text:
    STATE of Louisiana v. Darryl EVANS.
    No. KA 2375.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.
    Writ Denied April 1,1985.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Crim. Div., Harry F. Connick, Dist. Atty., E. Sue Bernie, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    James H. Looney, New Orleans, for defendant-appellant.
    Before GARRISON, BARRY and LO-BRANO, JJ.
   GARRISON, Judge.

The defendant, Darryl Evans, was charged by grand jury indictment with the first degree murder of Travis Youmans in violation of LSA-R.S. 14:30. This indictment was later amended to charge the defendant with second degree murder in violation of LSA-R.S. 14:3o.!. After the defendant was found guilty as charged, he was sentenced to serve life in prison without benefit of parole, probation or suspension of sentence. Defendant appeals.

On March 30, 1983 at approximately 2:50 a.m., the body of Travis Youmans was found in an elevator at the French Market Inn at 501 Decatur Street. Youmans, the night auditor/desk clerk of the hotel, died as a result of gunshot wounds to the head. His pants had been pulled down to his knees and his pockets had been turned inside out. Youman’s keys were missing but his wallet had not been taken.

Richard Coleman, the night bellman at the French Market Inn, testified that he and Youmans were on duty on the morning of March 30, 1983. He stated that the defendant, Darryl Evans, came into the hotel lobby between 1:30 a.m. and 2:00 a.m. on the morning in question. Coleman knew Evans because Evans had been a security guard at the Jackson Brewing Company across the street from the French Market Inn and had come over to the hotel several times before to chat and have a cup of coffee. After Coleman pressed a buzzer to let Evans into the lobby, Evans and Youmans visited in the lobby for awhile and then went to the back of the hotel into a courtyard which connected the two buildings of the hotel. Approximately twenty-five minutes later, Evans returned to the lobby alone. He stepped behind the front desk and started going through the drawers. Coleman noticed that Evans had money in one hand and that his other hand was in his pocket. When Coleman asked Evans what he was doing, Evans replied by asking Coleman if it was worth his life to know. Coleman answered that it was not and was then told by Evans to say nothing to the police about what he had seen. Evans told Coleman that Youmans was in the other part of the hotel talking to a hotel guest. Evans then instructed Coleman to get on the elevator. Coleman got on the elevator and rode to the fourth floor where he go off and went down the back steps to the courtyard in search of Youmans. Coleman continued through the courtyard to the other building of the hotel where he found Youman’s body in the elevator.

Coleman immediately notified the hotel’s resident manager, Robert Ridley. After the police arrived, Ridley discovered that the cash drawer at the front desk was unlocked and open and that approximately $500.00 had been taken. Ridley and a former desk clerk from the hotel testified that Youmans always kept the cash drawer key in his pocket and that he never left it in the drawer.

During an interview with police later that morning, Coleman told a detective that a man named “Dale Evans” was the person who entered the hotel lobby that morning, walked away with Travis Youmans and returned alone to the lobby where he took the money from the cash drawer at the front desk. Because Darryl Evans had been a security guard and therefore, had a special permit to carry a gun, the police had a photograph of Evans available in their files. When shown this photograph, Mr. Coleman confirmed that this was the man who entered the hotel lobby on the morning of March 30, 1983. At that time, an arrest warrant was issued for Darryl Evans. However, Evans was not arrested until October 21, 1983.

At trial, the defense presented several witnesses who attested to Evans’ good character. The defendant testified that he occasionally went to the French Market Inn while he was employed as a security guard at the Jackson Brewing Company across the street. However, he claims that he quit this job in February, 1983 and that he never again went to that hotel. The defendant claimed that Richard Coleman often slept on the job and that the hotel lobby door was frequently unlocked. Coleman contradicted the defendant’s testimony on rebuttal.

A review of the record reveals that there are no errors patent.

ASSIGNMENTS OF ERROR # 1 and 2

The defendant contends that the trial court erred in denying his request for either a copy or an in-camera inspection of the report of the coroner’s investigator. This request was made pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which states that the prosecution must disclose to the defense evidence favorable to the defendant if such evidence is material to his guilt or punishment. Defendant was furnished with a copy of this report but the back page was partially obscured by an attached sheet which had been photocopied with this page. The defendant made a specific request for a copy or an in-camera inspection of the back page of this report in order to determine if the description given of the assailant differed from the defendant’s actual appearance.

The State contends that this report was the undiscoverable work product of the State. According to the State, the copy with the obscured back page was inadvertently given to the defense because the defense was not entitled to a copy of this report.

We find no merit in the State’s argument. Because the defense made a specific request for this allegedly exculpatory material, we conclude that the trial judge erred by not at least conducting an in-camera inspection of this portion of the report. Therefore, we remand this case to the trial court in order for the trial judge to conduct an in-camera inspection of the back page of the coroner’s investigator’s report in order to determine if it contains exculpatory Brady material as alleged by the defendant. If such evidence is found, a new trial should be ordered. If not, the defendant’s conviction should be reinstated.

ASSIGNMENT OF ERROR # 3

In this assignment, the defendant contends that the trial court erred in denying the defendant’s pre-trial motion to order the State to furnish the defense with rapsheets on the State’s witnesses. A review of the record indicates that the State made no response to this pre-trial motion. The defendant admitted that he did not know whether or not any rapsheets existed for these witnesses. However, the defendant argues that if these rapsheets existed and were in the possession of the state, he should have been allowed access to this information prior to trial in order to impeach the State’s witnesses at trial. He claims that the State has an unfair advantage because it has access to the Police Department computer system.

The Louisiana Supreme Court has held that prior criminal records of prospective State witnesses are exculpatory evidence under Brady v. Maryland, supra, only when these witnesses were involved with the defendant in the commission of the crime. State v. Williams, 389 So.2d 60 (La.1980). See also State v. Whitlock, 454 So.2d 871 (La.App. 4th Cir.1984). The court in Williams held that even if State witnesses (who were not co-defendants or co-conspirators) had criminal convictions, that evidence would not be relevant to the question of the defendant’s guilt. Additionally, a review of the record in this case indicates that the outcome of this trial would not have been affected even if this information had been given to the defendant. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Therefore, this assignment of error is without merit.

ASSIGNMENT OF ERROR # 4

The defense contends that the trial court erred in failing to order the State to furnish the defense with a copy of the police report used to refresh the memory of Officer Coffey at trial. This request was made because of Officer Coffey’s admission that she had reviewed her police report prior to her testimony at trial. The defendant contends that this report may have resolved a possible discrepancy between the description of the assailant offered by Richard Coleman and the actual appearance of the defendant.

LSA-R.S. 15:279 provides as follows:

A witness may be allowed to refresh his memory by reference to his testimony given on the preliminary examination, or at a coroner’s investigation, or on a previous trial, or, for the purpose of refreshing his present memory a witness may examine memoranda, and it is immaterial by whom or when the memoranda were made, provided that, after such inspection, the witness can testify to the fact.

The case of State v. Prudholm, 446 So.2d 729 (La.1984), holds that production of police reports is not mandated when used by the witness to refresh his or her memory prior to trial. The State is not required to produce for inspection a police report for use in cross-examination of a State witness for impeachment purposes unless: (1) the witness has physical possession of the report on the stand and testified from it; or (2) the witness testified exclusively from his past recollection recorded even though he does not have physical possession of the report on the stand; or (3) it is established that there is an inconsistency between the witness’ testimony at trial and his prior statement. State v. Johnson, 438 So.2d 1091 (La.1983).

There is no indication that any of these circumstances are present in the instant case. Although the defense has expressed a hope that Officer Coffey’s report might differ from her testimony at trial, there is no indication that such a discrepancy did exist. Because the trial judge did not err in refusing to order production of this police report, this assignment of error is without merit.

ASSIGNMENT OF ERROR # 5

The defense contends that the trial court erred in admitting evidence of an allegedly improper and overly suggestive photographic identification procedure used by the police. In answer to the defense’s pre-trial motion to suppress the identification, the State responded that a photographic identification procedure was not actually used in this case; rather, a photograph of the defendant was shown to the witness only to confirm the identity of the person whose name was supplied by this witness.

At trial, Detective Dillman testified that Richard Coleman told him that the name of the perpetrator was James Evans. Coleman testified that he told Dillman that the perpetrator’s name was Dale Evans; however, Coleman also stated that Evans did tell him at one time that his first name was James. Coleman also testified that he did not recall describing the assailant prior to being shown Evans’ photograph.

Because of the above testimony, the defendant claims that the identification was tainted. However, in addition to this testimony, Coleman also stated that he recognized Evans when he entered the hotel lobby that morning because Evans occasionally visited the lobby of the French Market Inn while on duty as a security guard at the Jackson Brewery. Therefore, because Coleman was acquainted with Evans prior to this incident, the showing of only one photograph to corroborate Coleman’s identification of the perpetrator of this crime was not error. This assignment of error is without merit.

ASSIGNMENT OF ERROR # 6

In his final assignment of error, the defendant contends that the trial court erred in failing to grant a new trial in that there was insufficient evidence to support a lawful conviction. To test the sufficiency of evidence, the court must determine whether the evidence, viewed in the light most favorable to the prosecution, was sufficient for a rational juror to find that the defendant was guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Additionally, in a case such as this where circumstantial evidence is used to convict the defendant, the court must find that the evidence excludes every reasonable hypothesis of innocence. LSA-R.S. 15:438. See also State v. Camp, 446 So.2d 1207 (La. 1984).

Richard Coleman testified that he let the defendant, whom he knew, into the hotel lobby by pressing a buzzer to unlock the door. This was the only door through which anyone could enter or exit after dark and Coleman testified that no one else entered the hotel lobby during the period in which this murder occurred. Although there is no direct evidence that Evans shot Youmans, Coleman did see Evans leave with Youmans, return alone, and unlock the cash drawer with a key which two witnesses testified was always kept in You-man’s pocket. Coleman watched Evans rob the drawer and was threatened by Evans. There was also circumstantial evidence that Evans had a gun at this time because he kept one hand in his pocket while he took the money and threatened Coleman.

The defendant argues that he could not have killed Youmans because Youmans was still gasping for breath when Ridley returned to the elevator with Coleman within minutes of Coleman’s initial discovery of Youmans. However, the coroner estimated that it would take approximately ten minutes to die from the type of wounds sustained by Youmans. Therefore, because Coleman ran to Ridley’s room and Ridley hurriedly dressed and went to You-man’s body, the jury could have placed the defendant at the scene of the shooting.

No one else entered the hotel during the twenty-five minutes between the time Evans and Youmans left the lobby and Evans returned alone. Defendant’s theory that Youmans could have been killed by a hotel guest is not a reasonable hypothesis of innocence. The evidence in this case was sufficient for a jury to find that the defendant was guilty beyond a reasonable doubt.

For the reasons assigned, defendant's conviction and sentence are conditionally affirmed. The case is remanded to the trial court for an in-camera inspection of the back page of the coroner’s investigator’s report to determine if exculpatory Brady material exists. We reserve unto the trial court the authority to grant a new trial herein and we reserve the defendant’s right to appeal from any adverse ruling by the trial court.

CONVICTION AND SENTENCE CONDITIONALLY AFFIRMED: CASE REMANDED.

      . LSA-R.S. 14:30.1 states:
      Second degree murder is the killing of a human being:
      (1) When the offender has a specific intent to kill or to inflict great bodily harm; or
      (2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.
      Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.


source: Caselaw Access Project

author: BARRY, Judge. LOBRANO, Judge,

license: Public Domain

text:
    STATE of Louisiana v. Eddie LIDDELL.
    No. KA-1804.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Kathy Lee Torregano, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    M. Craig Colwart, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    Before GARRISON, BARRY and L0-BRANO, JJ.
   BARRY, Judge.

Defendant was convicted of armed robbery, La.R.S. 14:64, and sentenced to 99 years at hard labor. His only assignment of error requests review for errors patent.

The minutes reflect that the trial court did not specify the sentence be served without benefit of parole, probation or suspension of sentence as mandated by La.R.S. 14:64. The failure to so specify renders the sentence unlawfully lenient. See State v. Telsee, 425 So.2d 1251 (La. 1983).

La.C.Cr.P. Art. 882 was amended by Act 587 of 1984 to provide:

An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.
A sentence may be reviewed as to its legality on the application of the defendant or of the state:
(1) In an appealable case by appeal; or
(2) In an unappealable case by writs of certiorari and prohibition.
Nothing in this Article shall be construed to deprive any defendant of his right, in a proper case, to the writ of habeas corpus.

The sentencing transcript was not designated as part of the record for our review. Neither the defendant nor the state raised this issue on appeal; therefore, we amend the sentence to conform to R.S. 14:64.

Although not assigned as error, we must review the sufficiency of evidence to support defendant’s conviction. State v. Raymo, 419 So.2d 858 (La.1982). We are to determine whether any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In an armed robbery prosecution the State must prove that there was a theft of anything of value from the person of another or which was in the immediate control of another. The taking must be by use of force or intimidation while the perpetrator was armed with a deadly weapon. La. R.S. 14:64. According to La.R.S. 14:67, an intent to permanently deprive the other is requisite for the act to be a theft.

The defendant was positively identified by two women working at Shoe Town as the man who held a gun on them and took approximately $1,000.00 in cash and checks from the store’s safe. Both women clearly saw the defendant during the robbery and picked him out of a physical lineup as well as a photographic line-up. One of three revolvers seized when defendant was arrested resembled the gun used in the robbery; the green deposit bag in the car in which defendant was riding at the time of his arrest resembled the one into which the robber stuffed the money.

There was sufficient evidence to lead the jury, viewing the evidence in the light most favorable to the prosecution, to find defendant guilty of armed robbery beyond a reasonable doubt. State v. Rhome, 436 So.2d 602 (La.App. 4 Cir.1983); State v. Laird, 432 So.2d 969 (La.App. 4th Cir. 1983).

Defendant’s conviction is affirmed and his sentence is amended to 99 years without benefit of parole, probation or suspension of sentence pursuant to La.R.S. 14:64.

AMENDED AND AFFIRMED.

LOBRANO, J., dissents.

LOBRANO, Judge,

dissenting.

I respectfully dissent from that portion of the majority opinion which amends defendant’s sentence. I am of the opinion that the reasoning of State v. Jackson, 452 So.2d 682 (La.1984) applies despite the recent amendment to Article 882 of the Code of Criminal Procedure. See, State v. Jarvis Davis, 463 So.2d 733 (1985), handed down this date.

      . See State v. Holmes, 462 So.2d 286 (1st Cir. 1984) which vacated an illegal sentence and imposed the statutory magic words.


author: BARRY, Judge.

text:
    STATE of Louisiana v. Ernest ALLEN.
    No. KA-1997.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Kathy Lee Torregano, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Dwight Doskey, Chris Christofferson, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    Before GARRISON, BARRY and LO-BRANO, JJ.
   BARRY, Judge.

Defendant was convicted of manslaughter, La.R.S. 14:31, and sentenced to five years at hard labor. He requests review for errors patent. There are none.

Although not assigned as error, we reviewed the sufficiency of evidence to support defendant’s conviction. State v. Ray-mo, 419 So.2d 858 (La.1982). We must consider whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the defendant was guilty of manslaughter and the homicide was not committed in self-defense. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Faulkner, 441 So.2d 721 (La.1983); State v. Lynch, 436 So.2d 567 (La.1983).

To support manslaughter, the state must prove the defendant committed a homicide which would be murder under either La.R.S. 14:30 or La.R.S. 14:30.1, but the offense was committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation will not reduce a homicide to manslaughter if the offender’s blood had actually cooled, or any average person’s blood would have cooled, at the time the offense was committed. La.R.S. 14:31.

A homicide is justifiable when committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger. La.R.S. 14:20.

There was testimony the defendant was assaulted by the victim who was angry with him for losing marijuana the defendant was to sell for him. The defendant ran away but returned minutes later wielding a gun. He fired five shots, killing the victim. Although defendant testified the victim was armed with a gun and threatened to kill him, no gun was found. Eyewitnesses confirmed the victim did not have a gun.

Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the defendant was guilty of manslaughter and the homicide was not committed in self-defense. State v. Edwards, 420 So.2d 663 (La.1982); State v. Ford, 315 So.2d 276 (La.1975).

Defendant’s conviction and sentence are affirmed.

AFFIRMED.


text:
    SUCCESSION OF Mathilde Lopes, Divorced Wife of Edgar C. LANDRY.
    No. CA-2178.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.

      Phyllis C. Coci, Vincent C. Cuccia, Me-tairie, for plaintiff-appellee.
    Patrick C. Kelley, William L. Andry, An-dry & Andry, New Orleans, for defendants-appellants.
    Before GARRISON, BARRY and LO-BRANO, JJ.
   BARRY, Judge.

A mother’s testamentary disinherison is based on a confrontation with her son in 1947. The issues are whether that incident involved a C.C. Art. 1621(1) “striking” of the mother or if the son’s failure thereafter to contact his mother amounted to cruelty under C.C. Art. 1621(2).

Mrs. Mathilde Landry died testate in 1980. Her 1970 will acknowledged forced portions to five of her six children: Edgar, Charles, Esther, Norbert and Myra (the executrix), and left the disposable portion to Norbert. As to her other child, Wilbert, the will states:

I do hereby disinherit my son, Wilbert C. Landry, for the following reasons. Approximately twenty-three (23) years ago, my son, Wilbert C. Landry, went into a violent rage and accosted me in the doorway of my apartment and struck me and was pushing me in such a threatening and violent manner that it was necessary for my daughter, Myra, to run and telephone the police and when Myra returned to the scene of the struggle after the telephone call, she came to my rescue by jumping on the back of her brother and this deterred him somewhat until the police arrived and at that time he battled the police and was taken to jail. My son, Wilbert, never apologized for striking me or for the above referred to attack upon me and although he has always lived in the City of New Orleans or the Greater New Orleans Area, he has never come to see his mother not even on many occasions (sic) when I was confined to the hospital because of a heart condition or other physical ills. He has never telephoned me, he has avoided me and has conducted himself towards me with total indifference and disaffection.

The executrix filed a petition to recognize the attempted disinherison. An intervention on behalf of Wilbert by his two brothers and sister (not Myra or Norbert) was dismissed and they filed an amicus memorandum. The trial judge concluded the proof was insufficient to support disin-herison.

The pertinent articles provide:

C.C. Art. 1621(1)
If the child has raised his or her hand to strike the parent, or if he or she has actually struck the parent; but a mere threat is not sufficient.
C.C. Art. 1621(2)
If the child has been guilty, towards a parent, of cruelty, of a crime or grievous injury.

At the time of the June 30, 1947 incident, Wilbert, his wife and children were moving from their apartment in his mother’s apartment house. Wilbert owned a refrigerator and was going to take it to his new home. Mrs. Landry wanted to keep the refrigerator in order to rent the apartment after her son’s departure. Wilbert threatened to destroy the refrigerator if he wasn’t permitted to take it.

Myra, then 15 years old, testified Wilbert got a hatchet (an axe in her deposition) to chop up the refrigerator and Mrs. Landry told Myra to call the police. Myra said Wilbert pushed and shook his mother, and held her wrists (while somehow holding the hatchet). Myra called Norbert, who was in the mother’s apartment, then she jumped on Wilbert’s back. The police arrested Wilbert for disturbing the peace. Myra admitted Wilbert never tried to hit his mother nor damage the refrigerator.

Norbert, then 17 years old, testified Wilbert had a hatchet and shoved and pushed Mrs. Landry (“whether you call it punch or shove or whatever”). By deposition he said Wilbert did not strike his mother.

William Andry, attorney for the executrix and notary for Mrs. Landry’s will, confirmed his preparation of the will. However, his testimony relative to what Mrs. Landry told him about the 1947 incident was rank hearsay and clearly improper. It did not provide the factual support required by C.C. Art. 1624.

Michael Cañedo, who started working for Mrs. Landry in 1973, was also allowed to testify as to what she told him about the 1947 incident. That testimony, too, was hearsay and inadmissible.

Therefore, the only probative testimony to support disinherison came from the two youngsters.

Wilbert testified he never struck his mother. He admitted having a bad temper and was mad when his mother kept his refrigerator. The arrest for disturbing the peace was not prosecuted.

Stanley Tassin, an old friend (though not close at the time of trial) of Wilbert’s who was helping him move from the apartment, confirmed the argument and said Wilbert got the axe (hatchet) to chop up the appliance. Tassin emphatically said Wilbert did not strike, push, touch, shove or physically contact his mother. After the police arrested Wilbert, Tassin was invited by Mrs. Landry to have lunch. Myra and Norbert testified that Stanley was not present at the time of the incident.

Giving great weight to Tassin’s testimony, the trial court’s reasons state:

The other heirs have failed to prove by a preponderance of the evidence that Wilbert actually struck Mrs. Landry. Stanley Tassin, the only independent witness, testified pursuasively (sic) that although Wilbert and Mrs. Landry argued violently that day in 1947, at no time did Wilbert actually strike his mother.

There is no right more sacred than that of a forced heir to inherit his legitime and it is part of our Constitution. Succession of Guerre, 197 So.2d 738 (La. 4th Cir.1967), writ denied 250 La. 928, 929, 933, 199 So.2d 925, 926 (La.1967). See also Thomas B. Lemann, In Defense of Forced Heirship, 52 Tul.L.Rev. 20 (1977); Harriet Spiller Daggett, General Principles of Succession on Death in Civil Law, 11 TUL.L.REV. 399 (1937).

A testator is required to specify the reason for the attempted disinherison; the other heirs are obliged to prove the disin-herison by a preponderance of the evidence. La.C.C. Art. 1624; Succession of Chaney, 413 So.2d 936 (La.App. 1st Cir. 1982), writ denied 420 So.2d 449 (La.1982); Pennywell v. George, 164 La. 630, 114 So. 493 (1927). A testamentary disinherison is null unless the supporting evidence is proven contradictorily with the presumptive heir sought to be disinherited. See Succession of Lissa, 195 La. 438, 196 So. 924 (1940).

In effect, a testamentary disinheri-son only provides the basis for a lawsuit with the burden of proof on those who seek to have the disinherison judicially recognized.

There is insufficient proof that Wilbert’s conduct constituted an attempt to strike his mother or was even intended to scare her. He got the hatchet to destroy the refrigerator and it had no significance in the incident. The fact that Wilbert had a bad temper and displayed it is immaterial. The only independent witness to the incident, Tassin, unequivocally stated that Wilbert did not strike, touch or raise his hand to his mother.

Where evidence is conflicting we should not disturb the trial court’s reasonable evaluation of one set of witnesses as credible and its consequent rejection of testimony of the opposing set of witnesses; nor should we disturb the trial court’s reasonable factual inferences drawn from testimony found by it to be credible. (Citation omitted) Succession of Chaney, supra at 940.

We agree with the trial court’s conclusion that the plaintiff heirs failed to carry their burden to prove the testamentary disinherison.

It is uncontroverted that Wilbert and his mother did not reconcile after their argument in 1947. They did not speak or see each other. The executrix claims their separation amounted to “cruelty” sufficient to support disinherison under C.C. Art. 1621(2). We disagree. An argument which results in prolonged indifference by both parties cannot be characterized as “cruelty” by one of the parties. Respect between parent and child is a mutual obligation. Disinherison cannot result from a child’s failure to communicate with a parent.

The judgment is affirmed.

AFFIRMED.

      . La. Const. Art. XII § 5 (1974); La. Const. Art. IV § 16 (1921).


text:
    Curtis CARGO (Deceased) Geraldine Cargo v. Karen GREEN, Allen Green, the State Farm Insurance Co., Boyce, Inc., and American Honda Motor Company.
    No. CA-2226.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.

      Darlene M. Jacobs, P.C., New Orleans, for plaintiff-appellant, Geraldine Cargo.
    Lawrence J. Duplass, New Orleans, for defendant-appellee, The American Honda Motor Co., Inc.
    Felix R. Weill, Watson, Blanche, Wilson & Posner, Baton Rouge, for defendant-ap-pellee, Boyce, Inc.
    Before GARRISON, BARRY and LO-BRANO, JJ.
   BARRY, Judge.

Plaintiff appeals a summary judgment based on a release granted to three co-defendants without an express reservation as to two other defendants. We affirm.

Curtis Cargo was on his motorcycle when an automobile driven by Karen Green suddenly pulled into Cargo’s lane of traffic from a secondary street. Cargo’s brakes allegedly did not respond and he struck the Green vehicle causing injuries which ultimately resulted in his death. Cargo’s mother was substituted as party plaintiff.

Cargo sued Green, her husband (owner of the car), State Farm Insurance Company, their liability insurer, Boyce, Inc., retail distributor of the motorcycle, and American Honda Motor Company, Inc., manufacturer of the motorcycle.

The claim against the Greens and State Farm was settled and Mrs. Cargo executed a release in their favor. The release made no reference to Boyce and American Honda.

Boyce and American Honda filed exceptions of res judicata and motions for summary judgment. The trial court granted summary judgment because the release did not expressly reserve rights as to either co-defendant. We affirm.

Plaintiff argues it was error to conclude that Boyce and American Honda are liable in solido as joint tortfeasors with the Greens and State Farm. This argument is premised on the theory that separate acts of negligence establish separate liability, i.e., Karen Green failed to properly operate her automobile, and Boyce and American Honda did not provide an adequate braking system for the motorcycle.

Plaintiff’s argument is based on the erroneous contention that solidarity cannot exist among tortfeasors when the remedy available from each is different. LSA-C.C. Art. 2324 sets forth the basis for solidary liability among tortfeasors:

He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.
Persons whose concurring fault has caused injury, death or loss to another are also answerable, in solido ...

Although solidary liability most often results when tortfeasors jointly cause harm, a solidary obligation can arise even though the obligations develop from separate acts or due to different reasons. Hoefly v. Government Employees Insurance Company, 418 So.2d 575 (La.1982). Our courts have consistently applied solidarity to separate but joint tortfeasors. Billeaudeau v. Lemoine, 386 So.2d 1359 (La. 1980); Wells v. Hartford Accident and Indemnity Co., 437 So.2d 295 (La.App. 3rd Cir.1983), writ denied, 443 So.2d 582 (La. 1983); Guarisco v. Pennsylvania Casualty Company, 24 So.2d 678 (La.1945); Reid v. Lowden, 189 So. 286 (La.1939).

In Johnson v. Ford Motor Company, 707 F.2d 189 (5th Cir.1983) plaintiffs automobile caught fire when it was struck in the rear by another automobile. Plaintiff sued the other driver and various liability insurers in state court, then filed suit in federal court against the manufacturer of his automobile. The state court action was settled and releases executed without any mention of the manufacturer or the pending federal action. The federal appellate court affirmed a summary judgment because the release had no express reservation of rights as to the manufacturer.

The Johnson court rejected the contention that no solidarity exists among tort-feasors when the remedy available from each is different. It noted under Louisiana law solidarity is imposed “upon persons who are strangers to each other but who have each contributed to bringing about the same wrong, as in the case of concurrently yet independently negligent actors.” Johnson v. Ford Motor Company, supra at 191-192.

The facts of Johnson are indistinguishable from this case. It is clear that Boyce and American Honda are solidary obligors with the Greens and State Farm.

Plaintiff next contends that summary judgment was inappropriate because the evidence was insufficient to establish as a matter of law the joint tortfeasor status of the defendants.

LSA-C.C.P. Art. 966 provides that a motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. Only when reasonable minds must inevitably concur, as a matter of law, on the facts before the court is a summary judgment warranted. Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). Any doubt is resolved against the granting of a summary judgment and in favor of a trial on the merits. Clement v. Taylor, 382 So.2d 231 (La.App, 3rd Cir.1980).

Plaintiffs petition alleged the sole and proximate cause of the accident was the “joint and concurrent negligence” of the Greens with American Honda and Boyce. The petition clearly alleges facts sufficient to establish Karen Green’s status as a joint tortfeasor. American Honda and Boyce filed answers admitting the negligence of Karen Green was the proximate cause of the accident.

Plaintiff has consistently urged and the written interrogatories and pleadings clearly establish the joint tortfeasor status of the parties. The trial judge correctly concluded that the Greens, American Honda and Boyce are joint tortfeasors, liable in solido.

Plaintiff argues that despite the joint tortfeasor relationship, the agreement releasing the Greens and their liability insurer did not automatically release the co-defendants. She contends a material issue of fact exists as to the intent of the parties in executing the release.

LSA-C.C. Art. 2203 provides in part: The remission or conventional discharge in favor of one of the co-debtors in soli-do, discharges all the others, unless the creditor has expressly reserved his right against the latter.

In applying Art. 2203 our courts have held that the release of one joint tortfeasor without an express reservation of rights discharges all joint tortfeasors. Billeau-deau v. Lemoine, supra; Reid v. Lowden, supra; Wells v. Hartford Accident and Indemnity Co., supra; United States Fidelity and Guaranty Co. v. Safeco Insurance Company of America, 420 So.2d 484 (La.App. 1st Cir.1982); Written v. Travelers Indemnity Company, 304 So.2d 715 (La.App. 3rd Cir.1974).

The' release acknowledged receipt of consideration and authorized release and discharge of:

KAREN B. GREEN, ALLEN GREEN, AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY of and from any and all claims or demands of whatsoever kind or nature, for or because of any matter or thing done, omitted or suffered to be done by KAREN B. GREEN, ALLEN GREEN, AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, prior to and including the date thereof, and particularly on account of any and all claims which I have or may have for injuries, damage, loss or expenses, regardless of the kind or nature, as a result of the accident which occurred on or about MAY 28, 1981, AT OR NEAR THE INTERSECTION OF FRISCOVILLE STREET AND PONTALBA, CITY OF ARABI, STATE OF LOUISIANA, RESULTING IN THE DEATH OF HER SON, CURTIS CARGO.

There is no express reservation as to any party. Plaintiff contends the specific and singular references to the Greens and State Farm shows the release was limited to those parties. However, Wells v. Hartford Accident and Indemnity Company, supra at 298-299, said:

LSA-C.C. Art. 2203 does not require that all co-debtors in solido be parties to a conventional remission or conventional discharge executed in favor of a eo-debt- or nor does such article require that the conventional remission or discharge contain “catch-all” language releasing all other possibly liable co-debtors in solido. Quite to the contrary, Article 2203, by its express terms, operates to release all co-debtors in solido upon discharge of one unless the creditor has expressly reserved his rights against those co-debtors not parties to the release.

Therefore, under the plain terms of Art. 2203, the release discharged plaintiffs rights against American Honda and Boyce.

Plaintiff claims she had no intent to release American Honda and Boyce and cites a Limited Motion to Dismiss which was filed in state court:

The above numbered and entitled cause has been settled as between plaintiff, GERALDINE CARGO, and defendants, KAREN B. GREEN, ALLEN GREEN, AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, ONLY, with prejudice, each party to bear their own costs of court; and with plaintiff reserving her rights to proceed as against BOYCE, INC. AND AMERICAN HONDA MOTOR COMPANY, INC.

Plaintiff submits this motion creates a material issue of fact as to the intent of the parties in executing the release.

Reliance on the motion to dismiss is misguided. A party’s intent, although relevant and helpful in the interpretation of a release, may not substitute for the obligatory express reservation. Johnson v. Ford Motor Company, supra. Our jurisprudence shows that the reservation required by Art. 2203 must be incorporated in the release. Reid v. Lowden, supra; Wells v. Hartford Accident and Indemnity Co, supra; Written v. Travelers Indemnity Co., supra.

Plaintiff cites Wise v. Prescott, 142 So.2d 613 (La.App. 4th Cir.1962) for the proposition that the intent to reserve a right against co-debtors may be inferred from any expression in the release which negates the intent to release. However, in Wise the release stipulated that it would “forever discharge the Allstate Insurance Co. and Yestor Prescott only.” Therefore, that release contained language which evidenced an intent to reserve the plaintiff’s rights. No such language or expressed intent is in the instant release.

The release fails to disclose any ambiguity. To the contrary, it is clear and even recited that:

THE AFORESAID PAYMENT is also received in full compromise and settlement of the matter entitled: ...” CURTIS CARGO vs. KAREN B. GREEN, ALLEN GREEN, THE STATE FARM INSURANCE COMPANY, BOYCE, INC., AND AMERICAN HONDA MOTOR COMPANY, INC.”, CIVIL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, BEARING SUIT # 81-17315, DIVISION “A” ... and I hereby instruct my Counsel of Record to file an appropriate motion dismissing said suit, with prejudice, each party to bear their own costs of court.

Absent ambiguity, parol evidence which would vary the terms of the release is clearly inadmissible. Reid v. Lowden, supra; Wells v. Hartford Accident and Indemnity Co., supra; Written v. Travelers Indemnity Co., supra. Plaintiff is bound by the express terms of her agreement.

Summary judgment is affirmed.

AFFIRMED.

      . Act 331 of 1984 repealed the express reservation requirement.


author: KLEES, Judge.

text:
    Mabel Franklin, Wife of/and Clarence R. BARLEY, Sr. v. STATE of Louisiana, Through the STATE DEPARTMENT OF HIGHWAYS and Boh Bros. Construction Company, Inc.
    No. CA-2139.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.

      Lee W. Rand, Zelden & Zelden, New Orleans, for plaintiffs-appellees Mabel Franklin, Wife of/and Clarence R. Barley, Sr.
    Harvey Lee Hall, Dept, of Transp. and Development, Baton Rouge, for defendant-appellant State of Louisiana, through the Dept, of Transp. and Development.
    H.F. Foster, III, Bienvenu, Foster, Ryan & O’Bannon, New Orleans, for defendant-appellee Boh Brothers, Const. Co., Inc.
    Before KLEES, CIACCIO and WARD, JJ.
   KLEES, Judge.

This is an appeal by the State of Louisiana from a judgment awarding $22,457.00 to plaintiffs for damage to their home allegedly caused by the construction of a section of interstate highway known as the Carrollton Interchange. The State appeals on the grounds that the plaintiffs failed to adequately prove causation, and that the amount of damages awarded was excessive. We affirm.

Plaintiffs brought suit in the Orleans Parish Civil District Court against the State of Louisiana and Boh Brothers Construction Company alleging that the construction of the Carrollton Interchange near their home in 1975-76 caused their house to settle dramatically, cracking the walls and floors significantly. After a trial on the merits, the court rendered judgment in favor of plaintiffs against the State and Boh Brothers. Then, upon application of Boh Brothers, the court granted a new trial limited to oral argument only and rendered a new judgment, which dismissed the plaintiffs’ claim against Boh Brothers but maintained the judgment against the State. Boh Brothers was dismissed. Neither the plaintiffs nor the State has appealed the dismissal of Boh Brothers; therefore, the only issue in this appeal is the plaintiffs’ judgment against the State.

At the outset, we note that the usual appellate standard of review — that is, whether the factual findings of the lower court are manifestly erroneous — hoes not apply in this case because the judge who heard the testimony was not the one who rendered judgment. Moore v. Travelers Indemnity Co., 352 So.2d 270, 272 (La.App. 2nd Cir.1977), writ den. 354 So.2d 1049 (La.1978). Because the judge who presided over the trial of this case resigned before handing down a judgment, the judgment was rendered by a second judge upon examination of the record. Therefore, rather than looking for manifest error, we must determine whether plaintiffs have proved the elements of their case by a preponderance of the evidence.

Plaintiffs sued under Civil Code article 667, which states that the proprietor of an estate cannot do any work on his property that causes damage to his neighbor. It is well established that in order to recover under this article, the plaintiff need not prove negligence, but only that the activity complained of caused damage to his property. Chaney v. Travelers Ins. Co., 249 So.2d 181, 186 (La.1971). Thus, there are only two elements that must be established to effect recovery in this case: causation and damages. We find that the plaintiffs have proved both sufficiently.

The plaintiffs, Mr. and Mrs. Barley, were the only fact witnesses to testify on the issue of causation. They both testified that the damage to their home, consisting of large cracks in the walls and floor as well as ponding of water under the house during rain, first appeared during the time when the State admittedly was engaged in the construction of the Carrollton Interchange near plaintiffs’ house. The construction activity included, at various times, the demolition and removal of a house and concrete slab a few feet from the plaintiffs’ residence; pile driving approximately 100 feet from the residence; and the movement of heavy contracting equipment back and forth down plaintiffs’ street, from which the pavement had been removed.

Mrs. Barley testified that her house would “shake something terrible” while the construction activity was going on and that her dishes would rattle in the cabinets to the extent that, if she had opened the cabinet door, they would have all crashed to the floor. The plaintiffs also introduced photographs showing the extent of the damage to their home. Finally, they testified that during the years between 1966, when they purchased their home, and the onset of the construction project, they had noticed no settling, cracking or shifting of the walls in their house.

Mr. Robert Lipp, an expert in civil engineering who testified on behalf of the Bar-leys, stated that his examination of the house and review of the construction diaries and plans provided by the State convinced him that the construction activity had caused the damage to the residence. The defendants produced as witnesses several employees of Boh Brothers and the State Department of Transportation who testified as to the exact nature and location of the work done; additionally, these witnesses gave expert testimony to the effect that, in their opinions, the type of work done would not have caused damage to the plaintiffs’ residence. The defendants also introduced photographs of other houses in the Barley’s neighborhood to show that differential settlement was common in the area. Finally, to controvert Mr. Lipp’s testimony, the defendants produced John L. Pfeffer, an expert in civil engineering, who inspected the Barley’s home and concluded that the damage was not due to the construction activity. Mr. Pfeffer stated that the paint he found inside many of the cracks indicated that the cracks had been in existence and had perhaps been patched sometime prior to the last time the house was painted, which, according to the Bar-leys, was in 1974. In the opinion of Mr. Pfeffer, the settlement of the Barley's house was typical of houses in the area and was caused by the general shrinkage of the soil that had been occurring since the drainage of the New Basin Canal many years before this construction project began.

After reviewing all the testimony on the issue of causation, we find that plaintiffs have proved by a preponderance of the evidence that the construction activity caused the damage to their house. Mr. and Mrs. Barley’s testimony that the cracks first appeared while the construction project was going on is uncontroverted. The State has admitted in its brief that it is not claiming that the Barleys were lying. Even assuming that some of the cracks had been patched prior to 1966 when the Bar-leys bought the house, we find that the State would be liable for causing them to reopen, when they might have otherwise remained closed indefinitely. The trial judge apparently rejected the contrary conclusion of defendant’s expert Mr. Pfeffer and so do we. Thus considering all the evidence, we conclude that the plaintiffs have met their required burden of proof in establishing causation.

We also find that plaintiffs have met their burden of proof with regard to quantum. The plaintiffs’ expert, Mr. William Carroccio, estimated that the necessary repairs to the house would cost $23,657.00 and suggested that a 15% contingency be added to cover unforeseen problems that might occur, such as the replacement of any sills too badly warped to be straightened out. The lower court awarded plaintiffs $22,457.00, rejecting the 15% contingency and deducting from the original estimate $1200.00 for restoring the plantings around the Barley’s house, which sum Mr. Carroccio admitted was based upon speculation.

At the time of trial, the defendants objected to Mr. Carroccio’s testimony as irrelevant because his estimate had been prepared only a few days prior to trial, which was several years after the filing of suit. The defendants’ position, which the State now re-urges, was that requiring them to pay for any deterioration or further settlement that might have occurred between the filing of suit and the time of trial would ignore the plaintiffs’ obligation to mitigate damages. In addition, the defendants objected to Mr. Carroccio as a surprise witness, noting that his testimony was substituted at the last minute for that of Mr. Paul Charbonnet, Jr., who had inspected the property in 1978 and was listed by the plaintiffs in their pretrial order as their expert on damages. The State also re-urges this objection on appeal. Finally, the State objects to the inclusion in Mr. Carroc-cio’s estimate of $8,348.00 for leveling work because this figure was not determined by Mr. Carroccio himself, but was provided to him by a leveling contractor whom the plaintiffs had consulted previously-

We find the State’s objections to be without merit. With regard to mitigation, the law is clear that an injured party has a duty to mitigate only if it is reasonable for him to do so. Armistead v. Shreveport & R.R. Val. Ry. Co., 108 La. 171, 32 So. 456 (1901); Ackel v. Coca Cola Bottling Co., 385 So.2d 30, 33 (La.App. 4th Cir.1980). Since the plaintiff testified that at no time did they have sufficient funds to repair the house, we find that it was not reasonable for them to mitigate damages, and therefore they had no duty to do so.

With respect to the substitution of Mr. Carroccio’s testimony for that of Mr. Charbonnet, the State claims that is entitled to the usual presumption which attaches upon a plaintiff’s failure to call a material witness — i.e., that the testimony of that witness would be unfavorable to plaintiff. Nunez v. Nunez, 436 So.2d 682 (La.App. 4th Cir.1983). However, the law is clear that this presumption does not apply when the witness is equally available to both parties yet the defendant fails to call him. Beychok v. Norton, 449 So.2d 32 (La.App. 1st Cir.1984); Young v. State Farm Fire & Cas. Ins. Co., 426 So.2d 636 (La.App. 1st Cir.1982), writ den. 433 So.2d 148 and 433 So.2d 171 (La.1983); Forten-berry v. Fortenberry, 432 So.2d 1125 (La. App. 3rd Cir.1983). In this case, the record does not reflect any reason why the State could not have subpoenaed Mr. Charbonnet to rebut the testimony of Mr. Carroccio. Not only did the State fail to do so, but it failed to present any witness at all to testify as to the extent of damages. Under the circumstances, we find that the trial judge was correct in accepting Mr. Carroccio’s estimate.

The final objection of the State concerns the inclusion in the estimate of an item that Mr. Carroccio received from a leveling subcontractor. The State claims that this portion of the estimate should be excluded because it is impermissible for an expert to rely on another expert in forming his opinion; rather, the expert must base his opinion wholly upon facts within his knowledge. To counter this argument, the plaintiffs assert that it is normal and necessary for a building contractor to rely on various subcontractors for portions of this work. In addition, the plaintiffs cite National Surety Cory. v. Travelers Ins. Co., 149 So.2d 438, 441 (La.App. 3rd Cir.1963), in which the Third Circuit held that proof of damages to a tractor was sufficient where the only evidence was the testimony of an insurance adjuster, even though the adjuster had prepared his estimate with the assistance of a master mechanic who died before the trial began.

After reviewing the law, we find no definitive answer to the question of whether an expert contractor can rely on the bid of a subcontractor in formulating his own estimate. While it is generally true that an expert witness is not permitted to base his opinion on factual information furnished to him by persons outside of court, the Louisiana courts have, at least in criminal cases, occasionally allowed this type of testimony. G.W. Pugh, Louisiana Evidence Law (1978 Supplement) 196-197. In State v. Austin, 282 So.2d 711, 712 (La.1973), wherein the defendant was charged with negligent homicide, the Supreme Court overruled a hearsay objection to the testimony of an expert in accident reconstruction by stating, “It is no bar to an expert’s testimony that he obtained information from other persons.” Moreover, the Supreme Court has held that it is permissible for doctors testifying as experts to rely upon reports of other doctors and nurses in forming their opinions. State v. Fallon, 290 So.2d 273, 291 (La.1974); State v. Berry, 324 So.2d 822, 828 (La.1975), cert. den. 425 U.S. 954, 96 S.Ct. 1731, 48 L.Ed.2d 198 (1976).

Although we can find no civil cases in Louisiana that deal with this issue, it is interesting to note that the Federal Rules of Evidence specifically allow the type of testimony involved in this case. Rule 703 states:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Thus, an examination of all the relevant law on this point convinces us that the portion of Mr. Carroccio’s estimate taken from the leveling subcontractor is allowable. Accordingly, we find the State’s objections to be meritless and hold that the quantum awarded by the trial court was not excessive.

Therefore, for the reasons assigned, we affirm the judgment of the trial court, with all costs to be borne by appellant.

AFFIRMED.


text:
    DePAUL HOSPITAL v. Donald and Sandra CELESTIN.
    No. CA-2182.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.
    Rehearing Denied Feb. 26, 1985.

      Wayne M. Richardson-Harp, Osborne, McComiskey & Richardson-Harp, New Orleans, for plaintiff-appellee DePaul Hosp.
    William G. Cherbonnier, Jr., Cherbonnier & Montero, P.L.C., Gretna, for defendants-appellant Donald and Sandra Celestin.
    Before KLEES, CIACCIO and WARD, JJ.
   KLEES, Judge.

This is an appeal of a default judgment rendered in favor of DePaul Hospital and against Donald Celestin in the amount of $9,347.00 plus interest, costs, and attorney’s fees for medical services rendered on behalf of his minor son, Barry Celestin. We affirm.

In May, 1980, Barry Celestin, the 15 year old son of Donald and Sandra Celestin, was admitted to DePaul Hospital for treatment of serious emotional problems. Although Barry’s parents were divorced on April 2, 1980, DePaul Hospital required both parents to sign an “Assignment of Benefits and Financial Guarantee” on May 14, 1980 in order to treat Barry.

Due to the fact that treatment for Barry’s problems was longer than expected, all of the Celestin’s insurance benefits were used to pay DePaul Hospital and the child’s treating physicians. In an attempt to pay the hospital’s bill, Mrs. Celestin, who had custody of Barry, went to Juvenile Court and apparently had custody of her son transferred to the State of Louisiana. The only evidence introduced of such a transfer was a hand-written notation on a statement of account and a typewritten notation on a second statement of account presented in evidence in the lower court.

Eight months after admittance to De-Paul, Barry was released. At that time, there was an outstanding balance due on his account of $9,347.00. A written demand letter was forwarded by certified mail to Donald and Sandra Celestin but was returned as undeliverable. Suit was filed to obtain payment of the amount due on the outstanding account and attorney’s fees pursuant to LSA-R.S. 9:2781.

Donald Celestin was duly served with a citation and copy of the petition. When he failed to answer or otherwise plead in the case, a preliminary default judgment was entered by the trial court with a proper confirmation of the default judgment against Donald Celestin alone. Thereafter, service of the default judgment was properly effected upon Donald Celestin and he appeals that default judgment.

The issues presented in this appeal are whether there was an open account between Donald Celestin and DePaul Hospital, whether DePaul Hospital met its burden of proof at the time the default judgment was rendered and whether DePaul Hospital complied strictly with the provisions of LSA-R.S. 9:2781 to allow the award of attorneys fees.

As to the existence of an open account between DePaul Hospital and Donald Celestin, Barry was treated by DePaul for approximately seven or eight months. Donald and Sandra Celestin both signed the financial guarantee. Periodic payments were made on his account for treatment. Upon discharge, there was an unpaid balance. A statement of current or running dealings for medical services is on an open account basis. Monlezun v. Fon-tenot, 379 So.2d 43 (La.App. 3rd Cir.1979). Therefore, an open account existed for medical services rendered to Barry.

By act of law, parents are responsible for the care of their children. LSA-C.C. Art. 227. Inherent in the law is the obligation to care for the child and to seek medical assistance when necessary. Therefore, the legal obligation of parents to support their children encompasses the furnishing by parents of medical treatment to their minor children. Gaspard v. Breaux, 413 So.2d 288 (La.App. 3rd Cir.1982). In this particular case, both of the parents of Barry Celestin sought the help of DePaul Hospital to treat their son and guaranteed the payment of the hospital charges as evidenced by their signature on the “Assignment of Benefits and Financial Guarantee”.

Donald Celestin is responsible for the support of his children and cannot relieve himself of this obligation by separation or divorce. The father has an unlimited obligation to support his children under LSA-C.C. Art. 158 and Art. 227. At the time that Barry was admitted to the hospital, Donald Celestin signed an agreement whereby he acknowledged his responsibility to pay for the treatment rendered to Barry. It makes no difference that Barry was in the custody of his mother or the State of Louisiana because the obligation of the parents to support, maintain and educate their children terminates only when the children reach majority. Ramos v. Ramos, 425 So.2d 989 (La.App. 5th Cir. 1983). Both Donald and Sandra Celestin are responsible for the payment of medical services for treatment as part of their obligation to support and maintain their child, Barry.

Donald Celestin’s second contention is that the hospital failed to meet its burden of proof in order to obtain a default judgment. To obtain a default judgment on an open account, an affidavit of the correctness of the account shall be prima facie proof of the case. LSA-C.C.P. Art. 1702(B).

When a default judgment is rendered, there is a presumption that the judgment was rendered upon sufficient evidence. Ascension Builders, Inc. v. Ju-monville, 263 So.2d 875 (La.1972). In order to obtain a reversal of a default judgment or to obtain a remand, the defendant must overcome that presumption.

A review of the record reveals the following facts. On May 17, 1983, a written demand letter enclosing copies of the itemized statement was mailed to Donald Celes-tin by certified mail. The letter was returned to the sender marked undeliverable and there are several notations on the envelope of dates of attempted delivery. Suit on open account was filed on August 22, 1983. Service of the citation and petition was effected on Donald Celestin on August 25, 1983.

From that point on, Donald Celestin had notice of suit and had fifteen days from that date within which to answer the suit. As he did not answer or otherwise plead within the proper time, a preliminary default was entered on September 29, 1983, and a confirmation of the default was obtained on October 6,1983. Donald Celestin was served with a copy of the default judgment on November 21, 1983.

In reviewing a default judgment, we are restricted to the determination of the sufficiency of the evidence offered in support of the judgment. Eddie’s Hardware, Inc. v. Rago, 320 So.2d 276 (La.App. 4th Cir.1975).

DePaul Hospital’s petition alleged that it provided health care services to Donald and Sandra Celestin as per the statement of account which was attached to the petition. Also attached was an Assignment of Benefits and Financial Guarantee, a written demand letter with an itemized statement of account, and a certified mail envelope properly addressed marked undeliverable with notations of attempted delivery.

As evidence in support of its claim, De-Paul Hospital filed an affidavit of correctness of account which stated that the affi-ant was familiar and well acquainted with the account of Donald and Susan Celestin, defendants in the above captioned cause; that plaintiff rendered professional medical services to defendants on open account; that the true and correct amount owed to plaintiff on account by the above-named defendants is $9,347.00 plus interest and attorney’s fees as prayed for, and costs this proceeding. of

We find that DePaul Hospital’s proof in this case supports the judgment rendered against Donald Celestin.

With regard to Donald Celestin’s third contention, the provisions of LSA-R.S. 9:2781 must be strictly complied with before an award of attorney’s fees. LSA-R.S. 9:2781(B) requires that:

B. If delivery of written demand on the debtor is attempted, but not accomplished because circumstances made delivery of written demand impossible, a notation, on the envelope containing the written demand, made by the person attempting delivery stating the date of the attempted delivery, reasons why delivery could not be accomplished, along with the initials of the person attempting delivery and making said notation.

Upon our review of the record we find that the provisions of LSA-R.S. 9:2781(B) were strictly complied with and therefore affirm the award of attorney’s fees.

Accordingly, the default judgment rendered by the trial court in favor of DePaul Hospital and against Donald Celestin is affirmed. All costs in this appeal are to be paid by defendant-appellant.

AFFIRMED.


text:
    W.B. SELLERS v. Roger SELIGMAN et al.
    Nos. CA-2821, CA-2822.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.
    Writ Denied March 15, 1985.

      John Poitevent, Robert B. Acomb, III, Poitevent & Acomb, New Orleans, for third-party defendant-appellant Utica Mut. Ins. Co.
    Sondra A. Cheek, Bogalusa, for defendants-appellants Roger Seligman, Alain Sel-igman, Charles Spencer Smith, Harvey Gaines, Earl Cunningham, and Estate of Charles B. Altmann.
    Frank J. Peragine, Michael R. Daigle, Simon, Peragine, Smith & Redfearn, New Orleans, for third-party defendant-appellee American Optical Corp.
    Craig R. Nelson, Christina P. Fay, Hulse, Nelson & Wanek, New Orleans, for defendant-appellee Clemco Industries.
    Gary M. Zwain, Johnston & Duplass, New Orleans, for defendant-appellee Pul-mosan Safety Equipment Corp.
    James L. Selman, II, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for defendant-appellee Mine Safety Appliances Co.
    Before KLEES, CIACCIO and WARD, JJ.
   KLEES, Judge.

Plaintiff Sellers brought suit in the Orleans Parish Civil District Court against six executive officers of Southern Shipbuilding Corporation after he contracted silicosis while working as a painter and sandblaster for Southern. He let this suit lay dormant while pursuing a diversity action in federal court against various manufacturers of masks and other items of protective clothing he wore while sandblasting. These manufacturers impleaded the six executive officers of Southern. After a jury trial, the federal district court held that the manufacturers were not liable for plaintiff’s injuries. Plaintiff then reactivated his state court suit against Southern’s executive officers and insurers. In this suit, the executive officers have impleaded the same manufacturers who were defendants in the federal action, seeking indemnity and/or contribution from them.

After they were made third party defendants, the manufacturers filed an exception of res judicata, claiming that the issue of their liability had already been litigated in the federal court action, which was affirmed on appeal. The district court, on its own motion, noticed the exception of res judicata to be an exception of no right of action. The court then granted the exception, reasoning that because an action for contribution is based upon subrogation, the executive officers could have no greater rights than their subrogor, the plaintiff. Because a suit by plaintiff against the manufacturers would be barred by res judicata, the court held that the executive officers had no right of action against the manufacturers. This ruling is now before us on appeal.

Additionally, the court below granted summary judgment to the executive officers as against Utica Mutual Insurance Company, one of Southern’s insurers. The court held that the insurer could not deny coverage based upon a so-called “pollution exclusion” in its insurance policy, and Utica Mutual has appealed.

We affirm the judgment of the trial court sustaining the exception of no right of action, but reverse the granting of summary judgment, for the following reasons. NO RIGHT OF ACTION

The trial judge was correct in sustaining the exception of no right of action, and dismissing the executive officers’ third party demand against the manufacturers. According to Louisiana Code of Civil Procedure Article 1111, the defendant in the principal action may bring in any person, including a codefendant, “who is his war-rantor, or who is or may be liable to him for all or part of the principal demand.” As there is no contract of warranty in the instant ease, the executive officers, in order to state a cause of action against the manufacturers, must allege that the manufacturers are liable to them for all or part of the principal demand. That is, they must allege that the manufacturers owe them either indemnity or contribution. In this case, the executive officers have demanded both indemnity and contribution, in the alternative.

Indemnity, whether contractual or tortious, is derived from Louisiana Civil Code article 2106, which states:

If the affair for which the debt has been contracted in solido, concern only one of the co-obligors in solido, that one is liable for the whole debt towards the other codebtors, who, with regard to him, are considered only as his securities.

Because the executive officers have not alleged that any contract exists between them and the manufacturers which would effect indemnity, we must presume that they are seeking tort indemnity. Under tort circumstances, the question of whether the affair “concerns” only one of the soli-dary codebtors in the sense of article 2106 is the same as the question of whether one’s negligence was actual and the other’s only constructive, in which case tort indemnity is owed by the one to the other. Trux-illo v. Gentilly Medical Building, Inc., 225 So.2d 488, 495 (La.App. 4th Cir.1969), citing Appalachian Corp. v. Brooklyn Cooperage, Co., 151 La. 41, 91 So. 539 (1922). In other words, in order to support a claim for tort indemnity, it must be said that the one’s negligence caused some injury to the other for which the other is only liable on theoretical grounds. Truxillo, supra, at 496. Therefore, under Louisiana law, a party who is actually negligent or actually at fault cannot recover tort indemnity. Appalachian Corp. supra, Dupree v. Pe-chinay Saint Gobain Co., 369 So.2d 1075, 1081 (La.App. 1st Cir.1979); writ den. 371 So.2d 1341 (La.1979); Joiner v. Diamond M. Drilling Co., 688 F.2d 256, 261 (5th Cir. 1982).

In the instant case, a federal court has already held that the manufacturers were not guilty of any negligence that contributed to the plaintiff’s injury. In addition, the federal jury found on interrogatories that the executive officers were at fault, but this finding was not made a part of the judgment because the officers were only in the federal suit as third party defendants. Even ignoring the jury’s finding with respect to the officers’ negligence, the federal court judgment exonerating the manufacturers would be res judicata with regard to the issue of the manufacturers’ negligence. And, since the manufacturers must have been actively negligent to be held the indemnitor of the officers, we find that the officers do not have a cause of action for tort indemnity in this situation. See: Johnson v. Housing Authority of New Orleans, 163 So.2d 569, (La.App. 4th Cir.1964). Therefore, we must turn our attention to the officers’ claim for contribution.

Contribution among joint tortfeasors or other solidary codebtors is based upon Louisiana Civil Code article 2103, which states, in pertinent part:

When two or more debtors are liable in solido, whether the obligation arises from a contract, a quasi-contract, an offense, or a quasi-offense, the debt shall be divided between them_ If the obligation arises from an offense or a quasi-offense, it shall be divided in proportion to each debtor’s fault.

The article goes on to authorize a defendant who is sued on a solidary obligation to enforce contribution by bringing in his soli-dary codebtor as a third party defendant.

Under Louisiana law, contribution is essentially a type of legal subrogation, as is made clear by Civil Code article 2161, which states, in pertinent part:

Subrogation takes place of right:

(3) For the benefit of him who, being bound with others, or for others, for the payment of the debt, had an interest in discharging it.

In Quatray v. Wicker, 178 La. 289, 151 So. 208 (1933), the Louisiana Supreme stated:

[A]s there is, in law, a solidary liability among all who are condemned together for an offense or quasi offense, he who pays the totality of the solidary judgments can invoke against his associates the legal subrogation ...

Id., 151 So. at 211, quoting Larombriere, Theorie des Obligations, vol. 3, p. 366, § 67 (Emphasis by the Court). The Supreme Court concluded that the issue of contribution between joint tortfeasors was to be governed by articles 2103 and 2161 of the Civil Code, further emphasizing the relationship between contribution and subro-gation. See also: Rouley v. State Farm Mutual Automobile Ins. Co., 235 F.Supp. 786 (W.D.La.1964).

Because contribution is founded upon the principle of subrogation, a joint tortfeasor seeking contribution can have no greater rights than his subrogor, the tort victim. Thus, the Louisiana courts have consistently held that a defendant tort-feasor has no right to claim contribution from a co-tortfeasor whom the plaintiff can not sue directly due to some legal impediment. Roy ley, supra; Johnson v. Housing Authority of New Orleans, supra; Harvey v. Travelers Ins. Co., 163 So.2d 915 (La.App. 3rd Cir.1964). In Johnson, this court sustained an exception of no right or cause of action, holding that a landlord could not maintain a third party claim for contribution against the parents of a minor child who was injured in the landlord’s building because parental immunity would prevent the child from suing his parents. The Court reasoned:

The exception was properly sustained. To allow the defendants herein to prosecute their demands for indemnification or contribution against the parents would in effect be investing a wrongdoer, as against the co-tortfeasor, with a greater right than the tort victim has. The parents may urge their immunity from suit against the demands of the its [sic] co-tortfeasor as well as they could have urged it against any claim asserted by the child. Contribution is founded upon the theory of subrogation.

Johnson, supra at 570; Accord: Rouley v. State Farm, supra. Employing the same reasoning, the Third Circuit held that a tortfeasor could not maintain a claim for contribution against a co-tortfeasor whom the plaintiff was barred from suing directly by virtue of a settlement and release of that party. Harvey v. Travelers Ins. Co., supra.

The crux of these decisions is that, if the plaintiff has no right of action against a particular tortfeasor, neither can the remaining co-tortfeasor have any right of action against the first one for contribution. This principle remains valid whether the plaintiff is barred from suit due to parental immunity, as in Johnson, a compromise and release, as in Harvey, or the res judicata effect of a prior judgment, as in the instant case. For this reason, the trial judge’s reliance upon Quatray v. Wicker, supra and Harvey v. Travelers Ins. Co., supra, in noticing and sustaining the exception of no right of action was proper. We therefore affirm the trial court’s dismissal of the executive officer’s third party demand against the manufacturers.

POLLUTION EXCLUSION

Utica Mutual, one of the liability insurers of Southern, has denied coverage of the plaintiff’s claim against Southern’s executive officers based on the so-called “pollution exclusion” found in its policy. The pertinent language of the policy is as follows:

III. This insurance specifically excludes any liability:
0. for bodily injury including death or property damage of [sic] fines or penalties arising out of discharge, dispersal, or escape of smoke vapors, soot, fumes, acids, alkalies, toxic chemicals, fuel oils or other liquid gases, waste materials, or other irritants, contaminants, or pollutants into or upon land, the atmosphere or any water course, or body of water but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.

In the court below, Utica Mutual moved for summary judgment on the grounds that this language excluded coverage of the plaintiff’s claim, and the executive officers filed a cross motion for summary judgment claiming that the exclusion was inapplicable. In open court, the trial judge denied the motion of Utica Mutual and granted that of the executive officers. We reverse the granting of the executive officers’ motion because we find that this issue cannot properly be decided on summary judgment.

Article 966 of the Louisiana Code of Civil Procedure states that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” (Emphasis added). In this case, Utica Mutual claims that the plaintiff’s inhalation of silica dust while performing his duties as a sandblaster falls within the terms of the exclusion. Conversely, the executive officers argue that the pollution exclusion, which was adopted by the insurance industry in the early 1970’s in response to dramatic environmental disasters such as Torrey Canyon and the Santa Barbara oil spill, was never intended to exclude coverage for the type of foreseeable, work-related injury suffered by the plaintiff. In our view, the question of whether the instant situation falls within the language of the pollution exclusion is primarily a factual issue; i.e., did the particles plaintiff inhaled constitute “irritants, contaminants, or pollutants” which were “discharged, dispersed, or escaped” into or upon “land” or “the atmosphere” within the meaning of the policy? Since the parties obviously do not agree on this issue, we find that there are material facts in dispute which must be referred to a trial on the merits.

Under Louisiana law, when there is any doubt about the meaning of an agreement, the court must ascertain the common intention of the parties, rather than adhering to the literal sense of the terms. La.C.C. Art. 1950; Henry v. Ballard & Cordell Corp., 418 So.2d 1334, 1339 (La.1982). If this intent cannot be adequately discerned from the contract itself, the court may consider parol evidence as to the facts and circumstances surrounding the parties at the time the contract was made. Henry, supra; Paragon Resources, Inc. v. National Fuel Gas Distribution Corp., 695 F.2d 991, 998 — 999 (5th Cir.1983). Therefore, summary judgment is generally not appropriate to show the intent of the parties to a contract, except where their intent is clear from the contract itself. Sally Beauty Co., v. Barney, 442 So.2d 820, 822 (La.App. 4th Cir.1983). Finally, any doubt as to whether there are material facts in dispute is to be resolved against the granting of summary judgment and in favor of a trial on the merits. Employers Surplus Line Ins. Co. v. City of Baton Rouge, 362 So.2d 561, 565 (La.1978); Baker v. Ingram, 447 So.2d 101, 102 (La. App. 4th Cir.1984).

In the instant situation, the trial judge erred in granting summary judgment on the issue of the applicability of the pollution exclusion to the facts of this case. We find that the contract is ambiguous and that the intention of the parties constitutes a genuine issue of material fact which must be decided at a full trial on the merits. For these reasons, we reverse the summary judgment granted to the executive officers of Southern and remand for trial on the merits.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

      . Plaintiff, W.B. Sellers, died after the institution of this suit, which is now being maintained by his heirs.


text:
    STATE of Louisiana v. Keith DAVIS.
    No. KA-2188.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.
    Writ Denied April 12, 1985.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Beryl M. McSmith, Julia S. Coley, Asst. Dist. Attys., New Orleans, for plaintiff-appellee State of Louisiana.
    Loyola Law Clinic, Kevin Giordano, Student Practitioner, David Girard, Supervising Atty., New Orleans, for defendant-appellant Keith Davis.
    Before KLEES, CIACCIO, and WARD, JJ.
   KLEES, Judge.

This appeal follows from the defendant’s conviction of attempted theft of goods valued under $100.00. The defendant, who has been convicted of theft twice previously, was sentenced to serve one year in prison. On appeal, the sole issue is whether the defendant received an illegal or excessive sentence. We find that he did not.

On December 10, 1983, officer Juan Cu-ret, who was working a paid detail as a security guard at a shopping center, walked into Walgreen’s Drugstore and observed the defendant remove a plastic shopping bag from his pocket and open it. He then saw the defendant walk over to a display case and remove from it a box containing a radio, which he placed in the shopping bag. The defendant then walked to a security mirror and looked around as if to see if anyone was watching him, went back to the display case and took another radio. With both radios in the bag, the defendant walked past the cash register in the electronics section and past another checkout station to an entrance gate, which was clearly marked “No Exit”. At this point the defendant turned around and was met by Officer Curet, who asked him what he had in the bag. He responded that the bag contained some things he was bringing back to exchange. When the officer asked to see the bag, the defendant dropped the bag and began running toward the front of the store. He was pursued by Officer Cu-ret, who finally apprehended him with the help of a customer, Richard Alexander. After a struggle, the two men handcuffed the defendant to a display rack. Officer Curet sustained a lacerated elbow with a chipped bone and a partially dislocated shoulder as a result of the struggle. Several other policemen arrived on the scene and conducted a search of the defendant, which revealed no weapons or money. The bag was found to contain two radios, valued at $24.99 each, and no sales receipt. The defendant was charged with the theft of goods valued under $100.00, third offense, in violation of LSA-R.S. 14:67, and pled not guilty. He was tried, and a six-member jury found him guilty of attempted misdemeanor theft as a third offender. He was sentenced to one-year imprisonment, and filed this appeal.

A. Errors Patent

A review of the record reveals there are no errors patent.

B. Sufficiency of Evidence

Even though the defendant has not complained that the evidence was insufficient to convict him, we must nevertheless review the sufficiency of evidence on appeal. State v. Raymo, 419 So.2d 858 (La. 1982). The purpose of our review is to determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979); State v. Andrews, 452 So.2d 687, 688-89 (La.1984). In this case, the State presented as witnesses Officer Curet, Mr. Alexander, and Ms. Virginia Graham, the drugstore manager, all of whom testified uniformly as to the essential facts. In addition, the State introduced documentary evidence of the defendant’s pleas of guilty to two prior theft charges, and the defense stipulated that the defendant had been convicted of these prior crimes.

After reviewing the record thoroughly, we find that the State presented sufficient evidence to prove beyond a reasonable doubt that the defendant was guilty of attempted theft, third offense.

C. Illegal Sentence

The defendant’s sole assignment of error is that the trial judge imposed an illegally excessive sentence. He was sentenced to serve one year in Parish Prison. According to LSA-R.S. 14:27 D(2), the attempt statute:

D. Whoever attempts to commit any crime shall be punished as follows:
(2) If the offense so attempted is theft or receiving stolen things, and is not punishable as a felony, he shall be fined not more than two hundred dollars, or imprisoned for not more than six months, or both. If the offense so attempted is theft or receiving stolen things and is punishable as a felony, he shall be fined not more than two hundred dollars, or imprisoned not more than one year, or both.

The defendant claims that, under this statute, the maximum sentence he could have received is six months because he was convicted of attempted misdemeanor theft, which is not a felony. We disagree with this argument.

The precise language of the statute provides that if the crime which the defendant has attempted is punishable as a felony, the defendant may receive up to one year in prison. LSA-R.S. 14:2(4) defines a felony as “any crime for which an offender may be sentenced to death or imprisonment at hard labor.”

In this case, the jury verdict found the defendant guilty of “attempted misdemeanor theft, third offender.” LSA-R.S. 14:67, the theft statute, provides, in pertinent part:

Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices or representations....
When the misappropriation or taking amounts to less than a value of one hundred dollars, the offender shall be imprisoned for not more than six months, or may be fined not more than five hundred dollars, or both. If the offender in such cases has been convicted of theft two or more times previously, upon any subsequent conviction he shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than one thousand dollars, or both.

(Emphasis added). It is clear that, had the defendant been convicted of misdemeanor theft (rather than of attempted misdemean- or theft) as a third offense, he could have been sentenced to imprisonment with hard labor. In other words, the crime which the defendant attempted is punishable as a felony. This is all that is required by LSA-R.S. 14:27.

The defendant argues that the phrase “in such cases” in LSA-R.S. 14:67 means “in cases where the offender has been convicted of theft of goods valued under one hundred dollars.” We agree. The defendant further contends that, because he was convicted of attempted theft rather than of theft, he cannot be considered a third offender and his offense is not punishable as a felony. This argument ignores the fact that the attempt statute requires only that the crime attempted be punishable as a felony.

In any attempt situation, the offender’s punishment depends upon the sentence he could have received if he had been convicted of having completed the crime attempted. In this case, there is no question that if the defendant had been convicted of the theft, he could have been sentenced to imprisonment with hard labor because he has two prior theft convictions. Thus, the crime he attempted is punishable as a felony, and, under LSA-R.S. 14:27 D(2), the maximum sentence he could receive is one year in prison. Because he did receive one year in prison, we hold that his sentence is not illegal or excessive. Accordingly, for the reasons stated, we affirm the defendant’s conviction and sentence.

AFFIRMED.


author: CIACCIO, Judge.

text:
    STATE of Louisiana v. Carolyn J. HARVEY.
    No. KA 1649.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1985.
    Martin E. Regan, Jr., New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Susan Scott Hunt, Asst. Dist. Atty., New Orleans, for appellee.
    Before KLEES, CIACCIO and WARD, JJ.
   CIACCIO, Judge.

A jury found defendant guilty as charged of possession with intent to distribute pentazocine (talwin). In her brief defendant argued six assignments of error. Because we find the evidence insufficient to sustain the conviction we pretermit any discussion of defendant’s other assignments of error.

FACTS

Based upon information received that “Mattie” was selling “sets” (matched combinations of one pill each of talwin and pyribenzamine) from her house at 2119 Pauger St., two police officers conducted a surveillance of that location. During an hour and a half the officers observed three suspicious transactions at the residence. Based upon the information received and the results of their surveillance the officers applied for and obtained a warrant to search 2119 Pauger St.

Six people were in the residence when the officers arrived to execute the warrant. A search of the residence revealed: ten (10) “sets”, individually packaged, found inside of a Kool cigarette pack located on a dresser in the bedroom; two (2) talwin tablets, a .38 calibre revolver, and one hundred eighty-six ($186.00) dollars in currency found in the kitchen; and a package of ten syringes. The officers arrested all six persons present in the residence.

Of the six persons arrested, the District Attorney charged three: Mattie Johnson, who lives at 2119 Pauger St.; Joseph L. Hart, Mattie Johnson’s son; and Carolyn Harvey (appellant), Mattie Johnson’s daughter. Both Joseph Hart and Carolyn Harvey provided police with 2119 Pauger St. as their address for booking purposes. At trial, however, both claimed to live elsewhere, but to use their mother’s address as their own mailing address. Joseph Hart testified that he smoked Kool cigarettes.

The three persons arrested but not charged included Luther Harvey, Mattie Johnson’s son, and two friends of the family who lived in the neighborhood. At trial Luther Harvey testified that 2119 Pauger St. was his address, and that Carolyn and Joseph did not live there. Luther’s address supplied for booking purposes was 4000 Florida Avenue. Luther claimed that the gun and the money were his. He also admitted to using “T’s and Blues” (sets of talwin and pyribenzamine), and that his habit ran about one hundred ($100) dollars or ten sets a day, plus he had to have syringes which he testified he bought at Waterbury’s. Luther displayed to the jury the needle marks in his arms.

After trial the jury found Mattie Johnson and Carolyn Harvey guilty as charged. Joseph Hart was found not guilty.

LAW

La.R.S. 40:964 classifies pentazocine as a Schedule II drug. La.R.S. 40:967 prohibits the possession of a controlled dangerous substance classified in Schedule II (unless such substance was obtained directly, or pursuant to a valid prescription ...), and makes that crime a more serious violation when the possession is with intent to distribute. Further, La.R.S. 40:967 particularizes violations involving pentazocine.

To convict defendant the prosecution must prove beyond a reasonable doubt that defendant possessed the drug with the intent to distribute the drug. The prosecution is not required to prove actual possession, but needs only to show that the defendant exercised dominion or control over the illegal substance. State v. Walker, 369 So.2d 1345 (La.1979). “With intent to distribute” requires the prosecution to prove defendant’s subjective specific intention of possession in order to distribute. State v. Elzie, 343 So.2d 712 (La.1977). Intent to distribute illegal drugs may be established by proving circumstances surrounding defendant’s possession which give rise to reasonable inferences of intent to distribute. State v. Ramoin, 410 So.2d 1010 (La.1982).

On appeal we review for sufficiency of evidence by viewing the evidence in the light most favorable to the prosecution and determining whether any rational trier of fact could have found each essential element of the crime proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Harveston, 389 So.2d 63 (La.1980).

SUFFICIENCY OF THE EVIDENCE Viewing the evidence in the light most favorable to the prosecution, we find the following facts to have been proved:

(1) The police received information that “Mattie” was selling “sets” out of 2119 Pauger Street.
(2) Surveillance allowed police to observe three visitors apparently engage in drug transactions with someone inside of 2119 Pauger Street.
(3) The officers could not clearly see or otherwise identify the person inside the house who was involved in the transactions, other than to say that it was a “big” person. The officers could not determine whether the person was male or female.
(4) Execution of a search warrant resulted in the seizure from the house of a gun, two individual talwin tablets, ten (10) “sets”, ten syringes and $186.00 in currency.
(5) The “sets” found were packaged for distribution. Distribution normally occurs in “sets” and occasionally a syringe will be sold with a set.
(6) Defendant was present at the time of the search and seizure of the above items, but defendant was not in actual possession of any contraband. She was in the living room of the house when the police entered, and remained there throughout the search.
(7) The drugs were not found in the living room. They were found in the bedroom and the kitchen.
(8) When booked defendant gave 2119 Pauger Street as her address.

Reasonable inferences drawn from these facts may lead to the following reasonable conclusions:

(1)Somebody at 2119 Pauger St. was selling “sets”.
(2) The “sets” found belong to someone, most likely the owner of the Kool cigarette pack or the occupant of the bedroom where they were found.
(3) Ten “sets” is enough to distribute, but is not an amount inconsistent with personal use.
(4) Defendant may live at 2119 Pauger St.
(5) Defendant may have been aware of the presence of the drugs and may have been aware of any distribution activities.

The mere presence of someone in the area where the controlled dangerous substance is found, or mere association with a person found to be in possession of the contraband, is insufficient to constitute constructive possession. State v. Walker, supra. In State v. Johnson, 404 So.2d 239 (La.1981) the Louisiana Supreme Court stated:

Proximity to a drug or association with a possessor may establish a prima facie case of drug possession when colored by other evidence. United States v. Staten, 581 F.2d 878 (D.C.Cir.1978). However, mere association or proximity, without more, is insufficient. Arellanes v. United States, 302 F.2d 603 (9th Cir.1962); State v. Cann, 319 So.2d 396 (La., 1975). Dominion over the illegal substance must be proven. State v. Walker, 369 So.2d 1345 (La., 1979).
404 So.2d at 245.

Carolyn Harvey was in the house when it was searched and the drugs were discovered. She may live there. There is no evidence, however, that she exercised dominion or control over the drugs. No rational trier of fact could have found this essential element of the crime to have been proved beyond a reasonable doubt. Without proving this essential element the State cannot establish that Carolyn Harvey possessed talwin with the intent to distribute. We must reverse her conviction.

Because the reversal is based on the failure of the evidence to prove an essential element of the crime charged and of any lesser included offense of which defendant could have been found guilty, the double jeopardy clause of the Fifth Amendment to the U.S. Constitution bars a second trial of defendant and she must be discharged, Burks v. U.S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); State v. Fontana, 396 So.2d 1251 (La.1981), and a judgment of acquittal is entered. State v. Walker, supra; State v. Liggett, 363 So.2d 1184 (La. 1978).

REVERSED.