text:
    Elizabeth H. GARRICK v. WASHINGTON PARISH, et al.
    No. 82 CA 1105.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Rehearing Denied Nov. 22, 1983.
    Writ Denied Jan. 27, 1984.

      Vincent J. Glorioso, Jr., New Orleans, Brady M. Fitzsimmons, Covington, for plaintiff.
    William J. Doran, Jr., Marshall W. Wro-ten, Baton Rouge, for defendants.
    Before' COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

This is an appeal by the State of Louisiana through the Department of Transportation and Development from a judgment in favor of the plaintiff, Elizabeth H. Garrick (Elizabeth Garrick Perry), in the amount of $268,000.00. We amend and, as amended, affirm.

Elizabeth H. Garrick, plaintiff, sued several parties for damages for personal injuries she suffered in an automobile accident which occurred during the early morning hours of September 28, 1975.

The accident happened on Louisiana Highway 1075, which is a two-lane rural highway in Washington Parish. Garrick was proceeding at a lawful rate of speed in a northerly direction along the highway when she was suddenly confronted with a Washington Parish Sheriff’s patrol vehicle (with its headlights on, but its signal lights not flashing) stopped in Garrick’s lane of traffic. At this time the weather conditions were dark and intermittently foggy, so that visibility was not good. Garrick reacted to the sudden emergency by slowing her vehicle and pulling onto the right shoulder in an attempt to go around the stopped patrol car.

As she did so, she struck an unmarked, unilluminated concrete loading platform which projected from a roadside store, an antique shop known as The Old Variety Shop, onto the shoulder of the roadway to within two and one-half to three feet of the main traveled portion of the roadway. There were no warning signs, or any other warnings, signifying the dangerous proximity of the platform to the highway.

After trial on the merits, the court rendered judgment in favor of Garrick and against the State through the Department. As a basis for his judgment the trial judge set out the following in his “Reasons for Judgment”:

This case is a suit for damages as a result of an automobile accident occurring on September 28, 1878 in Bogalusa, Louisiana. The Court finds the following facts conclusively established by the evidence: The petitioner, Elizabeth Garrick, was traveling northbound on Louisiana State Highway 1075 when she was confronted with a vehicle parked facing south in the northbound lane. Said vehicle was a Washington Parish Sheriff’s patrol vehicle, and was parked in the wrong lane of traffic with its headlights on. The police signal lights were not flashing. Due to the darkness and the foggy conditions, petitioner was forced to take sudden emergency measures in order to avoid hitting the parked vehicle. Petitioner proceeded to slow down and take the shoulder of the road in order to pass the vehicle on the right. But, unbeknownst to the petitioner, there existed an unmarked, unilluminated concrete platform or apron extending from the store directly to the right of the parked vehicle, approximately two and one-half to three feet from the main traveled portion of the highway. The petitioner’s vehicle struck the concrete apron, resulting in severe injuries. There were no signs posted or other warnings for the concrete apron.
It is the finding of the Court that the defendant, Department of Highways, negligently breached its duty and responsibility to maintain all roads and highways, including the shoulders thereof, in a reasonably safe condition for motorists exercising ordinary care and reasonable prudence.... A motorist has the right to presume that the public highways are safe for ordinary use, and the motorist is not expected to anticipate extraordinary danger, impediments or obstructions to which his attention has not been drawn and of which he has not been warned.... The Court finds that Miss Garrick acted reasonably under the circumstances, and had a right to expect the road and shoulder to be in a safe condition. (citations omitted).

From the evidence it is established that the Department had constructive notice of the projection of the concrete loading platform onto the shoulder of the roadway and that the Department placed no warning signs to warn the motoring public of the hazardous condition.

The Department owes a duty to maintain the highways and its shoulders reasonably safe for the prudent motorist. This duty to maintain reasonably safe highways and shoulders extends to the protection of those persons who may be foresee-ably placed in danger by an unreasonably dangerous condition. This duty, of course, extends to the protection of those persons who have to drive onto the shoulder because travel on the roadway itself has become hazardous due to an emergency situation not of the motorist’s creation. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980).

Our review of the evidence convinces us that the trial court properly found that the Department breached this duty, and was therefore responsible to Ms. Garrick.

Moreover, the court below held that inasmuch as a motorist has a right to assume that the public highways are safe for ordinary travel and use, Ms. Garrick could not be expected to anticipate extraordinary danger, impediments or obstructions, such as the platform, to which her attention had not been drawn or of which she had not been warned. The court found that in failing to post warning signs or otherwise give adequate warning of the hazardous condition (a concrete platform protruding across the shoulder to within about three feet of the roadway), the Department had further breached its duty to properly warn motorists of a condition which posed a danger to the motoring public.

It is well settled that the Department has a duty, in the exercise of reasonable care, to post and maintain adequate signs to warn motorists of dangerous conditions which exist on the highways. State Farm Mutual Automobile Insurance Company v. Slaydon, 376 So.2d 97 (La.1979).

As before noted, the trial court held that a patently and obviously hazardous condition existed on the shoulder of the roadway at the point where the accident occurred, which was in the nature of a “trap” and that the Department was negligent in failing to post and maintain sufficient and adequate warning signs to apprise the reasonably prudent motorist of the dangerous condition.

Our examination of the entire record in this case, in light of the well established principle of appellate review of factual findings of a trier of fact as enunciated in Canter v. Koehring Company, 283 So.2d 716 (La.1973), and refined by Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), prompts us to conclude that there existed at the site of this accident a patently and obviously dangerous condition and that the Department failed in its duty to adequately warn of such condition, which failure constituted actionable negligence which caused the instant accident.

The next issue raised by DOTD is that the quantum is excessive. The trial court found that the plaintiff sustained a loss of wages in the amount of $25,000.00. Medical expenses were fixed at $18,000.00. For her severe and prolonged pain and suffering, mental anguish, embarrassment, humiliation, permanent disfigurement, disability and diminution of the enjoyment of life’s pleasures, the trial court awarded $225,-000.00. The total award amounted to $268,-000.00, plus interest and costs.

Plaintiff suffered open fractures of her left tibia and fibula, which involved the shafts of both bones. There were also severe fractures and dislocations of the bones of the right ankle and foot. Hospitalization and surgery were required. She underwent several surgical procedures and also had to have the pins and surgical screws, which were inserted during surgery, removed. Subsequently, Ms. Garrick had to have the right ankle fused. This left a shortening of the right leg, necessitating special built-up shoes. The residual disability to her right leg was assigned at 32-35%. At various times she was in casts or braces, or on crutches. She required intense physical therapy to learn to walk again. The accident left noticeable scars and atrophy of the right leg. Plaintiff was only 19 years of age at the time of the accident and 24 years old at the time of the trial. The record supports that she suffered severe pain over a long period of time, and the orthopedist was of the opinion that she would suffer intermittent pain as long as she lives. She and her husband explained the painful and debilitating muscle spasms that she experiences in her right ankle. She has developed traumatic arthritis as a result of the accident.

In articulating our analysis of the facts of the injury and the result upon this plaintiff, we find that the award made is not excessive. See Lanclos v. Hartford Accident & Indemnity Company, 366 So.2d 621 (La.App. 3rd Cir.1978). Finding no abuse of the trial court’s discretion under the facts of this case, we do not resort to the jurisprudence fixing awards in “similar” cases proposed to us by the appellant herein and we cannot disturb the award. Reck v. Stevens, 373 So.2d 498 (La.1979).

The other significant issue raised on this appeal is the effect to be given to the release executed by the plaintiff in favor of the Washington Parish Sheriff’s Office, its employees and insurers. The trial court concluded that the Sheriff’s patrol car was parked in the wrong lane of traffic without his flashing signal lights but with his headlights on. Under the facts of this case, we determine that there were two joint tortfeasors, the Department and the Sheriff’s Office. One of them, the Sheriff’s Office, was released by the plaintiff. When a plaintiff releases one of two joint tort-feasors, the unreleased joint tortfeasor is effectively deprived of the right of contribution. Recognizing this rule, the Court in Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3rd Cir.1964), held that the plaintiff in such a situation is entitled to recover only one-half of his damages from the unreleased tortfeasor. See Duvernay v. State, through Department of Public Safety, Division of State Police, 433 So.2d 254 (La.App. 1st Cir.1983); Sibley v. Menard, 398 So.2d 590 (La.App. 1st Cir. 1980), writ denied 400 So.2d 211 (La.1981). The judgment herein must, therefore, be amended to reduce the award by one-half.

As thus amended, and in all other respects, the judgment is affirmed; cost of this appeal in the amount of $2,392.25 is to be paid by the defendant-appellant, State of Louisiana through the Department of Transportation and Development.

AMENDED AND AFFIRMED.

      . Among the defendants were Washington Parish, the Parish Sheriffs Office, and the owner and lessees of the store. There were one or more interventions, reconventions and third party demands. Some parties were dismissed by summary judgment. There was one settlement prior to trial. The record does not reflect that issue was joined as to some defendants. The judgment was against the State (the sole appellant) only. Silence in a judgment as to any part of the demand or prayer made in litigation is a rejection of that part of the demand or prayer.


source: Caselaw Access Project

author: CRAIN, Judge.

license: Public Domain

text:
    Thomas Lee McREYNOLDS v. Susan A. KRUSE, et al.
    No. 83 CA 0002.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Rehearing Denied Nov. 22, 1983.

      Fernin F. Eaton, Baton Rouge, for plaintiff-appellant Thomas Lee McReynolds.
    George L. Anding, Jr., Baton Rouge, for defendant-appellee Susan A. Kruse, et al.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal from a judgment of the trial court sustaining defendants’ exception of no cause of action, thereby dismissing the plaintiff’s suit for damages.

Thomas Lee McReynolds and his wife, Lorraine Lambert McReynolds, were judicially separated in May of 1979. Mr. McReynolds was granted custody of the two children. Over a year later, both parties filed for divorce in separate suits. Mrs. McReynolds’ suit was filed first. According to Mr. McReynolds, no answer was filed to his wife’s petition because his attorney had conferred with Mrs. McReynolds’ attorney, Susan Kruse, and was under the impression that a settlement would be reached. However, Ms. Kruse subsequently obtained a default judgment which awarded Mrs. McReynolds a divorce and custody of the children.

Mr. McReynolds then filed suit for damages against his former wife, Lorraine McReynolds, her attorney, Susan A. Kruse, and Ms. Kruse’s employer, Capital Area Legal Services Corporation. The plaintiff claimed in his petition that defendant, Susan Kruse, “contrary to the custom of practitioners in the area and without notice to petitioner’s former attorney that defendants would not try to settle their claims ...” obtained a default judgment against the petitioner. Plaintiff also alleged that Ms. Kruse violated her oath as an attorney by misrepresenting to the court that a reconciliation had occurred between the parties, and by failing to inform the court that her client “was not informing the court of the true nature of her client’s relationship with the petitioner.... ”

Defendants, Susan Kruse and Capital Area Legal Services, filed a peremptory exception of no cause of action which the court sustained, dismissing the suit as to those two defendants. From that judgment, plaintiff appeals.

On appeal, plaintiff alleges that the trial court erred in maintaining the exception of no cause of action. The purpose of the exception of no cause of action is to test whether the allegations of the petition entitle the petitioner to a remedy under any theory of law. La.C.C.P. Art. 931, Androwski v. Ole McDonald’s Farms, Inc., 407 So.2d 455 (La.App. 1st Cir.1981), writ denied 409 So.2d 666 (La.1982). The trial court found that the plaintiff’s petition did not state a claim for which the law affords a remedy using the following analysis:

The court finds that Mr. McReynolds’ petition does not state a claim for which the law would afford a remedy. First, no professional relationship existed between Ms. Kruse and the plaintiff, so there was no duty imposed upon Ms. Kruse as to this plaintiff. Second, an attorney does have the duty to accurately present the facts to the court and to avoid and prevent any misrepresentation. Assuming that the allegations of the petitions are true and Ms. Kruse did misrepresent the facts, there is no showing that any misrepresentations were the cause of plaintiff’s harm. Finally, the law does not provide any relief for violation of the incorrect assumptions made by plaintiff’s attorney that the parties would settle and that no default judgment would be pursued. While the court recognizes the disappointment often suffered by parties who rely upon such verbal agreements, it finds no remedy in the law for this “misreliance”.

We agree with the trial judge’s conclusions and find that he was correct in maintaining the exception of no cause of action.

The appellant next argues that the court should have at least allowed him time to amend his pleadings to overcome the exception of no cause of action. La.C.C.P. art. 934 provides:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed. (Emphasis ours).

As the court stated in Louisiana & So. Life Ins. v. New Orleans S.S., 384 So.2d 594, 597 (La.App. 4th Cir.1980):

As a general rule the “shall” in the above article requires that the adverse party be given an opportunity to amend where there is a conceivable possibility that cause or right of action may be stated. Hodges v. LaSalle Parish Police Jury, 368 So.2d 1117 (La.App. 3rd Cir.1979). However, the right to amend is not so absolute as to permit the same when such amendment would constitute a vain and useless act. Perkins v. Desrochers 359 So.2d 323 (La.App. 4th Cir.1978).

In this case, the appellant advances no suggestion as to how he would amend his petition in order to state a cause of action.

For plaintiff to state a cause of action based upon the defendant’s negligence requires that each of these four questions be answered in the affirmative: 1) Do the risks and harm encountered by plaintiff fall within the protection of a legal duty owed to plaintiff by defendant; 2) Was defendant negligent, i.e., did defendant breach the duty owed to plaintiff; 3) Was defendant’s action a cause-in-fact of plaintiff’s injury; and 4) Was plaintiff damaged by defendant’s conduct. Dixie Drive It Yourself System New Orleans Co. v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962). As the trial court pointed out, defendant Susan Kruse was Mrs. McReynolds’ attorney, and as such, owed no legal duty to Mr. McReynolds. Although she did have a duty to accurately present the facts to the court, that duty is to the court and does not encompass the risk of injury to the plaintiff, as opposing party litigant. No amendment by the plaintiff could possibly cure those two deficiencies in the duty-risk negligence analysis. Therefore, a remand to allow the plaintiff to amend would be useless, and the trial judge correctly denied such.

Since we agree with the trial court’s decision to maintain the exception of no cause of action, we find it unnecessary to discuss appellant’s contention that it was error for the trial court not to overrule the exceptions of no right of action and vagueness or prematurity.

For the reasons assigned, the judgment appealed from is affirmed. Costs are to be paid by the appellant.

AFFIRMED.

      . The law does provide some form of relief in a case where opposing counsel misleads his opponent to the effect that no default judgment will be taken absent notice. La.C.C.P. art. 2004 provides that “(a) final judgment obtained by fraud or ill practices may be annulled.” See Albert v. Lirette, 394 So.2d 761 (La.App. 4th Cir.1981).


author: SAVOIE, Judge.

text:
    2L BOATS, INC. v. FRED SETTOON, INC.
    No. 83 CA 0003.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Rehearing Denied Nov. 22, 1983.
    Writ Denied Jan. 27,1984.

      Joseph W. Nelkin and Warren J. Pickle, New Orleans, for plaintiff-appellant.
    Daniel J. Nail, Triche, Sternfles & Nail, Napoleonville, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

2L Boats, Inc. appeals from a judgment denying it relief against Fred Settoon, Inc. for breach of contract, damages, and return of its deposit.

2L Boats, Inc., plaintiff, is a corporation owned equally by Roy P. Liner and Herman LeBlanc. Fred Settoon, Inc., defendant, is a corporation in the business of building and repairing boats. Its principal officer and owner is Fred Settoon.

2L Boats, Inc. contracted with Fred Set-toon, Inc. for the building of a vessel for 2L Boats, Inc. Pursuant thereto, 2L Boats, Inc. paid a $70,000.00 deposit. 2L Boats, Inc. allegedly withdrew from the contract for financial reasons. Thereafter, another corporation purchased the vessel, and Fred Settoon, Inc. retained 2L Boats, Inc.’s deposit.

As a result, 2L Boats, Inc. sued Fred Settoon, Inc. for the return of its deposit, breach of contract, and damages. Fred Settoon, Inc. answered and reconvened, alleging a monetary loss from the boat’s sale to the other purchaser. The trial court rendered judgment in favor of Fred Set-toon, Inc. on the main demand and ⅛ favor of 2L Boats, Inc. on the reconventional demand. From this judgment, 2L Boats, Inc. appeals.

FORFEITURE OF 2L BOATS, INC.’S DEPOSIT

2L Boats, Inc. complains that the trial court erred in allowing Fred Settoon, Inc. to retain its deposit, particularly when 2L Boats, Inc. was never placed in default.

It is apparent from the Reasons for Judgment that the trial court considered the deposit as earnest money which was forfeited by 2L Boats, Inc.’s withdrawal from the contract.

It is well settled that money deposited by the purchaser at the time of the contract is presumed to be earnest money, in the absence of either an express stipulation to or facts clearly showing the contrary. This is so even though the money paid is referred to by the parties as being paid on account of the purchase price, or as a deposit thereon. First National Bank of West Monroe v. Campbell, 242 So.2d 366 (La.App. 2nd Cir.1970).

The parties’ testimony and the written contract reflect that the $70,000.00 was a deposit on the contract and was to be refunded to 2L Boats, Inc. in the form of a credit out of the final payment due on the contract. Accordingly, we agree that this deposit was earnest money.

When earnest money has been given, the party who gives the earnest money may withdraw from the contract by forfeiting it. L.S.A.-C.C. 2463.

The trial court found that 2L Boats, Inc., through LeBlanc, was desirous of withdrawing from the contract and communicated this fact to representatives of Fred Settoon, Inc.

The appellate court must give great weight to factual conclusions of the trier of fact. Such findings will not be disturbed on review absent manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973). We find no error in the trial court’s findings.

The record reflects that 2L Boats, Inc. was a newly formed corporation at the time of the transaction and was without assets. However, it had obtained a commitment letter from I.T.T. for the financing of the purchase price of the vessel. This financial commitment required the personal guarantee of LeBlanc and Liner in order to be effective. According to Liner’s own testimony, he refused to sign the commitment. Further, several of Fred Settoon, Inc.’s representatives testified that because of Liner’s refusal, LeBlanc wished to withdraw 2L Boats, Inc. from the contract, and communicated this to the representatives.

Based on these facts, we cannot disagree with the trial court’s conclusion that 2L Boats, Inc. forfeited its deposit when it communicated to Fred Settoon, Inc. that it wished to withdraw from the contract.

CONTRACT PRICE

2L Boats, Inc. argues that the trial court erred in failing to construe the contract as the- parties understood it at the time of its execution. 2L Boats, Inc. contends that the agreement was for Fred Settoon, Inc. to build a supply vessel in accordance with discussed plans and specifications for a price not to exceed $780,000.00. However, the testimony and contract do not support this contention.

Liner, LeBlanc, Settoon and Perera (Fred Settoon, Inc.’s office manager) all testified that the contract was on a cost-plus basis. Further, the written contract provides for payment to be computed' at builder’s cost plus twelve per cent.

Having admitted that the contract was for cost-plus, the burden is on 2L Boats, Inc. to prove that the cost of the vessel was to be kept within the limit alleged. See also Annan v. Woods, 158 La. 663, 104 So. 491 (1925), rehearing denied, May 25, 1925; Rider v. Rhodes, 110 So.2d 834 (La.App. 1st Cir.1959).

The testimony reflects that the $780,000.00 quote was an estimate, not a bid price. Further, the record establishes that the estimate was based on a particular profile sketch, and was made before any discussions concerning modifications of the profile. Accordingly, we agree with the trial court that, taken as a whole, the evidence preponderates over 2L Boats, Inc.’s contention that a limit was placed on the cost of the vessel.

CONTRACTUAL OBLIGATIONS

2L Boats, Inc. asserts that the trial court erred in concluding that 2L Boats, Inc. had a contractual obligation to furnish Fred Settoon, Inc. with any permanent financing commitment other than to pay the price at delivery. The Reasons for Judgment do not reveal that such a finding was made. What the trial court found was that Liner refused to obligate himself to the personal guarantee required under the I.T.T. loan commitment obtained by 2L Boats, Inc. Further, it concluded that Liner’s refusal to sign the personal guarantee resulted in LeBlanc’s decision to withdraw 2L Boats, Inc. from the contract with Fred Settoon, Inc. These findings of fact do not indicate to us that the trial court was in any way making a determination of the contractual obligation of the parties with respect to financing the vessel.

Further, 2L Boats, Inc. complains that the trial court erred in failing to find that Fred Settoon, Inc. breached its contract by not furbishing any accounting for costs. We do not reach the merits of this argument because we find that 2L Boats, Inc. failed to place Fred Settoon, Inc. in default prior to 2L Boats, Inc.’s withdrawal from the contract. Once 2L Boats, Inc. withdrew from the contract and forfeited its deposit, there was no obligation on the part of Fred Settoon, Inc. to furnish the accounting. Andrew Development Corp. v. West Esplanade Corporation, 347 So.2d 210 (La.1977).

Lastly, 2L Boats, Inc. asserts that it is due damages for Fred Settoon, Inc.’s failure to deliver the vessel as per the contract. Because we conclude that 2L Boats, Inc. withdrew from the contract prior to time for delivery of the vessel, this assignment of error is without merit.

For the foregoing reasons, the judgment of the trial court is affirmed. Plaintiff is to pay all costs.

AFFIRMED.


text:
    WILTZ CORPORATION v. FRED SETTOON, INC.
    No. 83 CA 0004.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Rehearing Denied Nov. 22, 1983.
    Writ Denied Jan. 27, 1984.

      Joseph W. Nelkin and Warren J. Pickle, New Orleans, for plaintiff-appellant.
    Daniel J. Nail, Triche, Sternfels & Nail, Napoleonville, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Wiltz Corporation and Fred Settoon, Inc. appeal from a judgment awarding Wiltz Corporation the return of its deposit on a vessel construction contract and the sums it paid for equipment installed on the vessel.

Wiltz Corporation, plaintiff, is a corporation owned by Wiltz LeBlanc and his son, Herman. Its business is to supply crew boats and services for the oil and gas industry. Fred Settoon, Inc., defendant, is a corporation engaged in the business of building and repairing boats. Its principal officer and owner is Fred Settoon.

Wiltz Corporation contracted with Fred Settoon, Inc. for the building of a vessel for Wiltz Corporation. Pursuant thereto, Wiltz Corporation paid a $75,000.00 deposit.

During the course of construction, $21,-232.75 was expended for certain items purchased and installed in the vessel. This sum was billed directly to and paid by Wiltz Corporation.

Upon completion, Wiltz Corporation was notified that the vessel was ready for delivery at an additional cost of $812,012.67. The offer and tender of delivery was rejected by Wiltz Corporation as not being in accordance with the terms and conditions of the vessel construction contract. Subsequently, a meeting between the parties and their respective counsels was held to discuss the completed price of the vessel.

As a result of this meeting, Wiltz Le-Blanc had the vessel listed with a marine broker, and Fred Settoon went about trying to find a buyer. The vessel was finally sold by Fred Settoon, Inc. A check was issued to Wiltz Corporation for $21,232.75, representing those items previously purchased for the vessel and paid for by Wiltz Corporation. However, Fred Settoon, Inc. refused to reimburse Wiltz Corporation the $75,-000.00 deposit.

Wiltz Corporation sued Fred Settoon, Inc. for breach of contract, damages, and return of its deposit. Fred Settoon,' Inc. answered and reconvened, alleging it suffered a monetary loss from the boat’s sale to the other purchaser. Judgment was rendered ordering the return of deposit and the reimbursement of sums expended by Wiltz on the vessel. All remaining demands by both parties were rejected. From this judgment, Wiltz Corporation and Fred Settoon, Inc. appeal. However, Fred Settoon, Inc. appeals the judgment only insofar as it orders the return of the $75,000.00 deposit.

FRED SETTOON, INC.’S APPEAL

Fred Settoon, Inc. contends that the trial court erred in ordering the return of the $75,000.00 deposit by Wiltz Corporation. It asserts that no new contract was entered into and, thus, the deposit was earnest money which was forfeited when Wiltz Corporation defaulted on the contract.

The trial court determined that a meeting between the parties and their respective counsels on the issue of the price of the vessel resulted in an entirely new agreement. The trial court concluded that un-der this agreement the parties agreed that both would attempt to find a buyer for the vessel. The price sought was to be sufficient to relieve Wiltz Corporation of the responsibility of accepting the vessel, permit the return of its deposit and the sum paid for installed equipment, and pay off Fred Settoon, Inc.

Factual findings of the trial court are accorded great weight and should not be disturbed on review absent manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973). There is no error in these findings of fact by the trial court.

The testimony of Mr. Wiltz LeBlanc and Mr. Settoon reflects that both parties were going to try to sell the boat. Further, the exhibits confirm the fact that Mr. LeBlanc listed the vessel with a marine broker. In addition, there is uncontradicted testimony that although Mr. LeBlanc anticipated losing $50,000.00-$75,000.00 ($75,000.00 being the amount of the deposit), Mr. Settoon assured Mr. LeBlanc that he would not lose his deposit as a result of the sale.

In light of these facts, we conclude the trial court was correct in ordering the return of the $75,000.00 deposit to the Wiltz Corporation.

WILTZ CORPORATION’S APPEAL

Wiltz Corporation complains that the trial court erred in not finding that Fred Settoon, Inc. breached its contract by failing to furnish any accounting for costs. We do not reach the merits of this argument because we find that Wiltz Corporation failed to place Fred Settoon, Inc. in default therefor prior to entering into a new contractual arrangement to sell the boat to a third person. Once this new agreement was entered into, the duties owed under the construction contract were no longer applicable.

Further, Wiltz Corporation asserts that the trial court erred in not awarding it damages for Settoon’s failure to deliver the vessel as per the contract — that is, for a cost not to exceed $780,000.00. This argument encompasses Wiltz Corporation’s contention that the contract price, albeit a cost-plus contract, was not to exceed $780,000.00. However, the testimony and contract do not support this contention.

Mr. Wiltz LeBlanc, Herman LeBlanc, Liner (LeBlane’s boat broker), Settoon and Perera (Fred Settoon, Inc.’s office manager) all testified that the contract was on a cost-plus basis. Further, the written contract provides for payment to be computed as builder’s cost plus twelve per cent.

Having admitted that the contract was for cost-plus, the burden is on Wiltz Corporation to prove that the cost of the vessel was to be kept within the limit alleged. See also Annan v. Woods, 158 La. 663, 104 So. 491 (1925), rehearing denied, May 25, 1925; Rider v. Rhodes, 110 So.2d 834 (La.App. 1st Cir.1959).

The testimony reflects that the $780,-000.Q0 quote was an estimate, not a bid price. Further, the record establishes that the estimate was based on a particular profile sketch, and was made before any discussions concerning modifications of the profile. Accordingly, we agree with the trial court that, taken as a whole, the evidence preponderates over Wiltz Corporation’s contention that a limit was placed on the cost of the vessel.

Therefore, there was no unilateral breach of the contract by Fred Settoon, Inc. when it offered and tendered delivery of the vessel for $812,012.67. The trial court’s denial of damages under this assignment is correct.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs are to be shared by both appellants.

AFFIRMED.

      . This amount is in addition to the $75,000.00 deposit, the $21,232.75 paid for installed equipment, and $102,000.00 for the engines.

      . Our law recognizes that any contract may be later modified, abrogated or revoked by the consent of the parties. Further, a written contract may be modified by oral agreement, provided the original contract was not required by law to be in writing. Hornsby v. Ray, 327 So.2d 146 (La.App. 3rd Cir.1976), writ refused, 330 So.2d 293 and 330 So.2d 319.

      . Id.


author: SHORTESS, Judge.

text:
    Jerry STUCKEY v. NISSAN MOTOR CORPORATION IN U.S.A., et al.
    No. 83 CA 0005.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Rehearing Denied Nov. 22, 1983.
    Writs Denied Jan. 27, 1984.
    Arthur Cobb, Baton Rouge, for plaintiff-appellant Jerry Stuckey.
    Grayson Brown, New Orleans, for inter-venor-appellant Travelers Ins. Co.
    J. Walter Ward, New Orleans, for defendant-appellee Nissan Motors Corp. in U.S.A.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Plaintiff, Jerry Stuckey, filed this personal injury suit to recover damages resulting from an accident which occurred when a Datsun forklift struck him from behind and crushed both legs. Defendant, Nissan Industrial Equipment Company, is the importer and distributor of Datsun forklifts. After a jury trial, judgment was rendered in favor of defendant.

The accident occurred on March 14, 1979. Plaintiff was employed by Alpha Valve Company, a wellhead service company. He was assigned to load some equipment onto a Bell Machine Company truck. Frank Strange, Bell’s driver, was directed by plaintiff to a parking location, and plaintiff, using the forklift, began to load the truck. After some equipment was placed in the truck, plaintiff saw that Strange was having difficulty arranging the cargo. He got off the forklift and walked to the back of the truck to assist Strange. Unfortunately, the forklift struck plaintiff, crushing his legs between the truck and the forklift. Strange got off his truck, backed the forklift off of plaintiff, parked it in a shed, turned the motor off, engaged the brake, and went for help. Plaintiff collapsed and was taken to Schumpert Medical Center. He suffered extensive injuries to both legs.

A serious factual dispute exists in this case. Plaintiff and Strange are the only witnesses. Their versions differ significantly. Plaintiff testified that he placed the forklift completely inside the warehouse before getting down to help Strange because it was “misting rain,” and he did not want to get the seat wet. The warehouse floor is level concrete, but a downgrade concrete incline exists outside the building. Plaintiff said that he left the engine running, but he engaged the emergency brake and put the transmission in neutral before he got down. Plaintiff had operated the forklift for approximately one year and felt that he knew how to do so, but he had problems in the past finding neutral. He testified that he left the engine idling because he had trouble placing the forklift in neutral to start it. He felt that the machine jumped into gear because when he was pinned it kept surging and pushing against him.

Strange testified that when the accident occurred, he was in the back of his truck arranging his load so nothing would fall out; that plaintiff left at least the front wheels of the forklift on an incline; that he did not see the approaching forklift again until it struck plaintiff; that only a couple of seconds elapsed after he saw plaintiff at the back of his truck and felt the jar of the forklift; that he only sensed one bump against the truck; that he jumped off the truck, got on the forklift, and proceeded to move it off of plaintiff; that its engine was running in neutral; that its brake was not engaged; that its forks were raised; and that the weather was sunny and clear.

The evidence also revealed that an operator should take the following precautions before leaving a forklift: (1) lower the forks to the ground, (2) set the hand brake, and (3) turn the engine off. These instructions are specified in the operator’s manual. The deposition of Bobby Mabry, defendant’s field service manager, revealed that this model forklift has a control mechanism that keeps it from jumping into gear. Ma-bry stated that he had never received any complaints about this type forklift jumping into gear from neutral. Mabry further testified that a forklift left on level ground would probably not roll even if the engine was running; however, if left on an incline, it would tend to roll, and its weight would increase its velocity as it rolled.

As stated earlier, this controversy involves a factual dispute between plaintiff and Strange. Plaintiff’s version was that he left the forklift on the level concrete inside the warehouse and that he applied the brake. Plaintiff assumed that the transmission somehow jumped from neutral to forward which caused the forklift to roll out of the warehouse and down the ramp and strike him. Strange, on the other hand, contended that when plaintiff got off the forklift, it was on the incline; furthermore, he was sure that the engine was in neutral and that the brake was not engaged when he backed the forklift off of plaintiff.

The jury returned a verdict in favor of defendant. We must affirm its decision on the facts unless it is manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Obviously, the jury accepted Strange’s version, i.e., that plaintiff left the forklift in neutral on an incline without engaging the brake. The record contains ample evidence to support that verdict.

Plaintiffs primary specification of error was that the trial court erred in reading a charge on contributory negligence as a defense to strict products liability to the jury. Plaintiff’s theory of the case was that the forklift was defective; otherwise, it would not have rolled out of the warehouse. The case was given to the jury with a general verdict form. The verdict returned said, in part:

(1) We, the jury in the above captioned matter, find in favor of defendant, NISSAN INDUSTRIAL EQUIPMENT COMPANY. _X_ YES _ NO

When a general verdict is used, it is presumed that the jury resolved all factual disputes in favor of the prevailing party. Steinbach v. Barfield, 428 So.2d 915 (La.App. 1st Cir.1983), writ denied, 435 So.2d 431 (La.1983); Tauzin v. Claitor, 417 So.2d 1304 (La.App. 1st Cir.1982), writ denied, 422 So.2d 423 (La.1982). Among the factual disputes decided against the plaintiff were findings that there were no defects and no fault on the part of the defendant.

For all these reasons, the judgment of the trial court is correct, and it is affirmed at plaintiff’s costs.

AFFIRMED.

      . Nissan Motor Corporation in U.S.A. was named as a defendant in the original petition. Plaintiff amended his petition to add Nissan Industrial Equipment Corporation as a party defendant. Defendant’s correct name is Nissan Industrial Equipment Company. Additional defendants included: Nissan’s liability insurer; AF Enterprises, Inc.; AF Enterprises, Inc.’s liability insurer; Mr. Maintenance Repairer; President Billy Farrar; General Manager Warren Goins; Supervisor Eric Henkel; Mr. Pick Up Driver; Bell Machine Company, Inc.; Commercial Union Insurance Company; The Insurer of The Datsun Forklift; and The Travelers Insurance Company.
      Defendants Billy Farrar, Warren Goins, Eric Henkel and The Travelers Insurance Company were dismissed from the suit on exceptions of no cause of action. Bell Machine Company and Frank Strange, the pickup driver for Bell Machine Company, were released on a motion for summary judgment. Nissan Motor Corporation in U.S.A. was dismissed on a motion for summary judgment.
      Travelers Insurance Company intervened seeking reimbursement out of the proceeds of any judgment for workers’ compensation benefits paid to plaintiff.
      Nissan Industrial Equipment Company filed a declinatory exception of insufficiency of citation and of service of process. After proper service of process, Nissan Industrial Equipment Company filed a peremptory exception of prescription. The trial judge overruled this exception. The only remaining defendant is Nissan Industrial Equipment Company.

      . This version is the most charitable to plaintiff. After cross examination was completed, Strange had committed himself to seeing the forklift parked on the incline. He saw plaintiff get off the forklift when it was so parked.

      . This deposition was read to the jury.


text:
    Xavier SMITH v. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY, et al.
    No. 83 CA 0018.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Rehearing Denied Nov. 22, 1983.
    Writ Denied Jan. 27, 1984.

      Charles M. Hughes of Talley, Anthony, Hughes & Knight, Bogalusa, for plaintiff-appellant.
    Jerome Friedman, Metairie, for defendant-appellant Louisiana Farm Bureau Mut. Ins. Co.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Defendant, Louisiana Farm Bureau Mutual Insurance Company, appeals the trial court’s determination of its liability arising out of an automobile accident involving one of its insureds, Elizabeth Campbell, and plaintiff, Xavier Smith.

On February 25, 1980, plaintiff was traveling east on West Olive Street in Amite, Louisiana. Upon arriving at the intersection of West Olive Street and Second Street, a four-way stop, plaintiff stopped. After stopping, plaintiff looked left, then right, and then left again while proceeding into the intersection. He testified that when he first looked left, he observed a vehicle approaching at a good rate of speed. Upon looking left the second time, plaintiff determined that the driver of the other vehicle was apparently not going to stop for the stop sign. Plaintiff’s daughter, Miss Dorothy Hines, testified to these same facts.

The investigating officer, Allen Eugene Miller, stated Mrs. Campbell skidded approximately 13 feet. Mrs. Campbell was ticketed for running a stop sign and excessive speed.

The trial court found Mrs. Campbell negligent and awarded plaintiff damages in the amount of $16,698.60. This award covered general damages, medical expenses, fair market value of plaintiff’s car, and a wrecker charge.

Defendant asserts the trial court erred in finding that this accident was caused solely and entirely by the negligence of Mrs. Elizabeth Campbell and in failing to find that plaintiff was contributorily negligent. Plaintiff asserts the trial court erred in the quantum of the general damage award.

Defendant admits in brief that its insured, Elizabeth Campbell, was negligent in causing the damages sustained. However, it asserts that plaintiff’s actions constitute contributory negligence, sufficient to bar his recovery.

The question of whether the plaintiff’s actions were reasonable in light of the circumstances of the case is one of fact. Thibodaux v. Potomac Insurance Company, 201 So.2d 159 (La.App. 1st Cir.1967). This court must give great weight to the factual conclusions reached by the trier of fact, Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), and may not substitute our own evaluations and inferences for the reasonable evaluations and inferences of the trier of fact, unless those conclusions are clearly erroneous. Abadie v. Morales, 391 So.2d 974 (La.App. 4th Cir.1980); and Esta v. Dover Corporation, 385 So.2d 439 (La.App. 1st Cir.), writ denied, 392 So.2d 690 (La.1980).

In this instance, the trial court found as a matter of fact, that the plaintiff had complied with the law by stopping at the stop sign and looking in both directions. He further stated that there was no evidence to indicate that Elizabeth Campbell would not stop until plaintiff had almost crossed the intersection. Upon a thorough review of the record, we find that the trial court’s conclusions are supported by the record. Accordingly, we find defendant’s contention that the plaintiff was contributorily negligent is without merit.

Plaintiff asserts that the trial court erred in awarding only $14,500.00 in general damages. He cites Clements v. Allstate Insurance Company, 383 So.2d 1375 (La.App. 4th Cir.), writ denied, 385 So.2d 793 (La.1980) and Billeaud v. United States Fidelity & Guaranty Company, 349 So.2d 1379 (La.App. 3rd Cir.1977) in support of his contention.

In Clements, supra, $20,000.00 was awarded to a plaintiff who sustained rib fractures and a cervical strain resulting in continued muscle spasms in an automobile accident. In Billeaud, supra, the jury gave an award of $17,081.12 to a 78-year old man who sustained two fractured ribs, a bruised thigh, and a bruised kidney. Plaintiff asserts that Billeaud, supra, closely approximates the injuries sustained here and is more indicative of the amount of award that plaintiff should have received in the instant case.

The record reflects that plaintiff received fractures of the left sixth through the twelfth ribs, with a separation of fracture fragments. He also developed a hematoma on his left chest wall over the fractured ribs. At the time of trial, it appeared that the plaintiff was able to get around and suffered only minor discomfort. Additionally, plaintiff’s mental attitude was good. We note that there are great psychological and physiological differences in the plaintiffs in Billeaud, supra, and the instant case such as to make Billeaud, supra, inapplicable here.

The trial court is given great discretion in awarding damages and will not be reversed absent clear error. L.S.A.-C.C. art. 1934(3); Perniciaro v. Brinch, 384 So.2d 392 (La.1980); and Circello v. Government Employees Insurance Company, 425 So.2d 239 (La.App. 1st Cir.1982). We find that the trial court did not abuse its discretion in its award to the plaintiff. See Richard v. Guillory, 392 So.2d 777 (La.App. 3rd Cir.1980).

For the above and foregoing reasons, judgment of the trial court is affirmed. Costs of this appeal should be borne equally by both parties.

AFFIRMED.


author: ALFORD, Judge.

text:
    Morris BANKS v. CARL OTT POLES AND PILING, INC., et al.
    No. 83 CA 0021.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Rehearing Denied Nov. 22, 1983.

      Daniel E. Becnel, Jr., Reserve, for plaintiff-appellant.
    Charles M. Hughes, Bogalusa, for defendants-appellees.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

Morris Banks filed suit against his alleged employer, Carl Ott Poles and Piling, Inc. (Carl Ott Poles) and its workmen’s compensation insurer, Georgia Casualty and Surety Company, seeking recovery under the Louisiana Workmen’s Compensation Act (La.R.S. 23:1021, et seq.) for an injury he received while working in Louisiana.

The defendants responded to plaintiff’s petition by filing exceptions to jurisdiction, no cause of action, no right of action and res judicata. Additionally, in the same pleadings, defendants filed an answer generally denying plaintiff’s assertions. The trial court agreed with defendants and dismissed the suit for lack of jurisdiction. Plaintiff appeals this decision.

The record reflects that only the exception to jurisdiction was maintained. However, the record does not reflect whether the exception was maintained based upon a lack of jurisdiction over the person or over the subject matter.

In this respect, it is significant to note that the defendants have apparently waived any objections to jurisdiction over the person by filing the peremptory exceptions and the answer as noted above. That is, defendants filed peremptory exceptions to plaintiff’s petition which were not required by law to have been filed with the declinatory exception to jurisdiction. Thus, the court feels the defendants have made a general appearance which subjects them to the jurisdiction of the court. La.C.C.P. articles 6 and 7. It is also noteworthy that defendants’ brief on appeal is limited to the question of whether the trial court has jurisdiction over the subject matter. The defendants do not address the question of jurisdiction over the person.

Accordingly, it is our opinion that the exception to jurisdiction maintained by the trial judge was over the subject matter involved. It is well settled that the jurisdiction of a court over the subject matter of an action cannot be conferred by consent of the parties. La.C.C.P. art. 3. Hence, the single issue before this court on appeal is whether the trial court has subject matter jurisdiction over this litigation.

In his petition, plaintiff made the following pertinent allegations: (1) plaintiff is a Mississippi resident; (2) Carl Ott Poles is a foreign corporation doing business in the state of Louisiana; (3) Plaintiff was injured in Louisiana; and (4) the accident occurred on January 23, 1982, while plaintiff was in the course and scope of his employment as a “debarker” for Carl Ott Poles when the debarking machine plaintiff was operating jammed. While attempting to free the machine, plaintiff injured his back.

Lack of jurisdiction over the subject matter does not appear on the face of plaintiff’s petition. Indeed, the present weight of authority is clearly in plaintiff’s favor. In Malone and Johnson’s treatise on Worker’s Compensation Law at section 404 is found the following:

It does not appear that Louisiana courts have ever hesitated to apply Louisiana law to an injury occurring within the state, regardless of the competing interests of other states in which the contract of employment might have been made or the business principally localized. ... [T]his state’s preference for its own law has clear federal constitutional support, and seems never to have been seriously questioned.
Subsequent cases have shown no major deviation from this principle, applying Louisiana law to accidents occurring here even in instances when both the contract of employment and the domicile of the employee and the employer are out-of-state. (Footnotes omitted)

The jurisprudence is also clear that where the accident occurs in Louisiana, the courts of this state may exercise subject matter jurisdiction even though the employment contract is confected outside of Louisiana and the plaintiff and defendant are non-residents. Morrison v. H.B. Mitchell Construction Company, 369 So.2d 1102 (La.App. 1st Cir.1979); Johnson v. El Dorado Creosoting Co., 71 So.2d 613 (La.App. 2nd Cir.1954), writ granted, no further history.

More importantly, we agree that the courts in Louisiana should have subject matter jurisdiction over cases of this nature. Few matters could be deemed more appropriately the concern of the state in which the injury occurs or more completely within its power than the bodily safety and economic protection of employees injured within it.

Additionally, since the lack of jurisdiction over the subject matters does not appear on the face of the petition, the burden was on the defendants to offer evidence in support of their exception. La.C.C.P. art. 930; Morrison, 369 So.2d at 1103. Yet the record does not reflect that the defendants offered any evidence in support of their position. The court, therefore, was restricted to the allegations of the petition, which for purposes of the exception are to be accepted as true. Morrison, 369 So.2d at 1103; See also State ex rel. Brenner v. Noe, 186 La. 102, 171 So. 708 (1936).

Thus, when one reads plaintiff’s petition in light of the scholarly and jurisprudential authority noted above, one must conclude that the trial court has subject matter jurisdiction over this controversy. Accordingly, the judgment of the trial court is reversed and the case is remanded for further proceedings. All costs relating to this appeal are to be borne by appellees. All other costs are to await a final determination on the merits.

REVERSED AND REMANDED.

      . Defendant’s labeled their exception to jurisdiction as peremptory. However, as La.C.C.P. art. 926 makes clear, the exception to jurisdiction is declinatory.

      . Malone I. Johnson, Worker’s Compensation Law and Practice, § 404 (1980).


author: LANIER, Judge.

text:
    Frances Peco KETCHER, et al. v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, et al.
    No. 83 CA 0022.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Rehearing Denied Nov. 22, 1983.
    Writs Denied Jan. 27, 1984.

      Stephen C. Sledge, Hammond, for plaintiff-appellant Frances Peco Ketcher.
    Wilfred H. Boudreaux, New Orleans, for plaintiffs-appellants Angelina Michel, Victor Michel, Jr., Bernadette Michel Courcelle and David Michel.
    H. Martin Hunley, Jr., David Kelly, New Orleans, for defendants-appellees Illinois Central Gulf R.R., Nat. R.R. Passenger Corp. a/k/a Amtrak, and J.E. Newman.
    Charles G. Walker, Hammond, for defendant-appellee Tangipahoa Parish Port Com’n.
    Iddo Pittman, Jr., Hammond, for third party defendant-appellee B.F. Diamond Const. Co.
    Charles M. Hughes, Bogalusa, for interve-nor-appellant Aetna Cas. & Sur. Co.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This is a suit for damages in tort arising from a train-truck collision. The suit was instituted by the surviving wife of Bobby Junior Ketcher, the driver of the truck, and the surviving wife and three major children of Victor J. Michel, Sr., a guest passenger in the truck. Made defendants were the Illinois Central Gulf Railroad Company (ICG), National Railroad Passenger Corporation (Amtrak), J.E. Newman (the engineer on the train) and the South Tangipa-hoa Parish Port Commission (Port). Aetna Casualty & Surety Company (Aetna) intervened for indemnification as the workmen’s compensation insurer of B. & F. Diamond Construction Company, Inc. (B. & F.), the employer of Ketcher and Michel. This matter proceeded as a jury trial for ICG, Amtrak and J.E. Newman, and as a judge trial for the Port. The jury (by a vote of 10-2) found that ICG, Amtrak and Newman were not negligent. The trial judge determined that the Port was not negligent and rendered judgment against the plaintiffs in accordance with his and the jury’s findings. These devolutive appeals followed.

FACTS

The Port operates facilities on the north side of North Pass Manchac in Tangipahoa Parish, Louisiana. Immediately to the west of this port property, ICG maintains a main line and a spur line each running in a north south direction. Immediately to the west of the ICG railroad tracks are the old U.S. Highway 51 roadbed and an 1-55 highway service road which also run in a north south direction.

In 1967, to secure access from their North Pass Manchac property to the nearby highways, the Port executed a license agreement with ICG for a private grade crossing over the ICG tracks. Part of this agreement required the Port to indemnify and hold ICG harmless from all liability connected with the crossing. This crossing became known as the North Pass Crossing and the roadway was known as the Port Commission road.

Prior to January 13, 1977, B. & P. leased a portion of the Port property for use in construction projects in which it was involved. This leased site was on the Port Commission road several hundred feet east of the North Pass Crossing.

On January 13, 1977, Bobby Junior Ketcher and Victor J. Michel, Sr. were employees of B. & F. working on or near the property leased by B. & F. from the Port. At approximately 3:00 P.M., Ketcher and Michel stopped their work and left the B. & F. construction site in a 1973 GMC pickup truck owned and operated by Ketcher. Ketcher drove this vehicle in a westerly direction on the Port Commission road. At this same time and place, J.E. Newman was operating Amtrak Train No. 59, Engine 627, in a southerly direction on the ICG main line. William M. Hale was the fireman on the train and Elmer D. Newman was the conductor. There was a collision between the Amtrak train and the Ketcher truck at the North Pass Crossing. Michel was killed almost instantly. Ketcher died eighteen days later.

NEGLIGENCE OF ICG, AMTRAK, J.E. NEWMAN AND THE PORT

The Michel heirs and Aetna contend that the factual findings of no negligence by the jury and the trial judge are in error and should be reversed but do not specify in what manner these findings are factually incorrect. Mrs. Ketcher did not assign as error the jury verdicts or the trial judge’s ruling. Since these issues were not raised by Mrs. Ketcher in a specification of error in her brief, this court will consider those issues abandoned by her and will not review them in this appeal. Oh v. Allstate Insurance Company, 428 So.2d 1078 (La.App. 1st Cir.1983); Harrison v. South Central Bell Telephone Company, 390 So.2d 219 (La.App. 3rd Cir.1980), writ denied, 396 So.2d 900 (La.1981); Rule 1-3, Uniform Rules, Courts of Appeal.

J.E. Newman, the engineer on the Amtrak train, testified that he was proceeding in a southerly direction on the ICG main line at a speed of 79 miles per hour in accordance with ICG’s operating rules. There was visibility of one and one-half to two miles. When the train was 2000 feet from the North Pass Crossing, Newman commenced ringing the train’s bell and giving a crossing signal on its whistle (two long blasts, a short blast and then a long blast). The train also had a fixed headlight which was turned on and an oscillating headlight which was turned on. When the train was approximately 400 feet from the crossing, Newman observed Ketcher’s truck about 20 to 25 feet from the crossing approaching from Newman’s left at a slow rate of speed. Upon seeing the truck, Newman gave a stock alarm — a series of short blasts of the train’s whistle to attract the attention of the truck’s driver. Newman testified that as slow as the truck was going it could have stopped at anytime before reaching the track, and he assumed that it would do so. When the train was approximately 100 to 140 feet from the intersection, Newman observed the truck proceed onto the tracks and stall on the main line. He immediately went into emergency status and applied the emergency brakes. The train collided with the truck and came to rest about one-half mile from the point of collision. The testimony of the train’s fireman, William M. Hale, corroborated the testimony of Newman.

The plaintiffs called as witnesses Michael Hebert and Raymond Bates who testified that they were working at the B. & F. construction site several hundred feet east of the point of collision and, although they heard the roar of the train, neither could recall hearing a bell, whistle or horn of the train prior to collision. Elmer Newman, the train’s conductor, testified that he did not hear the train’s horn. His testimony is of little significance since he was in the sixth car at the time of collision and admitted that he could not have heard the horn even if it had been blown. This testimony was offered by the plaintiffs to show that Newman was in violation of La.R.S. 45:561 by failing to sound a bell, whistle or horn for a distance of not less than 300 yards before the crossing was reached.

A special interrogatory was not submitted to the jury to resolve the conflict between the Newman-Hale and Hebert-Bates testimonies. Since the jury rendered a general verdict finding no negligence, it is presumed that it resolved this factual dispute in favor of the defendants. Steinbach v. Barfield, 428 So.2d 915 (La.App. 1st Cir.1983), writ denied, 435 So.2d 431 (La.1983); Tauzin v. Claitor, 417 So.2d 1304 (La.App. 1st Cir.1982), writ denied, 422 So.2d 423 (La.1982).

There is no evidence of record to show that the train’s speed of 79 miles per hour was in violation of any federal, state or local law, ordinance or regulation. Instead, the evidence indicates that the train’s speed was in accordance with ICG regulations.

Dr. Olin K. Dart, Jr., an expert in traffic engineering and safety, testified that the North Pass Crossing was not an unreasonably dangerous crossing. He based his opinion on the facts that the Port Commission road was a low volume of traffic road, there was visibility exceeding one mile in either direction up and down the track from the crossing and the crossing was not a highway speed crossing but was a shelled private access road.

The operator of a railroad train may presume that a vehicle approaching the track at a crossing will stop in time to avoid an accident. The train crew is not required to attempt to stop or even to prepare to stop unless there is reason to believe the motorist is unaware of the oncoming train or does not intend to stop. Likewise, the operator of a train may assume that a motorist who starts across the track at a crossing will proceed across the track and will not stop on the track. Wheat v. New Orleans and Northeastern Railroad Company, 245 La. 1099, 163 So.2d 65 (1964); Fisher v. Walters, 415 So.2d 343 (La.App. 2nd Cir.1982), rev’d on other grounds 428 So.2d 431 (La.1983); Kaplan v. Missouri-Pacific Railroad Company, 409 So.2d 298 (La.App. 3rd Cir.1981). Under the law, the train’s engineer had the right to assume that Ketcher would either stop his vehicle before crossing the tracks or would continue across the tracks until he reached a point of safety. When Ketcher’s vehicle stalled on the main line, the engineer immediately commenced emergency procedures but to no avail. The testimony of Professor Robert MacRae, an expert in the performance of braking systems, indicates that even if the train had been going at a substantially slower speed emergency braking would not have avoided the collision.

Considering all of these facts and circumstances, we cannot say that the rulings of the jury and trial court were clearly wrong. Arceneaux v. Domingue, 365 So.2d, 1330 (La.1978).

JURY INSTRUCTION ON NEGLIGENCE PER SE

All of the appellants contend that the trial court committed error by not instructing the jury that the failure to sound a bell, whistle or horn by a train as required by La.R.S. 45:561 is negligence per se. As authority for this proposition, the appellants cite Bertrand v. Missouri Pacific Railroad Company, 160 So.2d 19 (La.App. 3rd Cir.1964), writ refused, 245 La. 1075, 162 So.2d 571 (1964) and Watson v. Illinois Central Gulf Railroad, 355 So.2d 1366 (La.App. 1st Cir.1978), writ denied, 357 So.2d 1168 (La.1978).

The Louisiana Supreme Court and this court have rejected the concept that violation of a statute is negligence per se which renders a defendant liable to a plaintiff. Boyer v. Johnson, 360 So.2d 1164 (La. 1978); Weber v. Phoenix Assurance Company of New York, 273 So.2d 30 (La.1978); Knockum v. Amoco Oil Company, 402 So.2d 90 (La.App. 1st Cir.1981), writ denied, 409 So.2d 616 (La.1981); Broyles v. Yarbrough, 374 So.2d 705 (La.App. 1st Cir.1979), writ denied, 380 So.2d 71 (La.1980). See also Lee v. Louisiana Transit Company, Inc., 414 So.2d 838 (La.App. 4th Cir.1982) and Martinez v. Modenbach, 396 So.2d 471 (La.App. 4th Cir.1981), writ denied, 399 So.2d 620 (La.1981). Rather, when the duty upon which a plaintiff relies is based upon a statute, the court must inquire into whether or not the risk which caused the plaintiff’s injuries was included within the ambit of protection of the statutory duty. Carter v. City Parish Government of East Baton Rouge, 423 So.2d 1080 (La.1982). There are instances where the violation of a statutory duty is not negligence. Laird v. Travelers Insurance Company, 263 La. 199, 267 So.2d 714 (1972).

The ruling of the trial court rejecting the proposed instruction on negligence per se was correct.

EVIDENCE ON ABSENCE OF OTHER ACCIDENTS

Mrs. Ketcher contends that the trial court committed error when it allowed T.M. Martin, a claims agent for ICG, to testify that he did not know of any other accidents occurring at the North Pass Crossing. The Michel heirs and Aetna did not complain about this ruling in an assignment of error in their briefs and it is considered abandoned insofar as they are concerned.

In their petition, the plaintiffs contended that the defendants were negligent, in part, because the North Pass Crossing was dangerous since adequate warning devices were not installed (the crossing only had a “cross-buck” warning sign), underbrush had not been cleared in the vicinity of the crossing and a flagman was not stationed at the crossing. The plaintiffs introduced evidence attempting to prove these allegations. In rebuttal to this evidence, the defendants offered the contested evidence of absence of prior accidents. The plaintiffs contend that this evidence is not relevant. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. State v. Ludwig, 423 So.2d 1073 (La.1982). Whether evidence is relevant is within the discretion of the trial judge and his ruling will not be disturbed on appeal in the absence of a clear abuse of this discretion. State v. Chaney, 423 So.2d 1092 (La.1982).

It appears well-settled that evidence of prior accidents is admissible for the limited purpose of showing the dangerous nature of the thing or place which caused injury and the knowledge of the defendant of the dangerous condition. See, for example, Wilson v. Aetna Casualty and Surety Company, 401 So.2d 500 (La.App. 2nd Cir.1981); Keen v. Pel State Oil Company, Incorporated, 395 So.2d 866 (La.App. 2nd Cir.1981), writ denied, 401 So.2d 355 (La.1981); Miller v. Employers Mutual Liability Insurance Company of Wisconsin, 349 So.2d 1353 (La.App. 2nd Cir.1977), writ denied, 352 So.2d 235 (La.1977); Shively v. Pickens, 346 So.2d 1314 (La.App. 3rd Cir. 1977). In Cassanova v. Paramount-Richards Theatres, 204 La. 813, 16 So.2d 444 (1943), the plaintiff sustained injury when her foot went into a space between the end of a row and the edge of a step in a theatre while descending the aisle-stairway causing her to fall. In the trial court, the manager of the theatre was allowed to testify that during the fifteen years since its construction no complaint had ever been made of a similar accident. On original hearing, the Louisiana Supreme Court held that the absence of other accidents at the place of an alleged defect is not admissible because such evidence raises collateral issues and has no reasonable tendency to prove that such place of injury was free from danger. However, in a per curiam opinion refusing a rehearing, the court considered the evidence of absence of prior accidents and nevertheless concluded that the operator of the thea-tre by exercising ordinary care and foresight could have and should have anticipated that a patron would step into the opening and fall. In several court of appeal opinions, where evidence of absence of other accidents was admitted in the trial court without objection, such evidence was considered relevant for the limited purposes of determining the condition of the thing or premises and the lack of knowledge of the defendant. However, these opinions also indicate that such evidence is not conclusive. Jones v. Recreation and Park Commission of Parish of East Baton Rouge, 395 So.2d 846 (La.App. 1st Cir.1981); Benedetto v. Travelers Insurance Company, 172 So.2d 354 (La.App. 4th Cir.1965), application denied, 247 La. 872, 175 So.2d 108 (1965); Magoni v. Wells, 154 So.2d 524 (La.App. 4th Cir.1963), writ refused, 245 La. 58, 156 So.2d 602 (1963); Scott v. Fair Grounds Corporation, 112 So.2d 763 (La.App.Orl.1959); McQuillan v. City of New Orleans, 18 So.2d 218 (La.App.Orl.1944); Sistrunk v. Audubon Park Natatorium, 164 So. 667 (La.App.Orl.1935). The weight of authority in the United States is that evidence of the absence of other accidents at the same place is relevant and admissible as tending to show that the place was not dangerous and that the defendant did not have actual or constructive knowledge of a dangerous condition. 29 Am.Jur.2d Evidence, § 310 et seq. (1964); Annot., 31 A.L.R.2d 190 (1953); 1 S. Garde, Jones on Evidence, § 4:22 (6th ed. 1972); E. Cleary, McCormick’s Handbook of the Law of Evidence, § 200, pp. 476-478 (2nd ed. 1972). Thus, in Wollaston v. Burlington Northern, Inc., 612 P.2d 1277 (Mont.1980), a suit arising out of a train-automobile collision and factually similar to the instant case, evidence of whether there had been prior accidents at a railroad crossing was determined to be relevant on the issue of whether additional protection for the crossing was needed.

We cannot say that the trial judge abused his discretion by allowing the defendants to introduce evidence of absence of other accidents at the North Pass Crossing under the facts and circumstances of this case. This specification of error is without merit.

MOOT ISSUES

The Michel heirs and Aetna contend that the trial court committed error by submitting the question of Victor Michel, Sr.’s contributory negligence to the jury in an interrogatory, by not granting a directed verdict in favor of Michel on this point and by submitting an instruction to the jury on the doctrine of last clear chance as it pertained to Michel. Because the jury determined that the defendants were not negligent, it did not act upon the question of the contributory negligence of Michel or the application of last clear chance to his situation. Since we have determined that the jury’s verdict was correct, these alleged errors are no longer pertinent to these proceedings and are moot.

Even if the trial court committed the errors herein alleged, a remand for a new trial would not be granted. Even though a trial court has committed error, where the trial court record is complete, an appellate court should render judgment on the record if it can without a remand. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975). Usually, a remand will be granted only where a view of the witnesses is essential to a fair resolution of conflicting evidence. Ragas v. Argonaut Southwest Insurance Co., 388 So.2d 707 (La.1980).

CONCLUSION

For the foregoing reasons, the judgment of the trial court is correct and is affirmed. The appellants are cast for all costs of this appeal.

AFFIRMED.

      . Frances Peco Ketcher.

      . Angelina Michel, Victor Michel, Jr., Bernadette Michel Courcelle and David Michel.

      . The Port is a public agency. La.R.S. 34:1951 et seq.; La.R.S. 13:5105. By stipulation between the parties and judgment of the court, the third party demands of ICG and Amtrak against the Port and the third party demand by the Port against B. & F. and its insurer were deferred for later disposition by the court.

      .Mrs. Ketcher, the Michel heirs and Aetna each separately appealed. Aetna adopted the assignments of error asserted by the Michel heirs. There is only one common assignment of error between Mrs. Ketcher and the Michel heirs.

      . This statute was repealed by Act 669 of 1982 and reenacted as La.R.S. 32:168.


author: SAVOIE, Judge. COVINGTON, Judge,

text:
    Mary McCASTLE, et al. v. ROLLINS ENVIRONMENTAL SERVICES OF LOUISIANA, INC., et al.
    No. 83 CA 0027.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Rehearing Denied Nov. 22, 1983.

      Stephen Irving, Dennis Whalen, Baton Rouge, for plaintiff-appellant Mary McCas-tle.
    Walter J. Hryszko, New Orleans, for defendant-appellee Exxon Corp.
    Wallace Hunter, Baton Rouge, for defendant-appellee Rollins Environmental Services of La. Inc., Rollins Environmental Services (LA) Inc., Charles Callicott.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

The plaintiffs, Mary McCastle and nine other persons, brought this suit as a class action against Rollins Environmental Services of Louisiana, Inc. and others seeking damages allegedly sustained from the release of odors and fumes from the defendant’s “land farm operations” chemical waste disposal site. Included among the defendants was Exxon Corporation, appel-lee in this instance. Exxon was included as a defendant due to its alleged use of the Rollins’ “land farm operations.” The defendant filed a peremptory exception opposing the use of the class action in these circumstances. The trial court sustained the exception and dismissed the plaintiffs’ suit.

Plaintiffs have appealed, asserting that the trial court erred in refusing to certify the class to (1) determine liability for damages resulting from odors and fumes emitted from the Rollins site, and (2) grant injunctive relief prohibiting Rollins from emitting such odors.

As to assignment of error number two, injunctive relief was never sought against Exxon since the “land farm operations” were owned and operated by Rollins. Accordingly, the sole issue before this Court is whether the trial court erred in granting defendant’s peremptory exception of improper use of a class action and refusing to certify this tort litigation as a class action. We are of the opinion that it did not.

Our Supreme Court in Stevens v. Board of Trustees of Police Pension Fund of City of Shreveport, 309 So.2d 144 (La.1975) enunciated the criteria to be used in making the determination of the availability of the class action procedure found in L.S.A.-C. C.P. art. 591, et seq. It did so to resolve a conflict among the various circuits regarding such criteria. Further refining of these criteria was effected in Williams v. State, 350 So.2d 131 (La.1977) and State ex rel. Guste v. General Motors Corporation, 370 So.2d 477 (La.1979).

L.S.A.-C.C.P. arts. 591(1) and 592 provide that the class action procedure is available when the following requirements are present: (1) a class so numerous that join-der is impractical; (2) the joinder as parties to the suit of one or more parties who are (a) members of the class, and (b) so situated as to provide adequate representation for absent members of the class; and (3) a common character between the rights of the representatives of the class and the absent members of the class.

When, as in the instant case, it appears that the first two requirements are met, the relevant inquiry becomes whether “the character of the right sought to be enforced ... is ... common to all members of the class”, L.S.A.-C.C.P. art. 591, which is not to be answered merely by a finding that there are common questions of law or fact. Williams, supra, at 133. The concerns involved in the determination that a common character exists, enunciated by the court in Stevens, supra, were:

“In determining how the legislature intended the courts to define and apply the concept of allowing a class action to enforce rights with a common character, we are mindful of the basic goals or aims of any procedural device: to implement the substantive law, and to implement that law in a manner which will provide maximum fairness to all parties with a minimum expenditure of judicial effort. Implicit, then, in decisions that rights are of a common character is a consideration of the extent to which a clear legislative policy might be thwarted, or hampered in its implementation, by the lack of availability of the class action device.
“But this does not end the inquiry. Fairness to the parties demands at the least that the relationship between the claims of members of the class should be examined to determine whether it would be unfair to require separate adjudications, for instance, the courts should consider the precedential value of the first decision, as well as the extent of injustice that will be produced by inconsistent judgments in separate actions. Another factor to be considered, for example, is the size of the claims of the absent members of the class, for the greater the claim, the greater the interest of its owner in prosecuting it in a separate action.”

The proposed class in this instance is comprised of approximately four thousand persons. As many separate suits would certainly pose a significant risk of inconsistent adjudications. Further, earlier separate determinations might be prejudicial to subsequent separate litigation. However, as the plaintiffs have claimed that the defendant has committed 129 separate acts violative of these four thousand persons, and separate examinations would be required to establish liability and damage to each, we find the court would not be unduly burdened by separate suits. Guste, supra. Accordingly, the first criterion preponderates toward not certifying the class.

Our second consideration is whether the prosecution of separate actions would pose a serious threat of substantially impeding the ability of class members to protect their interests. Here, while there is a claim that this purported class is particularly impoverished or isolated, it should be noted that each plaintiff seeks damages in the amount of $1,290,000.00. As such, the members of the purported class have a vital interest in controlling their own litigation. Ouellette v. International Paper Company, 86 F.R.D. 476 (D.Vt.1980). Accordingly, we find that this criterion also preponderates toward not certifying the class.

Thirdly, we must consider whether the defendant will resist liability based upon defenses generally applicable to the entire class. Defendant contends that the number of incidents alleged and numerous plaintiffs make it impossible for it to determine any possible defenses until each plaintiff has been questioned. We find that the reasons for defendant resisting liability will not generally be applicable to the entire class. Finding such to be true, plaintiffs have failed to meet the third criterion for securing class certification.

The fourth consideration is whether the questions of law and fact are common to all the class members. In the instant case, plaintiffs allege 129 separate incidents of a release of odors and fumes. While our courts have extended the penumbra of class action to “mass tort” claims, such cases have dealt with a single act of negligence or single tragic happening. See Livingston Parish Police Jury v. Illinois Central Gulf Railroad Company, 432 So.2d 1027 (La.App. 1st Cir.1983); and Millet v. Rollins Environmental Services of Louisiana, Inc., 428 So.2d 1075 (La.App. 1st Cir.1983).

In Yandle v. P.P.G. Industries, Inc., 65 F.R.D. 566 (E.D.Tex.1974), the court denied class certification because there were varying periods of exposure to varying concentrations of the pollutant (i.e., asbestos). It stated:

“This case is very different from the single mass accident cases that have in the past allowed a class action to proceed on the liability issues. Those cases have normally involved a single tragic happening which caused physical harm or property damage to a group of people, and affirmative defenses are absent. Usually, one set of operative facts will establish liability. Here we have two lawsuits covering a ten year span of time in which the nine defendants acted differently at different times. The Court is in agreement with the defendant that there is not a single act of negligence or proximate cause which would apply to each potential class member and each defendant in this case.”

In short, the uncommon question bearing on defendant’s liability to each class member is predominant. Viewed another way, the class to whom the defendant would be liable cannot be defined without separate trials on the liability issues.

In Boring v. Medusa Portland Cement Co., 63 F.R.D. 78 (M.D.Pa.), appeal dismissed, 505 F.2d 729 (3rd Cir.1974), class certification was sought by nearby residents of the defendant corporation’s operations. Plaintiffs alleged that the defendants released contaminants into the air. Observing that the only common fact alleged by the claims of the proposed class was that their damages were caused by the same source, class certification was denied. Here, as there, we find this to be true. While we are of the opinion that the defendant owes a substantial duty not to release odors or fumes into the air which cause damage, we find such duty does .not predominate over the multitudinous questions presented by 129 separate incidents each involving 4,000 possible plaintiffs. Thus, plaintiffs have also failed to meet the fourth criterion.

Our final consideration is whether the class action is the superior procedural vehicle for a fair and efficient adjudication of the controversy. Four factors must be considered in such determination. The first factor is whether the members of the class have demonstrated an interest in controlling the prosecution of their individual claims. In the instant case, approximately 490 individuals out of the alleged 4,000 members of the class have sued the defendant individually. Accordingly, we find that the vast majority of the members of the class have demonstrated no such interest. Secondly, we must consider judicial economy. We agree with the defendant’s assertion that the number of times exposed, varying degrees of exposure, and extent of damages each class member has suffered would require a cross-examination of every plaintiff to determine both the liability and damage issues. Accordingly, we see no judicial benefit to this class action.

The third factor is the desirability of concentrating the litigation in one forum. This determination is not crucial here as all of the individual suits would also be brought in the same judicial district court.

The fourth factor is the difficulty to be encountered in the management of a class action. As stated above, the possibility of examining and cross-examining 4,000 individuals concerning 129 separate incidents would tax both the trial judge and the court’s facilities beyond manageable limits.

Additionally, we point out that the trial judge has much discretion in ascertaining whether a class action should be maintained. Stevens, supra. Here, the trial judge found, as a matter of fact, that the class in this matter was not easily identifiable, the size of the individual claims was such that individual prosecution was warranted, and that judicial efficiency would not be served by a class action. We concur in the trial court’s judgment.

For our reasons aforestated and because of the trial court’s reasons and rulings, we find that the trial court was correct in not certifying the class. Plaintiffs are to pay all costs.

AFFIRMED.

COVINGTON, J., dissents for reasons assigned.

COVINGTON, Judge,

dissenting.

I respectfully dissent. The factors requisite to maintain the class action, i.e., numer-osity, commonality, typicality and rep-resentivity, are present. The case at bar is indistinguishable from Millet v. Rollins Environmental Services of Louisiana, Inc., 428 So.2d 1075 (La.App. 1st Cir.1983). I would reverse.

      . Plaintiffs alleged that they are, or were residents of the communities of Alsen, Parkwood Terrace, Lincoln Heights, Saint Armalee, Sunshine Road and the surrounding areas in the Parish of East Baton Rouge in close proximity to the Rollins waste disposal facility. Plaintiffs sued individually and on behalf of all others similarly situated, approximately 4,000 persons.


text:
    STATE of Louisiana v. Barry ROBERTS and Steve Couture.
    No. 83 KA 0087.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Rehearing Denied Nov. 22, 1983.
    James J. Gleason, III, Mandeville, for Barry Roberts.
    Daniel L. Dysart, Atty. at Law, Chal-mette, for Steven Couture.
    William R. Alford and Peter J. Garcia, Asst. Dist. Atty., Covington, for State.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

Defendants, Barry Roberts and Steve Couture, were indicted for the crime of second degree murder for the beating death of Richard Bowling on May 8,1981, in violation of La.R.S. 14:30.1. The indictment was amended by the district attorney to a charge of manslaughter, under La.R.S. 14:31, and both defendants then pled guilty. After a sentencing hearing the court sentenced both defendants to serve nine years at hard labor. Both defendants have appealed the sentences imposed.

Defendants were arrested approximately thirty days after the body of Richard Bowling was discovered in a secluded area in St. Tammany Parish. The victim died as the result of a severe beating administered to him after defendants lured him from a bar. A third man, William Ollis, was tried for the murder of Bowling and was convicted of second degree murder. Defendants testified at his trial. The evidence demonstrated that, in exchange for an unspecified amount of money, defendants lured the victim from the bar for the purpose of having Ollis administer a beating, and that they prevented the victim from escaping during the beating by forcing him to stay within the reach of Ollis. It was never established that either defendant actually assisted Ollis in the assault by physically beating the victim.

After the beating, the victim either escaped or was thrown from the van. His body was found in the early morning hours in a ditch by the side of the road, with his hands still tied behind his back.

Defendants urge that the trial court erred by imposing excessive sentences. Although not designated in the record, defendants have briefed two other assignments of error. Since the issues raised also are concerned with the sentence imposed and the compliance with La.C.Cr.P. 894.1 by the trial court, these issues will be discussed together.

The trial judge has wide discretion to impose a sentence within the statutory limits. State v. Washington, 414 So.2d 313 (La.1982). This discretion is subject only to constitutional limitations on excessive sentence, and should not be disturbed absent manifest abuse. State v. Burnette, 419 So.2d 835 (La.1982). Although the trial court noted that many of the mitigating factors enumerated under La.C.Cr.P. Art. 894.1 were present in this case, the court further noted that the taking of another human life is a most serious offense and that the defendants had been given a considerable break by being permitted to plead guilty to manslaughter. Under the facts presented herein, a sentence of nine years, less than one-half of the maximum, is not excessive even if the trial court had not complied with the sentencing guidelines of La.C.Cr.P. 894.1. State v. Batiste, 410 So.2d 1055 (La.1982). The record reflects that the sentence imposed was a studied, not an arbitrary, decision and no abuse of discretion has been shown.

Defendants also claim that the sentencing court improperly considered as an aggravating circumstance the possibility of defendants being convicted of second degree murder. Defendants had been indicted for the charge of second degree murder. It was not error for the trial court to consider the possibility of a conviction for that charge. State v. Roussel, 424 So.2d 226 (La.1982).

Defendants contend that the sentencing court did not consider the mitigating factors in favor of both defendants separately but imposed the sentence on both defendants together. Specifically, Couture contends that because he is married and has a family, his circumstances are vastly different from those of Barry Roberts. Defendants are constitutionally entitled only to the same sentencing criteria and are not guaranteed any particular result. The results are measured only against the requirement that the sentences not be excessive. State v. Day, 414 So.2d 349 (La.1982). See also, State v. Romero, 369 So.2d 1342 (La.1979). We find no abuse of discretion.

Por the reasons assigned, the sentences imposed by the trial court are affirmed.

AFFIRMED.

      . We note that the sentences imposed here were the result of a plea bargain whereby the charges against the defendants were reduced from second degree murder to manslaughter. The trial judge specifically pointed out to the defendants that they could receive sentences of up to 21 years and that he was not agreeing to a particular sentence. We are reviewing these sentences because we find the law to be as stated by this court in State v. Benton, 432 So.2d 334 (La.App. 1st Cir.1983) at footnote 1. However, we subscribe to the Specially Concurring Opinion in State v. George Lewis, 434 So.2d 1261 (La.App. 1st Cir.1983).


author: PONDER, Judge.

text:
    STATE of Louisiana v. Sullivan DAVIS, Jr.
    No. 83 KA 0136.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Rehearing Denied Nov. 22, 1983.
    William Yates, Asst. Dist. Atty., Houma, for appellee.
    Gerald P. Aurillo, Atty., Metairie, for appellant.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Sullivan Davis, Jr., found guilty by the trial judge of manslaughter in violation of La.R.S. 14:31, was sentenced to twenty-one years at hard labor. He was granted an out of time appeal and raised the following assignments of error: (1) the lack of a knowing and intelligent waiver of a jury trial, (2) the denial of his right to effective assistance of counsel, and (3) the excessiveness of the sentence.

We affirm.

When defendant came home from his place of employment, he and his wife got into an argument and the defendant hit his wife. She grabbed a gun from the couch and the two began to wrestle over it. The defendant testified that the gun went off twice and his wife ran out of the house. He put the gun in his back pocket, followed his wife outside and found her lying by the street. She told him she had been shot and the defendant was trying to put her in the car when the police arrived.

The state’s expert testified that the shot that killed the decedent was fired from three to four feet away. The pathologist testified that the bullet entered under the left armpit, passed left to right through the internal organs and ended beneath the skin on the right side of the chest. The trial judge reasoned that it was impossible for the gun to have been in the decedent’s hand when it went off, as the defendant testified, and found the defendant guilty.

The defendant first contends that he did not make a knowing and intelligent waiver of his right to a trial by jury since the trial judge did not specify the number of jurors the defendant was entitled to, the number of jurors necessary to find him guilty, and did not explain the burden of proof beyond a reasonable doubt. The defendant points to his minimal education, his limited ability to read and write and his age, about sixty-five.

Prior to the trial, the judge asked the defendant if he understood that he was entitled to a trial by jury which his attorney had stated he wished to waive. The defendant indicated that he understood and that his attorney was correct. The defendant’s attorney was present at the waiver. The record supports the conclusion that the defendant was personally informed by the trial judge of his right to a jury trial and that he made a knowing and intelligent waiver. State v. Johnson, 389 So.2d 1302 (La.1980). State v. Spikes, 423 So.2d 730 (La.App. 1st Cir.1982). Defendant’s long criminal record suggests that he must have more than just a slight acquaintance with criminal procedure.

Defendant next argues that he was denied the effective assistance of counsel since he informed his attorney that the sheriff’s office could verify prior fights with his wife in which she was the aggressor, but his attorney failed to present this evidence. We will not address the assignment since such contentions should be relegated to post-conviction relief applications in the district court. State v. Burkhalter, 428 So.2d 449 (La.1983). State v. Prestridge, 399 So.2d 564 (La.1981).

Defendant argues that the sentence of twenty-one years is excessive and arbitrary, that the record does not contain enough evidence for this court to decide the propriety of the sentence and that the case should be remanded for resentencing. We disagree.

La.C.Cr.P. art. 894.1 sets forth three factors which justify a sentence of imprisonment, and eleven other factors which tend to indicate suspension of sentence or probation as appropriate. This legislation was passed to prevent the possible imposition of excessive punishment and to guide the trial court in sentencing. State v. Smith, 430 So.2d 31 (La.1983). State v. Wimberly, 414 So.2d 666 (La.1982). The trial court must state for the record the factual bases and considerations in imposing a sentence. La.C.Cr.P. 894.1(C).

The trial judge failed to comply with art. 894.1 since he named only the past crimes of the defendant, as evidenced by the pre-sentence investigation and did not state for the record other factors that should have been taken into account. However, this in itself does not render a sentence invalid if the record clearly illumines the sentencing choice. State v. Smith, supra.

We find that the record supports the trial judge’s sentencing choice. Although some mitigating factors exist, such as the possibility that the defendant acted under strong provocation, or was induced into such an action by the victim, these factors do not outweigh the defendant’s criminal past, nor the circumstances of the crime. The defendant has an extensive record involving sixteen offenses which include simple burglary, armed robbery, manslaughter, theft, simple battery and the present offense. The trial judge did note that the defendant spent fifteen years in various prisons and jails, had not been rehabilitated and was a menace to society.

Although a substantial amount of time has passed since his last conviction (a DWI conviction in 1971), the defendant’s history indicates that there is a definite risk that defendant will commit another crime and needs a custodial environment. La.C.Cr.P. art. 894.1 A(1) and (2). We also note that the defendant struck his wife prior to the time she grabbed the gun.

Given the seriousness of the crime and the defendant’s past criminal activity, wé conclude that there is no substantial possibility that the twenty-one year maximum sentence is excessive. State v. Smith, supra. State v. Wimberly, supra.

Defendant’s conviction and sentence are therefore affirmed.

AFFIRMED.

      . The defendant hired a new attorney as the deadline for his last extension of time for filing an appellate brief was drawing near, and as a result we have briefs filed by defendant’s former attorney and his present counsel. We will consider all assignments of error raised by the two attorneys.