author: KLEES, Judge.

text:
    Henry HOLMES, Jr., et al. v. Michael CHRISTOPHER, et al. Carolyn Ann Brown SCHMIDT, et al. v. Henry HOLMES, Jr., et al. Kenneth G. SONIAT, et al. v. Michael CHRISTOPHER, et al.
    Nos. 12733 c/w, 12734 c/w and 12735.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 24, 1983.
    Rehearings Denied Aug. 23, 1983.

      Jack M. Alltmont, Sally A. Shushan, Sessions, Fishman, Rosenson, Boisfontaine & Nathan, New Orleans, for defendants-appellants Mississippi River Bridge Authority and Employers Fire Ins. Co.
    William D. Norman, Jr., Midió & Leh-mann, New Orleans, for defendant-appellee Michael Christopher.
    Felicien P. Lozes, Lozes & Lozes, New Orleans, for defendants-appellants Cheryl Butts and Commercial Union Ins. Co.
    Arthur C. Reuter, Jr., Reuter & Reuter, New Orleans, for defendant-third party plaintiff-appellant Boh Bros. Const. Co., Inc.
    Daniel Lund, Montgomery, Barnett, Brown & Read, New Orleans, for plaintiff-appellee Carolyn Ann Brown Schmidt.
    Donald A. Hammett, Hammett, Leake & Hammett, New Orleans, for defendants-ap-pellees Government Employees Ins. Co.

      Before GULOTTA, KLEES and AUGUSTINE, JJ.
   KLEES, Judge.

This case arises from a head-on collision on the Algiers approach to the Greater New Orleans Mississippi River Bridge during the early morning hours of Saturday, September 28, 1974. At approximately 4:11 a.m. on that morning, a 1966 Ford driven toward New Orleans by Mr. George Schmidt collided head-on with a 1971 Buick driven toward Algiers by Mr. Henry Holmes. As a result of the accident, Mr. Schmidt was killed and his two passengers, Mr. Kenneth Soniat and Mr. Frederick Parsons were injured, along with Mr. Holmes.

Also involved in the lawsuit, as defendants, are Ms. Cheryl Butts, and Mr. Michael Christopher. Ms. Butts was the driver of a 1974 Dodge automobile which at the time of the accident was travelling in a New Orleans bound direction on the bridge ahead of the Schmidt vehicle. Christopher, at the time of the accident, was driving his 1966 white van in an Algiers bound direction behind the Holmes car.

Additionally, the Mississippi River Bridge Authority (“MRBA”) and Boh Bros. Construction Company were made defendants. The MRBA was the operator of the bridge and Boh Bros, was performing repairs on the centerspan of the bridge (the area under the steel superstructure).

All of the various lawsuits were consolidated for trial. The principal claim was that filed by Mrs. George Schmidt, individually and on behalf of her minor child, to recover for the death of Mr. Schmidt. A separate suit was filed on behalf of Mr. Schmidt’s passengers, Mr. Soniat and Mr. Parsons, and another suit was filed by Mr. Henry Holmes.

Three suits were filed and consolidated for trial, and the matter was tried without a jury. In Case Number 599-672, Carolyn Ann Brown Schmidt sued individually and on behalf of her minor son, Christian Schmidt against Henry Holmes, Jr.; Cheryl L. Butts, her insurer, Commercial Union Insurance Company (subject to their policy limits of $50,000.00); Michael L. Christopher; Mississippi River Bridge Authority, its insurer, Employer’s Fire Insurance Company; Boh Brothers Construction Company, Inc.; and Government Employees Insurance Company in its capacity as the uninsured motorist insurer subject to its policy limits of $5,000.00.

The trial judge found in favor of the plaintiffs against the defendants in the amount of $235,886.00.

The trial judge granted the third party demand of Government Employees Insurance Company against all of the defendants, jointly, severally and in solido for the sum of $5,000.00, with interest and costs. All other incidental demands were dismissed by the court with prejudice.

In Case Number 599-577, Frederick Parsons and Kenneth Soniat, passengers in the Schmidt vehicle, sued Christopher, Butts, Commercial Union Insurance, Holmes, Schmidt Estate and Omnibus Insurer, GEI-CO, MRBA, Employee’s Fire Insurance and Boh Brothers. The trial judge found in favor of Soniat and awarded general damages of $1,500.00, later amended to $5,000.00 general damages, and $545.90 special damages against Holmes, Butts, Commercial Union Insurance Company, Christopher, MRBA, Employer’s Fire Insurance Company, Boh Brothers Construction Company, Inc., GEICO, subject to its policy limits.

The trial court held in favor of Parsons and awarded damages of $3,500.00, later amended to $15,000.00 general damages and $13,060.19 special damages against Holmes, Butts, Commercial Union, Christopher, MRBA, Employer’s Fire Ins. Co., Boh Brothers, and GEICO, subject to its policy limits.

The court granted the third party demand of GEICO against all of the defendants jointly, severally, and in solido for the sum of $5,000.00. All other incidental demands were dismissed by the court with prejudice.

In Case Number 597-062, Holmes filed suit against Christopher, Commercial Union Insurance Company, Schmidt, GEICO, MRBA, Employer’s Fire Insurance Company, and Boh Brothers. The court found in favor of the defendants, and all other incidental demands were dismissed with prejudice.

After the judgment was rendered, a new trial was granted with regard to the third party contractual claim between MRBA and Boh Brothers Construction Company.

ISSUES

The defendants, MRBA, Boh Brothers Construction Company, Cheryl Butts and Michael Christopher have appealed claiming that the court erred in finding them to be negligent. They also claim that the trial court erred in failing to find the deceased and his passengers contributorily negligent. Henry Holmes has not appealed, therefore, the judgment against him is final. The plaintiff-appellee, Carolyn Schmidt, individually and on behalf of her minor son, has answered the appeal seeking an increase in the damage award.

FACTS

In his Reasons For Judgment, the trial court gave his version of the facts of this case. We summarize those facts below and find sufficient evidence in the record to support these findings of fact.

On September 24, 1978, the date of the accident from which these claims arise, road construction work was being performed on the Greater New Orleans Mississippi River Bridge pursuant to a contract between the Mississippi River Bridge Authority and Boh Brothers Construction Company.

Prior to the commencement of the work, there was an emergency lane with two lanes of traffic on each side. When the resurfacing of the Algiers bound lanes commenced, those two lanes of traffic were closed and the traffic was re-routed into the emergency lane. This was accomplished by signs and traffic control devices. The traffic was allowed to return to the normal two lanes of travel before it reached the end of the superstructure on the Algiers side of the bridge.

The head-on collision between the Holmes vehicle and the Schmidt vehicle occurred approximately one-half (½) mile past the last traffic control devices which returned the traffic to their normal travel lane.

On that morning at 4:11 a.m., George Henry Schmidt was operating a 1966 Ford sedan traveling eastward on the Bridge in the left hand lane of the two normal traffic lanes for east bank bound traffic. Kenneth Soniat and Frederick Parsons were passengers in that car. Some distance ahead of the Schmidt vehicle, a 1974 Dodge operated by Cheryl Butts was traveling in the same direction and in the same lane of traffic. A Chevrolet van operated by Michael Christopher, traveling in an opposite direction to the Butts vehicle and traveling in the emergency lane collided with the Butts vehicle in a side-swiping fashion. Christopher then apparently lost control of his van, and struck the rear of a 1971 Buick operated by Henry Holmes. Holmes was heading toward the west bank of the Mississippi River ahead of Christopher. Holmes crossed over the emergency lane boundary into the east bank bound lane of traffic, where it struck the Schmidt vehicle head-on, which collision resulted in the death of George Henry Schmidt. (The head-on collision between the Holmes vehicle and the Schmidt vehicle occurred in Schmidt’s lane.) Soniat, Parsons and Holmes received personal injuries. LIABILITY OF THE MISSISSIPPI RIVER BRIDGE AUTHORITY

The Mississippi River Bridge Authority (MRBA) is the agency legally responsible for traffic safety on the Mississippi River Bridge at New Orleans. The MRBA has the full power to construct, maintain, repair, supervise and operate the Bridge. In fact, it was statutorily mandated to keep the Bridge in good condition and repair, and to police and operate the Bridge. (See LSA-R.S. 48:1098, 48:1101.)

Therefore, the duty of the MRBA with regard to highway conditions on the Mississippi River Bridge is essentially the same as the duty owned by the Louisiana Department of Highways over the public highways of the State.

This duty was defined in the Barr v. State, 355 So.2d 52 (La.App. 2nd Cir.1978), quoting with approval from Petree v. Crowe, 272 So.2d 399 (La.App. 2nd Cir. 1973), as follows:

The duty imposed upon a state or its Department of Highways or other appropriate authority (emphasis added) is to construct and maintain highways which are reasonably safe for public travel. In the performance of this duty the character of the road and the probable traffic must be kept in view, as the requirement of reasonable safety implies safety for the general or ordinary travel, or use for any lawful or proper purpose.
The Department of Highways has a duty of maintaining the highways in a safe condition. This includes the duty of providing proper safeguards or adequate warnings of dangerous conditions in the highway. What constitutes proper safeguards or adequate warnings to motorists varies with the dangers presented and should be of such nature that it is commensurate with the danger. The negligence of the Department of Highways may be predicated on its knowledge or information of the existence of a dangerous or defective condition of the highway and subsequent failure to safeguard such condition.

(355 So.2d at p. 54)

The decision of whether a condition of a highway actually is a dangerous and hazardous one to an ordinary prudent driver is a factual one, and the court should consider the physical aspects of the roadway, the frequency of accidents at that place in the highway and the testimony of expert witnesses in arriving at this factual determination. Besnard v. Department of Highways, 381 So.2d 1303 (La.App. 4th Cir. 1980), writ denied, 385 So.2d 1199 (La.1980)

An analysis of the physical aspects of the roadway indicates that the conditions were indeed dangerous and hazardous. At the time of the accident, the Algiers bound lanes of traffic were being resurfaced. These two lanes of traffic were closed, and the Algiers traffic was re-routed into the emergency lane thereby removing the buffer zone between the lanes of traffic travel-ling in opposite directions.

A large electric flashing arrow directed the Algiers bound traffic into the emergency lane, then cones and flashers channeled the traffic through the construction site. Cones and flashers also curved back to the right in an attempt to channel the traffic back into the normal lanes of traffic. There was also a policeman with a flashlight to assist the traffic into the emergency lane at the beginning of the construction area. However, there was no policeman or flagman to re-channel the Algiers bound traffic into the normal traffic lanes at the end of the construction area.

The speed limit in the construction area for Algiers bound traffic was 35 miles per hour but it returned to 50 miles per hour upon leaving the construction area. The speed limit for the traffic coming in the opposite direction, i.e., toward New Orleans, remained at 50 miles per hour even parallel to the construction site.

The frequency of accidents on the bridge should also have been an indicator of the dangerous condition present at the time of the accident. The Mississippi River Bridge, prior to the accident in question, had been notorious for fatal accidents resulting from automobiles crossing the emergency lane and colliding head-on. This problem was known by the MRBA, as established at trial through the minutes of its board and through engineering studies related to the problem.

The testimony of an expert witness substantiated that hazardous conditions existed at the time of the accident. Duaine Evans, an expert traffic engineer, pointed out numerous deficiencies in the MRBA’s construction plans. He testified that the numerical value of the speed limit for the Algiers bound traffic was improper. It should have been lower to allow motorists a longer reaction time to danger. Evans also stated that the traffic control devices were improper and inadequate. In his opinion, barricades with flashers should have been used to properly channel the traffic. In addition he testified that the opposing lane speed, i.e., the New Orleans bound lane speed of 50 M.P.H., was completely out of line considering the prevailing circumstances.

Considering the physical aspects of the roadway, the frequency of accidents on the bridge and the testimony of the expert witness, the condition on the bridge at the time of this construction was a dangerous and hazardous one to an ordinary prudent driver. Our courts have held that the creation or occurrence of a dangerous condition or circumstance will impose liability upon the public authority if it fails to provide proper safeguards or adequate warnings of such dangerous conditions. Pickens v. St. Tammany Police Jury, 323 So.2d 430 (La.1975); Cain v. Houston Gen. Ins. Co., 327 So.2d 526 (La.App. 2nd Cir.1976)

The trial court found that the Mississippi River Bridge Authority was negligent in failing to provide proper safeguards and adequate warnings of the dangerous conditions on the Bridge. Specifically, the trial court found the MRBA negligent for failing to reduce the speed limit for traffic in the New Orleans bound lane as it passed parallel to and abreast of the construction area. The trial court also found that the MRBA failed to effectively channel the Algiers bound traffic from the emergency lane back to the normal lanes of traffic. We conclude that the findings of the trial court are correct and are adequately supported by the record.

The MRBA argues that the accident was caused solely by the negligence of one or more of the drivers, and that the conditions present on the bridge at the time of the accident did not contribute to the cause of the accident. Additionally, they argue that the accident occurred so far away from the construction area as to preclude their negligence. The trial court found that the dangerous conditions on the bridge were a proximate cause of the accident and that the MRBA’s contentions are without merit.

A public authority is liable in solido with motorists when its negligence combined with that of a motorist is found to be the proximate cause of an accident. See Brandon v. State, Through Department of Highways, 367 So.2d 137 (La.App. 2nd Cir. 1979), writ denied, 369 So.2d 141 (La.1979).

Accordingly, we conclude that the record more than substantiates the conclusion reached by the trial court in its finding of negligence against the MRBA.

LIABILITY OF BOH BROTHERS CONSTRUCTION COMPANY, INC.

At the time of the accident, the construction work on the Bridge was being performed by Boh Brothers Construction Company, Inc. Boh Brother’s contract with MRBA placed certain responsibilities upon Boh Brothers for the maintenance of safe roadway conditions. The contract, in pertinent part, stated:

During all phases of construction, the contractor shall provide flagmen, barricades, signs, lights, etc., as necessary for the safe and efficient passage of vehicles across the Greater New Orleans Bridge.

It should be noted that Boh Brother’s control over traffic safety was not exclusive. The traffic safety planning was done by the MRBA. The MRBA reserved the right to determine the number of flagmen for traffic control and the MRBA monitored the traffic control methods.

However, Boh Brothers was advised that: The providing of traffic control for the safe and efficient passage of vehicles during the construction period is paramount. Control shall be in accordance -with the Standard Specifications (for Roads and Bridges) and the Louisiana Uniform Control Devices Manual.

The Manual states at page 268, § 6A-4, entitled, “Responsibility”, that “[t]he provisions for public protection established herein are for application by (1) State Highway Department, county, and municipal forces performing construction or maintenance operations on roads and streets, (2) contractors employed in road or street construction or maintenance under contract to any governmental authority, and (3) all others ... performing any work on highways or so closely adjacent as to create hazards for the public...”

Based on the established responsibilities of Boh Brothers and the previous findings, the company should have required greater safety precautions than the ones actually taken. Boh Brothers and the MRBA jointly participated in the traffic movement plan and its implementation by Boh Brothers was not limited to the utilization of that plan. The trial court correctly concluded that the negligence involving the traffic scheme was the joint and concurrent negligence of both parties.

We find no error in its conclusions. LIABILITY OF GEORGE HENRY SCHMIDT

Appellants argue that Schmidt was con-tributorily negligent because he was driving while intoxicated.

In order to establish contributory negligence, the defendants must prove (1) the intoxication, and (2) that such intoxication was a cause in fact of the accident. Prestenbach v. Sentry, Inc., 340 So.2d 1331 (La. 1976). Merely showing that Schmidt consumed some amount of alcohol prior to the accident is not enough.

The only evidence as to Schmidt’s alleged intoxication is Lieutenant Sciambra’s testimony that he smelled an odor of alcohol on Schmidt’s body after the accident, and a blood sample analysis which indicated a .21 alcohol content.

In Swanson v. Estate of Augusta, 403 So.2d 118 (La.App. 4th Cir.1981), the trial court refused to admit a urine test which was offered to determine alcoholic content. The trial court found that the State failed to offer the proper foundation for the admission of the report. This was due to the fact that the witness called to introduce the document could not assure the court that proper testing procedures had been followed, that the receptacles in which the specimens were placed had not been washed with ethyl alcohol, nor that precautions were taken to make sure the specimen, once removed, had not become contaminated.

In upholding this ruling, this Court held: Before any such test result can be admitted in any civil or criminal case, the party seeking to introduce such evidence must first lay a proper foundation for its admission by connecting the specimen with its source, showing that it was properly taken by an authorized person, properly labelled and preserved, properly transported for analysis, and properly tested. Swanson v. Estate of Augusta, 403 So.2d 118, 124 (La.App. 4th Cir.1981)

These requirements were not met in the instant case. The doctor who took the blood sample from Schmidt’s body at Charity Hospital did not testify at the trial, and no evidence was introduced as to whether the proper procedure was used in the taking of the sample, i.e., whether there was any alcohol contamination of the sample either by treatment or medication given to Schmidt in an attempt to save his life or from the tube in which the blood was placed.

Furthermore, the Charity Hospital record did not include any mention of a request for a blood sample or of one having been taken.

Thus a proper foundation was not laid for the admission of the blood sample. The testimony of Lt. Sciambra that he observed the sample being taken falls short of establishing a proper predicate.

Lt. Sciambra further claims that he gave the vial of blood to Mr. Waguespack at the New Orleans Police Department Crime Lab on Saturday morning, September 28, 1978. Waguespack, however testified that the lab was closed on that day and that he did not see the vial of blood until September 30. He stated that he had no knowledge of how the blood was handled between the 28th and the 30th. Furthermore, the tube was not sealed, but merely covered with a removable rubber stopper, and was not permanently labeled. Thus, the proper preservation of the blood between the time it was taken and its testing was not proved.

Waguespack admitted having no personal knowledge of the conditions under which the blood sample was taken. He stated that if it was not done properly, for example, if the area was swabbed with alcohol, the result of the testing could not be relied upon. He further testified that Schmidt’s blood looked unusual and did not appear to be normal blood. Thus, the testimony of the man who tested the blood indicates the unreliability of the sample.

In addition to the evidence that the results of the testing of the blood sample were questionable, there was testimony at trial that Schmidt had consumed very little alcohol on the night of the accident. Both Parsons and Soniat testified that Schmidt had only one dollar to spend at the bar they had stopped at on the way home, and that he only had one glass of beer.

In any event, it was not proved at trial, that whatever alcohol Schmidt may have consumed during the evening of the accident was a contributory factor to the accident. The trial court was presented with no evidence to indicate any fault on the part of Schmidt, thus it properly concluded that he was not negligent.

LIABILITY OF CHERYL BUTTS

On September 28, 1974, at approximately 4:00 a.m., Cheryl Butts was traveling on the Mississippi River Bridge. She was travel-ling, along with two passengers, in the direction from the west bank to the east bank. Her vehicle, a 1974 Dodge, proceeded to cross the Bridge in the left hand lane of the two normal traffic lanes for east bound traffic. Some distance behind the Butt’s vehicle, George Schmidt was operating a 1966 Ford Sedan. He was travelling in the same direction and in the same lane of traffic as was Ms. Butts. As Ms. Butts’ car approached the “super structure” of the Bridge, it was sideswiped by another vehicle travelling in the opposite direction (a van operated by Michael Christopher). Subsequently, some distance behind Ms. Butts, a collision occurred involving George Schmidt, Michael Christopher, and Henry Holmes. Mr. Holmes had been driving a 1971 Buick toward the west bank. His car was located in the emergency lane and was proceeding ahead of the van operated by Christopher. A head-on collision occurred between the Holmes’ vehicle and the Schmidt vehicle which resulted in the death of George Schmidt.

There is uncontradicted testimony that Ms. Butts was in her proper lane when she was sideswiped. Donnie Lutz, a passenger in the car, testified that Ms. Butts stayed in her lane of traffic and was not driving eratieally. Martha Pellagalle, also a passenger in the Butts’ car, testified that at all times Ms. Butts was driving under control. Furthermore, a careful review of the voluminous record does not indicate the slightest negligence on the part of Ms. Butts.

However, despite this lack of negligence, the trial court found Ms. Butts liable. The trial court relied on this Court’s decision in Poche v. Frazier, 232 So.2d 851 (La.App. 4th Cir.1970), writ denied, 256 La. 266, 236 So.2d 36 (La.1979), to hold her liable. This Court, in Poche, supra, held that when an innocent third party is injured as a direct result of a collision between two drivers, each of the drivers is deemed guilty of negligence per se and the burden of exculpating himself is on each driver. The facts surrounding this particular accident do not warrant the application of the Poche rule. The record discloses that the accident with the Butts and Christopher vehicles occurred over one-half (½) mile from, and was separate and removed from the major accident causing the death of Schmidt. Even if the Poche presumption would apply to Ms. Butts, the evidence is overwhelming that she was not negligent, and she could not be held in any way liable for the death of Mr. Schmidt. Accordingly, we reverse that portion of the trial court’s judgment finding Ms. Butts at fault.

LIABILITY OF HENRY HOLMES AND MICHAEL CHRISTOPHER

As regards the individual or joint fault of Holmes and/or Christopher, the plaintiff-appellee relied on the presumption of fault which the law established in her favor. The first presumption is that a driver who is wholly or partly in the wrong lane at the time of a collision is presumed to have been negligent, and the burden is upon the driver to show that the collision was not caused by his fault. Simon v. Ford Motor Co., 282 So.2d 126 (La.1973); Johnson v. McKay, 306 So.2d 417 (La.App. 3rd Cir.1975).

The second presumption relied upon by the plaintiff was enunciated by this Court in Poche v. Frazier, supra.

The record reveals that Holmes’ car crossed over into Schmidt’s lane. Not one witness stated that Schmidt was travelling outside of his own lane, and the description of where the vehicle came to rest supports this conclusion. The Holmes vehicle came to rest diagonally across the emergency lane with its front end in Schmidt’s lane. The Schmidt vehicle came to rest in the New Orleans bound lane, against the bridge railing. Based on these facts and on the presumption previously discussed, Holmes is presumed to have been negligent in causing the accident. He, therefore, must carry the burden of showing that the collision was not caused by his fault.

The trial court found as a fact that Christopher hit the Holmes vehicle from behind prior to the collision between Holmes and Schmidt. Nonetheless, the record reveals that Holmes was in the emergency lane well beyond the point where he was supposed to exit it. The trial court considered his action as part of the proximate cause contributing to this accident and found that Holmes did not exculpate himself.

The trial court also found Christopher liable since he clearly contributed to the accident by striking the Holmes vehicle from the rear.

Our reading of the record indicates to us that there was a reasonable basis for the trial court’s finding of fact, that each of these two defendants, Holmes and Christopher, did not bear their burden of exculpating themselves from negligence and, as such, we affirm the trial court’s judgment regarding the liability of Christopher. Holmes has not appealed and the judgment against him is now final.

ANSWER TO APPEAL

Finally, Mrs. Schmidt has answered this appeal, seeking an increase in the award for loss of love and affection and future sup-' port.

Our review of the record in light of the guidelines set out by the Supreme Court in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977), shows us that the award made by the trial court was not so low as to warrant an increase. We note that the award of future support was based entirely upon the testimony of Mrs. Schmidt’s expert witness, Mr. Wolf son.

Accordingly, we find no abuse of the trial court’s discretion in making its award and refuse to disturb the award.

For the foregoing reasons, the judgment of the trial court is reversed insofar as it finds Ms. Cheryl Butts and her insurer, Commercial Union Insurance Co., in any way liable.

In all other respects, the judgment is affirmed.

AFFIRMED IN PART AND REVERSED IN PART.

      . Only the emergency lane on the superstructure was open for west bound traffic.


source: Caselaw Access Project

author: GULOTTA, Judge. PER CURIAM.

license: Public Domain

text:
    Judith A. Curry, wife of/and Eric T. CURRY, Individually and on Behalf of their minor child, Erica Joy CURRY v. ALLSTATE INSURANCE COMPANY.
    No. CA-0600.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1983.
    Rehearing Denied Aug. 23, 1983.

      Klein & Rouse, Gary J. Rouse, Henry L. Klein, New Orleans, for plaintiffs-appellants.
    V. Charles Cusimano, Chalmette, for de-iendant-appellee.
    Before GULOTTA, SCHOTT and CIAC-CIO, JJ.
   GULOTTA, Judge.

Plaintiffs, injured in an automobile accident, appeal the dismissal of their suit for uninsured motorists benefits under their insurance policy. Plaintiffs contend that the trial judge erred in adopting the jury’s failure to award monetary damages for objective injuries proximately caused by the uninsured motorist’s negligence. We agree. Accordingly, we reverse.

The fault of the uninsured motorist and the existence of coverage under plaintiffs’ insurance policy were .not in serious dispute. The issues before us are whether plaintiffs are entitled to monetary awards and, if so, their amounts.

After finding that the uninsured motorist’s negligence had proximately caused plaintiffs’ injuries and the plaintiff driver was not comparatively negligent, the jury wrote “0”, in response to interrogatories asking what dollar amount of damages would compensate plaintiffs. The trial judge made the verdict the judgment of the court, and dismissed the plaintiffs’ demands.

Although a jury has much discretion in assessing damages, it errs as a matter of law in refusing to award general damages for objective injuries. See Robinson v. General Motors Corporation, 328 So.2d 751 (La. App. 4th Cir.1976); Odendahl v. Wild, 418 So.2d 36 (La.App. 4th Cir.1982); Brown v. Grigsby, 394 So.2d 847 (La.App. 3rd Cir. 1981); Griffin v. Bethard, 398 So.2d 639 (La.App. 3rd Cir.1981). In our case, perhaps the jury misinterpreted the defendant-insurer’s stipulated, earlier payment of plaintiffs’ medical bills to mean that plaintiffs were not entitled to any further monetary damages.

In assessing general damages where the jury has erroneously awarded none, this court and the Third Circuit have uniformly held that the appellate court [under the guidelines of Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976) and Reck v. Stevens, 373 So.2d 498 (La.1979)] must award the lowest amount that the jury reasonably could have determined in its discretion. See Odendahl v. Wild, supra; Brown v. Grigsby, supra.

We are mindful that in the above-cited cases the appellate courts amended verdicts of only special damages to include an award of general damages, whereas, to achieve the same result in our case, we must reverse the trial court’s dismissal of plaintiff’s suit and render a new judgment. Nonetheless, this procedural distinction is of no legal significance to our assessment of damages. The jury in our case has committed the same error of law in failing to award general damages as those in the cited cases, and thus the same standard of appellate review applies. Indeed, in Moss v. Security Nat. Ins. Co., 350 So.2d 247 (La. App. 3rd Cir.1977), writ denied 352 So.2d 239 (La.1977), the Third Circuit applied the guidelines of Coco, supra, in assessing general damages upon reversing a jury’s award of “No Amount”, where a plaintiff had sustained objective injuries and the only issue at trial was the extent of his damages.

Turning now to a consideration of the plaintiffs’ injuries in our case, we note that in the accident on June 17, 1981, twenty-three year old Judith Curry, sustained a sprained left ankle, a cervical sprain, a forehead abrasion, and a contusion and hemato-ma of her left knee. When examined five days later by Dr. Walter Brent, Jr., an orthopedic surgeon, she could stand on her ankle with pain, but could not walk without the aid of crutches. Dr. Brent prescribed medications to reduce the pain, spasm, and inflammation. He described plaintiff’s neck and upper back injuries as “whiplash”, and the neck sprain as “severe”.

On a June 30 visit to Dr. Brent, plaintiff exhibited neck spasm and tenderness, but no abnormal neurological or disc findings. Her ankle swelling had decreased, and Dr. Brent recommended that she gradually walk without her crutches.

By July 6, 1981, plaintiff’s ankle was still slightly discolored, and Dr. Brent recommended slow rehabilitation without active participation in sports.

Mrs. Curry underwent traction therapy sessions for one week at Hotel Dieu Hospital in July as an out-patient. On a July 28 visit to Dr. Brent, she complained of increased pain in her neck while attempting to play volleyball. By her final visit on November 2, 1981, however, she was on milder anti-inflammatory drugs and complained only of occasional neck or back ache.

Plaintiff’s forehead cut healed within one week, and her knee injury resolved within six weeks post-accident. Although he was unable to determine the extent of plaintiff’s disability, Dr. Brent testified that some back problems could continue for “a couple of years”, and that it would not be surprising if plaintiff occasionally had ankle and back pains depending on the intensity of her activities in athletics and her secretarial job.

Mrs. Curry, a sports enthusiast, missed one weeks’ work, was on crutches for three weeks, and had to refrain from athletics for about six weeks as a result of the accident. She testified that her ankle bothers her in cold weather, and that she suffers back pains after prolonged sitting at her secretarial job. Her testimony was corroborated by her husband and her employer.

Erica Curry, plaintiff’s four year old daughter who was a passenger in her mother’s car, sustained a forehead contusion and laceration requiring two sutures. Although Erica’s injuries healed within two weeks, her parents testified that she suffered anxiety about automobiles for three months post-accident and still does occasionally.

Considering the evidence, we conclude that $7,000.00 is the lowest amount that could reasonably have been awarded in general damages to Mrs. Judith Curry, and $1,000.00 to her daughter Erica.

Having so concluded, we reverse and set aside the judgment dismissing plaintiffs’ suit.

Judgment is now rendered in favor of plaintiff Judith A. Curry, and against defendant, Allstate Insurance Company, in the sum of SEVEN THOUSAND AND 00/100 ($7,000.00) DOLLARS, together with legal interest from date of judicial demand until paid and for all costs. Judgment is further rendered in favor of plaintiff Judith A. Curry, wife of/and Eric T. Curry on behalf of their minor child, Erica Joy Curry and against defendant, Allstate Insurance Company, in the sum of ONE THOUSAND AND 00/100 ($1,000.00) DOLLARS, together with legal interest from date of judicial demand until paid and for all costs.

REVERSED AND RENDERED.

ON APPLICATION FOR REHEARING

PER CURIAM.

In an application for rehearing, defendant Allstate Insurance Company properly points out that our opinion erroneously stated that payment of plaintiffs’ medical bills had been “stipulated”. There was no stipulation regarding the payment of medical expenses. It is indeed more accurate to say that the defendant acknowledged in closing argument that the medical expenses “... have been paid by Allstate.”

Defendant also correctly notes that we erroneously attributed to Dr. Brent a description of Judith Curry’s neck injury as a “whiplash”. The term “whiplash” was used by the attorney questioning Dr. Brent and was not used by the testifying physician to characterize Mrs. Curry’s neck problem.

We likewise acknowledge an error in our factual description of Mrs. Curry’s visit to Dr. Brent on June 30, 1981. Our opinion states that she “exhibited neck spasm and tenderness.... ” A correct statement of the facts is that she “manifested neck pain and tenderness....”

Although these inaccuracies do not change the result of our holding, nonetheless, accuracy requires clarification.

Accordingly, the application for rehearing is denied.


author: CURRAULT, Judge.

text:
    Peter S. FALLO v. TUBOSCOPE INSPECTION, INTRACOASTAL PIPE REPAIR & SUPPLY COMPANY, INC., Intracoastal Terminal, Inc., Intracoastal Pipe Lines, Inc. and John Doe.
    No. 5-314.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 6, 1983.
    Writ Granted Sept. 30,1983.

      Joel P. Loeffelholz, New Orleans, for plaintiff-appellant.
    Brad G. Theard, Young, McMahon & Ri-chaud, New Orleans, for defendant-appel-lee.
    Before CURRAULT, GRISBAUM and DUFRESNE, JJ.
   CURRAULT, Judge.

This case originally came before the court pursuant to. summary judgments granted to defendants by the trial court in a workmen’s compensation action. We reversed and remanded solely as to defendant Tubo-scope in Fallo v. Tuboscope Inspection, Intracoastal Pipe Repair and Supply Company, Inc., 424 So.2d 514 (La. 5th Cir.1982); Rehearing denied January 17, 1983. An application for writ of certiorari was thereafter filed in the Louisiana Supreme Court by defendant Tuboscope. The writ was granted in No. 83-C-0347, April 5,1983,434 So.2d 381, wherein this court was ordered to vacate its judgment and to either affirm the granting of the summary judgment or supplement its original opinion more specifically. Upon review and rehearing, we again reverse and remand for the following reasons.

Briefly, the basic facts reveal that AMF, a division of Tuboscope, Inc., is a corporation whose principal business involves inspection and testing of pipes used in the oil industry. On the morning of September 27, 1978, Tuboscope found itself short of labor and, as was customary, contacted P & M Oilfield Services, Inc., a labor supply pool to provide workmen. Plaintiff, Peter Fallo, was dispatched to Tuboscope and reported to the Intracoastal Pipe Repair Supply Company yard, the job site. Plaintiff was assigned to assist the crew that was inspecting and/or testing lengths of pipe approximately 40 feet long, weighing over 1,000 pounds. His particular duties consisted of manually rolling pipe stacked on a rack to a conveyor system which fed the pipe into the test equipment. The injury occurred when two Tuboscope employees, one of which was responsible for the automatic control of the conveyor, perceived that plaintiff was standing in what they considered to be a dangerous position. In going to his aid, the conveyor belt was not turned off. Consequently a pipe moving up the belt rolled back down, crushing plaintiff’s leg and ankle between it and the next pipe to be fed into the conveyor.

Plaintiff was paid workman’s compensation benefits by P & M and thereafter brought this suit in tort against the various defendants; however, on appeal, we were concerned solely with AMF Tuboscope, In-tracoastal Pipe Repair & Supply Company and Intracoastal Terminal, Inc.

Defendants filed motions for summary judgments; all of which were granted on October 19, 1981. Plaintiff appealed the judgment, but subsequently abandoned its claim as to Intracoastal Pipe Repair and Supply Company and Intracoastal Terminal, Inc. On appeal, this court rendered decision, now vacated, reversing the judgment in favor of Tuboscope and remanded the matter for further proceedings. Pursuant to the subsequent Louisiana Supreme Court mandate, argument on the issue was reset and the parties granted leave to file new briefs.

On rehearing, defendant asserts that as an employee of AMF Tuboscope, plaintiff’s sole remedy lies in workmen’s compensation. Plaintiff argues, however, that defendant’s conduct constitutes an intentional tort and is thus subject to exception in the workmen’s compensation act. In support of the allegations, plaintiff cites this court to the landmark case of Bazley v. Tortorich, 397 So.2d 475 (La.1981) and Hurst v. Massey, 411 So.2d 622 (La.App. 4th Cir.1982).

As we noted in our prior opinion, the Louisiana Supreme Court in Bazley, “interpreted R.S. 23:1032, as amended by Act 147 of 1976, to mean that if an employee is to be exempted from the exclusive remedy of workmen’s compensation, the injury must have been caused by an intentional act as one where the tort-feasor consciously desires to bring about the physical result of his act, or the belief that the result of his act was substantially certain to follow from his conduct.

“Intent, the court points out, is not limited to consequences which are desired. If the actor knows the consequences are certain, or substantially certain, to result from his act, and he still goes ahead, he is treated by the law as if he had in fact desired to produce the result.” Fallo, at page 516.

In a later case involving the same plaintiff, the Fourth Circuit Court, in affirming an exception of no cause of action, noted that the Bazley court equated the words “intentional act” in the statute to “intentional tort” for civil liability. Bazley v. Silverman, 402 So.2d 228 (La.App. 4th Cir. 1981). Judge Lawrence Chehardy, writing a concurring opinion, analyzed the Bazley decision as follows:

“It thus appears that earlier courts of appeal’s interpretation of the meaning of ‘intent’ in LSA-R.S. 23:1032 as amended by Act 147 of 1976 has either been overruled by the Supreme Court in Bazley, supra, or at any rate the meaning has been so broadened as to effectively do away with the earlier definition of the courts of appeal. In doing away with the earlier definition unless we include in the definition ‘should have known that the result would follow’ there exists a distinction without a difference. Why? Under the Supreme Court definition in Bazley. one must desire the result or know that the consequences are substantially certain to result. It is imperative that a responsibility be placed on the actor, not simply that he knows the result but that he should have known the result of his action. The ‘should have known’ standard is preferable in that it is an objective standard. The desired or known result standard is subjective and thus the distinction without a difference.” At page 231.

He concluded that the objective “should have known” standard was included in the broadened definition of “intentional” as set forth in Bazley and as expressive of the view in W. Prosser, The Law of Torts, Ch. 2 § 8 (4th Ed.1971).

In the Hurst case, the Fourth Circuit Court found that the plaintiffs stated a cause of action for intentional tort under Bazley. There the plaintiffs’ husband and father, a maintenance worker, was killed as a result of a labor dispute which erupted into violence. The decedent was posted by the company as a security guard at a company gate despite the fact that he was untrained in the area of security and despite the fact that defendants were aware of the dangerous nature of the situation.

The facts herein indicate that the plaintiff was standing in a “pit” the entire workday until the accident occurred. The “pit” was located between the conveyor and the stack of pipes. The evidence indicates further that defendant’s workers, including the field supervisor, knew the plaintiff’s position was dangerous and knew that plaintiff was an untrained worker. Plaintiff alleges in brief, further, that he received no instructions prior to beginning the work as to the proper place to stand, although defendant’s supervisor indicated he routinely gave such instructions. The routine procedure utilized by defendants would have placed plaintiff or any other worker on the side as opposed to the middle of the pipe. However, plaintiff insists contrary to defendant’s assertion that with only one man doing this particular job, it was necessary to stand between the stack of pipe and the conveyor. At all times the plaintiff was within calling and viewing distance of the other two members of this particular work team, one of which was the supervisor who controlled the stop and start mechanism of the conveyor. Sometime in the afternoon, the two workers saw a potential accident in process directly due to plaintiff’s position in the pit. They then left their own positions to go to the assistance of the plaintiff, but failed to turn the conveyor mechanism off before doing so. Consequently a length of pipe proceeding upward, with no one to direct its movement, rolled backwards pinning and crushing plaintiff’s leg and ankle.

When the courts rule on a motion for summary judgment, they are guided by the Louisiana Civil Code which provides that the

“motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” Dixie Campers, Inc. v. Vesely Co., 398 So.2d 1087 (La.1981); Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981); Thornhill v. Black, Sivalls & Bryson, Inc., 394 So.2d 1189 (La.1981); Chaisson v. Domingue, 372 So.2d 1225 (La.1979); Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976) (Emphasis added)

In this regard, the jurisprudence holds that only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Thornhill, supra; Chaisson, supra. The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of summary judgment and in favor of a trial on the merits to resolve disputed facts. Chaisson, supra; Thornhill, supra; Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, 362 So.2d 561 (La. 1978); Andrew Development Corp. v. West Esplanade Corp., 347 So.2d 210 (La.1977); Morgan v. Matlack, Inc., 342 So.2d 167 (La. 1977); Kay v. Carter, 243 La. 1095, 150 So.2d 27 (La.1963).

Furthermore, it is well established that, in passing on a motion for summary judgment, the court’s function is not to determine the merits of the issue. Sinclair Oil & Gas Co. v. Delacroix Corp. et al., 235 So.2d 187 (La.App. 4th Cir.1970); Corceller v. Bonanza International, Inc., 289 So.2d 822 (La. App. 4th Cir.1974); Cooper v. Anderson, 385 So.2d 1257 (La.App. 4th Cir.1980); Dougharty v. Calkraft Paper Co., 335 So.2d 772 (La.App. 3d Cir.1976).

“Where a determination of subjective facts is involved, such as motive, intent or good faith, summary judgment is rarely appropriate.” Cooper v. Anderson, supra, at page 1258; Fontenot v. Aetna Insurance Co., 225 So.2d 648 (La.App. 3d Cir.1969).

Finally, a summary judgment does not serve as a substitute for an exception of no cause of action. Sinclair, supra; Wells v. St. Tammany Parish School Board, 340 So.2d 1022 (La.App. 1st Cir.1976).

In the instant case, even the undisputed facts fail to lead to the inevitable conclusion that defendant’s conduct does not constitute an intentional tort under Bazley and Hurst. In fact, additional evidence may possibly lead to the opposite result. Since, in our opinion, mover is not clearly entitled to judgment as a matter of law, we hold that the summary judgment was improperly granted.

For the foregoing reasons, upon review of the law and evidence, the judgment of the trial court is hereby reversed and the case remanded for further proceedings. Defendant-appellant, AMF Tuboscope, is to pay all costs of this appeal.

REVERSED AND REMANDED.


author: DUFRESNE, Judge.

text:
    Helen Catoire DELHOMMER, et al. v. BOH BROTHERS CONSTRUCTION COMPANY, et al.
    No. 83-CA-290.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 6, 1983.

      Hammett, Leake & Hammett, Dominic J. Gianna, New Orleans, for defendants-appellants.
    Don Almerico and Jerome A. Kunkel, Destrehan, for plaintiffs-appellees.
    Before BOUTALL, GAUDIN and DU-FRESNE, JJ.
   DUFRESNE, Judge.

Boh Brothers Construction Co. and Grey & Company, Inc., defendants-appellants, bring this appeal from a judgment awarding workmen’s compensation death benefits to plaintiff-appellee, Helen Delhommer, widow of Joseph Delhommer, defendants’ former employee who died of a heart attack suffered on his job.

Because we find no manifest error in the factual findings of the trial court, we affirm.

The facts are as follows:

Joseph Delhommer, a 63 year old carpenter, was employed by defendants to build concrete forms on a job site. On June 30, 1980, the day of his death, Delhommer reported for work at 7 A.M. His duties consisted of cutting lumber for the forms with a power saw on an open construction site. A co-worker testified that “it was a hot day; it was [a] hot summer.” Sometime in the early afternoon, Delhommer complained to the foreman that he was feeling badly and wanted to go home. He had not complained to either his wife or co-workers of any illness before that moment on the day in question. He had, however, been complaining to his wife in the few preceding weeks that the heat was “getting the best of him.”

He reached home at about 2:30 P.M., sat down in the carport, and called to his wife. He complained to her of possibly having a heat stroke and asked that she rub his arms and chest and apply cold towels because he was sweating and experiencing chest pains. After 15 minutes, he walked into the house, lay on the floor and died.

The death certificate fixed the time of death at 3:10 P.M. The autopsy showed that the cause of death was acute myocardial infarction. There was also evidence of an “old myocardial infarct” indicating that he had suffered a prior heart attack, apparently unbeknown to him.

After trial on the merits, the trial court concluded that plaintiff’s evidence was sufficient to show that the heart attack was possibly brought on by employment stress. He also stated in his reasons for judgment that case law had “all but shifted the burden of proof in heart cases to the defendant to prove that the employment did not contribute to the decline of the employee.”

Defendants now appeal alleging that the trial court erred, first, in shifting the burden of proof to defendants, and second, in finding that plaintiff proved by a preponderance of the evidence that the heart attack was caused at least in part by employment stress.

In regard to shifting the burden of proof, defendants are correct in that this burden does not shift in heart attack cases, Guidry v. Sline Industrial Painters, Inc., 418 So.2d 626 (La.1982). They are not correct, however, in their assertion that the trial court shifted this burden to them here. Our reading of the language quoted above is first that it is simply dicta, and second that the judge did not state that the burden of proof has in fact been shifted, but rather that it has “all but [been] shifted. Finally, he did state the correct legal principle applicable in heart cases as follows:

When the final heart failure comes as a result of possible employment involvement or could have or might be, it is sufficient to merit death benefits.... (emphasis in original).

Guidry v. Sline Industrial Painters, Inc., supra at 632, 634. We therefore find no error in the trial court’s application of law in this case.

The more difficult issue before us is whether plaintiff carried her burden of proving that the work effort, stress or strain of the job in reasonable probability could have contributed in some degree to the heart attack.

We first note that a reviewing court is empowered to overturn factual findings only where such findings are manifestly erroneous, Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We also reiterate that plaintiff’s burden is to show that the heart attack occurred on the job, and that the work effort, even though usual for the employee, was more stressful than ordinary non-employment activity and bore some causal relationship, however slight, to the attack.

In the case before us, there was sufficient evidence to establish that the attack occurred on the job. Dr. St. Martin, the only expert to address this issue, was of the opinion that while it was impossible to determine the exact time of the attack, the symptoms of sweating and pain would have manifested themselves within a few hours of the attack. As the employee had been on the job since 7 A.M., this unrefuted testimony is adequate to sustain a finding that the heart attack occurred on the job.

The next question is whether the employee’s activities, even though usual in his employment, were more stressful than ordinary and everyday non-employment activities. Again, we have no hesitation in finding that cutting lumber with a power saw on a construction site in the middle of a hot summer day is more stressful than everyday non-employment activities. Cf. Guidry v. Sline Industrial Painters, Inc., supra; Roussel v. Colonial Sugars Co., 318 So.2d 37 (La.1975).

The third issue is whether there was a medically ascertainable causal link, at least in part, between the stress of the job and the attack. While the expert evidence is admittedly sketchy, we find that the trial court committed no manifest error in finding that plaintiff established this link.

Her evidence was the autopsy protocol prepared by Dr. Monroe Samuels, and the deposition of Dr. S.J. St.Martin, St. John Parish coronor, who neither performed nor participated in the autopsy. During that deposition, Dr. St.Martin simply relied on the protocol for his opinions. Those opinions were first that in a person of advanced age a heart attack of the type at issue here could well be caused by stress or heat if the coronary arteries were atheroscherotic. He next stated that stress could possibly have played a role in this heart attack. When pressed as to whether this was medically probable, he simply stated “I don’t think so.” He was then asked a hypothetical wherein it was stated that the decedent was doing his routine work, and was asked if this could have triggered the attack. His response was that he didn’t think someone doing his usual job would experience an attack because he would be accustomed to such exertion. The hypothetical was defective, however, because it did not mention that the day was hot. Moreover, his earlier testimony was that heat would be a substantial factor in bringing about an attack of this type. We finally point out that the protocol does identify yellowish plaque formation in the coronary arteries, which is a clear symptom of an atherosclerotic condition and “a warning sign of impending serious cardiovascular disease such as ... myocardial infarction,” Borland’s Illustrated Medical Dictionary 26th ed., at 1026.

On these facts, we simply cannot say that the trial court’s finding of a causal link between the heat and stress of the job and the heart attack was clearly wrong.

For the foregoing reasons, the judgment appealed from is affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Frederick OSSEY.
    No. 83-K-407.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 6, 1983.
    Writ Granted June 27,1983.

      Richard Tompson, Joseph J. Tosh, Gretna, for relator.
    John M. Mamoulides, Dist. Atty., William Hall, Asst. Dist. Atty., 24th Judicial Dist., Parish of Jefferson, William C. Credo, III, Asst. Dist. Atty., Research & Appeals, Gret-na, for respondent.
    Before CHEHARDY, CURRAULT and DUFRESNE, JJ.
   DUFRESNE, Judge.

Defendant, Frederick Ossey was arrested for the illegal possession of drugs in violation of R.S. 40:967. Defendant filed a Motion to Suppress Evidence obtained as a result of a search and seizure which was denied by the trial court as per decision rendered March 22, 1983. On April 23, 1983, this court denied supervisory writs in this matter.

The Louisiana Supreme Court, 433 So.2d 171, granted a supervisory writ on May 13, 1983, and ordered a remand to this court for briefing, argument and opinion in light of Florida v. Royer, -U.S. -, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) and United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

In accordance with this mandate of the Louisiana Supreme Court, a hearing was held in this matter on June 2, 1983.

We have further reviewed the entire record and briefs in this case and accordingly, deny the writ and affirm the ruling of the trial court denying the Motion to Suppress.

The facts of the offense reveal that on January 17, 1983, two deputies assigned to the narcotics division stopped the defendant at New Orleans International Airport on a flight from Los Angeles, California, as he fit the characteristics of the “Detroit Profile” for drug couriers.

Both deputies testified that the defendant fell under suspicion for the following reasons:

1.) He was coming from a “source” city, that is a city which has proved through experience to be a source of drug traffic.
2.) While walking in the upward concourse, he stopped on several occasions as if to look over his shoulder and appeared nervous.
3.) He claimed only one piece of luggage which was small to medium in size, unusual on a cross-country trip.
4.) He had purchased a one-way ticket for cash in a name different than that on the identification he showed the deputies.

Upon being detained, the deputies asked that Ossey submit to an examination of his luggage. The defendant demanded a search warrant before any examination. The defendant was lead to the narcotics office at New Orleans International Airport where they began to prepare a request for a search warrant.

The deputies, in their testimony, contend that the defendant then gave his consent and even pretended or appeared to sign a Consent to Search Form. The defendant contends that the officers just simply opened his suitcase.

Sixty-five hundred (6,500) sets of Talwin (T’s and Blues) were plainly visible when the suitcase was opened. The defendant was then placed under arrest and charged under R.S. 40:967.

Prior to trial, Ossey filed a Motion to Suppress the evidence obtained in the search of his luggage. The trial court found in oral Reasons for Judgment denying the defendant’s Motion to Suppress that his statements were self-serving and that he was not placed under arrest, nor illegally detained. The trial judge further found that he believed the testimony of the deputies that the defendant gave his consent to search freely and voluntarily; that the search was made in good faith, in that they felt and believed that the defendant had given oral consent and had, in fact, signed the “Consent to Search Form”.

In our review of Florida v. Royer, supra, and United States v. Mendenhall, supra, we find that Royer does not overrule Menden-hall, but further clarifies the boundaries under which an airport investigatory stop and consensual search can be conducted.

The main thrust of Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877 held that “[a]s long as the person to whom questions are put, remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.”

In the instant case, the officers were very careful to explain to the defendant that he didn’t have to consent, but would he mind if his luggage was searched. The defendant replied that he wanted to see a search warrant.

The officers responded that they could get a warrant. The officers testified that the defendant was not under arrest at that time and that if he had chosen not to talk to the officers and kept on going, he would not have been detained any longer.

The defendant testified that, although they did not have a search warrant, the police said they could get one and took him to the narcotics office. The defendant stated that he did not feel free to leave. He conceded that he was never told that he couldn’t leave, but the two officers blocked the door, took his bag and said, “Let’s go.”

The trial court found that the defendant’s testimony was self-serving and further found that there was a voluntary accompaniment on the part of the defendant to go with the officers. The learned trial judge had the opportunity to hear the testimony and to judge the credibility and he concluded that the officers had acted in good faith. We agree with the trial court.

The officers were acting in good faith in that they felt and believed the defendant had given them consent to search his luggage.

Their suspicions that he was a drug courier were correct and valid. Although we recognize that the “end does not justify the means”, the record does show that the defendant’s suitcase contained (6,500) sets of T’s and Blues.

We firmly believe that the health and welfare of our country, especially the youth, demand that the laws regarding search and seizure in the highly sophisticated area of drug traffic should not be subjected to the same scrutiny as in other areas. As Justice Powell concurring in United States v. Mendenhall, supra 446 U.S. at 561, 100 S.Ct. at 1881 observed:

“The public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit.”

Accordingly, we find that Ossey’s consent was given freely and voluntarily and that he had not been unlawfully confined or detained prior to his consent to search. Thus, his constitutional rights have not been violated.

The judgment of the trial court, denying the Motion to Suppress is accordingly affirmed.

WRIT DENIED.


author: CHEHARDY, Judge. BOWES, Judge,

text:
    Clifford E. ASHLINE v. Ronald J. SIMON, et al.
    No. 83-CA-298.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 6, 1983.
    Writ Granted Sept. 30,1983.

      Oestreicher, Whalen & Hackett, David W. Oestreicher, II, New Orleans, for Clifford E. Ashline, plaintiff-appellant.
    Schafer & Schafer, Andree F. Pitard, New Orleans, for United Services Auto. Ass’n, defendant-appellee.
    Before CHEHARDY, BOWES and CUR-RAULT, JJ.
   CHEHARDY, Judge.

The issue before this court is whether or not the trial judge abused his discretion in dismissing with prejudice plaintiffs claim against one of the defendants for failure to answer interrogatories.

Clifford Ashline filed this suit for personal injuries resulting from an automobile accident. The defendant with which we are here concerned is Ashline’s uninsured/unde-rinsured liability carrier, United Services Automobile Association (USAA).

The suit was filed on January 19, 1981, and on November 10 of that year USAA filed interrogatories and a request for the production of documents. Plaintiff failed to comply and on March 26,1982 defendant filed a motion to compel. After several continuances the matter was heard on June 18, and on July 28, 1982 judgment was rendered ordering plaintiff to answer the interrogatories within 15 days under penalty of dismissal.

On July 29, 1982, in the absence of compliance with that judgment, defendant filed an ex parte motion to dismiss with prejudice, which was granted on that date.

On August 5, plaintiff finally answered the interrogatories and on August 11, 1982 he filed a motion to vacate the judgment and have USAA reinstated as a party defendant. Following a hearing thereon, the motion was denied.

As stated by our Supreme Court in Allen v. Smith, 390 So.2d 1300 (La.1980), when failure to make discovery occurs, it becomes incumbent upon the disobedient party to show that his failure was justified. C.C.P. arts. 1469, 1471, 1473.

By way of brief we are informed plaintiff’s failure to answer timely was due to moving from this state to New Mexico because of serious financial difficulty, and also he was psychologically handicapped as a result of the accident, which interfered with his ability to answer timely.

Plaintiff had ample opportunity to disclose these facts to the court at the hearing on the motion to compel. He could have requested additional time to answer or have filed an opposition. He chose to do none of these things. He chose instead to disregard the judgment of the court to file his answers within 15 days or be subject to the penalty of which he now complains.

We further note his answers, when- finally filed, seem to contradict his claims. He did not move to New Mexico until June 1982, and then to accept a lucrative position at a salary of $50,000 per year. Apparently his psychological problems have not hampered him to the extent he is unable to perform in a professional capacity, and it appears he should have been able to answer the interrogatories at a more reasonable time than a year after they had been propounded.

Dismissal of a complaint with prejudice is a drastic remedy for failure to make discovery and it should apply only in extreme circumstances. See Allen v. Smith, supra, and cases cited therein; Robinson v. Miller, 423 So.2d 45 (La.App. 1st Cir.1982).

We distinguish this case from Allen. There the judgment dismissing plaintiff’s suit was rendered at the hearing on the motion to compel. In the instant case the judgment rendered at the conclusion of the hearing on the motion to compel simply ordered the plaintiff to answer the interrogatories within 15 days and warned him of the consequences of his failure to do so.

The trial court found no extenuating circumstances and concluded the drastic penalty for failure to apply was warranted under the circumstances. We cannot say, therefore, that dismissal in the instant case constitutes an abuse of discretion.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

BOWES, J., dissents with written reasons.

BOWES, Judge,

dissenting.

I feel dismissal of the plaintiff’s suit with prejudice, as sanctioned by the majority, is too harsh a remedy for what appears to be remissness on the part of plaintiff’s attorney. In my opinion, the evidence on record does not support the conclusion that plaintiff himself, rather than his counsel, was at fault and such fault of the plaintiff is required by Allen v. Smith, 390 So.2d 1300 (La.1980) in order to dismiss with prejudice. For this reason, I feel that the trial judge exceeded his discretion by imposing the ultimate sanction of prejudicial dismissal.

I agree with the trial judge that harsh penalties should be imposed as this is an extreme case of disregard for our procedural laws and for the orders of the Court. However, it seems to me more appropriate that plaintiff’s attorney should be penalized, rather than the plaintiff himself. Accordingly, I would amend the judgment by dismissing plaintiff’s case without prejudice and by assessing plaintiff’s counsel with heavy penalties, including attorney’s fees for defendant’s counsel and for all costs of the rules in question, and all reasonable expenses, including costs of this appeal, all in accordance with La.C.C.P. art. 1471,1473 and the Allen case, supra. Dismissal without prejudice would also stop interest from running against defendants and plaintiff himself would not be excessively penalized inasmuch as he is not barred from bringing his action again.

Accordingly, I respectfully dissent.

      . Other defendants are the driver of the other vehicle involved, his insurer and the owner of the vehicle plaintiff was driving, Hertz Rental Corporation, under its uninsured/underinsured policy.


author: CHEHARDY, Judge.

text:
    R.G.C. INVESTMENTS, INC., and Ronald G. Cheek v. Don ALMERICO and National Union Fire Insurance Company of Pittsburgh, Pennsylvania.
    No. 83-CA-317.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 6, 1983.
    Writ Denied Sept. 23,1983.

      Andrew Weltchek, New Orleans, for plaintiffs-appellants.
    Don Almerico, defendant-appellee, in pro per.
    Jerome A. Kunkel, Destrehan, for Don Almerico, defendant-appellee.
    Before CHEHARDY, BOWES and DU-FRESNE, JJ.
   CHEHARDY, Judge.

In this matter the plaintiffs, R.G.C. Investments, Inc., and Ronald G. Cheek, filed suit against Don Almerico, an attorney, and his professional liability insurer, National Union Fire Insurance Company of Pittsburgh, Pennsylvania. Plaintiffs sought damages for Almerico’s alleged negligence in representing them in a rezoning matter. Neither defendant was ever cited or served with the suit, but Almerico filed an answer and reconventional demand. National Union made no appearance.

Approximately three months after suit was filed, the plaintiffs filed a voluntary motion to dismiss the action against both defendants without prejudice. The district judge signed the order of dismissal, but changed it to a dismissal with prejudice. Plaintiffs have appealed the “with prejudice” aspect of the dismissal.

In signing the order appended to the motion for dismissal, the judge added the following words: “See C.C.P. Art. 1671.” Below his signature he wrote, “Attachment A, Letter dated Jan. 28, 1983 to court.”

In the letter to which the judge referred, plaintiffs’ attorney advised the court,

“ * * * The plaintiffs are proceeding with an earlier filed direct action against Mr. Almerico’s professional liability carrier alone in the 19th Judicial District. To obviate any prescription questions they also filed an action in the 29th District but directed that service be held. The plaintiffs do not want to embarrass Mr. Almerico; just recover their losses. Although not served, Mr. Almerico filed an answer and reconventional demand.
“On the same day that your Honor denied the jury request in this case, Judge Gonzales of the 19th Judicial District Court denied the exception of improper venue filed by the defendant insurer in the first case. Therefore, jurisdiction is clearly established in that case. Enclosed is the motion to dismiss this case I am filing. Dismissal of the plaintiffs’ suit would not disturb the reconventiona! demand, if Mr. Almerico wishes to pursue it. C.C.P. Art. 1039.”

Although the judge’s comments do not indicate his intentions clearly, we assume his reference to this letter indicates he was dismissing the suit with prejudice rather than without because of the previously filed suit in the 19th Judicial District Court. In effect, the court recognized an exception of lis pendens on its own motion.

There is no provision in the law, either statutory or jurisprudential, for such an action. In fact, LSA-C.C.P. art. 531 makes it clear that unless the defendant files such an exception, the plaintiff is entitled to proceed with any of his simultaneous duplicate actions:

“When two or more suits are pending in a Louisiana court or courts on the same cause of action, between the same parties in the same capacities, and having the same object, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.” LSA-C.C.P. art. 531.

See, by analogy, Ponthieux v. Lindsay, 216 So.2d 407 (La.App. 3d Cir.1968), affirmed 254 La. 647, 226 So.2d 482 (La.1969).

Further, LSA-C.C.P. art. 1671 provides:

“A judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs, if the application is made prior to a general appearance by the defendant. If the application is made after a general appearance, the court may refuse to grant the judgment of dismissal except with prejudice.”

Based on this article, the plaintiffs argue the trial judge erred in dismissing National Union with prejudice, because the insurance company had never been served and had never made an appearance. Under the clear wording of Article 1671, this contention is correct. Accordingly, the district court erred in dismissing the case with prejudice as to National Union Fire Insurance Company.

We note Article 1671 also requires the plaintiff to pay all costs before the judgment of dismissal without prejudice is rendered. The record before us contains no certificate of payment of costs. Although absence of such a certificate may give a judge the power to deny the dismissal, it does not give him the power to convert it to a dismissal with prejudice. In addition, nonpayment of costs has no effect upon the validity of an order granting dismissal, once signed. Adams v. Aetna Casualty & Surety Company, 214 So.2d 148 (La.1968).

As to Almerico, plaintiffs do not deny that his general appearance places some discretion in the court with respect to the motion to dismiss. Plaintiffs contend, however, that under Article 1671 the trial judge may only choose to grant or to deny dismissal without prejudice; he may not convert the motion to dismiss without prejudice into a dismissal with prejudice. Plaintiffs argue that converting the dismissal to one with prejudice is, in effect, an involuntary dismissal. Involuntary dismissals may be rendered only under limited circumstances, such as in granting an exception as provided in LSA-C.C.P. arts. 925 et seq., or when the plaintiff fails to appear when the case is called for trial, LSA-C. C.P. art. 1672.

In comparing the wording of the last sentences of LSA-C.C.P. arts. 1671 and 1672, there appears to be some ground for plaintiffs’ point of view:

* * ⅜ If the application is made after a general appearance, the court may refuse to grant the judgment of dismissal except with prejudice.” LSA-C.C.P. art. 1671.
“A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial. In such case the court shall determine whether the judgment of dismissal shall be with or without prejudice.” LSA-C.C.P. art. 1672.

That the legislature chose to word these two articles differently would seem to indicate they intended, as to voluntary dismissals, the court would be limited in its power to determine whether the judgment of dismissal should be with prejudice. Instead, it would appear the judge may only refuse to grant a voluntary dismissal where he feels it should be a dismissal with prejudice, leaving it up to the plaintiff to decide whether to file a new motion to dismiss, with prejudice.

The jurisprudence, however, leans in the other direction. In State v. Skyeagle, 345 So.2d 189 (La.App. 3d Cir.1977), writ denied 347 So.2d 261 (La.1977), the court held, at page 193, “Under this provision [C.C.P. art. 1671] it is discretionary with the court as to whether the dismissal shall be with or without prejudice.” The Skyeagle court cited the earlier case of Harper v. Celotex Corporation, 183 So.2d 350 (La.App. 4th Cir.1966), writ denied 249 La. 123, 185 So.2d 530 (La. 1966), as support for this statement. In the Harper case, however, the court said, at page 352, “LSA-C.C.P. art. 1671 provides the court, in its discretion, may grant a motion by Plaintiff to dismiss his suit after a general appearance by Defendants.” The Harper court said nothing about the court having discretion under Article 1671 to determine whether the dismissal shall be with prejudice.

In Hebert v. Cournoyer Oldsmobile-Cadillac GMC, 419 So.2d 878 (La.1982), our Supreme Court stated, at page 880,

“Because the voluntary dismissal occurred after defendants’ answer, the trial court was vested with discretion to dismiss the suit with or without prejudice. C.C.P. Art. 1671. Therefore, when plaintiff moved to dismiss the suit without prejudice, defendants could have objected, and the trial court could have prevented circumvention of its denial of the continuance by refusing to grant the motion unless the dismissal was with prejudice. Defendants did not object to the motion to dismiss without prejudice, but on the contrary joined in the motion. Moreover, the trial court did not exercise its discretion to grant the dismissal only with prejudice, but granted the qualified dismissal based on the joint motion.”

These remarks could be construed either as supporting the interpretation of Article 1671 made in State v. Skyeagle, supra, or as supporting the position of the plaintiff in this case. We believe the better-reasoned interpretation of Article 1671, in light of the varying language of Articles 1671 and 1672, is that the legislature intended that under Article 1671 the court should have the power to refuse a voluntary dismissal without prejudice where the defendant has made a general appearance, thus choosing to grant the voluntary dismissal only if the plaintiff agrees it be a dismissal with prejudice. We do not believe the language of Article 1671 can correctly be interpreted as giving the court discretion to convert the dismissal without prejudice into a dismissal with prejudice.

Accordingly, we find the trial court erred in converting plaintiffs’ motion to dismiss as against Almerico from a dismissal without prejudice to a dismissal with prejudice. Instead, the court should have denied the voluntary motion to dismiss, as to Almerico. As stated earlier, the court had no ground on which to refuse the dismissal without prejudice as to National Union.

For the foregoing reasons, the judgment of the district court is reversed and set aside. The case is remanded for further proceedings in accordance with this opinion.

REVERSED, SET ASIDE AND REMANDED.


text:
    STATE of Louisiana v. Lionel WILLIAMS.
    No. 83-KA-329.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 6, 1983.
    Writ Denied Sept. 30,1983.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., New Orleans, Harry J. Morel, Jr., Dist. Atty., Twenty-Ninth Judicial Dist., Hahnville, John M. Crum, Asst. Dist. Atty., Twenty-Ninth Judicial Dist., Edgard, Gregory C. Champagne, Asst. Dist. Atty., Twenty-Ninth Judicial Dist., Hahnville, for State of La., appellee.
    Robert R. Faucheux, Jr., Reserve, for Lionel Williams, appellant.
    Before CHEHARDY, BOWES and DU-FRESNE, JJ.
   CHEHARDY, Judge.

Lionel Williams was charged in a bill of information with two counts of attempted murder. After a trial by jury he was found guilty of one count and sentenced to 100 years at hard labor under the habitual offender provisions of the law. In this appeal he relies on five assignments of error.

According to the record, at about 3:15 p.m. on January 27, 1982 the St. John Parish Sheriff’s Office was notified by Shane LeBoeuf, a barmaid at Sue’s Lounge in Reserve, Louisiana, that a suspicious character was in the bar attempting to secure ammunition for his gun.

Deputies were dispatched to investigate and plain clothes officers Burton Ory and Ronald Arceneaux were among the first to arrive. The description of the suspect matched that of a person they were seeking who had been involved in a shoot-out in New Orleans a day or so earlier. They saw the suspect (later identified as Williams) in the bar, identified themselves as police officers, and asked him to step outside to talk.

He refused and pulled a gun out of a shoulder bag, and pointed it at Captain Ory. According to the state witnesses he fired one shot at Ory but missed. (Defendant denies he fired a shot at this time.) Ory fell to the floor, taking evasive action as soon as he saw the gun, and Arceneaux, having heard a shot, returned the fire, striking the barmaid in the legs.

The customers and the officers evacuated the building while Williams grabbed the barmaid as a hostage, holding a gun at her head. Williams admits firing a shot above a doorway after the people left the building. He claims this is the only shot he fired. Three hours later hostage negotiators persuaded him to leave the building and release Mrs. LeBoeuf. He was then arrested.

In the bill of information he was charged with violation of R.S. 14:27 and 14:30, attempted murder of Captain Burton Ory and Detective Ronald Arceneaux. He was found innocent as to Arceneaux and guilty as to Ory.

Attempt is defined by R.S. 14:27(A) as follows:

“Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.”

R.S. 14:30(2) calls for “specific intent to kill or to inflict great bodily harm upon a fireman or peace officer engaged in the performance of his lawful duties * ⅜ *.”

ASSIGNMENT No. 1

Appellant contends the trial court erred in repeatedly defining first degree murder (R.S. 14:30) singling out that charge, and not including other charges, crimes and definitions included in R.S. 14 Part II Subpart A.

Defendant claims to have been prejudiced because during the judge’s charge to the jury he did not include a complete recitation of responsive verdicts each and every time he defined first degree murder. Defendant claims the first degree murder charge took on a priority meaning and that a full and complete recitation of responsive verdict procedures was clearly indicated because of the nature of the crime.

C.Cr.P. art. 814(A)(2) cites responsive verdicts to first degree murder. The trial court defined attempt and then gave a definition of first degree murder coupled with the appropriate paragraph relative to firemen and police officers, followed by a recital of responsive verdicts, but not including negligent homicide.

No objection to the jury charges was noted in the record.

After the jury retired for deliberation they requested again the definition of first degree murder. In answer to that inquiry, the judge instructed the jury as to the definition of attempt, along with that of first degree murder.

Again no objection was made by defendant.

It is well established that any irregularity or error at the trial cannot be availed after the verdict, unless defendant timely made known his objections and the grounds therefor. State ex rel. Ross v. Blackburn, 403 So.2d 719 (La.1981); State v. Motton, 395 So.2d 1337 (La.1981). Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR No. 2

Defendant claims a sentence of 100 years constitutes cruel and unusual punishment.

R.S. 14:27(D)(1) provides if the offense attempted is punishable by death or life imprisonment .the defendant shall be imprisoned at hard labor for not more than 50 years. Defendant was sentenced pursuant to the habitual offender statute, R.S. 15:529.1, and as such was given the maximum sentence authorized by that statute.

Defendant contends the judge should not have given the maximum sentence because defendant was found guilty of only one count, based upon minimal evidence.

Defendant himself testified at the trial. He admitted pleading guilty previously to a charge of burglary and confirmed that criminal charges are currently pending against him in Iberville Parish, which he declined to discuss. He denied any intent to harm anyone in the instant case.

The court imposed the maximum sentence, finding that defendant fired his gun at a police officer in a crowded public establishment and in so doing completely disregarded the safety of not only the intended victim but also other bar patrons.

Additionally the judge noted defendant admitted fleeing police officers in New Orleans who were conducting a raid to confiscate illegal drugs and that he had been shot the day before when he fled the scene of the New Orleans crime with police officers in pursuit.

The court considered defendant a dangerous felon who would exhaust any means to avoid legal apprehension, including taking a civilian hostage in an attempt to bargain for his freedom.

The trial judge clearly had the authority to sentence the defendant to 50 years under the original crime if he found it warranted, and to sentence him to a 100-year term under the habitual offender statute. R.S. 15:529.1(A)(1).

Common sense dictates that no sentence is effective beyond one’s lifetime and any argument that the maximum sentence should not have been for more than defendant’s lifetime is without basis in law or common sense.

This assignment relative to the imposed sentence is without merit.

ASSIGNMENT OP ERROR No. 3

Defendant contends it was error for the trial court not to allow or direct a responsive verdict sheet to be considered by the jury in its deliberations.

The charge of negligent homicide was left off the sheet used by the jurors. Inasmuch as this is a responsive verdict to first degree murder, defendant claims it was detrimental that a definition of this offense was not included in the verdict sheet.

Defendant made no objection to this alleged omission at the trial and no evidence was offered relative to negligent homicide. We also note that in defendant attorney’s summation to the jury he did not allude to that offense.

State v. Toomer, 395 So.2d 1320 (La.1981), deals with a similar assignment of error. It held that since no evidence had been introduced from which the jury could have inferred these crimes (criminal negligencexor criminal homicide) there was no error.

Furthermore defendant in the instant case was not charged with murder, but attempted murder. Thus “attempted negligent homicide” would be the appropriate responsive verdict. However, “attempted negligence” is contradictory in and of itself.

Thus Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR No. 4

Defendant contends it was error for the trial court to accept a verdict not responsive to the evidence, or alternatively the jury did not properly address the evidence presented.

The standard to be used in reviewing the sufficiency of evidence is whether, after viewing the evidence in a light most favorable to the prosecution, any trier of fact could have found beyond a reasonable doubt that the defendant was guilty. State v. Korman, 397 So.2d 1346 (La.1981), and cases cited therein.

It is appellant’s position that the evidence revealed that at no time did defendant intend to physically harm Captain Ory, nor was any evidence shown that defendant was ever attempting to harm anyone at the lounge on January 27, 1982.

The jury obviously concluded otherwise.

Their verdict was based on the testimony of numerous eyewitnesses and Williams who took the stand to testify in his own behalf. All of the eyewitnesses saw Williams pull the gun out of the shoulder bag and aim it directly at Ory. Williams claims he was only doing it so as not to be accused of having a concealed weapon.

It is evident pandemonium resulted and everyone scurried to get out of the way. Ory fell to the floor and Mrs. LeBoeuf heard a shot as she ran. She looked around to see Arceneaux withdraw his gun from the holster and return the fire. It was his bullet that hit her legs. She stated unequivocally that she heard two shots, and no other gun was drawn at the time of the first shot, because Arceneaux’s gun was not fully withdrawn when she turned around.

Arceneaux also claims Williams fired first; he thought Ory was hit as he fell to the floor. Detective Edward Rome concurred that he heard two shots fired simultaneously and a third shot a few minutes later, as did Robert Cambre, a customer. Everyone heard the single shot fired after the building had been evacuated.

The physical evidence indicates the gun could hold six shells, but only one was spent (fired) and two live shells remained. Defendant claimed he could not have fired at either officer, as only one spent cartridge was recovered and that was found above the doorway.

However the evidence established that the building contained 25 bullet holes (many obviously from previous incidents) and it had been swept clean before the investigation so any other spent casings on the floor would not have been found.

The record also established that defendant seized the waitress by the neck, pointed a gun at her head and threatened to kill her, and held her hostage for three hours.

Defendant’s actions belie the fact that he had no intent to harm anyone. The jury clearly believed defendant attempted to murder Captain Ory but not Detective Ar-ceneaux.

Applying the test presented in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and further developed in State v. Austin, 399 So.2d 158 (La.1981), this court must determine whether any reasonable trier of fact could have found the defendant guilty of attempted first degree murder of Captain Ory by accepting the facts or evidence most favorable to the prosecution.

In accordance with the definitions supplied by R.S. 14:27, 14:30 and the evidence presented in support thereof there is no reason to disprove those findings.

Accordingly, Assignment of Error No. 4, after careful consideration, is found to be without merit.

ASSIGNMENT OF ERROR No. 5

Appellant complains that excessive delay in the rendition of judgment is a violation of his right to a speedy trial guaranteed by the Sixth Amendment of the United States Constitution.

The trial took place on October 18 and 19, 1982. The jury rendered its verdict shortly after all of the evidence was presented on October 19, 1982. Sentencing occurred on October 25, 1982. It was not until January 25, 1983 that written reasons were entered in the record.

C.Cr.P. art. 894.1(C) provides that the trial court shall state for the record the considerations taken into account and the factual basis for imposing sentence. This is an important aid to this court when we are called upon to review a sentence complained of.

Although the reasons should be handed down contemporaneously with the sentence, since they are a part of the record, it would serve no useful purpose to remand for that reason.

CONCLUSION

The finding of guilty and the subsequent sentencing conforms to the evidence and law, and the judgment and sentence are affirmed.

AFFIRMED.