author: DOMENGEAUX, Judge.

text:
    STATE of Louisiana, v. Ruby A. PALMER and Gordon L. Bradford, Defendants-Appellants.
    No. CR83-467.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      Robert Godwin, Bertrand DeBlanc, Sr., J.M. Wooderson, Lafayette, for defendant-appellant.
    J. Nathan Stansbury, Dist. Atty. and Carrol Spell, Jr., Asst. Dist. Atty., Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   DOMENGEAUX, Judge.

Co-defendants Gordon L. Bradford and Ruby Ann Palmer were charged by bill of information on February 10, 1982, with attempted first degree murder of Paul Moores, in violation of La.R.S. 14:27 and 30; and by amended bill of information on March 1, 1982, with attempted armed robbery of Paul Moores, in violation of La.R.S. 14:27 and 64.

Trial' was commenced before a twelve member jury on September 13, 1982. On September 17, 1982, the jury returned a guilty verdict of attempted armed robbery as to both defendants. Additionally, it returned a responsive verdict to the charge of attempted first degree murder and found Gordon L. Bradford guilty of attempted manslaughter. Further, it returned a verdict of not guilty to the charge of attempted first degree murder as to Ruby Palmer. Motions for a new trial were denied.

After delays for sentencing expired the trial judge sentenced defendant Palmer to six (6) years at hard labor with the Department of Corrections without benefit of parole, probation, or suspension of sentence, and sentenced defendant Bradford to ten and one-half (10½) years imprisonment at hard labor on the attempted manslaughter conviction to run concurrent with a sentence of forty-nine and one-half (4972) years at hard labor, without benefit of parole, probation, or suspension of sentence on the attempted armed robbery conviction. Both defendants appealed their convictions and sentences.

Defendant Bradford appeals his convictions and sentences alleging thirty-one (31) assignments of error, ten of which are briefed for the Court. Defendant Palmer appeals her conviction and sentence alleging three (3) assignments of error, all of which are briefed for the Court.

FACTS

During the early morning hours of February 5, 1982, Paul Moores left the Southern Spirits Lounge to go to his room at the Acadian Motel in Lafayette, Louisiana. Mr. Moores had been drinking at the lounge from about 9 P.M. to about Midnight and had bought several rounds of drinks for a girl named Janet and some people sitting with her at the bar. Mr. Moores had $760.00 on his person at that time, most of which he left with the bartender who put it in a safe.

The defendants Palmer and Bradford were also drinking at the Southern Spirits Lounge that night. They, along with other companions, observed the victim and the large amount of money he possessed.

Mr. Moores left the lounge at Midnight with a man known as “Tree” later identified as Gary Platt. Mr. Moores had offered to share his hotel room with “Tree”. Mr. Moores and Tree were accompanied by two women named Peggy Domingues and Francine Cole.

Shortly after the four arrived at Mr. Moores’ room, there was a knock at his door. Tree opened the door and the defendants Palmer and Bradford along with one other male entered the room. Defendant Bradford struck Mr. Moores across the mouth with a pool cue and demanded his money. Moores told him he had left the money with the owner of the lounge for safekeeping. Apparently the defendants and their cohorts did not believe the victim, because the victim was knocked down to the floor, and held there by Tree and someone called “Animal.” The defendants and the others then began beating and kicking the victim in an effort to force him to surrender his money to them. The victim was kicked repeatedly with steel toe boots, burned with a cigarette lighter and beaten with a cue stick as well as hit constantly with defendants’ fists. The victim specifically recalled defendant Bradford kicking him and defendant Palmer burning him with a “Bic” — type cigarette lighter.

As the defendants and the other assailants beat and tortured the victim, they repeatedly demanded his money. This went on for a period of about three hours (from 1:00 A.M. until approximately 4:30 A.M.). Moores was stripped naked and tied to the bed with his own clothes. During this three-hour period one of the two girls that had come to the room with Moores from the lounge removed her clothes. She then attempted to force the victim to perform an unnatural sexual act. Following this the victim was again beaten. The victim then had an uncontrollable bowel movement and was untied and allowed to clean himself somewhat. Seeing this as his chance to escape, the victim made a rush for the window but was stopped. The attackers again tied the victim and began to beat him once more.

At this point the assailants went outside to the balcony to discuss the victim’s fate. The victim overheard defendants Palmer and Bradford and the others say that after they got the money they would kill him because Moores could identify them; and further, that the patrons of the Southern Spirits Lounge knew who they were and saw the victim in their company.

When the defendants and the others came back into the room they decided to force the victim to phone the owner of the lounge; then they would take the victim to the lounge to get the money. Defendant Palmer told defendant Bradford that she would get a gun, which she then gave to Bradford. With the victim at gunpoint, Bradford went down to a laundromat and phoned the owner of the lounge. However, they were unable to reach this person because the lounge had already closed. The victim refused to go anywhere else. Bradford decided to abandon the plans to obtain the money; he and others left the victim at a convenience store.

Police officers Jackie Phelps and Mike Lavergne along with Sgt. Venable were dispatched to the 7-11 store where the victim had been left. Officer Ken Holle-man was called to investigate a possible beating and robbery at 701½ Cedar Crest Court. There he met two young women who said that they had witnessed a beating. After confirming that the man at the 7-11 might be the same one described by the two women, Officer Holleman proceeded to the 7-11 store to question the victim. Upon arrival Officer Holleman observed the victim covered with blood and seriously injured. The victim was unable at this point to give Officer Holleman a description of the suspects. However, the Officer was able to determine that the beating had taken place at Room 92 of the Acadian Motel.

When Officer Holleman went to Room 92 there was no one there but he observed that the room was very disarrayed and there was quite a bit of blood soaked into the carpet, on the chairs and the bed.

Subsequently, Officer Holleman went to the hospital to question the victim. The victim gave the officer a description of his assailants. Prior to going to the hospital the officer had obtained a description of the suspects from the two female witnesses. He found the suspects in a room at the Acadian Motel. There were six people in the room and two of them, Palmer and Bradford, matched the description given Officer Holleman.

The suspects were then taken to police headquarters for questioning. Officers observed what appeared to be blood stains on both suspects’ shoes and clothing. Bradford and Palmer were then placed under arrest.

Defendants were later tried, found guilty, and sentenced as hereinabove stated. Both defendants have appealed their sentences and convictions alleging the following assignments of error:

ASSIGNMENT OF ERROR NO. 1 (BRADFORD)

The defendant argues by this assignment that the trial court erred in permitting the State to obtain blood and hair samples from the defendant. Bradford asserts that this intrusion into his body was a direct violation of his rights as guaranteed by the Fourth and Fifth Amendments of the United States Constitution. He maintains that the State had not laid sufficient grounds to justify the compulsory taking of these samples.

The record indicates that the State did make an effort to justify the needs for these samples. Through the testimony of Detective Dale Broussard, the District Attorney made it clear that these samples were necessary for comparative purposes. The defendant’s boots, clothes, and the pool cue had hair and what appeared to be human blood stains on them. Since the victim sustained a brutal beating a proper foundation had been laid to require these samples for testing in order to discern the origin of the hair and blood. The record does not support defendant’s claim.

There exists a line of jurisprudence which contradicts defendant’s position. Both the United States and Louisiana State Supreme Courts have held that:

“The right against self-incrimination is not implicated in the gathering of such physical evidence as a blood sample to be subjected to the scientific test. State v. Graham, 278 So.2d 78 (La.1973); State v. Dugas [252 La. 345] 211 So.2d 285 (1968); Schmerber v. California, 384 U.S. 757 [86 S.Ct. 1826, 16 L.Ed.2d 908] (1966)” State v, Williams, 375 So.2d 931 (La.1979).

See also State v. Spence, 418 So.2d 583 (La.1982); State v. Hathaway, 411 So.2d 1074 (La.1982); State v. Carthan, 377 So.2d 308 (La.1979).

In State v. Carthan, the defendant was being held on charges of sexual assault. In that case the court held that the taking of blood and penile discharge samples from the defendant was not unreasonable and did not violate his Fourth Amendment rights.

“Defendant contends that the testing procedure violated his privilege against self-incrimination. This argument is without merit. The privilege protects an accused only from being compelled to testify against himself; as such it applies only to evidence of a testimonial or communicative nature. Schmerber v. State of California, [384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)]; State v. Smith, 359 So.2d 157 (La.1978); State v. Wilson, 329 So.2d 680 (La.1976). Testing of bodily evidence, i.e., blood, urine, breath, violates no privilege against self-incrimination.” Carthan, at 312.

For the reasons stated this assignment is without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 6 (BRADFORD)

Through these assignments defendant Bradford argues that the trial court erred in denying his motion to suppress evidence in that the defendant was unlawfully detained, interrogated and arrested without a warrant and without probable cause. Defendant claims that he was arrested in violation of his rights guaranteed by -the Fourth and Fourteenth Amendments to the United States Constitution.

The defendant asserts that the seizure of the evidence sought to be suppressed occurred when his person and clothing were taken from the hotel room to the police station without a warrant and without probable cause. The defendant asserts that this evidence was not taken after the arrest but that a “taking” was effected when the police escorted defendant to headquarters for questioning.

The warrantless arrest and subsequent seizure of evidence from Bradford was based on probable or reasonable cause. La.C.Cr.P. Art. 213 provides in part:

“A peace officer may, without a warrant, arrest a person when:
(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer.”

In State v. Arceneaux, 425 So.2d 740 (La.1983), the Court elaborated upon the meaning of this provision:

“Reasonable cause, which we have treated under this article as consonant with the probable cause concept, exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Drew, 360 So.2d 500 (La.1978). Probable cause may be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Drew, supra. Compliance with these standards is in the first instance a substantive determination to be made by the trial judge from the facts and circumstances of the case. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); State v. Drew, supra. State v. Arceneaux at 743.

See also State v. Latin, 412 So.2d 1357 (La.1982); State v. Drott, 412 So.2d 984 (La.1982); State v. Leatherwood, 411 So.2d 29 (La.1982).

The record reveals that the officers had reasonable cause to believe a crime had been committed. The officer had seen the victim. His physical condition alone was evidence that a crime had been committed against his person. Two eye witnesses, and later the victim, identified the suspect and told the officers about the beating. The police had viewed the blood-soaked room where the beating took place. They then found the identified suspects with what appeared to be human blood spattered on their clothing and shoes. The officers had “reasonably trustworthy information sufficient to justify a man of ordinary caution in believing that the person[s] to be arrested [had] committed a crime.” Arceneaux, at 743.

The defendant’s clothing was taken as evidence after he was placed under arrest. The record indicates that the arrest actually took place when the defendant was at the police-station although sufficient probable cause existed at the time of detention. The defendant argues that there were no exceptions to the warrant requirement which justifies this warrantless seizure. However, the record indicates that the seizure was necessary to prevent destruction of material evidence. The “search” and seizure was of evidence clearly within the defendant’s immediate control. Had the clothing been left with defendant for any period of time following arrest he could have easily destroyed such evidence. The seizure was made subsequent to a valid arrest and as a means to preserve evidence, therefore it was legal. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Drott, supra; State v. Bradford, 298 So.2d 781 (La.1974).

For the reasons stated these assignments are without merit.

ASSIGNMENT OF ERROR NO. 14 (BRADFORD)

Through this assignment defendant Bradford argues that the trial court erred in sustaining the State’s objection to certain testimony by the victim. The testimony at issue concerned the filing of a civil suit indirectly connected to this incident. The defendant argues that this testimony could have shown bias on the part of a witness, namely the victim.

The defendant argues that in order to protect his constitutional right to full confrontation of witnesses through complete cross examination, that defense should have been allowed to question the victim concerning his civil suit against the cab company whose cab refused to pick him up and transport him to a hospital when he was obviously injured. The defendant maintains that such evidence may have demonstrated the witness’ prejudice and bias in his testimony against the defendant.

If a witness has a special bias or prejudice personally against the defendant and an interest particular to the case, concerning such bias, the defendant must be allowed to cross-examine. State v. Perry, 420 So.2d 139 (La.1982); State v. Albert, 414 So.2d 680 (La.1982); and State v. Robinson, 337 So.2d 1168 (La.1976).

Defendant argues under La.R.S. 15:492 and the holding in State v. Kellogg, 350 So.2d 656 (La.1977), that his right to full cross examination allows him to question this witness regarding the aforementioned civil suit.

La.R.S. 15:492 states:

“When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption, and unless he distinctly admit such fact, any other witness may be examined to establish the same.”

In Kellogg, supra, the victim filed a civil suit against the defendant. Here, the victim has a civil suit pending against a cab company. The outcome of this criminal proceeding would not affect that suit; regardless of the results reached at trial of defendants, the issues of the civil case remain distinct and unrelated, without any bearing on defendants’ convictions. The issue in this case was whether the State could prove that the defendants were guilty as charged. The issue in the civil suit was whether the cab driver was liable for refusing to aid the victim in need of medical attention. Mr. Moores’ civil suit did not depend upon the conviction of defendant.

“With regard to this method of impeachment [La.R.S. 15:492] the decisions of Louisiana jurisprudence have generally permitted full scope of cross-examination in the interests of exposing, for jury evaluation, any bias or interest of the witness which might influence his perceptions or color his testimony.”
On the other hand, the bias permitted to be exposed must be personal against the defendant rather than general in nature, and the interest must be particular as to the case; therefore general prejudices or special biases or interests too irrelevant to or too remote to the issues of the case at trial have been considered improper as impeachment for this purpose.” State v. Robinson, 337 So.2d 1168 (La.1976).

There is little doubt that the victim had some bias or prejudice against the defendant. He had suffered a brutal beating from the defendant and the other assailants. But that bias was obvious to the jury and was general in nature. The jury believed the victim’s testimony in spite of this bias. There is no reason to speculate that the jury would have discounted his testimony because of a pending civil suit which was totally unconnected to the defendant, even though it arose out of this incident. The victim’s interest in his civil suit against the cab company was too remote and irrelevant to the issues of this case. Therefore, the testimony is considered improper as impeachment for this purpose.

For the reasons stated there is no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 20 (BRADFORD)

By this assignment defendant Bradford asserts that the trial court erred in refusing to grant his motion for a mistrial. The defendant argues that the Court made improper comments on the evidence which unduly prejudiced the jury. La.C.Cr.P. Art. 772 provides that:

“The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.”

The defendant argues that the comment by the court in an exchange between the State and defense counsel «constituted an improper comment by the trial judge in contravention of La.C.Cr.P. Art. 772. Defendant argues that the court made improper comments on the evidence when the trial judge admonished defense counsel for making inferential remarks.

The court’s comment was not improper; the comment was made in response to attempts by defense counsel to improperly influence the jury. There were implications that the State did not want this testimony heard because it would be damaging to its case. The court sustained the State’s objection to defense counsel’s question yet defense counsel persisted in commenting to the jury. The Judge merely informed defense counsel not to mislead the jury after the court had sustained an objection against the line of questioning. The only improper comment made was the one made by defense counsel. The judge did not comment upon the facts of the case but merely warned defense counsel to respect the court’s ruling.

For the reasons stated this assignment is without merit.

ASSIGNMENT OF ERROR NO. 22 (BRADFORD)

ASSIGNMENT OF ERROR NO. 2 (PALMER)

By these assignments both defendants argue that the trial court erred in not granting a mistrial due to improper comments by the district attorney. The defendants claim that the district attorney referred to other crimes committed by the defendant and stated his personal opinion during his closing argument that defendant Bradford was lying.

The defendants argue that the following comments by the District Attorney were beyond the scope of his closing argument and contravene the provisions of La.C.Cr.P. Art. 770 and Art. 774.

“So, I have no doubt that an attempted armed robbery took place. I think maybe even a completed armed robbery; however that was not the charge, and you can’t return that verdict. I wish you could, but in this case the State has charged an attempted and we’d be certainly satisfied with that.”

The prosecutor also remarked during his closing argument:

“Gordon will have you believe that this was so that he could hold off this fellow named Jim and these other people, and could do his good deed and protect the victim. I don’t believe that.
The defendant testified. If you believe what the defendant told you, I think that I would have to apologize to you for putting him on trial for these things. But I personally don’t believe it.”

From.the record, the District Attorney’s remarks were based on facts which the jury was aware of; the prosecutor recapitulated the evidence presented to the jury. The record indicates that the District Attorney summarized the evidence presented. Moreover he emphasized to the jury that the defendants were charged with attempt and the jury could only consider those charges, even if the State had put on enough evidence to prove a completed offense. The prosecutor did not mention “other crimes” but merely commented on the strength of the State’s evidence.

“It is generally erroneous for the prosecuting attorney to declare his individual opinion or belief that the accused is guilty when an accusation is made in such a manner that the jury may understand that the prosecutor’s belief is based on evidence dehors the record, but such opinion is permissible if the prosecutor refers to evidence of record or if it is apparent that his opinion is based on such evidence. State v. Procell, 365 So.2d 484 (La.1978), certiorari denied, 441 U.S. 944 [99 S.Ct. 2164, 60 L.Ed.2d 1046] (1979).”

As to the prosecutor’s remarks about defendant’s truthfulness, it is apparent that the closing argument, when viewed as a whole, is based upon the evidence produced. The District Attorney’s opinion about Bradford’s honesty was based expressly on the evidence. Such statements are permissible if the inference drawn is creditable.

“If the prosecutor’s argument is expressly or impliedly based upon the evidence, then no error is committed, and statements in closing arguments do not go outside of the evidence if the inference drawn from the evidence is not implausible.” State v. Prestridge, 399 So.2d 564, at 579 (La.1981).

For the reasons stated these assignments are without merit.

ASSIGNMENTS OF ERROR NOS. 24 AND 25 (BRADFORD)

Defendant Bradford argues through these assignments that the trial court erred in not permitting him to ■present evidence showing that the State’s effort to locate a material witness listed by the State was not performed with due diligence. Thus defendant claims that the trial court denied him the right to present a defense guaranteed under Article 1, Section 15 of the Louisiana State Constitution of 1974.

The defendant argues that the witness was under the custody and control of the State, i.e., at the time of the trial the witness was a convicted felon released on parole in Louisiana. The defendant argues that a presumption arises from this that the testimony would have been adverse to the State’s case. La.R.S. 15:432 provides that:

“A legal presumption relieves him in whose favor it exists from the necessity of any proof; but may none the less be destroyed by rebutting evidence; such is the presumption * * ⅜ that evidence under the control of a party and not produced by him was not produced because it would not have aided him .... ”

The District Attorney put on evidence showing that the State had diligently tried to produce this witness. Although the witness was a parolee, she had violated parole and left the State. Even the defendant admits knowledge of the fact that the witness had left the State of Louisiana. Because the police’s search for this witness proved unsuccessful and the witness left the State without authorization, she could no longer be considered under the State’s control or power to place on the stand.

Moreover, the defendant appears to have known the whereabouts of this witness, yet failed to subpoena her or request her as a witness on his behalf. The defense had a better advantage than the State to obtain this witness, yet refused to present her for testimony.

“The presumption of La.R.S. 15:432 does not arise if the witness is equally available to both the state and the defense, as in the instant case, for then the •evidence is not ‘under the control of’ either party. State v. Green, 244 La. 80, 150 So.2d 571 (1963), (overruled on other grounds); State v. Blackwell, 298 So.2d 798 (La.1973). See State v. Stickney, 167 La. 1050, 120 So. 853 (1929).”

State v. Simms, 381 So.2d 472, 476 (La.1980). (Footnote omitted.)

For the reasons stated these assignments are without merit.

ASSIGNMENT OF ERROR NO. 26 (BRADFORD)

By this assignment the defendant argues that the trial court erred in sentencing defendant to an excessive sentence.

In State v. Sepulvado, 367 So.2d 762 (La.1979), the Louisiana Supreme Court decided that the imposition of a sentence even though within the statutory limits may be unconstitutionally excessive in violation of Article 1, Section 20 of the Louisiana Constitution of 1974. A sentence has been determined to be excessive punishment when the penalty is so disproportionate to the crime as to shock the senses of justice or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Reed, 409 So.2d 266 (La.1982); State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983). However, due to the trial judge’s unique advantage of viewing subjective factors not available from the appeal record he is given a wide discretion in the imposition of sentences within statutory limits, and a sentence imposed by him should not be deemed as excessive in the absence of manifest abuse of that discretion. Sepulvado and Goodman, supra; State v. Howard, 414 So.2d 1210 (La.1982); State v. Bradley, 414 So.2d 724 (La.1982).

We are unable to find any manifest error in this case. Rather, the sentence is manifestly correct. The sentence was imposed following a jury determination of guilt of a particularly heinous and sadistic crime. There is no abuse of discretion here.

ASSIGNMENT OF ERROR NO. 29 (BRADFORD)

ASSIGNMENT OF ERROR NO. 3 (PALMER)

The defendants argue through these assignments that the trial court erred in sentencing them to a term of incarceration without benefit of probation, parole or suspension of sentence in violation of the provisions of La.R.S. 14:27.

Defendant Palmer was sentenced to serve a term of six (6) years of confinement at hard labor without benefit of parole, probation or suspension of sentence; defendant Bradford was sentenced to serve forty-nine and one-half (49¾⅛) years at hard labor, without benefit of probation, parole or suspension of sentence for the crime of attempted armed robbery.

La.R.S. 14:27 provides in pertinent part that:

“D. Whoever attempts to commit any crime shall be punished as follows:
(3) In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment for the offense so attempted, or both.” (Emphasis added).

The defendants allege that imprisonment without benefit of parole, probation or suspension of sentence is not applicable under La.R.S. 14:27. The defendant cites State v. Green, 391 So.2d 833 (La.1980), to support this contention. However, Green does not pertain to these circumstances. Green concerns the crime which falls under La.R.S. 14:27(D)(1), i.e., a crime punishable by death or life imprisonment. The Court held in Green that since La.R.S. 14:27(D)(1) made no provisions other than “at hard labor” the imposition of sentence without benefit of parole, probation or suspension of sentence was improper. Green, supra.

The present sentence falls under the guidelines of La.R.S. 14:27(D)(3) which provides for sentencing in the “same manner as for the offense attempted.” The offense attempted here was armed robbery, a violation of La.R.S. 14:64. La.R.S. 14:64(B) provides that:

it * * *
B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.” (Emphasis added).

By sentencing defendants “in the same manner as for the offense attempted” the Court correctly imposed the same conditions on the defendants’ sentences for the attempted conviction as would be imposed for the completed offense. This condition in the statute comprises part of the sentence mandated for the offense of armed robbery. Nevertheless, it has been necessary for the Louisiana State Supreme Court to repeatedly address this question. In its most recent decision on this subject the High Court held:

“[the] question is whether the language of the third penalty clause, section D(3), providing for punishment ‘in the same manner as for the offense attempted’ means that a person who attempts armed robbery shall be sentenced without benefit of parole, probation, or suspension of sentence.”
This court decided the question in State v. Patterson, 259 La. 508, 250 So.2d 721 (1971), holding that the phrase ‘in the same manner’ means ‘at hard labor’ and ‘without benefit of parole, probation or suspension of sentence’ as provided for armed robbery. The defendant in the present case argues, as did Patterson, that, because criminal statutes should be strictly construed, imprisonment ‘in the same manner’ must be interpreted to refer only to hard labor and not to loss of eligibility for parole, probation or suspension of sentence. After reconsidering the question, we conclude that this court adopted the correct statutory construction in Patterson....” State of Louisiana ex rel Sullivan v. Maggio, 432 So.2d 854 (La.1983).

For the reasons stated above these assignments are without merit.

ASSIGNMENT OF ERROR NO. 1 (PALMER)

Defendant Palmer alleges by this assignment that the trial court erred in denying defendant’s motion for a new trial: (a) as the State failed to present any evidence of specific intent to commit armed robbery and; (b) the State failed to prove an essential element of the offense, i.e., the use of a dangerous weapon.

The defendant argues that the State failed to prove that a dangerous weapon was used because the defendant Palmer put forth testimony that the gun was unloaded and that she and Bradford knew it was unloaded. However, even if defendant knew the gun was not loaded, the victim knew no such fact. Palmer admits she retrieved the gun for Bradford. Bradford held the victim at gunpoint when he escorted him from the hotel room to a phone to call the owner of the lounge. The victim had no idea whether or not the gun was loaded. There is no question that Palmer supplied the gun, and empty or not, the gun was a “dangerous weapon.” State v. Leggett, 363 So.2d 434 (La.1978). The record supports the jury’s conclusion that the defendants were armed with a dangerous weapon. Furthermore, it is necessary to consider the other instrumentalities used by defendants to coerce the victim to give them his money as dangerous weapons which satisfy an essential element of the offense.

The victim testified that Palmer burned him with a cigarette lighter. His body bore the scars of such torture. It was for the jury as factfinder to decide whether the defendants were armed with a dangerous weapon. The record supports its conclusion that the defendants were so armed.

The State bears the burden of proving every element 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. Graham, 422 So.2d 123 (La.1982). The defendant correctly argues that specific intent is an element of the crime of armed robbery. La.R.S. 14:64. However, the record does not support the defendant Palmer’s contention that the State failed to prove specific intent to commit an armed robbery. The record further contains ample testimony from which the jury could have concluded that defendant Palmer, along with the others involved, knew that Mr. Moores had about $700.00 in his possession. Testimony indicated that Palmer was in the room when the beating took place, that she actively assisted in torturing the victim to force him to relinquish his money by burning him with a cigarette lighter, and that she procured a gun to further intimidate the victim. Specific intent is an ultimate legal conclusion to be resolved by the factfinder. Graham, supra. The jury heard testimony and viewed evidence sufficient to infer from what was presented that defendant Palmer acted with the specific intent to forcibly take the victim’s money from him.

“Although intent is a question of fact, it need not be proven as a fact; instead, it may be inferred from circumstances of transactions and actions of the accused.” State v. Fuller, 414 So.2d 306 (La.1982).

See also State v. McDermitt, 406 So.2d 195 (La.1981); In Interest of Franklin, 399 So.2d 671 (La.App. 1st Cir.1981).

For the reasons stated this assignment is without merit.

DECREE

For the above and foregoing reasons, the defendants’ convictions and sentences are affirmed.

AFFIRMED.

      . Assignments of error neither briefed nor argued are considered abandoned. State v. Perry, 420 So.2d 139 (La.1982).

      . The dialogue at issue was conducted as follows:
      “Q. [Gianfala, defense counsel] Moores didn't tell Ken about two women at that time.
      MR. SPELL: Objection, Your Honor, he is— unless he can establish this witness witnessed the conversation, I don’t think it — he’s laid a foundation that he can testify to that.
      THE COURT: Let me understand you right. You’re asking him what did Holleman — information did Holleman get, Mr. Gianfala?
      MR. GIANFALA: The question, Your Honor, I’ll repeat it, was: Did — I said: Did Mr. Moores tell Ken Holleman about the two (2) women? That was the question, and I think that's what he’s objecting to.

        Your Honor, if the State doesn’t want to bring in the evidence — if they don’t want to bring it in, fine. We'll, you know, if they object to the question, let it go.
      MR. SPELL: Your Honor, I’d ask that those comments by the defense counsel be stricken from the record,—
      THE COURT: Mr. Gianfala,—
      MR. SPELL: —and the jury instructed not to—
      THE COURT: —you understand that when an objection is made and the Court rules, that—
      MR. GIANFALA: Yes, Your Honor.
      THE COURT: —YOU CANNOT MAKE AN INFERENCE AS TO WHAT SIDE — [Emphasis added].”

      . La.C.Cr.P. Art. 770 provides:
      "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.”

      . La.C.Cr.P. Art. 774 provides:
      “The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.”

      . The author of this opinion is compelled to state his position as to appellate review of sentences for excessiveness. Our state constitution does not provide for nor does it mandate judicial review of sentences which fall within the limits set by the respective criminal statutes. See State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983), concurring opinion at 533; State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir.1983), concurring opinion at 1339, writ denied, 433 So.2d 729 (La.1983). See also State v. Shelby, 438 So.2d 1166 (La.App. 3rd Cir.1983), concurring opinion at 1169.

      . Although reviewing courts are obligated to follow the Jackson standard as mandated by the Louisiana Supreme Court, the author of this opinion has expressed opposition to this standard because it relegates the reviewing power of the appellate courts to nothing more than "second guessing” the triers of fact. See State v. Anderson, 440 So.2d 205 (La.App. 3rd Cir.1983), concurring opinion at 223, and cases cited therein.


source: Caselaw Access Project

author: STOKER, Judge.

license: Public Domain

text:
    Gloria P. DOESCHER, Plaintiff-Appellee, v. William A. POWERS, Defendant-Appellant.
    No. 83-498.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      Newman, Thibodeaux & Marshall, H. Gayle Marshall, Lake Charles, for defendant-appellant.
    Hunt, Godwin, Painter & Roddy, James A. Watson, Lake Charles, for plaintiff-ap-pellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   STOKER, Judge.

Defendant, William Powers, appeals from a judgment of the trial court ordering a partition in kind of property owned in indivisión by himself and his sister, Gloria Doescher. Mr. Powers argues on appeal that the trial court erred in finding the property susceptible of division in kind and in forming the lots to be drawn by the co-owners. We agree and reverse the judgment of the trial court.

Mrs. Doescher and Mr. Powers each own an undivided one-half interest in the property subject to the partition which consists of approximately 44.22 acres. Mrs. Doescher originally sought a partition by licitation, but later amended her petition seeking a partition in kind. At the trial on the matter, Mrs. Doescher introduced the testimony of William Coleman, a real estate broker and appraiser, who drew up a plat dividing the property into two shares. Mr. Coleman was the sole expert to testify, and the defendant Powers was the only person to testify in opposition to a partition in kind. The trial judge referred the parties to a notary public who was directed to effect the partition in accordance with the plan set out by Mr. Coleman, except that the parties were to draw lots for each one’s share.

There are no improvements on the property to be partitioned. Portions of the property are timberland and portions are pasture. As can be seen on the plan for partition prepared by Mr. Coleman and attached to this opinion as Exhibit One, there are several drains throughout the property. There was testimony that there are portions of low land subject to flooding and some high land. Also depicted in the exhibit is the uneven boundary around the property, particularly on the south side which fronts on Luke Powers Road. Various lots have been carved out of that frontage including one separately owned by Mr. Powers.

In making his division of the property, Mr. Coleman stated that he did not consider the actual cash value of the property, only the value of the shares relative to each other. He also did not consider the amount of timber on each share or any other similar feature. Apparently, Mr. Coleman’s division was influenced by the frontage property to be allotted to each share. Mr. Coleman testified that he was asked by Mrs. Doescher to divide the property so that Mr. Powers’ share would be contiguous to the lot he presently owns. In order to divide the property into two portions of equal value, Mr. Coleman first considered that portion which fronts on Luke Powers Road. The only portion of the east end of the property which is still adjacent to the road is mostly marsh and thus not very valuable as frontage property. In order to compensate for the difference in frontage, Mr. Coleman carved out a portion of the frontage immediately west of the lot marked as belonging to Howard Manuel. This portion marked “B” was intended to go with the larger portion marked “B” which covers most of the east end of the property. The two “B” portions are not contiguous.

Mr. Coleman also allotted to the larger of the two “B” portions a right-of-way across the northeast corner of the “A” portion, noting that the only other access to the larger part of the “B” portion consists of that small frontage property which is not included in the marsh. Mr. Coleman stated that without the right-of-way the “A” and “B” portions would not be equal in value; yet, the trial judge ordered that the partition be made without reference to the right-of-way. We note that in drawing up the plat Mr. Coleman contemplated that Mr. Powers would receive the “A” portion which would contain 21.78 acres and Mrs. Doescher would receive the “B” portion which would be 22.44 acres.

The trial judge properly refused to designate which portions would go to each party. The allocation of the portions must be by the drawing of lots. Murdock v. Cordova, 180 So.2d 550 (La.App. 3rd Cir.1965). However, in view of the evidence presented at trial, the trial judge was clearly wrong in ordering that the partition in kind be made in accordance with the portions designated by Mr. Coleman. We decide only that the partition as made was improper; we do not reach the question of whether a trial court may itself make the partition leaving it to a court-appointed notary to supervise the drawing of lots. As previously stated, Mr. Coleman testified that the designated portions would not be equal in value without the right-of-way being granted to the owner of portion “B”. Thus, such a division is clearly not in compliance with LSA-C.C. art. 1340 which states:

“It is said that a thing can not be conveniently divided, when a diminution of its value, or loss or inconvenience of one of the owners, would be the consequence of dividing it.”

Under Mr. Coleman’s division, without the right-of-way, the co-owner drawing portion “B” would suffer a clear loss by receiving less than one-half the value of the property. In any event, we are not convinced that the property can be divided with one co-owner having a portion which is subject to a right-of-way in favor of the other co-owner. This would appear to us to be an inconvenience to both of the owners which would prevent a partition in kind. See Hughes v. Heirs of Cain, 268 So.2d 149 (La.App. 1st Cir.1972), writ refused, 271 So.2d 259 (La.1973).

Having determined that the property was improperly partitioned, we now turn to the question of whether the property is susceptible of partition in kind.

As previously described, the parcel to be partitioned contains several different types of property. Most of the frontage lies at the west end of the property which would leave the east end virtually inaccessible if the division were made on a north-south line. A division made on an east-west line would leave the north portion of the property with no frontage. The varying types of property on the land, along with the uneven boundaries, convince us that the property is not susceptible of division in kind. Where the record clearly shows that the property cannot be divided in kind, there is no need to require additional testimony. McElwee v. McElwee, 255 So.2d 883 (La.App.2d Cir.1971), writs denied, 260 La. 861, 257 So.2d 434 (1972).

For the reasons given above, the judgment of the trial court is reversed, and it is hereby ordered that the property in question be partitioned by licitation. The matter is remanded for further proceedings in accordance with the views expressed herein. Costs of this appeal are assessed to plaintiff-appellee, Gloria P. Doescher.

REVERSED AND REMANDED.


text:
    Don K. BROWN and F.M. Brown, Plaintiff-Appellant, v. Billy Ray BEDSOLE, et al., Defendant-Appellant.
    No. 83-527.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Rehearing Denied April 3, 1984.
    Writ Denied May 11, 1984.

      J. Jay Caraway, Shreveport, for defendant-appellant.
    Don M. Burkett, Many, for plaintiff-appellant.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   STOKER, Judge.

This is a trespass action based on alleged wrongful cutting of timber in violation of LSA-R.S. 56:1478.1.

The plaintiffs are Don K. Brown and F.M. Brown (the Browns). The Browns sued defendants, Billy Ray Bedsole, his insurer, Georgia Casualty and Surety Company, and Jerry M. Smith. Plaintiffs alleged that Billy Ray Bedsole for and on behalf of Jerry M. Smith trespassed on their property in Sabine Parish and cut timber valued at $1700. The Browns alleged the trespass was in bad faith since their property line was clearly marked; therefore, they sought triple damages as provided in R.S. 56:1478.1 plus general damages and attorney’s fees.

Defendants, Billy Ray Bedsole (Bedsole) and his insurer denied any wrongdoing on Bedsole’s part. They admitted that Bed-sole cut the timber but alleged that Jerry M. Smith designated the timber to be cut as being on Smith’s property and that Bedsole paid Smith for the timber, the value of which was appraised at $1,153.58. Bedsole and his insurer also filed a third party demand against Smith seeking recovery of the price they paid to Smith for the timber and, in the alternative, seeking complete indemnification from Smith should they be held liable for damages for trespass or otherwise.

Defendant, Jerry M. Smith (Smith), whose property adjoined the Browns’ property, first answered the Browns’ petition with a general denial. He subsequently supplemented his original answer affirmatively alleging that he was in legal possession of the property in dispute from which the timber was cut. Smith later filed a reconventional demand asserting a posses-sory action; he alleged that for many years prior to and up until the time of plaintiffs’ suit he and his ancestors in title had maintained possession of the “Disputed Property” by the cutting of timber and other corporeal acts of possession within visible bounds. He based his right to bring a possessory action on both a disturbance in law and a disturbance in fact. Smith prayed that he be recognized as the possessor of the disputed property and to be restored to its possession. He also prayed that the Browns be ordered to assert their adverse claim of ownership in a petitory action pursuant to LSA-C.C.P. art. 3662.

In this case Smith did not assert ownership of the area in dispute, not even by reason of acquisitive prescription.

The trial judge found that the Browns were the record title owners of the disputed property, that Bedsole and his insurer were not liable for trespass because Bed-sole acted on Smith’s instructions in cutting the timber, that Smith was liable for trespass but did not trespass in bad faith and that Smith was not in possession of the disputed property. The trial court gave judgment in favor of the Browns and against Smith for the value of the timber cut in the amount of $1,414.83, but rejected the Browns’ demands against Bedsole and his insurer. The trial court rejected Smith’s reconventional demand in the pos-sessory action against the Browns.

Smith appeals arguing that the trial court erred in not finding him to be in possession of the disputed property. The Browns appeal arguing that the trial court erred in failing to award them triple damages under LSA-R.S. 56:1478.1 on the ground that the timber was cut and removed “across ownership lines and/or marked boundary lines.” The Browns do not complain or assign as error the rejection of their demands against Bedsole and his insurer. Hence, they are not involved in this appeal. We affirm the judgment against Smith in favor of the Browns.

FACTS

Based on the property descriptions contained in the instruments of record on which they base their titles, the Brown and Smith properties abut one another along a segment of the east-west boundary line between the parishes of Sabine and DeSo-to. The Browns’ property consists of approximately 317 acres of land situated in Section 22, Township 10 North, Range 13 West (Sec. 22, T10N, R13W) located in Sabine Parish. Smith’s property consists of approximately 57 acres of land in Section 15, Township 10 North, Range 13 West (Sec. 15, T10N, R13W) located in DeSoto Parish. The trial court found the north line of Section 22, Township 10 North, Range 13 West to be the dividing line between Sabine Parish and Desoto Parish. Immediately to the north of and adjoining Section 22 is Section 15, Township 10 North, Range 13 West. The northern boundary of the Browns’ property adjoins the southern boundary of Smith’s property at the dividing line between Sabine Parish and DeSoto Parish.

The disputed area from which the timber was cut is rectangular in shape and consists of approximately ten acres. It is located in Section 22, Township 10 North, Range 13 West with its northern edge running along the north border of this same section. Its eastern edge runs approximately 430 feet along the west side of U.S. Highway 171. Its southern edge extends west from that point for some 900 or so feet to Bear Creek which forms the western edge of the disputed tract. Under the circumstances the area in question is south of the parish boundary line within the area described in the Browns’ title.

At the southeast corner of the disputed tract, on the west side of U.S. Highway 171, there is a highway sign stating “Enter Sabine Parish.” The sign is inaccurately located with reference to what is shown to be the true boundary between the two parishes and is located south of the true line. Remnants of an old fence can be found running into the woods in a westerly direction from the vicinity of the highway sign.

The Browns purchased their 317-acre tract in March, 1973. The tract consists of timber land. In 1975 they entered into a timber management contract with Boise Southern. On March Í4, 1981, Fred Dah-lem, a timber manager for Boise Southern, marked the north boundary of the Browns’ property with blue flags. The flag line ran from east to west along the north line of Section 22, Township 10 North, Range 13 West. The north boundary of the Browns’ property was previously unmarked although there is some evidence of an old fence along this line.

Smith purchased his tract in February, 1978. The Smith tract also consists of timber land. In 1981, Smith agreed to sell timber to Bedsole. Bedsole began to cut the timber in the late summer of 1981. Just before the cutting began, Smith took Bedsole’s foreman down to the highway sign (which stated “Enter Sabine Parish”) and told him to start cutting at that point, to go west from that point to Bear Creek, and cut everything to the north.

In September 1981, Fred Dahlem returned to the area where he had previously flagged the north boundary of the Browns’ property. He noticed that timber had been cut across the blue flag line. The timber had been cut by Bedsole pursuant to his agreement with Smith. As a result of this incident the Browns filed the instant suit seeking damages for wrongful cutting of timber. As noted above Smith defended on the basis of possession and also filed the reconventional demand in which he asserted a possessory action.

NATURE OF THE ACTIONS

In approaching a resolution of this case it is first necessary to give consideration to the nature of the actions. Smith defends the Browns' trespass action through asserting that he had legal possession of the property but does not assert ownership. Likewise, this reconventional demand is merely a possessory action. The prayer of the reconventional demand is couched in traditional possessory action terms in which Smith prays that his possession be recognized and restored to him. Secondly, Smith prays that defendants in reconvention (the Browns) be ordered to assert their adverse claim of ownership of the property in dispute within a delay to be fixed by the trial court not to exceed sixty days or be precluded thereafter from asserting ownership of the property in dispute.

On appeal before this Court of Appeal the defendant and reconvener, Smith, urges that, despite the procedural posture of the case, the matter is esentially a boundary dispute. Factually, Smith pitches his case on the alleged possession for many years by himself and his ancestors in title of some ten acres admittedly outside of the property described in his title and located within the property described in the Browns’ title. For reasons we will show, any alleged possession by Smith and his ancestors in title has no relevance in this case in the procedural posture presented. We have been unable to find any case in the jurisprudence presenting the precise facts of this case, and the codes and statutes do not, so far as we can determine, address the question directly.

It is our conclusion that in a controversy of the nature before us, if the Browns establish their title to the property in dispute, any alleged possession by Smith is without bearing and cannot be asserted to oppose the Browns’ trespass action or to establish any rights on Smith’s behalf for protection of his possession under the guise of enforcing his rights under the possesso-ry action as one of the real actions established by our law. The Browns did establish title in themselves to the property in dispute. Therefore, the trial court was correct in finding for the Browns and we affirm that holding.

We now develop the general conclusions which we have stated above.

The action for damages for trespass brought by the Browns is not one of the real actions provided for in the Code of Civil Procedure. Ample citation for this proposition is cited in Harvey v. Havard, 287 So.2d 780 (La.1973). See also Garrett v. Martin Timber Company, Inc., 391 So.2d 928 (La.App. 2d Cir.1981), writ denied, 397 So.2d 804 (La.1981). The cutting of trees on land of another is denounced in our statutory law in LSA-R.S. 56:1478.1 where the cutting is done “without the consent of the owner or legal possessor.” The Browns alleged themselves to be the owners of the property in dispute and they seek relief in the form of a money judgment. This is clearly an action in tort although it is backed up by the cited statute. In the introduction to the Code of Civil Procedure articles on real actions, Book VII, Title II, Real Actions, several types of actions which are not real actions, including the action of trespass, are referred to as fringe actions bearing some resemblance to real actions.

Regardless of its nature or classification, in an action of trespass such as we have here, title to the land is a pivotal issue simply because it is the foundation for the action and the plaintiff in such an action bears the burden of proving his ownership. Harvey v. Havard, supra.

In the Harvey case we find the following statement:

“In cases where the plaintiff brings a trespass action as owner for damages to his land and proves his title, it is no defense for the trespasser to show he has possessed for a year without authority from the owner.”

This statement was made in the context of distinguishing a case brought by a plaintiff on the basis of possession of the land rather than on the basis of ownership. In the Harvey case the Supreme Court resolved the case in favor of the plaintiffs. The court remarked that the defendants (Dan DeLee and his contractee) had failed to prove DeLee’s ownership either by title or by acquisitive prescription. The court held that the issue was title and plaintiffs made out their record title. Under the circumstances it was immaterial that De-Lee had possessed for a year.

It is clear from the discussion in Harvey v. Havard, supra, that the title issue was a foundation matter, a burden of proof element, and was not considered in the context of the real actions. The court clearly stated that the action of trespass involved was not one of the real actions provided for by the Code of Civil Procedure. It said: “It is neither a petitory, nor a possessory, nor a boundary action.”

Turning to Smith’s defense in this case and his reconventional demand, as we have noted, Smith did not assert ownership in his pleadings — he only asserted possession. In his pleadings Smith alleges corporeal acts of possession in himself or his ancestors in title within visible boundaries for many years. The allegations fall short of alleging record title, and it is clear that Smith’s record title does not include the property in dispute. It is clear that Smith does not allege ownership by reason of acquisitive prescription. He alleges that he had legal possession and his possession had been disturbed by the Browns through the bringing of the principal lawsuit and the granting of a mineral lease. In the recon-ventional demand the prayer is for typical relief sought through the possessory action.

Contrary to Smith’s pleadings, his counsel argue on his behalf in this appeal that the legal controversy is essentially a boundary dispute. In that regard Smith presented evidence to establish possession in himself and his ancestors in title for an area beyond and outside of his record title extending to the south to an old fence line referred to as the Mahoney Fence. Counsel for Smith present as a legal issue in the case the right of Smith to tack on to his own the possession of his ancestors in title of the land in dispute.

Regardless of what the proof may show, Smith has never articulated his defense or his reconventional demand as a boundary action. He has never claimed the ownership by acquisitive prescription. We are aware of the power of courts to regard the pleadings for what they are rather than what they are denominated by the pleader. However, here we are not presented with one of those situations. In such situations, the courts look to the 'substance of the pleadings; and here the substance of Smith’s pleadings spell out a possessory action rather than a boundary action. Therefore, Smith does not rely on title or bring into the controversy any title by acquisitive prescription or recognized boundary which he may have.

In summary, we have noted that the action for trespass for wrongful cutting of timber involves title as an issue as a matter of burden of proof. We know of no other requirements other than to show record title so long as the defendant shows no title at all. In the possessory action (a real action) the sole object is the protection of possession (LSA-C.C.P. art. 3655) and title is not an issue (LSA-C.C.P. art. 3661). In connection with these observations we should note than an action for trespass may, in fact, be founded on mere possession. See Loeblich v. Garnier, 113 So.2d 95 (La.App. 1st Cir.1959) distinguished in Harvey v. Havard, supra; and Garrett v. Martin Timber Co., Inc., supra. Moreover, LSA-R.S. 56:1478.1 provides that the action for wrongful cutting of timber maybe brought by either the “owner or legal possessor.” In a suit based on possession, title would not be involved unless the defendant made it one, and the inquiry would be confined to who had legal possession. Garrett v. Martin Timber Co., Inc., supra.

RESOLUTION OF THE PRINCIPAL ISSUE

The trial court found that plaintiffs established that they were the record title owners of the land consisting of approximately ten acres from which the timber in question was cut. We find no manifest error in this finding. Inasmuch as Smith does not claim the ownership, we conclude that the trial court was correct in granting judgment to the plaintiffs in their trespass action. If this was as far as the case went, then we think that Harvey v. Havard, supra, should be our sole guide and authority. However, Smith has brought his possesso-ry action as a separate action, albeit through reconventional demand, as well as asserting possession as a defense. Can the possessory action brought by reconvention stand alone and subsist alongside of plaintiffs trespass action? Can the Browns be allowed to recover damages in their trespass action with the possibility that Smith, if he establishes legal possession, can be given the relief of being settled in his possession and the Browns be ordered to assert their adverse ownership within a limited time on penality of losing any claim to ownership?

Plaintiffs initiated the controversy before us by filing their suit for trespass. We conclude that by filing the reconven-tional demand Smith was in reality doing nothing more than bolstering his defense asserted in his answer to the principal suit to the effect that he held legal possession. We have stated that under Harvey v. Havard, supra, such a defense is not good. It would be contrary to this position if we were to allow Smith to maintain a possesso-ry action by way of reconventional demand in the same proceeding as the tort suit for trespass. It seems to us that Smith might have met the title issue (as a foundation or burden of proof matter) by asserting that he was owner in reliance on the same, or similar, evidence as he presented at trial. Such would have put Smith in position to contest the Browns’ ownership of the land and the Browns’ record title would not by itself have sufficed as a foundation for their tort suit for trespass. However, except as a general denial Smith did not contest the Browns’ title and only asserted possession in himself and not title. Under the peculiar circumstances of this case and its procedural posture, we are of the opinion that Smith should not prevail in his possessory action. Consequently, we hold that the trial court correctly rejected the demand of Smith in his possessory action.

In again adverting to the question of title we hasten to add, as we have previously intimated, that the matter of title considered by us goes only to the foundation for the trespass action. As a part of plaintiffs’ burden of proof in a trespass action grounded on ownership we are concerned only with the prima facie showing made by the Browns in establishing that they are record title holders to which Smith has offered no opposition proof. Such proof as Smith made in trial was solely in support of his pleadings to the effect that he was the legal possessor of the land in question. We disagree with Smith’s contention on appeal that this case is a boundary dispute. In that regard we express no opinion on the ultimate question of ownership as it might be determined in a boundary action or a suit to settle the title question as such based on acquisitive prescription. Likewise, we express no opinion as to the effect of our holdings in this case on any litigation which may hereafter be brought. All we hold here is that, for the purpose of the present litigation, we affirm the trial court’s finding that the Browns were the record title holders.

In view of our dispositions in this case we find no need to address various other arguments made on behalf of both the Browns and Smith.

THE PLAINTIFFS’ APPEAL FOR TRIPLE DAMAGES

The trial court awarded plaintiffs damages in the amount of $1,414.83. Plaintiffs appeal alleging they are entitled to triple damages under R.S. 56:1478.1(0) which provides:

“C. Whoever violates the provisions of Subsection A in good faith shall be liable to the owner or legal possessor of the trees for three times the fair market value of the trees cut, felled, destroyed or removed, except however, that the provisions of this section shall apply only to trees cut or removed across ownership lines, marked boundary lines, or outside of designated cutting area lines, and that no provision herein shall apply to cutting operations within an area covered by a contract or agreement with the owner.”

The plaintiffs urge that we give a literal interpretation to the words of the statute referring to removal of trees across ownership lines and marked boundary lines.

The Browns urge that the timber was cut and removed across “ownership lines and/or marked boundary lines.” They do not concede the defendants’ “good faith” but contend triple damages are nevertheless due even if Smith was in “good faith.”

We find that the courts of this State have not given a literal or restrictive interpretation to this statutory language. Smith v. Myrick, 412 So.2d 677 (La.App. 2d Cir.1982); Garrett v. Martin Timber Co., Inc., supra, and Shaffett v. Vicks, 385 So.2d 419 (La.App. 1st Cir.1980). These cases stand for the proposition that, where there is no wilful and intentional cutting and removal of trees from the plaintiff’s property and the two properties are not divided by any visibly designated demarcation lines, defendants are not liable for triple damages as provided by the statute. In such cases the measure of damages is the fair market value of the timber cut. A case in factual contrast is Gewin v. Willamette Industries, Inc., 406 So.2d 730 (La.App. 3rd Cir.1981) in which this Court of Appeal approved an award of triple damages by the same district judge who ruled in the present case. In the Gewin case, which distinguished the Shaffett case, the trial court found there was a marked line dividing the properties consisting of tree blazes and differences in timber height on the two sides of the line.

In the case before us the facts relevant to the triple damages issue are as follows. Fred Dahlem, a timber manager working under contract for the Browns, testified that he marked the north boundary of the Browns’ property with a line of blue flags on March 14, 1981. He said no north boundary existed prior to this flagging although he did notice some remnants of an old fence along where he flagged. Robert Haggert, Bedsole’s foreman who actually cut the timber beginning in the summer of 1981, admitted seeing some flags but did not think the flags marked a boundary. He thought the flags were merely seismic flags and attached no significance to them. There was testimony indicating that finding seismic flags in the area was not unusual, since testing for minerals was common. Haggart testified he did not see any remnants of an old fence line.

We find the timber was not cut and removed across ownership lines or marked boundary lines as those terms have been judicially construed. The evidence concerning the existence of remnants of an old fence is inconclusive. Due to seismic flagging in the area, the flag line put in by Dahlem did not provide sufficient notice of a marked boundary. In addition, there was no evidence to indicate that any visible ownership lines designating a boundary existed in this area. We conclude the Browns were entitled to recover only $1,414.83, the fair market value of the trees cut and removed.

CONCLUSION

For the reasons given above we affirm the judgment of the trial court. Inasmuch as this affirmance includes a rejection of the appeal of the principal plaintiffs, the Browns, for triple damages we will assess them with a portion of the costs of this appeal. The costs of this appeal are assessed in the proportions of three-fourths to Jerry M. Smith and one-fourth to Don K. Brown and F.M. Brown.

AFFIRMED.


author: DOUCET, Judge.

text:
    Danny BREWINGTON, Plaintiff-Appellant, v. LOUISIANA DEPARTMENT OF CORRECTIONS, Defendant-Appellee.
    No. 83-632.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Writ Denied April 23, 1984.

      Baggett, Me Call & Ranier, Drew Ranier, Cameron, for plaintiff-appellant.
    Houston T. Penn, Asst. Atty. Gen., Dept, of Justice, Baton Rouge, for defendant-ap-pellee.
    Before FORET, DOUCET and YELVER-TON, JJ.
   DOUCET, Judge.

Plaintiff, Danny Brewington, an inmate at the Louisiana Correctional and Industrial School located at DeQuincy, La., brought the present damage suit for injuries he received when scalded by hot water in the course of repairing a washing machine. The trial court found he assumed the risk of injury and dismissed his demands against the Louisiana Department of Corrections, defendant-appellee. Plaintiff appeals.

Plaintiff relies on two general legal principles. First, the Department of Corrections can be held liable to an inmate who is negligently injured by another inmate. Turner v. State, 333 So.2d 310 (La.App. 1st Cir.1976); Darville v. Associated Indemnity Cory., 323 So.2d 441 (La.1975). Secondly, the Department of Corrections is under a duty to provide inmates with a reasonably safe place to work and with equipment that is reasonably safe for performing required tasks. Reed v. Department of Corrections, 351 So.2d 788 (La.App. 1st Cir. 1977).

In his appeal the plaintiff specifies the following assignments of error: (1) The trial court erred in holding the plaintiff contributorily negligent insofar as it relied on Bridgewater v. State, 422 So.2d 1214 (La.App. 1st Cir.1982), which was reversed by the Louisiana Supreme Court, 434 So.2d 383 (La.1983); (2) The trial court erred in not finding the Department of Corrections liable for the negligence of the inmate who discharged the hot water which resulted in plaintiffs injuries; (3) The trial court erred in failing to find the defendant liable for failure to supervise; and (4) The trial court erred in finding the plaintiff assumed the risk and therefore was contributorily negligent.

The summation of facts and legal conclusions of the trial judge are as follows:

“Plaintiff Danny Brewington sues for damages for personal injuries sustained by him in an accident that occurred on May 5, 1978, while he was an inmate at Louisiana Correctional and Industrial School near De-Quincy, which is operated by defendant Louisiana Department of Corrections. At the time of the accident Brewington was assisting another inmate with repairs to a washing machine located in the laundry room at LCIS. He crawled into a drainage trough under the washing machine and was burned by hot water released into the trough by another nearby washing machine.

Plaintiff contends that the defendant was negligent in failing to provide him with a safe place to work and in failing to provide proper supervision of his work. Defendant denies any negligence on its part and contends that the accident was caused solely by the negligence of Brewington in voluntarily placing himself in the drainage trough when he had not been directed to do so and when it was not necessary for him to get into the trough. Alternatively, defendant contends that plaintiff is barred from recovery by contributory negligence and/or assumption of risk.

The washing machine that Brewington was working on at the time of the accident had been leaking steam and needed repair. To make the repairs it was necessary to remove from the underside of the machine a metal plate which served as a junction for a steam pipe which heated the water in the machine. The head of the laundry department, a Mr. Lucius, requested that the machine be repaired and that job was assigned to William Wardlow, who was an inmate plumber in the plumbing shop at LCIS. Later Brewington, who worked in general maintenance under the maintenance superintendent, Mr. Rainwater, was assigned to assist Wardlow.

Plaintiff was thirty-two years of age at the time of the accident and he had been an inmate at LCIS since 1971. He is serving a life sentence and he was still incarcerated at the time of the trial. Between 1971 and the date of the accident Brewington had worked at various jobs at LCIS, including plumbing and maintenance work. He was in the plumbing shop for approximately three years under the supervision of Mr. Rainwater, who was then the plumbing supervisor and who at the time of the accident was the overall maintenance superintendent. When the accident occurred on May 5, 1978, Brewington was assigned to the general maintenance department under the direct supervision of Mr. Rainwater. Brewington and Mr. Rainwater had a good relationship and seemingly had a high regard for each other. Mr. Rainwater said Brewington was a good man who could be depended upon. He said, and Brewington confirmed, that plaintiff could and would approach him with a problem.

Brewington had done some plumbing and general maintenance work in the laundry room and he knew about the trough under the washing machine and he knew that the trough was there to receive and drain off the hot water released from the machines.

Between 8:00 and 9:00 o’clock A.M. on the day of the accident, and after being told by Mr. Rainwater to assist Wardlow, Brewington went to the laundry room and found Wardlow on the floor at the back of the washer attempting to remove the metal plate. At that time the laundry was in full operation and the plate was taken off without either Wardlow or Brewington getting into the trough under the machine. While the plate was being removed by Brewing-ton and Wardlow a nearby washing machine was in use and hot water had been released into the trough without causing any problems for the two men. This was verified by Mr. Lucius, the head of the laundry department, who said he had seen Wardlow and Brewington working with the plate on the washing machine at times when hot water was dumped from the other machine. Mr. Lucius said he saw both Wardlow and Brewington on the floor reaching under the machine, but he never saw either of them in the trough.

After the plate was removed it was taken to Mr. Rainwater at the shop and he did some welding work on it. In the early afternoon of that day Wardlow returned to the laundry with the plate to attach it to the washing machine. In attempting to replace the plate Wardlow got on the floor and reached under the machine from the front and also from the rear.

Mr. Rainwater learned that Wardlow needed some assistance in attaching the plate to the machine and he again sent Brewington to help. Brewington went to the laundry and found Wardlow on the floor at the rear of the machine trying without success to attach the plate. After a while Wardlow got off the floor and Brewington got on his back on the floor at the rear of the machine. While in that position he held the plate against the machine while Wardlow, who had gone to the front of the washer, was trying to put the bolts through the plate. They had difficulty getting the bolts through the holes in the plate. Brewington told Wardlow the only way the plate could be attached was for him (Brewington) to get into the trough and hold the plate in position. Brewington said he planned to contact Mr. Rainwater about the problem if they could not get the plate on the machine after he got into the trough.

After deciding to get into the trough, Brewington went around to the front of the machine, slid himself under it and down into the trough with his feet in the direction of the other nearby washing machine. The bottom of the machine was 15 to 18 inches above the surface of tbe concrete floor and the trough at that point was between 17 and 18 inches wide and at least 9½ inches deep. When Brewington got under the machine in the trough Wardlow went to the rear of the machine. After Brewington had been in the trough for at least five minutes (by his estimation) and perhaps as much as twenty minutes (according to Wardlow) hot water was released from the nearby washing machine into the trough and it ran down the sloping trough and scalded Brewington’s legs before he could remove himself.

There are photographs in evidence that show where and how the two washing machines were situated in the laundry room and the location of the drainage trough under the old American Cascade machine that was being repaired. The newer machine was situated only three to four feet to the right of the old machine and the control switches for that machine were on a door opposite the right end of the old unit.

According to the evidence, it takes three to four minutes for the new machine to fill up with water and then it takes approximately twelve minutes to go through the hot water washing cycle. When that cycle is completed the next step is to release the hot water from the machine into the drainage trough. During the time the machine is filling up with hot water and going through the washing cycle, all of which requires approximately fifteen or sixteen minutes, there is noise being made that indicates the machine is in operation.

Brewington testified that when he went to the laundry to help Wardlow put the plate on the American Cascade machine he believed the laundry was shut down because Mr. Rainwater had told him that and he saw nothing going on in the laundry and no one there except Wardlow. He said he never saw or heard anything to indicate to him that the new machine was being used to wash clothes while the old machine was being repaired. Wardlow said that when he went into the laundry to put the plate on the machine there were inmates working there, pressing clothes and doing other things, but he was not aware that anyone was washing clothes in the new machine.

Mr. Rainwater denied he told Brewington the laundry was shut down that day. Further, Mr. Lucius, the laundry supervisor, said the laundry was in full operation that day except for the machine that was being repaired. The Court accepts the testimony of Mr. Rainwater and Mr. Lucius and finds that the laundry was in operation and work was going on there on the day of and at the time of the accident.

Mr. Parker was the plumbing supervisor at LCIS in May 1978. However, he was ill on the day of the accident and was not at work. He testified he was very familiar with the washing machine that was being repaired and he knew the metal plate could be put on and taken off from the back of the machine without getting in the drainage trough. Mr. Parker said taking the plate off and putting it on was a fairly simple job for two men.

Mr. Rainwater, the maintenance superintendent, who was over the plumbing, electrical, paint, carpenter and mechanics shops, said the policy at LCIS did not require a supervisor to be present 'when a simple job was being performed by inmate workers. Rainwater, Parker and Lucius all agreed it was not necessary to shut down all the equipment in the laundry and stop all work in order to remove and replace the plate on the old washing machine.

The Department of Corrections is under a duty to provide inmates with a reasonably safe place to work and with equipment that is reasonably safe for performing required tasks. See Bridgewater v. State, 422 So.2d 1214 (La.App. 1st Cir.1982) and Reed v. State, Department of Corrections, 351 So.2d 788 (La.App. 1st Cir.1977). However, the Department is not the insurer of the safety of inmates in prisons. It cannot supervise each inmate in the performance of each task assigned to him. Its duty is to exercise reasonable care to protect an inmate against unreasonable risk of foreseeable harm. It is not required to anticipate and warn against every possible danger to which an inmate may be exposed. See Lanieux v. State, 328 So.2d 765 (La.App. 1st Cir.1976)...”

The trial judge concluded that the plaintiff failed to establish that he was injured because of the defendant’s failure to provide him with a safe place or adequately supervise his work. Furthermore, the trial court held the defendant was not liable under the doctrine of respondeat superior for the action of inmate Sam Jones, who was operating the new washing machine which discharged the hot water, in failing to warn plaintiff of the danger, finding plaintiff failed to prove Jones knew or should have known he was in the trough repairing the adjacent machine. It should be noted that the testimony of Jones was not available inasmuch as he had been released prior to trial and efforts to locate him proved unsuccessful. Lastly, the trial judge opined that even if defendant had breached a legal duty owed to plaintiff, Brewington could not recover because he left a position of safety and placed himself in a position of known danger thereby assuming the risk of injury. In reaching this result the trial judge noted that plaintiff “volunteered” to get into the trough and he should have known the adjacent machine was in operation.

Subsequent to the trial judge’s ruling, a unanimous Louisiana Supreme Court issued the following pronouncements in Bridgewater v. State, 434 So.2d 383 (La. June 27, 1983), wherein it stated: “It is well established that an employer has an obligation to provide his employees with a working place and conditions which are reasonably safe considering the nature of the work. La.R.S. 23:13, Lytell v. Hushfield, 408 So.2d 1344 (La.1982); Chaney v. Brupbacher, 242 So.2d 627 (La.App. 4th Cir.1970); Walker v. Graham, 343 So.2d 1171 (La.App. 3rd Cir.1977), writ refused 346 So.2d 213-14 (La.1977). The Department of Corrections owes prison inmates the duty of providing equipment and machinery which is safe for the tasks the inmates are required to perform. Reed v. State Through the Department of Corrections, 351 So.2d 788 (La.App. 1st Cir.1977).”

In Bridgewater, the safety device on a shearer had been removed and had never been replaced. Also plaintiff’s operation of the dangerous machine was not under the supervision of a prison official. If the guard had not been removed or had it been replaced, the accidental injury could not have occurred. The accident was reasonably foreseeable since inmates were using the machine, unusually dangerous because of the absence of the safety device. The risk involved was held to be within the scope of the duty owed by the defendant to the inmates. There existed an ease of association between the risk presented by defendant’s actions under the overall circumstances and plaintiff’s resulting injuries.

The court therein disagreed with the court of appeal finding that plaintiff was eontributorily negligent and that such contributory negligence was a proximate cause of his injuries stating: “Contributory negligence is defined as plaintiff’s conduct which falls below the standard of care to which he should perform for his own protection. The standard is determined by reasonableness of behavior under the circumstances. The party relying upon the contributory negligence defense has the burden of proving it. Smolinski v. Taulli, 276 So.2d 286 (La.1973). See also: Hall v. Hartford Accident and Indemnity Company, 278 So.2d 795 (La.App. 4th Cir.1973), writ refused 281 So.2d 753 (La.1973). Contributory negligence is a matter of fact to be determined in light of the circumstances of each case. Soileau v. South Central Bell Telephone Company, 406 So.2d 182 (La.1981). Contributory negligence is never presumed; such negligence on the part of the plaintiff must be proved as any other fact by a preponderance of the evidence. Tirante v. Gulf States Utilities Company, 412 So.2d 128 (La.App. 1st Cir.1982), writ denied 414 So.2d 389 (La.1982). See also: McInnis v. Fireman's Fund Insurance Company, 322 So.2d 155 (La.1975). In the case of an inmate plaintiff, the State has the burden of proving that the prisoner had failed to exercise care commensurate with the hazard he faced. Lee v. State Through the Department of Institutions, 294 So.2d 553 (La.App. 1st Cir.1974). We find that the State did not carry its burden in this case.”

“Louisiana courts have acknowledged that an employee is not entirely free to avoid known risks; he cannot simply decide not to do the work without perhaps subjecting himself to loss of his job. Chaney, supra. The standard for contributory negligence on the part of an employee was enunciated in Miller v. Employers Liability Insurance Company of Wisconsin, 349 So.2d 1353, 1362 (La.App. 2nd Cir.1977), writ denied 352 So.2d 235 (La.1977):

Emerging as criteria for determining an employee’s contributory negligence are: (1) relative knowledge of the danger by the supervising employee and the injured employee; (2) relative control over the employee’s situation; (3) the degree to which the employee’s conduct is voluntary on his part; (4) alternatives available to the employee; (5) obviousness of the danger; and (6) relative ability to eliminate the danger.

“(T)he standard of care imposed on the workman is less stringent than in ordinary cases where contributory negligence is at issue because the employee at times must involve himself in known hazardous endeavors in order to retain his employment.” Martinez v. U.S. Fidelity and Guaranty, 412 So.2d 109, 112 (La.App. 4th Cir.1982), amended and affirmed 423 So.2d 1088 (La.1982)...”

“... An inmate, in particular, is not in a position to refuse to perform a job known to be dangerous. See Stilley v. State, 376 So.2d 1007 (La.App. 1st Cir.1979), writ refused 378 So.2d 1389 (La.1980). An inmate has far less freedom of choice; he is subject to disciplinary measures if he refuses to do what he is told...”

Although the trial judge carefully considered all the evidence, as reflected in his thorough written reasons for judgment, it appears that he fell into error in his application of the law to the facts in view of the Supreme Court’s pronouncements in Bridgewater, supra. Where factual determinations by a trier of fact are based upon incorrect application of the law, the manifest error rule does not apply. Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707 (La.1980); Burns v. Lamar-Lane Chevrolet, Inc., 354 So.2d 620 (La.App. 1st Cir.1977); Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975).

Whether an inmate voluntarily assumes any risk relative to an assigned duty is highly questionable in view of his incarceration. Thus it has been stated that a prison inmate assumes no risk of his employment. 60 Am.Jur.2d 837. Such a worker is not free to quit or determine his training, education, hours, and duties as an ordinary worker in a free society. Consequently, in the case of an inmate plaintiff, the state has the burden of proving that the prisoner had failed to exercise care commensurate with the hazard he faced to establish contributory negligence. Bridge-water v. State, supra. Another consequence of one’s incarceration is that their damages will likely be limited to pain and suffering at least where, as here, the plaintiff is serving a life sentence and, accordingly, all needs are provided at no expense to him.

The Department of Corrections uses the trough in which plaintiff was scalded to make it easier to clean the drainage system, rather than provide enclosed sewer pipes or troughs with covers which are harder to clean. Therefore, it appears the Department creates the risk because it considers it to be outweighed by the utility of the open drain. The foreseeable risk of injury to an inmate assigned to repair the machine created a corresponding duty to warn or otherwise take precautions to protect the worker. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972).

LSA R.S. 15:832 provides:

“Section 832. Work by inmates; allowances: A. The department shall provide employment opportunities and vocational training for all inmates. Insofar as is possible, the equipment used in such programs, the conditions of employment, the management practices and the general operating procedures thereof, shall proximate those of private industry...”

George Liebkemann, who was accepted by the Court as an expert witness in mechanical engineering, testified as follows:

“A: First of all, its accepted in industry and has been accepted as long as I have been dealing professionally with machinery and equipment some twenty odd years that when its necessary for a maintenance man to place himself in, under or extremely close to potentially hazardous equipment in order to do maintenance, and that could include placing himself where hot or toxic substances could, without warning be dumped on him, removing a guard to reach into a machinery housing or something like that, that all the equipment in that area capable of suddenly starting up or cycling and resulting in bodily injury and harm to the maintenance man, should be completely deactivated and locked out, not just turned off, but rendered incapable of a situation where a guy that doesn’t know what’s going on comes up and innocently tries to start something, not realizing that a man is in the machine or under the machine.”

Mr. Liebkemann further stated:

“A. I found provision at the institute for that. There’s an electric circuit breaker box on the wall. The box comes from the Square D Manufacturing Company with provision on the box to padlock the electric handle in the off position, that being a safety feature. So, this is a case where the Pellegrin Millder machine with the hot water could have been empty, the main switch to it turned off, and then either the fuses removed so somebody couldn’t turn it on, or the handle padlocked in the off position.”

As to the problems created by Brewing-ton’s arriving late on the job after the operation had been in progress for some time, expert testimony was as follows:

“Q: And it is also your opinion based on your experience that when a person joins a job after it has been begun, that the responsibility for insuring that there’s been a lock-out is much, much less than it would be if he were the first worker on the scene?”
“A: Yes. When somebody joins a job, if the procedure is going right and it is already locked out when he joins. There are a lot of jobs where people come and go and all that, and the custom is to lock it out so anybody that does anything, render it safe, and then proceed with the work and from time to time, the work may take one man and then three men, and then five men, depending on what’s going on, but the first thing that’s done is to render it — render the equipment harmless to the workers.”
“A: There’s an unusual circumstance here, where Mr. Brewington was not present or anywhere around here when the work started on this job. Mr. Ward-low started the job. He had trouble, and as a result, Mr. Brewington arrived while the job was in progress. So, he wasn’t really there at the time that you would normally shut off the other equipment."

There was also testimony that because of the machine being placed directly over the trough, any work under the machine must necessarily place the maintenance man in proximity of danger of scalding. There is also the discussion regarding the necessity of being under the machine to replace the plate. The difficulty of the task is lining up all ten bolts which hang loosely from the drum with ten holes in the plate. Therefore, it was necessary for someone to be in close proximity or in the trough in order to get the plate back on, and a dangerous situation had been created if the washing machine were not drained and locked out.

Mr. Lucius, the laundry supervisor, who asked that the work was done, knew that it was being done, and knew that the men were working under the machine and he had the authority to shut off the adjacent machine. Mr. Lucius also knew that if any part of anyone got in the trough, for whatever reason, the worker would be scalded by water from the adjacent machine, nevertheless he failed to take easily available precautions.

Under the above facts we find that the Department breached its duty to provide a safe work place or otherwise take supervisory or precautionary measures to protect against the risk posed. Bridgewa-ter v. State, supra. Accordingly, we proceed to determine whether plaintiff’s conduct bars his recovery.

Brewington knew that it would be dangerous if hot water were discharged in the trough while a person was working in it. Because of that knowledge, he would not have worked in it had he thought the other machine was operating. The question then is, was it reasonable for him to think that it was not operating? The following factors suggest that it was: The laundry was deserted; it had been cleaned for the day by the time Brewington got there; and the laundry supervisor was absent. Also, plumbing and maintenance supervisors were absent. The job had begun and was in progress when Brewington arrived and no warnings or instructions were issued by fellow inmates or supervisors regarding its operation.

The only eye witness, Mr. William Ward-low, the inmate who was assigned plumbing duties and to whom the plaintiff had been sent to assist in replacing the plate on the washing machine, testified as follows:

“Q: You indicated at one point that you volunteered to get into the trough?
A: Yes, sir.
Q: Was it your understanding that the laundry was shut down, that all the washing machines were shut down?
A: That was to my understanding, ’cause I would have never volunteered to get into the trough myself.
Q: At any time that you had been working in the laundry, either before or after Danny Brewington had arrived, did you see anybody operate either of the two machines?
A: No, sir.” '

Mr. Wardlow also testified as to how the accident occurred:

“A: ... so he climbs up in there and he’s trying to look up under to get the holes and the screws, you know, where they drop in — kind of checking things out, you know, and he was off in the trough and I still remember the guy’s face that pulled the plug on him, you know, and the water came down him and he started screaming. So I just froze for a minute, you know, and then I run around and tried to pull him out. I pulled him out and he was hollering ‘Get my pants off of me.’ -So I pulled his pants off of him and the meat was just rolling down his legs, you know.”

In Coco v. Winston Industries, 330 So.2d 649 (La.App. 3rd Cir.1976) reversed on other grounds 341 So.2d 332 (La.1977), we held that an injured worker, doing a job he was assigned to do, and attempting to do it in the best manner he knew how, should not be held contributorily negligent, noting that “The presumption is that one does not intentionally expose himself to a known danger.” i.d.

In Stilley v. State, supra, the plaintiff prisoner was injured while repairing a heavy truck tire when the tire exploded. The court held that the plaintiff was entitled to recover damages “primarily because the plaintiff, as an inmate, was not in a position to refuse to perform a job known to be dangerous.” 376 So.2d 1008. This is legal recognition of the reality of prison life, namely, the prisoner’s restriction of freedom and subjection to close supervision and discipline require obedience to, rather than questioning of, orders and assignments, and a commensurate high degree of care from those giving the orders, assignments and instructions.

Our review of the record convinces us that plaintiff was doing his work in the best manner he knew how and said action was reasonable under all the circumstances. We find that the defendant did not carry its burden of proving the inmate failed to exercise care commensurate with the hazard he faced.

Plaintiff was 32 years old at the time of the accident. He sustained at least second degree burns, and according to the hospital records, some third degree burns, to 95% and 55%, respectively, of his lower extremities below the knees. The hospital records reflect numerous surgical and non-surgieal debridement procedures, a necessary but extremely painful part of treatment of burn patients. We find that an award of $25,000.00 for past, present and future pain, disfigurement and suffering would be just to the litigants.

For the reasons assigned hereinabove, the judgment appealed is reversed. It is now ORDERED, ADJUDGED AND DECREED that there be a judgment in favor of plaintiff in the sum of Twenty-Five Thousand and no/100 ($25,000.00) Dollars. All costs of this appeal are assessed against the defendant.

REVERSED AND RENDERED.

      . Note: Louisiana Workmen’s Compensation Act is not applicable. Jones v. Houston Fire and Casualty Co., 134 So.2d 377 (La.App. 3rd Cir.1961).

      . Appellee attempts to raise two assignments of error, to wit: (1) The trial court erred in ruling that the affidavit of Sam Jones, an inmate witness released prior to trial, was inadmissible where it was the best evidence available in view of the inability to locate Jones; and (2) The trial court erred in its assessment of appellee's expert witness fees insofar as it was based on plaintiffs ability to pay rather than reasonableness of the fee. However, an appellee who believes himself aggrieved by a judgment in his favor, in order to place himself in a position to ask for amendment thereof, must expressly answer the appeal in written motion, and to ask for such relief in brief is unavailing. La.C.Civ.Pro. Art. 2133; Moore v. Natchitoches Coca Cola Bottling Co., 32 So.2d 347 (La.App. 2nd Cir.1947); Juan v. Harris, 263 So.2d 370 (La.App. 4th Cir.1972).