author: NORRIS, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Tracy Glenn CLARK, Defendant-Appellant.
    No. 15465-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.
    Rehearing Denied Sept. 29, 1983.
    Writ Denied Nov. 28, 1983.

      James L. Davis, Dist. Atty., Many and Abbott J. Reeves, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
    James E. Franklin, Jr., Shreveport, for defendant-appellant.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   NORRIS, Judge.

Tracy Glenn Clark appeals a conviction of aggravated rape and the resulting mandatory sentence of life imprisonment without benefit of parole, probation or suspension of sentence after a bench trial. Finding no merit to the ten assignments of error, we affirm the conviction and the sentence.

CONTEXT FACTS

On September 10,1980, the victim of this crime was at home with her three minor children. She was approximately nine months pregnant with her fourth child and had experienced false labor pains the night before. Her husband, an offshore worker away seven days at a time, had left that morning for work. At approximately 9:30 p.m., the victim received a phone call from an individual who identified himself as “Tracy” the son of John A. Clark, the defendant’s father. The caller inquired as to whether or not the victim’s husband was at home and was told by the victim that her husband would return shortly.

At approximately 2:00 a.m. on September 11, 1980, the victim, who was sleeping on a mattress on the floor of the living room of her mobile home, was awakened by a black male who put a gun to her head and told her to be quiet or be killed. The perpetrator of the crime then proceeded to rape the victim, who admitted that she did not physically resist the act for fear of endangering her life, as well as the lives of her unborn child and three daughters who were asleep in a bedroom. After the rape, the victim heard one of her children cry and went to the bedroom to check on the child. The black male followed her down the hall and stopped in a location near the bathroom where he could be observed by the victim in the light of the bathroom. Thereafter, he left via the door of the mobile home.

The victim then secured the mobile home, notified the police, and called her father-in-law who lived nearby. The victim was taken to her obstetrician for examination. The physician was furnished with a rape kit and certain vaginal swabs and washings were made. Also, slides and test tubes containing specimens were given to a deputy sheriff for transmittal to the Northwest Louisiana Criminalistic Laboratory in Shreveport. The investigation at the scene of the crime yielded no physical evidence other than a seminal stain on the bedsheet of the victim’s bed. This sheet was also transmitted to the crime laboratory.

Based upon the information received from the victim regarding the earlier phone call, the DeSoto Parish deputies assembled five photographs obtained from a local high school yearbook which included a picture of the defendant and showed them to the victim later on the day of the rape. Upon viewing this photographic line up, the victim indicated that the defendant and one other individual resembled her attacker. While she was reasonably certain that the defendant was the perpetrator of the crime, she asked for a more recent photograph which showed more of the body to insure the correctness of her identification. Consequently, the deputies went to the home of the defendant where they photographed him in the yard. While the deputies were taking defendant’s picture, the victim and her husband drove by, stopped and talked to one of the deputies who was present. A second photographic line up was assembled and shown to the victim. At this line up, the victim identified the defendant as her assailant. Based upon this identification, the defendant was arrested and thereafter placed in a physical line up where he and the other participants were asked to speak certain phrases. The victim again identified the defendant as the perpetrator of the crime.

Approximately two years later, the defendant, age nineteen at the time of the trial, was tried by bench trial and convicted of aggravated rape.

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, the defendant argues that the trial judge committed error in denying the motion to suppress photographs and the victim’s out of court identification of the defendant prior to trial. Defendant strenuously contends that the various photographic and physical line ups were so suggestive as to lead the victim to identify the defendant as her attacker when she was in reality uncertain of the perpetrator’s identity. Particularly because of the lack of physical evidence on the scene to connect the defendant with the crime, the defendant contends that the totality of the circumstances present in this case make the identification procedures utilized so suggestive as to render them violative of the defendant’s due process rights because a substantial likelihood of an irreparable mis-identification exists.

In determining the constitutionality of an out of court identification, several factors must be considered. First, the suggestiveness of the identification procedure itself must be evaluated. State v. Guillot, 353 So.2d 1005 (La.1977). In the instant case, the procedure utilized in formulating the pictorial and physical line ups was not suggestive. The pictures utilized do not bear identifying marks and the procedure used to present the physical line up was appropriate.

Next, it must be determined whether or not the pictures or the persons in the line up display the defendant so singularly that the witness’ attention was focused on the defendant. While a strict identity of characteristics among the participants is not required, it is necessary that a sufficient resemblance be present to reasonably test the identification. State v. Guillot, supra; State v. Gray, 351 So.2d 448 (La.1977). This determination is made by examining the articulable features of the pictures or persons used. State v. Guillot, supra. A line up is unduly suggestive if a sufficient resemblance of characteristics and features of the individuals in the line up does not exist to reasonably test the identification. State v. Davis, 385 So.2d 193 (La.1980).

In the first pictorial line up, the participants meet all of the characteristics of an acceptable line up; they are all young black, clean shaven males who closely resemble each other. The second pictorial line up is somewhat less uniform in characteristics in that all of the participants, with the exception of the defendant, have some degree of facial hair. However, three only have faint traces of a mustache. One participant has a more apparent mustache and one has a heavier mustache as well as a goatee. Otherwise, the participants are markedly similar in appearance. Furthermore, the facial hair is not so abundant that it affects facial conformation or features. See State v. Gipson, 359 So.2d 87 (La.1978). We conclude from our inspection of the photographs that no impermissive suggestion resulted from the participants’ facial hair. See State v. Brooks, 350 So.2d 1174 (La.1977). The same analysis is applicable to the physical line up conducted at the courthouse. While three of the participants in this line up had some facial hair, it was not so abundant that it affected their facial conformation or features. The participants were otherwise similar in appearance. There was a sufficient identity of characteristics in each of the line ups to indicate reliability in the identification made therefrom. Thus, we conclude that no undue suggestion resulted and the identification procedure was not tainted by suggestive procedures or persons used in connection with these line ups.

The most serious issue raised in this assignment is whether or not the identification procedure utilized in this case is rendered impermissibly suggestive by the fact that the victim and her husband stopped at the home of the defendant while the officers were taking his picture in the yard. Defendant contends that this incident operated as a “show up” which aided the victim in identifying the defendant as a result of this one on one confrontation. One on one identification procedures are not favored. State v. Newman, 283 So.2d 756 (La.1973). A practice of allowing a victim to view an individual suspect singularly is not to be condoned nor is it to be taken lightly because of the potential for misidentification. However, while such a practice is not favored, whether or not an impermissibly suggestive one on one confrontation results in an impermissibly suggestive identification process depends on all of the circumstances. State v. Johnson, 333 So.2d 223 (La.1976). The victim testified that she and her husband simply stopped in their car to ask the officers a question on their way to town. The record of the hearing on the motion to suppress does not indicate that she was aware of what the officers were doing in the yard or that she specifically recalled seeing the defendant. Her testimony there is uncontradicted and unrefuted. We thus conclude that under these particular facts, that no one on one confrontation occurred. Consequently, this incident does not render the subsequent identification procedures tainted. Compare . State v. Newman, supra.

Furthermore, assuming arguendo that this encounter rendered the identification procedure suggestive, this alone does not indicate a violation of the defendant’s due process rights because it is the likelihood of misidentification which violates due process, not merely the suggestive identification procedure. State v. Guillot, supra; Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1979). In Manson v. Brathwaite, the Supreme Court stated:

The factors to be considered are set out in [Neil v.] Biggers, 409 U.S. [188], at 199-200, 34 L.Ed.2d 401, 93 S.Ct. 375 [382]. These include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. [97 S.Ct. at 2253.]

Thus, under the Manson test, even if an identification procedure is suggestive, an identification is admissible if the totality of the circumstances demonstrate that the identification is reliable. State v. Guillot, supra. Applying the Manson analysis to the instant case reveals the following:

1. The opportunity to view: The victim had an opportunity to clearly view her assailant moments after the rape when he followed her to the door of her girls’ bedroom while she was tending to her child and she saw him for several seconds in the light of the bathroom. She testified that at this time she focused on his features and consciously sought to remember them.
2. The degree of attention: The victim was not a casual or passing observer, but was a victim whose attention, due to the nature of the crime, was riveted upon, the perpetrator.
3. The accuracy of the description: While there was some discrepancy in the weight of the perpetrator of the crime in the initial description, her description otherwise reasonably matched that of the defendant. This discrepancy regarding the defendant’s weight was adequately explained by the fact that the victim was not knowledgeable concerning the weight of males. When she found out the weight of her husband, she accurately described the size of the defendant.
4. The witness’ level of certainty: The victim was somewhat hesitant to positively identify the defendant at the first pictorial line up even though she strongly indicated that he might be the perpetrator. Thereafter, she was highly certain of her identification. The initial hesitancy was adequately explained by her unwillingness to make a positive identification without being absolutely sure. Her initial caution does not detract from her certainty but merely reinforces the positive identifications which she made at all future stages of the identification process, including the trial.
5. The time between the crime and the confrontation: All of the pre-trial identification procedures took place within a few days of the crime.

Weighing these indicia of reliability against even a suggestive identification process, it is clear that there was not a significant chance of misidentification in this case. Therefore, the defendant was not denied due process, and the trial court did not err in refusing to suppress the out of court identifications. A trial judge’s determination on the admissibility of an identification is given great weight and will not be disturbed unless a preponderance of the evidence clearly mandates. State v. Brooks, supra. The evidence does not preponderate to require a reversal of the trial judge’s ruling in this case.

Additionally, while the defendant has not raised as an assignment of error and in fact did not even object at the trial to the admissibility of the in court identification of the defendant by the victim, we simply note that the in court identification by the victim under the totality of the circumstances of this case is well supported by independent sources and is thereby reliable. State v. Gipson, supra.

Because there was no likelihood of mis-identification in this case, defendant’s due process rights were not violated.

Defendant additionally argues that the physical line up, which took place pre-indictment, should have been suppressed because he had no counsel present. Here, there is no evidence that defendant had retained or appointed counsel at the time of this physical line up or that any request for access to such counsel was made and denied. A defendant is not constitutionally entitled to have counsel present at pre-indictment procedures. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); State v. Vaughn, 378 So.2d 905 (La.1978); State v. Huckaby, 368 So.2d 1059 (La.1979). See also State v. Thomas, 406 So.2d 1325 (La.1981). Since defendant had no counsel at the time of the line up and requested none there has been no showing made that his rights were violated under either the United States or Louisiana constitutions.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends in connection with this assignment of error that the evidence presented is insufficient to support a conviction of aggravated rape in light of the testimony of the victim that she “voluntarily” submitted to the act after being threatened with the gun because of her advanced state of pregnancy and her fear for her safety and that of her children. Defendant contends that the evidence presented will, at best, only support a conviction of forcible rape.

La.R.S. 14:42 provided at the time of the offense:

Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) Where the victim resists the act to the utmost, but whose resistance is overcome by force; or
(2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution; or
(3) Where the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense. Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.
La.R.S. 14:42.1 provides:
Forcible rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
Whoever commits the crime of forcible rape shall be imprisoned at hard labor for not less than two nor more than forty years. At least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence.

The distinction between aggravated and forcible rape has been addressed in State v. Parish, 405 So.2d 1080 (La.1981). The Parish court determined that the legal definition of aggravated rape as defined in La.R.S. 14:42(2) is virtually identical to the definition of forcible rape because there is no essential difference between the specific results required by each crime definition. Both require that the victim be prevented from resisting the act by threat of great harm under circumstances where the victim reasonably believes that resistance would be futile. Forcible rape is merely a lesser degree of the crime of aggravated rape and is a responsive verdict to that crime. The only distinction between aggravated and forcible rape is the degree of force employed and the extent to which the victim resists. However, the jury is authorized to subject a guilty defendant to more severe punishment by convicting him of aggravated rape rather than forcible rape. The court then went on to conclude that it was the legislative aim to divide the continuum of acts of coerced sexual intercourse into two categories, thereby assigning to the fact finder the function of fixing the range of permissible punishment for convicted offenders by returning a verdict which appropriately fits the crime and the degree of force employed. The standard of appellate review in such cases is:

.. . whether any reasonable jury [fact finder], viewing all of the evidence, in the light most favorable to the prosecution could find beyond a reasonable doubt that the defendant ... [caused] the results required by both the aggravated and forcible rape statutes and that the degree of force employed warranted punishment in the greater, rather than lesser, degree ... [405 So.2d at 1087] [Bracketed material added.]

Applying the above standard of review to the instant case, we conclude that the evidence viewed appropriately supports a finding of guilty of aggravated rape. The victim was awakened with a gun barrel held to her head and her life was threatened. Obviously, she was faced with a threat of great and immediate bodily harm accompanied by apparent power of execution. It is undisputed that an act of sexual intercourse occurred thereafter. It would certainly appear to a reasonable person, particularly a victim who was nine months pregnant with minor children in the home, .that resistance of any sort might result in great bodily harm or death, not only to the victim but to innocent third parties. Clearly, upon these facts there was no lawful consent of the victim here to the act of sexual intercourse. A victim need not suffer physical harm to constitute the high degree of force necessary to support a conviction of aggravated rape. State v. Gaston, 412 So.2d 574 (La.1982). See also State v. Fletcher, 341 So.2d 340 (La.1976).

This assignment of error is without merit. ASSIGNMENTS OF ERROR NOS. 3, 5, and 7

These assignments of error address themselves to the defendant’s contention that the trial judge committed error in failing to grant a motion for continuance on the date of the trial due to the absence of a material witness and in failing to grant a new trial to reopen the case to enable the subpoenaing of this particular witness.

The motion for continuance was made orally on the day of the trial prior to the swearing of the first witness after it was discovered that a witness, Verner Scott, had not been located and served with a subpoena. While we note that a motion for continuance should be in writing, we conclude that it was appropriate in this instance for the trial court to consider an oral motion. See La.C.Cr.P. Art. 707; State v. Washington, 407 So.2d 1138 (La.1981). Therefore, we will review the propriety of the trial court’s ruling. When the discovery was made, the trial court after issuing an instanter subpoena, ordered a short recess to attempt to determine the location of the witness. When the witness could not be located, the defendant moved for the continuance which was denied by the court after a hearing upon the trial judge’s finding that it was not probable that the witness would be found at a later date under the circumstances shown.

Whether a refusal to grant a continuance is justified depends on the circumstances of the particular case, and a conviction will not be reversed absent a showing of specific prejudice caused by the denial of the continuance. State v. Simpson, 403 So.2d 1214 (La.1981).

La.C.Cr.P. Art. 709 which forms the basis for this motion provides:

A motion for a continuance based upon the absence of a witness must state:
(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3)Facts showing due diligence used in an effort to procure attendance of the witness.

The allegations showing the necessity for the presence of this witness at trial were based on the fact that the victim’s father-in-law had passed a black Monte Carlo parked on a different road from that on which the victim lived shortly after the rape. This car was approximately three miles from the victim’s home and was occupied by what appeared to be a lone black female in the driver’s seat. It was defendant’s contention that Verner Scott owned a black Monte Carlo and had been seen driving that car in the vicinity of the victim’s home shortly before the rape. In essence, defendant contended that Verner Scott, rather than the defendant, was the perpetrator of the crime. At the hearing on the motion, defendant produced a witness who testified that Verner Scott had been in the area some two weeks prior to trial; however, when this particular individual had attempted to locate Scott a few days prior to trial, he had been unable to do so. This witness stated that there was only a possibility of Scott’s being located for purposes of testifying at a trial.

Our review of the record reveals that the subpoenas issued for the appearance of Scott were issued four days prior to trial pursuant to a letter written by defense counsel which gave no specific address for Scott but listed “General Delivery” in two different towns in two different parishes. This trial had been continued on other occasions over the two year period between the date of arrest and the commencement of trial. In connection with earlier trial dates, subpoena letters had been directed to the clerk containing numerous witnesses. Scott was not listed on any of the earlier requests for issuance of these subpoenas. At the hearing on the motion for the continuance no evidence or explanation regarding the reasons for the lateness of the request for the subpoenas for Scott was presented.

From the evidence presented, we conclude that the trial judge did not abuse his discretion in refusing to grant the motion for continuance. There is no abuse of discretion in denying a motion for continuance where there are no facts produced at a hearing showing a probability that the missing witness will be available to testify at some later date. State v. Washington, supra. Furthermore, we conclude from our review of the record, that the record does not adequately reflect a showing that the defendant exercised due diligence in his efforts to procure the attendance of the witness at trial. See State v. Bertrand, 381 So.2d 489 (La.1980). It is clear from this record that defendant did not satisfy the requirements of Article 709 in order to obtain a continuance based upon the absence of a witness. No facts were shown revealing due diligence on behalf of the defendant to obtain the witness nor was there any reliable indication that the witness would likely be available at any time to which trial could be deferred. State v. Henderson, 337 So.2d 204 (La.1976). Our review additionally reveals that there was an insufficient showing made that Scott’s presence would in any manner benefit the defendant’s case. The testimony of the individuals who were acquainted with Scott indicates that he does not resemble the defendant. Thus, defendant’s argument that the presence of this witness would cast a reasonable doubt upon the victim’s identification is not supported by his own evidence. See State v. White, 389 So.2d 1300 (La.1980).

Defendant additionally contends that La.C.Cr.P. Art. 709 is unconstitutional as applied to this case because it operates to deny him the right to compulsory process. The right to compulsory process is the right to demand subpoenas for witnesses and the right to have them served. State v. Mizell, 341 So.2d 385 (La.1976). It is a right which is embodied both in the federal and state constitutions as well as the statutory law of this state. U.S. Const.Amend. 6; La. Const. Art. 1, § 16 (1974); La.C.Cr.P. Art. 731. The constitutional right to compulsory process for the attendance of witnesses is not to be trifled with and must be enforced. State v. Mizell, supra; State v. Bickham, 208 La. 1026, 24 So.2d 65 (1945). However, the right to compulsory process to obtain the attendance of witnesses is predicated on the exercise of due diligence by the defendant. State v. Hattaway, 180 La. 12, 156 So. 159 (1934). It is incumbent upon the defendant to set forth facts which show due diligence. State v. Doty, 158 La. 842, 104 So. 736 (1925). Applying the aforementioned principles in pari materia, we conclude that this article is not unconstitutional nor is it unconstitutionally applied to this defendant. The requirement that the defendant meet the criteria of Article 709 does not deprive him of any constitutional rights and the criteria enumerated serve a rational and logical purpose. As stated in State v. Lockett, 332 So.2d 443 (La.1976):

The Articles of the Code referred to above [La.C.Cr.P. Arts. 707, 708, and 709] are not platitudes. Unless the standards set out there are adhered to, the trial of cases will be unduly and unexpectedly delayed, and the handling of court dockets will be hampered. When the Code’s standards are complied with, however, the defendant is protected and there is little likelihood of prejudice to his case . .. [Bracketed material added.]

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends in this assignment of error that the trial judge committed error in imposing an unconstitutional sentence in that the mandatory statutory penalty imposed for aggravated rape is cruel, excessive, unusual and inhumane; and violates United States and Louisiana Constitutions. The constitutionality of this statute has been repeatedly upheld. State v. Talbert, 416 So.2d 97 (La.1982); State v. Campuzano, 404 So.2d 1217 (La.1981); State v. Prestridge, 399 So.2d 564 (La.1981).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 6

In this assignment of error, defendant contends that he was denied due process and a fair trial because of the destruction of certain evidence due to the state’s negligence. The thrust of defendant’s argument is that had the evidence been properly preserved and available for testing, that it could have established his innocence. Defendant filed a motion to quash the indictment based on the destruction of this evidence. After a hearing, the trial court quashed the indictment and the State sought review. The Supreme Court reversed the trial court’s ruling and returned the matter to the district court for trial. See State v. Clark, 414 So.2d 737 (La.1982). It was the holding of the Supreme Court that the defendant could still present evidence to the trier of fact to show the inconclusive nature of the tests performed at the crime lab after which the fact finder should be allowed to evaluate the testimony and evidence to determine what weight it should be given.

Defendant now contends that the trial judge failed to attach any weight whatsoever to the inconclusive nature of the medical evidence and the defendant’s inability to conduct further tests. However, the trial court’s express “reasons for judgment” indicate the contrary and reveal that the trial judge did in fact consider that evidence as a factor to be weighed in the ultimate determination of guilt. Even after considering the destruction of this evidence, the trial judge found that other evidence sufficiently established defendant’s guilt beyond a reasonable doubt. Defendant’s argument that had the trial 'judge given the appropriate weight and consideration to this lack of evidence, that this would have established a reasonable doubt which would have precluded defendant’s conviction is not supported by the record.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 8

Defendant contends in this assignment of error that the trial court erred in failing to grant his motion for new trial. Because defendant has neither briefed nor argued this assignment of error, we deem it to be abandoned and do not consider it. State v. Carlisle, 315 So.2d 675 (La.1975).

ASSIGNMENT OF ERROR NO. 9

In this assignment of error, defendant contends that the trial court erred in denying the Motion in Arrest of Judgment thereby holding that the elements of aggravated rape had been proven when the witness testified that she voluntarily submitted to the act, in refusing the motion for continuance, and in holding that the penalty provisions of La.R.S. 14:42 are constitutional.

La.C.Cr.P. Art. 859 sets forth the grounds for arrest of judgment:

The court shall arrest the judgment only on one or more of the following grounds:
(1) The indictment is substantially defective, in that an essential averment is omitted;
(2) The offense charged is not punishable under a valid statute;
(3) The court is without jurisdiction of the case;
(4) The tribunal that tried the case did not conform with the requirements of Articles 779, 780 and 782 of this code;
(5) The verdict is not responsive to the indictment, or is otherwise so defective that it will not form the basis of a valid judgment;
(6) Double jeopardy, if not previously urged; or
(7) The prosecution was not timely instituted, if not previously urged.
(8) The prosecution was for a capital offense or for an offense punishable by life imprisonment, but was not instituted by a grand jury indictment.
Improper venue may not be urged by a motion in arrest of judgment.

Of the enumerated grounds in this article, only subsections (2) and (5) are possibly applicable to the instant case. The ground that the evidence is insufficient to support a conviction of aggravated rape is more properly raised in a bench trial by a motion for acquittal or by a motion for new trial. La.C.Cr.P. Arts. 778, 851. A trial judge’s refusal to grant a continuance is not properly raised by a motion in arrest of judgment. The unconstitutionality of the penalty provisions of the statute under which a defendant was convicted is properly raised under La.C.Cr.P. Art. 859(2). However, it is unnecessary that we specifically consider whether the trial court properly denied the motion in arrest of judgment on these three grounds because in connection with our discussion of other assignments of error, we have determined that defendant’s identical arguments raised here again are without merit. Therefore, for the reasons assigned in connection with assignments of error 2, 3, 4, 5, 7, and 10, we conclude that the trial court properly denied the Motion in Arrest of Judgment.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 10

In connection with this assignment of error, the defendant argues that the trial court erred in finding that the law and the evidence supported a finding of guilty as charged and that the finding of guilty is contrary to the law and the evidence. Defendant argues that applying the rationale of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and viewing the evidence in the light most favorable to the prosecution reveals that the state failed to prove that the defendant perpetrated the alleged offense because the evidence shows that the victim could not identify her attacker. Additionally, defendant urges that the evidence, rather than proving that the defendant was the perpetrator of the crime, more reasonably shows that Verner Scott was the perpetrator.

Applying the Jackson v. Virginia standard of review, we conclude that the evidence shows that the victim was not uncertain in her identification. The identification of the victim is sufficient to convict the defendant of the crime if all other elements of the crime are proven. See State v. Gaston, supra. There was no reliable evidence presented that Verner Scott was the real perpetrator of the crime and defendant’s alibi defense was subject to a credibility evaluation by the trier of fact. Thus, the proof was sufficient to establish defendant as the perpetrator of the crime. There is no question but that sexual intercourse occurred with the victim. The victim testified that she was forced to submit because defendant threatened to kill her with' a gun which he held to her head. Thus, a rational trier of fact viewing the evidence in the light most favorable to the prosecution could have concluded that the essential elements of the crime of aggravated rape were proven beyond a reasonable doubt.

This assignment of error is without merit.

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

CONVICTION AND SENTENCE AFFIRMED.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    Dessie JONES, Plaintiff-Appellee, v. L.C. WINSTON, Mollie Winston, Allstate Insurance Company, City of Bastrop, Maryland Casualty Company, and State of Louisiana, Department of Transportation and Development, Defendants-Appellants-Appellees.
    No. 15492-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.

      Marshall W. Wroten, Bryan Miller, Sr. and Roxie R. Poster, Baton Rouge, for defendant-appellant, State of La., Dept, of Transp. and Development.
    Travis M. Holley, Bastrop, for .plaintiff-appellee, Dessie Jones.
    Theus, Grisham, Davis & Leigh by J. Michael Hart and David H. Nelson, Monroe, for defendants-appellees, City of Bastrop and Maryland Cas. Co.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   HALL, Judge.

This is a suit for damages arising out of an intersectional collision. The plaintiff is Dessie Jones, the driver of one of the vehicles involved. Made defendants were Mollie Winston, driver of the other automobile; Mrs. Winston’s husband, L.C. Winston, owner of the car; Allstate Insurance Company, the Winstons’ liability insurer; the State of Louisiana through the Department of Transportation and Development (DOTD); the City of Bastrop; and its liability insurer, Maryland Casualty Company. The State also filed a third party demand against the City and its insurer. DOTD appeals the judgment of the district court awarding the plaintiff $58,634.54 against DOTD and further dismissing the claims of the plaintiff against all of the other defendants and the defendant’s third party demand. Plaintiff did not appeal nor answer the appeal. For the reasons hereinafter stated, we affirm.

The accident occurred in the afternoon of September 3, 1980, when the automobile driven east on West Jefferson Street by Mrs. Jones collided with the automobile driven south on South Vine Street by Mrs. Winston at the intersection of the two streets in Bastrop, Louisiana. The intersection is controlled by semaphore lights, and it is conceded by all parties that Mrs. Winston had a green light when she entered the intersection. It is the contention of the plaintiff that the light facing her lane of travel malfunctioned and was> green at the time she entered the intersection, thereby causing the accident.

A review of the record shows a sharp conflict in the testimony as to how the accident occurred and as to the condition of the light at the time of the accident. However, the trial judge, in written reasons for judgment, found that the sole legal cause of plaintiff’s injuries was a sequence malfunction of the semaphore light. The trial judge held DOTD solely responsible for the mishap, despite the existence of a contract whereby the city had agreed to “maintain” the light. The trial judge found that the city was responsible under the contract for ordinary repairs, such as replacing burned-out bulbs, but not for major repairs to the light such as those involving the malfunction which was found to have caused the accident.

DOTD makes four specifications of error on appeal which raise the following issues for our consideration: whether the trial court erred in finding that the sequence malfunction of the semaphore light on West Jefferson Street constituted the cause of the accident; whether the trial court erred in computing its award to the plaintiff; and whether the trial court erred in absolving the City of Bastrop from liability in this case.

Liability of DOTD

The defendant-appellant maintains that the trial court finding of DOTD’s liability as the guardian of the defective semaphore light which contributed to plaintiff’s injury under LSA-C.C. Art. 2317 and Loescher v. Parr, 324 So.2d 441 (La.1975), is erroneous. The Department maintains that there is evidence that of the two semaphore lights facing plaintiff, one was functioning normally so that the plaintiff was faced with both a red and a green light at the intersection and that because of this fact the strict liability standard imposed by Loescher v. Parr, supra, should not apply. DOTD contends specifically that the signal lights did not present an unreasonable risk of harm because one light was working properly.

The plaintiff testified that she was traveling on West Jefferson Street in Bastrop, proceeding east in the southernmost lane of this one-way street. She stopped at the intersection of West Jefferson and South Vine Streets after observing the suspended semaphore signal light indicating a red sign. After stopping she checked the signal in her lane and it showed green. Relying on this signal the plaintiff proceeded through this intersection where she was struck by the Winston vehicle which was traveling south on South Vine Street. The plaintiff sustained numerous injuries to her lower back and neck as a result of the accident.

Mrs. Winston testified at trial that the signal light on South Vine Street was green at the same time the plaintiff’s car entered the intersection.

Sally Cuthbertson, a completely disinterested witness, testified on behalf of the plaintiff to the effect that she was nearly involved in an accident similar to the one between the Jones and Winston vehicles as she traveled east on West Jefferson toward the corner of South Vine at the lunch hour on the day of the accident. She testified that her examination of the intersection after her near mishap revealed that the light indicators at West Jefferson and South Vine showed green simultaneously. This testimony was corroborated by Mrs. Cuthbertson’s husband, the manager of a discount store at the corner of West Jefferson and South Vine who witnessed his wife’s near accident and testified that he saw and heard several other near misses throughout the day. He testified further that he went outside the store immediately after his wife’s near miss and viewed five sequences of the semaphore lights at the intersection. He noted that while the light facing South Vine appeared to be working normally, the light facing West Jefferson turned from green to yellow and back to green in such a way that the opposing lights at the intersection indicated green at the same time. Mr. Cuthbertson stated on cross-examination that this defective condition existed only with respect to the southernmost light facing West Jefferson and that the other light facing West Jefferson appeared to be working normally.

The plaintiff’s husband also testified, indicating that he traveled through the intersection twice within three hours after the accident. On his first trip through he noticed the.same malfunction that the Cuth-bertsons, Mrs. Winston, and the plaintiff testified to. He noted also that three hours later the light in the southernmost lane of West Jefferson, in which plaintiff was traveling immediately before the accident, was not working.

In an attempt to rebut this testimony DOTD offered as a witness a city policeman who investigated the accident and watched the intersection for 45 minutes immediately following the mishap. He testified that there seemed to be no problem with the sequence of the semaphore lights, but he noted that the light bulb in the red indicator facing the southernmost lane of West Jefferson had burned out. This testimony was corroborated by that of a DOTD electrician who fixed the traffic signal about two hours after the accident had occurred. However, despite the fact that each witness testified that the bulb had burned out, both witnesses also stated that this sort of malfunction would not cause a sequence problem so that both opposing lights would show green simultaneously.

On the basis of this testimony the trial judge dismissed plaintiff’s claim against the Winstons and their insurer at the close of plaintiff’s case, leaving DOTD and the City and its insurer as the remaining defendants. All parties concede that Mrs. Winston had a green light and was not negligent. The trial judge also found “... the most probable explanation of the light’s malfunction to be a sequence malfunction causing both West Jefferson Street and South Vine Street to be controlled by a ‘green’ light thus negating any negligence on the part of Mrs. Jones or Mrs. Winston.”

A review of the testimony shows that the trial judge’s finding is not clearly wrong. However, there is some support in the record, particularly the testimony of Mr. Cuth-bertson, for appellant’s claim that of the two stoplights facing West Jefferson Street, only the one immediately in front of the southernmost lane appeared to be malfunctioning. The fact that a light facing her showed red as she approached the intersection was admitted to by the plaintiff on cross-examination as well, and the pre-trial deposition of Simpson E. Bayless offered in lieu of his testimony indicates that he was stopped in the northernmost lane of West Jefferson Street immediately to the plaintiff’s left at the time of the accident and that the light facing his lane of traffic was red. Bayless however, was unable to comment on the status of the light facing the plaintiff.

Even assuming appellant’s factual claim is true, this should not alter the trial court’s finding of liability here. Irrespective of what the traffic signal facing the northernmost lane of West Jefferson showed, it is clear from the testimony of the plaintiff, of Mrs. Winston, and of the Cuthbertsons that the light in the southernmost lane of West Jefferson immediately facing the plaintiff indicated green at the same time the traffic light facing South Vine showed green. This malfunction, which the trial judge concluded caused the accident, constitutes an unreasonable risk of harm as contemplated by Article 2317 and Loescher.

A driver entering an intersection controlled by a semaphore light system must pay attention to the light facing him. Bryant v. Ouachita Coca-Cola Bottling Company, 239 La. 83, 117 So.2d 919 (1960). The duty of a motorist at an intersection controlled by a signal when the indicator light facing him is green was stated by this court most recently in McCoy v. Chambers, 403 So.2d 838 (La.App. 2d Cir.1981): “ ‘A motorist approaching an intersection controlled by semaphore signals, who is favored by a green light, is entitled to assume that traffic approaching the intersection from either side on a red light will comply with the red light and respect his right-of-way .... The favored motorist is not obligated to look to his left or right before entering the intersection.... and will be held accountable only if he could have avoided the accident with the exercise of the slightest degree of care and fails to do so.... All that is required is that the favored motorist maintain a general observation of the controlled intersection....’” See also Champagne v. McDonald, 355 So.2d 1335 (La.App. 3d Cir.1978).

There is ample evidence in the record that the light facing the plaintiff in the southernmost lane of West Jefferson Street was green at the same time that traffic proceeding south on South Vine was also faced with a green light. As noted earlier, the trial judge accepted this evidence as correct, and after review of the record we find no error in this determination.

There is also no question from the record that the light malfunctioned because of a sequence defect and that this defect was the cause of the accident. Jones v. City of Baton Rouge, 388 So.2d 737 (La.1980).

The appellant claims alternatively that it should be absolved from liability because the plaintiff’s harm was caused by her own fault by proceeding into the intersection when one light showed red. Citing American Road Insurance Company v. Montgomery, 354 So.2d 656 (La.App. 1st Cir.1978), DOTD maintains that proceeding through an intersection without an abundance of caution when faced with both a red and green signal constitutes negligent conduct on the part of the plaintiff and a cause in fact of her injuries. The Montgomery case, however, is inapposite to the instant matter. In Montgomery the driver was faced with a single traffic light flashing red and green simultaneously. Such is not the case here; the evidence is clear that the signal facing the southbound lane of West Jefferson in which the plaintiff was traveling flashed green. As stated earlier, this traffic light controlled plaintiff’s lane of traffic and was the only one she was required to heed. There is no evidence that she was aware that the light controlling the other lane of travel was red. There was no fault on her part in directing her attention to the light in front of her lane of travel and relying on the signal displayed by that light. Bryant v. Ouachita Coca-Cola Bottling Company, supra.

For these reasons the plaintiff is entitled to a judgment against the custodian of the light, DOTD, on the theory of strict liability-

Quantum

The Department claims that the trial court’s award of $50,000 for pain and suffering is too high and constitutes an abuse of discretion. The plaintiff sustained a ruptured disc in her lower back, and surgery was performed to remove this disc. The operation left her with a 10 percent disability. There is also evidence in the record that plaintiff has substantial cervical spine problems of indeterminate origin, corroborated by the testimony of plaintiffs treating physician. The parties stipulated that plaintiff incurred $8,639.54 in medical expenses as a result of her injuries sustained in connection with the accident.

The appellant contends specifically that the trial court did not afford enough weight to the statements of plaintiff on cross-examination concerning her preexisting arthritic condition and the fact that she collects social security disability income for this condition and did so for some time prior to the accident.

There is no indication that the trial judge did not consider these facts in making his award. Also, the record reveals that the substantial injuries referred to above resulted from the accident, and the general damage award therefor is well within the discretion of the trial court. Reck v. Stevens, 373 So.2d 498 (La.1979).

The plaintiff asks in brief that we increase the damage award. However, because she failed to answer the appeal, we cannot entertain her request. LSA-C.C.P. Art. 2133; Lentz v. Lentz, 411 So.2d 59 (La.App. 4th Cir.1982).

Liability of the City of Bastrop

The Department argues that it is entitled to a judgment against the City indemnifying DOTD under the maintenance agreement between the City and DOTD whereby the City agreed to take responsibility for “operation and maintenance” of the traffic signal in question. The trial court found on the issue of indemnity between DOTD and the City that the State alone was liable, as the stoplight was in its sole care, custody, and control with respect to the sequence malfunction, despite DOTD’s contention that the City was at least partially liable by virtue of a contract between the City and DOTD whereby the former agreed to perform “routine” maintenance on the defective stoplight. The trial judge held that “[Hjere, both the State and the City of Bastrop participated in the control of traffic by sharing the maintenance on the semaphore light. But the Court finds that the malfunction of the light which constituted the legal cause of the accident was not within the scope of responsibility which the City of Bastrop has undertaken by virtue of its ‘maintenance contract’.”

The extent of the City’s responsibility is not defined in the contract, but the evidence concerning the maintenance agreement leaves it clear that the scope of the City’s responsibility under this contract extends only to routine maintenance, such as replacing burned out light bulbs, cleaning lenses, and the like. It does not extend to repairing the control box or problems with sequence malfunctions. See Garrison v. State, Through Department of Highways, 401 So.2d 528 (La.App. 2d Cir.1981); Hardy v. State, Through Department of Highways, 404 So.2d 981 (La.App. 3d Cir.1981). As noted earlier, the trial judge found that the malfunction in the traffic signal was a sequence malfunction and that this defect was the proximate cause of the accident. Again, this finding is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Therefore, the City was under no obligation to the Department to repair the sequence defect in the traffic light on West Jefferson Street, and is not liable for indemnity or contribution to the Department for damages caused by the sequence defect.

The state also argues that the City was obligated under the contract to notify DOTD of any major problems with the light after the City received notice of such malfunction. While the evidence bears out the existence of this obligation, it is nevertheless apparent that DOTD did not prove by a preponderance of the evidence that the City had notice of the sequence malfunction.

Although Sam Cuthbertson testified that he called “city hall” concerning the problem at South Vine and West Jefferson around lunch time on September 3, Yvonne Gole-man, responsible for taking complaint calls, testified that she received no such call. This testimony was corroborated by another City traffic department employee who noted that the traffic department’s log for September 3 reflects no such call. Implicit in the trial judge’s written reasons for judgment is a finding that DOTD did not sustain its burden of proving that the City was notified of the light malfunction, and in view of the testimony, we find that this conclusion is not manifestly erroneous. Ar-cén eaux v. Domingue, supra.

Conclusion

For the reasons stated above the judgment of the district court is affirmed at appellant’s cost.

Affirmed.


author: JASPER E. JONES, Judge.

text:
    In re H. Applying for Adoption.
    No. 15495-CAJ.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.
    James E. Franklin, Jr., Shreveport, for plaintiffs-appellants.

      Bodenheimer, Jones, Klotz & Simmons by Frank H. Thaxton, III, Shreveport, for in-tervenor-appellee.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   JASPER E. JONES, Judge.

This is a stepparent adoption proceeding. The petitioner seeks to adopt her husband’s two children by a prior marriage. The adoptions are opposed by the mother of the children. At the trial of this matter, upon the close of the petitioner’s evidence, the juvenile court judge granted a “motion for directed verdict,” dismissed this proceeding and denied the adoptions. The petitioner appeals. We affirm.

To preserve the confidentiality of those involved we shall refer to the petitioner as the “appellant” or the “petitioner.” We shall refer to the father of the children as “Mr. H” and to the mother of the children as the “opponent.”

The opponent and Mr. H were married in 1973 and divorced in 1979. Two children were born of their marriage, a girl, age 8, and a boy, age 5. The divorce judgment awarded custody of the children to Mr. H and ordered opponent to pay child support of $100 per month.

Opponent made no child support payments and in December, 1981, Mr. H filed a rule to accrue and make executory past due child support. He also sought interest on past due child support, attorney’s fees and costs. The rule was not brought to trial and opponent continued to not pay child support.

In April, 1982, Mr. H and the petitioner married. They began living with Mr. H’s two children and the petitioner’s child by a prior marriage.

In September, 1982, the opponent delivered to Mr. H, through his attorney, a check for the total past due child support, excluding interest and attorney’s fees. Opponent has since regularly paid her monthly child support obligation.

Mr. H considered opponent’s initial check to be an offer to settle the pending rule and refused to negotiate the check though he did retain it. Mr. H has also refused to negotiate the subsequent checks and money orders representing monthly child support payments.

In October, 1982, some time after Mr. H’s attorney had received opponent’s initial check, petitioner commenced this proceeding to adopt the children alleging that opponent’s consent was not required because of her failure to pay child support for over one year. The opponent responded by filing a “Petition for Intervention” asserting her opposition to the adoptions.

Upon the trial of this matter the opponent moved for a “directed verdict” at the close of petitioner’s evidence. The trial judge found that petitioner had not shown by a preponderance of the evidence that opponent’s consent to the adoptions was not required or that the adoptions were in the best interest of the children. The trial judge granted the motion and dismissed the action. This appeal followed.

R.S. 9:422.1 provides certain circumstances in which a stepparent or grandparent can adopt a child without the consent of the non-custodial parent. The mere existence of circumstances in which the consent of the non-custodial parent is not required does not require that the adoption be granted, indeed, even in those circumstances the adoption should be allowed only when it is in the best interest of the child. Adoption of Latiolais, 384 So.2d 377 (La.1980); In re BAS Applying for Adoption, 424 So.2d 405 (La.App. 2d Cir.1982).

It is the burden of the party applying for adoption to establish the existence of circumstances under which consent of the non-custodial parent is not required, In re Kennedy, 357 So.2d 905 (La.App. 2d Cir. 1978); In re Plaisance, 394 So.2d 776 (La. App. 4th Cir.1981), and that the adoption is in the best interest of the child. Adoption of Latiolais, supra; In re Hinton, 390 So.2d 972 (La.App. 2d Cir.1980), writ not considered, 396 So.2d 1350 (La.1981). As the opponent did not consent to the proposed adoptions it was essential to the success of petitioner’s cause that she establish both of the above mentioned facts.

The juvenile court judge concluded that petitioner had not established either factor. If he was correct with respect to either factor the judgment should be affirmed.

This case was decided in the trial court on a motion for judgment of dismissal. In considering such a motion the trial judge must weigh and evaluate all the evidence presented up to that point and must grant a dismissal if the plaintiff has not established proof by a preponderance of the evidence of the facts essential to relief. Standard Mach., Etc. v. So. Pac. Transp. Co., 410 So.2d 842 (La.App. 3d Cir.1982), writ denied, 414 So.2d 377 (La.1982). See C.C.P. art. 1810B. The trial judge has much discretion in determining whether or not to grant a motion for judgment of dismissal. Burrell v. Kirkpatrick, 410 So.2d 1255 (La.App. 3d Cir.1982).

We begin by examining the juvenile court judge’s conclusion that petitioner had not established that the adoptions were in the best interest of the children. The trial judge in his oral reasons for judgment stated that “... it would not be in their best interest to sever forever this relationship between the children and their biological parent.” R. 232. The juvenile court judge has great discretion in making the determination of the children’s best interest. In re Hinton, supra; In re BAS Applying for Adoption, supra.

The record shows that during 1980 the opponent conducted an active schedule of visitation with her children. The frequency of those visits was somewhat decreased in 1981 because of opponent’s serious health problems but opponent did manage to have them for an extended visit of several weeks during that summer and she spoke to them frequently by long distance telephone. Opponent also had the children with her several days during the 1981 Christmas season. The evidence established that opponent had given the children many clothes and toys while they were in the custody of their father.

There was evidence that Mr. H refused to allow the children to visit their mother during 1982 until shortly after opponent began trying to pay the child support, and that during this period Mr. H and petitioner frequently refused to let the opponent speak to the children by telephone.

At the trial Mr. H was called as a witness for the petitioner. He testified the children are strongly emotionally attached to opponent and they enjoy being with her. He further testified that the children consider the opponent their mother and that they love her.

The evidence shows that there is a deep and continuing relationship of love and affection between the children and their biological mother. The existence of this relationship strongly supports the juvenile court judge’s conclusion that the adoptions are not in the best interest of the children. We find no basis upon which to disturb that conclusion.

As we have found that the trial judge correctly concluded that the adoptions were not in the best interest of the children we need not consider whether the opponent’s consent to the adoptions was required.

The judgment of the juvenile court is affirmed at appellant’s costs.

AFFIRMED.

      . The opponent’s “motion for a directed verdict” is more properly called a “motion for judgment of dismissal” and we shall so refer to it hereinafter. Derouen v. City of New Iberia, 415 So.2d 596 (La.App. 3d Cir.1982).


author: MARVIN, Judge.

text:
    Kathleen P. RYAN, Individually and as Tutrix of the Minor, Molly Ryan, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTO INSURANCE, et al., Defendants-Appellees.
    No. 15496-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.
    Joseph W. Greenwald, Shreveport, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Julie Mobley Lafargue, Shreveport, for defendants-appellees.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

In this action arising out of an automobile accident, plaintiff appeals a judgment which rejected her demands against her liability insurer to reform or increase the uninsured motorist coverage of the polity from $10,000 to $50,000, which was the amount of liability coverage. LRS 22:1406 D(l)(a). We affirm.

Plaintiff was referred to a State Farm insurance agent by one of her friends who did business with that agent. She discussed with the agent liability limits of $50,000 for one person, $100,000 for one accident. When the agent learned that plaintiff had several traffic violations and would be subject to a higher premium rate, he discussed with plaintiff decreasing or rejecting UM coverage and other ways of reducing the premium charge. Some of the discussions were conducted by telephone. Plaintiff initially rejected UM coverage and the agent said he cheeked and had plaintiff sign the standardized insurance form rejecting UM coverage. Eventually plaintiff instructed the agent that she wanted the same UM coverage as her friend who referred her to the agent. This amount was $10,000 one person and $20,000 one accident UM coverage. The standardized form for rejecting or modifying UM coverage was later completed in accord with plaintiff’s instructions.

The initial contact between plaintiff and the agent occurred in mid-April 1980. Periodic premium notices and the policy were mailed to plaintiff by the insurer at the address given by plaintiff to the agent. The premiums were paid and the policy was renewed six months after it was written. The accident occurred May 17, 1981. The policy showed UM coverage of $10,000/$20,-000 and liability coverage of $50,000/$100,-000.

Under these circumstances, and notwithstanding plaintiff’s denial that she received the policies and premium notices and her contention that she was purchasing $50,000 in UM coverage, the trial court could have inferred that she requested and received a policy with $10,000 UM limits. This issue is one of credibility which required the trial court’s determination and which we do not disturb where it is supported by the record. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The limits of an insurance policy, unlike the more intricate and sometimes confusing coverage provisions, should be evident to any reasonable minded insured. Smith v. Millers Mut. Ins. Co., 419 So.2d 59 (La.App. 2d Cir.1982), writ denied.

The other driver involved in the accident had liability limits of $10,000 for one person. This amount was paid to plaintiff and the other driver was released. At the request of plaintiff’s insurer, the trial court determined that plaintiff’s damages arising out of the accident amounted to $45,000. Plaintiff’s insurer answered her appeal and contends that the $45,000 amount is grossly excessive. Apparently this was done as a precaution to allow the insurer to argue for reduction of that amount in the event that we or any court found that the UM coverage should be increased to $50,000.

In any event, the insurer urges that we should find the $45,000 amount to be excessive and reduce it to not more than $12,500. The insurer cites cases awarding that or a lesser amount. Plaintiff’s injuries included five fractured ribs, a 25 percent collapse of a lung, a ruptured breast prosthesis, abrasions and contusions to the left side of her body, and some enhancement or aggravation of emotional problems. Plaintiff was hospitalized for 10 days. The judgment recognized that plaintiff had outstanding medical expenses of $2,405. Under these circumstances we cannot find that the trial court abused its discretion in determining the amount of plaintiff’s “damages.”

At appellant’s cost, judgment is AFFIRMED.


author: SEXTON, Judge.

text:
    Virginia CALHOUN, Plaintiff-Appellee, v. FIREMAN’S FUND INSURANCE COMPANIES, Defendant-Appellant.
    No. 15499-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.

      Watson, Murchison, Crews, Arthur & Corkern by William P. Crews, Jr., Natchi-toches, for defendant-appellant.
    Whitehead & McCoy by C.R. Whitehead, Jr., Natchitoches, for plaintiff-appellee.
    Before MARVIN, FRED W. JONES, Jr. and SEXTON, JJ.
   SEXTON, Judge.

Plaintiff filed suit seeking worker’s compensation benefits for total and permanent disability, statutory penalties, and attorney fees. The trial court awarded plaintiff compensation benefits for total and permanent disability under the “odd lot” doctrine, and rejected plaintiff’s claims for statutory penalties and attorney’s fees. We affirm.

Plaintiff in this cause is Virginia Calhoun, a black 31 year old female, residing in Coushatta. Defendant is Associated Indemnity Company, the insurer of defendant’s former employer, Country Pride Foods, Ltd. (hereinafter referred to as Country Pride). Defendant Associated Indemnity was referred to throughout trial proceedings as Fireman’s Fund Insurance Companies (hereinafter referred to as Fireman’s Fund), a group of insurance companies of which Associated Indemnity is a member.

Virginia Calhoun began working on September 14, 1979, at a poultry processing plant operated by Country Pride in Natchi-toches. She was paid $132 per week from September until December. Her job involved taking the neck, heart, and gizzard of a chicken from an assembly line conveyor belt, and wrapping these three chicken parts in a single wrapper. Country Pride’s production quota required that Ms. Calhoun complete 15 wrappings per minute.

In December of 1979 Ms. Calhoun was redesignated as a “stuffer.” As a “stuffer,” Ms. Calhoun placed the chicken parts, which had already been packaged by “wrappers,” into the cavity of chickens passing her on a conveyor belt. Ms. Calhoun’s work stations, while she was employed as both a “wrapper” and a “stuffer,” were kept at subfreezing temperatures by the plant’s internal cooling system. Ms. Calhoun testified that she worked non-stop at both positions for approximately nine hours a day, excluding a 15 minute mid-morning coffee break and a 45 minute lunch break. She remained in her position as a stuffer from December of 1979, until she left the employ of Country Pride in March of 1980.

Plaintiff first started experiencing pain in November of 1979. At that time, plaintiff felt cold, numbness and a dull aching pain in the fingers of her right hand. Ms. Calhoun originally thought that the pain was a result of the cold temperatures in which she was working. To that end, she purchased insulated gloves and periodically ran warm water over her hand. However, these measures were inadequate and the pain in her right hand intensified. Plaintiff’s painful condition eventually worsened to the degree that she was unable to work for longer than ten minutes without holding her hand down to allow full circulation of blood to her hand and lessen the pain. This condition persisted for several weeks before she consulted a nurse employed by Country Pride.

Ms. Calhoun was removed from her position as a wrapper and reassigned as a stuffer in order to improve her painful condition. On March 5, 1980, while still suffering from this condition, she was discharged for fighting with a co-employee.

On February 25, 1980, approximately a week and a half before her discharge from the employ of Country Pride, plaintiff was examined by Dr. Jeffrey Donat, Director of the EMG Laboratory, Louisiana State University Medical Center at Shreveport. Dr. Donat diagnosed plaintiff’s pain and disability as emanating from a “carpal tunnel syndrome” present in both wrists and advised plaintiff in a written report that the condition “represents a significant disability and requires orthopedic surgery.”

Plaintiff was surgically treated by plastic and reconstructive surgeon, Dr. Simeon Wall of Shreveport. Dr. Wall confirmed Dr. Donat’s earlier diagnosis that plaintiff suffered from carpal tunnel syndrome in both wrists. Dr. Wall defined carpal tunnel syndrome as a condition in which there is an internal or external compression of the median nerve, the primary nerve supplying nervous impulses to the hand.

The median nerve extends from the forearm to the fingers, and passes through and is encased in a long and narrow “tube,” “tunnel” or “canal” of ligaments. Carpal tunnel syndrome occurs when the median nerve swells and expands and thereby becomes abnormally constricted by the inelastic tunnel of ligaments through which it passes. This abnormal compression of the median nerve adversely affects both the motor and sensory functions of the hand.

Dr. Wall first examined plaintiff on May 27, 1980. Plaintiff complained of pain in both wrists at that time, although she experienced greater pain in her right wrist. Conservative treatment failed to improve the plaintiff and on September 18,1980, Dr. Wall performed surgery on plaintiff’s right wrist. In surgery, Dr. Wall detected a pronounced yellow discoloration and flattening of the nerve. Dr. Wall subsequently released plaintiff to light duty on November 17, 1980.

Dr. Wall subsequently performed a double surgery on plaintiff’s left wrist on November 5, 1981. At that time, Dr. Wall released the ligaments of plaintiff’s left carpal tunnel. He also released and removed the ligaments of plaintiff’s left ulnar tunnel as well since plaintiff had experienced pain in her left little finger, which pain indicated an abnormal compression of her left ulnar nerve. Dr. Wall’s surgery revealed a flattening and discoloration of the left median and ulnar nerves — symptoms indicative of nerve compression — and a substantially reduced blood supply to the left hand.

On January 15, 1982, Dr. Wall issued plaintiff a conditional work release, stipulating that plaintiff should refrain from rapid and repetitive wrist motions. A similar release was executed by Dr. Wall on January 22, 1982.

Fireman’s Fund began making compensation payments on March 29, 1980, and terminated compensation benefits on approximately January 26, 1982, pursuant to Dr. Wall’s work release.

Plaintiff filed suit for compensation benefits, statutory penalties and attorney’s fees on August 14, 1981, at which time Fireman’s Fund had not discontinued benefits, but had merely alluded to the possibility that they might do so.

In a judgment rendered December 6, 1982, the trial court awarded plaintiff total and permanent disability benefits commencing on March 5, 1980, and rejected plaintiff’s claims for statutory penalties and attorney’s fees. The defendant only has appealed.

Defendant has not contested on appeal that plaintiff suffered an on-the-job injury which caused compensable disability. Thus, the sole issue to be decided on this appeal concerns the extent of plaintiff’s disability. Defendant contends that the trial court erred in classifying claimant, Virginia Calhoun, as totally and permanently disabled, contending that claimant suffered only from either a total and temporary or a partial disability.

In making this contention, the defendant emphasized several aspects of Dr. Wall’s testimony. Dr. Wall testified that, although repetitive flexion of plaintiff’s wrists probably caused her disability, “there are other types of motions I’m sure that she possibly could do well with.” Dr. Wall opined that, at the time of trial, plaintiff could handle gainful employment as long as she refrained from rapid, repetitive motions of the wrist.

Dr. Wall testified further that,
“I would feel that the type of motion that she could be involved in are the types in which her wrist is cocked up, in which she mainly uses the so-called extensor or the tendons on top of her hand. Also, I feel that the problems that irritate the median and ulna nerve in the carpal tunnel are the so-called extreme flexion or bending the wrist downward in a forceful manner. And I think this is what creates the problem with the carpal tunnel. There are many repetitive motions of the hand which can be carried out, which are not irritating to the wrist.”

Although the defense argument based on Dr. Wall’s actions and testimony is persuasive, it is not dispositive given the totality of the evidence adduced. We believe that there is more than enough evidence to support the trial court’s determination of total and permanent disability.

The trial court could have reasonably found that the work release issued by Dr. Wall on January 15 and 22 of 1982, subsequent to both surgeries, did not conclusively establish plaintiff's freedom from disability. Ms. Calhoun testified in describing her post-surgical condition which prevailed at the time of trial, that she was unable to lift pots off the stove, open a car door, open a window or mop. Plaintiff testified that, because of pain, she was periodically unable even to drive; she stated that she often encountered great pain merely in placing her hands in an upright position on the steering wheel. She averred that the presence of intense pain in her hand varied in frequency from once a week to daily. She stated that, “The numbness comes almost every night. It is worse when it is cloudy, wet or rainy. It stays there constantly every day.” Ms. Calhoun further testified that she suffered from periodic bouts of intense pain, and that “when the pain is real bad, I put it in the sling that Dr. Wall gave me, so that I can hold it in one position.”

When carefully considered, Ms. Calhoun’s reports of disability and subjective pain were not inconsistent with Dr. Wall’s expert testimony. Dr. Wall stated that patients suffering from carpal tunnel syndrome “sometimes do not get complete regeneration of [the median nerve] and sometimes they do have a shooting pain secondary to the regeneration.” Dr. Wall testified that carpal tunnel syndrome may cause pain all the way up to the elbow; that in the past Ms. Calhoun’s subjective complaints of pain had been tied to objective and medically verifiable medical conditions; and that he would have to conduct further examination of the plaintiff before he would have a basis for disbelieving Ms. Calhoun’s claims of subjective pain.

Dr. Wall repeatedly emphasized that Ms. Calhoun refrain from employment involving rapid, repetitive motions of the wrists “because of the possibility of recreating the same problems.” Dr. Wall expressly affirmed that plaintiff had a disability in both wrists to engage in any type of gainful occupation that would require repetitive wrist motions.

The doctor noted that inadequate post-surgical regeneration of the median nerve is a common occurrence in carpal tunnel syndrome patients. He further explained that:

“If there is not a complete regeneration of motor nerves, then sometimes there can be weakness in the muscles of the hand or the intrinsic muscles of the hand....”

The trial court’s decree of total and permanent disability was ultimately based on the determination that Virginia Calhoun was unable to adequately perform either manual or clerical duties and that she was therefore an “odd-lot” worker. The court’s finding that she was unable to perform manual labor was predicated upon Dr. Wall’s oft-reiterated observation that work involving constant use of the wrists would re-aggravate her condition. The court’s finding that she was unable to perform manual labor was further predicated upon claimant’s testimony that she was unable to perform the simplest of tasks, and that she often encountered intense pain merely in holding her wrists in an upright position.

At trial the defendant attempted to contest plaintiff’s contention that she was unable to perform manual labor by detailing the variety of manual jobs available at Country Pride’s Natchitoches poultry plant. The trial court nevertheless observed that all of the jobs described involved constant and repetitive use of the wrists.

A trial court may accept a claimant’s lay testimony which differs in certain respects from the medical testimony presented where the lay and medical testi mony are neither medically nor logically inconsistent. See Tantillo v. Liberty Mutual Insurance Co., 315 So.2d 743, 748 (La.1975). Disability, within the framework of the Worker’s Compensation Act, is a legal rather than purely medical determination. The notion that the trial court may consider lay testimony only where there is a conflict in the medical testimony was firmly laid to rest in Tantillo. The current view is that the trial court is duty-bound to assess all of the evidence presented. Tantillo, supra; Woods v. Petroleum Helicopters, Inc., 415 So.2d 978 (La.App. 1st Cir.1982); Johnson v. Fireman’s Fund Insurance Co., 389 So.2d 1139 (La.App. 3d Cir.1980).

The defense further attempted to establish that plaintiff, who typed 55 words a minute, was qualified for clerical employment. However, the trial court found that a reasonably continuous and stable market did not exist for her clerical services. As professor and rehabilitation specialist Dr. Richard Galloway testified, virtually the only clerical jobs available in Red River Parish exist in doctors’ and lawyers’ offices; moreover, the claimant is unqualified for these positions because, according to her scores on standarized tests, her mathematical skills are those of a sixth grader, and her spelling and reading skills are those of an eighth grader. The trial court’s finding that claimant was not qualified for clerical positions was corroborated by the fact that claimant’s application for clerical employment was expressly rejected by Country Pride, and by the observation of rehabilitation specialist Jo Taylor that her area “is not culturally receptive to black persons in an office setting.”

We conclude that, given claimant’s capabilities and work related disabilities, the trial court did not err in finding that a reasonably continuous and stable market did not exist for either the manual or clerical duties which the claimant was able to render. Therefore, under Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980), the trial court did not err in classifying the claimant as totally disabled under the odd-lot doctrine.

Furthermore where, as here, the total disability exists at the time of trial and is of indefinite duration, that total disability must properly be classed as permanent. Carruth v. Louisiana Motor Inns, 389 So.2d 99 (La.App. 4th Cir.1980); Schriner v. Riverside Companies, Inc., 378 So.2d 1035 (La. App. 2d Cir.1979), writ denied 380 So.2d 1368 (La.1980); Walker v. Gaines P. Wilson & Son, Inc., 340 So.2d 985 (La.1976).

For the foregoing reasons, the judgment of the trial court is affirmed, and all costs of this appeal are assessed to defendant-appellant.

AFFIRMED.


text:
    In re The Judicial Emancipation of the Minor Kimberly Paige YOUNG. Kimberly Paige YOUNG v. OUACHITA PARISH POLICE JURY, et al.
    Nos. 15506-CA, 15507-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.

      Thomas, Dunahoe & Gregory by A.J. Gregory, Jr., Natchitoches, for plaintiff-appellant, Kimberly Paige Young.
    Johnny Parkerson, Dist. Atty., and Robert S. Kennedy, Jr., Asst. Dist. Atty., Monroe, for intervenor-appellee, Ouachita Parish Police Jury.
    Hunter & Scott by Willie Hunter, Jr., Monroe, for defendant-appellee, Reginald 0. Dowd, Jr.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   HALL, Judge.

After a judgment of emancipation was rendered and the emancipated minor filed a damage suit, the district court, upon being presented with a motion by the plaintiff in the damage suit to proceed in forma pau-peris, determined that the emancipation had been sought solely for the purpose of avoiding court costs in the damage suit and, ex parte and without a hearing, (1) rendered an order revoking the judgment of emancipation; (2) rendered an order directing the tutor or legal representative of the minor to substitute himself as party plaintiff in the damage suit; and (3) denied the motion to proceed in forma pauperis. The emancipated minor perfected suspensive appeals in both proceedings.

There is no authority in the law for a district court to revoke a judgment of emancipation on its own motion, ex parte, and without contradictory proceedings. An action to annul a judgment of emancipation must be brought directly against the emancipated minor. An emancipation judgment may not be attacked collaterally. State ex rel Billington v. Sacred Heart Orphan Asylum, 154 La. 883, 98 So. 406 (1923); Munday v. Kaufman, 48 La.Ann. 591, 19 So. 619 (1896).

The order revoking the emancipation judgment must be reversed and set aside, and it follows that the other orders based on that order must also be set aside.

Accordingly, the . order revoking the emancipation judgment, the order directing the tutor or legal representative of the minor to substitute himself as party plaintiff, and the order denying the motion to proceed in forma pauperis, are reversed and set aside. The actions are remanded to the district court for further proceedings in accordance with law.

Reversed and remanded.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Doyne C. BOLDEN, Defendant-Appellant.
    No. 15513-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.

      Hamilton & Carroll by Orlando N. Hamilton, Jr., Oak Grove, for defendant-appellant.
    William J. Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, J. Carl Parkerson, Dist. Atty., Monroe, Ellen
    R. Eade, Asst. Dist. Atty., Bastrop, for plaintiff-appellee.
    Before MARVIN, FRED W. JONES, Jr. and SEXTON, JJ.
   SEXTON, Judge.

The defendant, Doyne C. Bolden, pursued this appeal subsequent to having been adjudged a habitual traffic offender in a hearing held September 20, 1982. The defendant had accumulated ten speeding tickets and, by virtue of the authority of LSA-R.S. 32:1472, was directed not to operate a motor vehicle on the highways of this state for a period of five years. We reverse.

The defendant, having received ten traffic convictions, was charged by petition filed on July 22, 1982 in the District Court with being a habitual traffic offender. Act 555 of 1982 became effective on September 10, 1982, transferring original jurisdiction of habitual traffic offender adjudications from District Court to the Department of Public Safety. The defendant was found to be a habitual traffic offender on September 20, 1982, by the District Court.

In the initial assignment of error, in which we find merit, appellant asserts that as a result of Act 555 of 1982, the District Court was without jurisdiction to adjudge him a habitual traffic offender.

Act 555 of 1982 did indeed change the procedure for adjudication of a Louisiana motorist as a habitual offender. The Act states that a person accused of being a habitual vehicular offender shall have a hearing before an adjudication officer of the Department of Public Safety. LSA-R.S. 32:1476. If that person is found to be the same person who is accused of being a habitual offender and is also found to actually be a habitual offender, he shall lose his privilege of operating a motor vehicle on the highways of this state. LSA-R.S. 32:1477. Appeals are to the district court of the parish in which the person resides. LSA-R.S. 32:1478. Thus, appellant is correct that Act 555 of 1982 divested the district courts of this state of jurisdiction to initially determine whether a person is a habitual traffic offender.

The issue for our resolution is whether this appellant — who was accused by petition filed prior to the effective date of the new act — should have been proceeded against in the district court under the procedure in effect at the time of the filing of the petition, or under the procedure in effect at the time of the trial which he was adjudged a habitual traffic offender.

While LSA-C.C. Art. 8 provides that laws can only prescribe for the future, our Supreme Court has consistently held that the rule of prospective application applies only to substantive laws. Procedural or remedial legislation is to be given retroactive effect unless the language in the legislation shows a contrary intent. Lott v. Haley, 370 So.2d 521 (La.1979); Ardoin v. Hartford Ace. and Indem. Co., 360 So.2d 1331 (La.1978); Bostick v. Intern. Minerals and Chemical Corp., 360 So.2d 898 (La. App.2d Cir.1978).

In Lott, a change in the prescriptive period with respect to medical malpractice actions was held to be substantive and prospective. In Ardoin, a statute establishing a burden of proof in malpractice actions was determined to be procedural and thus retroactive. Bostick held that the statute eliminating the cause of action against executive officers was substantive and prospective. In Shreveport Longleaf Lumber Co. v. Wilson, 195 La. 814, 197 So. 566 (1940), the statute changing the method of maintaining the viability of a material-man’s lien was held remedial and retroactive. Brown v. Indemnity Insurance Co. of North America, 108 So.2d 812 (La.App.2d Cir.1959), found a statute providing an additional venue for workmen’s compensation cases to be procedural and retroactive. Manuel v. Carolina Casualty Ins. Co., 136 So.2d 275 (La.App.3d Cir.1961), found a statute granting a cause of action to major children for the wrongful death of a parent to be substantive and prospective.

Our comparison of the Act in question, Act 555 of 1982, with the jurisprudence just noted, causes us to believe that this statute is indeed procedural and remedial, and thus entitled to retroactive application. We reach this conclusion because Act 555 of 1982 does not create, confer or destroy rights, but, rather, establishes a method or procedure for determining status. Substantive acts are generally defined as those which create, confer, define or destroy rights, liabilities, causes of action, or legal duties. Procedural acts, on the other hand, describe methods for enforcing, processing, administering or determining rights, liabilities, or status. See, Shreveport Longleaf Lumber Co., supra; Bostick, supra; Manuel, supra; and Brown, supra.

We note parenthetically that proceedings to have an individual declared a habitual traffic offender have characteristics of both civil and criminal proceedings. If one is adjudged a habitual traffic offender and subsequently operates a motor vehicle, he is subject to criminal sanctions. LSA-R.S. 32:1480. However, in this jurisdiction, such proceedings have been classified as civil in nature, rather than criminal. State v. Love, 312 So.2d 675 (La.App.2d Cir.1975).

It is significant to note, however, that our result herein is buttressed by the criminal, as well as civil, jurisprudence. In State v. Carter, 362 So.2d 510 (La.1978), the Supreme Court held that a statute reducing the penalty for rape from capital punishment to life, and thereby negating the procedures attendant to a capital case, was procedural and retroactive. State v. Martin, 351 So.2d 92 (La.1977), held that a change in the responsive verdicts for the offense of burglary was also procedural and retroactive.

We therefore find that Act 555 of 1982 is procedural, and is thus entitled to retroactive effect. Subsequent to the effective date of that act, September 10, 1982, the District Court possessed only appellate jurisdiction in proceedings of this type and was without original jurisdiction to conduct the hearing on this appellant on September 20, 1982. The judgment of the District Court decreeing that Doyne C. Bolden is a habitual traffic offender is hereby reversed for the reasons stated.

REVERSED.

      . Finding merit in appellant’s initial contention, we do not address the second assignment of error. This assignment asserts that because his last speeding conviction was subsequent to State v. Jones, 404 So.2d 1192 (La.1981), and appellant was not “Boykinized” at that time, this last speeding conviction cannot be used to adjudge him a multiple traffic offender.

      . “§ 1476. Hearing; procedure
      The matter shall be heard by an adjudication officer of the Department of Public Safety. If the person named in the abstract denies that he was convicted of any offense shown in the abstract and necessary for a holding that he is a habitual offender, and if the department cannot, on the evidence available to it, determine the issue, the department may request the decision of such issue from the court in which such conviction was reportedly made. The court to which such request is made shall send to the department certified copies of its records determining such issue. The department in its discretion, may rely on certified copies of convictions adjudged by courts outside of this state, or federal courts, or may request such a court to make a determination.”

      . “§ 1477. Court’s findings; judgment
      If the department finds that such person is not the same person named in the aforesaid abstract, or that he is not a habitual offender under this Chapter, the proceeding shall be dismissed, but if the department finds that such person is the same person named in the abstract and that such person is a habitual offender, the department shall so find, and by appropriate order, shall direct that such person not operate a motor vehicle on the highways of this state and shall surrender to the department all licenses or permits to operate a motor vehicle upon the highways of this state.”

      . “§ 1478. Appeals
      An appeal may be taken from any final order entered under the provisions of this Chapter by petition to the district court of the parish in which the person named in the abstract resides. Appeal from the decision of the district court may be taken to any court of competent appellate jurisdiction.”


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

text:
    Ora Faye Dark HOLLOWELL, Plaintiff-Appellee, v. Randall Harris HOLLOWELL, Defendant-Appellant.
    No. 15515-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 15, 1983.

      Burnett, Sutton, Walker <& Callaway, P.C., by Glenn E. Walker, Shreveport, for defendant-appellant.
    James A. Van Hook, Jr., P.C., Shreveport, for plaintiff-appellee.
    Before MARVIN, FRED W. JONES, Jr. and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

Defendant husband appealed an assertedly excessive alimony pendente lite judgment, contending that the effect of the contested decree is to: provide the plaintiff wife with a higher standard of living than she enjoyed during the marriage; require defendant to support plaintiff’s two minor children by a prior marriage; leave defendant with a monthly income inadequate to meet his own minimal needs.

Plaintiff wife answered the appeal, requesting an increase in the alimony penden-te lite award.

Randall Hollowell and Ora Hollowed were married in July 1977 and physically separated in November 1982. No children were born of the marriage. Mrs. Hollo-well’s two minor children by a previous marriage resided with the couple.

In December 1982 Mrs. Hollowed sued her husband for a legal separation and, in connection therewith, sought alimony pen-dente lite. A hearing on the latter demand was held on December 21, 1982.

At the described trial, evidence was adduced that Mrs. Hollowed was employed at two part-time jobs from which she received a net monthly income of $600. Her detailed monthly expenses [purportedly excluding any attributable to her 12 and 14 year old children] amounted to $1500. It was further shown that Randall Hollowed was employed as a shop foreman in a family-owned sheet metal business, earning a net monthly salary of about $1680. His itemized monthly expenses came to $1418.50.

At the conclusion of the hearing the trial court awarded Mrs. Hollowed $840 per month alimony pendente lite, payable in four equal installments. The judgment, signed on January 12, 1988, also contained this additional provision:

“[i]n the event that the said RANDALL HARRIS HOLLOWELL pays the monthly installment on the promissory note representing a part of the purchase price of the premises at 9390 Garfield Drive, Shreveport, Louisiana, he shad have the right to deduct one-half (½) of that said installment from the amount of alimony payable by him, ORA FAYE HOLLOWELL shad be entitled to reimbursement for ad such amounts as may be deducted as aforesaid, and such reimbursements, if not made sooner, shad be made upon the sale of the said premises at 9390 Garfield Drive, Shreveport, Louisiana, and from the proceeds of said sale.”

According to the record, the monthly house note was $445.00.

If a claimant spouse does not have sufficient income for maintenance pending suit for separation from bed and board or for divorce, the judge may allow a sum for support proportioned to the needs of the claimant spouse and the means of the other spouse. La.Civil Code Article 148.

As we have explained, the purpose of alimony pendente lite is to provide temporarily and pending litigation for the spouse who does not have sufficient income for his or her maintenance. The term “maintenance” means the style or manner of living enjoyed by the spouse while they resided together. The award is ordinarily determined initially by summary proceedings within a few days after litigation is instituted and, if granted, is usually effective from the date suit is filed. Alimony pendente lite is, in essence, designed to maintain the status quo insofar as the economic circumstances of the marriage are concerned. It relates to facts as they existed during the time the parties were living together and as they actually exist at the time the litigation commences, not to future possibilities and capabilities. Arrendell v. Arrendell, 390 So.2d 927 (La.App. 2d Cir. 1980).

We note here that the monthly alimony pendente lite award made by the trial judge is exactly one-half of the defendant husband’s monthly income, leaving him the other half of $840 to meet his needs. On the other hand, by adding the award of $840 to her net monthly income of $600, Mrs. Hollowell will receive $1440 per month.

Further, in examining Mrs. Hollowell’s itemized list of monthly expenses, it appears that a portion of these are apparently attributable to her children by the previous marriage — particularly the housing and food items. Appellant, of course, is not responsible for the support of these children.

Appellant’s complaint that the alimony pendente lite award, under these circumstances, is excessive, and that the trial court abused its broad discretion, is valid for the reasons explained.

After reviewing the record evidence concerning the “maintenance” needs of the claimant spouse and the means of the defendant husband, we conclude that $600 per month is an appropriate alimony pendente lite award. Accordingly, the judgment of the district court is amended to reduce the monthly alimony pendente lite award from $840 to $600 [effective with the date of finality of this judgment] and, as amended, is affirmed, with cost of appeal assessed to appellee.