author: GROVER L. COVINGTON, Chief Judge.

text:
    STATE of Louisiana v. Charles Lee CARTER.
    Nos. KA 84/0400, KA 84/0401.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      Dixie C. Brown, Asst. Dist. Atty., Hou-ma, for appellee State of Louisiana.
    Indigent Defenders Bd., Houma, for appellant Charles Lee Carter.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON,-VJJ.

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

   GROVER L. COVINGTON, Chief Judge.

Defendant, Charles Lee Carter, was charged by bill of information with one count of aggravated battery. La.R.S. 14:34. By separate bill of information, defendant was also charged with two counts of simple battery (La.R.S. 14:35), four counts of aggravated assault (La.R.S. 14:37), and one count of entry on or remaining in places or on land after being forbidden (La.R.S. 14:63.3). Defendant pled not guilty and was tried by a six-person jury. On one of the aggravated assault counts, defendant was found guilty of the responsive verdict of simple assault. On all remaining counts, defendant was found guilty as charged.

The trial judge sentenced defendant to six years in the custody of the Louisiana Department of Corrections on the aggravated battery charge, and six months in the parish jail at hard labor on each of the six remaining misdemeanor charges, with the six-month terms to run consecutive to one another and concurrent to the six-year term.

Defendant’s counsel filed an appeal, assigning five errors. Counsel for defendant filed a brief, arguing only one assignment of error, No. 1. Thus, his assignments of error, numbers 2 through 5, are considered abandoned. Uniform Rules— Courts of Appeal, Rule 2-12.4. Subsequently, defendant, in proper person, assigned three errors and submitted a brief arguing the errors.

The convictions and sentences arise out of the following set of facts. At approximately 8:30 a.m. on February 22, 1982, defendant was fired from his job at Porche Brothers Cement Company, after an argument with the plant manager. Shortly after noon on the same day, defendant returned to the Cement Company to get his paycheck. Defendant was told that he would get his check when he returned the company’s battery, uniforms, and tools which were in his possession. An argument ensued and defendant struck Keith Porche. Then he pulled a knife and threatened company employees, Keith Porche, Clark Porche, Gerald Coats, and Keith Bou-dreaux. After several minutes of argument and threats, while armed, defendant got into his car, and drove it at Keith Porche who was struck by the car. Porche was carried to Terrebonne General Hospital and treated for injuries. Defendant fled the scene, but was subsequently arrested and charged as stated above.

ASSIGNMENT OF ERROR NO. 1

Defendant first contends that the trial judge erred in instructing counsel for the state and defense that during voir dire they were to refrain from attempting to explain reasonable doubt, specific criminal intent and general criminal intent. The trial judge permitted them to read only the definitions of the terms. Defendant contends that the court’s ruling constituted a violation of the constitutional mandate guaranteeing defendant the right to full voir dire examination of prospective jurors.

An accused in Louisiana has a “right to a full voir dire examination of prospective jurors and to challenge jurors peremptorily.” La. Const.1974, Art. I, § 17. La.C. Cr.P. art. 786 provides that the court, the state, and the accused shall have the right to examine prospective jurors.

The accused’s right to “full voir dire examination” includes the right to make such inquiries of prospective jurors as will enable him to secure his constitutional rights, not only by showing grounds for challenges for cause, but also by eliciting facts which will empower him to exercise intelligently his right of peremptory challenge; and the right to examine a prospective juror challenged for cause by the prosecution in order to demonstrate his impartiality. State v. David, 425 So.2d 1241 (La.1983).

It is well established that the scope of voir dire examination is within the trial judge’s discretion and his ruling will not be disturbed in the absence of a clear abuse of that discretion. La.C.Cr.P. art. 786; State v. Stucke, 419 So.2d 939 (La.1982).

We find no abuse of discretion in the trial judge’s ruling limiting counsels’ “explanation” of legal terms. State v. Stevenson, 447 So.2d 1125 (La.App. 1st Cir. 1984). This limitation in no way unfairly restricted counsel’s opportunity to fully examine the prospective jurors as to their suitability. The instruction on the law is the sole, province of the judge.

We find no merit in this assignment of error.

PRO SE ASSIGNMENT OF ERROR NO. 1

Defendant argues that the trial judge erred in refusing to allow the introduction of evidence of prior specific acts of violence by the victim toward previous employees. Defendant contends that such evidence is necessary to show the probability that the victim was the aggressor.

Once an overt act of the victim has been established, evidence of his dangerous character is admissible to help determine who was the aggressor in the conflict. State v. Edwards, 420 So.2d 663 (La.1982). In such instances, the evidence sought to be introduced must comply with La.R.S. 15:479 which states:

Character, whether good or bad, depends upon the general reputation that a man has among his neighbors, not upon what particular persons think of him.

Under this rule, proof of a victim’s character tending to prove who is the aggressor in the conflict must be established by the general reputation of the victim, not by specific acts. Only evidence of general reputation, not evidence of specific acts or personal opinion, is admissible to establish who was the aggressor in the conflict. State v. Boss, 353 So.2d 241 (La.1977).

In the instant case, defense counsel sought to elicit testimony from the victim and from a previous employee regarding prior specific altercations between the victim and third persons. Even assuming that defendant established the requisite “overt act” on the part of the victim, evidence of prior specific acts of violence by the victim toward third persons is inadmissible. State v. Jones, 451 So.2d 1181 (La.App. 1st Cir.1984).

We find no merit in this assignment of error.

PRO SE ASSIGNMENT OF ERROR NO. 2

Defendant further argues that the trial court erred in admitting into evidence photographs of defendant’s ear, and parts of an automobile.' At trial, defense counsel objected to the photographs “based upon custody” and to the automobile parts “based upon insufficiency to establish.” However, in brief, defendant only argues that testimony offered by the police officer, Lieutenant Walling, concerning the automobile parts is improper, because the officer had not been qualified as an expert in metallurgical engineering.

The pro se assigned error No. 2 concerning the introduction of the exhibits complained of has not been briefed on appeal and is considered abandoned. Uniform Rules — Courts of Appeal, Rule 2-12.4.

Regarding defendant’s argument concerning Officer Walling’s testimony, no contemporaneous objection was made at trial, hence we are unable to consider it. La.C.Cr.P. art. 841; State v. Vanderhoff, 415 So.2d 190 (La.1982).

PRO SE ASSIGNMENT OF ERROR NO. 3

Finally, in pro se assignment No. 3, defendant argues that the trial court erred in allowing the district attorney to present evidence of defendant’s prior convictions. In brief, defendant admits that he has a prior conviction; however, he contends that the district attorney incorrectly identified the conviction as one for aggravated battery/simple battery, when it was for discharge of a firearm. The record does not support this contention.

At trial, defendant chose to take the stand to relate to the jury his own version of the events surrounding the incident. On direct examination, defendant testified that he had never been convicted of a crime. On cross-examination, defendant again denied any prior convictions. The district attorney then proceeded to question defendant as to prior convictions for aggravated battery and simple battery. Subsequently, the district attorney introduced a true copy of a minute entry showing that defendant had previously pled guilty to one count of aggravated battery and one count of simple battery.

La.R.S. 15:495 provides:
Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein.

Defendant’s failure to admit any prior convictions entitled the state to adduce evidence of prior convictions from any other source. State v. Alpine, 404 So.2d 213 (La.1981). Thus, the introduction of the minute entry of defendant’s guilty plea to aggravated battery and simple battery was admissible and proper.

This assignment of error lacks merit.

PATENT ERROR

The court notes, on its own motion, two sentencing errors.

Defendant was charged with four counts of aggravated assault. La.R.S. 14:37. On one of these counts, defendant was found guilty of the responsive verdict of simple assault. The authorized sentence for simple assault is a fine of not more than two hundred dollars, or imprisonment of not more than ninety days, or both. La.R.S. 14:38. However, on this count, the trial judge sentenced defendant to serve six months in the parish jail. Such sentence is unauthorized by statute. We, therefore, vacate that portion of defendant’s sentence ordering that he serve six months in the parish jail for the conviction of a simple assault and remand for resentencing.

In addition, on each of the six misdemeanor counts, defendant was ordered to serve his sentences “at hard labor in the parish jail.” The legislature has not provided for such a sentence. See La.R.S. 14:35, 37, and 38. We, therefore, vacate those portions of defendant’s sentences ordering that he serve his time “at hard labor in the parish jail,” and remand for resen-tencing.

The case is remanded to the trial court for resentencing in order to correct the above sentencing errors.

In all other respects, defendant’s sentences and convictions are affirmed.

AFFIRMED IN PART, VACATED IN PART AND REMANDED.

      . The charge of entry on or remaining in places or on land after being forbidden, pursuant to La.R.S. 14:63.3, was nolle prosequied.


source: Caselaw Access Project

author: CARTER, Judge:

license: Public Domain

text:
    STATE of Louisiana v. Kenneth SPEARS. STATE of Louisiana v. Kenneth SPEARS.
    Nos. 84 KA 0420, 84 KA 0421.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Writ Denied Feb. 8, 1985.

      Ossie Brown, Dist. Atty. by Luke Lav-ergne, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Anne L. Jordan, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COLE, CARTER and LANIER, JJ.
   CARTER, Judge:

Defendant, Kenneth W. Spears, was charged by separate bills of information with two instances of possession of controlled dangerous substances. Bill # 10-81-636 charged that on September 19, 1981, defendant did knowingly • and intentionally possess phenmetrazine, a violation of LSA-R.S. 40:967(C). Bill #1-83-289 charged that on December 31, 1982, defendant did knowingly and intentionally possess pentazocine, a violation of LSA-R.S. 40:967(C). Defendant initially entered pleas of not guilty and filed motions to suppress physical evidence seized at the time of each arrest. After the trial judge denied the motions, defendant changed his pleas to guilty and expressly reserved his right to appeal the denials of the motions. See State v. Crosby, 338 So.2d 584 (La.1976). Defendant was sentenced to serve five years at hard labor on each charge. The sentences are to be served concurrently. In addition, defendant was ordered to pay $251.20 in court costs.

On appeal defendant urges four assignments of error.

ASSIGNMENT OF ERROR NO. 1

In Assignment of Error No. 1, defendant argues that the trial court erred when it denied defendant’s motion to suppress physical evidence seized on September 19, 1981.

The motion to suppress was submitted to' the court on the transcript of the preliminary examination. At the preliminary examination, Officer Bruce Sarrazin, of the Baton Rouge City Police Department, testified as follows. On September 19, 1981, at 7:20 p.m., Sarrazin and a partner were in front of a bar called Duster Pamela’s. They were in the process of writing summonses for two individuals who were in violation of the Baton Rouge city ordinance banning open containers of alcoholic beverages in public. Baton Rouge City Ordinance, Title 13, Chapter 10, Sec. 608, 610. Sarrazin noted defendant coming around the corner holding an open alcoholic beverage in one hand and a plastic bag in the other hand. Sarrazin testified: “When [defendant] walked around the corner, I told him to come here, and he just froze.” Defendant then started to put his hand in his pocket. Sarrazin stated that he was concerned that defendant might have had a weapon in his pocket. At this point, Sarra-zin, who was a short distance away from defendant, reached for defendant’s hand as it disappeared into defendant’s pocket. Sarrazin stated: “By the time his hand reached the bottom of his pocket, my hand was with his.” Sarrazin removed his hand, defendant’s hand, and a plastic bag from defendant’s pocket. The plastic bag contained tablets which were later identified as phenmetrazine, a controlled dangerous substance.

The Fourth Amendment to the federal constitution protects people against “unreasonable searches and seizures”. Measured by this standard, LSA-C.Cr.P. art. 215.1, as well as federal and state jurisprudence, recognizes the right of a law enforcement officer to temporarily detain and interrogate a person whom he reasonably suspects is committing, has committed or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Lanter, 391 So.2d 1152 (La.1980); State v. Snoddy, 389 So.2d 377 (La.1980). It has been held that reasonable cause for an investigatory detention is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. State v. Lanter, supra; State v. Snoddy, supra.

In the case sub judice, Sarrazin testified that he saw defendant walk around the comer with an open bottle of beer in one hand and a plastic bag in the other. Sarrazin stated that defendant was “just taking [the beer] away from his mouth.” Under these factual circumstances, Sarra-zin was clearly justified in detaining defendant. Since the defendant was committing a crime in the presence of the officer, he could have been arrested. LSA-C.Cr.P. art. 213(1).

Once a lawful detention is made, a police officer is justified in frisking the suspect for weapons under circumstances where he reasonably suspects that he is in danger of life or limb. LSA-C.Cr.P. art. 215.1(B); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); State v. Lanter, supra; State v. Jernigan, 377 So.2d 1222 (La.1979), cert. denied, 446 U.S. 958, 100 S.Ct. 2930, 64 L.Ed.2d 816 (1980). Further, the officer’s belief is not reasonable unless the officer is “able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917, 935 (1968). State v. Hunter, 375 So.2d 99 (La.1979). It is not necessary that the investigating officer establish that it was more probable than not that the detained individual was armed and dangerous; it is sufficient that he establish a “substantial possibility” of danger. State v. Hunter, supra.

In testifying, Sarrazin stated that defendant had started to put his hand in his pocket. Sarrazin further stated his concern that defendant may have been attempting to get a weapon. Thus, Sarrazin was able to point to particular actions taken by defendant from which it could be reasonably inferred that defendant was armed and dangerous. Clearly, Sarrazin was justified in reacting quickly and conducting a limited search of defendant for weapons.

In summary, the initial detention and subsequent search of defendant by Officer Sarrazin was justified. Accordingly, the trial judge did not err in denying defendant’s motion to suppress the evidence obtained as a result thereof.

We find no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 2

In Assignment of Error No. 2, defendant argues that the trial court erred when it denied defendant’s motion to suppress physical evidence seized on December 31, 1982.

The motion to suppress was submitted to the court on the transcript of the preliminary examination. At the preliminary examination, the following facts were adduced. Uniformed officers in a marked police car were cruising the area of 39th and Cain Streets in Baton Rouge on December 31, 1982, at 1:30 p.m. The officers observed several black males standing next to a house. As the officers approached, the group of men dispersed. Defendant walked rapidly away from the group, headed toward 38th Street, and then ducked behind a building. As the officers circled the building, they observed defendant throw a cigarette pack over a fence and then run around the fence. At this point, one of the officers got out of the car and detained defendant. The cigarette pack was recovered and was found to contain pentazocine tablets.

The right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by LSA-C.Cr.P. art. 215.1, as well as both the federal and state jurisprudence. Terry v. Ohio, supra; State v. Chopin, 372 So.2d 1222 (La.1979). We have held that reasonable cause for an investigatory detention is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts to justify an infringement on the individual’s right to be free from governmental interference. State v. Chopin, supra.

The police have the right to engage anyone in conversation, even without reasonable grounds to believe that they have committed a crime. State v. Duplessis, 391 So.2d 1116 (La.1980). However, the police cannot approach citizens under circumstances that make it seem that some form of detention is imminent, unless they have probable cause to arrest the individual or reasonable grounds to detain the individual. Police officers cannot actively create “street encounters,” unless they have knowledge of suspicious facts and circumstances sufficient to allow them to infringe on the suspect’s right to be free from governmental interference. State v. Saia, 302 So.2d 869, 873 (La.1974), cert. denied, 420 U.S. 1008, 95 S.Ct. 1454, 43 L.Ed.2d 767 (1975).

When police officers make an investigatory stop without the legal right to do so, property abandoned or otherwise disposed of as a result thereof cannot be legally seized. If, however, property is abandoned without any prior unlawful intrusion into a citizen’s right to be free from government interference, then such property may be lawfully seized. In such eases, there is no expectation of privacy, and, thus, no violation of a person’s custodial rights. It is only when the citizen is actually stopped without reasonable cause or when a stop without reasonable cause is imminent that the “right to be left alone” is violated, thereby rendering unlawful any resultant seizure of abandoned property. State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, — U.S. -, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984).

In the instant case, the crucial inquiry is whether, at the time defendant disposed of the pentazocine tablets, the police officers had effected an actual or imminent unlawful detention. According to the facts as outlined previously, during the course of a routine neighborhood patrol, the police saw defendant throw away a cigarette pack. At the time, the officers were still inside their patrol car and were some distance away from defendant. Defendant was not under restraint and clearly abandoned the cigarette pack. Accordingly, the trial judge did not err in denying defendant’s motion to suppress the evidence obtained.

We find no merit in this assignment of error.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

In Assignments of Error Nos. 3 and 4, defendant contends that the trial judge failed to comply with LSA-C.Cr.P. art. 894.1 and that the trial judge imposed excessive sentences.

The Code of Criminal Procedure sets forth the items which must be considered by the trial judge before passing sentence. LSA-C.Cr.P. art. 894.1. The trial judge need not recite the entire checklist of article 894.1, but the record must reflect that the judge adequately considered the guidelines. State v. Davis, 448 So.2d 645 (La.1984).

In sentencing defendant, the trial judge stated there was an undue risk that defendant would commit another crime, citing the fact that defendant had been arrested six times as an adult, had four convictions, and was classified as a second felony offender. The trial judge further stated that defendant was in need of correctional treatment or a custodial environment that can best be provided by commitment to an institution. In support of this the trial judge noted that defendant was on probation at the time of the instant offense and that defendant had refused to participate in a drug treatment program while on probation.

The trial judge more than adequately satisfied the statutory criteria set forth in LSA-C.Cr.P. art. 894.1.

We find no merit in Assignment of Error No. 3.

Next, defendant contends that the trial judge imposed excessive sentences.

A majority of the Louisiana Supreme Court has held that Article I, Section 20 of the Louisiana Constitution of 1974 prohibits the imposition of excessive punishment and that, although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762 (La.1979). The trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Prados, 404 So.2d 925 (La.1981); State v. Spencer, 374 So.2d 1195 (La.1979).

One convicted of possession of pentazo-cine shall be imprisoned with or without hard labor for not less than two years and not more than five years and, in addition, may be sentenced to pay a fine of not more than five thousand dollars. LSA-R.S. 40:967(C)(1). One convicted of possession of phenmetrazine shall be imprisoned with or without hard labor for not more than five years and, in addition, may be sentenced to pay a fine of not more than five thousand dollars. LSA-R.S. 40:967(C)(2). In the instant case, the trial judge sentenced defendant to five years at hard labor for possession of pentazocine and five years at hard labor for possession of phen-metrazine.

In imposing sentence, the trial judge noted that defendant had several pri- or convictions, that defendant was a second felony offender, and that defendant had previously performed unsatisfactorily while on probation. After considering all of the above, the trial judge imposed the maximum sentence in each case and ordered the sentences to be served concurrently. We find no abuse of the great discretion afforded the trial judge.

This assignment of error is without merit.

Accordingly, defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . The original bill charged defendant with violation of LSA-R.S. 40:967(A), distribution of phen-metrazine. However, immediately prior to taking defendant’s guilty plea, the error was noted and the bill of information was amended with defense counsel’s knowledge and agreement.


author: JOHN S. COVINGTON, Judge Pro Tempore:

text:
    STATE of Louisiana v. John VAMPRAN.
    No. 84 KA 0467.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Rehearing Denied Dec. 28, 1984.

      William J. Burris, Asst. Dist. Atty., Franklinton, for the State.
    Sam J. Collett, Jr., Bogalusa, for defendant.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON , JJ.

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

   JOHN S. COVINGTON, Judge Pro Tempore:

The defendant, John Vampran, was charged by Grand Jury indictment with two counts of distribution of cocaine, violations of LSA-R.S. 40:967(A). After he entered a plea of guilty to one count, the other was nolle prosequied and defendant was sentenced to serve five years at hard labor. He appealed, alleging three assignments of error.

The issues are: (1) whether the trial judge failed to comply with the provisions of LSA-C.Cr.P. Art. 894.1; (2) whether the trial judge improperly considered inappropriate sentencing factors; and (3) whether the sentence imposed is excessive.

To prevent the possible imposition of excessive punishment and to guide the trial court in its sentencing tasks, the legislature enacted LSA-C.Cr.P. Art. 894.1, which sets forth factors which justify a sentence of imprisonment and other factors which tend to indicate suspension of sentence or probation as more appropriate. State v. Smith, 430 So.2d 31 (La.1983). In imposing sentence, a trial judge must comply with the mandatory requirements of the article and individualize the sentence by stating for the record the considerations taken into account and the factual bases therefor. State v. Jones, 381 So.2d 416 (La.1980). However, the article does not require that the trial judge set forth all of the factors listed in the statute to which he or she accorded weight in determining to impose a sentence of imprisonment. State v. Jacobs, 383 So.2d 342 (La.1980).

We are satisfied from our review of the record that the trial judge adequately considered the relevant factors of Art. 894.1, and thus we find no merit in defendant’s first assignment of error. However, defendant argues that the trial judge improperly considered numerous inappropriate sentencing factors, and we agree.

In deciding whether to confine a defendant or to grant him probation, the judge must consider the factors listed in Art. 894.1, based upon factual determinations. The judge should review the defendant’s personal history, prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. State v. Jackson, 360 So.2d 842 (La.1978). It is not improper for the judge to take into account larger sociological concerns in imposing sentence, as long as the sentence is particularized to the defendant. State v. Ray, 423 So.2d 1116 (La.1982); State v. Bourgeois, 406 So.2d 550 (La.1981).

In imposing sentence, the trial judge emphasized his belief that defendant, by engaging in the distribution of drugs, was contributing to the “degradation of society”. He indicated that he hoped by imposing a sentence of imprisonment to send a message to other drug offenders in the community. While the judge’s concerns in regard to the seriousness of the drug problem in our society were valid, it is apparent that his outrage prevented him from imposing a properly individualized sentence. Similarly, a desire to teach others a lesson is not an acceptable basis for the penalty imposed on the defendant. State v. LaFleur, 391 So.2d 445 (La.1980); State v. Touchet, 372 So.2d 1184 (La.1979).

The trial judge also relied upon other considerations for which we are unable to find any supporting factual evidence in the record. These statements concerned: (1) the alleged bad company defendant was associating with, which the judge felt would lead him into further criminal activity if placed on probation rather than incarcerated; (2) the young people defendant may have influenced into criminal activity; and (3) the dependents the defendant may have deprived of needed support by encouraging drug purchases. Because no factual basis was given to support any of these generalized statements, they were inappropriately considered by the trial judge in imposing a sentence of incarceration. Bourgeois, supra, at 553-554.

Finally, the trial judge erred in concluding that “there are some crimes that are so serious that they demand incarceration for the benefit of the community and society, even though that (sic) the defendant may otherwise seemingly qualify for probation. The court believes that this is one of those such instances.” The seriousness of an offense is but one of several factors a sentencing judge should consider when deciding whether to impose incarceration or probation. LSA-C.Cr.P. Art. 894.1; State v. Jackson, supra. When the statute violated by the defendant does not prohibit the sentencing judge from suspending the sentence and placing him on probation, it is error for the judge to substitute his judgment regarding the serious nature of an offense for that of the legislature.

Finally, defendant contends that the sentence imposed is unconstitutionally excessive.

Article 1, § 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. A sentence may be within statutory limits, yet still be violative of a defendant’s constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979). However, a trial judge is given wide discretion in the imposition of sentence within statutory limits, and the sentence imposed will not be set aside as excessive in the absence of an abuse of that discretion. State v. Sepulvado, supra.

In the instant case, the record reveals that on two occasions defendant sold one gram of cocaine to a police undercover agent. In the presentencing report, defendant revealed that he was given the cocaine to sell by his brother-in-law, who was going out of town and wanted to get rid of it. He stated at the sentencing hearing that he did it solely because he had been laid off from his job for a month and was being pressed by his estranged wife to pay the court-ordered child support he owed their daughter. He admitted that he had also sold one or two other grams to others. Defendant was 27 years old at the time of the offense and was a high school graduate. He had worked steadily since graduation, except for the month he had been laid off. He had married, had a child, and been divorced; he was paying $200 per month child support. He denied ever selling drugs on any other occasion, and there was no evidence presented by the state to prove otherwise. In fact, the state did not put on any evidence at all at the sentencing hearing. Defendant was not arrested until five months after the undercover purchase, in a “round-up” by the Bogalusa police department.

Defendant further testified that he was currently working for a construction company in Slidell. As he lives in Bogalusa with his father, he must rise at 4:30 a.m. to drive to New Orleans, and does not return home until 6 or 7 p.m. He rarely goes out, and then only with his girlfriend, whom he intends to marry. He expressed remorse for his criminal behavior. Defendant has no prior juvenile or adult record for arrests or convictions, except for a traffic violation and a misdemeanor charge, drinking in public. The probation officer concluded in his report that defendant, as a first felony offender, was eligible for a suspended sentence with supervised probation.

Defendant’s father testified that his son had never given him any problems before, was very remorseful over his mistake and continued to suffer for it. He stated that defendant and his girlfriend had a strong relationship. He further testified that when his son had been laid off, he looked for a job but could not find one. He was ultimately rehired by his previous employer. Defendant’s mother also testified, stating that her son was remorseful and lived a quiet life, seeing only his girlfriend.

Other friends and relatives of the defendant testified, all stating that he was a good person who had never been in trouble before, but who had just made one mistake. They confirmed the previous testimony about defendant’s remorse and his current activities and relationship with his girlfriend. That young lady testified that she had suffered a heart attack in January of 1982 and that defendant had given her a reason to live. She stated that he was extremely sorry for what he had done, and had cried and lost sleep in remorse.

The trial judge, in articulating for the record the considerations taken into account and the factual bases therefor, concluded that, given the factors discussed supra (which we have determined to have been inappropriately considered), the imposition of imprisonment was warranted. He found no justification for commission of the offense in defendant’s period of employment, noting that defendant had failed to apply for unemployment compensation or seek financial aid from his family. He also felt that if defendant were placed on probation, the circumstances which led to his committing the offense might well recur. He also felt that any penalty less severe would deprecate the seriousness of the offense.

The sentence for a violation of LSA-R.S. 40:967(A) is imprisonment at hard labor for not less than five years nor more than thirty years, with the option available of a fine of not more than $15,000. The statute does not prohibit the trial judge from suspending the sentence and placing the defendant on probation. Defendant’s sentence is thus the statutory minimum for incarceration.

Considering only the factors appropriate in sentencing, and disregarding the concerns which motivated the trial judge to impose incarceration for this defendant, it is our conclusion that under these particular circumstances the trial judge abused his sentencing discretion.

For the foregoing reasons, defendant’s sentence is vacated and the case remanded to the trial court for resentencing in accordance with the views expressed herein.

SENTENCE VACATED, REMANDED FOR RESENTENCING.


author: DOUCET, Judge.

text:
    Jeannie M. CUPP, Individually, and as the Natural Tutrix of the Minor Child, Russell G. Cupp, Jr., Plaintiff-Appellant, v. FEDERATED RURAL ELECTRIC INSURANCE CO., et al., Defendant-Appellee.
    No. 83-1049.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 28, 1984.
    Rehearing Denied Jan. 4, 1985.

      Charles Wagner, Pineville, Chris J. Roy and Michael Shannon, Alexandria, for plaintiff-appellant.
    Brittain & Williams, Joe Payne Williams, Natchitoches, for defendant-appellee.
    Before FORET, DOUCET and KNOLL, JJ.
   DOUCET, Judge.

This appeal involves two wrongful death actions. The first was filed by Jeannie M. Cupp, individually, and as the natural tu-trix of the minor child, Russell G. Cupp, Jr. The second was filed by Bobbie Jean Ryder on behalf of the minor children Randall Cupp and Angela Cupp. Among the named defendants were the decedent’s employer, S & D Construction Co. and its insurer, Federated Rural Electric Insurance Co., who are the appellees on this appeal Because the issues in Mrs. Cupp’s suit (No. 83-1049) are identical to those in the suit filed by Mrs. Ryder (No. 83-1050) both cases will be considered in this opinion. See also 459 So.2d 1341.

Randall Cupp was fatally electrocuted on February 20,1981 while participating in the task of changing reclosure switches on high voltage power lines. The plaintiff-appellants both filed identical wrongful death actions against several defendants, including the decedent’s employer, S & D Construction Co. and its insurer, Federated Rural Electric Insurance Co., which were subsequently consolidated for trial. These wrongful death petitions alleged that workmen’s compensation is not the exclusive remedy because the decedent’s death was caused by the “intentional act of the decedent’s employer”. S & D Construction Co. and Federated Rural Electric Co. filed a peremptory exception of no cause of action and a motion for summary judgment. The motion argues that the decedent’s death was not caused by the intentional acts of S & D Construction Co. and that there are no genuine factual issues pertaining to this fact. After a hearing on the matter the trial court sustained the peremptory exception of no cause of action because the plaintiffs did not sufficiently allege the intent of S & D Construction Co. and granted the motion for summary judgment because the available evidence leads to the inevitable conclusion that the decedent’s death was not intentionally caused by S & D Construction Co. The plaintiff-appellants perfected this appeal.

The plaintiff-appellants specify two assignments of error. First, the appellants contend that the trial court erred when it held that their petitions did not sufficiently allege a cause of action in wrongful death. Secondly, the appellants argue that the trial court erred when it concluded that there was no genuine factual dispute concerning the issue of the defendant’s intent in causing his death that would render the exclusive remedy rule of workmen’s compensation inapplicable.

LSA-R.S. 23:1032 provides that an employee’s exclusive remedy against its employer in event of an accident or death is in workmen’s compensation benefits unless the accident or death was caused by an intentional act of the employer. The Louisiana Supreme Court in Bazley v. Tortorich, 397 So.2d 475 (La.1981) interpreted “intentional acts” to be the equivalent of intentional torts. The Supreme Court elaborated further and said that in order to fall within this exception to the exclusive remedy rule the plaintiff must prove that the co-employee tort-feasor either consciously desired the physical results of his act or knew that the result was substantially certain to follow. The first issue on this appeal is whether the plaintiff-appellants sufficiently alleged that S & D Construction Co., through its agents, consciously desired the decedent’s death through its conduct or were substantially certain that the death would follow. If the petitions meet this test then the remaining issue is whether the trial court erred in its conclusion that there is no genuine issue concerning the defendant’s state of mind as a cause of the decedent’s death.

It is well settled that a peremptory exception of no cause of action tests the legal sufficiency of the petition and for the purposes of the validity of this exception all well-pleaded allegations of fact are accepted as true and if the allegations set forth a cause of action as to any part of the demand the exception must be overruled. La.C.C.P. Art. 927; Haskins v. Clary, 346 So.2d 193 (La.1977).

The plaintiff-appellants’ petition in pertinent part reads as follows:

“14.
Your petitioner further shows that in the alternative, the sole and proximate cause of this accident and injuries which were sustained by the decedent herein, was the intentional, primary and sole negligence of S & D, their agents and employees whose acts of intentional negligence include but are not limited to the following:
A. Intentionally failing to observe industry-wide safety procedures;
B. Total disregard for the safety of others;
C. Intentionally failing to warn the decedent, as well as the general public, of the inherent danger of this recloser, cross-arm, switch and power line;
D. Intentionally failing to de-energize the power line hereinabove complained of;
E. Intentionally failing to instruct the decedent and other employees in the recognition and avoidance of unsafe conditions and the regulations applicable to the work environment to control or eliminate any hazards such as herein complained of which would result to exposure to illness or injury;
F. By intentionally permitting employees to approach closely to exposed energized parts allowed by the law and regulations of the Federal Government, State of Louisiana, and OSHA, without the employee being insulated or guarded from the energized part insulated or guarded from the employee or without the employee being isolated, insulated or guarded from any conductive object, such as grounded reclosure rack;
G. Intentionally failing to provide a properly grounded bucket truck;
H. Intentionally failing to provide adequate safety equipment including rubber gloves, rubber-line and rubber-insulated blankets;
I. Intentionally failing to adequately mark recloser switches;
15.
All of the above stated acts of negligence were so gross, so as to constitute intentional tort in that the defendant by the above said conduct either desire to bring about the physical results of this act or believed they were substantially certain to follow from what the defendant S & D did or omitted to do.
16.
Further, the S & D knew or should have known that the consequences are certain, or are substantially certain to result from the above described acts or omissions.”

The defendant-appellees argue that the petition at best alleges a cause of action in negligence but that the operative paragraph 15 of the petition is a legal conclusion that should not be considered in determining the legal sufficiency of the petition. The appellee cites Shores v. Fidelity & Casualty Co. of New York, 413 So.2d 315 (La.App. 3rd Cir.1982) as authority for this position.

It is true that this court in Shores, supra, considered such a statement to be a conclusion of the pleader that was to be disregarded when examining the legal sufficiency of a petition. However, in Mayer v. Valentine Sugars, Inc., et al., 444 So.2d 618 (La.1984) the Louisiana Supreme Court relaxed the requirements for pleading intent in a cause of action. The Supreme Court based its relaxation of pleading requirements with respect to intent on La.C. C.P. art. 856 which reads in part, “Malice, intent, knowledge and other conditions of mind of a person may be alleged generally.” The court noted that the purpose of this article is to relieve the pleader of the near impossible burden of pleading particularized facts about a person’s state of mind and therefore “it is permissible for the employee to plead the intent element of his intentional tort cause of action generally and without particularity”. Mayer, 444 So.2d at 620. In light of this principle, we hold that the plaintiff’s allegation “That the defendant by the above said conduct either desired to bring about the physical result of this act or believed they were substantially certain to follow from what the defendant S & D did or omitted to do”, is not a conclusion to be disregarded but is a well-pleaded general allegation of intent that when accepted as true states a cause of action in tort as an exception to the exclusive remedy rule in suits by employees against their employers. The trial court’s ruling that sustained the peremptory exception of no cause of action is reversed.

It should be noted that the Supreme Court in Mayer, supra, added that petitions alleging intentional torts need not be scrutinized so strictly because the appropriate available method of discerning the substance of a petition’s allegation is by a motion for summary judgment. Thus the remaining issue of this appeal is the propriety of the trial court’s conclusion that no genuine issue of fact exists concerning the defendant’s state of mind as a cause of the decedent’s death.

La.C.C.P. art. 926 provides that a motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, admissions on file together with affidavits, show no genuine issues of material fact and that the mover is entitled to judgment as a matter of law. Only when reasonable minds must inevitably concur that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Clement v. Taylor, 382 So.2d 231 (La.App. 3rd Cir.1980); Cates v. Beauregard Electric Cooperative Inc., 328 So.2d 367 (La.1976). The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of summary judgment and in favor of a trial on the merits to resolve disputed facts. Employers Surplus Line Insurance Co. v. City of Baton Rouge, 362 So.2d 561 (La.1978); Andrew Development Corp. v. West Esplanade Corp., 347 So.2d 210 (La.1977). Finally it should be noted that a summary judgment is rarely appropriate when a determination of subjective facts is involved such as motive, intent or good faith. Fontenot v. Aetna Insurance Co., 225 So.2d 648 (La.App. 3rd Cir.1969).

The record does not support the inevitable conclusion that Mr. Cupp’s death was not substantially certain to follow from any disregard for safety by S & D Construction Co. and its employees. There is nothing in the record which explains the circumstances surrounding the death of Mr. Cupp. Without this information it is impossible to determine whether Mr. Cupp’s death was the result of an intentional tort committed by an employee of S & D Construction Co. Therefore, the defendant-appellee as the mover for summary judgment did not sustain its burden of showing that there is no genuine issue of material fact with respect to the cause of the decedent’s death, especially in this case which involves a determination of the subjective intent of the defendant. There remain genuine issues concerning the material facts surrounding the decedent’s death therefore, the trial court should not have granted the defendant-appellee’s motion for summary judgment. The trial court’s judgment .which granted the motion is reversed and the case is remanded in order to determine the cause of Mr. Cupp’s death.

The trial court’s ruling that sustained the defendant-appellee’s peremptory exception of no cause of action is reversed. The plaintiff-appellants properly alleged the defendant’s intent as the cause of the decedent’s death in general terms. Mayer, supra. When this allegation is accepted as true, the petition states a cause of action by an employee against his employer for wrongful death. Since the petition properly stated a cause of action, we addressed the defendant-appellee’s Motion for Summary Judgment. We reverse the trial court’s decision to grant the Motion. The record does not establish that there are no issues of material fact with respect to the defendant’s intent as the cause of the decedent’s death. This case is remanded for proceedings not inconsistent with this opinion. The defendant-appellee is assessed the cost of this appeal.

REVERSED AND REMANDED.


text:
    Bobbie Jean RYDER, as the Natural Tutrix and on Behalf of the Minor Children, Randall CUPP and Angela Cupp, Plaintiffs-Appellants, v. FEDERATED RURAL ELECTRIC INSURANCE CO., et al., Defendant-Appellee.
    No. 83-1050.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 28, 1984.
    Rehearing Denied Jan. 4, 1985.
    Charles Wagner, Pinesville, Chris J. Roy, and Michael Shannon Alexandria, for plaintiff-appellant.
    Brittain & Williams, Joe Payne Williams, Natchitoches, for defendant-appellee.

      Before FORET, DOUCET and KNOLL, JJ.
   DOUCET, Judge.

For the reasons assigned in the matter entitled Cupp v. Federated Rural Electric Insurance Co., 459 So.2d 1337 (La.App. 3d Cir.1984), this case is Reversed and Remanded, and the defendant-appellee is assessed with the cost of this appeal.

REVERSED AND REMANDED.


author: DOMENGEAUX, Judge.

text:
    Julius Griffin SEPULVADO, Plaintiff-Appellant, v. WILLAMETTE INDUSTRIES, Defendant-Appellee.
    No. 83-1074.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    William D. Dyess, Many, for plaintiff-appellant.

      Brittain & Williams, Joe Payne Williams, Natchitoches, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   DOMENGEAUX, Judge.

This is a worker’s compensation case. The plaintiff, Julius Griffin Sepulvado, seeks benefits for partial disability, statutory penalties, and attorney’s fees. From a judgment denying his claims, the plaintiff appeals.

The issue on appeal is whether, under conflicting medical testimony, the plaintiff is entitled to payments for partial disability, statutory penalties, and attorney’s fees.

FACTS

The plaintiff suffered an accident within the course and scope of his employment as a sawmill worker with Willamette Industries. Willamette paid compensation benefits from the date of the accident, March 23, 1983, until about May 3, 1983, and paid all medical and travel expenses for that period of time.

The plaintiff’s job involved feeding sheets of grain plywood veneer into a drying machine. From time to time, several sheets would become stuck in the drying machine. The accident occurred as the plaintiff was attempting to free four such sheets of plywood. As the plaintiff stooped to twist loose the plywood, he injured his lower back. Treatment was initially rendered to the plaintiff at the Fraser Hospital in Many.

Subsequently, the employer referred the plaintiff to Dr. Robert E. Holladay, IV, a Shreveport orthopedic surgeon. On April 6, 1983, Doctor Holladay diagnosed the plaintiff’s injury and complaints of pain as a mild ligamentous sprain of the lumbar spine, with an 85% range of normal motion. He also found a grade one congenital spon-dylolisthesis (i.e., slipped vertebrae) which he felt was unrelated to the lumbar sprain. He prescribed rest, medication, and a back brace. He examined the plaintiff again on April 18, 1983, at which time he noted that the sprain appeared to be healing, that there were no more back spasms, and that the plaintiff felt less discomfort. On May 2, 1983, he examined the plaintiff for a third time, noting that the sprain had apparently healed and that the plaintiff’s lower back tested as normal. He recommended that the plaintiff return to his former job. Subsequent examinations on June 1st and June 13, 1983, showed the same result. Doctor Holladay observed on June 13th that, while the plaintiff complained of pain, results of the various tests performed on him were inconsistent; he concluded that the plaintiff was exaggerating his injury.

The plaintiff was referred by his own attorney to Dr. J. Lee Etheredge, an orthopedic surgeon, who examined the plaintiff on two occasions. On April 28, 1983, the plaintiff complained of leg and back pain, and tenderness in the lower lumbar spine area. Doctor Etheredge’s test revealed the sprain of the lower lumbar spine and the grade one spondylolisthesis in the lower vertebrae, which he concluded was related to and had been aggravated by the sprain. He prescribed rest, medication, and exercise. On June 6, 1983, the plaintiff stated to the doctor that his pain was worse. Upon further testing of the plaintiff, Doctor Etheredge found limited motion and tenderness in the lower lumbar area. He concluded that the plaintiff should learn some type of new skill in order to perform lighter work. It was Doctor Etheredge’s opinion that heavy work would only aggravate the congenital spondylolisthesis. It is noted, however, that the plaintiff apparently informed Doctor Etheredge that his job involved heavy lifting and that he had suffered this same injury previously. These statements were contradicted at the trial by the testimony of D.G. Rivers, the plant supervisor. Doctor Etheredge also acknowledged that Doctor Holladay, the treating physician, was in a better position to evaluate the plaintiff’s condition, as he had seen and tested the plaintiff on more occasions.

The issue here is whether the trial court erred in finding that the plaintiff was not entitled to further worker’s compensation benefits.

The plaintiff-appellant argues that the trial court gave insufficient weight to the testimony of Doctor Etheredge. Doctor Etheredge did conclude that the plaintiff could no longer work at his former job, but these conclusions were apparently based upon information given to him by the plaintiff. Doctor Etheredge also testified that the plaintiff complained of pain as late as June, 1983, and that his tests substantiated these complaints. However, the doctor was not able to conclusively state on the basis of only two examinations that the plaintiff was not exaggerating his complaints. On the other hand, Doctor Holla-day stated that while the plaintiff had suffered a lumbar back sprain, he had completely recovered by early May. Doctor Holladay also testified that this sprain was unrelated to plaintiffs congenital spondylo-listhesis. He concluded, based on inconsistent test results, that the plaintiff’s complaints in early June, 1983, were exaggerated and based upon the plaintiffs desire for financial gain. At the trial, lay testimony was presented by the plaintiff showing that the plaintiff was unable to work until the time of the trial. It is noted, however, that this testimony appears to have been based primarily upon the plaintiffs self-serving statements rather than his actions.

While in compensation cases the law is to be liberally construed in favor of the employee, the plaintiff in a compensa-1 tion suit is required to prove the facts by a preponderance of the evidence and with the same legal certainty as required in any other civil case. Fogleman v. Roy O. Martin Industries, Inc., 432 So.2d 1197 (La. App. 3rd Cir.1983); Delco v. Heritage Man or Nursing Home, 441 So.2d 309 (La.App. 3rd Cir.1983); Ellis v. Rapides Parish School Board, 419 So.2d 990 (La.App. 3rd Cir.1982). Moreover, whether a plaintiffs pain is substantial enough to render him disabled is a question of fact to be determined by the trier of fact; such a determination of fact will not be disturbed on appeal when there is evidence before the trier of fact which, upon its reasonable evaluation of credibility furnishes a reasonable factual basis for such findings, unless such findings are clearly wrong. Fogle-man v. Roy O. Martin Industries, Inc., supra. Ordinarily, the treating physician’s testimony will be given more weight than that of a doctor who examines a plaintiff for diagnosis only. Guillory v. INA, 401 So.2d 612 (La.App. 3rd Cir.1981); Porter v. Augenstein Construction Company, 280 So.2d 861 (La.App. 3rd Cir.1973). That general rule appears to be applicable here.

The treating physician, Doctor Hol-laday, found that the plaintiff could return to work. Doctor Etheredge, who examined the plaintiff for purpose of diagnosis only, admitted that his conclusion that the plaintiff could not return to his former job was based, at least in part, upon the plaintiff’s self-serving statements. The trial court obviously chose to give more weight to Doctor Holladay’s testimony; it also chose to disbelieve thé testimony of the plaintiff and his lay witnesses as to continuing pain. Furthermore, it is noted that Doctor Holla-day observed inconsistencies in the plaintiff’s test results indicating that the plaintiff was exaggerating his pain. In sum, it appears that the trial judge chose to believe the testimony put forward by the defendant and thus the plaintiff had failed to meet his burden of proof. Based on a thorough review of the record as a whole we cannot say that the trial court’s determinations were clearly erroneous.

In light of our affirmation of the trial court’s finding that the plaintiff was no longer disabled after Doctor Holladay’s May 2, 1983, report, the defendant was not arbitrarily and capriciously acting when it terminated the plaintiff's benefits after that date. Thus the defendant is not entitled to penalties and attorney’s fees.

For the above and foregoing reasons the judgment of the trial court is affirmed. All costs of this appeal are assessed against the plaintiff.

AFFIRMED.


author: GUIDRY, Judge.

text:
    VIENNA BEND SUBDIVISION HOMEOWNERS ASSOCIATION, et al., Plaintiffs-Appellees, v. Linda Simpson Prudhomme MANNING and The Natchitoches Association for Retarded Citizens, Inc., Defendants-Appellants.
    No. 83-1075.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Harrington & Harrington, C. Rodney Harrington, Natchitoches, for plaintiffs-ap-pellees.
    James E. Beal, Natchitoches, for defendant-appellant.
    Andrew Vallien, Natchitoches, for plaintiff-appellee-appellant.
    Lunn, Irion, Johnson, Salley & Carlisle, Martin Trichel, Shreveport, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   GUIDRY, Judge.

The Vienna Bend Subdivision Homeowners Association, an unincorporated association, filed this action on July 1, 1983 against Linda Simpson Prudhomme Manning and the Natchitoches Association for Retarded Citizens, Inc. (NARC) seeking to enjoin them from entering into a lease of certain property owned by Manning in the Vienna Bend Subdivision in Natchitoches, Louisiana. Plaintiff claims that such lease would be in violation of the duly recorded restrictive covenants of the Vienna Bend Subdivision. A temporary restraining order was issued on July 1, 1983, enjoining Manning from leasing the disputed property to NARC for the purpose of housing five mentally retarded citizens.

NARC answered by a general denial, although admitting the fact that Manning had already leased the property to NARC on May 19, 1983, and that the leased residence was to be used as a “community home” within the definition of La.R.S. 28:381(8) as amended by Act 538 of 1982. NARC further asserted that the TRO should not have issued since no bond was posted by the plaintiff as required by La.C. C.P. Art. 3603, and for the further reason that there had been no showing of irreparable injury by the plaintiff.

On July 13,1983, NARC filed a motion to dissolve the TRO and sought damages for the wrongful issuance of such order. NARC also filed an exception of no right of action, asserting that the Vienna Bend Subdivision Homeowners Association had no capacity to sue to enforce the rights of its individual members.

Plaintiff thereafter amended its original petition to add Benny O’Brien and Joni Adams, individual property owners in the Vienna Bend Subdivision, as plaintiffs. The trial judge signed an order on July 18, 1983 issuing a new TRO to prevent the intended use of the leased premises by NARC. Bond was set at $5,000.00 but was never posted by the plaintiffs due to the notation on the trial judge’s order that bond is to be posted “provided that after the hearing set for July 19th that it is necessary to post bond.”

Defendants’ motion and exception were referred to the hearing on the rule for a preliminary injunction which was heard on July 19, 1983. At the conclusion of the evidence, judgment was rendered in favor of plaintiffs. In his oral reasons for judgment, the trial judge made the following findings:

(1) the community home was not a. single family dwelling as is required by the subdivision’s restrictive covenants;
(2) the community home was a commercial venture;
(3) the operation of the community home would create the possibility of an annoyance and/or nuisance, thereby resulting in irreparable injury to the plaintiffs; and,
(4) neither of the parties were entitled to damages.

In accord with these findings, the trial court rendered judgment denying defendant’s motion to dissolve the TRO and for damages and also defendant’s exception of no right of action. Further, the aforementioned judgment ordered that a preliminary injunction issue, prohibiting Manning from leasing the disputed property to NARC or to anyone else in violation of the Vienna Bend Subdivision restrictions, and enjoined NARC from leasing the Manning property, or any other property in the Vienna Bend Subdivision, for the purpose of housing retarded citizens, and further restraining and enjoining defendants from operating the aforementioned property as a “home” or facility for retarded persons, employees, or any other representatives or persons under the control of or responsibility of NARC from occupying or using the property in any way in contravention of the subdivision restrictions. Defendants were given 60 days in which to remove the individuals who were residing in the home at the time of the hearing. The judgment was signed on August 16, 1983.

Defendants thereafter applied for a writ of certiorari to our court, which was denied on August 26, 1983. (Case No. 83-782). Defendants then applied for a writ of cer-tiorari to the Supreme Court of Louisiana (No. 83-CC-1981), which was granted on September 23, 1983, ordering the trial judge to grant a suspensive appeal. 437 So.2d 1157. In obedience to the latter order, this suspensive appeal followed.

FACTS

Defendant Manning is the owner of Lot 23, Unit 4, and the residence thereon, of the Vienna Bend Subdivision in Natchitoch-es, Louisiana. On May 19, 1983, Manning leased her property in Vienna Bend to NARC, a Louisiana Non-Profit Corporation, for a monthly rental of $1,000.00. NARC’s purpose in leasing the property is to operate a “community home” for five mentally retarded adults and two live-in houseparents, pursuant to La.R.S. 28:381(8), as amended by Act 538 of 1982. NARC contracted with the Office of Family Services of the Louisiana Department of Health and Human Resources to provide this particular home. The community home is to be used solely as a residence. The residents go to NARC’s Work Activity Center during the day, which center is located out of the Vienna Bend Subdivision. The community home is designed as the permanent or semi-permanent home for the retarded individuals living therein. The five residents and the two houseparents are to share the household duties and responsibilities within their individual abilities. The houseparents assist the residents in the day to day problems of community living. The occupants of the home function together as a single household unit.

RESIDENTIAL-SIN GLE FAMILY DWELLING

Plaintiffs’ objections to the defendants’ intended use of the property is that such use violates certain provisions of the Vienna Bend subdivision restrictive covenants, in particular the following provision:

"II. RESIDENTIAL AREA COVENANTS
A. LAND USE AND BUILDING TYPE
No lot shall be used except for residential purposes. No building shall be erected, altered, placed, or permitted to remain on any lot other than one detached single family dwelling and a private garage for not more than three cars....”

The law concerning building restrictions is found in La.C.C. Arts. 775 through 783. Article 775 requires that building restrictions be part of a general plan that is feasible and capable of being preserved. Article 783 provides that when there is doubt as to the existence, validity, or extent of building restrictions, resolution must be made in favor of the unrestricted use of the property. The major issue of this appeal is whether the operation by NARC of a community home on Lot 3, Unit 4 is proscribed by the above quoted restrictive covenant.

The plaintiffs contended, and the trial judge agreed, that the proposed community home did not fit into the restrictive requirements of being either residential or a “single family dwelling”. In its reasons for judgment granting the preliminary injunction, the trial court stated:

"... To have a couple designated as houseparents with six mentally retarded citizens in my opinion is not a single family. It represents a dormitory-type building, which the Court considers to be more of a commercial venture rather than a private home as intended by the restricted (sic) covenants of the Vienna Bend Covenants.”

In Gwatney v. Miller, 371 So.2d 1355 (La.App. 3rd Cir.1979), we quoted the following from the Supreme Court in Salerno v. Delucca, 211 La. 659, 30 So.2d 678 (La.1947), concerning the interpretation of restrictive covenants:

‘‘Although these stipulations are stricti juris and every doubt should be resolved in favor of the unencumbered use of the property, whenever differences arise as to the extent or limitation of these restrictions, we must look to the intention of the party encumbering the property from the words used in the stipulations in the deed, consideration being given to the entire context of the instrument rather than to a single phrase or clause, for obviously those acquiring the property in the restricted area were motivated and influenced to purchase the same because of these limitations and they are entitled to the presumption that they will be fairly and faithfully complied with.” [30 So.2d] at pp. 679-80.

The first sentence of the building restriction in question states that, “No lot shall be used except for residential purposes.” This restriction refers to the allowed use of the property. There is no evidence in the record which shows that the community home would be used except as a residence. The evidence is clear that the home would be used solely to house five mentally retarded adults and two houseparents, and that their training and work activities would take place at locations outside of the Vienna Bend Subdivision. The mentally retarded individuals would have certain household duties and responsibilities and would function together as a single housekeeping unit.

The trial court, in its reasons for judgment, seemed to place much emphasis on the phrase “single family”, stressing the fact that the retarded individuals would be coming from different origins and families. Viewing the restrictive covenant as a whole, the requirement of “one detached single family dwelling and a private garage for not more than three cars” refers to the specific structure on the lot as opposed to the actual make-up of the individuals therein. The evidence is clear that the only residential building on the property is a single family structure.

In our view, NARC’s community home clearly complies with this Vienna Bend subdivision restrictive covenant since the home will be used for “residential purposes” only. We find support for our conclusion in La.R.S. 28:381(8), as amended by Act 538 in 1982, which states that:

“ “Community home” means residential living options that are certified, licensed, or monitored by the department to provide residential services to fifteen or fewer mentally retarded individuals. Community homes that provide for six or fewer mentally retarded individuals, with no more than two live-in staff, shall be considered single family units having common interests, goals, and problems. A community home that provides residential living options for seven to fifteen mentally retarded individuals shall be referred to as a group home.” (Emphasis ours)

This statute clearly indicates that the legislature specifically intended the community home in question to be considered a single family unit. We thus find that NARC’s community home is clearly sanctioned by the Vienna Bend subdivision restrictive covenant II A.

The case of City of West Monroe v. Ouachita Association for Retarded Children, Inc., 402 So.2d 259 (La.App. 2d Cir. 1981), supports our holding. In the Oua-chita case, the City of West Monroe filed suit seeking a judgment declaring that the defendant’s proposed use of the property violated the city zoning ordinance. The property in question was located in an R-l district, which is the designation for one-family residences. The defendant sought to operate a home for six mentally retarded adults and two live-in houseparents, similar to the home which NARC plans to operate. The district court held that the defendant’s proposed use of the residential property was a special exception use which had to be approved by the City Planning Commission and by the Board of Adjustment because the home did not constitute use as a one-family dwelling. Thus, the injunction prayed for was granted. The Second Circuit Court of Appeal reversed and found that the proposed use was a use of right under the provisions of the zoning ordinance. In arriving at its decision, the court cited various statutes from Louisiana’s mental retardation laws, La.R.S. 28:380 et seq. La.R.S. 28:390, as amended by Act 538 of 1982, provides in part as follows:

“B. Every individual who is mentally retarded shall have the following rights unless restricted by law:
(1) To live in the least restrictive residential living option appropriate to his individual needs and abilities, including the right to live in a variety of living situations, such as the right to live in home, in substitute family care, in supervised apartments, in community homes, or residential facilities.
(2) To receive appropriate residential living options or mental retardation services or both suited to each individual’s needs in order to maximize his capabilities and to enhance his ability to cope with his environment.”

The sole issue in the Ouachita case was whether, under the zoning ordinance, the defendant’s proposed use was a permitted use in an R-l, one-family residential district. The zoning ordinance defined “family” as one or more persons living together as a single housekeeping unit which may include not more than four lodgers or boarders. The appellate court stated, “... we find that the proposed use by the association falls squarely within the plain and unambiguous language of the ordinance defining one-family dwelling residential use.”

In reaching its decision, our learned brothers of the Second Circuit reasoned as follows:

“The occupants of the group home do not meet the definitions of lodger or boarder, nor does the group home constitute a boarding house or rooming house. Although the residents will eat and sleep in the home, they cannot be deemed to be an unrelated group of people occupying only a part or a portion of another’s house. The mentally retarded adults have common interests, common goals, common problems, and will be receiving some supervisory attention from the houseparent couple who will also reside in the home. They will not be mere lodgers or boarders, especially in the commercial context in which the terms are used in the ordinance. Rather, the persons residing in the group home constitute a single housekeeping unit composed of persons who are living and working together toward common goals and who will, as nearly as possible, emulate the lifestyle of the traditional family as we know it.
In defining one-family dwelling and family, the ordinance does not place any numerical restriction on the number of persons living together as a single housekeeping unit, nor does it require any relationship between the persons, biological or otherwise. The ordinance does limit the number of boarders or lodgers who may be accommodated in a one-family residence but as previously held that situation does not exist here.”

The court then cited a number of cases from other states which similarly have held such homes to be single family dwellings. The court concluded as follows:

“The decisions in the cases cited above relied on the well-organized principle that zoning ordinances are to be strictly construed in favor of the use proposed by the owner, which principle also forms an important basis for our decision in this case. The persons who will occupy the association’s group home will be living together as a single housekeeping unit; therefore, the proposed use of the property is a use by right under the zoning ordinance of the City of West Monroe and, as such, does not require the approval of the city planning commission or the board of adjustment.”

Although the Ouachita case dealt with a zoning ordinance as opposed to a subdivision restriction, the same principles of law are applicable. Both are restrictions on the free use of property and, as such, any conflicts in interpretation should be resolved in favor of the unrestricted use of the immovable. In view of the legislative definition of “community home” as set forth in La.R.S. 23:381 and the reasoning of the Ouachita case, we hold that the use of the property in question as a community home is not in violation of the Vienna Bend restrictive covenant II A, and the trial court clearly erred in holding to the contrary. Further support for our holding in this regard is found in the case of Tucker v. Special Children’s Foundation, Inc., 449 So.2d 45 (La.App. 1st Cir.1984), writ denied, 450 So.2d 959 (La.1984); and, Harbour v. Normal Life of Louisiana, Inc., 454 So.2d 1208 (La.App. 3rd Cir.1984).

COMMERCIAL VENTURE

The trial court held that the operation of the community home by NARC was a commercial venture and thus violated the restrictive covenant which allowed use of the property only for residential purposes. The trial judge based his decision that the community home was a commercial venture on the fact that the Office of Family Security paid rent of $1,000.00 per month to Mrs. Manning and $1,800.00 per month to the houseparents as their salary for caring for the mentally retarded residents of the home.

We do not agree with the trial judge that simply because the Office of Family Security paid the rent and the houseparents’ salaries that the community home should be classified as a commercial venture. As we previously mentioned, NARC is a non-profit corporation. Its sole purpose in establishing the community home is to provide a home for certain mentally retarded individuals who have no family to care for them, but who are not in need of constant care and attention. The houseparents are staff personnel whose function is similar to that of any live-in cook, housekeeper, or nurse whom anyone in the subdivision might hire to help perform certain household functions which are difficult or inconvenient. For these reasons, and those set forth in our previous discussion as to the residential character of NARC’s endeavor, we conclude that -the trial court erred in classifying NARC’s intended use of the Manning property as commercial.

NUISANCE

The trial court found that the operation of the community home by NARC created the possibility of an annoyance or nuisance to the other residents of the subdivision. It thus concluded that the intended activity constituted a nuisance, in violation of restrictive covenant II G, which states in pertinent part:

“No obnoxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood.”

Our Supreme Court in Robichaux v. Huppenbauer, 258 La. 139, 245 So.2d 385 (1971), examined the two types of nuisances recognized in Louisiana as follows:

“Nuisances by their nature are nuisances per se or at law, and nuisances per accidens or in fact. A nuisance at law or a nuisance per se is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. Nuisances in fact or per accidens are those which become nuisances by reason of circumstances or surroundings.
In the case of a nuisance per se, the thing becomes a nuisance as a matter of law. Its existence need only be proved in any locality and the right to relief is established by averment and proof of the mere fact. But whether a thing not a nuisance per se is a nuisance per acci-dens or in fact depends upon its location and surroundings, the manner of its conduct, or other circumstances. In such cases, proof of the act and its consequences is necessary. Borgnemouth Realty Co. v. Gulf Soap Corporation, 212 La. 57, 31 So.2d 488 (1947). See also 39 Am.Jur., Nuisances, § 11; 66 C.J.S. Nuisances § 3.”

Under the above definition, the operation of a community home for mentally retarded individuals can hardly be deemed a nuisance per se or at law. A community home for mentally retarded individuals is specifically authorized by the legislature. La.R.S. 28:380 et seq. It therefore was the plaintiffs burden to prove by a preponderance of the evidence that the community home was a nuisance per accidens- or in fact. We find that plaintiffs failed to meet this burden. The record is void of any evidence supporting the conclusion that the operation of the community home would create a nuisance to the neighborhood. The only evidence adduced at the hearing was the unfounded fears of some of the residents of the Vienna Bend subdivision. The neighbors who testified at the hearing expressed their concern for the safety of their wives and children. They stated that they felt the quality of their lives would be severely damaged if the mentally retarded adults were allowed to move into their neighborhood. Not a single incident was complained of by any of the neighbors which could lead a court to conclude that the home created a nuisance.

La.R.S. 28:390(A), as amended by Act 538 of 1982, states that:

“A. Every individual who is mentally retarded in this state shall have the rights,, benefits, and privileges guaranteed by the constitution and laws of the United States and the constitution and laws of the state of Louisiana. Every recipient shall enjoy the same rights as other citizens of the United States and Louisiana except when restricted by law. The rights of individuals who are mentally retarded which are specifically enumerated in this Chapter are in addition to all other rights enjoyed by all other citizens, and such listing of rights is neither exclusive or intended to infringe upon any rights which are guaranteed to the mentally retarded under the laws and constitutions of the United States and the state of Louisiana.”

La.R.S. 28:393(A), as amended by Act 538 of 1982, states:

“A. It is recognized that mental retardation does not in and of itself pose a threat to the safety and security of a community or the individual and as such does not preclude the individual who is mentally retarded from the benefits, rights, and duties of other members of the community.”

In light of the above legislative enactments, to hold that these individuals create a nuisance to the neighborhood simply because they are mentally retarded, would constitute a clear violation of these laws created specifically for the purpose of protecting mentally retarded citizens.

At the time of the hearing, there was only one mentally retarded resident living in the community home, along with the two live-in houseparents. Mrs. Karen Apponey, who lives next door to the Manning home, stated at the hearing that the mentally retarded resident always remained inside of the home. She testified that the houseparents never left the house without taking him along with them. Mrs. Apponey even observed that, due to the periodic yardwork which one of the houseparents performed, the outward appearance of the Manning home had improved since the community home commenced operation. We find that the trial court erred in its holding that the community home created the possibility of an annoyance or nuisance to the neighborhood. There was no evidence presented at the hearing to substantiate this finding.

IRREPARABLE INJURY

For the reasons heretofore stated, we determine that there has been no violation by defendants of the restrictive covenants of the Vienna Bend Subdivision. Therefore, we need not consider defendants’ alternative argument that the preliminary injunction should not have issued because of plaintiffs’ failure to demonstrate irreparable injury, loss or damage. In passing, however, we observe that building restrictions may be enforced by mandatory and/or prohibitory injunctions without the necessity of a showing of irreparable injury. La.C.C. Art. 779.

DAMAGES AND ATTORNEY’S FEES

Defendants urge that the trial court erred in denying their demand for damages for the wrongful issuance of the temporary restraining order and preliminary injunction. La.C.C.P. Art. 3608 states that:

“The court may allow damages for the wrongful issuance of a temporary restraining order or preliminary injunction on a motion to dissolve or on a reconven-tional demand. Attorney’s fees for the services rendered in connection with the dissolution of a restraining order or preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on motion or after trial on the merits.”

The trial court denied defendants’ motion to dissolve the temporary restraining order and, after summary proceedings, ordered the issuance of a preliminary injunction.

At the outset, we observe that the defendants have not thus far sought, by motion or reconventional demand, damages for dissolution of the preliminary injunction and, therefore, it cannot be said that the trial court erred in failing to award damages for wrongful issuance of the preliminary injunction as that issue was never before it. Likewise, such issue is not before this court on appeal.

Defendants’ contention that the trial court erred in issuing the temporary restraining order and likewise erred in refusing to award damages for its wrongful. issuance cannot be considered by this court on appeal. In Budd Construction Company, Inc., et al v. City of Alexandria et al, 401 So.2d 1070 (La.App. 3rd Cir.1981), writ denied, 404 So.2d 1262 (La.1981), we held that an appellate court has no power to consider on appeal the propriety of a trial court judgment refusing to dissolve a TRO. La.C.C.P. Art. 3612. We adhere to that view for the reasons stated in Budd, supra.

For the above and foregoing reasons, the judgment appealed from insofar as it ordered the issuance of a preliminary injunction directed to defendants is reversed and set aside and the preliminary injunction is ordered dissolved. This matter is remanded to the trial court for trial on its merits not inconsistent with the views expressed herein. Plaintiffs-appel-lees are assessed with all costs of this appeal, with costs at the trial level to await a final disposition of this matter.

REVERSED AND REMANDED.

      . Unless the parties expressly agree to submit a case for final decision at the hearing on the rule for preliminary injunction, the principal demand for a permanent injunction is determined only after a full trial under ordinary process, even though the summary hearing on the rule for a preliminary injunction may tentatively decide merit/issues. Haughton Elevator Division v. State, 367 So.2d 1161 (La.1979); and, Equitable Petroleum Corp. v. Central Transmission, Inc., 431 So.2d 1084 (La.App. 2d Cir.1983).


text:
    Herman P. CARMOUCHE and Annie W. Galland, Plaintiffs-Appellees, v. RIVERSIDE LIFE INSURANCE COMPANY, Defendant-Appellant.
    No. 83-1084.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Bruce Danner, Metairie, for defendant-appellant.
    Peter J. Lemoine, Bunkie, for plaintiffs-appellees.
    Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   DOMENGEAUX, Judge.

Herman P. Carmouche and Annie W. Galland, plaintiffs-appellees, are the owners and beneficiaries of three insurance policies issued by Riverside Life Insurance Company and/or Automotive Life Insurance Company. The named insured on the policies is Anna M. Carmouche, plaintiffs’ minor daughter.

The three life insurance policies, each in an amount of $1,000.00, provided that the issuer of the policies would pay the entire face amount thereof if the insured suffered “loss of sight of both eyes”.

On November 27, 1982, the plaintiff submitted claims to the Riverside Life Insurance Company as named beneficiaries on the insurance policies. It was determined that Miss Carmouche had suffered an irrevocable loss of sight in both eyes as a result of the disease known as lupus eryth-ematosus with cerebritis and nephritis. All necessary proof of claim forms required pursuant to the provisions of the insurance contracts were forwarded with the claims.

Payment on the subject insurance policies were received by appellees, through their counsel, on January 21, 1983; more than thirty days, but less than sixty days after written proof of claim forms were received by defendant insurer.

Plaintiffs filed suit against Riverside Life Insurance Company on February 9, 1983, seeking to recover under the penalty provisions of La.R.S. 22:657 A. The plaintiffs allege that La.R.S. 22:657 A should be enforced against the defendant for its failure to pay the benefits due under the policies within thirty days from receipt of written notice and proof of claim.

Defendant filed a motion for summary judgment arguing that either La.R.S. 22:656 or La.R.S. 22:658 which require payment within sixty days of written proof of claim, govern the time limit for its payment. The defendant argued that as payment was received within sixty days of proof of the claim it was timely paid, and plaintiff should not be allowed to recover any penalties.

The district judge denied defendant’s motion for summary judgment.

At trial, the district judge determined that the provisions granting benefits payable for loss of sight of both eyes contained within the life insurance policies require the policies to be treated as health and accident policies. Thus, he concluded that the thirty day time period established for the payment of claims under health and accident policies in La.R.S. 22:657 should be applied, and as defendant had not made payment within the statutory time limit it was ordered to pay to plaintiff a penalty of 100% of the face value of the policies and attorney’s fees.

The sole issue confronting us on this appeal is whether the district court erred in its finding that appellees’ claims should be governed by the provisions of La.R.S. 22:657 A.

Appellees contend that appellant is liable for statutory penalties under La.R.S. 22:657 A. Plaintiffs’ policies are life insurance policies which provide additionally for a lump sum payment for disability arising out of the insured’s loss of sight of both eyes. They claim such a policy should be treated as a health and accident policy under La.R.S. 22:657.

The appellant denies that La.R.S. 22:657 A is applicable and argues that this type of insurance coverage falls under either La. R.S. 22:656 or La.R.S. 22:658.

La.R.S. 22:656 provides for a 6% penalty for nonpayment of life insurance policies within sixty days from the date of receipt of due proof of death. La.R.S. 22:658 provides a 12% penalty for nonpayment of claims on policies other than life and health and accident within sixty days of proof of claim.

Section A of La.R.S. 22:657 provides for a 100% penalty for nonpayment of claims on health and accident policies within thirty days of proof of claim.

This Court has been faced with analogous situations in Tarpley v. Consolidated American Life Insurance Company, 386 So.2d 1067 (La.App. 3rd Cir.1980), and Vallery v. All American Life Insurance Company, 429 So.2d 513 (La.App. 3rd Cir.1983), modified on other grounds, 434 So.2d 1100 (La.1983).

In Tarpley, supra, the plaintiff was the insured under two life insurance policies with an aggregate face value of $15,000.00. The policies provided that in the event the insured became totally and permanently disabled the insurer would pay to the insured one-half the face amount of the policies ($7,500.00). The plaintiff filed suit to recover the benefits under the disability provisions of the policies and the statutory penalties provided for in La.R.S. 22:657.

Mr. Tarpley argued that the provisions in the policy which provided benefits for total and permanent disability required the policy to be construed as a health and accident insurance policy, and therefore the statutory penalty in La.R.S. 22:657 would apply.

This Court held that La.R.S. 22:657 did not apply in this situation. We stated:

“The applicability of R.S. 22:657 is limited, by its own language, to ‘... [a]ll claims arising under the terms of health and accident contracts ... ’ Mr. Tarp-ley’s claim arises under the terms of two life insurance contracts which contained provisions for benefits payable to the insured in the event of total and permanent disability.
La.R.S. 22:6, which defines and classifies insurance, distinguishes life insurance from health and accident insurance in the following manner:
‘(1) Life. Insurance on human lives and insurance appertaining thereto or connected therewith. For the purposes of this Code the transacting of life insurance includes the granting of annuities or survivorship benefits; additional benefits in the event of death by accident; additional benefits in the event of the total and permanent disability of the insured; and optional modes of settlement of proceeds.
(2) Health and accident. Insurance against bodily injury, disablement or death by accident and against disablement resulting from sickness and every insurance appertaining thereto.’ (Emphasis added)
According to the plain language of the above statute, Mr. Tarpley’s claim arises under life insurance contracts notwithstanding the fact that payment is due under disability clauses in the contracts.
La.R.S. 22:658 and its 12% penalty provision applies to ‘... any type of contract other than those specified in R.S. 22:656 and 22:657 ...’ Neither 22:656 (which applies only to death claims) nor 22:657 (relative to health and accident policies) pertains to claims arising under life insurance contracts. Therefore, the provisions of 22:658 apply.”
386 So.2d 1067, at 1071.

In the case now before us the facts are similar to those in Tarpley, supra. In Tarpley we were concerned with life insurance policies which provided lump sum benefits in the event the insured became totally and permanently disabled; here we are faced with life insurance policies which provide lump sum benefits in the event the insured suffers the “loss of sight of both eyes”. One need not stretch the imagination to contemplate that a provision providing benefits for the loss of sight of both eyes is in essence a total and permanent disability provision.

Therefore, we conclude that here, as in Tarpley, supra, a life insurance policy which contains disability provisions is not a health and accident policy, thus La.R.S. 22:657 does not apply.

Our holding in Vallery, supra, further justifies our decision that La.R.S. 22:657 does not apply to this case. In Vallery, supra, the plaintiff was the insured under an “Accidental Death and Dismemberment Policy”. The policy provided for a lump sum benefit payable in the event of the accidental loss of sight. The plaintiff was involved in an accident and lost the sight in his right eye. He sued for benefits under the policy and for statutory penalties under La.R.S. 22:657 for the defendant’s failure to pay benefits due under the policies within thirty days of proof of loss. We denied recovery of penalties under La.R.S. 22:657 and held that a lump sum payment for the loss of an eye was covered under the penalty provisions contained in La.R.S. 22:658. We premised this holding on the Louisiana Supreme Court’s rationale in Harmon v. Lumbermen’s Mutual Casualty Company, 247 La. 263, 170 So.2d 646 (La.1965). The High Court stated:

“A reading of Section A of LSA-R.S. 22:657, supra, clearly shows that the Legislature intended that this section be applicable to small claims (hospital, medical, etc.) and monthly disability payments. Such intent is expressed in the sentence, ‘The insurer shall make payment at least every thirty days to the assured during that part of the period of his disability covered by the policy or contract of insurance during which the insured is entitled to such payments.’ Immediately following the preceding sentence is the 100% penalty provision. LSA-R.S. 22:657 expresses no intent to award a 100% penalty on a lump sum which could be as high as $100,000.00. We conclude that the penalty provision and attorney’s fees provisions of LSA-R.S. 22:657 are not applicable to plaintiff’s claim.”

Therefore, we conclude that this type of lump sum payment here involved for the loss of the sight of both eyes does not fall within the purview of La.R.S. 22:657 A.

We find that this policy falls under La. R.S. 22:658 which “covers policies other than those specified in R.S. 22:656 and 22:657.” Vallery v. All American Life Insurance Company, supra.

Under La.R.S. 22:658, statutory penalties and attorney’s fees are applicable when the failure to pay the amount of any claim due within sixty days from the receipt of satisfactory proof of loss is arbitrary, capricious, or without probable cause. Vallery v. All American Life Insurance Company, supra.

Riverside Life Insurance Company made payment to the appellees within sixty days of receipt of their proof of loss. Therefore, no penalty can be assessed against appellant.

For the above and foregoing reasons the decision of the district court is reversed and plaintiffs’ suit is hereby dismissed. All costs at trial and on appeal to be assessed against plaintiffs.

REVERSED.

      . La.R.S. 22:657 A states:
      "All claims arising under the terms of health and accident contracts issued in this state, except as provided in Subsection B, shall be paid not more than thirty days from the date upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable grounds, such as would put a reasonable and prudent business man on his guard, exist. The insurer shall make payment at least every thirty days to the assured during that part of the period of his disability covered by the policy or contract of insurance during which the insured is entitled to such payments. Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney’s fees to be determined by the court. The district court of the parish where the insured lives or has his domicile shall have jurisdiction to try such cases.”