount Road.

Set Number-3

This set is suspended over the intersection near the west side of Scenic Highway and Blount Road. This set has three lights (green, yellow, red) facing motorists traveling east on Blount Road and three lights (green, yellow, red) facing motorists traveling south on Scenic Highway.

OPERATION OF LIGHTS

When set number-1 shows a green light for motorists traveling west on Blount Road, it also shows a red light for motorists traveling north on Scenic Highway. Simultaneously set number-2 will show green for motorists traveling west on Blount Road and red for motorists traveling south on Scenic Highway. Simultaneously set number-3 will show green for motorists traveling east on Blount Road and red for motorists traveling south on Scenic Highway.

When set number-2 shows a green light for motorists traveling south on Scenic Highway, it also shows a red light for motorists traveling west on Blount Road. Simultaneously set number-1 will show green for motorists traveling north on Scenic Highway and red for motorists traveling west on Blount Road. Simultaneously set number-3 will show green for motorists traveling south on Scenic Highway and red for motorists traveling east on Blount Road.

When set number-3 shows a green light for motorists traveling east on Blount Road, it also shows a red light for motorists traveling south on Scenic Highway. Simultaneously set number-1 will show green for motorists traveling west on Blount Road and red for motorists traveling north on Scenic Highway. Simultaneously set number-2 will show green for motorists traveling west on Blount Road and red for motorists traveling south on Scenic Highway. (See Exhibit State-1.)

James P. Monahan testified he was traveling south on Scenic Highway at about 40-50 m.p.h. and as he neared the intersection of Scenic Highway and Blount Road he observed two green lights for his lane of traffic. As he got within 50-100 feet of the intersection, he saw Linda Fay Johnson enter the intersection westbound. He braked his vehicle but was unable to avoid the accident.

Linda Fay Johnson testified that she was traveling west on Blount Road at approximately 20 m.p.h. She stated that as she neared the intersection of Blount Road and Scenic Highway she saw a green light and continued across the intersection. She further stated she saw the Monahan vehicle out of the corner of her eye, but it was too late.

Cynthia Johnson, a passenger in Linda Fay Johnson’s vehicle, testified she saw a green light before entering the intersection. Doris Johnson Barrow, a passenger in the Johnson vehicle, testified she was talking to her mother, Doretha Johnson, at the time of the accident and did not notice the semaphore signals. Doretha Johnson, another passenger in the Johnson vehicle was killed in the accident.

State Trooper John Futral testified he arrived at the scene of the accident at 12:51 p.m. After caring for the injured parties, he spoke to Ernest R. Grimes who told him that he was eastbound on Blount Road and had stopped for a red light at Blount Road and Scenic Highway. While stopped, he observed the accident. Mr. Grimes testified at the trial that the semaphore signals (set number-3) for eastbound traffic was red at the time of the accident. Trooper Futral stated he then observed the semaphore signals and found one set had been turned, apparently due to the wind, inasmuch as it had been gusty that morning. Trooper Futral’s recollections and diagram reflected that set number-1 had been turned so that at the time of the accident the light normally facing motorists traveling north on Scenic Highway was now facing motorists traveling west on Blount Road. That the light normally facing motorists traveling west on Blount Road was now facing north over the north lane of Scenic Highway. With this arrangement, the nearest light to Linda Fay Johnson would be green and the next two would be red.

State Exhibit-1, a photograph of the scene of the accident, shows that Trooper Futral’s recollections and diagram were erroneous. This photograph shows that portion of set number-3 normally facing motorists traveling south on Scenic Highway was at the time of the accident facing motorists traveling west on Blount Road.

Considering the photograph and testimony of Mr. Grimes, at the time of the accident the two lights nearest Linda Fay Johnson were red (set numbers 1 and 2) and the farthest light was green (set number-3). Further, the only light governing Mr. Mon-ahan was a green light (set number-2). Mr. Monahan testified he thought he saw two green lights. These would be set number-2 and the reflection of set number-3. The green light on set number-3 did not have a shade over it, thus allowing Mr. Monahan to see a portion of it.

NEGLIGENCE

1. James P. Monahan

Our jurisprudence provides that a motorist approaching an intersection controlled by semaphore signals, who is favored by a green light, is entitled to assume that traffic approaching the intersection from either side on a red light will comply with the red light and respect his right-of-way. The favored motorist is not obligated to look to his left or right before entering the intersection and will be held accountable only if he could have avoided the accident with the exercise of the slightest degree of care and fails to do so. All that is required is that the favored motorist maintain a general observation of the controlled intersection. Gaspard v. Stutes, 380 So.2d 201 (La.App. 3rd 1980).

As Mr. Monahan approached the intersection of Blount Road and Scenic Highway, he was favored by a green semaphore light. He stated he was between 50-100 feet from the intersection when he saw the Johnson vehicle coming across the intersection in front of him. He braked but was unable to avoid the accident.

This Court finds Mr. Monahan free of fault.

2. Linda Fay Johnson

Ms. Johnson testified she was traveling west on Blount Road at about 20 m.p.h. and after observing a green light facing her, she started across the intersection. Exhibits and testimony are conclusive that Ms. Johnson had two red lights and one green light facing her when she started across the intersection. %

Gaspard v. Stutes, supra, involves an intersectional collision attributed to a malfunction of a semaphore light. In that case defendant, Mr. Stutes, was proceeding east in the right lane of St. Victor Street, a two-way street, and upon approaching the intersection of St. Victor Street and St. Charles Street, he noticed a two-way light straight ahead of him reflecting a red signal. He stopped his vehicle very close to the intersection. In order for him to see to his right along St. Charles, a one-way street for northbound motorists, it was necessary to stop close to the intersection to be able to see around an obstruction located on that corner. The two-way signal, straight ahead of him, turned green and he started into the intersection where a collision occurred. Mr. Stutes stated that he had not observed a four-way light above and to his left as he stopped at the intersection. The first he knew of a conflict between the four-way and the two-way signals was after the accident when the police found the misalignment of the two-way signal. The Court stated:

“Under the particular and unusual circumstances presented herein, where both drivers were proceeding into the intersection on a green light, with neither driver having any reason to know that a misalignment of signal lights existed, and with both drivers believing that the other driver had a red light and would stop, we conclude that the trial judge correctly determined that both drivers were free of negligence upon entering the intersection.” (p. 205)

In Hardy v. State, Through Dept. of Highways, 404 So.2d 981 (La.App. 3rd Cir.1981), writs denied December 14, 1981, two motorists entered an intersection with green lights facing them. The Court found that one set of lights was so turned as to give both drivers a green light. The defense suggested that Mr. Campbell should have been faced with one red and one green light. The Court stated:

“We do not believe this was the case. However, in Gaspard v. Stutes, supra, one of the drivers, Stutes, was faced with a red light and a green light because one particular light was misaligned. This Court affirmed the trial court’s finding that both drivers were free of negligence in entering the intersection. Assuming that the contentions of the defense that there was at least one red light facing Campbell are correct, we nevertheless find under such circumstances that Campbell was not negligent.” (p. 987)

The Court in Hardy has suggested that Gaspard v. Stutes, supra, stands for the proposition that a motorist entering an intersection with a red and green light is not negligent. This is erroneous. The Court in Gaspard specifically mentioned that Stutes was only aware of the green light and did not know of a red light until after the accident. The stopping position of Mr. Stutes at the intersection only allowed visibility of the two-way light.

This Court finds that an ordinary, reasonable person would stop at an intersection when facing two red and one green light. The fact that Ms. Johnson only saw the green light is further proof of her inattention in operating her automobile. She is held to observe what she should have seen.

This Court finds Linda Fay Johnson guilty of negligent conduct in operating her vehicle.

3. State of Louisiana, Department of Transportation and Development

The various plaintiffs allege that the State of Louisiana was negligent and that this negligence was a cause in fact of the injuries.

Mr. Kenneth Macaluso testified that on January 21, 1979, he was employed by the State of Louisiana with the responsibility of fixing traffic lights under control of the State of Louisiana. He stated that at 10:30 a.m. on January 21, 1979, he received three notices of lights malfunctioning. One was at Louisiana Highway 1 and Dow Chemical in Iberville Parish, one at the bridge at Grosse Tete, Louisiana, and another at Scenic Highway and Blount Road. He stated he arrived at the La. 1 and Dow Chemical light at 11:15 a.m. and departed at 12:30 p.m., arrived at Grosse Tete bridge at 2:30 p.m. and departed at 3:30 p.m., and arrived at Scenic Highway and Blount Road at 3:30 p.m. and departed at 4:30 p.m. He stated he did not know the accident had happened several hours before his arrival. He testified that help was available if he needed it. Also, he stated he was not aware of any policy of the State of Louisiana in notifying police authorities to render assistance until a light can be remedied.

The Court in Gaspard said:

“It is well settled that a governmental authority that undertakes to control traffic at an intersection must exercise a high degree of care for the safety of the motoring public.
In the case of Lochbaum v. Bowman [353 So.2d 379 (La.App. 4th Cir.1978)], supra, an accident occurred at an intersection controlled by a malfunctioning traffic signal. The court concluded that the Department of Highways, which was responsible for the maintenance of the traffic signal, was negligent in failing to alert the local police authorities so that
traffic could be directed manually until repairs could be made.
We agree with the position taken in Lochbaum that it is the duty of the Department to notify local police authorities of a malfunctioning traffic signal at an intersection in order that traffic at the intersection can be manually directed until the repairs can be made. This is consistent with the legal duty to exercise a high degree of care in maintaining traffic signal devices under its control.” p. 204

The State of Louisiana had a duty to notify local police authorities of the malfunction of the traffic signal at Scenic Highway and Blount Road in order that traffic at the intersection could be manually directed until repairs could be made. Was the risk created, under the circumstances presented, within the scope of the duty owed by the State of Louisiana? I think not. I do not believe the duty of the State of Louisiana to the plaintiffs extended to guarding them against the consequences of a motorist proceeding through an intersection when faced with two red and one green light, especially when the two nearest lights are red.

Gaspard and Hardy, supra, are cases where motorists were only aware of green lights for all parties. I do not find the State of Louisiana, through the Department of Transportation and Development, created a liability to plaintiffs for the breach of its duty.

Inasmuch as this Court finds Linda Fay Johnson negligent, her claim against the State of Louisiana, through the Department of Transportation and Development, and James P. Monahan, suit no. 221,672, is dismissed at her cost. Further, Prudential Property and Casualty Insurance Company’s claim as subrogee of the property claim of Linda Fay Johnson against the State of Louisiana, through the Department of Transportation and Development, and James P. Monahan, suit no. 256,934, is dismissed at its cost.

DAMAGES

1. James P. Monahan

Mr. Monahan testified that after the accident he was taken to the Baton Rouge General Hospital by ambulance and treated in the emergency room. X-rays were negative. He was advised that he had no serious injury and told to return if any problems developed. Eight days later Mr. Mon-ahan was treated by Dr. E.E. Jeffries, general practitioner. Dr. Jeffries found some limitation of motion in the neck and was of the impression that Mr. Monahan suffered a cervical strain, lumbar strain and multiple contusions. Mr. Monahan never returned for any medical treatment.

Mr. Monahan stated his injuries cleared within three to four weeks except for a sore shoulder which still plagues him. Also he expressed that he was suffering from a guilt syndrome since an occupant in the Johnson vehicle was killed.

This Court finds that $3,500.00 will adequately compensate Mr. Monahan’s physical and mental injuries. Further, the Court will allow the following specials:

1. Scott’s Bluff Ambulance Service $90.00
2. Baton Rouge General Hospital 160.00
3. Dr. Jeffries 30.00
4. Property damage to truck 2,075,00
TOTAL $2,355.00.

2. Leon Johnson, Sr.

Leon Johnson, Sr., and Doretha Johnson were married on September 9, 1954. Of this marriage nine children were born, four of whom were over 18 years of age and five under 18 years of age at the time of the accident and death of Doretha Johnson on January 21, 1979. Mr. Johnson described the family as a close-knit family, one that enjoyed doing activities together. He stated that even though there were nine children, the family would find time for picnics. According to Mr. Johnson his wife had occasional jobs to help support the family. Doretha Johnson was 41 years old at the time of her death.

The Court will award Leon Johnson, Sr., the sum of $35,000.00 for the loss of his wife. Further, the Court awards Leon Johnson, Sr., the sum of $2,356.35, representing funeral charges incurred as a result of the death of Doretha Johnson.

3. Leon Johnson, Jr., Betty Faye Johnson and Bernard Johnson are awarded $25,-000.00 each for the loss of their mother, Doretha Johnson.

4. Leon Johnson, Sr., as Administrator of the Estate of Michael Johnson, Robert Johnson and Wanda Johnson, is entitled to $25,000.00 for each of the three minor children.

5. Cynthia Johnson

At the time of the accident, Cynthia Johnson was a passenger in the automobile driven by Linda Fay Johnson. After the accident Cynthia was taken to the Baton Rouge General Hospital where x-rays were taken of her face and hand. The x-rays were negative. Cynthia suffered some minor cuts on her wrist which were treated without sutures. On February 6, 1979, Cynthia visited Dr. Perez, general practitioner, complaining of headaches. Dr. Perez’s diagnosis was that Cynthia was suffering from post-traumatic headaches. According to Cynthia, the headaches subsided approximately one month after her visit with Dr. Perez.

Inasmuch as Cynthia Johnson is now over 18 years old, judgment is rendered in her favor for the sum of $850.00 for injuries sustained in the accident. Further, Cynthia Johnson is awarded the sum of $25,000.00 for the loss of her mother.

As a result of Cynthia’s injuries, the following special damages were incurred by her father, Leon Johnson, Sr., namely:

1. Baton Rouge General Hospital $84.95
2. Ambulance Service 50.00
3. Dr. Perez 20.00.

Leon Johnson, Sr., is entitled to recover $154.95.

6. Doris Marie Johnson Barrow

Doris was a passenger in Linda Fay Johnson’s automobile at the time of the accident. She suffered severe injuries and was initially treated at the Baton Rouge General Hospital by Dr. L.J. Messina, orthopedic surgeon. Dr. Messina’s medical report was submitted in lieu of his testimony. This report provided:

“We saw Doris J. Barrow initially in the Emergency Room of the Baton Rouge General Hospital on January 21, 1979. She had been involved in an automobile accident and sustained a Monteg-gia fracture-dislocation of her right forearm and a fracture of her right pubic ramus. She was hospitalized at that time where she underwent an open reduction and internal fixation for her forearm fracture and had conservative treatment for her pelvic fracture. She was discharged from the hospital about one week following her surgery in a long arm cast to help stabilize the reduction. Subsequently, she was readmitted to the Lady of the Lake Hospital where she had the internal fixation device removed from her forearm. Post-operatively we kept her in a short arm cast that was in place for one month.
We saw her last on the twenty-third of August and, at that time, she had no problems with her arm, full range of motion in her elbow joint and was having no complaints related to her pelvis, and we told her to return on a prn basis.” (Exhibit Doretha Johnson-1)

As a result of the accident, Doris missed approximately seven months of employment with the Terrebonne Parish Police Jury where she was employed at a rate of $150.00 per week. Medical expenses incurred were:

1. Jefferson Orthopedic Appliances, Inc. $48.36
2. Ambulance Service 70.00
3. Baton Rouge General Hospital 1,718.21
4. Bone and Joint Clinic 1,325.00
5. Doctors Memorial Hospital 763.44
TOTAL $3,925.01.

Doris Marie Johnson Barrow is entitled to recover $9,500.00 for injuries sustained; $4,200.00 for lost wages and $3,925.00 for medical expenses. Further, she is entitled to recover $25,000.00 for the loss of her mother.

JUDGMENT

In suit no. 221,671 judgment is rendered:

in favor of Leon Johnson, Sr., for $37,-511.30;
in favor of Leon Johnson, Sr., as Administrator of the Estate of Michael Johnson, Robert Johnson and Wanda Johnson, for $75,000.00, representing $25,000.00 for each child;
in favor of Leon Johnson, Jr., Betty Faye Johnson and Bernard Johnson for $25,000.00 each;
in favor of Cynthia Johnson for $25,-850.00; and in favor of Doris Marie Johnson Barrow for $42,625.00.

In suit no. 221,672 judgment is rendered denying Linda Fay Johnson’s claim against the State of Louisiana, through the Department of Transportation and Development, and James P. Monahan at her cost.

In suit no. 226,820 judgment is rendered in favor of James P. Monahan for $5,855.00.

In suit no. 256,934, judgment is rendered denying Prudential Property and Casualty Insurance Company’s claim against State of Louisiana, through Department of Transportation and Development, and James P. Monahan. Also James P. Mona-han’s reconventional demand is dismissed. All costs assessed to Prudential Property and Casualty Insurance Company.

Judgments in suit nos. 221,671 and 226,-820 are against Linda Fay Johnson and Prudential Property and Casualty Insurance Company, the judgment against Prudential Property and Casualty Insurance Company being limited to its policy limits of $10,000.00/$20,000.00. James P. Mona-han and the State of Louisiana, through the Department of Transportation and Development, are dismissed as defendants. All costs are assessed against the defendants, Linda Fay Johnson and Prudential Property and Casualty Insurance Company.

All judgments shall bear legal interest from judicial demand.

Judgments will be signed accordingly.

Baton Rouge, Louisiana, this 12th day of November, 1982.

/s/ William Brown JUDGE

AMENDED WRITTEN REASONS FOR JUDGMENT

In written reasons of November 12,1982, this Court found: “Judgments in suit nos. 221,671 and 226,820 are against Linda Fay Johnson and Prudential Property and Casualty Insurance Company .... ”

A review of the pleadings reflects that Linda Fay Johnson was not named as a defendant in suit 221,671; therefore, the written reasons are amended to provide that judgment in suit 221,671, is only against Prudential Property and Casualty Insurance Company.

Since the damages under suit no. 221,671 exceed the coverage afforded by Prudential Property and Casualty Insurance Company, this Court believes the proper disbursement of Prudential’s $20,-000.00 liability should be done on a pro rata basis for the claimants in suit nos. 221,671 and 226,820.

Judgment will be signed accordingly.

Baton Rouge, Louisiana, this 25th day of January, 1983.

/s/ William Brown JUDGE

SAVOIE, Judge,

concurring in part and dissenting in part.

The trial court specifically found that the State breached its duty either to make prompt repairs following actual notice of the malfunction or to notify local police authorities of the malfunction. The trial court absolved the State from liability on the basis that the risk created was not within the scope of the duty owed by the State. I cannot agree with the trial court’s holding.

Application of the duty-risk analysis set out in Everett v. State of Louisiana, Department of Transportation and Development, 424 So.2d 336 (1982) would show that the State is liable in this matter.

Four questions must be answered affirmatively under the duty-risk analysis for plaintiffs to recover:

1. That the act complained of was a cause-in-faet of the accident.

This must be answered affirmatively since the record is clear that without the mixed signals, Linda Fay Johnson would not have entered the intersection.

2. That the defendant, State of Louisiana, had a duty to protect these plaintiffs.

Again, the answer is affirmative. See Gaspard v. Stutes, 380 So.2d 201 (La.App.3rd Cir.1980); Hardy v. State, Department of Highways, 404 So.2d 981 (La.App.3rd Cir.1981).

3. That the defendant breached this duty to protect these plaintiffs.

The trial court found that the scope of the duty did not encompass the risk created. I emphatically disagree. Those who undertake to control traffic at an intersection must exercise a high degree of care. The breach of duty to warn the local authorities so that traffic at the intersection could be manually directed was a breach without which this accident would not have occurred. See Gaspard, supra.

4. Plaintiffs were harmed by the breach of duty owed.

The trial court found death and/or injury to all plaintiffs but allowed recovery only against Linda Fay Johnson, absolving the State from liability for the above-noted reason. However, since I find, contrary to the trial court, that the State’s duty was within the scope of this accident, I also find its breach thereof was a cause of plaintiffs’ harm.

Linda Fay Johnson, plaintiff-driver, however, is barred from recovery by her own acts. Her failure to observe the mixed signals and react reasonably thereto constituted substantial concurrent fault such as would bar recovery either under negligence or strict liability.

It was, in fact, the concurrent fault of the State and Linda Fay Johnson which constituted the cause-in-fact of the accident. Therefore, I concur in the affirmation of the trial court’s denial of Linda Fay Johnson’s claim.

There was, however, no fault on the part of the guest passengers. Thus, they should be entitled to recovery against the joint tortfeasors, Linda Fay Johnson and the State of Louisiana, Department of Transportation and Development.

Insofar as the majority opinion affirms the decision of the trial court in favor of the State of Louisiana, Department of Transportation and Development and against plaintiffs-appellants, Leon Johnson, Sr., individually and as natural tutor of the minors, Michael Johnson, Robert Johnson, and Wanda Johnson, and Doris Mae Johnson, Betty • Raye Johnson, Leon Johnson, Jr., Bernard Johnson, and Cynthia Johnson, I respectfully dissent.