text:
    Pamela Holt, wife of/and Steven D. HOLT v. Marilyn D. SINGLETARY, Woodson Singletary, and State Farm Mutual Auto Insurance Company.
    No. 83 CA 410.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.

      Robert A. Caplan, Lewis & Caplan, P.C., New Orleans, for plaintiff-appellee.
    Robert L. Oliver, Senior Asst. Gen. Counsel, Dept, of Transp. and Development, Baton Rouge, for defendant-appellant.
    Before KLIEBERT, BOWES and DU-FRESNE, JJ.
   KLIEBERT, Judge.

The State of Louisiana, through the Department of Transportation and Development (hereinafter the Department) brings this suspensive appeal from a judgment for $55,000.00 in favor of Pamela Holt, plaintiff, for damages received in a two-car, right-angle collision at the intersection of Louisiana Highways 1090, 41 and 3081 in Pearl River, Louisiana. Two questions are presented on- appeal: (1) whether the failure of the Department to have the intersection controlled by a traffic light was the substantial cause in fact of the accident, and (2) whether the Department is entitled to a reduction in judgment of the amount received in settlement by the plaintiff from co-defendants (the operator and insurer of the other vehicle involved in the accident) and her insurer. The trial judge found the Department was negligent because it did not properly perform the engineering study to determine the need for a traffic control signal at the intersection and its failure to have the intersection controlled by a traffic light was the substantial cause in fact of the accident. He refused, however, to give the Department credit for the amount received in settlement from the insurer and operator of the other vehicle involved in the accident. We affirm.

Originally, the suit was filed against Marilyn and Woodson Singletary and their insurer, State Farm Insurance Company (the operator, owner and insurer of the other vehicle involved in the collision), as well as the Department. Subsequently, the plaintiff amended her petition to include the Department as a co-defendant. In turn, the Department filed a third-party claim against the Singletarys and their insurer. Prior to trial, plaintiff effected a settlement with the Singletarys and their insurer for $10,000.00. Then, on a motion for summary judgment, the trial court dismissed the Department’s third party claim against the Singletarys and their insurer. The judgment granting the motion shows the Department filed no pleadings in opposition to the motion nor did it appear at the hearing on the motion for a summary judgment. The case then proceeded to trial with the Department as the sole defendant under the plaintiffs petition as amended.

The accident occurred on December 22, 1979 at the intersection of Louisiana State Highway Nos. 1090, 41 and 3081 (formerly U.S. Highway 11), all under the exclusive jurisdiction, regulation and control of the Department. Plaintiff was driving her 1973 Toyota station wagon in a southerly direction on Highway 3081 towards its intersection with Highways 1090 and 41. After entering the intersection, her vehicle collided with a 1969 Chevrolet being driven in a westerly direction on Highway 1090. At the time the accident occurred, the intersection was controlled by a flashing beacon light.

The plaintiff contends the traffic control signalization at the intersection was inadequate and defective in that (1) it confused motorists approaching the intersection, as evidenced by the excessive accident rate at the intersection, and (2) under the Department of Highway’s manual, the intersection should have been controlled by a traffic control signal light (red light), as had been often requested by the officials of the Town of Pearl River. The Department contended the intersection was sufficiently and properly controlled by the flashing beacon light and stop signs and, in support thereof, pointed to a study of the intersection made by the State which showed a traffic control sign light was not warranted at this intersection.

In support of her contentions, the plaintiff produced Mr. Dwaine T. Evans, a consulting traffic engineer (formerly employed by the Department as a traffic engineer) as an expert witness. He testified (his testimony was supported by documentary evidence) that during 1979 nineteen accidents had occurred at the intersection (excluding the accident here sued on), of which twelve were right-angle collisions. Additionally, he found seven right-angle collisions had occurred during 1978. Also, his investigation showed the records of the Department reflected six of the 1978 right-angle collisions and seven of the 1979 right-angle collisions. In his expert opinion, a higher level of control at the intersection, such as a traffic control signal light, was warranted and would have served to reduce the number of accidents.

Evidence was introduced, in part through plaintiff’s witnesses, and in part through defendants’ witnesses, showing the Town of Pearl River had, verbally and by letter, requested the Department to provide better signalization at the intersection on several occasions, without much success. Finally, in July of 1979, the Department did make a study of the intersection and concluded a traffic control signal light was not warranted.

According to the Department’s witness, Mr. Adam, the conclusion that a traffic signal light was not warranted was predicated on his findings that only one right-angle collision had occurred at the intersection in each of the years 1975, 1976 and 1977, and two in the first six months of 1978, and that the intersection was used by an average of 265 vehicles per hour. The traffic density study was made on one day between the hours of 8:00 o’clock A.M. and 12:00 o’clock A.M., and from 1:00 o’clock. P.M. to 5:00 o’clock P.M.

The Uniform Traffic Control Device Manual, adopted by the Department, warrants the installation of a traffic control signal light when:

“4C-8 Warrant 6, Accident Experience The Accident Experience Warrant is satisfied when:
1. The Adequate trial of less restricted remedies with satisfactory observance and enforcement has failed to reduce the accident frequency and
2. Five or more reported accidents, of types susceptible to correction by traffic signal control, have occurred within a 12-month period, each accident involving personal injury or property damage to an apparent extent of $100 or more; and
3. There exists a volume of vehicular and pedestrian traffic not less than 80 percent of the requirements specified either in Minimum Vehicular Volume Warrant, the Interruption of Continuous Traffic Warrant, or the Minimum Pedestrian Volume Warrant; and
4. The signal installation will not seriously disrupt progressive traffic flow.”

Other sections of the manual recommend that the traffic density determination be made over a sixteen hour period in order to reach the peak morning traffic, the peak noon traffic, and the peak evening traffic. Although the manual provides standards for design and application of traffic control devices, it is not a substitute for engineering judgment. In and of itself, therefore, although a control device may be warranted under the guidelines prescribed by the manual, there is no legal requirement that one be installed.

The plaintiff’s expert considered the Department’s study totally insignificant because it failed to include the accident experience for the year immediately preceding the study and the traffic density study which was made, was made at a time which excluded the peak hours of vehicular use of the intersection. In his opinion, a study properly done would have easily led to the conclusion he made, i.e., a traffic control signal was warranted and necessary to reduce the accident density at the intersection.

Under a theory of negligence or of duty risk, the law regarding the Department of Transportation’s duty to travelers on this State’s highways is well settled. The Department has a duty to construct and maintain the highways in a condition reasonably safe for persons using ordinary care and prudence. The Department will be held liable when the evidence shows the condition complained of was patent or obviously presented an unreasonable risk to prudent drivers and the Department had actual or constructive notice of the defect and failed to correct it within a reasonable time. Chiasson v. Whitney, 427 So.2d 470 (La.App. 5th Cir.1983); Usry v. Louisiana Department of Highways, 402 So.2d 240 (La.App. 4th Cir.1981); U.S.F. & G. Co. v. State Department of Highways, 339 So.2d 780 (La.1976).

Under a theory of strict liability prescribed by La.C.C. Article 2317, for the plaintiff to recover from the Department, he must show that the thing which caused the damage was (1) in the care or custody of the defendant, (2) it had a vice or defect which caused an unreasonable risk or injury to another, and (3) the injury complained of was caused by the vice or defect. Chiasson v. Whitney, supra; Shipp v. City of Alexandria, 395 So.2d 727 (La.1981).

Here the trial judge found the Department was negligent in the performance of its engineering study and in its failure to have the intersection controlled by a traffic control signal light and that negligence was the proximate cause of the collision. From our review of the record we cannot say the trial judge committed manifest error. The evidence shows the Department breached its duty to properly control the intersection and in so doing created an unreasonable risk to prudent drivers using the intersection. Further, the Department was informed of the risk by the Town officials and compounded its negligence by making an inadequate study; therefore, it failed to correct the risk within a reasonable time of being informed of its existence.

On the next issue, the Department contended it is entitled to a reduction in the judgment because of the settlement the plaintiff made with the operator, owner and insurer of the other vehicle involved in the accident. It is well settled that when a plaintiff settles with a co-defendant before trial, the defendant is not entitled to a reduction in judgment unless he has proven, at trial, negligence on the part of the released co-defendant. Raley v. Carter, 412 So.2d 1045 (La.1982); Harvey v. Travelers Insurance Co., 163 So.2d 915 (La.App. 3rd Cir.1964).

Therefore, in support of its contention, the Department argues the operator of the other vehicle involved in the accident was negligent and points to an answer to interrogatories filed by State Farm Mutual Automobile Insurance Company, the insurer of the Singletary vehicle, in answer to the plaintiffs interrogatories, as proof of the negligence. The interrogatory referred to is not in evidence in this case, nor is there anyone else’s version of the accident contained in the record, except that of the plaintiff, which is quoted from her testimony as follows:

“Q. And what happened in that accident?
A. I was going through, well getting ready to go through the caution light. And I guess when I got about midway I noticed this car dart in front of me and I hit it.”

Thus, there is nothing in the record from which we can conclude the operator of the Singletary vehicle was negligent; nor is there anything in the record or in brief to support counsel for the Department’s argument that there was an agreement or that the parties intended to enter into an agreement under which plaintiffs recovery from the Department would be limited to one-half of any judgment obtained against them.

For the foregoing reasons, therefore, we affirm the trial court’s judgment. Each party to bear his own cost of the appeal.

AFFIRMED.

      . A right-angle collision is one in which the vehicles involved in the collision enter the intersection at an approximate 90° angle from one another.

      . This is a manual published by the U.S. Department of Transportation which has been adopted by all fifty states.


source: Caselaw Access Project

author: KLIEBERT, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Steven BANNISTER.
    No. 83 KA 432.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.

      John M. Mamoulides, Dist. Atty., Jo Ellen McMillen, George Mustakas, Paul Connick, William C. Credo, III, Andrea M. Price, Asst. Dist. Attys., Gretna, for plaintiff-ap-pellee.
    Martha E. Sassone, Staff Appeals Counsel, 24th Judicial Dist. Indigent Defender Bd., Gretna, for defendant-appellant.
    Before KLIEBERT, CURRAULT and DUFRESNE, JJ.
   KLIEBERT, Judge.

The defendant, Steven Bannister, appeals his conviction for a violation of LSA-R.S. 14:64, armed robbery, and the resulting sentence .of sixty years at hard labor, without benefit of parole, probation, or suspension of sentence. He assigns as error the trial judge’s allowances of certain photographs in evidence and the excessiveness of the sentence. No argument is presented on the first assignment of error; hence, we consider it abandoned. For the reasons hereinafter stated, we affirm the sentence.

On the morning of June 16,1982, defendant, Steven Bannister, and Gregory Hall entered a residence which was occupied at the time by Elizabeth Braud and her uncle, Jack Carey. The defendant and his accomplice then armed themselves with knives taken from the residence and proceeded to rob the victims at knife point of approximately $700.00 in cash, some jewelry and an automobile. During the course of the robbery, the victims were threatened with serious harm, including the rape of the young woman victim.

After the apprehension, Steven Bannister and co-defendant, Gregory Hall, were originally charged by bill of information with a violation of LSA-R.S. 14:60, aggravated burglary. On October 12, 1982, the bill of information was amended to charge a violation of LSA-R.S. 14:64, armed robbery. Following the entrance of a not guilty plea, the hearings on pre-trial motions and a sanity hearing (at which the defendant was adjudicated competent to stand trial) trial was commenced before a twelve (12) person jury on January 11, 1988. A verdict of guilty of armed robbery was returned. On January 18, 1983, the trial judge sentenced the defendant, Bannister, to serve a term of 60 years at hard labor without benefit of parole, probation, or suspension of sentence.

The defendant contends the sentence of 60 years at hard labor is excessive and violative of Article 1, Section 20, of the Louisiana Constitution of 1974 and was imposed without compliance with Louisiana Code of Criminal Procedure Article 894.1.

Under LSA-R.S. 14:64(B), the defendant could have been sentenced to as many as 99 years without benefit of parole, probation or suspension of sentence. However, even sentences within statutory limits may be reviewed for excessiveness. Louisiana Constitution, Article 1, Section 20; State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Parish, 429 So.2d 442 (La.1983); State v. Dirden, 430 So.2d 798 (La.App. 5th Cir.1983). The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and sentences imposed by him should not be set aside as excessive in the absence of manifest abuse of his discretion. State v. Howard, 414 So.2d 1210 (La.1982).

Although the trial judge need not articulate every aggravating and mitigating circumstance in imposing a sentence, the record must reflect that he adequately considered the guidelines outlined in Article 894.1 of the Louisiana Code of Criminal Procedure in particularizing the sentencS to the defendant. State v. Bradley, 414 So.2d 724 (La.1982); State v. Ray, 423 So.2d 1116 (La.1982); State v. Smith, 433 So.2d 688 (La.1983).

In his sentencing colloquy, the trial judge noted he was applying the provisions of La.C.Cr.P. Article 894.1 and did consider the nature of the offense and the offender while imposing the sentence. In doing so, he concluded the defendant, although only twenty-four years of age, had an extensive criminal history and in need of correctional treatment or a custodial environment which could be provided most effectively by his commitment to an institution. He considered the evidence showing the victims were held at knife point in their home and had been threatened with serious bodily harm and concluded the defendant’s acts were willful and intentional and saw no excuse for his conduct. Therefore, he believed any lesser sentence than the one imposed would deprecate the seriousness of the crime for which the defendant was convicted.

After a careful review of the record, we believe the trial judge gave proper consideration to all sentencing factors. Under the circumstances involved here, we cannot say the sentence imposed by the trial court was unconstitutionally excessive. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.


author: CHEHARDY, Judge.

text:
    STATE of Louisiana v. Darryl BOUTTE.
    No. 83-KA-427.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.

      John M. Mamoulides, Dist. Atty., Twenty-Fourth Judicial District, Parish of Jefferson, Stephen Little, William C. Credo, III, Asst. Dist. Attys., Gretna, for appellee; Louise Korns, Gretna, of counsel.
    Joseph L. Montgomery, Staff Appeals counsel, Twenty-Fourth Judicial District Indigent Defender Board, Gretna, for appellant.
    Before BOUTALL, CHEHARDY and BOWES, JJ.
   CHEHARDY, Judge.

The Jefferson Parish district attorney filed a bill of information charging Darryl Boutte, James Stewart, Jr., and Joseph Richardson with five counts of armed robbery and/or attempted armed robbery. These offenses involved different victims and allegedly occurred between March 28 and March 30, 1982.

Richardson was charged only in count one, while the other defendants were charged in all five counts. Richardson’s attorney therefore filed a motion for severance, which was granted.

The matter was tried before a jury only on counts four and five against defendants Boutte and Stewart. These charges concern the armed robbery of Douglas Doyle and Sandra Spath. Stewart was found not guilty on either count and Boutte was found guilty on both counts.

Following a pre-sentence investigation, Boutte was sentenced to 30 years at hard labor on each count without benefit of parole, probation or suspension of sentence. The sentences are to run concurrently.

Boutte has appealed, relying on two assignments of error.

The record establishes the following facts:

On March 28, 1982 at about 5:15 a.m., Douglas Doyle and his companion Sandra Spath were returning from a date to the Chateau Dijon Apartments in Metairie, Louisiana.

They were approached by two men who asked directions to another apartment in the complex. The four people were walking toward the apartment Doyle and Spath intended to enter, conversing with each other. When they arrived at the apartment one of the men pulled a gun, ordered Ms. Spath to open the door and forced her and Doyle to lie facedown on the living room floor.

While rifling through Doyle’s possessions they found identification indicating he was a police officer. Both of the victims were tied up and searched for valuables. Rings were stolen from Ms. Spath and travelers checks, cash, a watch and car keys were stolen from Officer Doyle.

The ordeal lasted about 45 minutes while the perpetrators searched the apartment asking for drugs, guns and valuables. A gun was put to Ms. Spath’s head by Boutte on several occasions, and he also pulled her up by the hair and cursed her. Doyle was kicked in the head by Boutte and a bottle of whiskey was poured over both of the victims while the robbers discussed setting them on fire. During the entire ordeal the victims were continually threatened and harassed by both robbers.

ASSIGNMENT OF ERROR No. 1

Defendant contends the trial court committed reversible error when Joseph Richardson was severed from the other defendants in counts two through five of the original bill of information because the district attorney failed to file separate bills of information thereafter.

We are referred to LSA-C.Cr.P. art. 705 and LSA-C.Cr.P. art. 5, which provide in pertinent part:

“When the court has ordered severance of an indictment, the district attorney shall file separate indictments.” (LSA-C.Cr.P. art. 5)
“The word ‘shall’ is mandatory, and the word ‘may’ is permissive.” (LSA-C.Cr.P. art. 5)

It should be noted that the defendant did not protest the severance until the first witness had been sworn at the present trial and had begun to testify. The trial judge denied the requested mistrial.

Appellant’s position is that failure to file separate bills of information following severance as mandated by the above-quoted statutes constitutes reversible error.

The jurisprudence of this state does not support defendant’s contention. In State v. Sermon, 404 So.2d 261 (La.1981), the trial court declined to dismiss the proceeding when the prosecution failed to file a separate indictment. In affirming the decision of the trial court the Supreme Court said at pages 262-263:

“Assuming, without deciding, that separate indictments should have been filed we nonetheless hold that defendant was in no way prejudiced by the trial court’s failure to require separate indictments. * * * While counsel for the defense claims that the procedure adopted by the state was improper, he fails to make any allegation as to how the state’s omission to file a separate indictment prejudiced him. State v. St. Andre, 263 La. 48, 267 So.2d 190 (1972); State v. Williams, 263 La. 755, 269 So.2d 232 (1972); State v. Gardette, 352 So.2d 212 (La.1977); State v. Sonnier, 379 So.2d 1336 (La.1979).”

We note that defendant was fully appraised of the charges against him in counts four and five because the severance affected only Joseph Richardson who was charged only in count one, which concerned another victim. In no way was Richardson charged in the other counts involving Ms. Spath and Officer Doyle. Thus the defense has failed to establish that Boutte suffered any prejudice because of the State’s alleged inaction. He was at all times fully notified of the nature of the charges against him.

We find no merit in Assignment of Error No. 1.

ASSIGNMENT OF ERROR No. 2

Boutte contends the trial court failed to state for the record the considerations taken into account as a factual basis for imposing sentence and to consider mitigating circumstances as required by LSA-C.Cr.P. art. 894.1. He further alleges the sentences are excessive.

The mitigating circumstances to which appellant refers are: his age, lack of prior convictions, and the probation department’s recommendation of leniency.

The trial judge considered all of the mitigating circumstances, including the recommendation of the parole department, which amazed him. He concluded that the parole officer had not heard the testimony of the victims describing their ordeal.

The court also noted that defendant is only a technical first offender, since he has a serious arrest record. The court had heard testimony from at least one victim in another armed robbery with which defendant is charged, and noted defendant is charged with aggravated rape in another section of the court.

A sentencing court is able to consider evidence of other criminal activity which has not resulted in convictions. State v. Washington, 414 So.2d 313 (La.1982).

Even without such other consideration, the crime itself of which defendant was convicted is heinous enough to warrant imposition of the sentence handed down.

We have reviewed State v. Robicheaux, 412 So.2d 1313 (La.1982), on which defendant relies, wherein our Supreme Court found a 25-year sentence for a first offender without possibility of parole appeared to be arbitrary and excessive.

In Robicheaux the armed assailant snatched a gold chain and medallion from the victim’s neck and ran down Bourbon Street.

Those facts in no way compare with the 45-minute ordeal of the victims in the instant case who were tied up, threatened with a gun, had whiskey poured over them and were threatened with being burned alive, along with other atrocities committed in ransacking the apartment, kicking one victim, pulling the other by the hair, etc. All of this was noted in detail by the trial court so that this court would be fully aware of his reasons for sentencing.

We conclude the trial judge carefully considered both the crime itself and the factors which would constitute mitigating circumstances in arriving at the sentence imposed. Thus, we find no merit in Assignment of Error No. 2.

For the foregoing reasons, the conviction and sentence of defendant Darryl Boutte are affirmed.

AFFIRMED.

      . Pursuant to a plea bargain Boutte then pleaded guilty to an attempted armed robbery in count one, and the State dismissed counts two and three. He was sentenced to 10 years on count one without benefit of parole or suspension. The sentence is to run concurrently with the 30-year sentences for counts four and five.


author: BOUTALL, Judge.

text:
    STATE of Louisiana v. Michael BECNEL.
    No. 83-KA-355.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.

      Frank J. Uddo, New Orleans, for Michael Becnel defendant-appellant.
    Harry R. Morgan, Asst. Dist. Atty., 29th Judicial Dist. Court, Parish of St. Charles, Hahnville, Barbara Rutledge, Asst. Atty. Gen., La. Dept, of Justice, Criminal Division, New Orleans, for State of La. plaintiff-appellee.
    Before BOUTALL, GAUDIN and GRIS-BAUM, JJ.
   BOUTALL, Judge.

The appellant Michael Becnel appeals his conviction of manslaughter, which resulted in a sentence of 12 years imprisonment. We affirm the conviction for the reasons which follow.

Michael Becnel was indicted and tried for the shooting of the man whom his former girlfriend began dating after she and appellant had broken off a 2½ year relationship.

The shooting took place at the home of the former girlfriend, Mary Washington, on the night of February 27, 1982. On that night Becnel came by Washington’s house, ostensibly to retrieve his television set. He was armed at the time with a handgun. When Becnel was refused entry into the house he forced his way in, and according to Mary Washington’s testimony, then struck her and she fell.

Becnel proceeded down the hall to one of the rear bedrooms and as Washington got up to go after him, three to four shots were fired. At this point, the testimony is conflicting.

Washington and her 14 year old daughter Daron testified that Becnel was shouting, “Where is White Eye [the victim]? That’s who I want.” Both also testified that Bec-nel fired first, through the open door of the back bedroom. The victim then returned fire, wounding Becnel in the abdomen. According to Washington Becnel then fired two more shots before retreating down the hallway.

Appellant’s version of the story was that he was ambushed in the hallway, and that the victim fired first, from behind the bedroom door. Becnel testified that he then fired two shots into the closed bedroom door in an act of self-defense.

The victim, Donald Borne, also known as “White Eye,” was fatally wounded by one of the shots fired by Becnel, and died the next morning. Becnel drove himself to the hospital for treatment of his gunshot wound.

Becnel was indicted for second degree murder and a jury of 12 returned a verdict of manslaughter. The trial judge, citing Becnel’s lack of criminal record and his belief that appellant was unlikely, judging from his past productive life, to commit another crime, sentenced appellant to 12 years at hard labor out of the maximum possible under La.R.S. 14:31 of 21 years.

ASSIGNMENTS OF ERROR

Appellant initially assigned 9 specifications of error for our review, but since he has briefed only 5, and has not elected to orally argue this case, we consider the other four assignments of error to be abandoned.

Assignments of Error

1. The trial court erred in not quashing the bill of indictment based on the fact that the indictment was in improper form.
2. The trial court erred in qualifying Louise Braun as a firearms identification expert, since she did not know the weight conversions between a 7mm and an 8mm bullet.
3. The trial court erred in refusing to accept as an expert witness the private investigator of the defendant, Mr. John Haydel.
4. The trial court erred in not permitting the diagram drawn by the private investigator, John Haydel, to be introduced into evidence.
5. The trial court erred in not granting the motion for new trial.

The indictment defect of which appellant complains in Assignment of Error # 1 appears to be that “A True Bill” was printed, not hand-written on the indictment and that the Grand Jury foreman’s identity cannot be ascertained from the indictment because his signature is illegible.

Notwithstanding the fact that the Motion to Quash was not timely presented to the trial court, we will make the following observations with regard to this argument. Firstly, in State ex rel v. Henderson, 259 La. 691, 251 So.2d 639 (1971) the Louisiana Supreme Court held that the endorsement “A True Bill” is not required to be hand-written.

Secondly, we have uncovered no requirement under the law that the Grand Jury foreman’s signature be legible. Furthermore, the foreman’s identity was ascertained and read into the record prior to commencement of the trial.

This assignment of error has no merit.

In Assignments of Error # 2 through 4 appellant complains of various evidentiary rulings of the trial court. Relative to the trial court’s rulings on expert testimony, La.R.S. 15:466 provides:

The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.

The law is well established that the trial court’s rulings on the competence of an expert witness will not be disturbed on appeal in the absence of manifest error. State v. Coleman, 406 So.2d 563 (La.1981). Our review of the record discloses no manifest error. We also note that the defense witness, private investigator John Haydel, was allowed a great deal of latitude in his testimony as to his findings at the scene of the incident, even though he had never received training in or been certified as a crime scene technician nor had he had ballistics training.

As to Assignment of Error # 4, that Mr. Haydel’s diagram of Mary Washington’s house should have been admitted into evidence, we find no manifest error either. The diagram was not to scale, and thus the potential for it to promote misconceptions about the spatial relationships involved was great. Further, the diagram was on display to the jury throughout the trial, and was used by the defense in its cross-examination of Mary Washington. It is clear once again that the defense was allowed quite a bit of latitude in its presentation though this diagram was ultimately deemed inadmissible, and properly so, we think.

Finally in Assignment of Error # 5 appellant argues that the trial court erred in denying his motion for a new trial on the grounds that the verdict was contrary to the law and the evidence and that the ends of justice would be served by granting appellant a new trial. On the latter ground which is urged, a denial by the trial court presents nothing for our review. State v. Hicks, 405 So.2d 510 (La.1981). As to the former ground, it is essentially a challenge of the sufficiency of the evidence under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Our review of the record discloses ample evidence to support beyond a reasonable doubt the jury’s verdict, when considered by a rational trier of fact in the light most favorable to the prosecution. The comparative credibility of the eye witnesses and the defendant must not in this case be confused with insufficiency of the evidence, and it is not the function of this court to reevaluate the credibility of witnesses and to overturn a jury’s determination of appellant’s guilt based on their appreciation of the testimonial evidence. La. Const, of 1974, art. 5, Section 10(B). Such is not the inquiry mandated by Jackson v. Virginia, supra, and we find that no valid Jackson issue exists in this case.

For the foregoing reasons, the conviction of Michael Becnel is affirmed.

AFFIRMED.


text:
    Mary J. CLONEY v. Kevin G. SMITH, et al.
    No. 83-CA-396.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.

      Raymond L. Hess, New Orleans, for Kenneth J. Smith defendant-appellant.
    Daniel A. Ranson, Windhorst, Pastorek & Gaudry, Gretna, for Aetna Ins. Co. defendant-appellant.
    Fred L. Herman and Mark R. Wolfe, Herman, Herman & Katz, New Orleans, for Mary J. Cloney plaintiff-appellee.
    Before BOUTALL, CHEHARDY and GAUDIN, JJ.
   BOUTALL, Judge.

This case arises from an automobile accident at a controlled intersection. From a judgment in favor of plaintiff, the defendants have taken this appeal.

On May 13, 1980, Mary J. Cloney (“Mrs. Cloney”), the plaintiff, was proceeding north on Focis Street in Metairie and Kenneth G. Smith (“Smith”) was driving east on Canal Street toward Metairie Road. Fo-cis Street has a stop sign at the intersection, while Canal Street traffic has the right-of-way. Canal Street is a four-lane boulevard with a canal separating the inbound and outbound lanes. Smith’s car collided with the front left of Mrs. Cloney’s car in the left lane of the inbound roadway and Mrs. Cloney sustained injuries requiring her hospitalization.

Mrs. Cloney’s car was insured by Aetna Insurance Company. Smith’s car was allegedly uninsured and was registered to his brother, Dwight Brautigam (“Brautigam”), who had given the car to him. Mrs. Cloney claimed property damage, which Aetna paid timely. The policy contained no medical payments provision, but Mrs. Cloney made a claim for her personal injuries under the uninsured/underinsured provisions of the policy. Aetna did not pay the claim on grounds that they were unable to find Mrs. Cloney free from fault. Aetna did pay the property damage claim of defendant Smith.

Suit for damages was filed on April 16, 1981 against Smith, Brautigam, XYZ Insurance Company and Aetna, demanding penalties and attorney’s fees from Aetna for failure to pay under the uninsured/underin-sured coverage. Aetna answered and filed a third party complaint for indemnification against Smith and Brautigam. The case was heard before a judge and on July 12, 1982 judgment was rendered in favor of the plaintiff against Aetna for $5,000 (the policy limits for uninsured motorist coverage), $5,000 in attorney’s fees, $1,250 in penalties calculated at 25%, and costs; and against Kenneth Smith for $30,000 plus costs. Judicial interest was to run from date of judicial demand. The two defendants were cast jointly, severally, and in solido for expert fees, court costs, and depositions used at trial. The trial judge stated in his reasons for judgment that Aetna was entitled to full indemnity against Smith, except for penalties and attorney’s fees; this provision was apparently inadvertently omitted from the judgment itself.

The brief filed by Aetna was adopted by counsel for Smith. The following issues are before this court: whether Smith’s negligence was the legal cause of the accident, or whether Cloney was negligent or contrib-utorily negligent; whether the uninsured status of Smith was proved; and, if the plaintiff is entitled to recover against Aet-na, whether she is entitled to attorney’s fees and penalties. Aetna also asks for a judgment of indemnity against Smith. Cause of Accident

We first consider the cause of the accident and the negligence or not of the parties. In its reasons for judgment the court said:

“Mary Cloney’s testimony, and that of the passenger and independent witness, clearly indicates that she acted cautiously and prudently under the circumstances. The Court finds that the sole and proximate cause of the collision was the negligence of Smith in the careless operation of his vehicle and excess speed.”

The defendant, Smith, received a citation for driving 46 miles per hour in a 35 mile per hour zone, to which charge he pleaded guilty and paid the fine. The plaintiff, Mrs. Cloney, was cited for disregarding a stop sign but testified that the ticket was canceled. The actual disposition of Mr. Clo-ney’s ticket is uncertain as no corroborating documents were produced.

Smith had entered Canal Street from Rosa Avenue, the next intersection down from Focis. He testified that he saw Mrs. Cloney approaching the stop sign at Focis when he was about 100 feet from the intersection. She slowed and hesitated. He slowed down, blew his horn. She stopped. He saw that the front of her car was blocking the right lane and moved to the left, slowing to 30 miles per hour. Mrs. Cloney then suddenly came out of the stop sign in front of him, whereupon he slammed on his brakes and skidded. Smith insisted that he had traveled at a speed no greater than 35 miles per hour. Smith, a Nicaraguan, had lived in New Orleans only a year at the time of the accident and said that he pleaded guilty to the speeding citation because he did not understand Traffic Court and had no attorney.

The testimony of two independent eyewitnesses, Arnaud Dufrechou (who testified by deposition) and Lois Schroeder, both of whom saw the accident from the other side of Canal Street, indicated that Mrs. Cloney had stopped at the stop sign and that the Smith vehicle came “from nowhere” after Mrs. Cloney had started across. Both witnesses testified to hearing an engine noise before seeing Smith’s car. Mrs. Cloney and Mabel Allison, her sister and passenger, said that there was a clear view to the left on Canal Street and that they neither heard nor saw Smith’s car prior to the impact. Sergeant Fred Falgout, who investigated the accident at the scene, testified that on the basis of skid marks from Smith’s tires he estimated a speed of 46 miles per hour. The defense urges that Mrs. Cloney failed to see what she should have seen and that she was distracted by a vehicle approaching the intersection across the canal from the right. Mrs. Allison testified that after they saw the vehicle across the canal she looked back to the left, saw nothing coming toward them and told Mrs. Cloney to go ahead. The plaintiff argues that she could not have seen Smith’s car because it had not yet entered Canal Street from Rosa Avenue, a long block to the left of Focis Street; further, that she could not have pinpointed the direction of Smith’s engine sound because of other car noises coming from nearby I — 10.

The applicable statute in the case of a driver entering the favored street from the nonfavored street at a controlled intersection is found at La.R.S. 32:123 B, which provides, in pertinent part:

“B. Except when directed to proceed by a police officer or traffic-control signal, every driver and operator of a vehicle approaching a stop intersection indicated by a stop sign shall stop ... at the point nearest the intersection roadway where the driver has a view of approaching traffic on the intersection roadway before entering the intersection. After having stopped, the driver shall yield the right of way to all vehicles which have entered the intersection from another highway or which are approaching so closely on said highway as to constitute an immediate hazard.”

The court in its reasons for judgment summarized the jurisprudence regarding crossing an intersection from an unfavored street, as follows:

“The jurisprudence in this state is settled that a motorist who enters the intersection of a right of way street, may upon observing the yield or stop sign, then proceed across the favored street or turn into the favored street and assume that vehicles approaching on that street will observe the speed limit. Botsay v. Campanella 224 So.2d 107 (La.App. 4th Cir.1969); Barry v. Billac 250 So.2d 516 (La.App. 4th Cir.1971); Camet v. Guiliot 291 So.2d 438 (La.App. 4th Cir.1974); Zager v. Allstate Ins. Co. 211 So.2d 744 (La.App. 3rd Cir.1968) and decisions cited therein.”

The cases cited above all apply the “reasonably prudent and cautious person” test to the crossing driver’s behavior.

The appellant cites several cases as authority for finding negligence on Mrs. Cloney’s part: Burge v. Doty, 279 So.2d 273 (La.App.2d Cir.1973), writ refused 281 So.2d 757 (La.1973); Audubon Insurance Company v. Knoten, 325 So.2d 624 (La.App. 4th Cir.1976); and Follins v. Barrow, 354 So.2d 609 (La.App. 1st Cir.1977), writ refused 356 So.2d 434 (La.1978). All are cases involving drivers who were entering a favored street from an unfavored street and failed to discharge the duty to see what they should have seen. These cases may be distinguished from the present case because the driver on the favored street was traveling at a lawful speed.

Counsel for the appellee relies on the case of Thomas v. Checker Cab Company of New Orleans, 87 So.2d 605 (La.1956) as authority for finding that Mrs. Cloney was not negligent. There, the driver on the unfavored street was held to be negligence-free when he failed to see an oncoming vehicle that was speeding and was over 100 feet away from the intersection when the driver ventured across. The court said that the driver had the right to assume that an oncoming vehicle that was out of his range of vision would be driving properly and within the speed limit. Finding the speeding driver’s negligence to be the sole and proximate cause of the accident, the court said of the entering driver, at 607:

“. .. Having preempted the intersection after stopping, looking, and ascertaining that there was no apparent danger, he had the right of way over a vehicle .. . approaching from his right, even though this vehicle was being operated on a right-of-way street. Booth v. Columbia Casualty Co., 227 La. 932, 80 So.2d 869, and authorities there relied on.”

Barry v. Billac, supra, cited by the court, contains similar facts.

The doctrine of preemption applies in favor of the entering driver only if he has maintained a proper lookout and enters the intersection when it is reasonably safe to do so. Burge v. Doty, supra; Semien v. State Farm Auto. Ins. Co., 398 So.2d 165 (La.App. 3rd Cir.1981). The right of way driver who is speeding and fails to yield to an entering motorist who has lawfully preempted the favored street will be held negligent. Moss v. Travelers Indem. Co., 351 So.2d 290 (La.App. 3rd Cir.1977), writ refused 353 So.2d 1036 (La.1978); Nagem v. State Farm Mutual Insurance Company, 280 So.2d 353 (La.App. 3rd Cir.1973); Gauthier v. Fogleman, 50 So.2d 321 (La.App. 1st Cir.1951).

We conclude that the record in this case supports the trial judge’s finding that Smith was at fault and that Mrs. Cloney was not negligent. He determined that Mrs. Cloney saw the way was clear and cautiously entered the intersection with no visible danger. Smith pulled into the right of way street from a side street at a rapid speed and failed to stop and yield the right of way to Mrs. Cloney’s vehicle, choosing instead to attempt to go around in the left lane. As a factual determination of this sort becomes a question of credibility, the trier of fact is in a better position to evaluate the testimony of live witnesses. His findings of fact may not be overturned in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

Uninsured Motorist Status

The appellant complains that the ap-pellee failed to carry her burden of proof that Brautigam and Smith were uninsured. Brautigam testified that he had carried insurance on the car earlier but discovered that the policy had expired when he checked it after the accident. He and Smith both stated that they were uninsured in their answers to interrogatories. As Aetna failed to file a third-party claim against Brautigam’s former insurer, we find no merit in its allegation that Smith’s vehicle was insured. Sworn and uncontra-dicted testimony of the owner has been accepted as proof that a vehicle was uninsured. Launey v. Thomas, 379 So.2d 27 (La.App. 3rd Cir.1979), writ refused, 381 So.2d 1233 (La.1980).

Arbitrary and capricious failure to pay claim

LSA R.S. 22:658 provides that an insurer that refuses to pay a claim within sixty days after receiving satisfactory proofs of loss and demand, without probable cause, will be subjected to a penalty and attorney’s fees.

The appellant urges that there were contested issues in the case, including negligence and contributory negligence, uninsured motorist status, last clear chance, and post-accident injuries. The court found that Aetna was arbitrary and capricious in not paying the claim because it neither conducted a careful investigation nor tendered the policy limits after suit was filed, when the plaintiff had submitted proof of severe injuries for which the medical expenses exceeded $5,000.

A liability insurer is obligated to act in good faith and to deal fairly with its insured in settling claims. Holtzclaw v. Falco, Inc., 355 So.2d 1279 (La.1978). The court assessed penalties against the insurer in Lapeyrouse v. Pilot Life Ins. Co., 369 So.2d 1128 (La.App. 1st Cir.1979), for withholding payment of a health claim with insufficient investigation.

Courts have rarely applied the penalty provision to claims against uninsured motorist coverage. The issue was considered by the Supreme Court in September in the case of Hart v. Allstate, 437 So.2d 823 (La. 1983). The Court denied penalties and attorney’s fees for the insurer’s failure to pay timely injury claims under the plaintiff’s uninsured motorist coverage.

The Court acknowledged that LSA R.S. 22:658 does apply to uninsured motorist coverage, as it is a “contract” within the purview of the statute, but stated that because of the statute’s penal nature it must be strictly construed. The Court specified the requirements for recovery of damages under uninsured or underinsured motor vehicle insurance, as follows, at 9:

“. .. [T]o establish a ‘satisfactory proof of loss’ of an uninsured motorist claim, the insured must establish that the insurer receive sufficient facts which fully apprise the insurer that the owner or operator of the other vehicle involved in the accident was uninsured or underinsured, that he was at fault, that such fault gave rise to damages and establish the extent of those damages.”

A strict reading of the Court’s decision suggests that the burden is on the insured to establish that the uninsured driver was at fault and he was not. As the coverage was made mandatory in the public interest we do not believe that the Legislature intended, by placing the burden on the insured, to make it possible for the insurer to delay payment by failing to investigate a claim.

Where uninsured motorist coverage is part of a liability policy, the insurer’s first duty is to its own insured, to defend him as well as the company against the claims of third parties. But when that insured makes a claim against his uninsured motorist coverage, the insurer’s self-interest places it in an adversary position to its insured; it is in the company’s interest to find the third party was not at fault or that its insured was contributorily negligent. We question whether the legislature intended that such a shift in position should occur when an insured makes a claim against his uninsured motorist coverage.

In the case at hand, the insurer glaringly ignored its responsibility toward its insured. Mary Lacy, Aetna’s claims adjuster, admitted that she did not interview the plaintiff, or key witnesses other than the defendant, or the investigating officer. She testified that she concluded Mrs. Clo-ney was at fault and Smith free from fault on the basis of a telephone interview with Smith and a review of the police report. She discounted the written statement of a witness, Arnaud Dufrechou, which directly contradicted Smith’s statement.

We distinguish our case from Hart v. Allstate, supra, on the grounds that Mrs. Cloney and her counsel had supplied the insurer with sufficient factual information on which to base an investigation and had notified it of the uninsured status of the defendant. In Hart, the plaintiff had delayed in sending in medical bills and forms and had failed to notify the insurer that the defendant was legally intoxicated. It delayed notifying the insurer that the defendant was uninsured. However, the adjuster in Hart had interviewed the plaintiff, the defendant, and the investigating officer. In our case, the adjuster had conducted such a cursory investigation that it had no basis for concluding that Mrs. Cloney was negligent or even that there was a dispute as to fault.

We are in agreement with the trial court’s finding that Aetna was arbitrary and capricious in its failure to pay Mrs. Cloney’s claim and is liable for a penalty and attorney’s fees under LSA R.S. 22:658.

The parties stipulated at the hearing of the appeal that the correct penalty under LSA-R.S. 22:658 is 12% on the total amount of the loss plus reasonable attorney’s fees rather than 25% as written in the judgment. Although the appellant complains that an award of $5,000 in attorney’s fees is clearly excessive, we believe the length of the trial and the hours in depositions justified the award, when considered along with the skill of the attorney, the results reached, etc.

Accordingly, we amend the judgment appealed from and as amended affirm. That portion of the decree finding in favor of plaintiff, Mary J. Cloney and against defendant, Aetna Casualty and Surety in the amount of $11,250 plus cost is amended to read as follows:

“It Is Ordered, Adjudged and Decreed that there be judgment herein in favor of plaintiff, Mary J. Cloney and against defendant, Aetna Casualty and Surety in the amount of $5,000, together with $5,000 attorney’s fees and $600 penalty, plus cost.”

We amend the judgment further to add that there be judgment in favor of Aetna Casualty and Surety against Kenneth G. Smith in indemnity for such sums as Aetna may pay under the judgment, exclusive of penalty and attorney fees.

Costs of this appeal are assessed against Aetna Casualty and Surety and Kenneth G. Smith.

AMENDED AND AFFIRMED.

      . To make this calculation Falgout measured the length of skid marks of Smith’s four tires, finding an average of 95 feet, then applied a “drag factor” (coefficient of friction) of .70 for a dry asphalt traveled road at a speed greater than 30 miles per hour. The tables he referred to appear in the Northwestern Traffic Manual.

      . Court of Appeal citation is 426 So.2d 711 (La.App. 1st Cir.1982), writ granted 431 So.2d 2 (La.1983).


text:
    TUTORSHIP OF Shawn Christena VINALL.
    No. 83-CA-399.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.
    Clement F. Perschall, Jr., New Orleans, for Sharon Moose, mother of Shawn Christena Vinall, applicant-appellant.
    Albert C. Miranda, Bernard, Cassisa, Babst & Saporito, Metairie, for Albert C. Miranda, appellee.
    Before BOUTALL, CHEHARDY and GAUDIN, JJ.
   BOUTALL, Judge.

This case involves a dispute over fees awarded to the notary and appraisers for an inventory of a minor’s property, inherited from her father. The parents had divorced, and at the time of his death the father was living out of state. The child, Shawn Christena Vinall, was the beneficiary of five life insurance policies. The proceeds amounting to $160,115.66 constituted the entirety of the minor child’s Louisiana property.

When Sharon M. Hennessey, the child’s mother, applied to be confirmed as natural tutrix, the court appointed a notary and two appraisers to make an inventory. Mrs. Hennessey subsequently refused to pay the notary’s bill of $3,200 and $800 for each of the two appraisers, and she filed a rule to set the fees. Finding the fees high, the judge cut them to $1,601.15 for the notary and $402.78 for each appraiser. The mother resisted these charges also. When the appraisers refused to sign the inventory until they were paid, preventing the letters of tutorship from being issued, the mother’s attorney applied for writs to this court.

On November 10, 1982, the Court of Appeal directed the district judge to order the appraisers to sign the proces verbal of the inventory and to order the funds due under the policies deposited directly into the court registry. The judge was then to retain a sufficient portion of the money to cover all contingencies and order the remainder invested for the minor’s account. He was further ordered to hold an evidentiary hearing regarding the proper assessment of fees.

Following the hearing, the court set the fees again at $1,601.15 for the notary and $402.78 for each appraiser. In his reasons for judgment the judge explained that the rules of court of the 24th Judicial District called for 2% for the notary and 1% to be shared by the appraisers, but that under the jurisprudence the judge has discretion in setting fees. Feeling that those percentages were too high in this proceeding, he cut the percentages in half to resolve the matter equitably. From that judgment the natural tutrix has taken this appeal.

The issues raised by the appellant are, in essence, whether the fees for the inventory were reasonable in light of the property involved and on what basis such fees should be assessed.

The applicable statutes regarding tutorship proceedings are La.C.C.P. articles 4101, 4102, and 3131 through 3134. An inventory and an appraisal are required by article 4101, and the appointment of a notary and two appraisers is specifically required by article 3132. LSA R.S. 9:1423, as revised in 1970, provides that the court shall set the fees for experts, notaries, and appraisers appointed to take inventories. As noted above, the Twenty-Fourth Judicial District Court rules provide for fees based on a percentage of the inventory.

The appellant urges that the court should have applied the criteria provided for the fixing of expert witness fees in R.S. 13:3666 and for attorneys’ fees in Leenerts Farms, Inc. v. Rogers, 421 So.2d 216 (La.1982) because no criteria are provided by R.S. 9:1423. He argues that the two statutes are “interwoven” and that the criteria in R.S. 13:3666 and those applied in Leenerts Farms, Inc., supra, are similar. We need not consider this argument, because the Supreme Court has recently set out specific guidelines for setting reasonable fees for the notary and appraisers in connection with an inventory.

The Court, in Hill v. Hill, 434 So.2d 1078 (La.1983), treated the problem in a consolidated case consisting of a separation (“Hill”) and a tutorship (“Perret”). Both cases arose in the Twenty-Fourth Judicial District. The Court analyzes fee-setting in inventories as follows, at 1082:

“Under our statutory scheme, when the court orders an inventory, it appoints a notary who, in turn, appoints two competent appraisers to assist him. See La.C. C.P. arts. 3131-2. The statutes do not require that the parties in the proceeding approve the court appointments nor does the law envision a contract for fees between the notary and the parties. The same body which appoints the notary and appraisers, the trial court, is given the authority to set fees and order the parties to the litigation to pay such fees as costs. Under these circumstances, the court is constrained to fix fees which are reasonable. To determine reasonable fees for the notary and appraisers, the court should consider many factors such as (1) the time and labor of the notary and appraisers, (2) the value of the inventory, (3) the number of property items to be inventoried, (4) the fee customarily charged in the locality for similar services, and (5) the experience, reputation and ability of the notary and appraisers.”

In “Hill ” (the separation), the notary and appraisers billed the client under the percentages specified in local rule XIII, 8. The trial court cut the original fee without reference to the rules of court, which figure the Court of Appeal affirmed as falling within the trial judge’s discretion. The Supreme Court also affirmed, finding the fees to be reasonable and not an abuse of the judge’s discretion, considering the items involved in the inventory — -a residence with more than one hundred movables, other movables stored off the premises, and a profit-sharing plan.

In “Perret ” (the tutorship), the trial court held that a fee of 2% for the notary and 1% for the two appraisers was appropriate under the circumstances of the ■ case. The Court of Appeal found that the work performed did not merit the fee set by the trial court and reduced it to a flat figure without reference to the court rule or a percentage. The Supreme Court applied the criteria quoted above and found that the fees as reduced by the Court of Appeal were still unreasonable. While the value of the inventory was $145,125, the minors’ interest in a court settlement represented $127,000 of that amount. The balance consisted of four items: a half interest in a house and lot, a half interest in the furnishings, and a half interest in a car and a truck. The notary and appraisers drove only once to the house and viewed the exterior. The tutrix’s attorney supplied suggested values for the movables. . The Supreme Court further reduced the fees, without reference to the local rule, to $1,000 for the notary and $250 for each appraiser.

Although the issue of reasonableness or not of the court rule was raised in “Hill ”, the Court said, at 1081:

... We need not address the reasonableness of the court rule. The trial judge obviously did not follow the rule in setting the fees of the notary and appraisers because the fees were fixed at an amount which was less than the 2% and 1% fees mandated by the court rule.... ”

At the evidentiary hearing of this case on December 9, 1982 the notary-attorney testified that he obtained the payout figures on the five insurance policies by telephone and that the appraisers were not present. His office time sheet indicates that from the time he received the file on May 26, 1982 until June 23, 1982, when he completed the preparation of the procés-verbal, he had spent 7½ hours. From June 28, 1982 through November 17, 1982, the notary spent 11¾ hours “trying to close the matter.” An appraiser, Rose Martin, testified that other than signing the inventory and having one or two conversations with the notary, neither she nor the other appraiser did any work on the inventory.

Although the trial judge considered the minimal amount of time and labor expended by the notary and appraisers, he stated that he did not favor a fee based on quantum meruit alone:

“... This could lead to the rather inconsistent position of having a very small estate, with a long detailed inventory of items of little value, allowing an award of a greater fee to the notary and the appraisers than that which would be awarded for a substantial estate without too many details or items to be inventoried.”

We believe that the notary’s fee of $1,601.15 falls within the range of discretion afforded to the trial judge by LSA R.S. 9:1423 and meets the criteria of Hill v. Hill, supra. As to the appraiser’s fee, we find that for the minimal time and labor involved $402.78 is an excessive fee and we reduce to $100.00 for each appraiser.

Accordingly, the judgment appealed from is affirmed as to the notary fee of $1,601.15 and is amended to set the fee of the appraisers at $100.00 each.

AMENDED AND AFFIRMED.

      . 24th J.D.C., Rule XIII, Appointment of Curators; Suggestions Prohibited, Section 8, reads: “In any case in which an inventory is requested, the notary filing said inventory shall be paid 2% of the total value of the inventory; the appraisers shall each be paid ½ of 1% of the total value of the inventory.”

      . For Court of Appeal opinions see Hill v. Hill, 433 So.2d 1069 (La.App. 5th Cir.1983), and Tutorship of Perret, 434 So.2d 95 (La.App. 5th Cir.1982).

      . Although the court did not consider the rule standing alone, it appears from the evidence that the rule is representative of the fee customarily charged for such services and thus would constitute one of the five factors that may be considered.

      . The trial court opinion was rendered prior to Hill v. Hill, supra.


text:
    Charles WILLIAMS, Individually and in his capacity, et al v. Michael SAVOIE, and his insurer State Farm Insurance Company, John M. Sawatis, Benjamin J. Dorsey and Jules J. Milan d/b/a Casablanca Lounge and Jules J. Lounges, Inc., and his insurer, National Union Fire Insurance Company.
    No. 83-CA-426.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.
    Pete Lewis, Lewis & Caplan, New Orleans, for Charles Williams, et al. plaintiffs-appellants.
    Thomas P. Anzelmo, Sr., McGlinchey, Stafford, Mintz & Cellini, New Orleans, for Jules J. Milan, et al. defendants-appellees.
    Before BOUTALL, CHEHARDY and BOWES, JJ.
   BOUTALL, Judge.

This case arises from an incident in which a man was killed, either by being stabbed and shot or by being run over by a car, allegedly by three patrons of a lounge who plotted the killing while on the premises.

Abdon Williams (Williams), the decedent, was survived by two minor children, Charles J. Williams and Tamika Williams. Suit was filed by Charles Williams, Abdon Williams’ father, who was replaced as plaintiff by Alysia G. Trafficano, mother of the children, individually and in her capacity of administrator of the children’s estates, against Michael Savoie, owner of the automobile which injured Williams, State Farm Insurance Company, Savoie’s liability insurer; John M. Sawatis and Benjamin T. Dorsey, who allegedly assisted in the killing; and Jules Milan, individually and d/b/a Casablanca Lounge, Jules J. Lounges, Inc. (all to be referred to hereafter as “Milan”) and National Union Fire Insurance Company (National), Milan’s liability insurer.

Milan and National, the only defendants involved in this appeal, filed a peremptory exception of no cause of action. The court granted the exception and dismissed the plaintiffs’ claim against those parties on grounds that “the harm complained of is not one in which these defendants were obligated to protect the plaintiff’s decedent against.” The plaintiffs have appealed dismissal of their suit.

The petition was amended three times and alleges in pertinent part:

“8(A)
“Jules Milan, d/b/a The Casablanca Lounge, permitted the defendants, Michael Savoie, John M. Sawatis, and Benjamin E. Dorsey, to use the premises of the Casablanca Lounge to plan the intentional killing of Abdon F. Williams. Specifically, persons employed by Jules Milan and the Casablanca Lounge overheard the heretofore named defendants planning such killing and took no steps whatever to safeguard the life of Abdon F. Williams and/or call the authorities to prevent the death or injury of Abdon F. Williams once it was apparent that the aforenamed defendants were planning such act. Jules Milan and The Casablanca Lounge, through its employees had a duty to take some steps to prevent said killing once they were put on notice that Michael Savoie, John Sawatis and Benjamin T. Dorsey were planning same that evening.

The only issue before this court is whether or not the judge erroneously granted the peremptory exception. La.C. C.P. article 931 provides, in pertinent part:

“No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.”

We must consider only the petition as amended and accept as true all well-pleaded allegations. Wheelahan v. State, Etc., 376 So.2d 576 (La.App. 4th Cir.1979). No documents were annexed to the petition.

Although the appellants’ brief indicates that the decedent had been in the bar and was killed while going to his car in the parking lot, we must disregard this information and evaluate the facts as supplied by the petition. The petition fails to allege that Williams was a patron of the bar or that he was killed on the premises.

The appellants argue that Milan owed Williams a duty as a landowner and cites the analysis of the duty-risk approach found in Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La.1976) and quoted later in Davis v. Moreau, 381 So.2d 1297 (La.App. 4th Cir.1980). The court in Davis explained, at 1299:

“... The proper test to be applied is ‘whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others.’ In its further consideration of the duty owed by the landowner under the duty-risk approach, the court further stated at p. 410:
‘In making this determination, the following inquiries must be made: (1) What, if any, duty was owed by the landowner to the plaintiff? (2) Was there a breach of this duty? (3) Was the risk, and harm caused, within the scope of protection afforded by the duty breached?’ ”

As the petition fails to allege a relationship between Milan and Abdon, there is no basis for finding a landowner’s duty to safeguard the decedent. Accordingly we agree with the judgment maintaining the exception of no cause of action.

However that judgment also dismissed plaintiffs’ suit. C.C.P. art. 934 permits amendment of the petition when the grounds of the objection may be removed thereby. In Davis, supra, the Court stated the allegedly pertinent facts, noting especially that the landowner had called the police, and concluded that, if proven, there was no breach of duty by the landowner to the victim.

The facts argued to us in this case are quite different and are stated above. These facts, if proven, appear sufficient to bring plaintiffs’ case within the principles set out in Borne v. Bourg, 327 So.2d 607 (La.App. 4th Cir.1976) relative to the duty owed by the operator of a barroom to use reasonable care in the protection of patrons and guests. Plaintiffs are entitled to an opportunity to amend.

Accordingly, we affirm the judgment maintaining the exception of no cause of action, but we set aside that portion ordering dismissal of plaintiffs’ suit against the appellants and instead grant plaintiffs an opportunity to amend the petition within a reasonable time to be fixed by the trial judge under penalty of dismissal thereafter.

Costs of this appeal to be assessed upon final disposition of this case.

AFFIRMED IN PART, AMENDED IN PART.


text:
    Gertrud Eherhardt McDANIEL v. Beach McDANIEL.
    No. 83-CA-422.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.
    Rehearing Denied Dec. 19, 1983.
    Writ Denied Feb. 27, 1984.
    Frank P. Tranchina, Jr., Law Office of Guy W. Olano, Jr., Kenner, for Gertrud Eberhardt McDaniel, plaintiff-appellant.
    A.D. Freeman of Satterlee, Mestayer & Freeman, New Orleans, Don Almerico, Des-trehan, for Beach McDaniel, defendant-ap-pellee.
    Before BOUTALL, CHEHARDY and BOWES, JJ.
   BOUTALL, Judge.

This case concerns a former wife’s action to rescind a community property settlement on the grounds of lesion. The trial court sustained the former husband’s peremptory exception of res judicata and the former wife has appealed. We reverse and remand.

Appellant Gertrud E. McDaniel (hereinafter Mrs. McDaniel) and appellee Beach McDaniel were divorced by Arkansas decree in October 1976. The parties entered into a community property settlement in July of 1977. Mrs. McDaniel, who was working as a paralegal at the time, drew up the settlement from a form in Woodward’s Notarial Manual. In the settlement, Mrs. McDaniel sold to Mr. McDaniel her interest in the community home in consideration of which he transferred to her the ownership of one of the community cars, a 1974 Cadillac. In further consideration it was agreed that Mr. McDaniel would pay Mrs. McDaniel the sum of $48,700 and that she would transfer her ½ interest in the community business, McDaniel Controls, Inc., when that sum was paid in full. Appellant testified in her deposition that appellee was adamant about their not consulting an attorney to handle the settlement. In addition, she testified that the sum which she was to receive had been unilaterally decided by her former husband.

McDaniel Controls, Inc. is a distributorship for pressure gauges which are used in the oil industry. Appellant and appellee started the business in 1971, with Mrs. McDaniel travelling to Germany to negotiate with a firm there which holds patents on the pressure gauges. Mrs. McDaniel also set up the corporate books and performed the bookkeeping and day to day internal management of the business prior to the couple’s separation. She continued to work on the company’s behalf until as late as 1978.

Mrs. McDaniel’s deposition reflects that after the July 1977 settlement was reached, the parties were still not in agreement about the amounts which Mrs. McDaniel had been paid, and whether a part of the sum was remuneration for services to the corporation or was instead to be counted as payment on the community settlement.

Mrs. McDaniel testified in her deposition that she was eager to get the balance of her money from the settlement. On November 17, 1979, Mrs. McDaniel signed an acknowledgment that she had received the total $47,800.00, and thereby conveyed her stock to Mr. McDaniel. The only difference between the terms of this act and the July 1977 act is the substitution of a used automobile for the $5,300.00 remaining due Mrs. McDaniel. Her former husband valued the car at $8,532.00, and she was forced to pay him the difference: some $3200.00.

The controlling issue in this case is whether the November 1979 acknowledgment acts as a compromise within the meaning of La.C.C. art. 1403, thus barring any subsequent action for rescission on the grounds of res judicata. We hold that the November 1979 act is not a compromise within the meaning of art. 1403, which provides:

Art. 1403. Rescission inadmissible after compromise
But, after the partition, or the act operating the same effect, the action of rescission can no longer be admitted against a compromise made to put an end to disputes arising in consequence of the first act, although there should be no suit commenced on the subject.

The July, 1977 agreement was only a partial settlement which bound the parties to a future payment of price and transfer of stock. Our scrutiny of the November 1979 act reveals that it is merely an acknowledgment by Mrs. McDaniel of the payment of the price contemplated in the original settlement, and her conveyance to her former husband of the company stock in accordance with her obligation imposed therein. We find no additional consideration to Mrs. McDaniel for entering into this acknowledgment. See Burns v. Fernandez, 401 So.2d 1033 (La.App. 4th Cir.1981). It is not a compromise after the partition which would bar the action of rescission, but is a part of the partition itself.

While much has been made of appellant’s business acumen both at the trial of the exception and on appeal, it is not pertinent to the issue before us. The law allows a party who has voluntarily entered into a partition to rescind that partition on the grounds of lesion beyond Vi if the challenging party has not, prior to suit, entered into a compromise of the existing disputes. La.C.C. arts. 1861,1403. In this case, appellant has made no compromise agreement which bars her right to bring this rescission action.

We hold only that the exception of res judicata was improperly sustained in this case. We express no opinion on the merits or the other issues raised in argument.

Accordingly, we reverse the judgment appealed and overrule the exception of res judicata, and we remand for further proceedings.

      . See Joy v. Joy, 379 So.2d 816 (La.App. 4th Cir. 1980).


author: DUFRESNE, Judge.

text:
    Richard ANGELICO v. Harry LEE.
    No. 83-CA-360.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.
    Monroe & Lemann, Ben R. Slater, Terrence Knister, Stephen B. Lemann, New Orleans, for plaintiff-appellant.
    Joseph J. Lepow, Metairie, for defendant-appellee.
    Before CURRAULT, GRISBAUM and DUFRESNE, JJ.
   DUFRESNE, Judge.

This is an appeal by Richard Angelico, plaintiff-appellant, from a judgment dismissing his petition for a writ of mandamus to compel Harry Lee, Sheriff of Jefferson Parish and defendant-appellee, to make accessible to him certain documents for copying, pursuant to the Public Records Act, La.R.S. 44:1 et seq. Because we agree with the trial court that the documents sought to be copied are exempted by La.R.S. 44:3 A (3) from operation of the Public Records Act in that they relate to the internal security of the sheriff’s department, we affirm.

The pertinent facts of this case are as follows. On November 1, 1982, Lee received a request from Angelico to view and copy all employment records of two former reserve officers of the Jefferson Parish Sheriffs Department. Lee dutifully made these records available, but refused to permit Angelico to copy the personal identification folders and badges of the officers.

Angelico thereupon sought a Writ of Mandamus to compel Lee to permit copying of these articles. During trial of the matter, Lee agreed to allow Angelico to copy the badges; that issue was thus rendered moot, and no final judgment was rendered on that question. As to the identification folders, Lee testified that the purpose of these documents is to identify officers to one another and to the public. On the basis of this testimony, the trial court concluded that the folders are exempt from the Public Records Act by La.R.S. 44:3 A (3) because they relate to the internal security of the sheriffs department. His oral reason for this conclusion was that unrestricted copying of the folders would abet potential counterfeiters of such documents.

Angelico now brings this appeal alleging, first, that Lee has refused to comply with his agreement made at trial to permit copying of the badges, and second, that the trial court erred in concluding that the identification folders relate to internal security.

As to the badges, since no final judgment was rendered on that issue, this court is without authority to render a decision thereon. See LSA. C.C.P. Art. 2083, which provides that only final judgments or interlocutory judgments which cause irreparable injury are appealable. This issue was not ruled on by the trial court, since it considered the issue moot and cannot be considered on appeal.

In regard to the identification folders, Angelico’s argument is that because one admitted purpose of the folders is to identify officers to the public, these documents are regularly exposed to public view, and therefore a copy of such a document would pose no threat to the security of the sheriff’s office, which does not already exist.

While there is admittedly some force to this argument, we nonetheless reject it because we perceive a relevant distinction between simply seeing an officer’s identification, and being allowed to copy it. Although it is conceivable that someone might be able to produce such a document from memory, we, like the trial judge, find that the security of the sheriff’s department would be significantly threatened by allowing free access to exact copies of documents used by police officers to identify themselves to each other and to the public.

We, of course, do not suggest that the plaintiff here is motivated by any criminal intent. We point out, however, that as La.R.S. 44:32 A prohibits a custodian from making any inquiry of a person seeking to copy public records, to rule' in plaintiff’s favor here would mean those so motivated could obtain copies of these folders by simply making a request.

Both parties are also seeking to be awarded attorney fees. We do not find, however, that the trial judge committed error in refusing to award such fees to either party, La.R.S. 44:35 D and E.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Joseph WILSON.
    No. 83-KA-393.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.
    Martha E. Sassone, Gretna, for defendant-appellant.
    John M. Mamoulides, Dist. Atty., Philip Boudousque, Asst. Dist. Atty., Andrea M. Price, Asst. Dist. Atty., Research & Appeals, Gretna, William Credo, III, Asst. Dist. Atty., Research and Appeals, Gretna, for plaintiff-appellee.
    Before CURRAULT, GRISBAUM and DUFRESNE, JJ.
   DUFRESNE, Judge.

Joseph Wilson was charged by Bill of Indictment with violation of La.R.S. 14:30 (first degree murder) which allegedly occurred on September 17,1978. On March 7, 1979, a jury found the defendant guilty of first degree murder and recommended a sentence of life imprisonment be imposed. This conviction was overturned by the Supreme Court in a matter entitled State v. Wilson, 404 So.2d 968 (La.1981).

The second trial was commenced on July 21,1982. During the trial, pursuant to plea negotiations with the state, Wilson withdrew his former plea of not guilty and entered a plea of guilty to manslaughter. The state advised Wilson that he would be billed as a second offender pursuant to La. R.S. 15:529.1, because of a prior conviction for illegal use of a weapon (La.R.S. 14:94). The trial judge informed the defendant of the basis for the multiple offender bill and of his Boykin rights for the manslaughter plea. The defendant acknowledged the pri- or conviction. As per the plea bargain agreement at that time the trial judge imposed a sentence of twenty-one (21) years, vacated that sentence and as a result of the defendant’s multiple offender status, imposed a sentence of thirty-seven (37) years at hard labor with credit for time served from September 17, 1978 to the date of transfer.

A motion for appeal was filed pro-se. The defendant was then appointed appellate counsel.

ASSIGNMENT OF ERROR

The trial court committed reversible error in sentencing the defendant to a term of thirty-seven years at hard labor, which sentence is excessive.

The defense maintains that the sentence imposed on the defendant violated his constitutional right to be free from cruel and unusual punishment. The thirty-seven years imposed on the defendant is excessive in that the trial court failed to follow the dictates of La.C.Cr.P. Art. 894.1. The defense contends that as the trial court made no attempt to state the basis and considerations taken into account in imposing sentence on the defendant, this sentence should be modified.

The record reflects that the defendant had been tried and convicted of the charge of first degree murder, however, this was overturned by the Supreme Court. During the second trial, the defendant changed his plea of not guilty and on July 21, 1982, entered into a plea bargain with the state which was approved by the trial court. The plea bargain was comprised of the defendant’s plea of guilty to manslaughter in exchange for a sentence of twenty-one (21) years. This sentence was then to be vacated as the state intended to file a Bill of Information charging the defendant as a multiple offender under R.S. 15:529.1. The defendant acknowledged the correctness of the bill and was sentenced to a term of thirty-seven (87) years at hard labor with credit for time served.

At all the stages of this proceeding, the defendant was made fully aware of the consequences of his plea and signed his Acknowledgment of Constitutional Rights and Waiver of rights on entry of a plea of guilty. Attached to this document was a handwritten codicil stating that the total sentence would be thirty-seven (37) years. Although this attachment was neither signed nor initialed, the defendant was fully apprised in open court that his sentencing range under the multiple billing procedure would be a minimum of twenty-eight (28) and a maximum of forty-two (42) years, but that his sentence would be thirty-seven (37) years.

State v. Curry, 400 So.2d 614, 616 (La.1981) held that as the sentence imposed was the result of an understood and agreed to plea bargain, “there was no necessity of listing enumerated reasons and [we believe] that the defendant cannot complain of excessive length, [citations omitted].”

This approach has been more recently upheld in State v. Edwards, 434 So.2d 395 (La.1983) which held that “[i]n several recent cases, we have held that a defendant who accepts a sentence under a plea bargain may not later assert that the sentence is excessive or that the trial judge failed to comply adequately with the sentencing guidelines of La.C.Cr.P. Art. 894.1 in imposing sentence, [citations omitted].”

Although this reasoning was discarded by the First Circuit in State v. Edwards, 432 So.2d 318 (La.App. 1st Cir., 1983), a common sense approach to the issue would reveal that the underlying basis for plea bargaining is to arrive at a just conclusion and sentence within the realm of judicial economy. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978) held that “[p]lea bargaining flows from ‘the mutuality of advantage’ to defendants and prosecutors, each with his reasons for wanting to avoid trial, [citation omitted].”

The defendant had been fully advised of his rights and his plea of guilty was knowingly and voluntarily made as per the dictates of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The record reflects that the trial court determined that the defendant had sufficient mental capacity to make a decision of such magnitude. The court then delineated the possible sentencing choices available to him in the circumstances. The defendant’s various constitutional rights which would be waived as a result of his plea of guilty were then individually outlined by the court. Finally, the court was satisfied that the plea was voluntary in nature.

As there is a certain give and take in any bargaining arrangement, the defendant agreed to the sentence of thirty-seven (37) years. It is not so excessive in view of the possible penalties associated with a conviction for the crime charged (first degree murder) that it would appear on its face to be cruel and unusual punishment, bearing no relation to either the crime or the offender.

The sentence as imposed by the trial court was a result of plea bargaining and this fact must be considered in any determination, whether a sentence is excessive or not.

Under the circumstances of this case, the trial judge did not abuse his discretion in sentencing defendant thirty-seven (37) years at hard labor. Hence, we do not find defendant’s sentence excessive.

For the reasons assigned, defendant’s sentence is affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Harold G. SONNIER.
    No. 83-KA-409.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.
    Joseph L. Montgomery, Staff Appeals Counsel, 24th Judicial Dist., Indigent Defender Bd., Gretna, for defendant-appellant.
    John M. Mamoulides, Dist. Atty., David Loeb, Asst. Dist. Atty., 24th Judicial Dist., Parish of Jefferson, William C. Credo, III, Andrea M. Price, Asst. Dist. Attys., Research & Appeals, Gretna, for plaintiff-ap-pellee.
    Before BOWES, KLIEBERT and DU-FRESNE, JJ.
   DUFRESNE, Judge.

Defendant, Harold Sonnier, was charged in a Bill of Information with committing an aggravated battery upon Ralph H. Jones in violation of R.S. 14:34. The defendant waived his right to a jury trial and a bench trial was held on December 17, 1982. The defendant was found guilty of second degree battery. After reviewing the pre-sen-tence investigation report, the trial judge sentenced him to serve five (5) years at hard labor with credit for time served.

From this conviction and sentence the defendant has appealed and contends the trial judge erred in imposing an excessive sentence.

On September 24, 1982, during the evening hours, the victim, Ralph Hamilton Jones, was in Josephine’s Bar, located in Kenner, Louisiana. Mr. Jones was approached by the defendant, Harold G. Son-nier, known at that time only as NuNu, who requested that Mr. Jones buy him a beer as it had been a payday. Both men are employed by the Sewerage and Drainage Department in garbage disposal. On a previous occasion, the victim had bought the defendant a beer, but on that night he decided not to do so.

The victim left the bar around 9:30 or 10:00 P.M., and began to walk to his house which was several doors away. As he passed The Sweet Shop, which was right next to his house, Harold Sonnier stepped out of the darkness and struck him on the head. Mr. Jones fell to the ground and as he tried to rise, the defendant said, “Nigger, .. you ain’t going nowhere; I’m going to kill you.” Sonnier again struck Jones on the head. Jones, at trial, was unable to say if Sonnier was armed with a dangerous weapon at the attack on him. Jones lay unconscious on the sidewalk for about an hour and forty-five minutes and then managed to get to his mother’s residence several blocks away. He stayed there for three days before seeking professional medical treatment. It was at this time that Jones reported the incident to the police.

The defendant was arrested on September 27, 1982, and a Bill of Information was filed on October 1, 1982.

Initially, it is observed from a review of the record that no assignments of error were lodged in this court. Rather, defense counsel incorporated the assigned error into the brief.

La.C.Cr.P. Art. 844, provides:

The party appealing shall designate, in writing, those errors which are to be urged on appeal. This assignment of errors shall be filed within the time specified by the trial judge, but not later than five days prior to the return date. A copy of the assignment of errors shall be furnished to the trial judge by the appealing party on the date such errors are filed.
The trial judge may submit such per curiam comments as he desires.

La.C.Cr.P. Art. 920, provides, “[t]he following matters and no others shall be considered on appeal:

(1) An error designated in the assignment of errors; and
(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”

Since the defendant did not submit the issue by formal assignment of error, case-law indicates the matter is not properly before the court for review. See State v. Spell, 399 So.2d 551 (La.1981) and State v. Spears, 350 So.2d 603 (La.1977).

Accordingly, pursuant to article 920, the excessiveness issue need only be considered if it falls into the category of “error patent”.

While a contemporaneous objection to a sentence at the trial level has been deemed unnecessary to preserve the issue of excessiveness on appeal, the assignment of error requirement remains viable.

The Louisiana Supreme Court in State v. Cox, 369 So.2d 118, 121, held “[w]ith the exception of death penalty cases (which this court must independently review in each instance for excessiveness, La.C.Cr.P. Art. 905.9), individual excessiveness of sentence may be considered on appeal only where presented by assignment of error, La.C. Cr.P. Art. 920(1), formally made as required by La.C.Cr.P. Art. 844.”

Considered, nonetheless, the argument appears to have very little merit.

The trial judge, in imposing the maximum sentence for the offense, carefully considered both aggravating and mitigating circumstances in compliance with La.C. Cr.P. Art. 894.1.

In mitigation he noted that the defendant had both physical and emotional impairments which could have contributed to the commission of the offense. The judge also observed that the defendant contributed to the support of two minor children and his mother.

•However, in aggravation, the judge carefully considered the aspects of the present case and the defendant’s prior criminal history, including a conviction for manslaughter for which the defendant served time in the Louisiana State Penitentiary, a conviction for carrying a concealed weapon, four pending cases and seven arrests. He concluded that neither incarceration nor probation had acted as a deterrent on the defendant’s behavior. In view of previous offenses involving weapons or injury to other persons, he found the defendant was dangerous and likely to commit other offenses. Further, because of the severity of the victim’s injuries in the present case and the lack of any provocation, the judge was of the opinion that any lesser sentence would deprecate the seriousness of the offense.

In State v. Dunns, 404 So.2d 1235, 1236 (La.1981), the Louisiana Supreme Court quoting State v. Guiden, 399 So.2d 194, 200 (La.1981), emphasized that

‘[W]hile the trial judge need not articulate every aggravating and mitigating circumstance presented in La.C.Cr.P. Art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant.’ The record left of sentencing should therefor indicate that the trial court considered not only the seriousness of the offense and the past record of defendant, but also defendant’s personal history (age, work record, mental, emotional and physical health) and his ‘... potential for rehabilitation.’ [citations omitted].

In this ease, the trial judge has given more than a verbatim recitation of the language of the statute. He has cited the factual basis for his conclusion that the maximum sentence permitted by statute was appropriate in this case, despite the existence of some mitigating circumstances.

As noted in State v. Jones, 381 So.2d 416 at 418-419, (La.1980), “a sentence should not be set aside as excessive in the absence of a clear abuse of the wide discretion accorded a trial judge in the imposition of sentences within statutory limits. State v. Spencer, 374 So.2d 1195 (La.1979); State v. Sepulvado, supra, [367 So.2d 762 (La.1979)].”

We have further reviewed the entire record for errors patent. Finding none, we affirm the defendant’s conviction and sentence.

AFFIRMED.


author: GRISBAUM, Judge.

text:
    Paul L. MONDY v. ROBIN TOWING CORPORATION.
    No. 83-CA-358.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.
    Rehearing Denied Dec. 19, 1983.

      Roger I. Dallam, Gretna, for plaintiff-appellant.
    Joseph W. Nelkin, Warren J. Pickle, New Orleans, for defendant-appellee.
    Before BOUTALL, GAUDIN and GRIS-BAUM, JJ.
   GRISBAUM, Judge.

A former employee sued his employer for unpaid wages due him when he quit his employment, as well as for penalty wages and attorneys fees. La.R.S. 23:631, 632. The trial court awarded the employee the sum of $320 for unpaid wages but rejected his demand for penalty wages and attorneys fees. The employee appeals the trial court’s denial of penalty wages and attorneys fees. The employer does not appeal the trial court’s award for past due wages, and, in its answer to this appeal, concedes the employee is entitled to attorneys fees. We affirm in part and amend in part.

Paul Mondy was hired by defendant Robin Towing to perform duties of a first mate on one of its tug boats. He was initially employed on a per day basis at $70 per day. His first day of work, according to Mondy, was October 28, 1976. In early 1977, Mr. Mondy was promoted to vessel master at a rate pay of $90 per day. Mondy has sued Robin Towing for the following days: October 28, 1976 at $70 per day; November 22, 1976 at $70 per day; January 5, 1977 at $90 per day; January 20, 1977 at $90 per day. Several other days were claimed for past due wages, but Robin Towing sent Mondy a check of $180 for those dates.

Two issues are presented. First, since the wage claim is well-founded, whether the trial court erred in not awarding attorneys fees under La.R.S. 23:632. Secondly, whether there is an equitable defense to the non-payment of past due wages thereby relieving the employer of penalty wages under La.R.S. 23:632.

In addressing the first issue, the jurisprudence states that attorneys fees are mandatory in the event of an employee’s “well founded” suit for unpaid wages. Carriere v. Pee Wee’s Equipment Company, 364 So.2d 555, 556 (La.1978); Sollay v. Sollay Foundation & Drilling, Inc., 389 So.2d 834, 836 (La.App. 3d Cir.1980). Robin Towing, in its answer, concedes the law is clear on this point, and, therefore, has agreed the trial court was incorrect in not awarding attorneys fees. Upon reviewing the record and the briefs, we find an award of $1000 as a reasonable attorney fee.

The following facts are pertinent in determining the second issue. Robin Towing’s pay policy involved payment of a full day’s wages for the first day of work no matter how long the individual worked that day but no payment for the very last day of a so-called “hitch” (the employee’s time upon the vessel). Mondy testified he was not informed prior to his taking the job that he would not be paid for his last day of work on a hitch. The record further reflects that although Mondy was not initially aware of the pay policy of Robin Towing, this policy was explained by Mr. Vincent Robin, vice president of Robin Towing, to Mondy on more than one occasion. During each of these occasions, Mr. Robin’s response was simply that this is the company policy, and after each of these discussions between Mr. Robin and Mondy, Mondy would return to the vessel and commence another hitch. The record further reflects that during these pay periods Mondy did not contest the pay policy. Finally, the record shows Mondy’s initial demand for pay was for the date of March 20, 1977, which was the date that he quit, and no other backpay at that time was requested.

The applicable statutes dealing with an employer’s duty to pay an employee his wages and the penalties relating thereto are described in La.R.S. 23:631 and 23:632. Louisiana Revised Statute 23:631 imposes a duty to pay wages due an employee upon discharge or resignation. It provides in pertinent part:

Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation. ..

When an employer fails or refuses to pay wages, La.R.S. 23:632 provides for penalty wages and attorneys fees. It states:

Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

Jurisprudence indicates La.R.S. 23:632 is a penal statute and must be strictly construed. Penalty wages are not to be absolutely imposed when the facts indicate there is an equitable defense. Magee v. Engineered Mechanical Services, Inc., 415 So.2d 277, 278-279 (La.App. 1st Cir.1982). The Magee court further notes there are no statutory provisions on what constitutes an equitable defense so we must look to the jurisprudence and to the guidelines that have emerged from the wide variety of factual situations. Magee, 415 So.2d 277, 279. As stated in Pace v. Parker Drilling Co. & Subsidiaries, basically when there is a good faith question of whether or not the employer actually owes past due wages or whether there may be an offset to wages owed, resistance to payment will not trigger penalty wages. Pace v. Parker Drilling Co. & Subsidiaries, 382 So.2d 988, 991 (La. App. 1st Cir.1980). According to Magee, courts are generally willing to find an equitable defense when there is a good faith dispute as to whether wages are actually owed. Magee, supra. This situation may arise when, for instance, there is a question as to the number of hours worked.

The facts before us demonstrate Robin Towing calculated the pay due each employee by reviewing the “ship log sheets.” The record does reflect there was some confusion with those log sheets, but, nonetheless, Robin Towing calculated an employee’s pay from these sheets in conjunction with their pay policy. This court is further convinced that Mondy was well aware of that policy and continued to work with Robin Towing having an understanding of that policy. Therefore, this court finds, as the trial court did, there was a good faith dispute as to whether wages were actually owed, and, therefore, .penalty wages are not owed under La.R.S. 23:632.

For the reasons assigned, the judgment of the trial court is amended to include an award of attorneys fees in the sum of $1000, and, as amended, is affirmed at appellant’s cost.

AMENDED IN PART AND AFFIRMED IN PART.