author: HALL, Judge. .

text:
    In re McK Applying for Adoption.
    No. 15907-CAJ.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.

      Smith & Hingle by Gilmer P. Hingle, Monroe, for appellant.
    Richard Ducote, New Orleans, for appel-lee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   HALL, Judge. .

The Department of Health and Human Resources filed a petition seeking to revoke an interlocutory decree of adoption rendered by the court almost two years previously. It was alleged that the proposed adoption is not in the best interest of the child because (1) the proposed adoptive parents have had a history of marital difficulty; (2) the adoptive mother abuses alcohol, has been arrested and convicted of several offenses, and is awaiting a hearing on revocation of a three-year probation; and (3) the adoptive father has serious medical problems, is unemployed, and the family has severe financial difficulties making them incapable of caring for the child.

After a hearing, in written reasons for judgment, the district court, sitting as a juvenile court, found that the adoptive parents encountered financial difficulties in late 1982, their trailer home was repossessed by creditors, and they moved in with the adoptive father’s parents. The adoptive father has suffered from Parkinson’s disease since 1978, was required to cease his employment in September 1982, and has been disabled since that date. In February 1983 the adoptive mother’s supervised probation was revoked and she was ordered to serve a sentence of three years at hard labor.

The court held that the basic consideration in determining whether the interlocutory decree should be revoked is the best interest of the child. The present situation of the adoptive parents does not serve the best interests of the child. The court stated that it would not grant an interlocutory decree to the adoptive parents under present circumstances and considered these facts “good cause” to revoke the earlier decree.

The court ordered the interlocutory decree to be revoked and set aside, and ordered the child removed from the adoptive parents and placed in the custody of the Department of Health and Human Resources. From a judgment rendered accordingly, the adoptive parents appealed. Finding no error of law or abuse of discretion, we affirm the judgment of the juvenile court.

On appeal, the appellants specify that the juvenile court erred in revoking the interlocutory decree because the adoptive parents had met all the statutory requirements for adoption of the child, and because, under the facts presented, it is in the child’s best interest to remain with the only parents she has known rather than to be uprooted. It is argued that the court did not give proper weight to the interlocutory decree which had the effect of declaring appellants qualified to be adoptive parents, that most of the difficulties encountered by these adoptive parents existed and were known to the court at the time the interlocutory decree was rendered, and no significant change of circumstances was shown. Appellants argue that the adoptive father’s medical condition has been stabilized and the financial situation has improved in that he is now receiving approximately $2,000 per month disability income. Appellants further argue that the interlocutory decree can be revoked only upon a finding that the adoptive parents are unfit, which was not established. They submit that, although they are not perfect, they are the best and only parents the child has ever known, and that the child has led a stable life, well cared for and well loved.

On the other hand, the Department points to the repeated law violations by the adoptive mother over a period of years, resulting in her present incarceration, the adoptive father’s disability, and their financial straits. The Department notes that under LSA-R.S. 9:431 the interlocutory decree would have become null and void on May 20, 1983 (the same date the judgment in this cause was signed) because of appellants’ failure to file a petition for a final decree of adoption within two years of the granting of the interlocutory decree. Revocation of the interlocutory decree was sought to insure that the lapse of that decree would not leave the child in legal limbo, and to allow the child to be placed in a new adoptive home as soon as possible.

Factual Background

By virtue of arrangements made through appellants’ attorney, the baby girl, born out of wedlock, was surrendered to appellants for adoption by notarial act executed by the natural mother when the child was nine days old. Appellants petitioned for an interlocutory decree of adoption, which was granted after investigation by the Department and after a hearing. The interlocutory decree, dated May 19, 1981, granted “temporary custody” of the child to appellants and ordered that the adoptive mother continue attending weekly group therapy and treatment sessions at the Mental Health and Substance Abuse Clinic.

The adoptive mother had a drinking problem, obviously known to the court, at the time the interlocutory decree was rendered. The record discloses that prior to the interlocutory decree the adoptive mother was convicted of DWI on three occasions between October 1976 and September 1977. There were four other moving violations in 1975 and 1976. In January 1978 she was adjudged an habitual offender and her driver’s license was suspended for five years. In March 1980 she pled guilty to driving after being adjudged an habitual offender, and was sentenced to three years at hard labor. The sentence was suspended and she was placed on three years supervised probation, conditions of probation being that she attend a substance abuse program, refrain from any alcoholic consumption, refrain from driving, and refrain from frequenting places where alcohol is dispensed.

After the interlocutory decree was rendered, between June 30, 1981 and March 29, 1982, the adoptive mother was convicted on nine separate occasions for issuing worthless checks, mostly small checks payable to grocery and department stores. In September 1982 she pled guilty to driving while under license revocation. In February 1983 her probation was revoked and at the time of trial the adoptive mother was in jail serving the three-year sentence. The mother was attending a substance abuse program and taking Antabuse up until the time she was incarcerated.

The adoptive father, an offshore driller, has suffered from Parkinson’s disease since 1978. The disease prevented him from working, contributing to the financial difficulties the family encountered, which included filing a Chapter 13 bankruptcy. He was required to stop working entirely in September 1982, and is permanently disabled. Disability payments from his former employer of about $2,000 per month did not commence until the early part of 1983. Their trailer home was repossessed and the family, which includes the adoptive father’s teenage son by a previous marriage, moved in with the father’s parents who live in a rural area. The adoptive father’s disease has been stabilized by medication. He is able to speak with difficulty, can drive, and can attend to the care of the child. Care of the child, however, seems to be primarily in the hands of the grandmother.

There is no evidence that the child has been neglected or abused. There is evidence that she is a bright, normal, healthy three-year-old, mature for her age.

Applicable Law

LSA-R.S. 9:421, et seq. governs the adoption of persons under seventeen. Adoption is a privilege which exists only where expressly granted by statute and is subject to statutory restrictions and exceptions. Hargrave v. Gaspard, 419 So.2d 918 (La.1982). Adoption is a creature of statute, is only what the law makes it, and the relationship must be established strictly in accordance with the statutory requirements. Adoption of children in this state is under court supervision and authorization. Roy v. Speer, 249 La. 1034, 192 So.2d 554 (1966); In re Amorello, 229 La. 304, 85 So.2d 883 (1956); Green v. Paul, 212 La. 337, 31 So.2d 819 (1947); Woods v. Collins, 274 So.2d 466 (La.App. 1st Cir.1973).

LSA-R.S. 9:422.8 provides that “the formal act of voluntary surrender grants the legal custody of the child identified in the act to the person or persons named or represented in the act.” Accordingly, appellants were vested with “legal custody” of the child from the time the natural mother executed the act of surrender. Nevertheless, the state retains the superior right in the matter of adoption, involving as it does the best interest and welfare of the surrendered child. Roy v. Speer, supra.

The statutory scheme provides for the filing of a petition for adoption, service and notice to interested parties, investigation by the Department, a hearing, the granting of an interlocutory decree, subsequent visitation and investigation by the Department, another hearing, and a final decree of adoption.

LSA-R.S. 9:431 provides that “At any time before the entry of the final decree of adoption the court for good cause ... may revoke its interlocutory decree either on its own motion or on the motion of the department or on motion of the petitioner or any person interested in the child.” This section also provides that “If no petition for a final decree is filed within two years after the granting of an interlocutory decree the latter shall become null and void unless good cause is shown why an extension should be granted.”

The interlocutory decree does not ipso facto lapse or become null and void if no petition for a final decree is filed within two years. In Woods v. Collins, supra, a natural mother filed a petition for a writ of habeas corpus to gain custody of her child from adoptive parents who had been awarded an interlocutory decree of adoption six years previously but had not filed a petition for a final decree. The court found good cause for the delay, rejected the natural mother’s petition, and granted a six-month extension for filing the petition for a final decree, thereby recognizing the continued viability and effectiveness of the interlocutory decree six years after it was originally granted.

LSA-R.S. 9:433 provides that “Upon refusal to grant an interlocutory or final decree to prospective adoptive parents, other than to a stepparent, for the reason that the adoption is not in the best interests of the child, the court may remove the child from the petitioner and reinstate the legal custodian or appoint a custodian.” This provision should also apply upon revocation of an interlocutory decree in the best interest of the child. Accordingly, it was within the discretion of the court in this case to appoint the Department as custodian of the child.

LSA-R.S. 9:422.11 provides that “Should an interlocutory decree have been entered without opposition, the child shall not be removed from the custody of the prospective adoptive parents nor the final decree of adoption denied unless there is an unfavorable recommendation by the department or the prospective adoptive parents are found to be unfit.” In re Bourque, 245 So.2d 525 (La.App. 3d Cir.1971), decided prior to the enactment of Section 422.11, held that an interlocutory decree of adoption may be revoked “if the evidence establishes that the adoptive parents are unfit, or that it would be to the best interests of the child that such a decree be revoked.” To the same effect is Lange v. Cole, 289 So.2d 304 (La.App. 1st Cir.1973); Woods v. Collins, supra; and In Re Adoption of Giambrone, 262 So.2d 566 (La.App. 4th Cir.1972). The enactment of Section 422.-11, quoted above, seems to require, after an interlocutory decree has been granted and before the decree can be revoked and the child removed from the adoptive parents, more than a weighing of best interests as between competing claimants to custody of the child, that is, an affirmative showing that conditions in the prospective adoptive home are not suitable or that the adoptive parents are not fit. A stronger showing of unsuitability or unfitness is required to justify the exercise of a court’s discretion to revoke an interlocutory decree than is required to justify the exercise of a court’s discretion to initially deny an interlocutory decree of adoption.

The court “may grant or refuse to grant an interlocutory decree”, LSA-R.S. 9:429, “may revoke its interlocutory decree”, LSA-R.S. 9:431, and “may enter a final decree of adoption; or it may deny the adoption”, LSA-R.S. 9:432 B. Granting an interlocutory decree, revoking such a decree, or granting a final decree is left to the sound discretion of the juvenile court judge. Consequently, the standard of review on appeal is whether or not an abuse of discretion occurred.

The “basic consideration” for a final decree and all other decrees in the course of the adoption procedure “shall be the best interest of the child.” LSA-R.S. 9:432 B.

LSA-R.S. 9:427, specifying the findings which shall be included in the report of the Department to the court, offers some statutory guidance as to the factors to be considered in determining the best interests of the child. These enumerated factors are (1) the conditions with respect to the availability of the child for adoption; (2) the physical and mental condition of the child and other factors regarding the suitability of the child for adoption in petitioner’s home; (3) the moral and financial fitness of the petitioner; (4) the conditions of the proposed adoptive home with respect to health; and (5) the adjustment, and other advantages or disadvantages to the child.

Summarizing, an interlocutory decree may be revoked, in the sound discretion of the juvenile court, for good cause and if there is an unfavorable recommendation by the department or the prospective adoptive parents are found to be unfit. The basic consideration shall be the best interest of the child. Fitness of the prospective adoptive parents and the best interest of the child are to be evaluated according to enumerated statutory criteria and other relevant factors.

The Merits

The essence of the trial court’s decision is that the proposed adoptive parents are unfit or unsuitable and that the child’s best interest will be served by revoking the interlocutory decree and making the child available for adoption by more suitable parents. The facts and circumstances of this case justify that decision, and there was no abuse of the juvenile court’s discretion.

The interlocutory decree recognized the adoptive mother’s drinking problem by ordering her to continue to attend the substance abuse clinic. Although the evidence is scant as to her drinking habits after that time, she testified that she continued to drink on occasion. More importantly, however, there has been a continuous pattern of law violations by the adoptive mother over a period of years, both before and after the interlocutory decree was rendered, resulting in her present incarceration for a three-year term. The moral implication is obvious, as is the fact that the adoptive mother is and will be for some time unavailable to care for the child, both factors operating to the disadvantage of the child and weighing in favor of revocation of the interlocutory decree.

The condition of the home with respect to health is a statutory criterion. The adoptive father’s unfortunate disabling disease, while not of his own making, is another disadvantage of the proposed adoptive home.

Although the adoptive parents went through a period during which they demonstrated financial unfitness, they appear to be financially able at this time to provide a suitable home because of the adoptive father’s disability pay of approximately $2,000 per month.

Advantages of the adoptive home to the child are the apparent close relationship she has with the only parents she has known, and the difficulty of adjustment if she were to be removed from the home and placed in another.

On balance, the facts and circumstances demonstrate “good cause” for revocation of the interlocutory decree, LSA-R.S. 9:431, an unfavorable recommendation by the Department and unfitness of the prospective adoptive parents, LSA-R.S. 9:422.-11, and that the revocation of the interlocutory decree is in the best interest of the child, LSA-R.S. 9:432 B.

For the reasons assigned, the judgment of the district court, sitting as a juvenile court, is affirmed, at appellants’ costs.

Affirmed.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    Harold M. WOODARD, Plaintiff-Appellant, v. GEORGE COLE CHEVROLET, INC., et al., Defendants-Appellees.
    No. 15927-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.

      McKeithen, Wear, Ryland & Woodard by Russell A. Woodard, Columbia, for plaintiff-appellant.
    Kostelka, Swearingen & Street by Elmer G. Noah, II, Monroe, for defendants-appel-lees.
    Before MARVIN, FRED W. JONES and SEXTON, JJ.
   MARVIN, Judge.

In this worker’s compensation action, claimant appeals a judgment rejecting his demands for benefits for total and permanent disability, penalties and attorney fees. We amend to award schedule benefits under LRS 23:1221(4)(p).

Claimant is an experienced 64-year-old body shop mechanic who worked for more than a decade for the Chevrolet dealer in Arcadia. George Cole, Inc. acquired the dealership in 1975 and sold it to Terry Burke on October 1, 1980, while claimant was so employed.

Claimant sustained a myoligamentous back strain on Friday, May 30, 1980, and resumed working two or three weeks later while still being treated by a Shreveport orthopedist. On August 21, 1980, the orthopedist discharged claimant from further treatment with the diagnosis of lumbar my-oligamentous strain superimposed on lumbar spondylolysis with some narrowing of the lumbosacral joint. The orthopedist said that claimant

“had reached maximum improvement ... and will have a partial permanent disability equivalent to fifteen percent of the body as a whole and should be able to do everything required of [him] except the heaviest of manual lifting or straining.”

On his first visit to this orthopedist on June 19, 1980, the orthopedist noted that claimant had been taking exercises “for [his] back problems seen in this office a number of years ago.” The earlier treatment was revealed to have occurred in 1968. The orthopedist saw claimant also on July 17, 1980, before discharging him on August 21, 1980.

Claimant was referred to the orthopedist by an Arcadia physician who saw him on June 2, 3, and 17, 1980. The Arcadia physician gave him an injection to relax the muscles of the back on each of the first two visits. Claimant had also seen this physician in 1954 for back trouble. The Arcadia physician wrote on his June 17, 1980, report that claimant was “pronounced able to resume work as of no time off.” Claimant was never hospitalized for the May 30, 1980, strain and did not again see a doctor until September 21, 1981, when asked to do so by the attorney representing his employer’s compensation insurer.

During the time claimant was off work following the May 30, 1980, accident, his employer paid him his minimum weekly guarantee of $125 in lieu of compensation. Claimant earned the greater of 50 percent of the gross charge for his body shop work or his $125 guarantee. His medical bills were paid by his employer’s insurer. In the first quarter of 1980, claimant earned $2,090. In the third quarter of 1980, claimant earned $2,353. His earnings averaged about $180 per week. Claimant usually worked alone and called on other employees of the dealership to assist him in handling bulky or heavy items before and after claimant sustained the strain.

Claimant learned that his employer intended to hire an additional body mechanic in mid-June 1981. Claimant did not “approve” of having another employee in the body shop and asked for his vacation pay and said he was “leaving.” He had applied for or inquired about social security benefits a month or so before he learned of the intent to hire another employee. Before and after the 1980 accident, he mentioned to a co-employee, who sometimes assisted claimant, that his back was sometimes hurting, but at no time until the suit was filed did he tell his employer or any supervisory employee that he was hurting or that he was disabled. After claimant quit work he returned to the body shop when called from time to time by the Chevrolet dealer to install windshields or other glass and was paid about $35 per job. The new employee in the body shop did not install glass. After claimant left his regular employment in late June 1981, and before claimant filed suit on August 20, 1981, claimant worked on such glass jobs for his former employer about 14 times and without complaint of pain or disability.

Defendants filed an exception of prescription which was heard on June 7, 1982. Claimant and his wife, Cole, Burke, and three employees of the dealership testified at this hearing. Depositions of three doctors were introduced. LRS 23:1209. The hearing judge overruled the exception, stating that when the evidence was viewed most favorably toward claimant, and for the purposes of the exception, the injury may have manifested itself within one year of the filing of the suit.

The judge who presided at the trial almost a year later had the record of the earlier hearing as evidence before him and heard claimant, Burke and Ms. Burke testify. He also had the depositions of the three doctors and one other expert. This judge found that claimant had not proved a developing injury or “much less, his disability,” and that claimant quit his employment because he did not want to work with the new employee who had been hired to come to work in the body shop. The trial court’s judgment simply rejected claimant’s demands.

Six of claimant’s assignments in this appeal essentially complain that the trial judge “overruled” the judge who heard the exception of prescription and that the trial judge should have believed that claimant was working in ever increasing pain and left his employment because he became too disabled to continue. Claimant’s seventh assignment complains that the trial court should have assessed penalties and attorney fees against defendants.

At the outset, we note that one district judge is not bound by the rulings of another any more than this court is bound by a ruling of the appeals court of another circuit. See Godwin v. Government Emp. Ins. Co., 394 So.2d 751 (La.App. 3d Cir.1981). Secondly, the judge who heard the exceptions was most equivocal in his reasons for overruling the exception of prescription, saying

“when viewed in the most favorable manner, [claimant’s evidence] supports] his contentions.
“For the purpose of this exception, the court finds ... that the injury may have legally manifested or developed [itself] ... within one year of the filing of this suit ...” (Emphasis added)

The judge at the trial on the merits saw and heard claimant testify and was not required to view claimant’s evidence in the “most favorable manner,” but fairly in the light of all evidence in the performance of his responsibility to weigh and assess the evidence.

Similarly, in our appellate review of the facts and the law, we are to decide whether the record supports the conclusions and the result pronounced by the trial court. We give great weight to the trial judge’s weighing and assessing of testimony which he has heard, but much lesser weight to his assessment of evidence which is in documentary or deposition form. LSA-Const. Art. 5, § 10(B). See Fabiano v. Bryan, 438 So.2d 719 (La.App. 2d Cir.1983). In the latter instance, we do not review the evidence most favorably toward the litigant who prevails in the trial court, but we review the evidence independently and fairly. See and compare Boyette v. Auger Timber Co., 403 So.2d 800 (La.App. 2d Cir.1981); Lowe v. Continental Ins. Co., 437 So.2d 925 (La.App. 2d Cir.1983).

In this appeal we have recognized the trial court’s prerogative of assessing the credibility of witnesses who testified before him, but have reviewed the other evidence without recognition of such a prerogative. We find that the record supports the trial court’s conclusions that this claimant was not working in ever increasing pain to the extent that he became disabled within the meaning of the law and that claimant left his employment because he did not want to work with the new body shop employee hired by the new owner of the dealership.

We do find, however, that the evidence clearly shows that claimant sustained the impairment of a physical function under LRS 23:1221(4)(p) which was revealed to him and to his employer by the orthopedist’s report dated August 21, 1980, within the year before suit was filed. Claimant was assigned a 15 percent permanent impairment [called disability by the orthopedist] of the body as a whole as a result of the myoligamentous strain of his back while at work. The orthopedist agreed that claimant was not totally and permanently disabled. This evidence is not contradicted, although it is shown that claimant’s back could have been somewhat impaired or “disabled” because of other and earlier exertions and age.

The employer and its insurer apparently anticipated the application of § 1221(4)(p) because the insurer deposited $10,000 for the benefit of claimant into the registry of the trial court on the day before trial for the purpose of avoiding penalties and attorney fees and legal interest. The order allowing the deposit provides unconditionally that claimant

“may withdraw all or any portion of said deposit at any time, without any prejudice to his rights in this lawsuit, by written [request] to the Clerk.... In the event of any such withdrawal, the Clerk shall secure a written receipt from Plaintiff for the monies thus withdrawn ... and shall forward a copy of such receipt to counsel for Defendants ...”

An appellate court should allow compensation for a proved non-disabling § 1221(4)(p) impairment even though this was not sought or passed upon in the trial court. Ventress v. Danel-Ryder, Inc., 225 So.2d 765 (La.App. 3d Cir.1969). See also Chipman v. Insurance Co. of North America, 389 So.2d 432 (La.App. 2d Cir.1980). Any amount between the statutory minimum and maximum may be awarded for the 100 week period in the light of the circumstances of each case. LRS 23:1202. See Campbell v. Baker, Culpepper & Brunson, 382 So.2d 1046 (La.App. 2d Cir.1980).

In Campbell, supra, a younger claimánt sustained a back injury in an automobile accident and was treated conservatively for about 11 months before undergoing surgery, a lumbar laminectomy, which left her with a 10-15 percent permanent residual “disability” or impairment of her body. We approved an award under § 1221(4)(p) of $50 per week. The claimant in this appeal is older, was considering retirement, and has a slightly greater percentage impairment, is engaged in manual-type labor and did not undergo surgery. We deem $60 per week to be a reasonable award under the statutes mentioned.

We assessed attorney fees in Campbell because that employer made no attempt to pay that claimant's medical expenses and had no sound basis in law or in fact to deny claimant’s temporary total disability and resulting impairment. Here, it was stipulated that defendants were not obligated for penalties and attorney fees prior to October 1, 1981. Here defendants paid wages in lieu of compensation and paid the medical bills. We cannot say that these defendants were without a sound basis in law or in fact to contest claimant’s action by the plea of one year prescription. Whether or not the judge who held the hearing on the plea was correct in his ruling is not before us and, in any event, plaintiff filed suit within one year from the date his orthopedist informed him and his employer that he had a 15 percent permanent “disability.” Defendants were not without a sound basis in law or in fact for disputing total and permanent disability and refusing to pay benefits for such disability. Defendants unconditionally deposited and put at claimant’s disposition funds which would have paid claimant more than the minimum § 1221(4)(p) benefit. Under these circumstances, we do not find defendants arbitrary and capricious and liable for penalties and attorney fees. Compare Graham v. Jones Brothers Co., Inc., (La.App. 2d Cir.1984).

At appellant’s cost here and below, we amend and recast the judgment to reject all demands of claimant except for § 1221(4)(p) benefits of $60 per week for 100 weeks from May 30, 1980, which benefits are hereby awarded with legal interest from date of judicial demand on each weekly amount until May 9, 1983, (the date of the deposit into the registry of the court), and subject to a credit of $250 for the two weeks claimant was paid his weekly guarantee in lieu of compensation by his employer.

AMENDED AND AFFIRMED.


author: FRED W. JONES, Jr., Judge.

text:
    James H. JONES, Plaintiff-Appellant, v. P.K. SMITH CHEVROLET-OLDS, INC., et al., Defendants-Appellees. David THOMPSON, Plaintiff-Appellant, v. P.K. SMITH CHEVROLET-OLDS, INC., et al., Defendants-Appellees.
    Nos. 15941-CA, 15942-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.

      McKeithen, Wear, Ryland & Woodard by Russell A. Woodard, Columbia, for plaintiffs-appellants.
    Gist, Methvin, Hughes & Munsterman by Howard B. Gist, Jr., Alexandria, for appel-lee.
    Before MARVIN, FRED W. JONES, Jr. and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

In these consolidated suits, plaintiffs appealed a judgment rejecting their demands against General Motors Corporation (“GM”) for damages allegedly sustained as the result of an explosion which occurred when a 16" tire was mounted on a 16V2" GM rim. Specified as error was the trial judge’s conclusion that the accident was due to plaintiffs’ negligence.

For the reasons hereinafter explained, we reverse and render judgment in favor of plaintiffs.

Factual Context

On December 19, 1977 Womack, transported by his father-in-law, Grantadams, visited and purchased from Perry Smith Ford Company (“Smith Ford”) in Montgomery, Winn Parish, a used 1976 three-quarter ton Chevrolet pickup truck. Since the vehicle did not have a spare wheel and tire, as part of the sales transaction the vendor agreed to arrange for and furnish those items. Pursuant thereto, telephone calls were made to P.K. Smith Chevrolet-Oldsmobile, Inc. (“Smith Chevrolet”), owned by the vendor’s father, and Delta Tire and Supply Company (“Delta Tire”), both in Winnfield.

In order to save time, Womack dispatched Grantadams to pick up the rim from Smith Chevrolet. Upon his arrival at that business establishment, the parts manager, Stevenson, placed a I6V2" rim or wheel in the back of Grantadams’ truck. Grantadams then went to meet Womack at Delta Tire. At the tire store Womack had bought two new 16" Firestone tires, one of which was to replace a tire on the front of the recently purchased pickup truck and the other to go on the rim as a spare. When Grantadams arrived, Womack removed the rim and placed it with the two new tires in the back of his vehicle. Wom-ack then proceeded to the Eastside Texaco Service Station in Winnfield, owned by James Jones, to have the tires mounted.

When Womack reached the service station and gave instructions concerning the work to be done, David Thompson [Jones’ son-in-law and station employee] began to assemble the spare by bolting the rim furnished by Womack on a tire rack. Using a tire tool, Thompson then placed the tire and tube on the rim. Next, the assembled spare was removed from the rack in order to inject air into the tire. While Jones, who had just come out to help, stood with his left foot on the rim, Thompson put about 38 pounds of air into the tire. Jones told him to add a little more air. When Thompson placed the air hose back on the air stem an explosion occurred, injuring both Jones and Thompson. This litigation ensued.

Procedural Posture

In separate actions, Jones and Thompson sued GM, Smith Ford, Smith Chevrolet, Firestone Tire and Rubber Company (“Firestone”), Delta Tire, and James Womack for damages. The two suits were consolidated for trial purposes.

As the result of the sustaining of a Motion for Summary Judgment, Firestone and Delta Tire were dismissed as defendants. Plaintiffs later settled their claims against Smith Ford and Smith Chevrolet, executed restricted releases, and dismissed those two as defendants, leaving only GM and Womack. GM filed an amended answer setting forth the described releases and dismissal of the two defendants, asserted their negligence, and, in the event of a finding of liability on the part of GM, asked for a credit of at least two-thirds of any sum for which it was cast.

Trial as to GM and Womack was had in January 1982. In written reasons for judgment the trial judge concluded that the described accident was due solely to the negligence of the plaintiffs. Specifically, he found that Thompson was negligent in: failing to determine that the tire matched the rim before mounting; failing to cage or chain down the tire and rim before inflating the tire. The negligence of Jones consisted of: going into the business of mounting light truck tires without learning basic safety procedures; failing to teach his employee, Thompson, necessary safety procedures for mounting tires; allowing Thompson to mount a tire on a rim before determining that the two matched; failing to require Thompson to cage or chain down a truck tire before inflating the tire; placing his foot on the uncaged and unchained tire while it was being inflated.

Judgment was signed on January 21, 1988, in accordance with the written opinion, rejecting plaintiffs’ demands against GM. No mention was made of Womack and plaintiffs make no complaint of this omission.

Plaintiffs’ primary contention on appeal is that GM was liable to them because of its (1) failure to warn of the extreme exposure to physical injury presented by attempting to mount a 16" tire on a I6V2" rim, and, alternatively, (2) failure to legibly mark the rim as to size.

GM argues first, as an evidentiary matter, that plaintiffs failed to prove it was the distributor of the rim in question or that the rim introduced at the trial was in fact the rim involved in the accident. As to the substantive law, GM asserts that (1) it was under no duty to warn plaintiff of the danger of mounting a 16" tire on a I6V2" rim because the two were experienced tire-men who admittedly knew of that danger and (2) if GM was in any way negligent, plaintiffs’ claims were barred by their contributory negligence or victim fault in not leaving the tire bolted down until it was fully inflated.

Evidentiary Matters

Stevenson, veteran parts manager for Smith Chevrolet, testified that on the date of the accident he received a telephone call from Perry Smith requesting a rim for a 1976 ¾-ton Chevrolet pickup truck. Nothing was said as to rim size. Aware that the described truck used a variety of rims, including 15", 16" and I6V2", Stevenson secured a 16½" rim which he had removed from a new Chevrolet pickup truck they had in stock. This was the only kind of new truck the dealership handled. Upon the arrival of Grantadams, that rim was placed in his truck. Again, according to Stevenson, nothing was said as to rim size..

This rim, of course, was delivered by Grantadams to Womack who, in turn, left it at Jones’ service station for mounting of the tire.

Visiting the service station soon after the explosion, Womack saw Jones and Thompson being taken away in an ambulance. Nothing in the station had apparently been moved or cleaned up. Observing his new rim with a tire hanging on it, Womack took the items to a Conoco service station in Winnfield for completion of the assembly. However, when a dent was discovered in the rim lip, Womack returned the rim to Smith Chevrolet.

Two or three weeks following the accident, Jones sent an employee, Myrick, to Smith Chevrolet to bring back the rim in question. Stevenson testified that he handed Myrick the 16½" rim which he had previously placed in Grantadams’ truck and which was later returned by Womack. Myrick left the rim in Jones’ service station.

The rim introduced at the trial was identified by several parties, including the plaintiffs, as being similar to the one involved in the accident.

GM argues that its rims are always painted black, in contrast to the white rim identified as that delivered by Stevenson. It also points out that the invoice completed by Stevenson described the rim transferred by him as being 16".

As to the invoice, Stevenson explained that he mistakenly marked the rim as 16" by simply getting on the wrong line — the line for a 16½" rim was immediately under that for a 16" rim. The parts manager also testified that the rim had 16.5 X 6.00 stamped on the inside, although the “1” was very dim. Stevenson was positive that the rim was removed from a new Chevrolet pickup truck.

Although there is no specific finding of fact by the trial judge on this question, he at least impliedly concluded that the rim involved in this accident was distributed by GM and that the rim introduced at the trial was the same item involved in the accident. There is ample evidence in the record to support this conclusion, which we make expressly. We further note that there is a slight dent or crimp in an outside lip of this rim, which is consistent with Womack’s description of the rim which he secured from Jones’ service station following the accident.

Despite the fact that GM did not manufacture the rim, its responsibility as a professional vendor of the rim is the same as that of the manufacturer. Chappuis v. Sears Roebuck & Company, 358 So.2d 926 (La.1978).

Duty to Warn

Though a product contains no defect per se, a manufacturer must give warning of any danger inherent in the product’s normal use whick is not within the knowledge of an ordinary user. Hebert v. Brazzel, 403 So.2d 1242 (La.1981).

Plaintiffs contend that, although both stated they knew better than to try to mount a mismatched tire and rim, there was no evidence that the extreme exposure to physical injury which was presented by mounting a 16" tire on a 16½" rim was known to the plaintiffs.

Defendant argues, on the other hand, that it was under no legal duty to warn a party, particularly an experienced professional, such as each plaintiff, of that of which he was already aware — i.e., the danger of trying to mount a 16" tire on a 16½" rim.

The 50 year old Jones testified that he had been operating the service station about 16 months when the accident occurred. He knew better than to try mounting a smaller tire on a larger rim. Jones could usually tell there was a mismatch if the tire was too loose or too tight on the rim.

The 23 year old Thompson had been working at the service station some seven or eight months prior to the accident. On an average he mounted 12-14 tires a day. Thompson also knew of the danger involved in attempting to mount a mismatched tire and rim. However, in this case since the tire went on the wheel without any difficulty, he did not examine the wheel to see what size it was. Thompson said that he removed the tire from the tire rack to air it up so that they could begin to mount another tire.

It appears clear to us from the record that the danger of attempting to mount a 16" tire on a I6V2" rim was obvious to both plaintiffs. Consequently, GM was under no duty to place a warning to that effect on the rim to advise these plaintiffs of what they already knew.

Duty to Give Reasonable Notice of Rim Size

In this case the marking as to rim size was stamped or imprinted on the inside of the rim; was the same color as the rim itself; showed “16.5 X 6.00”, with the “1” before the “6” barely distinguishable; the numbers were approximately Vs inch high and the entire imprinting about ¾ inch long.

Plaintiffs argue that GM was under a legal duty to legibly mark this rim as to size because: defendant knew that tires and rims would be changed from time to time; this was the only mismatch which would cause an explosion of this nature, since in other mismatches the tire would either not fit over the rim or the tire would not hold air; the 16" rim is actually taller than the 16½" rim. Plaintiffs further assert that information as to size of the rim should have been so placed that one attempting to match a tire and rim was given reasonable notice of the rim size.

We agree with plaintiffs’ argument on this point. In the recent case of Andries v. General Motors Corporation, 444 So.2d 1180 (La.1983), addressing the duty to warn [which it found had not been violated] our state supreme court noted:

“Proper placement of a warning label so that it is clearly visible is one factor to be considered in determining the adequacy of the warning in a products liability case. A warning label which is not clearly visible is not an adequate warning.”

Although we have held that GM was under no duty to warn plaintiffs of the danger of trying to mount a 16" tire on a 16½" rim, it should have marked the rim as to size in a reasonable manner. After all, it does little good to know of the danger of mismatching if the party assembling the tire and rim is not given fair notice of the rim size. Stevenson, who had worked with motor vehicle parts for more than 25 years, testified that he could not tell the difference between a 16" and a I6V2" rim without measuring the two. A GM representative conceded that he could find the size imprinted on this rim only because of his knowledge of the specific point at which rims are marked during the manufacturing process.

We find that GM had a legal duty to reasonably mark this rim as to size and that it breached this duty by the manner in which it attempted to mark the rim. Was this breach a legal cause of the accident— i.e., should GM have anticipated this particular consequence of its failure to properly mark the rim as to size? Of course, this includes all of the acts of plaintiffs which GM and the trial judge have characterized as negligence or victim fault, particularly removal of the wheel assembly from the tire rack before completion of the airing.

In view of the likelihood that rims and tires would be changed and considering the ease with which a 16" tire goes on a 16/2" rim, we find that GM should have anticipated this kind of occurrence. Consequently, its failure to properly label the rim as to size was a legal cause of the accident. In attempting to mount the tire on the rim, nothing untoward would take place tending to alert plaintiffs that the rim was larger than the tire and that a final airing without bolting down the wheel assembly entailed any danger. In summary, applying the duty/risk analysis, we have determined that GM owed a duty to these plaintiffs to properly label the rim as to size; that duty was breached; the breach was a legal cause of the accident. Therefore, GM is liable to plaintiffs for their damages.

Quantum

We are empowered to award damages in cases where the trial court initially rejects plaintiffs’ demands and the record is complete with regard to damages. La.C. C.P. Art. 2164; Holman v. Reliance Insurance Companies, 414 So.2d 1298, 1310 (La.App. 2d Cir.1982).

Assessing general damages at the appellate level, we are not obliged to make an award equal to either the highest or lowest dollar amount, as in the review of trial court judgments. Our mandate is to fix damage awards, based upon record evidence, that are just and fair. Wall v. American Employers Ins. Co., 377 So.2d 369 (La.App. 2d Cir.1979).

With these principles in mind, we turn to the injuries sustained by these plaintiffs. Jones

Following the accident, this plaintiff was taken to the emergency room of the Winn-field General Hospital. Because of the severity of his wounds, which obviously required the attention of a specialist, Jones was immediately transferred to an Alexandria hospital. After an extensive examination, Dr. Beurlot, an orthopedic surgeon, found that Jones had suffered a comminuted fracture of the left heel bone, fractures of two other bones in the left foot, a puncture wound to the left thigh, and some derangement of the left knee. The patient was hospitalized until December 24, 1977, when he was discharged from the Alexandria hospital, fitted with a cast coming up above the left knee. Upon returning home Jones used a wheelchair for from four to six weeks.

Because of continued discomfort in the left foot, Jones consulted physicians at the Veterans Hospital in Shreveport in the latter part of February 1978. After having been fitted with a brace at that institution in May 1978, he was able to place some weight on the left foot for the first time since the accident. Jones used the brace and a cane to assist in walking until the end of 1978.

With the reduction of swelling in his left foot, in January 1979 Jones was operated upon at the VA Hospital. This operative procedure involved fusion of three bones in the left ankle area so that the patient’s foot could not move from side to side, thereby stabilizing the weakened left ankle. Plaintiff was discharged after remaining in the hospital about a week. He left the institution on crutches, with a cast on his left leg and foot. When the cast was removed on March 1, 1979, the left ankle was discovered to be infected in the vicinity of the incision. Jones was readmitted to the hospital and treated for the infection. The latter was cleared up in two weeks and plaintiff again discharged. He continued returning to the VA Hospital at regular intervals through the end of 1980.

Dr. Beurlot last examined Jones on August 27, 1981, and found that plaintiff still complained of pain in his left ankle. Dr. Beurlot concluded that Jones was incapable of prolonged standing or walking. He stated that Jones could perform many of the duties required around a service station, but could not execute' these tasks on a repetitive basis. His assessment of Jones’ lower left extremity impairment was 9%.

Dr. Rambach, another orthopedic surgeon, saw Jones for the purpose of assessing his disability on July 30, 1978. This physician found some swelling of the left foot and limited motion of the ankle resulting from the fusion operation. He concluded that Jones had reached his maximum level of improvement and that the condition of his left lower extremity would prevent the performance of any heavy manual labor.

Dr. Bettinger, expert witness, estimated that Jones had sustained past income losses of $46,173. He further testified that, even were Jones to start a new career at minimum wages, his future income loss would amount to $112,448.

Considering the severity of Jones’ wounds, we have determined that a fair award for his general damages is $50,-000. Recognizing that this plaintiff has actually lost several years income, but aware of the speculative nature of his future earning capacity loss, we fix his award for past and future income or earning capacity loss at $120,000.

Thompson

This plaintiff was also examined by Dr. Beurlot in Alexandria soon after the described accident. Thompson was found to have suffered a comminuted fracture of the large bone in the right forearm in the area of the wrist joint where the wrist begins to move. Plaintiff was operated upon on December 23, 1977, at which time pins were placed in his right wrist and a cast applied. He was discharged after spending several days in the hospital. The fracture healed properly within about one month, whereupon the cast was removed and the pins taken out. Thompson resumed employment as an oil field worker in February 1978.

Dr. Beurlot last examined Thompson in August 1981 and assigned to his patient’s right wrist a permanent impairment of 10%. Dr. Rambach saw Thompson to assess his disability in July 1981, and fixed the right wrist disability at 15%.

Based upon the record evidence of his injury, we fix the general damage award to Thompson at $15,000, and conclude that he has sustained $3,500 lost income. Although there is some evidence that his employment opportunities in the future may be somewhat restricted because of the wrist injury, that evidence is not substantial enough to justify an award for future income or earning capacity loss.

Credit for Settlements

As we have pointed out, after filing of these suits both plaintiffs settled with and released defendants Smith Ford and Smith Chevrolet, having originally sued these parties as alleged joint tortfeasors.

In Wall v. American Employers Ins. Co., 386 So.2d 79 (La.1980) the state supreme court found that we erred in determining that plaintiffs were bound by allegations of an original petition concerning joint tortfeasors, pointing out that those pleadings had been amended by implied consent of the parties to charge exclusive fault on the part of the police jury. However, the court then proceeded to explain that reduction of the award would nonetheless be warranted if evidence presented at the trial indicated the two released drivers were in fact negligent and thus joint tort-feasors with the police jury — which the record was found to show.

Here there was no implied consent of the parties to charge exclusive negligence on the part of GM. In fact, after dismissal of the suits against Smith Ford and Smith Chevrolet, GM amended its answer to reiterate the negligence of those parties and ask for proper credit on any judgment rendered against it. Be that as it may, the record fully supports a conclusion of joint negligence on the part of the two released defendants. Consequently, GM is entitled to a credit on the judgment rendered herein against it for two-thirds, since two of the three joint tortfeasors have been released.

Decree

For the reasons set forth above, the judgment of the district court is reversed, and there will be judgment against General Motors Corporation and in favor of James H. Jones for the sum of $170,000 and in favor of the plaintiff David Thompson for the sum of $18,500, both bearing legal interest from judicial demand until paid, and for cost of court, subject to these amounts to each plaintiff being reduced by two-thirds at the time said judgments are paid. Costs of appeal are assessed to General Motors Corporation.


author: KNOLL, Judge.

text:
    Noah DUPUIS, Plaintiff-Appellee, v. TIGER OIL INTERNATIONAL, INC., Defendant-Appellant.
    No. 83-395.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.

      Landry, Watkins & Bonin, Nan Landry, New Iberia, for defendant-appellant.
    Felix A. DeJean, III, and Thomas DeJe-an, Opelousas, for plaintiff-appellee.
    Before FORET, YELVERTON and KNOLL, JJ.
   KNOLL, Judge.

This case involves a determination of medical benefits due under a group hospitalization insurance policy. The trial court rendered judgment in favor of the insured, Noah Dupuis, and against his former employer, Tiger Oil Incorporated (hereafter Tiger Oil) and its group insurer, Prudential Insurance Company of America (hereafter Prudential), finding the defendants arbitrary and capricious, and awarding $7,575.04 for past due medical bills and statutory penalties, together with an additional $5,000 for attorney’s fees.

Tiger Oil and Prudential suspensively appealed the judgment of the trial court, raising the following issues:

1. Whether the trial court erred in its determination that Tiger Oil’s group insurance policy with Prudential provided maternity benefits for Leah Dupuis and dependent’s coverage for her son, Derek Dupuis;
2. Whether the trial court erred in its calculation of medical benefits;
3. Whether the trial court erred in finding the defendants arbitrary and capricious under LSA-R.S. 22:657; and,
4. Whether the trial court erred in its allocation of court costs.

FACTS

Noah Dupuis was employed with Tiger Oil from February to August of 1979, and participated in the company’s group hospitalization program with Prudential. Leah Dupuis was a named dependent under her husband’s Prudential hospitalization policy. She became pregnant while her husband was employed by Tiger Oil. In August of 1979 Noah Dupuis left the employment of Tiger Oil and began to work for Merit Drilling Company. Before his departure from Tiger Oil, he requested that his group hospitalization policy be changed to a personal policy. Sue Manuel, an employee of Tiger Oil who took care of the insurance policies, claims, etc., told him that he did not have to convert because his wife had become pregnant while the Tiger Oil coverage was in effect. In August 1979, he enrolled in Merit’s group hospitalization program which was also with Prudential. Mrs. Dupuis was a named dependent under Merit’s Prudential policy. On January 31, 1980 Mrs. Dupuis gave birth to Derek by Cesarian section. Derek became eligible for health insurance through Merit’s hospitalization policy from the date of his birth.

INSURANCE COVERAGE

Noah Dupuis filed suit against Tiger Oil and its group insurer, Prudential, to recover maternity benefits incurred in connection with the birth of his son, Derek. The trial court determined that Tiger Oil and Prudential provided coverage for Leah Du-puis and Derek Dupuis under the Tiger Oil group policy.

Prudential initially denied maternity benefits under the Tiger Oil policy, but did pay some maternity benefits under the Merit policy. At trial Prudential conceded that its policy provided maternity coverage to Leah Dupuis. Prudential contended that although they were not contractually obligated to provide maternity benefits to Leah Dupuis under the Tiger Oil policy, maternity coverage had been extended to her through an administrative decision made by Prudential. Therefore, the trial court was correct in its determination that Prudential was responsible for Leah Dupuis’ maternity bills under the Tiger Oil policy.

Noah Dupuis contends that Tiger Oil’s group insurance policy with Prudential also provided coverage for Derek’s medical expenses. He testified that before he left Tiger Oil to begin employment elsewhere, he was told by Sue Manuel, the Tiger Oil employee who was in charge of insurance, that it was not necessary for him to convert his group hospitalization policy to individual coverage because his wife had become pregnant while he was working for the company. On the other hand, Prudential asserts that Derek could not have been covered under the Tiger Oil policy because he was not a named insured. Prudential further asserts that since Noah Dupuis’ insurance coverage through Tiger Oil terminated when he began working for Merit, Derek did not qualify as an eligible dependent at the time of his birth under the Tiger policy.

Shortly after Derek’s birth, he contracted an illness which required him to be rehospitalized for approximately one week. The bills for this illness were treated by the trial court as maternity benefits. The trial court’s decision turned on the statement made by Sue Manuel to Mr. Dupuis that it was not necessary to convert to a personal policy. The trial court felt that this statement misled the plaintiff.

Under Prudential’s group insurance policy with Tiger Oil the maternity benefit’s provisions do not extend coverage to children at birth. Children are covered under the dependent’s provisions of the Prudential policy from the time of birth. Dependent’s coverage is also hinged on the existence of an insurance contract with the named insured. In the case sub judice Noah Dupuis was the named insured; at the time he terminated his employment with Tiger Oil he was no longer an insured under the company’s group insurance policy with Prudential. Accordingly, dependent’s coverage for Derek never existed under the Tiger policy because Derek was not a qualified dependent during the time that his father was insured under the Tiger Oil policy. Derek’s benefits fell under Merit's policy with Prudential which were timely paid. Therefore, the trial court was incorrect in its determination that Prudential was responsible to Noah Dupuis for Derek’s medical bills under the Tiger Oil policy.

Mrs. Dupuis incurred obstetrical expenses (prenatal care and delivery) together with charges for her hospitalization in connection with Derek’s birth. The trial court determined that Mrs. Dupuis’ medical expenses as proved at trial were as follows:

Women’s Clinic $1,000.00
Opelousas General Hospital 1,630.95
Dr. George Prather 100.00
Medical Center Laboratory, Inc. 48.00
Miscellaneous Prescriptive Drugs 163.03
Total $2,941.98

Prudential acknowledged receipt of bills totaling $2,641.88 submitted through Merit’s group policy for Mrs. Dupuis’ pregnancy and delivery. One of Prudential’s claim analysts determined that $124.64 of the bills submitted under the Merit policy was excludable as ineligible prescriptive drug charges. At trial Prudential offered proof that in March 1980 it had paid $1,496.39 under the Merit policy for maternity claims.

After suit was brought against Prudential under the Tiger Oil policy, Prudential deposited $1,022.04 into the registry of the court. This sum represented the amount which Prudential had determined was due under the Tiger Oil group policy.

Prudential argues that two policies of insurance applied to Mrs. Dupuis and payments made under Merit’s policy should have been credited against the Tiger Oil claim. Both group policies contained a provision for the coordination of benefits which stated that:

“Such benefits for a person may be subject to reduction if he is covered under two or more Plans (including this Plan). Such benefits shall be reduced, to the extent necessary, so that the sum of the benefits payable under this Plan and the benefits available under all other Plans, with respect to Allowable Expenses incurred as to such person in any Claim Determination Period, does not exceed the total of such Allowable Expenses."

The trial court determined that the “coordination clause” was not applicable. Accordingly, the trial court did not give Prudential credit for the $1,495.39 payment made under the Merit policy. We disagree. Under the plain language of both insurance contracts the trial court should have allowed Prudential to coordinate the benefits due Mrs. Dupuis, and give Prudential credit for the $1,496.39 payment made under Merit. The trial court’s decision would allow the insured to receive Prudential’s payment of $1495.39 under Merit’s policy twice. By giving Prudential credit for this payment under the “coordination clause” it simply prevents double recovery.

STATUTORY PENALTIES

When Mrs. Dupuis was hospitalized, she presented the Prudential medical card which Tiger Oil had issued to her husband. After processing the card, the hospital advised the insured that Prudential had denied coverage through Tiger Oil. The insured paid some of the medical bills personally and then submitted medical claims for all the bills through Merit’s group insurance with Prudential.

On June 2, 1980 and July 23, 1980 the Dupuis’ attorney sent demand letters with copies of the medical bills to Prudential. A Prudential claims examiner advised the Du-puis’ attorney that they would look into the matter. On June 11, 1980 this lawsuit was instituted.

Prudential deposited $1,022.04 into the court registry on November 12, 1980, stating in a written notice of tender that this payment constituted “benefits due and owing [Noah and Leah Dupuis] under a policy of group health insurance issued by Prudential Insurance Company of America to Tiger Oil International, Inc. ...” A Prudential claims analyst explained at trial that its tender was based on the proofs of claim filed under the Merit policy and by the Dupuis’ attorney.

Prudential’s notice of tender was an admission that they owed the Dupuis $1,022.04 under the Tiger Oil policy. Since Prudential’s deposit was made well after thirty (30) days from the date of demand, the trial court properly concluded that the penalty provisions of LSA-R.S. 22:657 were applicable.

LSA-R.S. 22:657 provides in pertinent part:

“... 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 ... together with attorney’s fees to be determined by the court....” (Emphasis added)

In the case sub judice the trial court case both Prudential and Tiger Oil with penalties and attorney’s fees. The provisions of LSA-R.S. 22:657 are penal in nature and must be strictly construed. Killebrew v. Abbott Laboratories, 352 So.2d 332 (La.App. 4th Cir.1977), affirmed at 359 So.2d 1275 (La.1978). Attorney’s fees are not allowed except when authorized by statute or contract. Killebrew, supra; see also Maloney v. Oak Builders, Inc., 256 La. 85, 235 So.2d 386 (La.1970); and Hernandez v. Harson, on rehearing, 237 La. 389, 111 So.2d 320 (La.1959). Likewise, it is well recognized that punitive damages are not allowed except by authorization of a statute or contract. McCoy v. Arkansas Natural Gas Co., 175 La. 487, 143 So. 383, cert. denied 287 U.S. 661, 53 S.Ct. 220, 77 L.Ed. 570 (1932). Tiger Oil was not an “insurer” subject to the penal provisions of LSA-R.S. 22:657 and should not have been held liable with Prudential for penalties and attorney’s fees.

Under LSA-R.S. 22:657 the amount of the penalty is calculated by doubling the health benefits found to be due under the terms of the insurance contract. We have already determined that Derek does not fall under Prudential’s policy with Tiger Oil and his expenses were timely paid by Merit. Therefore there are no penalties due on the child’s claim. The trial court determined Mrs. Dupuis’ medical bills totaled $2,941.80. This amount less the credit of $1,495.39 paid under Merit leaves a balance of $1,446.41. Therefore by doubling this amount the penalty is $2,892.82.

The district court also awarded attorney’s fees of $5,000. We do not find that the' trial court abused its discretion in awarding $5,000 attorney’s fees against the insurer, Prudential.

COURT COSTS

The date this case was originally set for hearing in the trial court, the defendants appeared with their witnesses, but only plaintiff’s attorney was in attendance. Over the objection of the defendants, the trial court granted plaintiffs motion for a continuance.

At the time the continuance was granted the trial judge assessed court costs against the plaintiff and reserved defendants the right to establish any additional expenses or costs. The defendants attached an exhibit to a posttrial memorandum delineating expenses incurred by them when the case was first fixed for trial, for travel expenses of a witness who came from Houston and for attorney fees. The defendants contend on appeal that the plaintiff should have also been cast with these additional expenses. We disagree.

The hearing on the motion for continuance provided that the defendants could establish any additional costs. The trial record is void of any proof of these additional expenses. The attachment to a post-trial memorandum of an exhibit showing additional expenses does not constitute the proof required to establish those costs. This exhibit was not introduced at trial and therefore cannot be considered as evidence in our review of the judgment. Leger v. Delano Plantation, Inc., 350 So.2d 377 (La.App. 3rd Cir.1977); State, Department of Highways v. Colby, 321 So.2d 878 (La.App. 1st Cir.1975), writ denied 325 So.2d 278 (La.1976).

DECREE

For the foregoing reasons the judgment of the trial court is amended and recast as follows and, as amended, is affirmed.

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Noah Dupuis and against the defendant, Prudential Insurance Company of America, in the amount of $2,892.82, representing unpaid medical expenses and the statutory penalty, together with legal interest thereon from date of judicial demand until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of the plaintiff, Noah Dupuis, and against the defendant, Prudential Insurance Company of America, for attorney’s fees in the amount of $5,000 with legal interest from the date of judicial demand until paid.

The costs of the trial court through October 27, 1981 are assessed to the plaintiff. The costs of the trial court subsequent to October 27, 1981 and all costs of this appeal are assessed to the defendant, Prudential Insurance Company of America.

AMENDED IN PART; AFFIRMED IN PART; AND RENDERED.

      . Derek’s medical bills totaled $2,012 (comprising $1,487 to Opelousas General Hospital; $130 to Dr. George Prather; and $395 to Dr. Charles Bertrand). Under Noah Dupuis' Prudential policy with Merit Drilling, Prudential paid $1,189.60 approximtely, 80% of the expenses. In this regard we note that the trial court incorrectly totaled Derek’s expenses to be $3,912, and the trial court together with the litigants failed to recognize the $1,189.60 payment made by Prudential through the Merit policy on March 20, 1980.


author: DOMENGEAUX, Judge.

text:
    STATE of Louisiana v. Garey Douglas RIVERS.
    No. CR83-481.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.

      William D. Dyess, Many, for defendant-appellant.
    James L. Davis, Dist. Atty., Many, Abbott Reeves, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOMENGEAUX, Judge.

The defendant, Garey Douglas Rivers, was charged with two counts of simple burglary of an inhabited dwelling, a violation of La.R.S. 14:62.2. On November 17, 1982, the first day of trial, the defendant attempted to tender a plea of guilty through a plea bargain arrangement with the District Attorney’s office. The trial judge refused to accept the defendant’s guilty plea because he felt it was not made “knowingly and intelligently.”

Trial was commenced on November 18, 1982, and on November 20, 1982, the jury returned a verdict of guilty to both counts of simple burglary of an inhabited dwelling.

On December 17, 1982, a hearing was had on defendant’s motion for a new trial. The motion was denied. On March 15, 1983, the defendant was sentenced to serve five years at hard labor on each count, to run consecutively, with the first year of each sentence to be served without benefit of .parole, probation, or suspension of sentence.

ASSIGNMENTS OF ERROR

The defendant alleges three assignments of error. Defendant contends in assignments of error numbers one (1) and two (2) that the trial court erred in allowing the district attorney, during voir dire, to tell the jury that this crime did not require specific intent and thus the prosecutor shifted the burden of proof to the defendant by implying that he must prove the lack of specific intent. The defendant also argues that it was error for the trial judge to reject the defendant’s plea of guilty to a lesser offense thus violating the defendant’s right to plea bargain.

ASSIGNMENTS OF ERROR NOS. 1 AND 2.

The defendant argues by these assignments that the court erred in allowing the district attorney, during voir dire of prospective jurors (1) to shift the burden of proof to the defendant by implying that the defendant must prove the lack of specific intent and (2) to tell the jurors that specific intent was not an element of the crime.

The State must prove, beyond a reasonable doubt, the essential elements of the crime with which the defendant is charged. State v. Brady, 414 So.2d 364 (La.1982); State v. Hollingsworth, 337 So.2d 461 (La.1976); State v. Moore, 432 So.2d 209 (La.1983). The defendant herein is charged with two counts of violating La.R.S. 14:62.2, which reads:

“Simple burglary of an inhabited home is the unauthorized entry of any inhabited dwelling house, apartment or other structure used in whole or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein, other than as set forth in Article 60.”

Thus, the three elements which the state must prove in order to convict the defendant are: (1) an unauthorized entry of (2) an inhabited dwelling and (3) the specific intent to commit a felony or theft therein. There was no question in the trial below that the first two elements were proved by the State. The defendant even admitted that the State would have no problem proving that the defendant entered the premises without authorization, took possession of goods which did not belong to him, and sold them for money.

As to the third element, the defendant claimed that he would offer proof that he was under the influence of drugs or alcohol when the crimes were committed.

At issue is the district attorney’s question to a prospective juror concerning the defendant’s burden of proof for his claim of intoxication:

“By Mr. Breedlove: [Assistant District Attorney]
Q. Mrs. Hines, do you know who would have the burden of proving that this defendant might have been in such an intoxicated condition that intent could be precluded?
A. Mr. Dyess [Defense Counsel] probably.
Q. I can assure you there’s no probably to it. You understand that if the defendant wants to hide behind an affirmative defense and say ....”

At this point the defendant objected. The judge, district attorney, and defense counsel then adjourned to the judge’s chambers for resolution of the issue out of the presence of the jury. When the three returned to open court the judge gave the following instruction to the prospective jurors:

“You are instructed that in all criminal cases, the state must prove every element of the crime charged or of a crime included therein beyond a reasonable doubt. The burden of proof is always on the state. The defendant does not have the burden of calling any witnesses or introducing any evidence. The state has the burden of proving beyond a reasonable doubt that the defendant had the specific intent or special knowledge required for the offense charged.”

Though there was disagreement between the judge, the district attorney, and defense counsel, as evidenced by the exchange in chambers discussing the issue, the law is clear that intoxication may be an affirmative defense to a crime requiring specific intent and that the burden of proving intoxication rests on the defendant. La.R.S. 14:15. The Second Circuit explained this burden in State v. Gipson, 427 So.2d 1293 (La.App. 2nd Cir.1983):

“La.R.S. 14:15, providing that intoxication may be a defense to a crime requiring the presence of a specific criminal intent is located in that subpart of the Louisiana Criminal Code dealing with the subject of criminal culpability. Therefore, intoxication is in the nature of an affirmative defense to a criminal charge and the burden is upon the defendant to prove the existence of that condition at the time of the offense.” Gipson, at 1298.

Thus, the district attorney made a correct statement regarding the defendant’s burden of proof. When the defendant alleges intoxication, it is comparable to an affirmative defense, so that he must establish that his state of mind at the time of the alleged crime was such as to preclude the formation of a specific intent to commit the crime charged.

However, even if the district attorney’s remarks had amounted to an erroneous shifting of the burden of proof, that misstatement of the law was rendered harmless by the judge’s instructions to the jury both on voir dire and later at trial. State v. Holmes, 388 So.2d 722 (La.1980); State v. Burge, 362 So.2d 1371 (La.1978); State v. Brumfield, 329 So.2d 181 (La.1976). Thus, as in the cases cited, it appears that the trial judge’s proper instructions to the jury avoided any prejudice which might have resulted from the alleged misstatements. State v. Messer, 408 So.2d 1354 (La.1982); Holmes, supra; Burge, supra; State v. Tolbert, 390 So.2d 510 (La.1980); State v. Brumfield, supra; State v. Mattheson, 407 So.2d 1150 (La.1981); State v. Carthan, 377 So.2d 308 (La.1979).

Also, as in State v. Tolbert, a case closely analogous to the case sub judice, on the evidence presented the jury could have reasonably believed that the defendant entered these homes with the specific intent to commit a theft or felony therein;

“a great deal of credit should be accorded to the good sense and fairmindedness of jurors who have heard the evidence and who know what was and what was not proven.”

State v. Dupre, 408 So.2d 1229, 1234 (La.1982).

The record as observed by the trial judge during the hearing on the motion for a new trial is completely devoid of any evidence which would tend to show that the defendant was under the influence of drugs and/or alcohol at the time of the offense. Evidence was introduced to show the defendant’s longstanding abuse of drugs and alcohol but no evidence was presented regarding the days in question. Thus, the defendant failed to establish a defense of intoxication to refute the prosecutor’s evidence which tended to prove specific intent.

Specific intent need not be proved by direct evidence alone. Although intent is a question of fact, it need not be proven as a fact; instead it may be inferred from circumstances of transactions and actions of the accused. La.R.S. 15:445; State v. Fuller, 414 So.2d 306 (La.1982); State v. McDermitt, 406 So.2d 195 (La.1981); In Interest of Franklin, 399 So.2d 671 (La.App. 1st Cir.1981); State v. Huizar, 414 So.2d 741 (La.1982).

The district attorney showed, and it was admitted by the defendant, that Garey Rivers entered these two homes without authority, took possession of firearms, jewelry, and money while therein, and subsequently sold said items to obtain additional cash. From these circumstances, and by defendant’s actions, the jury could easily have inferred that the defendant had the specific intent to commit a theft while inside these homes and did in fact commit such thefts.

The defendant offered no evidence to substantiate his claim that he acted while under the influence of drugs and/or alcohol. For the reasons stated above, assignments numbers 1 and 2 are without merit.

ASSIGNMENT OF ERROR NO. 3.

The defendant argues that the trial court erred in refusing to allow defendant to plead guilty to a lesser offense and thus violated his right to plea bargain. On the first day of trial the defendant attempted to enter a plea of guilty to one count of simple burglary of an inhabited dwelling pursuant to a plea bargain agreement with the district attorney’s office. During the “Boykinization” of defendant the judge asked the assistant district attorney to state the facts upon which the charge was based. After the assistant district attorney completed his narration of the facts the judge asked:

“Q. Mr. Rivers, is all of what he said substantially true and correct?”

To which the defendant responded:

“A. I guess; I don’t even remember it.” The trial judge then asked the defendant:
“Q. Well, if you don’t remember it, how are you going to plead guilty?”

The defendant responded:

“A. Everybody said I done it.”

The trial judge then refused to accept the defendant’s guilty plea as he felt it was not being made “knowingly and intelligently.”

The Boykin requirements apply to the making of the plea, i.e., due process requires that the defendant understand the constitutional rights he is waiving and that such waiver is knowingly and intelligently made. Boykin, supra; State v. Martini 382 So.2d 933 (La.1980). The requirement does not address the question of whether or not the defendant knows he is guilty or believes he is innocent. Moreover, the fact that a defendant believes that he is innocent, and makes such belief known to the court, does not preclude him from entering a guilty plea. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); State v. Martin, supra. Indeed, there would have been no error had the trial judge accepted the defendant’s guilty plea, in spite of the fact that the defendant raised doubt as to whether or not he truly believed he was guilty. Alford, supra; Lynch v. Overholser, 369 U.S. 705, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962). Nevertheless, the United States Supreme Court has expressly refused to rule that a defendant has an absolute right to have his guilty plea accepted. Lynch, 369 U.S. at 719, 82 S.Ct. at 1072; Alford, 400 U.S. at 34-35, 91 S.Ct. at 165-166.

In Alford, there was substantial evidence before the trial court which strongly indicated that Alford was guilty as charged. Alford, 400 U.S. at 32, 91 S.Ct. at 164. But here, there was no such evidence before the Court. Moreover, there was evidence before the court regarding the defendant’s substantial and longstanding abuse of drugs and alcohol which might well have proved a defense to the crime charged, and therefore may have established that the defendant could not have had the requisite specific intent.

“State and lower federal courts are divided upon whether a guilty plea can be accepted when it is accompanied by protestations of innocence and hence contains only a waiver of trial but no admission of guilt. Some courts, giving expression to the principle that ‘[o]ur law only authorizes a conviction where guilt is shown,’ ... require that trial judges reject such pleas .... But others have concluded that they should not ‘force any defense on a defendant in a criminal case,’ particularly when advancement of the defense might ‘end in disaster * * *.’ ... As one state court observed nearly a century ago, ‘reasons other than the fact that he is guilty may induce a defendant to so plead, * * * [and] [h]e must be permitted to judge for himself in this respect.’ ” Alford, at 33, 91 S.Ct. at 165.

In spite of this language, it seems that in the instant case the trial court properly refused the defendant’s guilty plea. From the record it appears the trial court had little before it upon which to base a belief in defendant’s guilt and had some knowledge of facts which might tend to prove his innocence. As the Supreme Court reasoned:

“If Alford’s statements were to be credited as sincere assertions of his innocence, there obviously existed a factual and legal dispute between him and the state. Without more, it might be argued that the conviction entered on his guilty plea was invalid, since his assertion of innocence negated any admission of guilt, which, as we observed last term in Brady, is normally ‘[cjentral to the plea and foundation, for entering judgment against the defendant * * *.’ [Brady v. U.S.] 397 U.S. [742], at 748, 90 S.Ct. [1463], at 1468 [25 L.Ed.2d 747].”

Alford, at 32, 91 S.Ct. at 165.

It should be noted that the question here is not whether a guilty plea can be accepted when accompanied by a claim of innocence, but rather, it is whether the trial court committed any error in refusing to accept such a plea. Under the particular circumstances of this case, it appears that the trial court committed no error in refusing to accept the guilty plea and requiring that a trial be had to determine the guilt or innocence of the accused. For the reasons stated above, this assignment is without merit.

DECREE

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

AFFIRMED.

      . As to the district attorney’s remarks during voir dire, it should be noted that even if the district attorney did make improper statements of the law, that does not require reversal. In Burge, the prosecutor’s discussion of the insanity and intoxication defenses was clearly erroneous. But, because the judge gave the proper explanation of the law during his instructions to the jury, the court held there was no reversible error. Burge, supra. In Holmes, the court held that even though the prosecutor misstated the law of principals and the necessity of proving specific intent, there was no "reversible error where the trial court’s instruction properly summarized the law.” At 727.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


author: CUTRER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. James MORRIS, Defendant-Appellant.
    No. CR83-551.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Edward Lopez, Opelousas, for defendant-appellant.
    Morgan J. Goudeau, III, Dist. Atty. and Josie Frank, Asst. Dist. Atty., Opelousas, for plaintiff-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

The defendant, James Morris, was charged by grand jury indictment with the crime of aggravated rape, a violation of LSA-R.S. 14:42. To this charge the defendant initially entered a plea of not guilty. However, subsequent to jury selection and immediately prior to the beginning of his trial, the defendant was allowed to enter a plea of guilty to the lesser and responsive crime of forcible rape (LSA-R.S. 14:42.1). A pre-sentence investigation and a psychological evaluation of the defendant were ordered by the trial judge, and the record reflects that each was carefully considered by the trial judge before he imposed a sentence of twenty years at hard labor, the first two years of which were to be served without the benefit of parole or probation.

The defendant, age sixteen at the time of the offense’s occurrence on December 8, 1982, filed one assignment of error, alleging that the sentence imposed was excessive. However, as neither brief nor argument has been presented to this court in support of defendant’s claim of exces-siveness, this assignment has been abandoned upon appeal. State v. West, 419 So.2d 868 (La.1982). We are, therefore, limited to a review for errors patent on the face of the record. LSA-C.Cr.P. art. 920(2). Having conducted this review, we find no such errors and, accordingly, we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . The crime of forcible rape to which the defendant pled guilty carries a penalty of, not less than two years nor more than, forty years at hard labor. At least two years of the sentence imposed shall be without benefit of parole, probation or suspension of sentence. Aggravated rape, the crime which defendant was initially charged is punishable by a mandatory penalty of life imprisonment at hard labor without benefit of probation, parole or suspension of sentence.


author: PER CURIAM.

text:
    Franklin JAMES, Appellant, v. The STATE of Florida, Appellee.
    No. 83-78.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1984.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

Affirmed. See Maggard v. State, 399 So.2d 973 (Fla.1981), cert. denied, 454 U.S. 1059, 102 S.Ct. 610, 70 L.Ed.2d 598 (1981); A. McD. v. State, 422 So.2d 336 (Fla. 3d DCA 1982); Ho Yin Wong v. State, 359 So.2d 460 (Fla. 3d DCA 1978), cert. denied, 364 So.2d 886 (Fla.1978).


text:
    Antonio SANCHEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2511.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1984.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Marti Rothen-berg and Julie Thornton, Asst. Attys. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Appellant was charged by information with second degree murder. At trial he was found guilty by a jury of manslaughter, whereupon the trial court imposed a sentence of fifteen years in the state penitentiary.

Briefly, the facts are that appellant shot and killed Felix Hernandez, his wife’s former husband. The shooting occurred in the parking lot of the apartment complex where both the appellant and his family, and Hernandez, lived.

It appears from the record that immediately after the shooting, appellant voluntarily went to the local substation and surrendered. He told the police that as he and his wife and their two daughters (from his wife’s prior marriage to Hernandez), were getting into his car, Hernandez drove up in his Ford Ranchero, got out and began demanding that his wife turn over the two children. Hernandez became very abusive verbally towards his wife and, at one point, towards Sanchez. Sanchez related that Hernandez told him, “You better get something because I’m going to kill you,” and began going towards the Ranchero. Sanchez thought he was going to get his gun, so he took out the firearm he was carrying, a .45 automatic, loaded it, and fired one shot in order to scare Hernandez. He saw Hernandez hit in what he thought was the hand.

The only issue at trial was whether appellant had been acting in defense of himself and his family at the time of the shooting.

Appellant seeks reversal of his conviction and sentence on the grounds, among others, that the trial court erred in refusing to admit into evidence testimony of prior specific acts of violence on the part of the deceased, where appellant had raised a claim of self-defense and the testimony was proffered to demonstrate appellant’s state of mind at the time of the killing and not to attack the character of the deceased, and that the court further erred in admitting into evidence the deceased’s lack of a prior criminal record as rebuttal to evidence of his violent reputation. We find merit in each of these contentions, and reverse.

In a homicide prosecution in which the accused interposes a claim of self-defense, both the character of the deceased victim and specific prior acts of violence by the deceased, known by the defendant, may be admissible, depending on the facts and circumstances of the case. See Palm v. State, 135 Fla. 258, 184 So. 881 (1938); Hodge v. State, 315 So.2d 507 (Fla. 1st DCA 1975); Rolle v. State, 314. So.2d 167 (Fla. 3d DCA 1975); section 90.404(1)(b)1, Florida Statutes (1981).

Where a proper predicate is laid, as was done here, by a showing of some overt act by the deceased at or about the time of the shooting that reasonably indicated a need for action by the defendant in self-defense, evidence of prior specific acts of violence by the deceased known to the defendant at the time of the shooting may be admitted for the limited purpose of proving the reasonableness of the defendant’s apprehension at the time of the shooting. Reddick v. State, 443 So.2d 482 (Fla. 2d DCA 1984); E.C. v. State, 426 So.2d 1292 (Fla. 3d DCA 1983);. Smith v. State, 410 So.2d 579 (Fla. 4th DCA), rev. denied, 419 So.2d 1200 (Fla.1982); Campos v. State, 366 So.2d 782 (Fla. 3d DCA 1978); Lewis v. State, 335 So.2d 336 (Fla. 2d DCA 1976); Williams v. State, 252 So.2d 243 (Fla. 4th DCA), cert. denied, 255 So.2d 682 (Fla.1971).

In addition, the prejudice to appellant from the admission into evidence of the improper rebuttal evidence regarding the deceased’s lack of a prior criminal record, see generally Nelson v. State, 32 Fla. 244, 13 So. 361 (1893); Wrobel v. State, 410 So.2d 950 (Fla. 5th DCA), rev. denied, 419 So.2d 1201 (Fla.1982); section 90.405(1), Florida Statutes (1981), further entitles appellant to a new trial.

For the reasons stated, the judgment and sentence are reversed and the cause remanded for a new trial in accordance with the views expressed herein.

Reversed and remanded for a new trial.


author: PER CURIAM. SAVOIE, Judge.

text:
    John INGRAM v. Dewaine SEAL, et al.
    No. CE 83 1236.
    Court of Appeal of Louisiana, First Circuit.
    Judgment Nov. 9, 1983.
    Supplemental Judgment Nov. 16, 1983.
    Opinion Nov. 18, 1983.
    Richard Knight & Edward Griffis, Boga-lusa, for plaintiff-second appellant.
    W. Thornhill, Slidell, for defendant-appel-lee Tilmer Morris.
    Herbert Alexander, Bogalusa, for defendant-first appellant John Dobbs.
    Dewaine Seal, in pro. per.
    William J. Knight, Asst. Dist. Atty., Franklinton, for defendants-appellees Gladys Johnson, et al.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   JUDGMENT

PER CURIAM.

For reasons to be assigned, the judgment of the trial court is affirmed as to its certification of Tilmer Morris and reversed as to its certification of John Ingram as candidates in the General Election for Police Jury in District Six of Washington Parish, Louisiana. Further, the case is remanded to the trial court to call a restricted' primary election between candidates John Dodds and John Ingram. See LSA-R.S. 18:1432(A).

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

SUPPLEMENTAL JUDGMENT

The original per curiam judgment is hereby supplemented to provide that the trial court also call an election between the winner of the restricted primary election and Tilmer Morris.

SUPPLEMENTED, AND AS SUPPLEMENTED, REMANDED.

SAVOIE, Judge.

John Ingram, a candidate for police juror for District 6 in Washington Parish, Louisiana, filed this election contest. Therein, he complained that he would have qualified to run in the general election except for the occurrence of certain irregularities during the October 22, 1983, primary election.

The primary election resulted in a run-off election between Tilmer Morris with 359 votes, and John Dodds with 282 votes. Ingram ran third, with 272 votes, only 10 less than Dodds.

At trial, 13 registered voters of District 6 testified that they were prevented from voting for police juror in District 6. Further, they stated that had they been allowed to vote in District 6, they would have voted for John Ingram.

At the trial’s conclusion, Morris’ counsel requested a directed verdict, arguing that the number of witnesses was insufficient to change the results as to Morris. Based thereon, counsel asserted that the issue was whether Dodds or Ingram would be in the run-off with Morris. All parties conceded this was the correct posture of the case. Accordingly, the trial court granted a directed verdict and dismissed Morris from the proceeding.

Thereafter, the trial court concluded that certain irregularities had occurred in the election procedure for the position of District 6 police juror. The basis therefor was the testimony of the witnesses who were denied the right to vote in their district, District 6, for the candidate of their choice, Ingram. It ordered that a second primary be held with Ingram in a run-off election with Morris.

Dodds appealed, alleging that the trial court erred in applying L.S.A.-R.S. 18:1431 and replacing him in the run-off election. In addition, Ingram appealed to procedurally insure that all parties, including Morris, would be before this court.

For the following reasons, we affirm the trial court’s dismissal of Morris from the instant suit. However, the trial court should have remedied the election’s irregularities' in accordance with L.S.A.-R.S. 18:1432. Thus, the case is remanded for compliance therewith.

I. IRREGULARITIES IN THE CONDUCT OF THE ELECTION

The record reveals that Washington Parish had recently reverted to the Police Jury system of’Parish Government. This was the first election of police jurors since the reversion. The police jury districts were established shortly before the election as a result of court action. Thus, the Registrar of Voters was unable to mark her rolls as to the appropriate police jury district for each individual voter. To compensate therefor, the election commissioners were given maps from which to determine the proper district. In addition, the commissioners were provided with affidavits for the voters to complete, wherein they asserted their police jury districts. The purpose of these affidavits was to aid the Registrar of Voters in up-dating her rolls as to police jury districts. Ostensibly, voters were to be able to vote in the district they set forth on their affidavit.

The commissioners’ testimony establishes that numerous polling areas were without a sufficient number of affidavits. In addition, the affidavits that were used were not used as intended nor in accordance with any uniform policy.

The district attorney’s office received several telephone complaints regarding the voters’ proper police jury districts. Upon investigation thereof, it was discovered that, by mistake, some of the commissioners were requiring voters to vote for police juror in accordance with the boundaries of the school board districts rather than the new police jury districts.

As noted above, 13 qualified voters of District 6 testified that they were denied the right to vote therein. Of these voters, the majority requested that the voting poll commissioner allow them to vote in District 6. In addition, several of the voters signed affidavits which were presented to them as a method of complaining about the district in which they were required to vote.

L.S.A.-R.S. 18:1434 requires that if an objection to an irregularity in the conduct of the election could have been raised by due diligence at the polls but was not, it is considered waived. Under the peculiar circumstances of this case, we believe that the voters’ actions herein were sufficient to constitute a timely objection to the election irregularity.

Having concluded that there were irregularities in the conduct of the election which were timely objected to, it remains to determine the proper remedy therefor.

II. REMEDY

The trial court noted that at least 12 qualified District 6 voters testified that they would have voted for Ingram had they been allowed to vote for police juror in that district. In light thereof, the trial court ordered a second primary to be held with Ingram in a run-off election with Morris. This solution -excluded Dodds, the second-place candidate.

Apparently, the trial court' relied on L.S. A.-R.S. 18:1431". It states:

“... If the court determines that legal votes east in the election were excluded in the total votes cast on a candidate or proposition, then these excluded legal votes shall be added to the total votes on the candidate or proposition to which they are attributable. Thereafter, and after considering all the evidence, the court shall determine the result of the election.”

However, in this instance, there were no legal votes cast in the election which were excluded in the total votes cast for Ingram. The complaint is that the voters were excluded from casting their votes at all in District 6.

The appropriate remedy lies in L.S.A.R.S. 18:1432(A)(2). It provides, in pertinent part:

“A. If the trial judge in an action contesting an. election determines that: ... (2) the number of qualified voters who were denied the right to vote by the election officials was sufficient to change the result of the election, if they had been allowed to vote, ..., the judge may render a final judgment declaring the election void and ordering a new primary or general election for all candidates, or, if the judge determines that the appropriate remedy is the calling of a restricted election, the judge may render a final judgment ordering a new election and specifying the date of the election, the appropriate candidates for the election, and the office or other position for which the election shall be held.”

Since the number of qualified voters denied the right to vote for police juror in District 6 would change the result of the election with respect to Dodds and Ingram, the appropriate solution is to call a new election between these candidates in accordance with L.S.A.-R.S. 18:1432(A).

III. DISMISSAL OF TILMER MORRIS

At the conclusion of the trial, all parties agreed that the issue before the trial court was who should be the second-numbered candidate for District 6 police juror in the general election. Accordingly, the trial court granted a directed verdict in Morris’ favor, dismissing him from the suit. We find no error in that dismissal.

Thirteen qualified District 6 voters testified that they, individually, were denied the right to vote for police juror in District 6. In addition, other testimony indicates that the same may be true of other voters in District 6. However, nothing in the record reflects that the number was so great as to cast doubt on Morris’ position as the leading candidate. Further, even if there were a sufficient number of persons to do so, they have waived their right to complain of the irregularity by failing to object at the polls. L.S.A.-R.S. 18:1434.

Accordingly, the judgment of the trial court is affirmed as to its dismissal of Tilmer Morris from this suit and his certification as a candidate in the general election for police juror in District 6 of Washington Parish, Louisiana. The judgment is reversed as to its certification of John Ingram as a candidate in the general election for police juror in District 6 of Washington Parish, Louisiana. Further, the case is remanded to the trial court to call a restricted primary election between candidates John Dodds and John Ingram and, thereafter, an election between the winner of the restricted primary election and Tilmer Morris.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . The 4th and 5th place candidates in the race were not made defendants therein.