author: BLANCHE, Justice.

text:
    STATE ex rel. Danny H. GRAFFAGNINO v. John T. KING, Secretary of the Louisiana Department of Corrections, J.D. Middlebrooks, Warden. STATE of Louisiana v. Danny H. GRAFFAGNINO.
    Nos. 82-KH-0556, 83-KA-0016.
    Supreme Court of Louisiana.
    June 27, 1983.
    Rehearing Denied Sept. 1, 1983.

      William J. Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Gou-deau, III, Dist. Atty., Donald J. Richard, Robert Brinkman, Asst. Dist. Attys., for respondent in No. 82-KH-0556 and plaintiff-appellee in No. 83-KA-0016.
    Paul Henry Kidd, Monroe, for relator in No. 82-KH-0556 and defendant-appellant in No. 83-KA-0016.

       Calogero and Dennis, JJ., would grant a rehearing.

   BLANCHE, Justice.

Defendant Danny Graffagnino was convicted in a non-jury trial of forcible rape, a violation of LSA-R.S. 14:42.1. Following a presentence investigation, he was sentenced to eight years at hard labor, with two years to be served without benefit of parole, probation, or suspension of sentence. No appeal was taken. Subsequently, in an application for post-conviction relief, the defendant urged that he was denied effective assistance of counsel in that his retained attorney had utterly failed to prepare for trial. The trial court denied the application, but we granted the defendant’s request for a writ of certiorari and ordered the matter consolidated with an out-of-time appeal. State ex rel. Graffagnino v. King, 422 So.2d 426 (La.1982). The defendant now urges five assignments of error.

The defendant met the sixteen year old victim on the evening of May 19,1979 at an Opelousas, Louisiana night spot called the “Southern Club.” The victim had gone to the club with several of her friends and had been seen dancing with several young men. According to the defendant, she looked “pretty loose” (drunk) and he wanted to dance with her. After several dances, the victim wanted a ride home because it was near the 2:00 a.m. closing time for the club. The defendant solicited from a friend a ride to his house where he intended to get his father’s car to take the girl home.

Once at the defendant’s house, the couple went inside to the defendant’s room so he could show her his drum set and electric guitar. Shortly thereafter, the two went “out walking” and ended up in a nearby graveyard. The stories of the two diverge at this point, but it appears that some sort of struggle ensued, and the victim fell into a ditch full of water. The victim claims that she fell into the ditch while escaping from the defendant when he began to pull at her clothes. On the other hand, the defendant testified at trial that the victim became quite enamored once they reached the graveyard and stumbled into the ditch as she excitedly tried to remove her pants.

The victim testified that the defendant forced her to remove her jeans after she fell into the water and proceeded to rape her. She asserted that she attempted to scream, but that the defendant had threatened to hit her if she did not “shut up” and submit. She testified that she submitted in fear of violence by the defendant and believed that further resistance would be pointless. By all accounts, the two were in the graveyard for several hours, and the victim was brought to her home at nearly 5:00 a.m., soaking wet and covered with mud. She immediately told her parents that she had been raped, and a physical examination about an hour later showed that penetration had indeed occurred.

Following the incident, the defendant gave three different versions of the events which had transpired that night. In a voluntary statement to police after his arrest, the defendant denied ever having been to the graveyard. At trial, he admitted having gone to the graveyard with the victim, but denied having had sexual intercourse with her and asserted that he had repelled her sexual advances. At the hearing on his application for post-conviction relief, the defendant admitted to having perjured himself at trial and admitted to having had intercourse with the victim, but asserted that it was consensual. However, the victim was not without inconsistencies in her testimony. On cross-examination, she admitted that she had first told her mother that she had not been raped, but then immediately changed her story to state that she had been.

ASSIGNMENTS OF ERROR NOS. 1, 2

By these assignments, the defendant urges that the trial court erred in admitting into evidence the statement given to police following his arrest on the grounds that he was never given formal notice by the state of its intention to introduce it at trial. He also argues that the statement had not been given voluntarily and should not have been used for impeachment purposes. Specifically, the defendant urges on appeal that the statement was made without a knowing and intelligent waiver of his right to remain silent, the right to consult with an attorney, and the right to have an attorney present during questioning. Moreover, the defendant argues, he was not advised of each right separately in order to ascertain his voluntary waiver of each.

Our review of the record shows that the defendant was arrested by the Opelousas City Police late on the night of May 21, 1979 and brought directly to the courthouse. At 11:18 p.xn., the defendant was advised of his Miranda rights and executed a waiver of those rights. At 12:29 a.m. he gave the taped statement he now complains of and was again informed of his rights by the interrogating officer, who expressly advised the defendant that he could terminate the interview at any time.

Before a confession is admissible into evidence, the burden is upon the state to prove that it was given freely and voluntarily and not under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. LSA-R.S. 15:451; State v. Brogdon, 426 So.2d 158 (La.1983); State v. Jackson, 414 So.2d 310 (La.1982). The factual determinations of the trial court as to the voluntariness of a confession will not be overturned on appeal unless unsupported by the evidence. State v. Jackson, supra; State v. Vacearo, 411 So.2d 415 (La.1982). In our view, there is no evidence in the record which would establish that the defendant was not adequately informed of his constitutional rights or that the statement was given under conditions demonstrating constitutional violations. Other than his assertion that he was “sleepy,” the record does not reflect that the defendant was so disoriented that his state of fatigue should vitiate the voluntariness of the statement. Moreover, the defendant was warned twice of his rights before submitting to questioning.

As to the defendant’s contentions that he had received no pre-trial notice of the state’s intention to introduce the statement for purposes of impeachment, our review of the record shows without qualification that defense counsel had indeed been given notice pre-trial. The purpose of the notice required by La.C.Cr.P. art. 768 is to avoid surprise to the defendant and to allow adequate time for preparation of a defense. See State v. Billiot, 421 So.2d 864 (La.1982). Even though it is apparent here that the defendant did have prior notice of the state’s intention to use the statement, such notice is generally unnecessary in bench trials. State v. Korman, 397 So.2d 1346 (La.1981); State v. Cleary, 262 La. 539, 263 So.2d 882 (1972). Assuming, arguendo, that the notice given did not comport with the written requirement of art. 768, the defendant could not have been surprised by the state’s use of the statement because of his counsel’s actual notice; absent surprise, there is not sufficient prejudice to the defendant to require reversal of the conviction. Cf. State v. Spot, 340 So.2d 1349 (La.1976); State v. Bolen, 338 So.2d 97 (La. 1976). Moreover, the proper procedure by which to urge suppression of an inculpatory statement is through the pre-trial motion to suppress. La.C.Cr.P. art. 703; State v. Smith, 283 So.2d 470 (La.1973); State v. Chambers, 263 La. 1080, 270 So.2d 514 (1972).

These assignments are without merit. ASSIGNMENT OF ERROR NO. 3

By this assignment, the defendant urges that the state failed to prove his guilt beyond a reasonable doubt. More specifically, he argues that the state failed to prove, within the meaning of LSA-R.S. 14:42.1, that the victim was “prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believe[d] that such resistance would not prevent the rape”.

It is well-settled that the evidence is sufficient to support the conviction when any rational trier of fact, in viewing the evidence in the light most favorable to. the prosecution, could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979);. State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact-finder to weigh the respective credibilities of the witnesses, and this court will not second-guess the credibility determinations of the trier of fact beyond our sufficiency evaluations under the Jackson standard of review. See State v. Richardson, 425 So.2d 1228 (La.1983).

Here, the trier of fact accorded much weight to the testimony of the victim that she believed that the threat of physical violence by the defendant made resistance useless, especially when viewed against the defendant’s conflicting accounts of the events which transpired. The victim testified that the defendant had forced her to the ground and made her remove her jeans. She asserted that she began screaming, but that he threatened to hit her if she didn’t “shut up” and submit. She claimed that her submission was prompted by a fear of violence by the defendant.

Furthermore, the examining physician testified that grass and other foreign matter had been forced into the victim’s vagina and that the condition of her genitalia was consistent with forcible intrusion or intercourse. We are of the considered opinion that the testimony of the victim as to the forcible nature of the attack, the testimony of other witnesses as to her disheveled and upset condition upon returning home, and the testimony of the examining physician as to the forcible nature of the intrusion into the victim’s vagina constituted sufficient evidence such that any rational trier of fact, in viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the crime beyond a reasonable doubt.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 4

By this assignment, the defendant argues that the trial court erred in denying his application for post-conviction relief on the grounds of ineffective assistance of counsel. Specifically, the defendant urges that his retained trial attorney, Sherman Stanford, was utterly unprepared to conduct an adequate defense due to lack of a pre-trial investigation. Furthermore, he contends that his attorney failed to apprise him of the consequences of waiving a jury trial, that his attorney did not advise him that he need not take the witness stand, and that his attorney failed to file an appeal post-trial.

To establish a claim of ineffective representation, the defendant must demonstrate that counsel did not meet the level of competency “normally demanded” in criminal cases. An adequate defense must be based on “informed professional deliberation.” McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); State v. Felde, 422 So.2d 370 (La. 1982). Effective assistance of counsel does not mean “errorless” counsel, or counsel which may be judged ineffective on mere hindsight, but counsel “reasonably likely to render and [actually] rendering reasonably effective assistance.” State v. Seiss, 428 So.2d 444 (La.1983); State v. Ratcliff, 416 So.2d 528 (La.1982).

In the recent decision of State v. Berry, 430 So.2d 1005 (La.1983), this court established a meaningful analysis for claims of ineffective assistance of counsel. Adopting the two-pronged inquiry of McQueen v. Swenson, 498 F.2d 207 (8th Cir.1974), this court established the first inquiry as to whether counsel violated some duty to the client. The second inquiry is whether the violation, if any, prejudiced the client in the defense of his case. In our opinion, the defendant’s trial counsel breached no duty toward the defendant which unduly prejudiced the defendant in defense of his case.

Failure to Investigate

Attorney Stanford testified that he was approached by Graffagnino and agreed to handle the case for a flat $750 fee. He had very few records on the matter but did have notes from his initial interview with the defendant. Stanford testified further that the defendant was working offshore at the time and that contacting him was very difficult. He also remembered reviewing with the defendant the state’s file of the case at the district attorney’s office. The defendant affirmed that he and Stanford had reviewed the state’s file together pretrial.

Stanford testified that he believed that the case required little pre-trial investigation since he had the defendant’s statement to the police and the statements of the state’s witnesses. He admitted to being aware of other witnesses, but asserted that the defendant had never produced them as he had promised he would. Regarding his failure to file a pre-trial motion to suppress the defendant’s statement, Stanford asserted that he was convinced after conversations with the defendant concerning the statement that it had been given freely and voluntarily and that a motion to suppress would have been useless.

As for the trial itself, Stanford confessed that he would have liked to have been more prepared and that his trial strategy had been to show that the victim had engaged in consensual intercourse with the defendant. Stanford asserted that he conferred with the defendant at the close of the state’s case and advised him to take the stand and tell the truth, i.e., that he had indeed gone to the graveyard with the victim, but that the intercourse had been consensual. He testified that he urged the defendant to admit having lied in his statement to the police, but that he had done so out of fear. The defendant admitted that Stanford told him to take the stand and tell the truth, but asserted that he believed he was required to take the stand and did not know he could be impeached with his prior statement.

Based on the testimony of Stanford and the defendant, we can only conclude that Stanford’s pre-trial and trial preparation and strategy were at the level of competency “normally demanded” in criminal cases. State v. Felde, supra. Even if we were to assume, arguendo, that Stanford’s failure to file a pre-trial motion to suppress the defendant’s statement demonstrates ineffective trial preparation or investigation, we are of the considered opinion that such a motion would have been denied. As we noted in our treatment of assignments of errors numbers one and two, supra, the evidence is overwhelming that the statement had been given freely and voluntarily. Accordingly, any breach of duty arising out of Stanford’s failure to move to suppress the statement caused the defendant no prejudice in the defense of his case.

Waiver of a Jury Trial

Stanford justified his advice that the defendant waive a jury trial as follows:

“[In] speaking with him and observing him as he walked, as he talked, everything about him the few times that I had seen him and I had seen him several times anyway, I don’t know exactly how many but it convinced me that he was not always under control and I had serious reservations about placing him in front of a jury because I thought that there was a likelihood either that he had an emotional or psychological problem or that he was heavily into drugs and I did not want to have a jury see him under those conditions.”

Stanford testified further that he had advised the defendant to seek medical aid for his drug abuse and urged him not to take drugs during trial.

As viewed by Stanford, these circumstances influenced his judgment to advise the defendant to forego a jury trial, and we would hesitate to “second guess” his judgment on the matter. In any event, the defendant has not offered any argument as to why a jury trial would have proved a better tactic. We would be inclined to believe that a judge would be better able to accord the proper weight to the inconsistencies in the defendant’s testimony as to the events which transpired that night. We are satisfied that Stanford’s advice on the matter was based upon his best professional judgment, and we cannot say that the advice fell below that normally demanded of competent counsel in criminal cases.

Advice to Take the Witness Stand

As we noted earlier, Stanford testified that he had conferred with the defendant at the close of the state's case and advised him to take the stand and tell the truth. Our review of the record has convinced us that the defendant was adequately informed of the consequences of taking the stand. Given the defendant’s penchant for stretching the truth, we cannot say that the trial court erred in finding Stanford’s testimony as to the circumstances under which the defendant took the stand more credible than the defendant’s. The record is clear that the defendant chose to disregard the advice of his attorney to tell the truth and instead chose to perjure himself while under oath. Even if we were to assume, arguendo, that the defendant was totally unaware that he might be impeached with his admittedly untrue prior statement, we are loathe to reward such dishonesty with a new trial. Any reasonably competent counsel would have advised his client to take the stand and tell the truth if it were his best professional opinion that such truthfulness might result in an acquittal. This defendant simply chose to ignore such sound advice when belief in his credibility was the single most important element of his defense. In our opinion, it was the defendant’s persistent untruthfulness which destroyed his own credibility and paved the way for his conviction.

In conclusion, we find that any mistakes which were made by Stanford in the preparation and trial of this case were more attributable to the defendant’s decided lack of cooperation and lack of veracity than to Stanford’s alleged incompetence. Stanford’s strategic and tactical decisions were rendered ineffective by the defendant’s decision to continuously perjure himself and skirt the truth.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 5

By this assignment, the defendant argues that the trial court erred in relying on false, prejudicial, and misleading factors in imposing sentence. Specifically, he urges that the trial court improperly considered the fact that he had refused to submit to a polygraph examination. The defendant further alleges that the presentence investigation contained “false information” not examined by defense counsel prior to sentencing, and that the report contained an admission by him that intercourse had indeed occurred that night, which caused the trial judge to hold his perjury at trial against him in sentencing.

Our review of the sentencing proceeding shows that the presentence investigation had been made available to Stanford prior to sentencing, a fact which he confirmed at the post-conviction hearing. It is well-settled that the defendant (directly or through his counsel) has a right to access to the presentence report and to rebut any adverse information. See State v. Segers, 357 So.2d 1 (La.1978). However, these rights are not abridged merely because the defendant fails to exercise them when given the opportunity. Irregularities or deficiencies in the report will not be reviewed for the first time on appeal where the defendant fails to bring them to the attention of the trial court before or at the time of sentencing. State v. Cox, 369 So.2d 118 (La.1979). Accordingly, any false information or irregularities alleged by the defendant to be in the presentence report and relied upon by the trial judge in imposing sentence are not properly before this court.

In asserting that these allegedly improper factors did not comport with the proper sentencing guidelines of art. 894.1, the defendant makes no direct claim that his sentence is excessive; however, inasmuch as Stanford’s failure to enter any objections at the sentencing hearing reflects on the defendant’s claim of ineffective assistance of counsel, discussed in assignment of error no. four, supra, we believe that such objections would not persuade us that the defendant was sentenced either improperly or excessively. Although the sentencing colloquy is somewhat threadbare in its treatment of the art. 894.1 sentencing factors, we find no “strong possibility” that the eight year sentence is excessive. See State v. Wimberly, 414 So.2d 666 (La.1982). Moreover, we find the record replete with factors which establish that the sentence is not unconstitutionally excessive and the presence of evidence which “clearly illumines” the trial judge’s sentencing choice. Cf. State v. Parish, 429 So.2d 442 (La.1983); State v. Williams, 397 So.2d 1287 (La.1981).

The eight year sentence is not in the high range for a forcible rape conviction since the defendant could have received as many as 40 years. LSA-R.S. 14:42.1. Although this case does not appear to involve the most egregious of facts, the defendant’s persistent untruthfulness has made it impossible for us to ascertain precisely what happened that night. As a result of the attack, the victim has undergone psychiatric counseling on a continuous basis in order to better deal with the aftermath of the attack.

The defendant is a high school dropout with several serious breaches of the law committed of late. He previously pleaded guilty to shoplifting and was placed on two years probation. That probation was revoked in 1977 after the defendant was again arrested for shoplifting. He has been charged with two separate counts of theft, one count of burglary, two separate counts of possession of marijuana, and one count of possession of marijuana with intent to distribute, although the record reflects no disposition of these charges. The defendant has admitted to drug and alcohol abuse. Given the circumstances surrounding this offense and the defendant’s criminal propensities and decided penchant for lying, we cannot say that the trial court abused its discretion in imposing an eight year sentence.

This assignment is without merit.

DECREE

For these reasons, the conviction and sentence of the defendant, Danny Graffagnino, are affirmed.

      . The examining physician found grass and other foreign matter as far as one inch into the victim’s vagina. The defendant’s explanation at trial was that this had occurred when the victim fell into the ditch with her pants down.

      . The defendant failed to move to suppress the statement pre-trial in accordance with La.C. Cr.P. art. 703 and LSA-R.S. 15:451, nor did he enter a contemporaneous objection to use of the statement for impeachment purposes in accordance with La.C.Cr.P. art. 841. See Tyler v. Phelps, 643 F.2d 1095 (5th Cir.1981), cert. denied, 456 U.S. 935, 102 S.Ct. 1992, 72 L.Ed.2d 455; State v. Clayton, 427 So.2d 827 (La.1982). We examine these contentions on the merits, however, for purposes of our review of assignment of error no. 4, infra, urging ineffective assistance of counsel.


source: Caselaw Access Project

author: WATSON, Justice. BLANCHE, Justice

license: Public Domain

text:
    STATE of Louisiana v. Sheral LYNCH.
    No. 82-KA-1080.
    Supreme Court of Louisiana.
    June 27, 1983.
    As Amended June 30, 1983.-
    Rehearing Denied Sept. 1, 1983.

      William J. Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., E.L. Edwards, Jr., Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    William D. Dyess, Many, for defendant-appellant.
   WATSON, Justice.

Defendant, Sheral Lynch, was convicted by a jury of the manslaughter of Jimmy Dyess and sentenced to twenty-one years at hard labor. LSA-R.S. 14:31. She has appealed her conviction and sentence.

FACTS

Dyess died of a bullet wound to the brain inflicted by Sheral Lynch. At the time of the offense, on August 24, 1977, Sheral Lynch was nineteen and had been living with Dyess since she was sixteen. He was in his middle forties. According to Sheral, Dyess had hit her and thrown her on the bed. While preparing to inflict a severe beating, he said: “ ‘I’m going to beat your goddam [sic] ass and make you tell me the truth.’ ” (Tr. 103) She grabbed a gun out of the dresser drawer and ran out the back door. He followed her and she backed away, saying “don’t come up on me, Jimmy.” (Tr. 131-132) Dyess replied: “you ain’t going no dam [sic] where.” (Tr. 124) She repeated her warning several times before shooting the gun. She did not aim before .she shot and was not very familiar with guns.

Three witnesses confirmed Sheral’s account of the conversation and the shooting. Henry Waites heard Sheral say “don’t come up on me” several times before hearing a shot. Annie B. Matthews heard Dyess curse Sheral and saw her backing away from him. According to Matthews’ testimony, Sheral told Dyess not to come up on her three times before shooting the gun. Willie Mae Carter heard Dyess curse while Sheral backed away from him, warning him three times to leave her alone.

Several weeks before this encounter, Dyess had beaten Sheral with a bat to the point where she was unable to walk for a couple of weeks. She had been seen limping around “the quarters” (Tr. 81). On another occasion, Dyess had knocked out one of her teeth; he had beaten her twenty or thirty times. Dyess was a logger and was described as able bodied, physically fit and much stronger than Sheral.

Donie Jane Lynch testified that she had lived with the deceased for about ten years before leaving because she got tired of his beatings. At one time he had cut her on the elbow with a butcher knife. When they first parted, she had to hide from him. She had seen Sheral after she was beaten with the baseball bat. She testified that Dyess was a violent man who had beaten all the women he had ever had and “he had quite a few of them”. (Tr. 142)

Annie Lee Scott had also lived with Jimmy Dyess about ten years and said he beat her pretty often; the worse beating occurred when she was pregnant with their child. She apparently had a miscarriage as a result. She once had Dyess arrested when he hit her in the leg with a rake and she finally left him.

Leland Philyaw had known Dyess twenty-five or thirty years arid Dyess had once cut him. He had seen Sheral when she was crippled and. had a black eye and other injuries. According to Philyaw, the consensus in the community was that Jimmy Dyess was a dangerous man.

The Town Marshal of Zwolle testified that Sheral told him that she and Jimmy Dyess had had an argument the night of the shooting, but not a fight. An employee of the marshal’s office also testified that Sheral said she and Jimmy Dyess had only had an argument the night of the shooting. Sheral had no visible bruises that evening. Sheral had once signed an affidavit against

Dyess, but she withdrew the complaint after he was arrested.

LAW

LSA-R.S. 14:20 deals with justifiable homicide and states in pertinent part:

“A homicide is justifiable:
“(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger; or....”

Sheral Lynch asserted that she acted in self-defense. The state had the burden of establishing beyond a reasonable doubt that she did not act in self-defense. State v. Jackson, 419 So.2d 425 (La., 1982); State v. Patterson, 295 So.2d 792 (La., 1974).

ISSUE

The issue is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

CONCLUSION

The evidence presented at trial established beyond any doubt that defendant Lynch reasonably believed she was in imminent danger of receiving great bodily harm and acted in self-defense. Although Sheral Lynch was armed, she was too unfamiliar with guns to rely on that fact. She was trying to retreat and asked Dyess to leave her alone. In view of the past beatings inflicted on her and other women and Dyess’ dangerous character, her fear and apprehension were reasonable. State v. Jackson, supra; Patterson, supra. A rational trier of fact could not have found on the evidence presented that Sheral Lynch did not act in self-defense. Jackson v. Virginia, supra.

For the foregoing reasons, the conviction and sentence are reversed and defendant is ordered discharged.

REVERSED.

LEMMON, J., concurs, but disagrees that the state has the burden of proof regarding the affirmative defense of self defense.

MARCUS, J., dissents.

BLANCHE, J., dissents and assigns reasons.

BLANCHE, Justice

(dissenting).

I disagree that no rational trier of fact could have found that the defendant did not act in self-defense. On the contrary, twelve jurors heard the evidence, viewed the witnesses, and ultimately determined that the defendant had shot the victim with the specific intent to kill or inflict great bodily harm. I question whether the shooting was reasonably necessary to repel what the defendant believed was an impending beating. If anything, the victim’s penchant for physical violence supports the jury’s view that the killing arose in such provocative circumstances that a manslaughter verdict was in order rather than conviction of a more serious crime.

In my view, the 21 year sentence is excessive and the facts of the case, which clearly establish the violent nature of the victim, represent very strong mitigating circumstances which were not accorded their proper weight by the trial court. This is not the type of criminal defendant for whom the maximum sentence should be reserved.

      . Although defendant Lynch was sentenced on November 24, 1978, there was no appeal until an out of time appeal was granted on March 2, 1982.

      . Donie Jane Lynch is Sheral’s “Auntie”. (Tr. 138)

      . Defendant’s supplemental assignment of error: the other assignments of error are preter-mitted.

      . See the discussion of the “battered woman syndrome” at 15 Conn.L.Rev. 121.


text:
    STATE of Louisiana v. Manuel J. CABALLERO.
    No. 83-KK-1253.
    Supreme Court of Louisiana.
    June 17, 1983.
    CALOGERO and WATSON, JJ., would grant the writ.


text:
    Kerry E. HARWELL v. M.L. PITTMAN, M.D.
    No. 83-C-1007.
    Supreme Court of Louisiana.
    July 12, 1983.
   In re M.L. Pittman, M.D., applying for reconsideration on denied writ of June 17, 1983, 434 So.2d 1092, Court of Appeal, First Circuit, Parish of St. Tammany. No. 82-CA-0397. Twenty-Second Judicial District Court. No. 63270, Division “E”.

Reconsideration denied. See Rule IX § 6 and CCrP Art. 2166.


text:
    In re Patrick Hough HARRINGTON.
    No. 83-OB-1454.
    Supreme Court of Louisiana.
    July 14, 1983.
   In re Patrick Hough Harrington, applying for reconsideration of denial petition for injunctive relief and appeal dated June 29, 1983. 435 So.2d 463.

Relator’s application to take the July, 1983 bar examination is denied.


text:
    STATE of Louisiana v. Dennis BROWN.
    No. 83-KH-1483.
    Supreme Court of Louisiana.
    Aug. 4, 1983.
   In re Dennis Brown, applying for writ of mandamus and certiorari. Criminal District Court, Parish of Orleans. No. 285-808, Section B.

Denied on the showing made.


text:
    STATE of Louisiana v. Emery BLACKBURN.
    No. 83-KH-1647.
    Supreme Court of Louisiana.
    Aug. 8, 1983.
   In re Emery Blackburn, applying for writ of mandamus. Twenty-second Judicial District Court, Parish of Washington.

Denied.


text:
    Jim SINGLETON, et al. v. Ernest MORIAL, Mayor, et al.
    No. 83-CC-1744.
    Supreme Court of Louisiana.
    Aug. 8, 1983.
   In re John McComiskey, applying for writs of certiorari, mandamus and prohibition. Civil District Court. No. 83-11957. Parish of Orleans; Court of Appeal, Fourth Circuit. No. C 1129.

Writ granted. The July 20, 1983 ruling of the district court is set aside. The district court is ordered to proceed to a hearing on the merits of the injunction and a determination of whether the permit was properly issued.


text:
    STATE of Louisiana ex rel., Freddie WILLIAMS v. CRIMINAL DISTRICT COURT, SECTION D, PARISH OF ORLEANS.
    No. 83-KH-1360.
    Supreme Court of Louisiana.
    Aug. 8, 1983.
   In re Freddie Williams, applying for supervisory writ. Parish of Orleans, Criminal District Court. No. 282-686.

Denied.


text:
    STATE of Louisiana, ex rel., Jimmy MORGAN v. STATE of Louisiana, CRIMINAL DISTRICT COURT NEW ORLEANS, La., Criminal Sheriff Charles Foti.
    No. 83-KH-1742.
    Supreme Court of Louisiana.
    Aug. 8, 1983.
   In re Jimmy Morgan, applying for remedial writs. Parish of Orleans.

Denied. Relator must first apply to the district court.


text:
    STATE of Louisiana v. Antonio JAMES.
    No. 82-KA-1230.
    Supreme Court of Louisiana.
    Aug. 9, 1983.
   In re Antonio James, applying for stay of execution. Criminal District Court, Parish of Orleans. No. 271-107.

Denied.


text:
    STATE of Louisiana ex rel. Lionel McGRUDER v. JEFFERSON PARISH JUDICIAL DISTRICT CRIMINAL, Sheriff, New Orleans, Charles Foti (Custodian).
    No. 83-KH-1553.
    Supreme Court of Louisiana.
    Aug. 9, 1983.
   In re Lionel McGruder, applying for remedial writ. Twenty-fourth Judicial District Court, Parish of Jefferson.

Denied. Relator must first file in the district court.


text:
    STATE of Louisiana ex rel., Alvin BERRY v. STATE of Louisiana CRIMINAL JUDICIAL DISTRICT NEW ORLEANS, LOUISIANA: Criminal Sheriff, New Orleans.
    No. 83-KH-1736.
    Supreme Court of Louisiana.
    Aug. 9, 1983.
   In re Alvin Berry, applying for remedial writs. Parish of Orleans.

Denied.


text:
    STATE of Louisiana v. Heriberto DIAZ.
    No. 83-KK-1738.
    Supreme Court of Louisiana.
    Aug. 9, 1983.
   In re Heriberto Diaz, applying for writs of certiorari (writ of review); prohibition, mandamus and for a stay order. Criminal District Court, Parish of Orleans. No. 296-816.

Denied. Moot.


text:
    STATE of Louisiana ex rel. William CONGER v. CRIMINAL JUDICIAL DISTRICT OF NEW ORLEANS, Louisiana Section M, Criminal Sheriff, Charles Foti.
    No. 83-KH-1702.
    Supreme Court of Louisiana.
    Aug. 9, 1983.
   In re William Conger, applying for remedial writ. Criminal District Court, Parish of Orleans.

Treating relator’s application as a request for a preliminary hearing, trial judge is ordered to conduct such a hearing forthwith in accordance with petition previously filed in the district court; otherwise denied.


text:
    Elmo Patrick SONNIER v. Ross MAGGIO, Warden.
    No. 83-KP-1749.
    Supreme Court of Louisiana.
    Aug. 10, 1983.
   In re Elmo Patrick Sonnier, applying for supervisory writs. Sixteenth Judicial District Court. No. 106918. Parish of St. Mary, (stay of execution).

Denied.


text:
    Carole H. BURSTEIN, Elizabeth D. O’Neal, Citizens and Taxpayers of the City of New Orleans v. Ernest N. MORIAL, in his Capacity as Mayor of the City of New Orleans, Bryan Wagner, Individually and in his Capacity as Councilman of the City of New Orleans, Lambert C. Boissiere, Jr., Individually and in his Capacity as Councilman of the City of New Orleans, Mike Earley, Individually and in his Capacity as Councilman of the City of New Orleans, Wayne M. Babovich, Individually and in his Capacity as Councilman of the City of New Orleans, Lea Siegel, Clerk of the Council of the City of New Orleans, Jerry M. Fowler, Commissioner of Elections of the State of Louisiana, Sidney J. Barthelemy, Individually and in his Capacity as Acting Mayor of the City of New Orleans, the Council of the City of New Orleans, and James H. Brown, Secretary of State.
    No. 83-CD-1763.
    Supreme Court of Louisiana.
    Aug. 11, 1983.
   In re Carole H. Burstein, Elizabeth D. O’Neal, applying for supervisory writs and stay order. Parish of Orleans. No. 83— 12208.

Denied. This case will be heard expeditiously in the Court of Appeal.


text:
    STATE of Louisiana, ex rel., Kevin JONES v. CRIMINAL JUDICIAL DISTRICT COURT NEW ORLEANS, Criminal Sheriff, Charles Foti.
    No. 83-KH-1772.
    Supreme Court of Louisiana.
    Aug. 15, 1983.
   In re Kevin Jones, applying for remedial writs. Parish of Orleans.

Granted for the sole purpose of transferring to the Court of Appeal, Fourth Circuit.


text:
    STATE of Louisiana v. Gerald R. BORNING.
    No. 83-KH-1667.
    Supreme Court of Louisiana.
    Aug. 15, 1983.
   In re Gerald R. Borning, applying for writ of certiorari. Nineteenth Judicial District Court, Parish of East Baton Rouge, Section V, Division K. Court of Appeal, First Circuit. No. 83-KW-0748.

Denied in part, granted in part. Relator’s application is denied with one limited exception. It is ordered that relator’s sentencing be postponed for no less than an additional seven days, during which time the trial judge is ordered to allow relator an opportunity to retain other counsel, absent which relator should be permitted to assert his right to self-representation, or be afforded court-appointed counsel, if entitled.


text:
    Tammy Ohda DUPLANTIS v. Ira Joseph DUPLANTIS.
    No. 83-CC-1795.
    Supreme Court of Louisiana.
    Aug. 16, 1983.
   In re Ira Joseph Duplantis, applying for writ of certiorari, prohibition and stay order. Thirty-Second Judicial District Court. No. 70876. Parish of Terrebonne, First Circuit Court of Appeal. No. 83-CW-0862.

Writ denied.


text:
    STATE of Louisiana v. Phillip Byron CARTEE.
    No. 83-KK-1837.
    Supreme Court of Louisiana.
    Aug. 23, 1983.
   In re Phillip Byron Cartee, applying for writ of certiorari. Fourth Judicial District Court. No. 41171. Parish of Ouachita, Second Circuit Court of Appeal. No. 15825-KW.

Denied.


text:
    STATE of Louisiana v. Leigh Guy BURTON.
    No. 83-KK-1843.
    Supreme Court of Louisiana.
    Aug. 24, 1983.
   In re Leigh Guy Burton, applying for emergency supervisory writs. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 7-83-148. Court of Appeal, First Circuit. No. 83-KW-0944.

Writ granted in part and otherwise denied. Since the transcript of the bond reduction hearing indicates that the trial judge’s decision was based in part on evidence not in the record and assertions of persons who were not subject to cross-examination by relator, the matter will be remanded to the trial court for a full evi-dentiary hearing concerning whether and/or the extent to which relator’s bond should be reduced.


author: LABORDE, Judge.

text:
    Mrs. Elda JEANMARD, et al., Plaintiffs-Appellants, v. SEARS, ROEBUCK AND COMPANY, et al., Defendants-Appellees.
    No. 82-700.
    Court of Appeal of Louisiana, Third Circuit.
    March 30, 1983.
    J. Wendel Fusilier and Alex D. Chapman, Jr., Ville Platte, for plaintiffs-appellants.
    Chaffe, McCall, Phillips, Toler & Sarpy, James A. Babst, New Orleans, for defendants-appellees.
    Before GUIDRY, FORET and LA-BORDE, JJ.
   LABORDE, Judge.

MOTION TO DISMISS

The defendants-appellees, Sears, Roebuck and Company and Allstate Insurance Company, move to dismiss the appeal of the plaintiffs-appellants, Mrs. Elda Jeanmard and Mr. Edwin Jeanmard, as not being timely perfected.

The judgment appealed from was signed on June 9, 1982, and notice of judgment was mailed to the parties on June 10, 1982. The plaintiffs’ motion for a new trial was filed on June 7, 1982, said motion being denied after a hearing on September 21, 1982. Plaintiffs’ motion for devolutive appeal was filed on October 1, 1982.

Code of Civil Procedure Articles 2087 and 1974 provide in part:

Article 2087:

“Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of:
(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
(3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.
Article 1974:
“The delay for applying for a new trial shall be seven days, exclusive of legal holidays. Except as otherwise provided in the second paragraph hereof, this delay commences to run on the day after the judgment was signed.
When notice of the judgment is required under Article 1913, the delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.”

The appellees contend that Article 2087(1) is applicable to the facts of this case, and thus the expiration date for applying for a new trial would have been 67 days after the notice of judgment was mailed, or August 17, 1982. Under this argument, an appeal perfected on October 1, 1982 would be dismissed.

The appellants argue that Subsection (2) of Article 2087 should be applied to this case. The appellants’ motion for a new trial was denied on September 21,1982. An appeal filed on October 1 would be timely. However, the motion for a new trial was filed on June 7, 1982, two days before the final judgment was signed. This court is Deville v. Babineaux, 396 So.2d 978 (3rd Cir.1981) stated that an application for a new trial filed prior to the signing of a final judgment was without effect. However, the facts of the case before us are distinguishable from Deville. After the signing of the judgment in this case, a hearing was conducted on the application for a new trial in which the appellees herein raised no objection to the premature filing of the Motion for a New Trial.

The Supreme Court in U.S. Fire Insurance Company v. Swann, 424 So.2d 240 recently stated: “First of all there is the philosophy underlying the Code of Civil Procedure, as stated by Henry G. McMahon, coordinator of the Code of Civil Procedure in the introduction to the Code:

The new code embodies procedural rules designed to permit the trial of a case to serve as a search for the truth, and to have its decision based on the substantive law applicable, rather than upon technical rules of procedure.

This procedural philosophy is embodied in La.C.C.P. art. 5051, which provides:

The articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves.

In recognition of the fact that procedural rules are merely to implement the substantive law, as well as the fact that appeals are constitutionally guaranteed (La. Const, art. V, § 5(F) and § 10), this Court has consistently held that appeals are favored in the law and should be maintained unless a legal ground for dismissal is clearly shown. An appeal is not to be dismissed for a mere technicality. Davidge v. Magliola, 346 So.2d 177 (La.1977); Howard v. Hardware Mutual Company, 286 So.2d 334 (La. 1973); Louisiana Power and Light Company v. Lasseigne, 255 La. 579, 232 So.2d 278 (1970); Favrot v. Favrot, 252 La. 192, 210 So.2d 316 (1968); Kirkeby-Natus Corporation v. Campbell, 250 La. 868, 199 So.2d 904 (1967). Unless the ground urged for dismissal is free from doubt, the appeal should be maintained. Gulf States Utilities Co. v. Dixie Electric Membership Corp., 248 La. 458, 179 So.2d 637 (La.1965); Emmons v. Agricultural Ins. Co., 245 La. 411, 158 So.2d 594 (La.1963).

The circumstances giving rise to the instant controversy are, in a sense, similar to those presented in the case of Nomey v. State, Department of Highways, 325 So.2d 732 (La.App. 2nd Cir.1976), in which case our brethren of the Second Circuit held that a premature order of appeal should be given effect where the trial court judgment was subsequently signed in close proximity of time. See also Palmer v. Wren, 361 So.2d 1206 (La.1978). We can conceive of no reason why the rational of Nomey should not be equally applicable to a case involving a premature application for a new trial when the formal judgment is signed in close proximity of time to the premature application; the judgment is not substantially different from that previously announced; and the application is later acted upon and denied by the trial court.

Taking into consideration the above facts and jurisprudence plus the fact that the appellees will in no way be prejudiced, we deny the Motion to Dismiss.

MOTION DENIED.


author: CUTRER, Judge.

text:
    Elda JEANMARD; Edwin Jeanmard, Plaintiffs-Appellants, v. SEARS, ROEBUCK & COMPANY and Allstate Insurance Company, Defendants-Appellees.
    No. 82-700.
    Court of Appeal of Louisiana, Third Circuit.
    July 21, 1983.
    See also La.App., 436 So.2d 575.
    J. Wendel Fusilier and Alex D. Chapman, Jr., Ville Platte, for plaintiffs-appellants.
    Chaffe, McCall, Phillips, Toler & Sarpy, James A. Babst, New Orleans, for defendants-appellees.
    Before DOMENGEAUX, CUTRER and STOKER, JJ.
   CUTRER, Judge.

Elda Jeanmard and her husband brought suit against Sears, Roebuck and Company (Sears) and its insurer, Allstate Insurance Company (Allstate), for damages due to personal injuries incurred by Mrs. Jean-mard as a result of a one-vehicle accident. Sears had performed repairs on the car the day of the accident and as she was proceeding to her home, the hood came open causing Mrs. Jeanmard to lose control of the car. She sustained injuries in the resulting accident.

After a non-jury trial the court rendered judgment in favor of the plaintiffs. The plaintiffs appealed the adequacy of the award and the refusal of the trial court to grant a new trial. We affirm.

FACTS

The trial court, in written reasons for judgment, set forth the facts surrounding the occurrence of the accident as follows:

“This suit is the result of a single car accident on September 18, 1978, on U.S. Highway 167. Plaintiff had earlier in the day left her car, a 1971 Cadillac Eldorado, with Sears, Roebuck & Company to have the shock absorbers replaced and the engine hoses inspected. At approximately 5:00 P.M., Mrs. Jeanmard picked up her car, paid the $58.77 bill, and proceeded to drive home by way of U.S. Highway 167. Approximately ten miles north of Lafayette, Louisiana, the hood to her car Hew up and backwards, striking her windshield, causing her to lose control of the automobile, which left the highway and collided into the adjacent embankment.

As a result of the accident Mrs. Jeanmard received primarily neck and shoulder injuries.

After trial, the trial court held that defendants were liable for not properly latching the hood and awarded the plaintiffs the following damages:

General Damages $20,000.00
Stipulated Medical 4,438.12
Future Medical 3,150.00
Vehicle Damage 100.00
$27,688.12

Plaintiffs’ motion for a new trial was denied. Plaintiffs appealed, presenting two issues:

(1) Whether the award for general damages was adequate; and

(2) Whether a new trial should be ordered on the question of quantum.

QUANTUM

As we review the facts to determine whether the trial court’s award was adequate we must apply the standards of appellate review as set forth in Reck v. Stevens, 373 So.2d 498 (La.1979), which stated as follows:

“We do re-emphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.”

At the time of the accident, Mrs. Jeanmard was a sixty-seven year old, well educated, retired school teacher. She was very active in the International Federation of Home Economics. This required her to travel extensively to different countries to attend meetings. Her hobbies were playing golf with her husband, writing, sculpturing and gardening.

After the accident she went to her home in Yille Platte. The following day, September 19, 1978, she was taken to a hospital where she was seen by Dr. Edward Lyons. Dr. Lyons stated that she was disoriented due to hyperventilation. She was treated for four days and discharged from the hospital. On October 9, 1978, Mrs. Jeanmard saw Dr. Lyons again complaining of neck and shoulder pains. The physician prescribed medication. He noted that she exhibited no signs of physical trauma. He saw her intermittently and referred her to Dr. Lee Leonard, an orthopedic surgeon.

This physician examined Mrs. Jeanmard in March 1980. He stated that she was 5 ft. 1½ in. tall and weighed 178 pounds. He diagnosed her problem as being a degenerative joint disease involving the neck and right shoulder. He felt this condition was probably aggravated by the incident. Dr. Leonard stated that she had suffered 5% to 10% body impairment. He felt that she would improve if she had a disc operation at the C-5, C-6 level. This physician referred Mrs. Jeanmard to Dr. Abram Young, a neurosurgeon.

Dr. Young saw her first on April 18,1980. After examination he concluded that she had a nerve root compression in her neck either due to spondylytic disease, which is calcification, or acute changes relative to a disc herniation. He performed a myelo-gram in May 1980 which showed a defect at the C-6, C-6 level. He recommended surgery to alleviate this problem. He stated that Mrs. Jeanmard refused the surgery for two reasons. First, she stated that she had more good days (without pain) than bad ones and, as long as this situation existed, she didn’t want to undergo surgery. Secondly she had a trip planned to go to Manila, in the Phillipine Islands, for a meeting of the delegates of the International Federation of Home Economics. Surgery to be performed in the summer of 1980 would interfere with this activity. Dr. Young classified her pain as mild to moderate and this would continue intermittently until alleviated by surgery.

Mrs. Jeanmard was also seen by Dr. Stephen Goldware, a neurosurgeon, for evaluation. This examination took place on October 21,1980. Dr. Goldware’s diagnosis was substantially the same as that of Dr. Young’s. He felt that she suffered a 5% impairment of the body, due principally to the pinched nerve of the neck.

Dr. Goldware recommended surgery and estimated its cost as follows:

$1,750.00 for a single level anteroio cervical fusion, surgeon’s fee;
$600.00 for the operating room and supplies;
$100.00 for an internist examination; $600.00 for the hospital stay; and $100.00 for cervical collars.

Mrs. Jeanmard testified that her neck and shoulder condition interrupted or interfered with her golfing, sculpturing and gardening. She admitted, however, that it did not interfere with her activities with the International Federation of Home Economics. She drove to Colorado after the accident. Also, she went to the Phillipines for a meeting in the summer of 1979.

Based upon the testimony of the physicians and other evidence the trial court awarded $20,000.00 general damages and $7,688.12 special damages, including future medical as testified to by Dr. Goldware.

Applying the standards of review heretofore set forth, we find no abuse of discretion in the trial court’s award of $20,000.00 for general damages.

MOTION FOR A NEW TRIAL

Mr. and Mrs. Jeanmard contend that the trial court erred by failing to grant a new trial due to post-trial surgery of Mrs. Jeanmard. In support of their motion the Jeanmards attach the deposition of Dr. Young and his fees charged for surgery. The Jeanmards contend that the trial court should grant a new trial to include the testimony concerning the surgery that was performed after trial. It is their position that such testimony would serve as to reflect an increase in the damages. The trial court denied the motion without reasons.

The trial court, in its award of $27,688.12, considered the fact that future surgery would be necessary. This fact was set forth in the trial court’s reasons for judgment. We have examined the motion and its attachment and we find that the trial court did not abuse its discretion in denying the motion for a new trial.

For these reasons, the judgment of the trial court is affirmed. The appellants, Mr. and Mrs. Jeanmard, are to pay the costs of this appeal.

AFFIRMED.


author: WILLIAMS, Judge.

text:
    John V. REED v. GULF INSURANCE COMPANY and House of Decor, Inc.
    No. CA-0350.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 12, 1983.
    Rehearing Denied Aug. 23, 1983.
    Writ Granted Nov. 11,1983.

      Michael A. Fenasci, New Orleans, for plaintiff-appellee.
    Robert N. Ryan, William L. Brockman, New prleans, for defendant-appellant.
    Before AUGUSTINE, BYRNES and WILLIAMS, JJ.
   WILLIAMS, Judge.

This appeal arises from a jury verdict in a personal injury action, returned in favor of plaintiff, John V. Reed, and against defendants, House of DeCor, Inc. and its insurer Gulf Insurance Company, in the amount of $100,000.00 (the policy limits) jointly, severally and in solido, and individually against the House of DeCor, Inc. for an additional $100,000.00. This verdict was recorded and duly entered as the judgment of the court below. From this judgment, defendants have suspensively appealed.

The accident occurred as plaintiff was engaged in assisting another person, Chuck Williams, in moving a refrigerator, from an upstairs apartment in the French Quarter, down to street level. Plaintiff and Williams were required to maneuver the refrigerator down exterior metal stairs. As plaintiff moved down the steps from the second floor landing, he was beneath the refrigerator guiding its descent while Williams was above him holding the refrigerator in his arms. When plaintiff reached the mid-point of the stairs, Williams lost his grip on the refrigerator and plaintiff felt its entire weight press against him. Rather than be forced down the remainder of the steps by the weight of the refrigerator, plaintiff attempted to jump over the railing and to allow the refrigerator to slide freely to the ground. Although plaintiff tried to avoid the refrigerator, it caught his foot against the railing and twisted it backwards, fracturing his ankle.

At the time of the accident, plaintiff was employed in a French Quarter hotel as a bellhop. He had been requested by one of the owners of the House of DeCor, Inc. to assist Williams in moving the refrigerator. It was later proved at trial that plaintiff performed this act gratuitously.

The crucial factual issues in this action are: (1) whether Chuck Williams’s status was one as an employee of the House of DeCor, Inc.; and (2) whether he was acting within the course and scope of his employment at the time of the accident. Defendant alleges the trial court committed reversible error by: (1) denying defendant’s motion for a directed verdict; (2) failing to include a jury instruction on course and scope of employment; (3) failing to include a special jury interrogatory on course and scope of employment; (4) failing to halt improprieties allowed to occur during the conduct of the trial; and (5) failing to have recorded the voir dire examination of prospective jurors.

At the end of plaintiff’s case, defendant moved for a directed verdict. The trial court denied this motion. The standard to determine whether a directed verdict should be granted is: “... viewing all the evidence in a light most favorable to the plaintiff, could reasonable persons arrive at a contrary verdict, that is, could they reach a verdict other than one in favor of the defendant.” Breithaupt v. Houston Genera] Insurance Company, 398 So.2d 608 (La.App. 3d Cir.1981); Cuccia v. Cuccia, 394 So.2d 840 (La.App. 4th Cir.1981); Leffingwell v. Atlas Asphalt, Inc., 376 So.2d 175 (La.App. 4th Cir.1979); Campbell v. Mouton, 373 So.2d 237 (La.App. 3d Cir.1979). Based upon review of the record, we conclude that the trial court did not abuse its discretion in denying defendant’s motion for a directed verdict.

We find the trial court’s alleged error in permitting counsel for plaintiff to refer to defendant’s amended answer, does not merit serious consideration in this particular case. The allegation contained in defendant’s answer asserted that plaintiff was an employee of defendant and therefore his suit in tort was barred by the Louisiana Workers’ Compensation Statutes. First, the comment made by plaintiff’s counsel, when viewed as a whole, was more explanatory in nature rather than prejudicial. Second, plaintiff’s raising of this issue concerning defendant’s amended answer in his closing rebuttal argument was not the first mention of this issue before the jury. Counsel for the defense had asked several witnesses pointed questions with regard to whether plaintiff was an employee of House of DeCor, Inc. The resulting evidence from these witnesses showed that plaintiff was clearly not an employee of defendant, but was simply an employee of the hotel. Defense counsel also addressed this issue in his closing argument trying to show that plaintiff was an employee of defendant. Furthermore, the jury was given a special jury interrogatory form with one interrogatory specifically addressing the question of whether plaintiff was an employee of defendant, House of DeCor, Inc. To this particular interrogatory, the jury answered unanimously that he was not. We conclude that there has been no showing that plaintiff’s reference to defendant’s amended answer was prejudicial to defendant’s position. Wexler v. Martin, 367 So.2d 111 (La.App. 4th Cir.1979).

Defendant alleges that the trial court erred in not charging the jury on the law of course and scope of employment with regard to Chuck Williams and in failing to submit to the jury a special interrogatory on whether Chuck Williams was in the course and scope of his employment at the time of the accident. The trial court’s special charge in the area of employment was as follows:

One of the questions you will have to answer is whether or not Chuck Williams was an employee or servant of the House of DeCor, Inc. In order to constitute the relationship of master and servant, insofar as the liability of the master or employer for the acts of the servant or employee is concerned, there need be no express contract of employment. If one knowingly and without objection receives the benefits of labor, or holds out to the public one as engaged in his service, he is liable as a master for the acts of the latter as his servant, but is not to be understood that a person can be rendered liable for injuries caused by the negligent act of a mere volunteer, who, without the knowledge or consent of the former, undertook to perform services in his behalf. Bates v. Lagers, 193 So.2d 375; Smith v. [Foucha] Fouchea, 172 So.2d 318.

The special interrogatories submitted to the jury to be used in determination of their verdict and their answers were as follows:

1. Was John V. Reed an employee of the House of DeCor, Inc. at the time of the accident sued on in this lawsuit? No.
2. Was Charles Williams a servant or employee of the House of DeCor, Inc. at the time of the accident sued on in this lawsuit? Yes.
3. Was the negligence of Charles Williams a cause of the injury sustained by plaintiff, John V. Reed? Yes.
4. Was plaintiff, John V. Reed, guilty of contributory negligence which was a cause of his injury? No.
5. What amount of damages, if any, do you award to plaintiff, John V. Reed? $200,000.00.

Initially we find that it was reasonable for the jury to conclude that Chuck Williams was an employee of the House of DeCor, Inc. All of the testimony at trial indicated that Chuck Williams did odd jobs and handywork for the House of DeCor, Inc. for several months prior to the accident. He was in and out of defendant’s establishment interacting with other known employees of the business, carrying boxes, assisting customers, and occassionally acting as informal security for defendant when requested to throw out a drunk or disorderly patron. The contrary evidence presented by defendants, showed that Chuck Williams lived in an apartment behind the main business and was merely a tenant on the property. He was also allowed to run a T-shirt stenciling business in an adjoining alleyway next to the House of DeCor, Inc. At the time of the accident, one of the owners of the House of DeCor, Inc. asked plaintiff to assist Chuck Williams in moving the refrigerator. It is apparent that Williams did many chores for the House of DeCor, Inc., and/or its owners, and we conclude that Williams was at least, an apparent employee of the House of DeCor, Inc. and that a master/servant relationship did, in fact, exist. Bates, supra; Foucha, supra.

Defendant’s argument concerning jury instruction and special interrogatories merit serious consideration. The trial court’s instructions to the jury did not address the issue of whether Chuck Williams was acting within the course and scope of this apparent employment at the time of accident. Vicarious liability of an employer cannot attach unless the employee is within this course and scope. Weysham v. New Orleans Public Service, Inc., 385 So.2d 19 (La.App. 4th Cir.), reh. den., writ den. 392 So.2d 690 (1980). Assuming, arguendo, that Williams was an employee of the House of DeCor, Inc., defendants could be held liable only if Williams were acting in the course and scope of his employment. La.C.C. art. 2320; Campbell v. Mouton, 412 So.2d 191 (La.App. 3d Cir.) reh. den., writ den. 415 So.2d 954 (1982).

There is no test to determine whether an employee is within the course and scope of his employment, but “each case must be decided on its own facts; some factors are: the time the act was committed; was the employee obliged to perform this duty for the employer; what was the place, the circumstances and purpose of the employee’s act in relation to the promotion of the employer’s business; what were the employee’s motives in performing the act; and whether the act was one done by employees in similar capacities and whether the employer had reason to expect that such an act would be performed by an employee”. Lowe v. Gentilly Dodge, Inc., 342 So.2d 1231 (La.App. 4th Cir.1977); St. Paul Fire & Marine Ins. Co. v. Roberts, 331 So.2d 529 (La.App. 1st Cir.1976) reh. den.; See also Daughdrill v. Diamond M Drilling Co., 447 F.2d 781 (5th Cir.1971), cert. den. 405 U.S. 997, 92 S.Ct. 1261, 31 L.Ed.2d 466 (1972).

The trial court, in its charge to the jury, did not address the course and scope of employment as regards to Chuck Williams, nor did the court give the jury the opportunity to decide whether Chuck Williams was within the course and scope of employment with regard to the House of DeCor, Inc. We find the trial court’s failure to charge the jury on the course and scope of employment as regards Chuck Williams and its failure to submit to the jury a special interrogatory on the same subject, prevented the jury from considering these decisive issues.

Parties to litigation have the right to have all the evidence weighed in light of the proper jury instructions which fairly and reasonably point up the issues presented by the pleadings and the evidence, and which provide the correct principles of law for the jury to consider in application thereto. Gonzales v. Xerox Corp., 307 So.2d 153 (La.App. 1st Cir.1974) writ issued, 309 So.2d 677; aff’d in part, rev’d in part, 320 So.2d 163 (La.1975) on remand, 329 So.2d 818 (La. App. 1st Cir.1976). See also McElroy v. Vest, 407 So.2d 25 (La.App. 3d Cir.1981); Bedford v. Cazayoux, 399 So.2d 1214 (La. App. 1st Cir.1981); writ den. 404 So.2d 280 (La.1981). Although the trial court is not required to give the precise jury instructions submitted by the parties, the court must give instructions which properly reflect the law applicable in light of the pleadings and the facts in each particular case. Miller v. Fogleman Truck Lines, Inc., 398 So.2d 634 (La.App. 3d Cir.1981), writ den., 401 So.2d 358. The trial court must give the proper charge on all facets of the law involved in a case. Bond v. Jack, 387 So.2d 613 (La.App. 3d Cir.1980), writ granted, 393 So.2d 743, aff’d, 407 So.2d 401 (La. 1981). The trial court has clearly failed to provide all the instruction on the law required in this case and we find this omission manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring, 283 So.2d 716 (La.1973). The trial court’s single special jury instruction instructed the jury only on the master/servant relationship and nothing more. This single charge was inadequate in view of the evidence in the record. If the trial court gives confusing, misleading instructions or omits an applicable essential legal principle, such instructions do not adequately set forth the law and constitute reversible error. Guidry v. Houston General Insurance Company, 396 So.2d 578 (La.App. 3d Cir. 1981).

We conclude, therefore, that the trial court erred in not giving a jury instruction on the course and scope of employment with regard to Chuck Williams, and that if special interrogatories are to be used, on remand, that a special interrogatory directed to whether Chuck Williams was within the course and scope of his employment at the time of the accident be provided the jury in their determination of a verdict.

Defendant has alleged that there was error committed by the trial court in not requiring the court reporter to record the voir dire examination of prospective jurors. No timely objection was made with regard to recording this examination. Both parties state in brief that it is not an issue on appeal but that they are desirous of this court issuing instructions requiring voir dire examination be recorded. We decline to do so. We see no need to interfere with a trial court’s procedure at trial when the “alleged error” is not at issue. A timely objection or an application for supervisory writs would have presented this issue to us. In absence of these two acts, the parties have rendered this point moot.

For the foregoing reasons, we affirm the trial court’s denial of defendant’s motion for a directed verdict and reverse the jury verdict and judgment entered and remand for a new trial in accordance with the reasons stated above.

AFFIRMED IN PART REVERSED IN PART AND REMANDED.

      . Bates v. Lagars, 193 So.2d 375 (La.App. 2d Cir. 1966), reh. den.; writ ref. 250 La. 267, 195 So.2d 146 (La. 1967) and Smith v. Foucha, 172 So.2d 318 (La.App. 4th Cir.1965) reh. den.; writ ref. 247 La. 678, 173 So.2d 542 (La. 1965).


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Cornell ROBINSON, Defendant-Appellant.
    No. CR83-47.
    Court of Appeal of Louisiana, Third Circuit.
    May 12, 1983.
    Edwin Dunahoe, Thomas, Dunahoe & Gregory, Natchitoches, for defendant-appellant.
    John G. Williams, Eric Harrington, Asst. Dist. Attys., Harrington & Harrington, Natchitoches, for plaintiff-appellee.
    Before FORET, CUTRER and LA-BORDE, JJ.
   LABORDE, Judge.

QUESTION OF TIMELINESS OF APPEAL

Defendant, Cornell Robinson, was convicted of theft in excess of one hundred dollars and was sentenced on October 29, 1982, to serve five years at hard labor. This appeal was filed on January 17, 1983, and on January 20, 1983, an order to show cause was issued ordering defendant to show on or before February 3,1983, why his appeal should not be dismissed as having been untimely perfected under LSA-C. Cr.P. art. 914.

This article requires:
A motion for an appeal may be made orally in open court or by filing a written motion with the Clerk. The motion must be made no later than five days after the rendition of the judgment or ruling from which the appeal is taken. The motion shall be entered in the minutes of the Court.

This appeal has not met the requirements of this article. Defendant was sentenced on October 29, 1982; however, he did not move for an appeal of his conviction until November 12, 1982. This time delay is beyond the five (5) day requirement established by the Legislature in Article 914. Thus, the appeal was untimely filed.

Inasmuch as the appeal was untimely perfected under the requirements of the Louisiana Code of Criminal Procedure, the appeal is dismissed.

APPEAL DISMISSED. UNTIMELY FILED.


author: YELVERTON, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Edward Frank RAINEY, Defendant-Appellant.
    No. CR83-69.
    Court of Appeal of Louisiana, Third Circuit.
    May 12, 1983.
    Gerald J. Casey, Lake Charles, for defendant-appellant.
    Jerry G. Jones, Asst. Dist. Atty., Cameron, for plaintiff-appellee.
    Before FORET, LABORDE and YEL-VERTON, JJ.
   YELVERTON, Judge.

QUESTION OF TIMELINESS OF APPEAL

Defendant, Edward Frank Rainey, was convicted of charges of theft of a value of six hundred dollars and of simple escape. On December 13, 1982, defendant was sentenced to serve five years on each charge, with the sentences to run concurrently. This appeal was filed on January 21, 1983, and on February 10,1983, an order to show cause was issued ordering defendant to show on or before February 25, 1983, why his appeal should not be dismissed as having been untimely perfected under LSA-C. Cr.P. art. 914.

This article requires:

A motion for an appeal may be made orally in open court or by filing a written motion with the Clerk. The motion must be made no later than five days after the rendition of the judgment or ruling from which the appeal is taken. The motion shall be entered in the minutes of the Court.

This appeal has not met the requiréments of this article. Defendant was sentenced on December 13, 1982; however, he did not move for an appeal of his conviction until December 22, 1983. This time delay is beyond the five (5) day requirement established by the Legislature in Article 914. Thus, the appeal was untimely filed.

Inasmuch as this appeal was untimely perfected under the requirements of the Louisiana Code of Criminal Procedure, the appeal is dismissed.

APPEAL DISMISSED. UNTIMELY FILED.


author: LOBRANO, Judge.

text:
    Gwendolyn C. SMITH v. ORLEANS PARISH SCHOOL BOARD.
    No. CA-0495.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1983.

      Clare Jupiter, Jefferson, Bryan & Gray, New Orleans, for defendant/appellant.
    Larry Samuel, Samuel & Foshee, New Orleans, for plaintiff/appellee.
    Before KLEES, AUGUSTINE and LO-BRANO, JJ.
   LOBRANO, Judge.

This appeal arises from a judgment awarding Gwendolyn C. Smith workmen’s compensation benefits from July 4, 1980, subject to credits for payments made, other salary paid and unemployment benefits received. Defendant, Orleans Parish School Board perfects this appeal.

On January 21, 1980, while employed by the defendant as a substitute teacher assigned to duties instructing special education students at the Audubon Special School, plaintiff sustained injuries to her back when one of the children jumped into her arms while another child held her legs, thus causing her to fall backwards. The issue presented is whether plaintiff sustained her burden of proving she was disabled because of a work related injury on January 21, 1980.

“As in any other civil suit the plaintiff in a workmen’s compensation action has the burden of establishing his disability and the causal relation between it and the accident by a preponderance of the evidence. This court has held, however, that a claimant’s disability is presumed to have resulted from an accident if, before the accident, the injured person was in good health, the symptoms of the disabling condition appearing after the accident and manifesting themselves continuously afterwards, providing there is a reasonable possibility of causal connection between the accident and the disabling condition.” Lindsey v. H.A. Lott, Inc., 387 So.2d 1091 (La.1980) at p. 1092.

The record reveals that plaintiff initially visited Dr. John Watermeir a few days after the accident. His diagnosis was a mild cervical and lumbar strain. Since Mrs. Smith was pregnant at the time, no x-rays were taken, and no medication was prescribed. Thereafter, on January 28, 1980, she went to Dr. Roy Marrero under whose care she remained off and on until the date of the trial.

According to the testimony of Dr. Roy Marrero, tenderness in the right paraspi-nous muscles was still detected on July 28, 1980, at which time Dr. Marrero advised that she was still disabled. Plaintiff did not see Dr. Marrero again until June 16, 1981. In that visit, and the ones of August 10th and September 8, 1981, Dr. Marrero detected tenderness in the lumbar spine area. Dr. Marrero testified that he felt Ms. Smith was still disabled because of her back on September 8, 1981, February 22, 1982, and March 8, 1982. Dr. Marrero testified that on her last visit on May 18, 1982, Ms. Smith was still tender in the lower lumbar spine area, and that she could not work at that time.

The testimony of Dr. Marrero was corroborated by that given by the plaintiff. Plaintiff testified that since the date of the accident, she has had difficulty climbing stairs, and standing for long periods of time. On those occasions she has worked since the accident, plaintiff stated she has been in pain despite taking medication and performing the prescribed exercises.

Furthermore, it was stipulated between the parties that were she to testify, Eva Bickman, a co-worker of the plaintiff, would testify that “during the first semester of the 1981-82 school year on a number of occasions (approximately '6) she saw Ms. Smith lay on the| floor and perform exercises. During those occasions, Ms. Smith would inform Ms. Bickman that she was in pain, and that it helped when she would lay down on the floor to perform exercises. Ms. Bickman would further testify that Ms. Smith often spoke of her back pain.” (Stip. # 2)

Defendant’s expert witness, Dr. Ray J. Haddad, testified through deposition, that he had reviewed the medical record of Dr. Marrero and had examined Ms. Smith on two occasions. On the basis of these examinations, he concluded that although plaintiff’s symptoms were subjective, he could not be certain she was not actually still in pain as a result of the accident.

Once the trial court has made factual findings as to disability and length thereof, such determinations by the lower court are entitled to great weight and are not to be disturbed except on a showing of manifest error. Newell v. U.S.F. & G., 368 So.2d 1158 (La.App. 3rd Cir.1979).

In the case at bar, defendant argues that the trial court abused its discretion in awarding workmen’s compensation benefits to plaintiff with subjective symptoms of pain, extending over an unusually long duration. Additionally they point to the fact that the plaintiff worked sporadically from the date of the accident to the present and that there was an 11 month period in which plaintiff did not visit Dr. Marrero at all. As noted above, plaintiff is not claiming workmen’s compensation benefits for those dates on which she worked or received unemployment benefits. She testified and it was corroborated that on those occasions she did work she did so in pain. The trial court apparently found her testimony and that of Dr. Marrero to be credible and sufficient to establish her claim by a preponderance of the evidence.

Upon a review of the law and the evidence in this matter we hold there has been no showing that the trial court has committed manifest error. Accordingly, we order that the judgment of the trial court be affirmed.

AFFIRMED.


author: GARRISON, Judge. REDMANN, Chief Judge,

text:
    In re INTERDICTION OF George Nelson RONSTROM.
    No. C 0657.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1983.
    Writs Denied June 27,1983.

      Roger M. Evans, New Orleans, for relator.
    Kenneth E. Pickering, New Orleans, for respondent.
    Before REDMANN, GULOTTA, GARRISON, KLEES and WARD, JJ.
   GARRISON, Judge.

A curator is under a strict fiduciary obligation to prudently manage the affairs of the interdict. Succession of Demarest, 418 So.2d 1368 (La.App. 4th Cir.1982). That case involved allegations of mismanagement on the part of the executor of a succession which are almost identical to the case at hand.

As in the present case the executor in Demarest using succession funds paid to have property guarded during a delay caused by his own actions. In Demarest this court noted that the expenditure of $20.00 a day to guard assets which eventually were sold for $60,000.00 “seems a bit exorbitant.” Analyzing the duty of the executor in this situation the court stated “it would appear ... that the executor acting as a fiduciary, should have examined other avenues in order to find a more economical way to obtain protection for the furniture in the house.” The court “seriously question[ed] the need for such protection ... when one considers the many neighborhood services now available.” The court also noted that the record did not reflect that the executor had made any inquiry into the availability of a less expensive means of providing protection for the property.

The present case presents a picture of even greater mismanagement. The moveable property in question was valued by court appointed appraisers, paid for by the estate, at $157,837.00. This is the only appraisal which had been made of this property as of the hearing on the rule to remove the curator. To date the curator has expended approximately $80,000.00 on 24 hour guard service.

This expense alone amounts to approximately ½ of the appraised value of the movable property of the estate located on Esplanade Avenue. Given these values, the only ones which appear on the record, such an expenditure represents gross mismanagement and waste of the estate.

It appears that no steps had been taken as of the date of the hearing in February, 1983, to auction this property, although the curator had been in office for more than ten months. This dilatory conduct is but another indication of the curator’s breach of its fiduciary duty.

Moreover, the curator has failed to explore other effective and far less expensive means such as placing the movables in a warehouse or installing an electronic fire and burglar system. Testimony at the hearing on relator’s motion to remove curator established the availability, effectiveness, and relatively low cost of such a system. The curator has supplied no satisfactory explanation for this gross omission.

In addition, it was established that an all - risk insurance policy with limits consistent with the appraised value of the property was in effect during this entire period. Thus, even were the property to be totally destroyed the estate would have suffered no loss. Given these circumstances it seems inconceivable that Hibernia Bank was acting prudently by spending an additional $6,000.00 per month to guard fully insured property.

Hibernia contends that the reason for the guard service was their uncertainty as to the true value of the property. We find this reasoning to be unpersuasive. If the Bank did not trust the court ordered appraisal or felt that it was inaccurate, it seems that, as a prudent administrator, they should have ascertained the true value of the property before spending such enormous sums on guard service.

The position of curator is one which demands the strictest adherence to the high standard of care placed on fiduciaries. A curator must act exclusively in the best interest of the interdict at all times. He must administer the affairs of the interdict with scrupulous attention to every detail and must explore every avenue available in fulfilling his duty to the interdict. In this case the evidence is overwhelming that Hibernia Bank, as curator, not only failed to examine every means available to preserve the estate of the interdict but in fact has chosen a course of action more costly to the estate than any other. This court cannot condone such conduct on the part of one whom the law has entrusted with the welfare of one incapable of managing his own affairs.

For the foregoing reasons, it is ordered that Hibernia National Bank be removed as curator effective immediately.

WRITS GRANTED.

REDMANN, C.J., dissents with written reasons.

REDMANN, Chief Judge,

dissenting.

This record shows that the curator bank was imprudent in letting expensive guard service continue too long. The trial judge was surely justified in admonishing the bank (“let’s get on the stick”) to proceed swiftly. But to remove the bank as curator, now that the guard service has ended, is to close the barn door after the horse is out. It may well be that, on interim or final accounting, the bank should be disallowed credit for the extra guard service caused by its breach of its duty of prudent administration. But that issue is not before us.

What is before us is whether the bank should be removed as curator. The two grounds alleged are the cost of the extra guard service and the delay in selling the corporeal movables.

As suggested above, the bank has not “cost” the estate the price of the extra guard service because the bank cannot be allowed to charge the estate for any service not reasonably necessary. No one suggests that the bank is not able to return (with interest) any amount it may owe. Nor is there the least hint of bad faith, self-dealing or the like.

The other alleged cause for removal is failure to sell swiftly the interdict’s corporeal movables. But the curator’s basic obligation is to “take possession of, preserve, and administer the [interdict’s] property,” C.C.P. 4262, made applicable by C.C.P. 4554. Art. 4262 adds that the curator has the obligation to act as a prudent administrator and is liable for damages for failure to do so. The question of whether and when assets should be sold (with court approval, C.C.P. 4310) is whether the sale is prudent administration. There is no general obligation upon a curator to sell the interdict’s movables. Failure to sell, or delay in selling, does not warrant removal of the curator unless it amounts to mismanagement of the interdict’s property, C.C.P. 4234.

In this case, the interdict’s movables included hundreds of art objects and many pieces of antique furniture. There were questions as to the best method of sale. Indeed — a significant circumstance in itself — the interdict’s wife, who now seeks the curator’s removal, herself wished to retain some objects at her home where she cared for the interdict as curator of his person. That matter was not settled until judgment of October 15, 1982.

The trial judge evidently concluded that the bank’s slowness was not such mismanagement as would justify its removal. All things considered, that conclusion is at least not manifestly erroneous. Substantial justice will be done by disallowing the unreasonable charges for guard service when that issue is presented.


author: ALFORD, Judge.

text:
    James Sidney CONNER, Jr. v. Kaylynn Kern CONNER.
    No. 83 CA 0257.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1983.
    Rehearing Denied Aug. 8, 1983.
    Gerald J. Martinez, Metairie, for plaintiff, appellee.
    Floyd J. Reed, J.D., New Orleans, for defendant, appellant.
    Before COVINGTON, LANIER and ALFORD, JJ.
   ALFORD, Judge.

This matter comes before the Court on appellee’s motion to dismiss the lodged appeal of appellant, insofar as it relates to the divorce decree, on the basis that appellant acquiesced in that portion of the judgment of the trial court. Although appellee urges the acquiescence of appellant, the basis of the motion is more properly termed confession of judgment.

Appellee, James Sidney Conner, Jr., filed suit against his wife, Kaylynn Kern Conner, appellant herein, for a divorce on the ground of living separate and apart for one year under La.R.S. 9:301. Appellant answered the suit, admitting all factual allegations and requesting alimony in the form of a continuance of a previously issued support decree in a separate suit.

During on-the-record discussion immediately prior to trial on the merits, counsel for appellant stated, “There is no contest about the divorce, your Honor. It is a divorce grounded on either one or two years living separate and apart, and they have been separated that long.” At the close of trial, the trial judge rendered a judgment of divorce based upon mutual fault and further found appellant not to be free from fault for alimony purposes. The signed judgment reflects these findings also.

Appellant obtained an order of appeal returnable to this court on February 15, 1982. (The year is apparently in error and should be 1983). On April 19,1983, appellee filed the instant motion to dismiss. Appellant responded with a “Peremptory Exception” to the motion, considered herein as an opposition.

Appellee contends that the appeal should be dismissed insofar as it relates to the divorce because appellant confessed to a judgment thereto. Appellant counters that the motion to dismiss was untimely and that, in any event, one may not confess to a divorce judgment.

Appellee filed suit for divorce based upon living separate and apart for one year. It was with reference to the factual allegations of that basis that appellant entered admissions by answer and appellant’s counsel stated that there was no contest. However, the judgment of divorce appealed herein is based upon a finding of mutual fault, not upon the basis of living separate and apart for one year. Appellee does not argue that there is any evidence of a confession of judgment relative to a divorce based upon mutual fault. Therefore, appel-lee’s motion to dismiss lacks merit.

MOTION DENIED.


author: PER CURIAM.

text:
    Ernest JEFFERSON, Plaintiff-Appellant, v. MORTON SALT COMPANY, Defendant-Appellee.
    No. 82-419.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1983.
    Edwins, Royer and Associates by R.C. Edwins, Baton Rouge, for plaintiff-appellant.
    Onebane, Donohue, Bernard, Torian, Diaz, McNamara & Abell, Richard J. Petre, Jr., Lafayette, for defendant-appellee.
    Before STOKER, YELVERTON and KNOLL, JJ.
   On Rehearing.

PER CURIAM.

Considering the application of Ernest Jefferson for a rehearing, and considering the order of the Louisiana Supreme Court, 436 So.2d 456, it is ordered:

Ernest Jefferson is granted a rehearing, and this matter is remanded to the trial court for the taking of additional evidence relative to plaintiffs surgery. In the light of such evidence, the trial court shall determine whether plaintiff is entitled to a new trial for the determination of whether he has a residual disability from a work related injury.


author: SCHOTT, Judge.

text:
    A. Raoul BEZOU v. Margaret Gaines, Wife of A. Raoul BEZOU.
    No. C 0977.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 27, 1983.
    Writ Granted June 17,1983.
    Stay Order Denied June 28,1983.

      Robert C. Lowe, and Terence L. Hauver, New Orleans, for relator.
    Lanny R. Zatzkis, Lynne W. Wasser-man and Cindy M. Harris, New Orleans, for respondent.
    Before SCHOTT, GARRISON and KLEES, JJ.
   SCHOTT, Judge.

This is a battle between divorced parents over the custody of their two girls, ages 14 and 4. In August, 1982, when the divorce was decreed the custody of the two children was awarded to the mother. In March, 1983, the father moved for joint custody pursuant to Act 307 of 1982 and this motion was granted by judgment dated March 28. The judgment provided that the father was to have physical custody of the girls one day each week, on alternate weekends, and for two weeks during the summer. The mother was to have physical custody at other times, and both parents were to cooperate in making plans and decisions for the children. '

The mother applied to this court for'supervisory writs to change this judgment for reasons centered around the fact that she had taken a position in Washington, D.C. as an attorney with the National Labor Relations Board. She argued that joint custody was inappropriate in the face of her impending move and that the decree was constitutionally infirm because it was discriminatory and it interfered with her right to travel. We refused writs because, inter alia, we felt that her proper remedy was by appeal with a transcript of the testimony made available to us. However, upon her application the Supreme Court, 431 So.2d 1055, granted a writ on May 4, 1983, with the following disposition:

“The trial court order of March 28, 1983, is set aside insofar as it might prohibit Ms. Bezou from moving to Washington, D.C. with the children, the case is remanded to the trial court to fashion a suitable order for custody and visitation under the circumstances of the case.”

On June 3 the trial court rendered judgment awarding custody of the fourteen year old to the mother, and the four year old to the father. On June 13 the mother applied to this court for supervisory writs complaining that the trial court had “ignored” the Supreme Court’s directions, that the judgment of the trial court was not in the best interests of the children, and that her right to travel was violated. This time the entire transcript of the hearing held on March 21,1983, was attached to her application. We reviewed this transcript, studied the trial judge’s lengthy reasons for his judgment of June 3, considered the mother’s arguments, and concluded that the judgment was not abusive of the trial court’s great discretion in a custody case.

On June 17 the Supreme Court once again granted a writ on the mother’s application with the following disposition:

.

“Granted. Execution of the judgment of the trial court is stayed. The case is remanded to the Court of Appeal to decide the merits of the custody issue on the entire record after briefing and argument by the parties. In the meantime, the mother shall retain unlimited custody, (which she has exercised for the entire lives of both children), and the trial court shall retain jurisdiction to fix reasonable visitation privileges in the light of the mother's relocation outside of Louisiana.”

In compliance with that directive we have permitted the parties to supplement the record with whatever material they wished to provide, we have gotten additional briefing, and we have heard oral argument.

The guiding principles in this case require no citation of authority. They are ingrained in the jurisprudence and have been repeated in dozens of cases. An award of custody must be based solely on the best interests of the child; the trial judge is clothed with great discretion in deciding who is to have custody; and a custody award will not be disturbed absent a clear abuse of discretion.

In this case the father is a successful physician, and the mother a successful lawyer. Both being well educated, professional people, there is no suggestion that either would not be a fit custodial parent. In the old days the mother would have had the maternal preference rule to assist her, but in this time of equality both parents must be regarded as equally qualified to rear the children. The mother’s best argument that she can better relate to the little girl since they are both females makes sense, but it is not decisive. Nor is her argument that the two siblings should not be separated. There is a considerable age difference between them and it seems of some significance that the older child is from the mother’s first marriage, and, although adopted by respondent, she is not his natural child. Finally, it is of some significance that this mother as a professional woman will be understandably busy in the pursuit of her career. She will not be a traditional housewife available to her child at all hours of the day. She argues that her work schedule will permit her enough free time to provide companionship for her child, but we cannot overlook the fact that her time will not be her own considering that she is taking an important position and is pursuing a rewarding professional career. This is not to say or even suggest that this is unbecoming or that it makes her an unfit custodial parent. But it does place her on a somewhat equal footing with the physician father in this contest over which parent can better nurture and provide loving care for this child.

The four year old child is stricken with cystic fibrosis, her condition described by her physician as “mild.” This physician testified that the child could go to Washington where there are adequate medical facilities available for the treatment of the disease. He saw no problem in sending the child’s X-rays and medical history to a Washington specialist who could continue to treat the child. On the other hand, this physician possesses a reputation and credentials which are most impressive. He has been treating the child since she was thirteen months of age. He knows his patient and she knows him. It cannot be gainsaid that moving the child will replace a known, highly competent treating physician with an unknown quantity. Furthermore, the child’s father as a practicing urologist is a member of this medical community. He has a rapport with physicians and hospitals in this area which provides him with an ease of communication with them. This offers some advantage to the child.

We are aware of the Supreme Court’s parenthetical remark that the mother has had unlimited custody over both children for their entire lives. However, the father did also with respect to the younger child until the parties separated in June, 1981, when the child was 2½. Since that time he has enjoyed visitation rights so that we do not perceive any traumatic disruption in the award of custody to the father at this time. There is no evidence in the record that notions of stability of environment militate against the particular custody award under consideration.

Much of the mother's argument in this court is in defense to charges leveled against her by the trial judge in his reasons and in criticism of some of his remarks. Regardless of the fact that some of these statements are quite strong, the bottom line of his reasons is that the best interests of this four year old were served by placing her custody with the father. While his statements are ambiguous to the effect that he would prefer not to give sole custody of the child to the father, we understand him to mean that both parents leave something to be desired and this is the best he can do under the circumstances. We repeat what we said when we received this case before, the trial judge made a hard decision and we find no abuse of discretion such as to warrant a change on the appellate level. The judgment is affirmed.

AFFIRMED.