author: GULOTTA, Judge.

text:
    STATE of Louisiana v. Phillip FRANKLIN.
    No. KA-0695.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Mary C. McMullan, Susan S. Hunt, Asst. Dist. Attys., New Orleans, for appellee.
    Lloyd N. Frischhertz, New Orleans, for appellant.
    Before GULOTTA, SCHOTT and LO-BRANO, JJ.
   GULOTTA, Judge.

Appealing his conviction as a second offender for possession of marijuana, in violation of LSA-R.S. 40:966, defendant urges twelve assignments of error. We affirm.

On July 11, 1982, at approximately 2 a.m., NOPD Officers William B. Williams and Mitchell Dusset observed a taxicab driven by defendant Philip Franklin disregard a stop sign at the intersection of Florida and Gallier Streets. The officers stopped defendant’s cab and made a routine request for his driver’s license. When told that he had none, they placed him under arrest.

Upon searching defendant, Officer Williams found two coin envelopes in his right rear pocket, one containing a green vegetable matter he believed to be marijuana, and the other containing four hand-rolled cigarettes. Officer Williams then informed defendant he was under arrest for possession of marijuana.

An on-the-scene search of the interior of the defendant’s car revealed a paper bag containing three coin envelopes with the green vegetable matter, another coin envelope with residue in the car’s ash tray, and another coin envelope containing marijuana under the left floor mat.

After defendant entered a plea of not guilty to the charge of possession of marijuana with intent to distribute, the State amended the bill of information by deleting the words “intent to distribute” and substituting therefor, “and has been previously convicted of possession of marijuana....” After a second trial (the first hearing ended in a mistrial), defendant was found guilty as charged and sentenced to serve one year with credit for time served.

ASSIGNMENT OF ERROR 1

Defendant contends the trial judge erred in denying his motion to suppress the evidence seized. Defendant claims there was no probable cause for the officers to stop him since he had not disregarded the stop sign. Alternatively, he argues that if the officers made a lawful arrest, their search of his person and the cab exceeded constitutional limits.

Reasonable cause to stop a suspect is determined on a case by case basis by assessing whether the police had sufficient knowledge of facts and circumstances to justify an infringement upon an individual’s right to be free from government interference. See La.C.Cr.P. Art. 215.1 and State v. Chaney, 423 So.2d 1092 (La.1982). Probable cause to arrest exists when the police officer has reasonable and trustworthy information about facts and circumstances to sustain the belief of a reasonable man that the arrestee has committed or is committing a crime. See La.C.Cr.P. Art. 213 and State v. Chaney, supra. A determination of probable cause is a substantive one to be made by the trial judge on .the facts and circumstances of each case. His conclusions are entitled to great weight. See State v. Nicholas, 397 So.2d 1308 (La.1981).

According to the arresting officers, defendant disregarded the stop sign and possessed no driver’s license. Under the circumstances, the arresting officers had the right, incident to defendant’s lawful arrest (for the traffic violation) to conduct the search of the defendant. See State v. Morgan, 445 So.2d 50 (La.App. 4th Cir. 1984). The more difficult problem is whether the officers made a lawful, war-rantless search of defendant’s cab.

In State v. Brooks, 452 So.2d 149 (La.1984), the Louisiana Supreme Court adopted the standards set forth in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), that officers who have lawfully stopped an automobile and have probable cause to believe that contraband is concealed “may conduct a search of the vehicle that is as thorough as the magistrate could authorize in a warrant particularly describing the place to be searched”.

In the instant case, the discovery of contraband on defendant’s person gave rise to a reasonable suspicion that the cab also contained contraband. Accordingly, probable cause existed for a warrantless search of the vehicle.

We therefore find no merit to this assignment of error.

ASSIGNMENT OF ERROR 2

Defendant next claims the trial judge erred in overruling his motion to quash. According to defendant, prejudice occurred when the bill of information, which contained a reference to his earlier conviction for possession of marijuana, was read to the jury prior to hearing evidence. Defendant claims that fairness and impartiality require that the jury not be made aware of the prior conviction, which could have been made available to the trial judge at the time of sentencing.

La.C.Cr.P. Art. 765, which sets forth the normal order of trial, provides that the indictment or bill of information be read. LSA-R.S. 40:966, the crime charged in the instant case, includes a penalty provision for a second conviction for possession of marijuana. To obtain a multiple offender conviction, the allegation that the crime is a multiple offense must be contained in the bill of information. State v. Keys, 328 So.2d 154 (La.1976). See also State v. Morgan, 389 So.2d 364 (La.1980); State v. Pounds, 359 So.2d 150 (La.1978). Under the circumstances, the bill of information containing the earlier conviction was properly read to the jury.

Accordingly, we find no error in the denial of defendant’s motion to quash the indictment.

ASSIGNMENTS OF ERRORS 3 & 5

Defendant argues the trial judge erroneously admitted into evidence an arrest register showing traffic violations and tickets issued on July 11, 1982, when defendant was arrested for the offense charged. Defendant maintains this evidence was prejudicial. We disagree.

The prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is substantially relevant for some purpose other than to show the accused is a “bad man” more likely to have committed the offense. State v. Haarala, 398 So.2d 1093 (La.1981). However, when relevant and highly probative evidence is necessary to establish the elements of the crime charged, the fact that it involves another crime does not make the evidence per se objectionable. See State v. Anderson, 343 So.2d 135 (La.1976).

In the instant case, the traffic violations in the arrest register and the traffic tickets, although irrelevant to establish the elements of the crime of possession of marijuana, were relevant and probative to establish probable cause for the search of the defendant and his car. Absent this evidence, there was no basis to support a lawful arrest. Accordingly, we find no merit to this assignment of error.

ASSIGNMENTS OF ERRORS 4, 6 & 8

Defendant next claims in Assignment of Error 4 that the trial judge erred in not allowing the arresting officer to answer a question whether defendant had money in his wallet at the time of arrest. According to defendant, this line of questioning was proper cross examination to impeach the credibility of the police officer.

We fail to see the relevance of this questioning, and find no abuse of the trial judge’s discretion in controlling the scope and extent of cross examination. See State v. Coleman, 406 So.2d 563 (La.1981) and State v. Allen, 431 So.2d 808 (La.App. 4th Cir.1983). This evidence is of no moment to either the traffic violation or the marijuana offense. Accordingly, we find no merit to this argument.

Defendant also contends in Assignment of Error 6 that the trial judge erred in overruling a defense objection to the State’s cross examination of another driver of defendant’s cab, Sidney Rayfield, concerning Rayfield’s observations of a woman who changed her stockings in the back of the cab and threw paper on the floor. According to defendant, this irrelevant line of questioning was an obvious attempt by the State to imply that Rayfield was a “lewd person with a poor moral character” in order to prejudice the jury into thinking that defendant was also of poor moral character.

Because the contraband was found in a paper bag on the floor of defendant’s cab, this testimony about throwing paper was relevant. We find no prejudice.

Defendant further avers in Assignment of Error 8 that the trial judge erred in allowing the district attorney to ask defendant why his former girlfriend did not testify on his behalf. This witness’ presumed testimony that she had stopped dating the arresting officer in order to date the defendant would have corroborated defendant’s position that he was harassed, stopped and searched by the arresting officer because of his relationship with the girlfriend. According to defendant, the State’s reference to the girlfriend’s failure to appear on his behalf created an inference (in the jury’s mind) that her testimony would not have supported his claim.

We reject this contention. Defendant’s response to the prosecutor’s question concerning his failure to call this witness was, “She’s married now at this time, and I think it would be very disrespectful for me to go and ask her....” This answer was logical and reasonable. We do not conclude prejudice resulted. We therefore find no abuse of the trial court’s discretion in allowing the question.

We conclude that Assignments of Error 4, 6 and 8 are without merit.

ASSIGNMENT OF ERROR 7

Defendant next contends the trial judge erred in not allowing the defendant on direct examination to answer defense counsel’s questions concerning the reasons why the officers had stopped and arrested him. We find no error.

A witness may only testify as to facts and information within his knowledge, and is not permitted to speculate as to any impression he may have. See LSA-R.S. 15:463 and State v. Prestridge, 399 So.2d 564 (La.1981). The trial judge properly sustained the prosecutor’s objection to the question.

This assignment lacks merit.

ASSIGNMENTS OF ERRORS 10 & 11

In these assignments, defendant argues the District Attorney exceeded his scope of the State’s rebuttal argument under LSA-C.Cr.P. Art. 774 by reiterating his closing argument and interjecting his personal feelings.

Because our transcript of the record does not include defendant’s closing arguments, we cannot determine whether the State’s rebuttal argument exceeded the permissible scope. Our review of the State’s argument, however, indicates that the District Attorney expressed his personal resentment of the defense attorney’s allegations against him and the police officers. Following this argument, the defense counsel objected, and the trial judge immediately admonished the district attorney to refrain from making personal comments.

Before a reviewing court will overturn a verdict on the basis of an improper rebuttal argument, it must be convinced that the challenged remark influenced the jury and contributed to the verdict. See State v. Vosloh, 387 So.2d 1174 (La.1980). Although the comments made by the District Attorney exceeded the permissible scope of rebuttal, when we consider the nature of these remarks and the trial judge’s prompt admonishment of the District Attorney, we do not conclude that they influenced the jury or were of a sufficient magnitude to warrant reversal of defendant’s conviction.

ASSIGNMENT OF ERROR 12

Defendant lastly argues that the jury’s guilty verdict is contrary to the law and evidence.

The proper standard of review of the sufficiency of evidence is that a reviewing court view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Raymo, 419 So.2d 858 (La.1982); State v. Fuller, 414 So.2d 306 (La.1982); State v. Sharp, 414 So.2d 752 (La.1982).

A review of the record in this case leads to a conclusion that sufficient evidence exists for a guilty verdict.

Having so concluded and having found no reversible error, we affirm defendant’s conviction and sentence.

AFFIRMED.

      . Since defendant properly filed assignments of error which are in the record, although they were filed in another division and were not reflected on the Docket Master, we reject the State’s argument that the defendant’s failed to assign errors as required. See LSA-C.Cr.P. Art. 844.

      . Although defendant argues in his brief that the officers had no probable cause to stop him, we interpret this contention as meaning that the officers had no reasonable cause to stop him, and no probable cause to arrest him.

      . In State v. Hernandez, 410 So.2d 1381 (La.1982), decided before Ross and Brooks, the Louisiana Supreme Court rejected the rule enunciated by the United States Supreme Court in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) that a policeman may, as a contemporaneous incident of a lawful custodial arrest of a car’s occupant, search the car's passenger compartment, and the contents of any container found in the passenger compartment. In construing our state constitution in Hernandez, the Louisiana Supreme Court adhered to Louisiana’s rule that in a warrantless search of an arrestee’s person, officers could search the person, and the area within his control — construing that phrase to mean the area by which he could gain possession of a weapon or destructible evidence.
      Also decided before Ross and Brooks, was State v. Guzman, 362 So.2d 744 (La.1978), cert. denied 443 U.S. 912, 99 S.Ct. 3103, 61 L.Ed.2d 876 (1979), in which the Louisiana Supreme Court, adopting the standards of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) held that a warrantless search of a movable vehicle could only be conducted under the "automobile emergency exception” when there was probable cause to believe that the vehicle contained contraband or evidence of a crime, and "exigent circumstances” required an immediate warrantless search. The Louisiana Supreme Court in Brooks held this mobile/immobile distinction to be no longer relevant.

      . La.C.Cr.P. Art. 765 provides, in pertinent part:
      The normal order of trial shall be as follows:
      1. The selection and swearing of the jury;
      2. The reading of the indictment;...


source: Caselaw Access Project

author: CIACCIO, Judge. BARRY, Judge,

license: Public Domain

text:
    STATE of Louisiana v. William G. HOWARD.
    No. KA-1281.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      Martin E. Regan, Jr., New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen. and Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty. and Joanne C. Mari-er, Asst. Dist. Atty., New Orleans, for the State.
    Before BARRY, CIACCIO and AUGUSTINE, JJ.
   CIACCIO, Judge.

Defendant, William G. Howard, was charged with possession, with intent to distribute, a controlled dangerous substance, Pentazocine, and found guilty as charged. R.S. 40:967. The defendant was sentenced as a multiple offender and ordered to serve five (5) years in the Department of Corrections. R.S. 15:529.1. The defendant appeals his conviction and sentence, relying upon three assignments of error. We affirm the conviction and sentence.

The facts surrounding the defendant’s arrest are conflicting:

New Orleans Police Officer Pedro Marina testified that he and fellow patrolman, Officer Wallace Goody, were patrolling the neighborhood in the vicinity of Pauger and North Villere Streets in New Orleans on June 6, 1982 at approximately 6:30 p.m. when they observed three black subjects huddled on the corner. The police officers were in plain clothes and were driving an unmarked vehicle. They stopped the car and instructed the three subjects to come to them. The defendant appeared to be very nervous. At this time the officers performed a “pat-down” of the subjects for weapons and then ran a routine computer check of their names, in order to ascertain if any of the subjects were wanted. The search and computer check proved negative and the subjects were released. According to Officer Marina, as William Howard proceeded to walk away, his partner observed, and called to his attention, a foil wrapped package which had fallen from Howard’s pants leg. Upon retrieving the package, Officer Marina discovered that it contained what appeared to be the controlled drug, Pentazocine. They followed the subject and apprehended him. They placed Howard under arrest, advised him of his rights and conducted a search of his person for contraband. The search revealed an object in the defendant’s groin area such that the officers directed the defendant to retrieve the object. According to the officers, the defendant appeared to be pushing the object away. Thus, Officer Marina unzipped the defendant’s pants and retrieved 43 sets of Talwin and Pyribenzamine (i.e., Pentazo-cine). The defendant was handcuffed and placed in the back of the police car with Officer Marina. During the trip to Central Lockup, due to defendant’s extreme nervousness and constant movement in the back seat of the car, a collision nearly occurred. According to the patrolmen, the defendant stated that he was not hurt in this incident.

The officers then proceeded to the defendant’s girlfriend’s house in order to search it for additional contraband. After the search, they transported the defendant to jail.

Officer Marina’s testimony was corroborated by that of Officer Goody.

The defendant testified that on the day in question he did not possess any drugs and he first saw these drugs in the garage at police headquarters when one of the officers retrieved them from behind the back seat of the patrol car.

The defendant further testified that he was in the neighborhood looking for a friend from whom he was going to receive certain automobile parts, which were to be used on his car. He said that several men were gathered on the corner of Pauger and North Villere when a green car pulled up and two white men jumped out and ordered them to proceed to the corner. They were then ordered to take everything out of their pockets and they were thoroughly searched. The defendant stated that he was very nervous because he had been mistreated by the police on a prior occasion and he had also developed a nervous condition from his experiences in Viet Nam. The defendant testified that the police ran a computer check of their identities and they took the defendant’s car keys. In response to the police inquiry as to his car’s location, Howard told them it was located in front of his mother’s house on Thalia Street. The defendant’s girlfriend, Carolyn Anderson, approached and after Howard’s release, they walked down North Villere Street towards Anderson’s house. According to the defendant, as they neared Anderson’s house the police approached again. They instructed Anderson to go inside the house and they told the defendant to empty his pockets. The police handcuffed the defendant and unzipped his pants but their search failed to reveal any evidence. According to Howard, he was placed in the back of the patrol car and while being transported to Central lockup, the car collided with another vehicle resulting in his injury. He stated that the other vehicle- was owned by someone known by these policemen and a discussion ensued after which they proceeded on their way. Howard testified that he complained of injuries but he was told by the officers to be quiet.

He said that after this incident he and the patrolmen returned to Anderson’s house where the officers requested back-up assistance. After the additional patrolmen arrived, the Anderson house was searched after which the defendant was transported to Central Lockup. Howard testified that the policemen repeatedly interrogated him regarding his knowledge of other persons who might be engaged in illegal drug traffic. He stated that he could not supply this information because he did not know anyone involved in this activity.

The defendant produced two witnesses on his behalf: Luther Harvey and Carolyn Anderson.

Luther Harvey testified that he lived in the neighborhood near Pauger and North Villere Streets. He stated that on the day of this incident he was standing on the corner outside his apartment. He was approximately forty feet from the scene of this incident when he observed a police car stop and the police approach three men on the corner. He observed the police search the defendant and two additional men. He stated that he then observed the defendant and his girlfriend proceed down North Vil-lere Street towards downtown. The police returned to their vehicle and left the scene. He stated that he never saw the police pick up anything from the street.

Carolyn Anderson, defendant’s girlfriend, corroborated his story concerning the occurrences of June 6, 1982. She also testified that from the window of her house she saw the police unzip Howard’s pants in order to search him. She stated, however, that nothing was retrieved from his pants.

Assignment of Error No. 1

The defendant contends that the trial court erred in refusing to allow him the opportunity for sur-rebuttal. Specifically, the defendant complains that the State was allowed to introduce into evidence a copy of the defendant’s arrest register, which register indicates that the defendant responded that he was not hurt while being transported to Central Lockup. The defendant contends that he responded affirmatively to the inquiry about his injuries and that the police intentionally filled in an incorrect response in order to conceal their true motive for arresting him. According to the defendant, he was charged with an offense “in order to mitigate the damages and injuries he sustained in the motor vehicle accident which occurred while he was in police custody.” Therefore, he reasons that the right of sur-rebuttal on this aspect was critical to his case.

It is a generally recognized rule of evidentiary proceeding that the prosecution has the right to rebut the evidence adduced by the defendant, however, the defendant does not have the right to rebut the prosecution’s rebuttal. R.S. 15:282. Therefore, the normal order of trial shall consist of the presentation of the evidence of the State, and of the defendant and of the State in rebuttal. C.Cr.P. Art. 765(5). Hence, the introduction of any additional evidence prior to argument is solely within the discretion of the trial court. C.Cr.P. Art. 765(5). State v. Smith, 340 So.2d 247 (La., 1976). Where the State in rebuttal does not introduce any new matters other than those brought forth by the defense in its case in chief, the denial of a request for sur-rebuttal will generally not be found to be an abuse of discretion. See: State v. Kaufman, 211 La. 517, 30 So.2d 337 (1947).

In the instant case, the defense introduced a copy of the defendant’s booking record which indicated that he had injured his back and neck. In rebuttal, the State introduced the arrest register which indicated that the defendant had no injuries. In refusing the defendant’s request for sur-rebuttal, the court reasoned as follows:

BY THE COURT:
Your objection is noted in the record, and there is no rebuttal.
The order, according to the Code of Criminal Procedure and everything that I know the order is the State on Chief, the Defense, and the State has rebuttal at its option. And, that’s the rules of the game. It has got to stop somewhere. [Tr. 116]

Under the circumstances of this case, the defendant was afforded the opportunity to prove that he sustained injuries and the State was afforded the opportunity to rebut that evidence by proving he has not suffered any injuries. The normal course of trial had been followed. No new matters were raised by the State in rebuttal and the trial court did not abuse its discretion in refusing to allow sur-rebuttal. For these reasons, assignment of error No. 1 lacks merit.

Assignment No. 2

The defendant objects and assigns error to the trial court’s refusal to sustain his objection to the State’s reference to the defendant’s arrest register in closing argument.

Rebuttal evidence is that which is offered to explain, repel, counteract or disprove facts given in evidence by the adverse party. State v. Huizar, 414 So.2d 741 (La., 1982). During trial, the closing arguments shall be confined to the evidence admitted, lack of evidence, conclusion of facts drawn by the parties and to the law applicable to the case. C.Cr.P. Art. 774. Therefore, where evidence has been properly admitted, it can become the proper subject of closing arguments. See: State v. Fowlkes, 352 So.2d 208 (La., 1977).

In this case the State properly introduced the defendant’s arrest register into evidence, in rebuttal, to disprove the defendant’s assertion, made in his case in main, that he had sustained injuries while in custody. The evidence, thus having been properly admitted, was a proper subject to be addressed during the State’s closing argument. For this reason, assignment number 2 is without merit.

Assignment No. 3

The defendant contends that the trial court erred when it overruled his objection to an allegedly inappropriate and inflammatory remark made during the State’s rebuttal closing argument.

In referring to the corner of Pauger and North Villere, where the defendant was arrested, the State made the following statement in closing argument:

... And, he [Officer Marina] told you that they make arrests in that area all of the time.' They are busting people there all of the time, and he told you—
⅜ ' ⅝ * * ⅝ *

Closing argument shall be confined to “evidence admitted” and “... conclusions of fact,” while the State’s rebuttal in closing argument shall be confined to answering the defendant’s argument. C.Cr.P. Art. 774.

Although it had been established by the State, during the cross-examination of the defendant, that he was in fact arrested at this very location once before for drug dealings, it had not been established that “They are busting people there all the time” nor that Officer Marina had made arrests in that area. For this reason the State’s statements were outside the legal scope of closing argument and were improper.

It is, however, not every prejudicial remark which will mandate a reversal of a defendant’s conviction. Rather, in order to warrant such a result, the court must be convinced that the challenged remark influenced the jury and contributed to the conviction. State v. Sharp, 418 So.2d 1344 (La., 1982).

Although there was evidence of at least one additional arrest at this location, the statements of the State were basically unsupported by the evidence and thus, were beyond' the scope of closing argument. However, we are not convinced that these statements so influenced the jury as to contribute to the defendant’s conviction. For this reason, we find that this assignment lacks merit.

Additionally, we have reviewed this record to ascertain whether the State has proven its case. The standard for this review is whether a rational trier of fact, when viewing the evidence in the light most favorable to the prosecution could have found that the State proved 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. Edwards, 400 So.2d 1370 (La., 1981).

In this case the accused was charged with possession of a scheduled narcotic, to-wit: Pentazocine, with the intent to distribute. R.S. 40:967. In such cases, the quantity of the drugs, the method by which they were packaged, and the defendant’s actions create a reasonable inference that the defendant possessed the requisite intent to sell or distribute the drugs. State v. Sibley, 310 So.2d 100 (La.,1975); State v. Allen, 431 So.2d 808 (La.App. 4th Cir.1983).

In this case the evidence adduced at trial established that the defendant was in physical possession of forty-three “sets of T’s and Blues”. The narcotics, which were found in the defendant’s underwear, were packaged in “sets”, and in ten “set” packs, (as is the custom in the wholesale trade) The defendant was observed on the street corner conversing with several other persons. It is reasonable to conclude from the evidence that this defendant intended to distribute these narcotics of which he had possession.

Therefore, the totality of the evidence when viewed in the light most favorable to the prosecution satisfies this Court that any rational trier of fact could have found that the State proved the essential elements of the crime beyond a reasonable doubt.

Finally, we have reviewed this ease for errors patent on the face of the record and our review reveals no such errors.

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

AFFIRMED.

BARRY, J., concurs.

BARRY, Judge,

concurring.

There was no “articulable suspicion” for the police to pat-down the defendant and the other two men, i.e,, simply because they were three black males together on a street corner. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and State v. Phipps, 429 So.2d 445 (La.1983). However, the search was not questioned.


author: MARVIN, Judge.

text:
    STATE of Louisiana, Appellee, v. Auburn Ladon ROBINSON, Appellant.
    No. 15946-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.

      Smith & Hingle by J. Randolph Hingle, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge", Johnny Parkerson, Dist. Atty., Monroe, Allen Harvey and Ellen Eade, Asst. Dist. Attys., Bastrop, for appellee.
    Before MARVIN, JASPER E. JONES and SEXTON, JJ.
   MARVIN, Judge.

Auburn Robinson appeals his conviction by a jury of possession of marijuana with intent to distribute and his sentence to two years at hard labor. LRS 40:966 A. We find that the trial court erred in overruling defendant’s second motion for a mistrial. We reverse and remand for a new trial. CCrP Art. 770(2).

The state presented testimony from three witnesses. Two policemen testified why and how they stopped Robinson in his car near a Bastrop city park and seized a paper sack containing 15 plastic baggies of marijuana. One of the policemen additionally explained that when he was working undercover he purchased marijuana from others in plastic baggies of the type found in Robinson’s vehicle. The third witness for the state was an expert witness from the crime lab who testified that the content of each baggie was marijuana.

Defendant testified, but presented no other evidence. He said he bought the marijuana in Texas a few weeks before he was arrested in Louisiana on December 26, 1981. Defendant said he bought the marijuana packaged as it was when the police found it, that out of one of the baggies he rolled one cigarette (this cigarette was found in his shirt pocket when he was booked), that he bought the marijuana for his personal use, knowing that he was going to be visiting his home in Bastrop during Christmas, and that he was not possessing the marijuana for sale or distribution to others. He said that the quantity of marijuana in each baggie would produce about five cigarettes, or enough to sustain his habit for about one day.

The critical issue before the jury, which voted 10-2 to convict of the crime charged, was whether defendant possessed the marijuana for distribution.

On cross-examination defendant was asked about his admitted habit of using marijuana. The prosecutor asked defendant if he had used marijuana in 1980, in 1979, in 1978, and in 1977. Defendant answered yes to each question. Defendant’s counsel did not object until the question was asked and was answered regarding the year 1977. His counsel stated

“I’m going to object to that question as being improper and I would state the reasons for the court, but it would have to be outside the presence of the jury.”

The prosecutor announced that he would withdraw the question, [even though it had been answered] and then asked defendant whether defendant was convicted of possession of marijuana on May 11, 1977. Defendant answered yes, at which time his counsel again objected on the grounds that the question was improper. Defendant rested his case shortly after -this question was asked and the jury recessed for lunch. After the jury went to lunch defendant revealed in open court that his objection was based on the use by the state of a juvenile conviction to impeach defendant and made a motion for a mistrial on the grounds that it was unnecessary [and prejudicial] for the state to introduce an inadmissible conviction. CCrP Art. 770. The state answered that it didn’t realize that the conviction was a juvenile conviction. The trial court overruled defendant’s motion for a mistrial.

In State v. Roberts, 331 So.2d 11 (La.1976), an adult defendant was asked on cross examination about having been convicted in juvenile court of theft and shoplifting. The trial court denied a mistrial but admonished the jury to disregard the question. The supreme court held that the trial court properly “cured” the error by the admonition to the jury. The court further observed that Roberts was also impeached by evidence that he had been convicted of “two post-juvenile crimes.” That observation supports the court’s conclusion that whatever additional prejudice Roberts may have sustained by the reference to a juvenile conviction was cured by the judge’s admonition to the jury. 331 So.2d at 14.

Roberts upheld the statute then in effect and squarely held that an adjudication that a juvenile had committed an offense is not a “conviction” which could be used against a defendant for impeachment purposes. 331 So.2d at 13. Compare State v. Toledano, 391 So.2d 817 (La.1980).

Notwithstanding that the prosecutor and the trial judge should have been forewarned about the “use” of a juvenile conviction, the prosecutor argued on rebuttal to the jury after lunch that defendant had already been convicted of the crime of possession of marijuana, and the judge charged the jury in a standard instruction that they could “consider whether or not a witness has committed a previous criminal offense ... in deciding upon the credibility of each witness ...” We deduce that defendant apparently entered an objection to this charge before it was given, because, after the jury retired to deliberate, the trial judge stated defendant’s objection into the record. Defendant then again moved for a mistrial under CCrP Art. 770 on the grounds that the prosecutor referred to the juvenile conviction in his rebuttal argument and that the judge charged the jury as we have stated. The second motion for a mistrial was overruled. We find error in this respect.

Defendant’s assignments of error three, four, and five relate to the references made to the defendant’s conviction of May 11, 1977, and to the overruling of the motions for mistrial. In its per curiam response to these assignments, the trial court asserted that the instructions to the jury were correct because

(1) the defendant never established that the conviction occurred in a juvenile court;
(2) alternatively, the court considered the evidence admissible;
(3) any admonition would have only called more attention to the conviction; and
(4) the reference in the charge was “buried” and thus was not emphasized.

The information about defendant’s prior conviction is contained on a form labeled ARREST REPORT which is in the record at page 20 and a copy of which was furnished to defendant by the state in response to defendant’s discovery motion. The copy of the arrest report was not placed in the record until after the jury reached its verdict and was retired. The trial court apparently did not see a copy of the arrest report because the typewritten designation JUVENILE is at the top of the form and the form itself clearly shows the defendant’s date of birth as 11/27/60. From this report, furnished to defendant by the prosecution, it is established that defendant was a juvenile when he was arrested on 4/4/77 and when he was “convicted” or placed on probation for possession of marijuana on 5/11/77. The arrest report is reproduced here:

Robinson could not have been tried as an adult before his 17th birthday on November 27, 1977, because LRS 13:1570 A(2), (4), in effect before the Code of Juvenile Procedure was adopted in 1978, did not allow such a procedure.

While neither the trial judge nor the prosecutor labeled defendant’s 1977 conviction as a juvenile conviction, that conviction was inadmissible and should not have been called to the attention of the jury and, under the circumstances of this case where defendant was the only witness who admitted a conviction, the jury should not have been charged as they were, even though that charge is the standard charge. See Joseph & Lamonica, District Court Bench Manual on Instruction, (1980), at p. 5.8.

A mistrial should have been declared when the case was allowed to go to the jury in the posture in which they received it. Defendant’s 1977 conviction was a juvenile conviction which was clearly inadmissible. CCrP Art. 770, State v. Roberts, supra, and authorities therein.

Because defendant may be retried, we shall pass on defendant’s assignments 1 and 2 which question whether the police had probable cause to stop Robinson and search his automobile for the marijuana.

The facts in State v. Brooks, 452 So.2d 149 (La.1984), are highly similar to the facts shown in this record and present the same issue. There a Cl informed an officer that Brooks was parked in a described vehicle near a school selling marijuana. The officer knew Brooks and went to the area and found Brooks in the car described by the informant and where the informant had reported him to be. The Cl had provided reliable information in the past, according to the officer’s testimony.

The court said the credibility of the Cl is determined by the totality of the circumstances surrounding the “tip” given by the Cl, citing Illinois v. Gates, — U.S.-, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The court then said that this “tip ... corroborated by defendant’s presence at the location described in the tip, could have provided the necessary probable cause ... [and that the] Officer ... was justified in believing that the vehicle contained marijuana, and was entitled to immediately search the vehicle at the time of the arrest, without obtaining a warrant first.” In support of that holding, the court cited State v. Hernandez, 408 So.2d 911 (La.1981), and United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). These authorities should control in a retrial of Robinson.

We find that the trial court did not err in overruling the motion to suppress or in admitting the marijuana into evidence at Robinson’s trial.

DECREE

Defendant’s conviction is set aside and the case is remanded to the trial court for further proceedings.

CONVICTION SET ASIDE AND CASE REMANDED.

      . "The admonition of the trial court to disregard the question cured, in our opinion, whatever additional prejudice the accused might otherwise have sustained by the question's inference that he had also been convicted of a petty offense while still a juvenile.” 331 So.2d at 14.

      . “Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to: * * *
      "(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;” CCrP Art. 770, in part.


author: LOBRANO-, Judge.

text:
    STATE of Louisiana v. Michael AUGUSTINE, Thomas Estrada and Fernando Munoz.
    No. K-1955.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 2, 1984.
    Writ Denied May 25, 1984.
    Harry F. Connick, Dist. Atty., Donald DeGabrielle, Asst. Dist. Atty., New Orleans, for relator.
    David F. Craig, Jr., Milton P. Masinter, New Orleans, for respondents.
    Before REDMANN, C.J., and SCHOTT and LOBRANO, JJ.
   LOBRANO-, Judge.

This matter comes before the Court on a writ of certiorari sought by the State in response to the trial court’s granting of defendants’ motion to suppress. We granted the State’s application and now reverse the trial court’s decision for the following reasons.

The facts are as follows. On the morning of December 20, 1983 Officer Edmond Melder received information from a confidential informant who stated that he had purchased cocaine from an individual at a residence located at 3532 Elysian Fields Avenue within the preceeding 72 hours. The purported seller was a black male known as “Michael”. Officer Melder ran a computer check on the residence and found it to be occupied by Michael Augustine, one of the defendants herein.

At approximately 12:30 p.m., Officer Melder, along with Officer Wethren set up a surveillance of the residence. During the surveillance, the following incidents were noted:

1. At 1:50 p.m. a single male approached on foot, entered the residence after knocking and left in about 5 minutes.
2. At 2:10 p.m. a blue automobile carrying three males drove up to the same residence. All three entered after knocking and stayed for approximately fifteen minutes, after which one of the males came to the sidewalk, looked around and then motioned for the others to come out.
3. At 2:25 p.m. another single male walked up to the same residence, knocked at the door, and was seen to make an exchange of some sort at the doorway. The officers were unable to see what was exchanged.

After that particular exchange, Officer Wethern left the scene to obtain a search warrant for the residence. Shortly thereafter Officer Melder observed a blue Cadillac pull up in front of the subject premises. The three defendants emerged from the automobile and entered the residence. They returned to the car about 2:50 p.m. carrying a large paper grocery bag which was placed in the trunk. Fearing that the defendants were moving contraband from the residence, Officer Melder radioed Officers Austin and Dorion who were patrolling the area. The actions of those officers is best described by the testimony of Officer Dorion, which we quote in part:

“Officers Smith, Melder and Wethern were conducting a surveillance of Elysian Fields and requested assistance during that surveillance. Sometime during the surveillance Officer Wethern departed the area and proceeded to the office to prepare a search warrant, we were patrolling the area, if needed by them. About 2:45 p.m. we were advised that three black male subjects had exited the residence, one later identified as Michael Augustine was putting brown paper bags in the rear'of a blue Cadillac, didn’t know the year and they entered the vehicle, one subject in the back and two in the front. They asked us to follow the subjects, that they might be moving narcotics, that they might have found out about our surveillance and decided to move the narcotics, they walked out of the driveway and advised us that they were heading toward Elysian Fields towards the river. We fell in behind him, they drove the vehicle to the Interstate, got on the Interstate and were driving toward Slidell. We were directly behind them, my partner moved our vehicle adjacent to their vehicle on 1-10, we followed the vehicle and the 3 subjects in the vehicle, ...”
“... We recognized Estrada, we dropped back because they were in the right lane, we did not want them to pull off and leave us in the middle lane, so we dropped behind them, they got off at Franklin exit and made a right, heading toward the river again, we advised Det. Melder that we recognized Estrada, and we remained behind them. Det. Wethern came on the radio and said the search warrant would be signed in a few minutes and to keep the subjects in sight, we made a few turns along the way maybe five or ten minutes later, nor sure of the time, Det. Wethern told us he had the warrant in his hand and to stop the subjects. I asked him if he would return and return with us. We pulled them over at the intersection of Elysian Fields and Claiborne inside a gas station, don’t know the name of it. As we got out of the vehicle they jumped out of their vehicle in a — in a rush fashion — I was on the driver’s side as they got out, my partner advised me something had fallen by the driver’s door and to watch them, it rolled under the car, we put them in a position where our lives would not be in danger and I asked Munoz what his name was and I learned he was Spanish, had trouble communicating with him and Augustine told me his name his name was Fernando Munoz, his other name was Sorror. My partner recovered the bottle and we discovered it was a bottle of cocaine. We advised the subjects they were under arrest, we conducted a search and removed a knife Munoz had concealed in his waistband under his shirt and under the front seat where Augustine was sitting we found a loaded revolver, and we opened the trunk of the vehicle, Det. Melder had reported that he saw the subjects put a brown paper bag there, there was a brown paper bag in the trunk and a plastic bag, the top of the bag was open and I could see the contents and on looking further the bag contained 8 lbs. of marijuana. The subjects were advised of their rights and transported.”

After hearing the testimony the lower court ruled as follows:

“The Court in reviewing the case and reviewing the testimony and the search warrant, the Court finds no probable cause for the issuance of the search warrant. The Court wonders why the search warrant, being obtained for the house and the police were armed with the information about the car, why a warrant wasn’t obtained for the car, for the trunk area. The Court in issuing its judgment herein sustains Defense Counsel’s Motion to Suppress Evidence in Case 299-606, as well as the companion case whatever that number is 2991622.”

In response to that ruling the State applied for these writs stating the issue as:

“Whether the objects taken from the automobile occupied by the three defendant may be admitted as evidence in the State’s case against them?”

In our opinion the sole issue in this case is whether or not Officers Dorion and Austin had probable cause to stop the blue Cadillac in which the three defendants were riding. They (the officers) had knowledge that the Elysian Fields residence was under surveillance by Officers Melder and Wethern. They knew that the three defendants were seen coming from the residence with a large grocery bag which was placed in the trunk, and they knew that Officer Wethern had obtained (or was in the process of obtaining) a search warrant for the Elysian Fields residence. In addition, Officer Dorion testified they recognized the driver of the vehicle, defendant Estrada, with whom they had personal experience in the past.

The jurisprudence on automobile search and seizures since Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 has been confusing and complex. In an attempt to clarify this area the U.S. Supreme Court in the recent case of United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) held as follows:

“We hold that the scope of the warrant-less search authorized by the exception is no broader and no narrower than a magistrate could legitimately authorize by warrant. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” Id. at 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572.

The key to the application of the Ross, supra, holding in this case is whether or not the vehicle was legitimately stopped. We believe the officers had sufficient probable cause to stop the vehicle. Based on the surveillance of their fellow officers, the information obtained as a result of that surveillance, the information obtained from the confidential informant, and the fact that the driver of the vehicle was recognized by the officers, we believe the officers acted properly. See, State v. Le- Compte, 441 So.2d 249 (La.App. 4th Cir. 1983). The “totality of the circumstances test” approved in Illinois v. Gates, — U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) convinces this Court that there was sufficient probable ’ cause to stop the vehicle. Once the vehicle was stopped, the Ross decision permitted the complete search of the vehicle.

The ruling complained of is reversed and the motion to suppress is denied.

      . The officers both testified that this male appeared "nervous” as he came out of the residence.

      . Although the trial court sustained the defense’s objection concerning further questioning about Estrada’s past reputation, in view of the circumstances of this case we feel it would have been relevant and material.

      . The reliability of the confidential informant had been verified to a certain extent by the computer check which revealed the residence as being occupied by Michael Augustine.

      . We do not discuss the fact that a small vial of cocaine was allegedly seen to roll under the vehicle after it was stopped. Although it is argued that this alone was sufficient to justify a complete search of the vehicle, there is serious question as to whether it was actually seen to have fallen from the vehicle.


author: ALFORD, Judge.

text:
    Debbie QUAVE, et al. v. Curtis BARDWELL.
    No. 83 CA 0445.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Maurice Robinson, Jr., Hammond, for plaintiffs-appellees.
    Richard C. Macaluso, Hammond, for defendant-appellant.

      Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

Plaintiff-appellee, Debbie Quave, filed this suit against defendant-appellant, Curtis Bardwell, seeking damages for the deliberate and unjustified killing of her ger-man shepherd dog, Kilo Bandito. After a trial on the merits, the lower court awarded judgment in favor of appellee. Appellee was awarded $2,500.00 in damages and appellant was also ordered to pay a $120.50 medical bill incurred by Quave. Bardwell was taxed with all costs.

On appeal, the appellant has raised six specifications which will be grouped into four general areas for review. First, however, we will consider the relevant facts of record.

Sometime around eleven o’clock p.m. on September 28, 1979, Debbie Quave left her home with Ronnie King, her live-in boy friend, in order to drive King to work. At approximately the same time, Curtis Bard-well was coming home for the night to his mother’s house where he was staying. Testimony revealed that appellee and appellant lived two houses away from each other.

Bardwell testified that a short period after falling asleep he was awakened by the sound of fighting or barking dogs. Appellant owned a female dog who was in heat and he assumed the dogs were fighting over her. Grabbing his twenty gauge shotgun, Bardwell walked to the door to allegedly scare the dogs off. Opening the door, which led to a covered carport, Bard-well testified that he saw a large german shepherd a few feet to his right. Allegedly fearing an attack, the appellant leveled his shotgun at the dog and shot Kilo at close range. When asked whether the light in the carport was burning, Bardwell could not remember, but he did assert that it was dark. After firing the shot, appellant testified the dog ran away yelping.

Around 6:30 a.m. that same morning, the appellee arrived home after driving King to work. Discovering Kilo lying motionless with a hole in his face, Quave opened the gate to her fenced-in yard and, after struggling to his feet, Kilo went through the gate and underneath the house. The appel-lee immediately called Kilo’s veterinarian, Dr. Glenn Hutchinson, who rushed to Quave’s house to treat the animal. After administering a sedative, Hutchinson was able to get Kilo to his clinic for emergency surgery. Kilo died sometime that night.

At the conclusion of the trial, the judge noted his impressions of the evidence from the bench. The trial judge said it was his opinion that the shooting of Kilo,

... was a completely unprovoked act and intentional action by the defendant. [The trial judge continued...] I don’t think he [Bardwell] had any justification or excuse, I don’t feel that he was threatened by the dbg in any way. There has been no evidence whatsoever introduced in this case to prove any vicious or dangerous propensities of the dog. I feel he was completely unjustified in the killing of the dog.

In findings of fact filed in the record, the lower court held that the,

Defendant did willfully, maliciously and without cause shoot and kill the German Shepherd dog named Kilo Bandito....

Finding no abuse of discretion in this decision, we affirm at appellant’s costs. The appellant cites four general areas on appeal that he thinks merit a reversal. We shall review these separately.

First, appellant argues that' appellee failed to prove that the shooting of Kilo was unjustified and not an act of self-defense. Whether the killing was or was not justified is a factual determination which must be decided on the relevant evidence presented at trial.

A reading of the transcript suggest a two-pronged analysis into the sufficiency of the evidence: What does the testimony demonstrate as far as the demeanor and behavioral characteristics of Kilo; and what does the testimony demonstrate as far as the demeanor and behavioral characteristics of Bardwell? The evidence presented at trial was incontrovertible that Kilo was a dog of gentle and friendly demeanor, and although he was a german shepherd, Dr. Hutchinson testified that Kilo was only approximately 75 pounds, which we do not find very large for a shepherd. Ronnie King, who lived with Debbie Quave (and Kilo), testified Kilo was “just like a baby” and never attacked anyone. A close neighbor of appellant and appellee, Henry Baudoin, testified that Kilo never barked at him and that he (Baudoin) would frequently play with Kilo when Kilo was inside the fence. Freddie Manchac, III testified that Kilo was very gentle with Manchac’s little boy, and that he never saw Kilo growl or exhibit any vicious tendencies. In fact, Manchac testified that quite often his little boy would get on Kilo’s back and go for a ride. When Kilo or the boy tired of that, they would lay down and play in the grass. Indeed, because of Kilo’s amiable behavior, Manchac would often remark to Quave that Kilo was “too friendly to be a german shepherd”. Additionally, Bryan Stanga, a former neighbor of the litigants, testified that Kilo was not vicious, apd in fact, was always friendly. Furthermore, Mr. Stanga testified on direct examination:

Q. What was your experience with the dog?
A. Well, the first time I went there, when they had the dog, you know, I saw it was a big dog and when I come up to the gate, you know, it was just a big dog, wagging its tail, so I knew — I had no fear of the dog at all from the first sight.
Q. Did he bark at you?
A. No, didn’t even bark, just kind of wagged his tail and come up to the gate.

On cross-examination by appellant, Dr. Hutchinson testified that an unaltered male dog may exhibit some aggressive tendencies around a female dog in heat, but that he could not be absolutely certain on this point. However, on re-direct examination, Dr. Hutchinson asserted that simply because a male dog’s otherwise gentle demeanor may change around a female dog in heat, this did not, ipso facto, mean that an otherwise mild-mannered dog would always exhibit a change of personality. In the veterinarian’s view, whether a dog’s personality would change around a female dog in heat was an open question to which he could not provide a definitive or expert opinion.

Lastly, Debbie Quave testified that Kilo was a very gentle dog who never got in fights with other dogs or people. Indeed, appellant testified that Kilo was not used for a watchdog and that she depended upon her other dog, a St. Bernard, for protection. Thus, the evidence in the record is overwhelming that, while Kilo was a german shepherd, nevertheless, he exhibited a very gentle and friendly disposition around children, adults, and other dogs.

On the other hand, Bardwell’s attitude towards dogs can be characterized as nothing short of vicious and brutal. For example, Bryan Stanga, who was 23 at the time of the trial, stated he has known the appellant since Stanga was fourteen or fifteen. On direct, Stanga answered questions about an incident in 1976 when he was riding in a vehicle with Bardwell:

Q. Were you ever in the company of Mr. Curtis Bardwell when he killed a dog?
.... i
A. Uh, I was with him in a vehicle and we was going down Wadesboro Road, it was a pickup truck and, you know, there was a dog sitting in this long driveway of a little store and I remember the dog not even facing the road and Curtis leaving the road to run over the dog and it sticks in my mind clear, you know, because I always remember looking back and seeing that dog coming out from under the truck, you know, that was — it was on purpose he left the road and even said, you know, watch me get this dog, you know.

On cross-examination, Bardwell admitted to a conviction of cruelty to animals two days prior to the incident in question. In this instance, he killed a dog belonging to Henry Baudoin. Testimony revealed that Bau-doin’s dog was small and not threatening Bardwell in any way. Apparently, appellant went out of his way to slaughter the small dog; after firing ten to fifteen .22 caliber rifle shots into the crippled animal, Bardwell followed the dog into some bushes where it had apparently gone to die and then finished the animal off at close range.

Furthermore', and again on cross-examination, Bardwell was asked:

Q. Have you ever killed any other dogs other than the one we are talking about this morning and the one that belonged to Mr. Boudoin (sic)?
A. Uh, I killed — yes.
Q. Have you killed them with guns also or—
A. Yes sir.
Q. You killed them because they were attacking you?
A. No sir.

Thus, a pertinent and revealing character trait of the appellant is exemplified by this testimony: Bardwell has no qualms about shooting dogs even though they are not attacking him.

Mr. Bardwell testified that he grabbed his shotgun because he wanted to scare the barking dogs off. Appellant testified that he was merely going to shoot in the air, but that when he saw Kilo he leveled his aim and shot Kilo at close range. Beside the fact that using a shotgun to frighten barking dogs may be overkill in our opinion, we also find interesting the observation made by the trial judge that if Bardwell really did intend merely to shoot in the air, he would have shot off the roof of the carport!

There are other inconsistencies in appellant’s testimony that we need not address here. Suffice it to say that the above detailed analysis proves that the trial judge’s factual conclusion that the shooting of Kilo was unprovoked and intentional is clearly supported by the record. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Pearce v. Rogers, 423 So.2d 83 (La. App. 1st Cir.1982). Appellant’s argument otherwise is rejected.

Appellant next argues that the trial judge’s award of $2,500.00 was unsupported by the evidence, and that the lower court committed error when it found that the appellee had used Kilo for breeding purposes. First, we note that Quave paid $200.00 for Kilo and he was approximately three and a half when he was killed. Testimony revealed that Kilo was registered with the American Kennel Club. Clearly, the value of Kilo for stud purposes was significant. Indeed, Quave testified that she had loaned Kilo three times for breeding purposes. Once to Timmie Jones in Baton Rouge for $100.00, and twice to Freddie Manchac for a total of $200.00. Freddie Manchac confirmed Quave’s testimony in this respect. Thus, because of the shooting of Kilo, Quave lost her original investment, her expenses incurred in taking care of Kilo until he was killed, the money she could have made with Kilo at stud, and additionally, she is faced with replacement costs should she choose to buy another dog. Given the difficulties- involved in obtaining an exact measure 0⅜ damages, if indeed one is at all possible, we do not think the trial court abused the much discretion afforded it when determining damages. Reck v. Stevens, 373 So.2d 498 (La.1979); Allen v. Keeney, 442 So.2d 1171 (La.App. 1st Cir.1983), citing Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). Appellant’s assertion otherwise is rejected.

The next issue presented for our review is appellant’s assertion that it was error for the trial judge to consider evidence of irrelevant and immaterial acts of Bardwell. It must be remembered that this was a civil action brought by the plaintiff to recover damages; it was tried by a judge without a jury.

On cross-examination Bardwell was asked about the prior conviction for cruelty to animals. After he admitted the crime, Quave attempted to elicit additional details of the crime but appellant objected. The objection was sustained by the trial judge. The appellee then asked Bardwell whether he ever killed any other dogs and appellant objected on the grounds of relevancy. The objection was overruled. Next, when ap-pellee attempted to question Ronnie King about the incident with Mr. Baudoin’s dog (the incident giving rise to the conviction), appellant again objected on grounds of relevancy. Again the objection was overruled. Finally, appellant’s objection on the grounds of irrelevancy was over-ruled when Bryan Stanga gave testimony regarding the incident when Bardwell intentionally and without reason ran over a dog with his truck.

Although the. following statutes are in Title 15, “Criminal Procedure”, they are helpful in shedding light on the present issue before us for review. LSA-R.S. 15 § 441 provides: “Relevant evidence is that tending to show the commission of the offense and the intent...” (emphasis supplied). Additionally, LSA-R.S. 15 §§ 445 and 446 provide in pertinent part:

In order to show intent, evidence is admissible of similar acts, independent of the act charged....
When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declaration of the accused as tend to establish such knowledge or intent....

Whether or not Bardwell shot Kilo without cause was, essentially, a question of intent, and the evidence appellee presented in this respect was quite relevant. The trial judge’s determination that the evidence was relevant is supported by the record and will not be disturbed on appeal. City of Baton Rouge v. Tullier, 401 So.2d 422 (La.App. 1st Cir.1981), writ denied, 406 So.2d 605 (La.1981).

The final issue for our review causes some confusion. Appellant’s specification of error number six provides:

The trial court erred in finding that the plaintiff had stated a cause of action and/or a right of action. These issues were raised in the responsi-(sic) pleading styled “First Supplemental and Amending Answer” and the plaintiff did not meet her burden of proof in showing that her animal was entitled to the protection of law.

In fact, there is no pleading styled “First Supplemental and Amending Answer” in the record, nor is there an exception of no cause of action or no right of action in the record. Indeed, the transcript is completely devoid of any evidence relevant to the disposition of this particular issue. Our review of the record indicates that this specification of error is meritless.

For the above reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

      . Debbie Quave's boyfriend, Ronnie King, also joined in the suit as a plaintiff. Finding he was not the true owner of Kilo, the trial judge dismissed King’s claim; King has not appealed this ruling.


author: PONDER, Judge. WATKINS, Judge

text:
    MERRICK CONSTRUCTION COMPANY, INC., et al. v. HARTFORD FIRE INSURANCE COMPANY.
    No. 83 CA 0473.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Writ Denied May 25, 1984.

      David W. Robinson, Baton Rouge, for plaintiffs-appellees Merrick Const. Co., Inc., Max Merrick Farms Inc., Max Merrill Merrick, Inez Merrick, Dianne Merrick, Carl Joseph Merrick and Scott Steven Merrick.
    Albert C. Miranda, Metairie, for defendant-appellant Hartford Fire Ins. Co.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Defendant appealed from the judgment ordering it to pay its insured, plaintiff, $148,707.85 for the defense costs of a personal injury suit.

The issues are 1) appellant’s duty to defend appellee and appellee’s surety, 2) the court’s reliance on an indemnity agreement which was not introduced, 3) the amount of attorney’s fees, and 4) the running of interest from date of judicial demand versus the date of judgment.

Appellee, Merrick Construction Company (Merrick), contracted with the Department of Transportation and Development (DOTD) to do road construction work. As a result of a car accident on the roadway worked on, a suit was filed against a number of defendants, including plaintiff, based upon the contention that Merrick was negligent in the performance of its work. Hartford Fire Insurance Company (Hartford), under a general liability policy issued to Merrick, undertook Merrick’s defense in the main demand. The DOTD, also named a defendant, filed a third party demand against Merrick. Hartford undertook the defense of this third party demand. The DOTD also filed a third party demand against St. Paul Fire & Marine Insurance Company (St. Paul), which had executed a surety bond to guarantee Merrick’s obligation to DOTD and to hold DOTD harmless from any loss arising from the negligence of Merrick in the performance of the road construction work. St. Paul tendered the defense to Merrick, who tendered it to Hartford, who refused to defend since St. Paul was not a named insured under Hartford’s policy. After Merrick had handled St. Paul’s defense until a conflict developed, St. Paul hired its own attorney, who filed a third party demand against Merrick. After Hartford refused to defend Merrick on St. Paul’s third party demand, relying on the contention that the indemnity agreement between Merrick and St. Paul was not covered under the general liability or contractual liability sections of its policy, Merrick hired its own attorney to defend the third party demand.

The DOTD and Merrick were dismissed as party defendants on trial of the damage suit. However, Merrick had spent $92,-394.12 in defending St. Paul on DOTD’s third party demand and in defending itself on St. Paul’s third party demand. St. Paul paid its own counsel $56,313.74 for defending it on DOTD’s third party demand after Merrick withdrew from its defense.

Merrick then filed the present suit for the attorney’s fees paid for its defense and for St. Paul’s defense. Plaintiff also requested damages due to the cancellation of its bonding capacity by St. Paul, penalties and attorney’s fees.

The trial judge found that Hartford’s policy provided coverage for liability assumed by plaintiff under any contractually-imposed warranty of workmanlike performance. He reasoned that the sole basis of the damage claim against DOTD and the resulting third party demands was the alleged breach of Merrick’s workmanlike performance of its contract with DOTD. Plaintiff was awarded $148,707.85 in attorney’s fees. The alleged consequential damages were found to be too speculative. Hartford was not cast for penalties and attorney’s fees since its actions were found to be reasonable although wrong.

We affirm.

Appellant first claims that the defense costs of plaintiff’s surety, St. Paul, are not covered under its insurance policy because it is not a named insured, but a “total stranger”; that the contractual liability section of the policy does not cover St. Paul’s defense costs because they originate from an indemnity agreement, and a bond, not a “road construction agreement” as covered under the policy; and that plaintiff had purchased specific contractual coverage and had failed to designate the indemnity agreement as a covered contract.

Plaintiff’s responses are as follows.

The trial court did not hold that Hartford owed St. Paul a defense; instead it held that the cost of St. Paul’s defense of DOTD’s third party demand was a liability of Merrick which was covered under Hartford’s policy. Therefore, St. Paul need not be a named insured for Merrick to claim the defense costs under the policy.

St. Paul’s defense costs are covered under the Hartford policy because the liability of Merrick to defend arises by operation of law out of the bond that St. Paul executed, warranting Merrick’s workmanlike performance of the road construction work.

The general liability section of the Hartford policy provides:

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
Coverage A — bodily injury
to which this insurance applies, caused by an occurrence and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if the allegations of the suit are groundless, false or fraudulent...”

This coverage is subject to the following exclusion:

“This insurance does not apply:
(a) to liability assumed by the insured under any contract or agreement except an incidental contract, but this exclusion does not apply to a warranty of fitness . or quality of the named insured’s products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner.”

Undoubtedly, Merrick warranted its work would be done in a workmanlike manner. Whatever liability DOTD would incur under the relationship with Merrick would arise from a breach of that warranty for which Merrick and St. Paul would be responsible. The liability of Merrick to St. Paul arises not just from the guaranty but from the legal provisions governing surety-ship, and the general purpose of liability insurance is to cover this type of legal liability. We find that Merrick was responsible and that the general liability provisions covered this type of risk. The fact that St. Paul is a stranger to the policy is irrelevant; it is the liability of Merrick that Hartford insured and was required to defend.

If the policy does not cover under the general liability coverage, however, it would be covered under the contractual liability section. The liability of Merrick has its origin in the road construction contract. The surety relationship between Merrick and St. Paul is incidental to and arises from the requirements of that contract. The responsibility of Merrick to St. Paul arises by operation of law in addition to the origin in the guaranty agreement. The liability was covered by the provision covering “contractual liability assumed by him under any written contract of the type designated in the schedule for this insurance.” Hartford’s contention that it does not cover St. Paul adopts too restricted a limitation because the liability it is insuring is that of Merrick which arises from the construction contract with DOTD. The fact that St. Paul is in the chain is immaterial.

Hartford’s contention that it provided only specific contract coverage and that the contract was not covered is without merit. To say the least, the use of a blanket coverage form when only specific coverage was intended creates an ambiguity that has to be construed against Hartford. Appellant has not shown sufficient ground to reform the contract. We find no error in the court’s failure to do so.

Appellant argues that the lower court erred in relying on Brummerloh v. Firemens Insurance Company of Newark, 377 So.2d 1301 (La.App. 3rd Cir.1980). Brummerloh also arose out of an allegation of a breach of a warranty of workmanlike performance, in which Hartford had refused to defend its named insured on a third party claim filed by the DOTD. The court awarded attorney’s fees in favor of the insured, who was found not liable on the merits. Appellant argues that the Brum-merloh holding should not be extended to cover the defense costs of St. Paul since St. Paul is not an insured under the policy. For reasons stated above, St. Paul’s defense costs are liabilities of plaintiff which are covered under the Hartford policy. Therefore, appellant is only being held responsible for liabilities of its insured.

The next issue raised by appellant is the trial court’s reliance on an indemnity agreement which was not introduced into evidence. Appellant argues that this agreement is a critical link in the plaintiff’s chain of evidence and that without it plaintiff’s case should fall, because there is no duty for Merrick to indemnify St. Paul. However, as stated above, there is a legal duty for Merrick to indemnify St. Paul arising by operation of the laws of surety-ship. Therefore, the fact that plaintiff failed to introduce the agreement is of no moment.

Appellant claims that the attorney’s fees awarded by the trial court are excessive in that these charges were for excess and repetitive matters. However, appellant failed to support these claims at the trial level. The trial judge found the fees to be reasonable due to the nature and length of the case. Since there is nothing in the record to support appellant’s argument, we cannot say that the trial court’s finding is manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

We find that plaintiff is entitled to interest on this claim from the date of judicial demand, because this suit is for recovery of attorney’s fees and costs incurred in another proceeding and the amount due was ascertainable as of the date of judicial demand. Reichert v. Continental Insurance Co., 290 So.2d 730 (La. App. 1st Cir.1974).

For the above reasons, the decision of the trial court is affirmed at appellant’s costs.

WATKINS, J., concurs in part and dissents in part.

WATKINS, Judge

(concurring in part and dissenting in part).

I agree with the majority that Hartford is obligated to pay attorney’s fees incurred by Merrick in defense of St. Paul’s third party demand, as Hartford had a duty to defend Merrick.

I do not agree, however, that Hartford is obligated to pay attorney’s fees incurred by St. Paul in defense of itself on the third party demand filed by DOTD or on the principal demand filed against it by plaintiff. The majority finds Hartford liable for St. Paul’s attorney’s fees under the general liability coverage of its policy, stating that:

“St. Paul’s defense costs are covered under the Hartford policy because the liability of Merrick to defend arises by operation of law out of the bond that St. Paul executed, warranting Merrick’s workmanlike performance of the road construction work.”
⅝ ⅜! ⅝ Sj! ⅜£ ⅞:
“The liability of Merrick to St. Paul arises not just from the guaranty but from the legal provisions governing sure-tyship, and the general purpose of liability insurance is to cover this type of legal liability.”

I am unable to find any authority for the proposition that the principal (Merrick) is bound by operation of law to defend or reimburse the surety (St. Paul) in the factual situation herein presented in the absence of an agreement specifically providing for reimbursement of attorney’s fees.

Although plaintiff in brief informs us that there was an indemnity agreement executed by the principal (Merrick) in favor of St. Paul, that agreement was not introduced into evidence and, hence, is not part of the record. In the absence of such an agreement there is no support for the finding of the majority that Merrick was legally bound to indemnify St. Paul for its attorney’s fees.

      . Plaintiffs also include Max M. Merrick Farms, Inc. and members of the Merrick family, individually, who were officers, directors and shareholders in Merrick Construction and Merrick Farms. These parties also executed indemnity agreements in favor of St. Paul who was Merrick Construction’s surety.

      . St. Paul Fire and Marine Insurance Co. was also named as a defendant by plaintiff’s petition.

      . Richards v. Farmers Export Company, 377 So.2d 859 (La.App. 4th Cir.1979).


author: COVINGTON, Judge.

text:
    Louise L. PRINCE v. BATON ROUGE GENERAL HOSPITAL, et al.
    No. 83 CA 0491.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Writ Denied June 1, 1984.
    Guy A. Módica, Sr., Baton Rouge, for plaintiff-appellant Louise L. Prince.
    Felix R. Weill, H. Evans Scobee, Baton Rouge, for defendant-appellees Baton Rouge General Hosp., The Guest House, Empire Fire and Marine Ins.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

This is an appeal from the trial court’s dismissal of the plaintiff’s action for benefits under the Workers’ Compensation Law. We affirm.

On April 5, 1979, Louise L. Prince was a “sitter” for Ruby Sharp, a patient at Baton Rouge General Hospital’s Guest House. While on the premises, Mrs. Prince was proceeding along a walkway and allegedly tripped on an object in her path, a coat hanger. It became entangled in her feet, causing her to fall. Mrs. Prince claims to have suffered severe injuries as a result of the fall. The injuries and resulting medical expenses gave rise to the present suit.

Mrs. Prince filed a petition seeking both workers’ compensation benefits and damages in tort for the injuries she allegedly received while on the premises of the Guest House. Prior to the trial, plaintiff settled her claim in tort against Baton Rouge General Hospital and its liability insurer. Trial was thereafter held on the workers’ compensation claim.

As the basis for her workers’ compensation claim, plaintiff maintained that she was employed by Baton Rouge General Hospital and/or the Guest House as a sitter for certain patients. Because she was injured while employed on the premises, Mrs. Prince contended that provisions of the Louisiana workers’ compensation statute should apply to her.

The trial court found that it was not established that an employer-employee relationship existed between Mrs. Prince and the Hospital or the Guest House, and dismissed plaintiff’s suit.

Appellant contends that the trial court erred in three respects. First, she disputes the finding that there was no employer-employee relationship between her and the Guest House. Second, she maintains that the court should have found her to be an independent contractor doing manual labor in the trade, business or occupation of the Guest House and, therefore, eligible for the benefits provided by the workers’ compensation law. Third, appellant contends that the court should have determined that she was totally and permanently disabled as a result of the injury she claimed to have sustained in the course and scope of her employment.

Appellee submits that the lower court’s judgment is correct. First, the court properly found that no employer-employee relationship existed between the appellant and the Guest House. Because such a relationship is a prerequisite to any recovery for workers’ compensation benefits, appellee asserts that none of the other errors specified by appellant are applicable. Second, even if the appellant was an independent contractor doing manual labor, such work was for the Sharp family, not for the Guest House. Finally, a determination that the appellant is totally and permanently disabled is not appropriate under the circumstances.

An employer-employee relationship must exist before the provisions of the workers’ compensation law apply. LSA-R.S. 23:1021 et seq.; Dupre v. Sterling Plate Glass & Paint Company, Inc., 344 So.2d 1060 (La.App. 1st Cir.1977).

As stated in Loomis v. Highland Hospital, Inc., 274 So.2d 200 (La.App. 2d Cir.1973):

It is deemed necessary at this point to note that the scope of the workmen’s compensation statute is limited to rights and duties that obtain between employers and employees. It follows that the existence of an employer-employee relationship or of a similar relationship between an employee and an independent contractor is an essential requisite to any action arising under the statute. Thus, it must be concluded that this relationship predicated upon a contract must be expressly stated or implied. The burden of proof is upon a claimant to establish this requisite by a reasonable preponderance of the evidence.

In Loomis, the plaintiff was injured while employed as a sitter for a hospital patient. Her duties as a sitter were generally described as minor, non-medical services such as keeping the bed in order, adjusting the patient’s position in the bed, and noting her pulse, temperature and blood pressure. The Court found that there was no employment relationship between the hospital and the sitter. The evidence indicated that the sitter had been employed and paid for her services by the patient for whom she worked. The hospital had the responsibility to ascertain that the sitter was qualified to perform the necessary services and that she did her duties according to hospital standards. The hospital’s only other connection with the sitter’s employment was the calling of the registry to obtain a sitter, as an accommodation for the patient.

This Court recently decided Vaughn v. Baton Rouge General Hospital, 421 So.2d 288 (La.App. 1st Cir.1982), which is similar to Loomis and the case at bar. In Vaughn we affirmed the trial court’s decision that the plaintiff, a sitter, was not employed by the Baton Rouge General Hospital Guest House. The plaintiff had been injured when she was helping a patient return to the room and the patient fell, causing her to fall with the patient. She sought workers’ compensation benefits on the basis that she was injured while employed by the hospital and/or its extension, the Guest House. She alternatively contended she was an implied, statutory or borrowed employee.

At the outset, this Court stated in Vaughn: “A prerequisite to any action arising under Workmen’s Compensation Law is the existence of an employer-employee relationship.” Four primary factors were stated as determinative of the “right to control,” which was described as the essence of the relationship:

1. Selection and engagement;
2. Payment or wages;
3. Power of dismissal; and
4. Power of control.

The Vaughn Court then proceeded to determine if an employment relationship existed. It found that she was not an actual or implied employee of the Hospital and that the allegation that plaintiff was a statutory or borrowed employee was not supported by the evidence. Mrs. Vaughn had listed herself with a private agency in seeking employment as a sitter. At the time she fell, the plaintiff was acting as a sitter for Mrs. Brown, a patient at the Guest House. The plaintiff was paid by the patient’s family. The Court concluded that Mrs. Brown and her family held the ultimate control over Mrs. Vaughn’s employment. Baton Rouge General Hospital would have had the power to exclude the plaintiff from working at the Guest House, but it did not have the power to terminate her employment with Mrs. Brown. Mrs. Vaughn could have continued to work for Mrs. Brown at any other location, even if the hospital did not want her working at the Guest House. The Court found: “The power of dismissal was not Baton Rouge General Hospital’s, but Mrs. Brown’s.”

By applying the Vaughn factors to the relationship between the Baton Rouge General Hospital Guest House and the appellant in the instant case, it can be readily seen that no employment relationship existed. The employer-employee relationship was between Mrs. Prince and Ruby Sharp, the patient for whom she was sitting.

(1) Selection and engagement

Mrs. Prince’s initial contact with the Guest House was through a sitter service. This service sent her to various places, such as hospitals or nursing homes. The testimony is conflicting as to how Mrs. Prince got her job sitting for Mrs. Sharp. The testimony of Mrs. Edna Harelson, the patient’s daughter, indicates that she hired Mrs. Prince. She stated that she had met Mrs. Prince in the nursing home and asked her to sit for Mrs. Sharp. She said that she felt sure she had discussed Mrs. Prince’s hours and rate of pay with her. Mrs. Harelson also testified that she had assigned duties to Mrs. Prince, such as keeping Mrs. Sharp clean and comfortable. The Sharp family paid the sitter directly. Mrs. Prince testified that she had been contacted by the Director of Nursing of the Hospital. Mrs. Betty Taylor, the Director of Nursing Services at the time, testified that the families hired the sitters, not the Guest House.

We find, as did the trial court, that the power of selection and engagement was with the Sharp family, not the Guest House. What contact the Guest House made with Mrs. Prince was as an accommodation to the Sharp family. The evidence supports the trial court’s finding that Mrs. Harelson was the one who sought the employment of Mrs. Prince as a sitter for Mrs. Sharp.

(2) Payment of wages

The Sharp family paid Mrs. Prince. Sign-in records or time-sheets were kept in Mrs. Sharp’s room for each sitter to indicate the hours and days she worked. From this information, the Sharp’s would determine the amount to pay.

Mrs. Prince testified that she received her wages from the Sharp family. She also stated that no social security or income tax was withheld from her paycheck because she was “self employed.” According to the testimony of J.M. Powell, Administrator of the Guest House, no employment records are kept on sitters. The Assistant Administrator, Mary M. Powell, confirmed that records are not kept on sitters, and that the Guest House did not pay Mrs. Prince. The Sharp family, not the Guest House, had the responsibility for paying Mrs. Prince. The Guest House did not make any salary payments to the sitter; the payments were made by members of the Sharp family.

(3) Power of dismissal

The testimony of Ruby Davis, Mrs. Sharp’s granddaughter, indicated that the power of dismissal was with the Sharp family. She testified that Mrs. Prince had been terminated at least once before by her uncle. This was confirmed by Mrs. Prince.

Mrs. Taylor testified that her primary responsibility as Director of Nursing Services was to see that the patients were receiving adequate care. In connection with this duty, she was responsible for the activities of nurses and aides who provided patient care. According to Mrs. Taylor, Mrs. Prince disrupted the daily activities of the staff by improperly summoning assistance on several occasions. For instance, she would press the emergency button for help in lifting Mrs. Sharp even though there was no emergency situation. After several such instances, Mrs. Taylor told Mrs. Prince that she would not be on the case at the Guest House any longer.

In Vaughn the Court stated that the power to exclude the sitter from working at the Guest House was not equivalent to the power of dismissal. The sitter was free to sit for the patient at any other facility or at her home without the approval of the Guest House. As in Vaughn, the Guest House only had the power to exclude the plaintiff from working there, not to terminate her employment with Ruby Sharp. Mrs. Taylor took the action of removing Mrs. Prince from the Guest House when she repeatedly interfered with the daily care which had to be provided to the other patients. The record supports the conclusion that the Sharp family, not the Guest House, held the power to dismiss Mrs. Prince from her job as sitter for Ruby Sharp.

(4) Power of control

The Sharp family held the power of control over Mrs. Prince’s position as a sitter for Ruby Sharp. Mrs. Harelson testified that she told Mrs. Prince what she wanted her to do for her mother. The hours and days worked were set by the family and Mrs. Prince, not the Guest House. Mrs. Prince was responsible for obtaining a replacement if she wanted a day off. Mrs. Prince considered herself self-employed for purposes of social security and income tax deductions. During the pertinent period, Mrs. Prince provided sitter services for Mrs. Ruby Sharp only, not for any other patients in the Guest House.

On this point, the trial judge commented, as follows:

“Insofar as power of control, I agree with the Court in the Vaughn case when it said that the hospital, the guest house, did exercise minimal control over some activities of the claimant, Mrs. Prince, and her patient. It said that such control was limited to insure that extablished medical practices were followed. I can readily see the necessity of a hospital or nursing home having certain requirements, certain control over sitters, to make sure that the health and welfare of those patients are not jeopardized because of the inability or whatever of a sitter. There has to be some uniformity. Just because a hospital requires this uniformity does not constitute, in my opinion, control sufficient to say that the guest house has the control, not the family.”

Mrs. Taylor testified that her direction and control over sitters was limited to insuring that they provided adequate care to their patients according to established medical practices. The sitters were expected to work under the direction of and in cooperation with the nursing staff to insure proper care was provided to the patients and to avoid needless interference with day-to-day functions of the Guest House. In addition, such cooperation was necessary to avoid conflicts in policy and violations of state or federal regulations regarding the facility.

In Vaughn the control of the Guest House was found to be limited to insuring that established medical practices were followed. This supervision was held to be insufficient to vest the power of control over the plaintiffs actions in the hospital. Like Vaughn, the instant case presents a situation in which the Guest House is entrusted with the care of over one hundred patients. A certain amount of control over the activities of the sitters is necessary to make sure that the health and welfare of the patients are not jeopardized because of a sitter’s activities. Such requirement of conformity to established medical practices does not constitute sufficient control so as to take this power from the hands of the Sharp family. We find that the Sharp family, not the Guest House, had the power of control and was in control of Mrs. Prince’s employment as a sitter for Mrs. Sharp.

On the question of “independent contractor,” LSA-R.S. 23:1021(5) provides:

“Independent contractor” means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter.

According to Lushute v. Diesi, 354 So.2d 179 (La.1977), if a substantial part of an independent contractor’s work time is spent in manual labor and the work performed by him is a part of the principal’s trade, business or occupation, then the independent contractor is covered under the workers’ compensation law.

As discussed above, the Sharp family, not the Guest House, was the employer of Mrs. Prince. She was under the control of the Sharps, not under the control of the Guest House. The work performed by Mrs. Prince was for Mrs. Sharp, not for the Guest House. The providing of sitters for patients is not a part of the Guest House’s business. Mrs. Prince was not an independent contractor who was performing manual labor in furtherance of the Guest House’s business. Lushute v. Diesi; Brown v. State Farm Fire & Casualty Company, 407 So.2d 1251 (La.App. 3d Cir. 1981). We hold that the provisions of LSA-R.S. 23:1021(5) do not operate to provide workers’ compensation benefits to Mrs. Prince.

A determination of total and permanent disability for purposes of workers’ compensation benefits is applicable only to situations in which there is an employer-employee relationship. No employer-employee relationship existed between the appellant and the appellee, so a determination of permanent and total disability is not required.

For the foregoing reasons, we affirm the judgment at appellant’s costs.

AFFIRMED.