text:
    Cynthia I. MORRIS v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. CA 83/1390.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      John Dale Powers, Baton Rouge, for plaintiff-appellee.
    Samuel R. Cicero, Baton Rouge, for defendant-appellant.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON, JJ.

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

   GROVER L. COVINGTON, Chief Judge.

This is an appeal by the State of Louisiana, through the Department of Transportation and Development (DOTD), defendant, from a judgment in favor of plaintiff, Cynthia I. Morris, in the amount of $34,-232.07, plus interest and costs. The plaintiff has answered the appeal, seeking an increase in the award. We affirm as amended.

The suit was brought by the plaintiff for injuries sustained in a one-car accident allegedly caused by a defective highway of the State.

The uncontroverted facts, as recited by the trial judge, are as follows:

At approximately 2:00 a.m. on July 18, 1982, a foggy night, plaintiff was driving a 1977 Toyota automobile south on La. Highway 1032 in Livingston Parish. As she approached a point approximately .7 (Vio) of a mile south of La. Highway 1034, the road curved in a southeasterly direction. While negotiating the curve, she hit a pothole in her lane of traffic causing the vehicle to veer onto the right shoulder (which was four to six inches below the traveled portion of the road). As plaintiff attempted to steer back onto the roadway, her wheels hit the drop-off, causing her to lose control of the vehicle, which went into a ditch on the right side of the road when she tried to regain entry onto the roadway.

Plaintiff was traveling between 35-40 miles per hour as she approached the curve; however, due to the fog, she was unable to see the sign indicating a curve. She had never driven on the highway before. There were no visible signs to alert her to the drop-off.

R.A. McMorris, Livingston Parish Superintendent for DOTD, testified that roads were inspected once a week, and that he was unaware of any potholes or drop-offs in the highway. From McMorris’ testimony, it appears that DOTD did not make an inspection of the area after the accident to determine whether a pothole or drop-off existed. Nevertheless, a “low shoulder” sign was erected on December 20, 1982, to warn southbound motorists of the condition of the shoulder.

The facts show that Ms. Morris inadvertently allowed her car to leave the traveled-portion of the roadway onto a shoulder, which had a four to six inch drop-off, and that she instinctively swerved immediately back onto the roadway in an attempt to reenter the traveled-portion of the roadway. The facts also establish that Ms. Morris was unfamiliar with the shoulder defect and had no reasonable opportunity to avoid straying off the roadway at the point of the sharp drop-off.

In LeBlanc v. State, 419 So.2d 853, 854 (La.1982), our Supreme Court considered whether the motorist’s inattention in allowing her vehicle to stray from the roadway onto a low shoulder, followed by her instinctive swerve back onto the roadway precluded her recovery of damages from the State. The Court held that it did not, stating:

The Department’s duty to maintain highway shoulders is imposed to protect a motorist from the risk of injury produced by a combination of the motorist’s inadvertent encounter with an unexpected, sharp dropoff from the roadway and her consequent instinctive oversteering of her vehicle.
The Court then held:
We are of the opinion that the Department was under a duty to protect this plaintiff from the risk which gave rise to her injuries. One purpose of a highway shoulder is to provide a margin of error for the safety of motorists. A highway without a shoulder or one which never permits safe deviation from the main traffic lanes would be intolerably unsafe. Of course, the duty imposed on the Department is tempered by common sense. As this court held in Sinitiere, [391 So.2d 821 (La.1980) ], it does not protect a motorist against a shoulder defect or obstruction of which he had knowledge and a reasonable opportunity to avoid. But in the absence of such knowledge and opportunity, the motorist is entitled to assume that a highway shoulder is maintained in a reasonably safe condition and that his inadvertent deviation onto it will not lead to disastrous consequences. [419 So.2d 856]

On the question of loss of wages, we find that the trial court erred in denying plaintiff’s claim in this respect. The plaintiff testified that at the time of the accident, she was a bartender earning a salary of $4.50 per hour. She has been able to work only five weeks since the accident. The record reflects that the plaintiff tried on two occasions to go back to work, but was unable to work due to pain and physical limitations which prevented her from working at her job, although bartender jobs were available if she had been able to work. The plaintiff’s testimony regarding her claim for lost wages is uncontroverted. We find that the record established that based on a 40-hour week at the rate of $4.50 per hour, the plaintiff is entitled to recover the sum of $40,000 for lost wages.

Plaintiff also asserts on appeal that the trial court failed to grant a sufficient award for general damages. We agree, and increase the award for general damages to the sum of $125,000.

On July 30, 1982, plaintiff, a 27-year old woman, sought medical attention from Dr. Andrew Kucharchuk, orthopedic surgeon. Plaintiff advised Dr. Kucharchuk that since the accident of July 18, 1982, she was experiencing numbness and tingling in the left hand, pain in the neck and back, headaches and soreness at the breastbone. Dr. Kucharchuk found some motion restriction in the neck, with marked paracervical muscle spasms, diminution of sensation in the bicep muscles and in the hand, some bruising and paraspinous muscle spasms in the back, and tenderness at the breast bone. He assessed her as having a 20% permanent disability.

About a month after the accident, Dr. Owen P. McCutchen, a rehabilitative physician, performed a nerve conduction test on plaintiffs upper extremities, and found that she was suffering from cervical nerve root irritation. Approximately two months after the accident, plaintiff was referred to Dr. George Lohmann, Jr., a neurological surgeon, because of her complaint of constant neck pain. She was hospitalized by Dr. Lohmann who performed a myelogram which evidenced a slight widening and incomplete filling of the nerve root sheaths at the C6-C7 disc space. Dr. Lohmann performed an anterial cervical discectomy and cervical disc fusion. Plaintiff was discharged from the hospital after a 10-day stay.

Plaintiff testified concerning the pain and injuries sustained as a result of the accident and the restrictions placed on her physical activity which resulted from her injuries.

In Williams v. City of New Orleans, 433 So.2d 1129 (La.App. 4th Cir.1983), plaintiff, a woman of unspecified age, was determined to have a herniated disc requiring a cervical disc fusion. The evidence presented indicated that the plaintiff was unable to remain employed because of pain and discomfort, and that she was slightly limited in her neck movement, with some numbness in her fingers. She was awarded $125,000 in general damages. On review, the appeal court affirmed the award.

In Johnson v. Dufrene, 433 So.2d 1109 (La.App. 4th Cir.1983), plaintiff was 27 years old at the time of the accident. As a result of the accident, plaintiff suffered severe trauma to the cervical region and rupture of the intervertebral disc at C4-C5. Tests also revealed a denervation at the C5 level. After the accident, the plaintiff experienced pain in the neck, shoulder and arm. Evidence in the record indicated that plaintiff would suffer a 40-50% permanent functional disability. The trial court awarded damages in the amount of $659,-774. Of that amount $359,774 represented the loss of future wages, with $150,000 for permanent disability and $150,000 for pain and suffering. The appellate court upheld the award.

In Villavaso v. State Farm Mutual Automobile Insurance Company, 424 So.2d 536 (La.App. 4th Cir.1982), the court upheld an award of $250,000 to a 29-year old woman who suffered 30% anatomical disability and a permanent 50% functional disability as a result of a neck injury. The appellate court held that the award was not an abuse of discretion.

In Sutton v. Central Gulf Lines, Inc., 433 So.2d 888 (La.App. 5th Cir.1983), a plaintiff of unspecified age (although the decision does reflect that the plaintiff only had an 11 year work-life expectancy) received injuries which resulted in a collapse of a disc space in plaintiffs back. The plaintiff had to undergo a lumbar laminec-tomy and disectomy, and the medical evidence indicated that a fusion would be necessary. The appellate court upheld an award of $250,000 as general damages.

In light of the above cited cases, it is clear that the trial court’s award was so low as to be constitute an abuse of discretion; hence we increase the award for general damages to $125,000, which we find to be the lowest limit that the trial court could have awarded for the extensive and painful injuries sustained by the plaintiff.

For the above reasons, we amend the trial court’s judgment to reflect the above increased amounts, and as amended the judgment is affirmed. Costs in the amount of $457.07 are taxed against the defendant.

AMENDED, AND AS AMENDED AFFIRMED.


source: Caselaw Access Project

author: JOHN S. COVINGTON, Judge Pro Tem-pore:

license: Public Domain

text:
    Edward DAIGRE (Sr.), Veola Nepdeaux Daigre wife of Edward Daigre (Sr.), Doris Gros Richoux, Appearing Individually and for the use and benefit of her minor child Leroy J. Richoux, Jr. v. DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT (Formerly Highway Department), the Travelers Insurance Company Allstate Insurance Company Clinton Lee.
    No. 83 CA 1392.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      Harry Burglass, Phyliss Coci, Metairie, for plaintiffs.
    Samuel R. Cicero, Baton Rouge, for defendants.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON , JJ.

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

   JOHN S. COVINGTON, Judge Pro Tem-pore:

This suit for wrongful death, instituted by the survivors of Leroy Richoux, Sr. and Edward A. Daigre, Jr., resulted in a judgment in favor of Doris Richoux, widow of Richoux, Sr., and Leroy Richoux, Jr., a minor and in favor of Veola Nepdeaux Daigre and Edward A. Daigre, Sr., parents of the minor Edward A. Daigre, Jr. Defendant Department of Transportation and Development (DOTD) suspensively appealed the September 1, 1983 judgment.

On October 14, 1979, a clear day, at about 10:30 a.m. Leroy Richoux, Sr., was driving on Louisiana Highway 450, in Washington Parish, headed in a southerly direction. Mr. Richoux stopped at the “T” intersection of La. 450 and 440, the latter being the favored thoroughfare, in response to a stop sign. After looking both left and right on La. 440 he attempted to execute a left turn but he was struck broadside by a car being driven by Bennie Lee in a westerly direction on La. 440. The posted speed limit on La. 440 at that point was 55 m.p.h. The Lee vehicle struck the Richoux vehicle on the driver’s side; the Richoux car was spun around by the impact and demolished. Leroy Richoux, Sr., 50 years old, and Edward A. Daigre, Jr., 15 years old, Doris Richoux, age not specified, and Leroy Richoux, Jr., 14 years old, were the only occupants of the Richoux car. The Lee vehicle was occupied by Bennie Lee and another person. The Daigre child, sitting on the back seat on the driver’s side, died instantly on impact. Leroy Richoux, Sr. illustrated signs of life for at least twenty to thirty minutes after the collision and died enroute to the hospital in Frank-linton. Doris Richoux, who was seated on the front passenger side, suffered contusions and hematomas of the breasts, lower chest and left shoulder. She was discharged by her physician on January 7, 1980. Young Richoux, who was seated on the back seat on the right side, sustained a fractured distal left clavical and contusions of the right knee. Both Doris Richoux and Leroy Richoux, Jr. completely recovered without physical complications from their injuries.

Named as defendants, along with DOTD, were Clinton “Bennie” Lee, his insurer, The Travelers Insurance Company, and Allstate Insurance Company, Leroy Richoux, Sr.’s insurer. Plaintiffs had settled their claims against all defendants except DOTD prior to trial, which was held on June 30, 1983.

ISSUES

The issues presented by this appeal are (1) whether the accident was caused by the negligence of DOTD and (2) whether the trial judge committed manifest error in his factual conclusions.

NEGLIGENCE OF DOTD

The Trial Judge heard live testimony from two civil engineers regarding the technical aspects of road design in general and the fatal intersection in particular. In addition, he heard the testimony of two Louisiana State Police Officers who investigated the accident, a resident of the area who was very knowledgeable about the area and worked at a store from which one can see the intersection, and all four plaintiffs.

The District Court correctly stated DOTD’s duty to the motoring public to correct hazardous conditions within a reasonable time after it receives actual or constructive notice of their existence and that liability based on negligence attaches to DOTD’s failure to correct if a motorist’s injuries or death was caused by the hazardous condition. The judge relied on Naylor v. Louisiana Department of Public Highways, 423 So.2d 674 (1st Cir.1982) and Sinitier v. Lavergne, 391 So.2d 821 (La.1980) in correctly stating both the duty owed by DOTD and the consequences which flow from a breach of that duty.

On the basis of the evidence, both testimonial and documentary, adduced at the trial, the fact finder held that the cause of the accident was “a breach of duty the defendant (DOTD) owed to reasonably warn motorists of an existing dangerous intersection.” (Reasons for Judgment, p. 4). We agree.

REVIEW OF TRIAL JUDGE’S FACTUAL CONCLUSIONS

DOTD disagrees with the judge’s holding that there was not sufficient evidence to establish negligence by Lee, based upon its assertion that “Lee’s speed was conservatively estimated by the Trooper at 65 mph” at a point on Highway 450 where the posted legal speed in 55 m.p.h., arguing that “the speeding by Lee was at least a contributory factor to the accident” and that his conclusions that “the sole cause of the accident was the highway design” and that neither “driver was at fault” are “simple contrary to the evidence” and “there can be no question that Lee was negligent.”

Concerning the role of appellate courts in the review of factual findings of triers of fact, be it trial judge or jury, this Court, in Naylor, supra, at 680, stated as follows:

“Defendants-appellants assert that the trial judge committed reversible error in factual findings significant to the outcome of the suit. Under Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); and Canter v. Koehring Company, 283 So.2d 716 (La.1973) an appellate court should not disturb a finding of fact unless it is manifestly erroneous or clearly wrong.”

The court summarized the many exhibits offered in evidence and the testimony of the witnesses and made his factual findings.

We have thoroughly reviewed the testimony and exhibits and based on that review we conclude that the findings of fact are supported by the record and for that reason are not clearly wrong.

ADVERSE INFERENCE

Plaintiff-appellees support the court’s findings that neither the driver of the Lee vehicle nor the driver of the Richoux were negligent and assert the applicability of the adverse inference rule because DOTD did not call as a witness Clinton Lee, whom DOTD subpoenaed and was present the day of trial. DOTD’s counsel, at the conclusion of DOTD’s case, stated in response to the judge’s question “why we haven’t had Bennie Lee here to maybe tell us what happened out there that day?” that “I can tell you why. He was here. I subpoenaed him and I turned him loose, but I don’t want to tell you on the record.” (Tr. 208).

The judge agreed with plaintiff’s expert in traffic engineering that the intersectional collision would have happened even if the Lee vehicle had been traveling at the legal speed limit of 55 m.p.h. because it would have taken 2.8 seconds for the Lee vehicle to travel the 230 feet distance from the Highway 450 intersection, when the oncoming vehicle would have reappeared to Mr. Richoux after having been out of sight for 6.4 seconds because of the faulty line of sight and because it would have taken three seconds for the Richoux vehicle at the stop sign to normally accelerate across the center line to make a safe left turn. The court also accepted the expert’s opinion, as he was entitled to (Thibodeaux v. Southeastern Fire Insurance Co., 399 So.2d 704, 706 [La.App. 1st Cir.1981]), that the maximum safe speed limit in the area of the intersection is 40 m.p.h. A vehicle stopped at Highway 450’s intersection with Highway 440 would have adequate time to negotiate a safe left turn if the driver sees a vehicle approaching at 40 m.p.h. from the left on Highway 440 some 230 feet from the intersection. If the Lee vehicle had been traveling toward the intersection at 50 m.p.h. the Richoux vehicle would have had 3.14 seconds to safely make a left turn if Mr. Richoux had seen the Lee vehicle 230 feet from the intersection. (Tr. 228). The speed of the Lee vehicle, in order to establish Richoux as contributorily negligent, would have had to be no more than 50 m.p.h.

Only one person, namely Clinton Lee, was probably able to state for certain the speed he was traveling. DOTD subpoenaed him and he was present to testify but did not because DOTD’s counsel “turned him loose” without explaining why he did it. Under these circumstances we apply the adverse inference rule against DOTD. Liner v. Patrick, 421 So.2d 391 (La.App. 1st Cir.1982); Vidrine v. Sentry Indemnity Co., 341 So.2d 558 (La.App. 3rd Cir.1976).

Costs, in the amount of $1,202.22 are assessed against the appellant, DOTD. R.S. 13:5112(A).

AFFIRMED.


author: ALFORD, Judge.

text:
    Howard L. DALEY v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, OFFICE OF LICENSING AND REGULATION.
    No. CA 83 1395.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    James B. Gardner, Lunn, Irion, Switzer, Johnson & Salley, Shreveport, for appellant.
    Jerry H. Bankston, Dept, of Health and Human Resources, Baton Rouge, for appel-lee.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for Herbert L. Sumrall.
    Before WATKINS, CRAIN and ALFORD, JJ.
   ALFORD, Judge.

Howard L. Daley, appellant, a classified employee of appellee, the Office of Licensing and Regulation in the Louisiana Department of Health and Human Resources (DHHR), appeals an adverse ruling of the Civil Service Commission.

The record indicates that Daley was informed by Mr. B.W. Brown, director of the Office of Licensing and Regulation, in a letter dated December 29, 1982, that he would not receive his salary for a period of six hours — from 10:30 a.m. until 4:30 p.m. —on December 17, 1982. The letter stated that Daley was not present at a staff meeting nor at the office Christmas Luncheon held that date. The letter also indicated that Daley was not seen after 10:30 a.m. that morning.

Daley responded by letter dated January 7, 1983, to Brown. A copy of this letter was sent to the Civil Service Commission. Daley’s two page letter set forth in detail the action he disagreed with and the reasons why. After receiving no response to his January 7, 1983, letter, Daley sent a letter dated January 24, 1983, to the Director of Civil Service. This second letter referred to Daley’s first letter, complaining that he had received no response to the first letter, and thereby requested a hearing before Civil Service.

A public hearing limited to a consideration of Daley’s right to appeal was held before a referee appointed by the Civil Service Commission. The referee found that Daley had no right to appeal, basing his decision on Civil Service Rule 13.11(d), which provides in essence that an appellant’s written notice of appeal must contain a clear and concise statement of the actions complained of and the basis for the appeal. It was the referee’s determination that Daley had made no “clear and concise statement of the basis” for his appeal in the letter of January 13, 1983. The referee decided that Daley’s first letter should not be considered in that determination. The referee further noted that Daley had no basis for an appeal under Rule 13.10. Thereafter, the Civil Service Commission denied Daley’s application for review of the referee’s decision.

It is apparent from the jurisprudence that the overall purpose of Rule 13.-11(d) is to give notice. As this court stated in Shelton v. Southeastern Louisiana University, 431 So.2d 437, 439 (La.App. 1st Cir.1983): “... the function of rule 13.11(d) is two fold: (1) it apprises the appellee and the Commission of the material facts in dispute and therefore establishes the scope of the evidentiary hearing; (2) it enables the Commission to gauge the amount of time needed for the evidentiary hearing by narrowing the issues.” It is obvious that the Commission was fully apprised of the material facts in dispute in this case. The evidence indicates that the Commission had both of Daley’s letters in its records. Daley’s second letter referenced the first letter, and the first letter quite clearly complied with Rule 13.11(d).

We also note that the referee was clearly wrong in its finding that Daley had no basis for appeal under Rule 13.10. Considering both of Daley’s letters, it is apparent to us that Daley stated a ground for appeal under at least section (b) of Rule 13.10. This section provides that “An appeal may be made to this Commission by ... (b) Any person in the Classified Service who, having acquired permanent tenure, alleges that he has been demoted, dismissed, discriminated against, or subjected to any disciplinary action contrary to any provision of the Article or of the Rules of this Commission.” Daley’s allegations are clearly encompassed by Rule 13.10(b).

Appeals are favored in the law. See, Smith v. Board of Com’rs of Port of New Orleans, 262 La. 96, 262 So.2d 383 (1972). It is our opinion that Daley was improperly denied a hearing on the merits. Therefore, for the reasons assigned, the decision of the Civil Service Commission is reversed and remanded for proceedings consistent with this opinion and the law. Costs of this appeal are taxed to appellee in the amount of $50.00.

REVERSED AND REMANDED.

      . 13.11 Request for Appeal.
      A notice of appeal must
      (d) Contain a clear and concise statement of the actions complained against and a clear and concise statement of the basis of the appeal.

        Where discrimination is alleged to be a basis for appeal, specific facts supporting the conclusion of discrimination must be alleged in detail. The specific facts required will vary depending on the nature of the appeal; however, the facts must be alleged insufficient detail to enable the agency to prepare a defense. A conclusion of discrimination is not sufficient. The types of facts which must be included are:
      1. the date, time and place the discriminatory action took place;
      2. the name of the person or agency alleged to have taken the discriminatory action;
      3. a description of how appellant’s action, conduct or performance was the same as that of other persons who were treated differently;
      4. the names of other persons treated differently and the dates the different treatment occurred;
      5. a description of events, including the dates and circumstances thereof, which led appellant to believe that the adverse decision was based on his religious or political beliefs, sex, race, or any other non-merit factor.


text:
    Lawrence FLEMING v. AETNA CASUALTY AND SURETY COMPANY.
    No. CA 83 1400.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Writ Denied Feb. 15, 1985.

      Arthur Cobb, Baton Rouge, for plaintiff-appellant.
    Albert D. Clary, Baton Rouge, for defendant-appellee.
    Before WATKINS, CRAIN and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal of a judgment against Lawrence Fleming, plaintiff, and in favor of Aetna Casualty and Surety Company (Aetna), defendant. Fleming was shot by Laura Williams in her home and brought suit directly against her homeowners insurer, Aetna. Aetna denied coverage based on a policy exclusion which provided that there would be no coverage for “bodily injury ... which is either expected or intended from the standpoint of the insured.” The trial court found that Ms. Williams intentionally inflicted the plaintiff’s injury and, accordingly, there was no coverage. We agree.

In Pique v. Saia, 450 So.2d 654 (La.1984), the Louisiana Supreme Court construed a policy clause identical to the one in this case, finding that it excluded coverage only for intentional injuries. The court went on to say that:

An injury is intentional, i.e., the product of an intentional act, only when the person who acts either consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to the result. Bazley v. Tortorich, 397 So.2d 475 (La.1981); W. Prosser, Law of Torts § 8 (4th ed. 1971); Restatement (Second) of Torts, American Law Institute § 8A (1965).
Cf. Jacobsen v. Southeast Distributors, Inc., 413 So.2d 995 (La.App. 4th Cir.1982); Eitmann v. West, 411 So.2d 1127 (La.App. 4th Cir.1982).

Pique, supra at 655.

The evidence adduced at trial indicates that plaintiff sometimes resided with Ms. Williams. On the night of the incident, plaintiff and Ms. Williams were involved in a quarrel. Ms. Williams’ 15-year-old son tried to assist his mother and had a knife in his hand. Plaintiff was struggling with the son when Ms. Williams fired two shots from a .22 caliber revolver, both of which hit plaintiff.

Although there was testimony by Ms. Williams that she did not mean to injure plaintiff, Ms. Williams did admit on cross examination that she was aiming in plaintiff’s general direction when she shot him. The record indicates that Ms. Williams was approximately six to ten feet from plaintiff and was trying to protect her minor son at the time of the shooting.

Having heard the testimony of the various witnesses, the trial court made a credibility determination and concluded that the injury was intentionally inflicted. The trier of fact, actually hearing and observing the witnesses give live testimony, is in a better position to evaluate credibility than a reviewing court on the intermediate level, which at best can only study the written words of a cold record. Kikendall v. American Progressive Ins. Co., 457 So.2d 53 (La.App. 1st Cir.1984). After a careful review and evaluation of the record, we are convinced that the trial court was not clearly wrong in its factual determination that Ms. Williams intentionally injured plaintiff. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are taxed against plaintiff-appellant.

AFFIRMED.


author: WATKINS, Judge.

text:
    Richard LEWIS v. DEPARTMENT OF EMPLOYMENT SECURITY, State of Louisiana & American Glass Distributors of Louisiana, Inc.
    No. 83 CA 1401.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      Otha Curtis Nelson, Sr., Baton Rouge, for plaintiff-appellant.
    Eddie G. Crawford, Walter L. Comeaux, Baton Rouge, for defendant-appellee.
    Before WATKINS, CRAIN and ALFORD, JJ.
   WATKINS, Judge.

Plaintiff appeals from a judgment of the 19th Judicial District Court affirming a decision of the Louisiana Board of Review of the Department of Employment Security. The Board of Review upheld the decisions of the Appeals Referee and the Division of Employment Security. In affirming, the Board denied plaintiff unemployment benefits pursuant to LSA-R.S. 23:1601(1), when plaintiff voluntarily left his job without good cause because a request to be fired, laid off, or given a pay increase was denied by his employer. We affirm.

The testimony at the Appeals Hearing, establishes the following facts:

The plaintiff worked approximately four years for American Glass Distributor of Louisiana, Inc. as a warehouseman. When he was hired his pay scale was $3.00 an hour; when he resigned it was $5.25 an hour.

The plaintiff testified that on May 4, 1982 he spoke to his supervisor, Mr. Frazier, and asked Frazier to either lay him off, fire him or give him a raise. Plaintiff claimed he was not paid enough, and unless something were done he couldn’t ‘hang with this no more’. Mr. Frazier refused his request. Subsequently, Mr. Currey, Vice-President and General Manager, approached plaintiff and questioned him about his dissatisfaction. Currey testified that he advised plaintiff that it was not time for a raise and that plaintiff had received raises in the past but was not due one now. Currey also advised plaintiff that if he was still dissatisfied with his wages he could punch out and leave because Currey did not want dissatisfied employees working for him. The plaintiff’s testimony affirmed that he was dissatisfied and voluntarily punched his time and left.

In denying plaintiff’s application for benefits, the Appeals Referee stated and the Board of Review affirmed that:

“The facts in this case reveal that claimant was dissatisfied with the wages he was receiving. His request for a pay raise was denied and explained to him. He chose to leave his employment rather than to continue and be satisfied with his salary. Therefore the leaving was without good cause connected with the employment.”

Our scope of Judicial Review of the decisions rendered by the Board of Review is limited by LSA-R.S. 23:1634, which provides that the findings of the Board of Review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive and the jurisdiction of the court shall be confined to question of law. Ellis v. Doyal, 330 So.2d 370 (La.App. 4th Cir.1976); Abraham v. Doyal, 253 So.2d 579 (La.App. 2nd Cir.1971). We find that the factual findings of the Board of Review, and Appeals Referee are based on a reasonable construction of the evidence.

The appropriate statute, LSA-R.S. 23:1601(1) provides in pertinent part: “An individual shall be disqualified for benefits: 1) If the administrator finds that he has left his employment without good cause connected with his employment ...” It is well settled that a refusal by the employer to grant a wage increase on demand of the employee does not furnish the employee with good cause to terminate his employment. Ellis, supra; Abrams v. Sharp, 115 So.2d 880 (La.App.Orl.1959).

Plaintiff alleges that pursuant to LSA-R.S. 23:1601(1) he punched out with ‘good cause’ because in effect he felt he had been discharged. The Louisiana Department of Labor Office of Employment Security (Department of Labor) submitted a brief in support of plaintiffs position. It is the Department of Labor’s contention that plaintiff was provoked into discharge. We do not agree. The doctrine of ‘provoked discharge’ 81 CJS Section 225 is a relatively obscure doctrine with limited usage. It is predominately found in New York and Pennsylvania opinions with little jurisprudence in Louisiana. We find that the doctrine has no application in this situation, in that the plaintiff was not discharged, but instead left voluntarily.

The facts in this case do not reveal that the employer discharged the claimant from his employment after he submitted his resignation, as alleged by plaintiff. Therefore, as stated by the Appeals Referee, LSA-R.S. 23:1601(2) will not be applied to the case.

Under the circumstances, we find that the determination made by the Appeals Referee and affirmed by the Board of Review is supported by sufficient evidence. Furthermore, a review of the record fails to show any error of law. The judgment is affirmed, with all costs to be paid by plaintiff.

AFFIRMED.


author: CRAIN, Judge.

text:
    Delores RAGAN v. PILGRIM LIFE INSURANCE COMPANY OF AMERICA.
    No. 83 CA 1410.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Writ Denied March 8, 1985.
    Maurice D. Robinson, Jr., Hammond, Charles V. Genco, Amite, for plaintiff-ap-pellee.
    A.D. Barnes, Jr., New Orleans, for defendant-appellant.

      Before WATKINS, CRAIN and ALFORD, JJ.
   CRAIN, Judge.

This appeal is from a judgment of the trial court which found General Motors Acceptance Corporation (GMAC) to be the primary beneficiary entitled to proceeds of a credit life policy issued to C.C. Ragan by Pilgrim Life Insurance Company (Pilgrim). Excess funds of the policy were found to be payable to the estate of C.C. Ragan, through his wife, Mrs. Delores Ragan (Ra-gan). Pilgrim appeals. We affirm.

On July 13, 1981, Mr. Ragan purchased a Chevrolet Malibu from Ross-Downing Chevrolet. He executed a note and a chattel mortgage which was assigned to GMAC. On the same day he completed an application for credit life insurance from Pilgrim. On this application Mr. Ragan made the representation that he had not consulted or been under the care of a doctor for any disease of the heart ... “within the past six months.” Mr. Ragan had actually suffered a myocardial infarction approximately 5 months and 25 days prior to the application date. Mr. Ragan died in December of 1981 with an acute cerebral vascular accident.

On March 15, 1982, Pilgrim cancelled the policy and refunded the entire premium to GMAC. After no payments were made, GMAC attempted to seize the mortgaged auto but was enjoined by this suit by Mrs. Ragan. The creditor beneficiary of the credit life policy is GMAC and the secondary beneficiary is the estate of C.C. Ragan.

After trial on the merits, the trial judge held that the misrepresentation made by Mr. Ragan was not made with the intent to deceive, nor did it materially affect the acceptance of the risk by Pilgrim. Judgment was rendered in favor of GMAC as beneficiary to the proceeds payable under the credit life insurance policy issued to Mr. Ragan. Pilgrim brought this suspen-sive appeal from the judgment of the trial court.

Pilgrim alleges on appeal that the trial court erred in (1) refusing to recognize and give full weight to a stipulation signed by counsel for all parties, (2) and failing to void the credit life insurance policy issued to C.C. Ragan.

La.R.S. 22:619 provides as follows:
A. Except as provided in Sub-section B of this Section and R.S. 22:692, no oral or written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or avoid the contract or prevent it attaching, unless the misrepresentation or warranty is made with the intent to deceive.
B. In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.

The jurisprudence interpreting this statute places the burden of proof upon the insurer. The statute provides that a false statement bars recovery only if the insurer proves it is made with the intent to deceive or if it materially affects the risk. However, Louisiana jurisprudence requires proof of both factors. Coleman v. Occidental Life Ins. Co. of N.C., 418 So.2d 645 (La.1982). Antill v. Time Insurance Company, 460 So.2d 677 (La.App. 1st Cir.1984).

The record reflects and the parties agree that there was a misrepresentation. The trial judge, in his Reasons for Judgment, found as fact that the misrepresentation made by Mr. Ragan was not made with the intent to deceive, nor did it materially affect the acceptance of the risk by Pilgrim.

The intent to deceive must be determined from the attending circumstances which indicate the insured’s knowledge of the falsity of the representations made in the application and his recognition of the materiality thereof, or from circumstances which create a reasonable assumption that the insured recognized the materiality of the misrepresentations. Watson v. Life Insurance Company of Louisiana, 335 So.2d 518 at 521 (La.App. 1st Cir.1976)

The appellant failed to assign as error the trial court’s finding of fact that the misrepresentation was not made with the intent to deceive and makes no argument in connection with that finding. However, we specifically note that our review of the record convinces us that where the question answered by the insured simply failed to take in account five (5) days, the finding of fact of the trial court that the insured did not intend to deceive was not manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Consequently, it becomes unnecessary for us to determine whether or not the misrepresentation materially affected the acceptance of the risk by Pilgrim.

The judgment rendered in this matter granted judgment to GMAC in the amount of $7,644.91 and the excess of the policy amounting to $1,452.19 to the C.C. Ragan Estate. GMAC has never sued for the proceeds of the policy, nor intervened in Ragan’s suit claiming the benefits. However, none of the parties question GMAC’s rights to the proceeds if the policy is valid. Consequently, we will affirm the judgment of the trial court in the only matter before us which is suit bearing our docket number 83 CA 1410. All costs are to be paid by Pilgrim.

AFFIRMED.

      . We note that suit bearing our docket number 83 CA 1411 is an executory process suit filed by GMAC against Mr. Ragan. A temporary restraining order was issued enjoining the sale on November 24, 1982. No further action was taken on this suit except its consolidation with Ragan v. Pilgrim Life Insurance of America, bearing our docket number 83 CA 1410. The judgment rendered, although bearing the docket number of both cases, made no disposition of the executory proceeding. The temporary restraining order has now expired by application of law. La.C.C.P. art. 3604. There was consequently no judgment to appeal from in suit number 83 CA 1411. Our decree only disposes of suit number 83 CA 1410 even though the cases were consolidated for trial.


text:
    GENERAL MOTORS ACCEPTANCE CORPORATION v. Delores Ragan, Wife of C.C. RAGAN.
    No. 83 CA 1411.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Maurice D. Robinson, Jr., Hammond, Charles V. Genco, Amite, for plaintiff-ap-pellee.
    A.D. Barnes, Jr., New Orleans, for defendant-appellant.
    Before WATKINS, CRAIN and ALFORD, JJ.
   CRAIN, Judge.

For the reasons stated in Delores Ragan v. Pilgram Life Insurance Company of America, 461 So.2d 618 (La.App. 1st Cir.1984) the appeal in this matter is dismissed, costs to be paid by Pilgrim who took the appeal.

APPEAL DISMISSED.


author: COLE, Judge.

text:
    CALLON ROYALTY FUND-1980, et al. v. John E. WALKER, et al.
    No. CA 83 1425.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      John C. Herbert, Simon, Peragine, Smith & Redfearn, New Orleans, for plaintiff-appellant.
    Samule A. Bacot, Baton Rouge, for defendants-appellee.
    Before COLE, CARTER and LANIER, JJ.
   COLE, Judge.

The purchasers of royalty interests filed a petition seeking as damages a diminution in the purchase price paid based upon the discovery the interest actually conveyed was smaller than that intended to be conveyed, due to a prior reservation of royalty rights. The sellers answered asserting as a defense the waiver of warranty, even as to return of the purchase price, set forth in the act of transfer, a royalty deed. Cross motions for summary judgment were filed. The trial court granted the sellers’ motion and denied the purchasers’ motion. The purchasers now appeal this ruling.

The issue presented is whether or not the contractual waiver of warranty effected a concomitant waiver of the codal obligation of delivery owed by the sellers. Additionally, we consider the applicability of La. Civ. Code art. 2481 to the transaction between the parties as regards fulfillment of the seller’s obligation to deliver.

By royalty deed dated September 12, 1980, John E. Walker and Annie Hudson Walker, defendants, conveyed to Callón Royalty Fund-1980 and Pacific Royalty Fund-1980, petitioners, certain royalty interests. The royalty deed stated in pertinent part:

“Tract 1: Two certain lots located in the State of La., Parish of Livingston, in that subdivision known as Sharee Place and being designated according to the official plat of said subdivision made by Dawson Engineers recorded in Book 192, Entry 103835 of the Conveyance Records of Livingston Parish, as Lots 30 & 31, said subdivision lots measuring 100' x 407'.
“Tract 2: Lot 24 located in Sharee Place Subdivision containing 0.92 acres, more or less, in Section 38, T-6-S, R-3-E, Livingston Parish, Louisiana, as per plat of said subdivision made by Dawson Engineers, recorded in Book 192, Entry 103835 of the official records of Livingston Parish, State of Louisiana.
“Tract 3: Lots 171 and 172 of Magnolia Estates containing 0.32 acres located in Section 41, T-6-S, R-3-E, Livingston Parish, Louisiana.
“It is intention of Grantor to convey 4.51 net royalty acres.
“Notwithstanding anything contained herein to the contrary, Grantors warranty, even as to return of purchase price, into and unto royalty rights transferred hereunder, is limited to defense for any act committed by Grantor which would impair warranty rights transferred hereunder. Grantor does subrogate Grantee to any and all rights and action of warranty which Grantor does possess.
“For the purposes hereof, a Royalty Acre equals one-eight (sic) (Vs) of the gross production allocated or allocable to an acre of land.
“The royalty interests and rights herein sold, transferred and conveyed are:
(a) All of grantors interest of the whole of any oil, gas or other minerals, except sulphur, on and under and to be produced from said lands; ...”

At the time of conveyance it was known Tract 1 and 2 were subject to a mineral lease to Amoco Production Company. The mineral lease provided for a one-fifth landowner’s royalty. However, subsequent to the conveyance it was determined Tract 1 and 2 were subject to prior reservation of a one-twentieth royalty of all the oil, gas and other minerals in favor of Andrew L. Erwin. This reservation is contained in a July 19, 1972 act of partial partition. Due to this reservation the petitioners will receive 3.77 royalty acres not the 4.51 royalty acres indicated in the royalty deed.

The petitioners contend this conveyance is a sale of an immovable by price per measure. They argue, therefore, pursuant to La.Civ.Code art. 2492, they are entitled to a proportionate diminution of the purchase price because less royalty acres were delivered than are indicated in the royalty deed.

The trial court considered the legal effect of the following clause contained in the royalty deed to be dispositive:

“Notwithstanding anything contained herein to the contrary, Grantors warranty, even as to return of purchase price, into and unto royalty rights transferred hereunder, is limited to defense for any act committed by Grantor which would impair warranty rights transferred hereunder. Grantor does subrogate Grantee to any and all rights and action of warranty which Grantor does possess.”

The trial court held the clause constituted a waiver of the right of petitioners to be entitled to a return of any part of the purchase price based upon a variance in the amount of royalty acres received.

On appeal the petitioners contend the waiver of warranty can not constitute a concomitant waiver of the obligation of delivery which is owed by defendants. As authority for this proposition petitioners cite La.Civ.Code art. 2475 which indicates the obligation of delivery is a separate obligation from warranting the thing sold. This court, while noting such a contention may be true, is satisfied the defendants’ obligation of delivery has been met. Further, we agree with the trial court no part of the purchase price need be returned.

I.

La.R.S. 31:16 states a mineral royalty is one of the basic mineral rights that may be created. La.R.S. 31:18 defines a mineral right as an incorporeal immovable. A priori, a mineral royalty such as the one sub judice is an incorporeal immovable.

La.Civ.Code art. 2481 provides:
“The tradition of incorporeal rights is to be made either by the delivery of the titles and of the act of transfer, or by the use made by the purchaser, with the consent of the seller.”

The term “incorporeal rights” is broad enough to include both movable and immovable incorporeals. The Louisiana Supreme Court in Deas v. Lane, 202 La. 933, 13 So.2d 270 (La.1943), indicates the proper codal article to apply to a mineral right in determining whether delivery is accomplished is art. 2481. Although the definition of mineral rights was clarified by the enactment of Title 31 in 1974, Deas remains a strong indicia article 2481 ought to apply in the present situation. In Deas the distinction between the seller’s obligations of delivery and of warranty were examined.

The royalty deed contains a description of the three tracts of land indicating “all the grantors (sic) [royalty] interest” in these tracts is conveyed to the petitioners. Further, the royalty deed provides for the method of delivery of royalty payments to the petitioners. These provisions serve to accomplish delivery of the titles and of the act of transfer pertaining to the royalty interests. Therefore, the royalty deed satisfies the tradition required by art. 2481.

II.

The deficiency in royalty acreage arose from a defect in the defendants’ chain of title, the prior reservation of royalty by Mr. Erwin. This type of problem is typically covered by the seller’s warranting to the buyer peaceable possession of the thing sold. See La.Civ.Code arts. 2476, 2500-2501.

In In Re Canal Bank & Trust Co., 221 La. 184, 59 So.2d 115 (1952), notes having a face value of $40,000 were sold for $6,228.12 “without any warranty whatever, not even for the return of any part of the purchase price....” In a separate case the notes were held to be valueless due to a prior subordination. The purchaser sought to have the sale decreed null and void and to recover the purchase price of the notes.

The Louisiana Supreme Court emphasized the notes were purchased without warranty and with specific agreement the purchase price would not be returned. The court held such an agreement is not against public policy and the parties having so contracted are bound by their agreement. The court relied upon La.Civ.Code art. 2503 which states:

“The parties may, by particular agreement, add to the obligation of warranty, which results of right from the sale, or diminish its effect; they may even agree that the seller shall not be subject to any warranty.
“But whether warranty be excluded or not the buyer shall become subrogated to the seller’s rights and actions in warranty against all others.”

Reasoning the parties specifically agreed as to no return of the purchase price the court held the provisions of La.Civ.Code arts. 2504-2505 concerning seller’s warranties did not apply. In reaching its conclusion the court cited the earlier case of Guardian Homestead Ass’n v. Mazerat, 182 La. 710, 162 So. 574 (1935) which, in turn, relied upon the case of Lyons v. Fitzpatrick, 52 La.Ann. 697, 27 So. 110 (1900). In each of these antecedent cases there was consideration of language in the act of conveyance diminishing the codal imposition of warranty. Specifically, the vendor stipulated the sale was “without recourse.” This is not unlike the instant case in which the seller limited his warranty “even as to return of the purchase price.” The commonality of the phrases was noted in Lyons when that court explained:

“ ‘No recourse’ means no access to; no return; no coming back upon; no assumption of any liability whatsoever; no looking to the party using the term for any reimbursement in case of loss or damage or failure of consideration in that which was the cause, the motive, the object, of the undertaking or contract.” (Emphasis ours.) 27 So., at 111.

In the present case the waiver of warranty “even as to return of the purchase price” is to be given the same effect as was given the almost identical clause in In Re Canal Bank & Trust Co., supra. The effect of art. 2505 is superceded by the parties’ agreement specifically indicating no return of the purchase price.

For the foregoing reasons, no diminution in the purchase price paid under the royalty deed shall be allowed. There is no genuine issue for trial. The summary judgment of the trial court is affirmed. Costs of this appeal are assessed against the appellant.

AFFIRMED.

      . The petitioners in brief indicate this reservation causes only 3.402 royalty acres to be received. However, their allegation of a July 24, 1980 sale by defendants to Westport Petroleum, Inc. of one-half of one-half of one-fifth of eight eighths of the minerals on or under lot 24 is not supported by the evidence. Exhibit P-7, which petitioners introduced to substantiate this allegation, refers to land which is not transferred by the royalty deed in question in this case.

      . By affidavit of Wayne A. Potter, vice-president of Callón Petroleum Company, it is indicated the conveyance was for $6,000 per royalty acre, $27,060 for 4.51 royalty acres.

      . Although La.Civ.Code art. 2479 concerns delivery of immovables, the term "immovables” contained in the article is not as specific as the term “incorporeal rights" contained in art. 2481. Further, La.Civ.Code art. 470 defines incorporeal immovables as rights and actions that apply to immovable things. From this definition the inference can be drawn a difference in treatment for incorporeal immovables, as compared to immovables, may be required because they are defined by the Civil Code as a distinct legal concept from immovables. Cf. Yiannopoulos, Movables and Immovables in Louisiana and Comparative Law, 22 La.L.Rev. 517, 554 (1962).

      . The petitioners’ argument for a diminution of purchase price is predicated upon the inclusion in the royalty deed of the line "It is intention of Grantor to convey 4.51 net royalty acres." The failure of defendants to meet this enumerated royalty acreage is alleged to give rise to a partial eviction. The waiver of warranty clause states in part, "Notwithstanding anything contained herein to the contrary....” The line indicating the royalty acreage conveyed may be construed as contrary to the waiver of warranty. Therefore, the requirement of providing 4.51 net royalty acres may be read as having no effect in terms of the obligations owed by the defendants to the petitioners.


author: EDWARDS, Judge.

text:
    Stella M. GUIDRY, individually and as natural tutrix of Stephanie Ann Guidry and Jason Paul Guidry v. CHEVRON U.S.A., INC.
    No. 83-CA-1435.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Edward J. Milligan, Jr., Lafayette, for plaintiff and appellant.
    Lloyd C. Melancon, New Orleans, for defendant and appellee.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   EDWARDS, Judge.

On March 13, 1981, Dale A. Guidry was involved in an automobile accident at 6:10 in the morning while on his way to work at a plant owned by Chevron, U.S.A., Inc., and located in Amelia, Louisiana. The driver of a large tractor-trailer truck, traveling east on U.S. 90, lost control of his vehicle and collided head-on with Mr. Guidry’s yellow Volkswagen about 147 feet west of the intersection at La. 662 in Terrebonne Parish. Both drivers were killed; Mr. Guidry was killed instantly.

Individually and as the natural tutrix of their minor children, Stephanie Ann and Jason Paul, Stella M. Guidry, his wife, sued Chevron U.S.A., Inc., (Chevron) his employer, for worker’s compensation death benefits, allegedly due under LSA-R.S. 23:1231, burial expenses, under LSA-R.S. 23:1210, and penalties and attorneys fees under LSA-R.S. 23:1201.2 for Chevron’s alleged arbitrary refusal to pay. At the close of her case, Chevron moved for a directed verdict under LSA-C.C.P. art. 1810 B on the grounds that plaintiff failed to prove by a preponderance of the evidence that the accident occurred during the course of Mr. Guidry’s employment, as required under LSA-R.S. 23:1031. After a brief recess to consider the motion, the trial judge granted Chevron’s motion and dismissed Mrs. Gui-dry’s case. Plaintiffs appeal, contending the trial judge erred in granting the directed verdict.

Article 1810 B allows any party in a non-jury trial to move for a dismissal of the action as to him after plaintiff has completed the presentation of his case, if the plaintiff has shown no right to relief. The judge may determine the facts and render judgment then or withhold judgment until the close of all the evidence. Under Thomas v. Thom, 408 So.2d 442 (La.App. 1st Cir.1981), cert. denied 412 So.2d 85 (La.1982), and the authorities cited therein, the judge should grant the directed verdict (now called involuntary dismissal) when the plaintiff has failed to prove his case by a preponderance of the evidence. He is not required to view the evidence in the light most favorable to the plaintiff and his factual determinations should not be disturbed unless they are clearly wrong. See also, Egle v. Kidd, 442 So.2d 669 (La.App. 1st Cir.1983).

In a worker’s compensation case, a claimant must establish that the disabling or fatal injury was caused by an accident which arose out of and occurred during the course of the injured or deceased worker’s employment. LSA-R.S. 23:1031. As a general rule, accidents occurring while an employee is traveling to and from work are not considered as occurring during the course of his employment and are not compensable. Gardner v. Industrial Indemnity Company, 212 So.2d 452 (La.App. 1st Cir.1968). Several exceptions to this rule exist, but the trial judge found none to be applicable in this case.

Specifically, he found that
Mr. Guidry was not furnished transportation as an [incident] to his employment with Chevron and said company contributed nothing by way of reimbursement of travel expenses. At the time of the accident the Volkswagen was hauling no tools, equipment, or paraphernalia belonging to Chevron or used on [a] Chevron job, nor was Mr. Guidry responsible to haul such to and from any job site. Mr. Guidry was not responsible nor in the act of assembling and/or transporting a work crew or any employee from the Chevron Oil Corporation.

Based upon the evidence presented by the plaintiff, these findings are correct. Since the plaintiff has failed to establish any applicable exception to the general rule, the. trial judge correctly granted the defendant’s directed verdict.

Jackson v. Long, 289 So.2d 205 (La.App. 4th Cir.1974) does not support plaintiffs’ claim for compensation. The claimant in that case was employed as a cook by Manpower, Inc., a company which furnishes temporary laborers to its various customers at designated times and places, and had been assigned to a job in Mississippi to prepare meals for the crew of a utility company working on the Gulf Coast. Because the assignment had been given to the employee out of the company’s New Orleans' office, the Fourth Circuit concluded that transportation to and from the job, though not furnished by the company, was an integral part of the employment contract, and affirmed the lower court’s compensation award.

In this case, Mr. Guidry worked as a field mechanic for Chevron out of its Amelia plant and was given assignments there to work on Chevron’s equipment located at various other sites. Although Chevron provided transportation for its mechanics to and from those other locations, it did not undertake responsibility for Mr. Guidry’s transportation to and from Amelia. There would be no issue of compensation had the accident occurred while Mr. Guidry was injured while en route to one of his assigned jobs, but the accident here occurred on the way to Amelia. That by itself is not enough to take this case out of the purview of the general rule.

Plaintiff also contends that the trial judge erroneously sustained defendant’s objection to two questions put to plaintiff’s witness, Ed Martien, field supervisor for Chevron. Mr. Martien was asked what would have been the consequences had Mr. Guidry not driven his Volkswagen to work on the day of the accident and whether Chevron’s employees were responsible for their own transportation to and from work. The trial judge sustained defendant’s objection on the grounds that the questions were argumentative and irrelevant. Plaintiff then made a proffer of the questions, to which Mr. Martien responded that an unexcused failure to report to work could result in termination and, yes, the employees were responsible for their own transportation.

Plaintiff contends these questions were not argumentative and were relevant to establish the necessity of Mr. Guidry’s providing his own transportation. We agree that the questions were not argumentative, and perhaps were relevant to establish the necessity of transportation to work, but necessity of transportation is not material in this case to establish liability. Requiring an employee to show up for work does not make transportation “inci-dential” to the employment contract. Most employees are required to show up for work or risk losing their jobs. Therefore, any error the trial judge may have made in sustaining the objection was harmless.

For the foregoing reasons, the judgment of the trial court is affirmed at appellants’ cost.

AFFIRMED.

      . Acts 1983, No. 534, § 9, which became effective on August 30, 1983, moved paragraph B of former article 1810, governing directed verdicts injury trials, to article 1672, governing involuntary dismissals, but did not change the paragraph's substance.

      . For example, if the employee is injured on the employer's premises while on the way to work, compensation is usually allowed. See Sanders v. Kirby, 171 So.2d 281 (La.App. 1st Cir.1965). If the employee is on a specific mission for his employer or is charged with a specific duty to perform, compensation is usually allowed. See Stephens v. Justiss-Mears Oil Company, 312 So.2d 293 (La.1975) (claimant charged with assembling and assuring the arrival of work crew at the job site on time). If the employer undertakes to provide transportation as an incident to the employment contract or reimburses the employee for his travel expenses, compensation is usually allowed. See Gardner v. Industrial Indemnity Company, 212 So.2d 452 (La.App. 1st Cir.1968). There also are a great many cases allowing compensation for traveling employees injured while traveling from one location to another. See, e.g., Jackson v. Long, 289 So.2d 205 (La.App. 4th Cir.1974). Yet another exception called the “threshold doctrine" allows compensation if the accident occurs in an area immediately adjacent to the work place and which contains a distinctive travel risk to employee traveling to and from work. See generally, Templet v. Intracoastal Truck Line, Inc., 255 La. 193, 230 So.2d 74 (1969). A thorough discussion of the rule and its exceptions is found in W. Malone & H.A. Johnson, Worker’s Compensation § 161-171 in 13 Louisiana Civil Law Treatise 303 et seq. (1980).


author: SHORTESS, Judge.

text:
    STATE of Louisiana v. Dewitt GRAY.
    Nos. 84 KA 0505, 84 KA 0506.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      Ossie Brown, Dist. Atty. by Bob Hester, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Bonnie Jackson, Asst. Public Defender, Baton Rouge, for defendant-appellant. •
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SHORTESS, Judge.

Dewitt Gray (defendant) was charged by bill of information with one count of attempted aggravated rape in violation of LSA-R.S. 14:42; 14:27. He pled not guilty and, after a jury trial, was found guilty as charged. He was subsequently charged and sentenced as a second felony habitual offender. The court sentenced defendant to be confined in the custody of the Louisiana Department of Corrections for a period of fifty years.

Defendant brings this appeal urging two assignments of error:

1. The verdict is contrary to the law and/or the evidence.

2. The trial court committed error when it imposed an excessive sentence.

On the evening of August 6, 1983, a thirteen-year old boy went to defendant’s house to take him change from a store purchase. When the boy did not return home within a few minutes, his godmother, with whom the boy resided, became concerned. Attempts to locate the boy were in vain as knocking and shouting at defendant’s door produced no response. Some ten or fifteen minutes later, the boy, then in an emotionally distraught state, arrived at home. When questioned, he admitted that defendant had tried to rape him. Defendant was arrested later that evening following police investigation of the incident.

ASSIGNMENT OF ERROR NO. 1:

Defendant contends that the verdict of guilty was contrary to the law and/or the evidence as the state’s evidence was insufficient to establish that he intended and performed an act towards raping of the victim.

The standard of review for sufficiency of evidence to support a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state proved the essential elements of the crime beyond a reasonable doubt. See, La.C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983). Review of the record presents ample evidence in support of the jury’s verdict.

In order to attempt to commit a crime an offender must actively desire to cause the specific results required by a particular criminal statute and do or omit an act for the purpose of and tending directly toward the accomplishing of his object. La.R.S. 14:10;27; State v. Parish, 405 So.2d 1080 (La.1981) on rehearing, appeal after remand, 429 So.2d 442 (La.1983).

Accordingly, in order to commit attempted aggravated rape, an offender must actively desire to commit rape by (1) overcoming the victim’s utmost resistance by force; (2) preventing the victim from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution; (3) preventing the victim from resisting because the offender is armed with a dangerous weapon; or (4) having anal or vaginal sexual intercourse with a victim under the age of twelve years. La. R.S. 14:41; 42.

It is clear that the evidence in this case was sufficient to warrant a finding that the defendant actively desired to engage in sexual intercourse and that he did an act for the purpose of and tending directly toward the accomplishing of his object.

The victim, in testimony uncontroverted by the defense, testified that following his entry into defendant’s house he was forcibly dragged to a bedroom. Despite his continued struggling, the victim was thrown onto a bed, his shorts and underwear were removed, and defendant announced that “he was going to f... [the victim]”. After having been moved to a prone position, the victim felt defendant touching his anus which elicited a comment from defendant that “[the victim’s] booty hole was too small.” Shortly thereafter, in response to knocking at defendant’s front door, the victim was locked inside a bathroom. During this ordeal, the victim was warned that he would be shot if he continued to struggle or made any noise. After being released from the bathroom, the victim was taken to a back porch where he managed to escape over a fence.

The record does reveal some discrepancy as to whether defendant, while holding the struggling victim on the bed, merely unbuckled his own trousers or removed his trousers and underwear. At trial on the merits, the victim and his godmother testified that defendant’s trousers and underwear were removed. However, during the preliminary hearing, the victim and his godmother testified that defendant only unbuckled his trousers.

The jury was fully informed as to the nature and content of relevant testimony from the preliminary hearing as the transcript of the victim’s and his godmother’s testimony was introduced into evidence and time provided for each juror to read that transcript. The trier of fact may reject in whole or in part the testimony of any witness. State v. Norman, 448 So.2d 246 (La.App. 1st Cir.1984) reversed in part on other grounds 452 So.2d 1178 (La.1984).

Moreover, viewing the evidence in the light most favorable to the prosecution, the state has proved an act tending directly toward the accomplishment of rape of the victim whether or not defendant remained fully clothed. In State v. Parish, defendant therein obtained entry to a female’s apartment by false pretense, grabbed her, and told her he wanted to make love to her as he dragged her toward a bedroom. He did not attempt to remove either his or her clothing, get on top of her or touch her breasts or genitals, but the victim noticed that his zipper was partially unzipped and that he had an erection. Although the incident was aborted by that defendant, the Louisiana Supreme Court found evidence sufficient to warrant a finding that the perpetrator actively desired to engage in sexual intercourse and did an act toward the accomplishment of his objective. In the instant case, not only did defendant force a struggling thirteen-year-old boy onto a bed and pull the victim’s shorts and underwear off, but he also crudely advised the boy that he was about to be homosexually raped, turned him on his stomach for that purpose and touched the victim’s genital area with his hand.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2:

Defendant contends that the sentence imposed was excessive in violation of La. Const, art. I, § 20.

Pursuant to La.R.S. 14:42;27 and La.R.S. 15:529.1, defendant’s sentencing exposure, as a second felony offender, was from a minimum period of incarceration of 16% years at hard labor to a maximum sentence of imprisonment at hard labor for 100 years. The instant sentence was imprisonment for 50 years at hard labor.

Defendant contends that the trial judge did not accord his psychiatric condition sufficient weight in imposing sentence. We find that the trial court gave adequate consideration to all relevant factors in fixing defendant’s sentence and therefore affirm.

The record in this case reveals that the trial judge articulated the factual basis for imposition of sentence in accordance with La.C.Cr.P. art. 894.1.

Generally a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. State v. Thomas, 432 So.2d 325 (La.App. 1st Cir.1983). A sentence is considered grossly disproportionate if one’s sense of justice is shocked when comparing the punishment in light of the harm done to society. State v. Thomas, 432 So.2d at 327.

In the instant case defendant’s sentence does not appear to be grossly disproportionate to the offense committed. The trial judge took particular notice of the fact that defendant had a long history of violent offenses against the person, including a conviction for attempted aggravated rape on November 24, 1980, which formed the predicate felony for the instant habitual offender bill. The court also noted that defendant did not act under provocation nor did the victim in any way encourage or facilitate the crime. Due consideration was given to all relevant mitigating facts in this case. The ■ judge noted that defendant’s criminal history probably indicated that defendant had psychiatric problems but that defendant presented an undue risk to others in a free society. Given defendant’s history of criminal activity and the apparent likelihood of its recurrence, the court felt that correctional treatment in a confined environment was the only appropriate punishment.

Absent manifest abuse of discretion by the trial court, a sentence should not be set aside as excessive. State v. Lanclos, 419 So.2d 475 (La.1982). The record in this case shows that the trial judge considered all relevant factors under La.C.Cr.P. art. 894.1 in reaching his sentencing decision. We find no manifest abuse of discretion in the factors he considered or the weight given to those factors and therefore affirm the defendant’s sentence.

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

AFFIRMED.

      . La.R.S. 14:41, in pertinent part, defines rape as:
      [T]he act of anal or vaginal sexual intercourse with a male or female person who is not the spouse of the offender, committed without the person's lawful consent.

      . The victim's godmother, who did not witness the incident, testified only as to what the victim told her shortly after returning home. When there is no unexplained lapse of time between the rape and the victim's complaint, and when the utterance is spontaneous, the person to whom the complaint was made is allowed to repeat the complaint in court. See, State v. Elzie, 351 So.2d 1174 (La.1977).


text:
    STATE of Louisiana v. O’Neal DAVENPORT.
    No. 84-KA-0508.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      Ossie Brown, Dist. Atty. by Luke La-Vergne, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Kathleen S. Richey, Public Defenders Office, Baton Rouge, for defendant-appellant.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   EDWARDS, Judge.

Defendant, O’Neal Davenport, was indicted for the crime of possession of heroin, a violation of LSA-R.S. 40:966 C. Defendant’s motions to suppress physical evidence and a confession were denied, and he pled guilty, reserving his right to appeal that denial. See State v. Crosby, 338 So.2d 584 (La.1976). On appeal, defendant has addressed only the denial of the motion to suppress the physical evidence.

On May 25, 1983, the Baton Rouge City Police searched defendant’s home and located several small foil wrapped packages. Defendant initially attempted to swallow all of the packets, but they were retrieved from him, and later found to contain heroin. Defendant contends that the search warrant was invalid because the affidavit failed to support the reliability of the confidential informant.

The portion of the affidavit in question is as follows:

Affiant informs the Court that on May 25,1983 affiant was contacted by a confidential and reliable informant who has provided affiant with information which has led to the arrest of at least (2) persons and to the seizure of narcotics. Affiant further informs the court that on or about May 25, 1983 he being said informant had occasion to be present in the residence located at 1510 N. 35th St. and observed O’Neal Davenport in possession of a large quantity of white powder which he, Davenport identified as Heroin and was selling it for 25.00/pa-per.
Affiant further informs the Court that said informant advised Davenport’s home number was 343-6565.
Affiant checked with telephone security and found said phone number to be installed at 1510 N. 35th St.

Defendant argues that the reliability of a confidential informant cannot be established by stating that his information (1) has been used successfully on only two occasions; and (2) has led only to arrest, rather than to convictions. Neither argument has merit.

The task of the issuing magistrate is simply to make a practical, commonsense decision, whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). There is no minimum number of previous accurate reports necessary to establish an informant’s reliability in a particular case. See State v. Humble, 309 So.2d 138, 139-40 (La.1975) (once was enough). Neither is it necessary for the affidavit to assert that the information supplied by the informant has led to convictions. State v. McCathern, 395 So.2d 746, 748 (La.1981).

The affidavit sets forth the factual basis for the informant’s knowledge, that being his presence in the residence and discussion with defendant about the price of the heroin. The officer verified part of the information prior to the issuance of the warrant by checking out the telephone number provided by the informant. The trial court was correct in refusing to suppress the evidence seized under this warrant, and therefore we affirm.

AFFIRMED.


text:
    STATE of Louisiana v. Roger Joseph JACOB.
    No. 84 KA 0518.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Ossie Brown, Dist. Atty. by Donald Win-gerter, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Gail Ray, Asst. Public Defender, Baton Rouge, for defendant-appellant.

      Before WATKINS, CRAIN and ALFORD, JJ.
   WATKINS, Judge.

Defendant, Roger Joseph Jacob, was charged by bill of information with one count of indecent behavior with juveniles, a violation of LSA-R.S. 14:81. A jury returned the responsive verdict of attempted indecent behavior with juveniles, and defendant was subsequently sentenced to serve one year at hard labor. He has appealed, alleging four assignments of error, as follows:

1. The trial court erred when it overruled a defense objection to hearsay.
2. The trial court erred when it denied a defense request to present argument relative to the hearsay objection.
3. The verdict is contrary to law and/or the evidence.
4. The trial court imposed an excessive sentence, and failed to comply with the sentencing criteria of LSA C.Cr.P. art. 894.1.

Assignments of error one and two were not briefed on appeal, and are thereby considered abandoned. Uniform Rules— Courts of Appeal, Rule 2-12.4.

The charges for this prosecution arise from an incident involving a thirteen year old boy. Defendant had been friendly with the victim and his family for some time before the incident. On the date of the offense, defendant, a forty-four year old “born again Christian”, and the victim spent the afternoon together, shopping for religious items. Later, defendant and the victim retired for the evening, sleeping together in defendant’s double bed, while defendant’s roommate slept on the sofa.

The victim testified that he was awakened when defendant pulled him on top of his body, kissed him repeatedly, and fondled him. Defendant claims he only acted in a fatherly manner towards the boy, intending only to comfort him, and his actions were misconstrued by the victim.

ASSIGNMENT OF ERROR NO. THREE:

By this assignment of error, defendant argues the evidence was insufficient to support the verdict. Specifically, defendant claims that the state failed to prove that a “lewd or lascivious act” took place and (2) that the defendant intended to arouse or gratify either his or the victim’s sexual desire.

At trial, the victim testified that he was awakened when defendant grabbed him during the night and pulled him on top of him. The victim also testified that defendant fondled his penis and crotch area, and kissed him repeatedly, thrusting his tongue into the boy’s mouth. The victim further testified that defendant told him “it had been a long time and he was lonely.” After some time, defendant asked the boy if he wanted him to stop, and did cease the activity when the boy asked him to.

In a statement made after his arrest, defendant admitted to kissing the victim on the lips, and scratching his rump underneath the boy’s shorts. He also admitted that he grabbed the victim by the arms and pulled him on top of him, and that he did tell the boy he was lonely. Defendant denied that he had “french-kissed” the boy, and stated he did not remember telling him that “it had been a long time.” Throughout his trial testimony, defendant indicated that his conduct was nothing more than a “Christian” embrace and typical conduct of a charismatic church member.

The standard of review of the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational juror could find that the state proved the essential elements of the crime beyond a reasonable doubt. State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983). We find that any rational juror could have found proof of the essential elements herein.

Proof of the element of a “lewd or lascivious” act is determined, at least in part, by the second element argued, that is, whether defendant intended to arouse or gratify either his or his victim’s sexual desire. We recognize that some actions, in one context, may be intended as a supportive, comforting action, and in another context constitute entirely inappropriate behavior. In the case herein, even assuming that nothing more than those actions admitted by defendant occurred, a rational juror could have found that fondling a thirteen year old boy under his shorts was intended as a sexual, not a comforting gesture. The victim’s additional testimony, stating that defendant had fondled his genital area and thrust his tongue into the boy’s mouth while kissing him, certainly substantiates the intent to arouse or gratify the sexual desires of one of the parties. We find that any rational juror could have found the elements proven herein, and the verdict is not contrary to law and the evidence.

ASSIGNMENT OF ERROR NO. FOUR:

In this assignment of error, defendant argues that the sentence imposed is excessive.

Defendant was sentenced to be confined to the custody of the Department of Corrections for one year. The maximum sentence of imprisonment which defendant could have received for the conviction of attempted indecent behavior with juveniles is imprisonment, with or without hard labor, for up to two and one-half years. LSA-R.S. 14:27 and 14:81. Defendant’s sentence is thus not apparently severe.

The trial court has wide discretion in the imposition of a sentence within statutory limits and, given compliance with the sentencing criteria of LSA C.Cr.P. art. 894.-1, the sentence will not be set aside in the absence of a manifest abuse of discretion. State v. Wardlow, 448 So.2d 257 (La.App. 1st Cir.1984). A sentence will not be determined to be excessive unless it is grossly disproportionate to the crime, or nothing more than the needless imposition of pain and suffering. State v. Wardlow, supra.

Defendant argues the sentence imposed is excessive because the trial court failed to consider several mitigating factors, those being his lack of prior convictions, a substantial period of time without having been arrested, voluntary psychiatric treatment, and employment record. The trial court specifically noted that it had considered these factors. The court also noted that, although his record was devoid of convictions, defendant had been arrested for other sexual offenses before. The court noted that this offense was committed while under the pretext of preaching and participating in religious activity with the victim.

We do not find the sentence herein to be an abuse of the sentencing discretion accorded the trial court. We find that the trial court adequately particularized its reasons for the imposition of the sentence.

For the foregoing reasons the conviction and sentence are affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. David Lee ALFRED.
    No. KA 84 0534.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Leon A. Picou, Jr., St. Francisville, for plaintiff.
    Richard Clayy Howell, Clinton, for defendant.
    Before WATKINS, CRAIN and ALFORD, JJ.
   ALFORD, Judge.

Defendant, David > Lee Alfred, was charged by bill of information with armed robbery in violation of LSA-R.S. 14:64. After trial by jury, he was found guilty as charged and sentenced on May 11, 1973, to imprisonment for ninety-nine years at hard labor, without benefit of probation, parole or suspension of sentence.

Defendant filed a “Motion for Out-of-Time Appeal” with the district court on February 29, 1984. The district court granted the motion ex parte, ordering the appeal returnable to this Court on May 1, 1984.

For the reasons explained in State v. Davis, 457 So.2d 848 (La.App. 1st Cir.1984), the trial court was without authority to grant an out-of-time appeal ex parte due to a lack of jurisdiction. Therefore, this matter is dismissed. Defendant’s proper remedy is as noted in State v. Davis, supra.

APPEAL DISMISSED.


text:
    In the Interest of Jeffery Rene YOUNG.
    No. CJ 84 0577.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      John J. Williams, Jr. and Rykert O. Tole-dano, Jr., Covington, for plaintiff.
    Richard L. Reynolds, Covington, for defendant.
    Before COLE, CARTER and LANIER, JJ.
   COLE, Judge.

The issue in this appeal is whether or not private individuals may invoke the remedy provided by law (La.R.S. 9:403) to have a child declared abandoned.

A petition to have a child, Jeffery Rene Young, declared abandoned by his mother, Sandra Causey Gaines, was filed by Paulette and Michael Young, the child’s aunt and uncle, and Jeffery Young, his natural father. The child’s mother filed the peremptory exception raising the objection of no right of action, challenging petitioners’ interest or capacity to institute an abandonment proceeding pursuant to La.R.S. 9:403. The trial court maintained the exception and dismissed the petition. Petitioners now appeal this ruling.

Initially, petitioners contend the trial court was in error because its ruling on the exception of no right of action was reconsidered after trial on the merits without being reurged by either counsel. This contention is without merit. La.Code of Civ.P. art. 927 provides that the objection of no right of action may be noticed by a trial court of its own motion. Also, this appellate court may consider the exception of its own motion. See Wheat v. Street, 428 So.2d 930 (La.App. 1st Cir.1983). Therefore, the question is properly before this court.

In the trial court the respondent, Sandra Causey Gaines, was first represented by Mr. Roy Burns and is now represented by Mr. Richard L. Reynolds. These attorneys also serve in the capacity of Assistant District Attorneys who have had or now have responsibility for the handling of juvenile matters within the St. Tammany Parish District Attorney’s office. The petitioners contend these gentlemen are officers of the court within the meaning of La.R.S. 9:403 B and therefore their representation of the mother creates a conflict with the best interests of Jeffery Rene Young, the child. Thus, petitioners contend the best interests of the child may only be protected by allowing an individual right of action in this case.

La.R.S. 9:403 permits abandonment actions to be initiated only by an agency or officer of the court. Wheat v. Street, supra. A private individual, even a natural parent, may not institute proceedings to have a child declared legally abandoned. Matter of Harrell, 413 So.2d 1346 (La.App. 1st Cir.1982).

It is foundless for petitioners to claim the respondent created a conflict of interest merely by hiring representation in her defense, because petitioners had no standing under Wheat to file the petition in the first instance. The Louisiana Department of Health and Human Resources (DHHR) or an agency or institution licensed by them for the placement of children for adoption has the authority to institute proceedings according to La.R.S. 9:403 B. The Fourth Circuit in State in Interest of Bartee, 446 So.2d 512, 514 (La.App. 4th Cir.1984), writs denied 450 So.2d 358 (La.1984), emphasizes this department is specifically empowered by the legislature through the plain language of La.R.S. 9:403 B to act in the area of child abandonment. The presence of DHHR and the legislative mandate providing limited authority to proceed under La.R.S. 9:403 B is apparently intended to obviate the necessity of a private action to protect the rights of an abandoned child. This is not to say, however, we agree with the legislative preclusion of all private individuals from initiating proceedings to have a child declared abandoned. It may well be the gravity of certain situations warrant such proceedings by close relatives of a child. We need not always look to government for protection or to exercise those human rights inherent in nature. In any event, it is our role to interpret law, not to legislate. Any change in the clear import of R.S. 9:403 must await the solemn expression of legislative will. The trial court was correct in dismissing the petition in the abandonment proceeding. Appellants are cast for all costs.

AFFIRMED.

LANIER, J., concurs in the result.


text:
    STATE of Louisiana v. Leotha FLOYD.
    No. 84 KA 0593.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Ossie Brown, Dist. Atty. by Michael Nunnery, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    James L. Dendy, Baton Rouge, for defendant-appellant.
    Before WATKINS, CRAIN and ALFORD, JJ.
   CRAIN, Judge.

Leotha Floyd was charged by bill of information with one count of purse snatching in violation of La.R.S. 14:65.1. Defendant pled not guilty, waived trial by jury, and was tried by the judge alone. Defendant was found guilty as charged and sentenced to confinement in the custody of the Department of Corrections for a period of three years.

In bringing this appeal, defendant alleges that the trial court erred in denying his motion for a verdict of acquittal as there was insufficient evidence to sustain his conviction.

Trial testimony of Lorraine Bonnette reveals that on the evening of February 2, 1983, she stopped at a Baton Rouge bank to withdraw funds from a banking machine. While in the process of completing her transaction, Ms. Bonnette noticed a man, later identified by her as defendant, lurking nearby. As she retreated to her parked car, defendant grabbed her and threatened to kill her if she failed to cooperate. A struggle ensued during which defendant took Ms. Bonnette’s purse, then went to the machine and removed her banking card and the money she had requested. Ms. Bonnette drove her car in pursuit of defendant as he fled on foot. She was aided in her efforts by two passing motorists who succeeded in apprehending and physically restraining defendant until police officers could be summoned. When arrested at the scene, defendant had three ten dollar bills and a banking receipt form, bearing Ms. Bonnette’s banking identification number, in his possession.

La.C.Cr.P. art. 778 provides that in a trial before a judge alone, the court shall enter a judgment of acquittal if the evidence is insufficient to sustain a conviction. The applicable standard for reviewing sufficiency is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the essential elements of the crime were proven beyond a reasonable doubt. See, La.C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983).

The instant offense is defined by La.R.S. 14:65.1, which provides:

A. Purse snatching is the theft of anything of value contained within a purse or wallet at the time of the theft, from the person of another or which is in the immediate control of another, by use of force, intimidation, or by snatching, but not armed with a dangerous weapon.

In brief, defendant urges that the evidence introduced at trial was insufficient to establish that “anything of value contained within a purse” was stolen by defendant. We disagree.

Although much emphasis at trial related to rempval of the victim’s banking card and cash withdrawn from the banking machine, the trial judge properly ruled that theft of those particular items did not fall within the scope of purse snatching.

However, Ms. Bonnette’s testimony did provide direct evidence which is sufficient to prove that when her purse was forcibly removed from her immediate control by defendant it contained various items. See, State v. Norman, 448 So.2d 246 (La.App. 1st Cir.1984), reversed in part on other grounds, 452 So.2d 1178 (La.1984). In pertinent part, Ms. Bonnette testified that defendant had possession of her purse as he fled and that “the contents [of her purse] were all down the street”. She also noted that she “recovered everything mostly out of [her] purse and pieces out of the street” after defendant was arrested.

In oral reasons for judgment, the trial judge credited the testimony of Ms. Bon-nette in finding that her purse was taken from her immediate control by defendant and that the purse did contain some items which were either abandoned or inadvertently dropped by defendant in his flight from the scene.

Unlike the offense of theft, where penalty provisions are dependent upon the amount taken, proof of particular value is not an essential element of purse snatching. La.R.S. 14:65.1; See, State v. Russell, 444 So.2d 271 (La.App. 1st Cir.1983).

The term “anything of value” is interpreted by La.R.S. 14:2(2), which provides that:

‘Anything of value’ must be given the broadest possible construction, including any conceivable thing of the slightest value, movable or immovable, corporeal or incorporeal, public or private, and including transportation, telephone and telegraph services, or any other service available for hire. It must be construed in the broad popular sense of the phrase, not necessarily as synonymous with traditional legal term ‘property’ ...

The trial judge properly dismissed as unreasonable the hypothesis that the unidentified contents of the victim’s purse, taken by her assailant under circumstances where the victim fought to retain possession, were not within the scope of this broad definition.

For the foregoing reasons, this assignment of error is without merit.

AFFIRMED.

      . After the state had rested, defense counsel moved for a judgment of acquittal based particularly upon an alleged lack of evidence that anything was lost from the purse itself. After denial of that motion, defendant was called to testify. Defendant admitted his presence in the vicinity, but denied that he was the perpetrator of the instant offense or that any evidence linking him to the victim’s banking transaction was found in his possession when arrested by the police. Defendant's identity as the perpetrator was overwhelmingly established by the trial testimony of the victim and the two passing motorists who assisted in apprehension of defendant.