author:
MARCUS, Justice.
      LEMMON, Justice, DIXON, Chief Justice

text:
    STATE of Louisiana v. Michael OWEN and Gregory Cormier.
    No. 83-KK-2375.
    Supreme Court of Louisiana.
    June 25, 1984.

      Jim Orteog, Lloyd Keith Milam, Lake Charles, for relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard Knapp, Jr., Dist. Atty., Robert R. Bryant, Eugene Bouquet, Asst. Dist. Attys., for respondent.
   MARCUS, Justice.

Michael J. Owen and Gregory Cormier were charged by the grand jury in the same indictment in separate counts with attempted second degree murder in violation of La.R.S. 14:27 and La.R.S. 14:30.1, aggravated crime against nature in violation of La.R.S. 14:89.1(2) and armed robbery in violation of La.R.S. 14:64. Prior to trial, defendants filed motions to suppress physical evidence. After a hearing, the trial judge denied the motions. The court of appeal denied writs. We granted defendants’ application and remanded the case to the court of appeal for briefing and argument. On remand, the court of appeal, finding that the trial judge correctly denied the motions to suppress, again denied writs. Upon defendants’ application, we granted certiorari to review the correctness of that ruling.

Defendants contend the trial judge erred in denying their motions to suppress physical evidence seized pursuant to a warrant-less search of a residence owned by a third person. They argue that they have standing to contest the legality of the search and that, on the merits, there was no valid consent to the warrantless search.

FACTS

Evidence adduced at the suppression hearing reveals that Lt. Pat McCann of the Sulpher Police Department received a call at about 1:30 a.m. on October 14, 1982 reporting a crime earlier that evening. When Lt. McCann arrived at the crime scene, he noticed that the front door of the house had been broken into and that there was blood all over the front room. It appeared to him that there had been a struggle and that someone had gone through the drawers and cabinets. According to the victim’s son, who relayed information from the victim in her hospital room to Lt. McCann at the scene of the crime, the victim had been beaten, stabbed, sexually assaulted and robbed by two men. Money and coins, including old silver coins, were taken. The victim identified one of the perpetrators as Michael Owen and stated that he “was, at one time, staying with Carl Evans on North Crocker Street in Sulpher.”

Lt. McCann dispatched Officer Keith Johnson to Evans’ residence on North Crocker Street to attempt to discover information about Owen from Evans. Officer Johnson arrived at Evans’ residence, a trailer located about five blocks from the scene of the crime, at about 2:35 a.m. He saw someone looking out of the window of the trailer as he pulled up. Soon after he arrived, the lights in the trailer went off. He knocked on the front door. Although he heard movement inside, no one answered his knock. Officer Johnson radioed this information to Lt. Ronnie Lee Carroll, who was then instructed by Lt. McCann to assist Officer Johnson at Evans’ trailer. When Lt. Carroll arrived, he also knocked on the door, identified himself as a police officer and asked to speak to Carl Evans. There was no response. Lt. Carroll consulted with Lt. McCann at the crime scene about how to proceed and was told to return to the trailer, try again to rouse Evans, and, if unsuccessful, step inside. Upon returning to the trailer, Lt. Carroll knocked once more and then opened the unlocked front door. Following Lt. Carroll into the trailer were Officer Johnson, Auxiliary Officer Keith Berry and an unidentified deputy sheriff. This entry was made at about 3:00 a.m.

There are conflicting accounts about what occurred inside the trailer. Lt. Carroll and Officer Johnson testified that they walked about five or six steps into the trailer and observed two persons sleeping in the front room, later identified as Owen and Cormier. They recognized Owen because they were familiar with him from previous encounters. A third person, Grant Miller, was walking down the hallway toward them. Lt. Carroll told Miller to get Evans, the owner of the trailer. When Evans arrived, Lt. Carroll told him that they were investigating an armed robbery and stabbing and that Owen was one of the suspects. Lt. Carroll asked Evans if he would consent to a search of his trailer. Evans agreed and signed a consent to search form. Although the consent form has the time 3:45 a.m. written on it, Lts. Carroll and McCann testified that it was signed before Lt. McCann’s 3:44 a.m. arrival at the trailer. After the consent form was signed, the five occupants of the trailer and the four police officers waited in the front room for Lt. McCann to arrive. There was very little conversation. According to Lt. Carroll, the officers were questioned about why they were there and replied that they were investigating an armed robbery and stabbing. No one was handcuffed; no search was made; and, no one was placed under arrest. When Lt. McCann arrived, he went over the signed consent form with Evans, told him what they were investigating and that he did not have to sign. He also asked Evans if the signature on the form was his, to which Evans replied that it was and that he still agreed to the search. A thorough search of the trailer was conducted. Numerous coins, including old silver coins, and prescription bottles with the victim’s name on them were recovered. Defendants were arrested after the discovery of this evidence.

Two occupants of the trailer, Grant Miller and John Church, testified for defendants. Miller stated the police officers told them to stand up against the wall and empty their pockets. The coins were seized and everyone was questioned about his whereabouts that night. Initially, Miller stated that everyone in the trailer was arrested after McCann arrived; however, he later stated that everyone was handcuffed before McCann arrived. Similarly, Miller first stated that he did not see Evans sign the consent form; however, he later testified that Evans signed the consent form after everyone was handcuffed and being taken to the police cars. Miller also conceded that he was unsure when everyone was told to empty his pockets. Finally, on cross-examination, Miller admitted that he was “mixed up about the whole thing. It’s been four months ago.”

Church testified that he was awakened by a police officer and taken into the front room where he was read his rights and handcuffed. Everyone sat on the couch and chairs until he was told to get up. The police officers found the coins under the cushions. The occupants of the trailer were arrested and taken outside. According to Church, Evans signed the consent form in the kitchen when everyone else was being taken outside to the police cars.

Neither the state nor defendants were able to obtain Carl Evans’ testimony; he was working offshore at the time of the hearing. At the conclusion of the testimony, the trial judge denied the motions to suppress. On remand from this court to consider defendants’ application for writs after briefing and argument, the court of appeal held that defendants lacked standing under either the federal or state constitutions and that, in any event, Evans validly consented to the search.

STANDING

The question is whether defendants, for whom no arrest warrant had been issued, have standing to contest the admissibility of evidence seized in the search of Evans’ trailer allegedly conducted in violation of Evans’ constitutional rights. The federal jurisprudential rule is that one has standing only if the search or seizure allegedly violated the defendant’s own constitutional rights; and, the defendant’s fourth amendment rights are violated only when the challenged conduct invaded the defendant’s reasonable expectation of privacy rather than that of a third person. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). However, under La. Const, art. 1, § 5 as interpreted by this court, “any person adversely affected” by a search or seizure allegedly conducted in violation of art. 1, § 5 has standing to raise that illegality. There is no equivalent under Louisiana constitutional law to the federal rule that one may not raise the violation of a third person’s constitutional rights. State v. Hebert, 351 So.2d 434 (La.1977) (on rehearing); State v. Culotta, 343 So.2d 977 (La.1976).

In the instant case, the search of Evans’ trailer allegedly was conducted in violation of Evans’ constitutional rights. Defendants would be adversely affected by this alleged illegality by the use against them at trial of evidence seized in the challenged search. Hence, although defendants do not have standing under the fourth amendment absent a showing of a reasonable expectation of privacy in the area searched, they have standing under La. Const. art. 1, § 5 to contest the admissibility of this evidence. The court of appeal’s reliance on State v. Barrett, 408 So.2d 903 (La.1981), for its holding that defendants do not have standing under either the federal or state constitutions is misplaced. In Barrett, we held the defendant in that case was not “adversely affected” by the alleged unlawful entry into a third person’s house to arrest Barrett so as to require suppression of evidence seized incidental to his arrest. Paramount in our consideration was that Barrett was the subject of an outstanding arrest warrant. We reasoned that since the arrest warrant was sufficient under Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), to enter into and arrest Barrett in his own house, he was not entitled to greater protection from arrest in a third person’s house. However, the rationale of Barrett is inapplicable to the facts of the instant case because there was no arrest warrant extant against defendants. Therefore, defendants have standing under La. Const. art. 1, § 5 as persons adversely affected by an alleged unconstitutional search and seizure to challenge the admissibility of the evidence seized.

ADMISSIBILITY OF THE EVIDENCE

Defendants contend the evidence seized from Evans’ trailer was obtained in violation of Evans’ constitutional rights since Evans did not validly consent to the war-rantless search of his trailer. Hence, this evidence is inadmissible for use against them at trial.

Unreasonable searches and seizures are prohibited by La. Const. art. 1, § 5. It is well settled that a search conducted without a warrant issued upon probable cause is per se unreasonable subject only to a few specifically established and well-delineated exceptions. State v. Barrett, supra; State v. Bourgeois, 388 So.2d 359 (La.1980). One of the specifically established exceptions to the requirements of both a warrant and probable cause is a search conducted pursuant to consent. When the state seeks to rely upon consent to justify the lawfulness of a search, it has the burden of proving the consent was given freely and voluntarily. State v. Ossey, 446 So.2d 280 (La.1984); State v. Wolfe, 398 So.2d 1117 (La.1981). In addition, if the consent was obtained after an illegal detention or entry, the consent was valid only if it was the product of a free will and not the result of an exploitation of the previous illegality. Among the factors considered in determining whether the consent was sufficiently attenuated from the unlawful conduct to be a product of a free will are whether the police officers adequately informed the individual that he need not comply with the request, the temporal proximity of the illegality and the consent, the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct. State v. Zielman, 384 So.2d 359 (La.1980); State v. Bennett, 383 So.2d 1236 (La.1980) (on rehearing); State v. Ragsdale, 381 So.2d 492 (La.1980).

The state introduced in evidence Evans’ signed consent to search form. In addition, Evans gave an oral consent to search on two occasions, one to Lt. Carroll shortly after the entry and another to Lt. McCann about forty-five minutes later. Both police officers testified that Evans was informed several times of the purpose of the search, that Owen was the focus of the investigation and that Evans did not have to comply with their request. There is no evidence of threats, coercion or promises. According to the officers, Evans was cooperative and willingly agreed to the search after being fully informed of its purpose and his right to refuse. There was no contrary testimony from defendants’ witnesses; neither Miller nor Church provided any information about the voluntariness of the consent. Evans did not testify. Hence, the state clearly met its burden of proving that Evans’ consent was free and voluntary.

Next, we must consider whether, in view of the alleged illegal entry, Evans’ consent was a product of his free will rather than an exploitation of the previous illegality. The first factor in this analysis is whether the police officers adequately informed Evans that he could refuse the request to search his trailer. It is clear that both Lts. Carroll and McCann independently informed Evans of his right to refuse to allow the search. Hence, Evans was adequately informed of this right. The second factor is the temporal proximity of the illegality and the consent. Evans orally consented to the search very soon after the illegal entry and again about forty-five minutes later. Although the precise time is unclear, the written consent form was signed by Evans sometime between the two oral consents. These time periods weigh against a finding of attenuation. Even the final oral consent, given forty-five minutes after the illegal entry, is too close in time to the unlawful entry. The third factor is whether there were any intervening circumstances between the illegal entry and Evans’ consent. Soon after the entry, Lt. Carroll informed Evans that they were investigating a violent crime allegedly committed by Owen. Evans was informed that he was not a suspect and that Owen was the focus of the investigation. Finally, he was told that the requested search was for items taken from the scene of the crime by Owen. When Lt. McCann arrived, he also told Evans basically the same thing. This information, twice given to Evans about forty-five minutes apart, constitutes a relevant intervening circumstance tending to break the causal connection between the illegal entry and the consent. By the time Evans consented to the search, he knew the illegal entry and subsequent search were not directed against him.

The final factor is the purpose and flagrancy of the official misconduct. Although any violation of a citizen’s constitutional rights by police officers is not to be condoned, the issue is, considering the purpose and flagrancy of the illegality, whether there is a close causal connection between the official misconduct and the subsequent consent. The police officers in this case made a warrantless entry into Evans’ trailer without consent. The purpose of the unlawful entry, clearly conveyed to Evans by the officers, was to ascertain information about a suspect (Owen) who had just committed a violent crime and who was reported to have once stayed in the trailer. The entry was not made to arrest or detain Evans. It was made merely to obtain information about a wanted and presumably violent suspect. Hence, when Evans consented to the search, he knew that the focus of the police investigation at the time of the prior illegal entry was not him but, instead, was Owen. Moreover, the official misconduct, the warrantless entry, was not very flagrant. Admittedly, the illegal entry was made at 3:00 a.m., an objectionable hour for an intrusion. But, the manner in which the entry was made was innocuous. After .three unsuccessful attempts to arouse Evans by knocking on the front door, the police officers merely opened the unlocked door and walked in. The door was not broken down, the officers did not rush in as if it were a raid and no guns were drawn. Therefore, considering Evans’ knowledge of the purpose of the entry and the manner in which it was made, the official misconduct had an insignificant effect on the subsequent consent.

In conclusion, we find Evans’ consent was free and voluntary. Additionally, although there was a close temporal proximity between the illegal entry and Evans’ consent, the other three factors considered — whether the police officers adequately informed Evans of his right to refuse, the presence of intervening circumstances and, particularly, the purpose and flagrancy of the illegal entry — lead to a finding that Evans’ consent was a product of a free will. Hence, since Evans validly consented to the search of his trailer, the items seized pursuant to this search were not obtained in violation of Evans’ constitutional rights. Accordingly, the trial judge correctly denied defendants’ motions to suppress.

DECREE

For the reasons assigned, the ruling of the trial judge denying the motions to suppress is affirmed and the case is remanded to the district court for further proceedings.

LEMMON, J., concurs and assigns reasons.

DIXON, C.J., concurs in part and dissents in part and assigns reasons.

CALOGERO, J., dissents.

LEMMON, Justice,

concurring.

While I agree that Evans’ consent to search his trailer was clearly attenuated from any illegality in the initial entry into the trailer, I conclude that the police (whether they “knew” it or not) had sufficient probable cause under exigent circumstances to enter Evans’ trailer in search for Owen or in an effort to discover Owen’s whereabouts.

The police were aware that a woman had been viciously assaulted in her own home; that she had identified one of her assailants as the “Owen boy”; and that the victim’s son knew that Owen had lived at one time with Evans in his trailer. The officers acted reasonably in immediately going to Owen’s last known residence (Evans’ trailer) to seek Evans’ assistance in locating Owen. They were legitimately concerned with apprehending Owen immediately in order to prevent further crimes or his possible escape from the jurisdiction.

When the police arrived at about 2:30 a.m. and observed the unusual behavior (an occupant peered out of the window at them and then turned out the lights), their suspicions were justifiably aroused. Upon knocking, the officers heard movement within the trailer, but did not get any response. At this point, the officers, in the light of the known circumstances, had reason to believe that Owen was the assailant, that he still lived or at least was present in the trailer, and that someone in the trailer was hiding him from the police or was otherwise concealing his whereabouts.

Faced with a situation in which they reasonably believed that immediate action was necessary to locate and arrest Owen, the officers opened the door and entered for that purpose. In doing so, they discovered Owen. The officers nevertheless asked Evans for permission to search before conducting any further intrusion into his privacy, and Evans (who had done nothing wrong and was not criminally involved) voluntarily consented to the search.

This is a very uncomplicated case involving a reasonable and factually supported police response to an emergency situation: a stabbed, sexually assaulted victim identified her assailant, and her son furnished the police with the “last known locale” of that suspect. Police went there, saw that there were occupants (although alerted to the presence of officers) who made no response to their knocks, and made a limited, investigatory entry for the purpose of locating Owen. I do not perceive any illegality in the entry.

DIXON, Chief Justice

(concurring in part and dissenting in part).

I respectfully concur in the treatment of Assignment of Error No. 1, but dissent, however, from the treatment of Assignment of Error No. 2. Evans’ trailer was the subject of illegal, warrantless entry in the middle of the night. He was roused by armed police officers and told that a person in his house was a suspect in a brutal crime. The police took him into his kitchen while officers stood guard over the others. Even if the police version is correct (that everyone waited around for McCann to arrive before any search took place), this detention alone constituted an arrest and an impermissible invasion of Evans’ privacy. Under the circumstances of this case, Evans’ consent was the result of exploitation of the previous illegality, and the state has failed to show that it was free and voluntary. State v. Ragsdale, 381 So.2d 492, 497-98 (La.1980). The Fourth Amendment, no less than Art. I, § 5 of our own constitution, “[i]n terms that apply equally to seizures of property and to seizures of persons ... has drawn a firm line at the entrance to the house.” Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639 (1980). To allow Evans’ consent in the present case to be deemed voluntary undermines the respect which this line has always been accorded and invites serious police misconduct.

      . 435 So.2d 454 (La.1983).

      . 438 So.2d 1269 (La.App.3d Cir.1983).

      .443 So.2d 599 (La.1983).

      . La. Const. art. 1, § 5 provides:
      Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.

      . Because defendants have not alleged or proved that they had a reasonable expectation of privacy in Evans’ trailer at the time of the search, they lack standing under the fourth amendment, and, therefore, the fourth amendment is not the basis of our analysis. Rather, defendants have the right to raise the validity of the seizures from Evans’ trailer allegedly in violation of Evans’ rights under La. Const. art. 1, § 5.

      . It is arguable that the warrantless, nonconsen-sual entry was justified by exigent circumstances. A serious, violent crime had just been committed; the items taken were small and could be disposed of easily; the perpetrators might still have blood on their clothes; and, the victim, who was in uncertain condition in the hospital, might not live much longer to identify the suspects. However, given our finding that there was a valid consent search, we need not reach this issue.

      . This analysis is based on our conclusion that the only violation of Evans’ constitutional rights was the entry into his trailer. After the entry, Evans was not the subject of an illegal detention. He was told that he was not the focus of the investigation: he was not handcuffed or told that he was under arrest; and he was not told to remain inside the trailer. Considering these circumstances and the officers’ testimony that only Owen would have been prevented from leaving if he had tried, we find that Evans was not arrested or detained. Therefore, State v. Ragsdale, 381 So.2d 492 (La.1980), in which the person who consented to the search was under arrest at the time of the consent, is inapposite. It should be noted that Miller and Church testified that they were arrested soon after the entry. However, even assuming this to be true, this is not relevant to whether Evans was arrested. In determining the validity of Evans’ consent, only the violations of his constitutional rights are considered.

      . The court of appeal unfortunately avoided this issue on the theory that defendants lacked “standing" to object to the search of Evans’ trailer where the defendants were spending the night. In doing so, the court of appeal disregarded or inadequately distinguished some of the earlier opinions of this court. See State v. Culotta, 343 So.2d 977 (La.1976); State v. Barrett, 408 So.2d 903 (La.1981).


source: Caselaw Access Project

author: GRISBAUM, Judge. KLIEBERT, Judge,

license: Public Domain

text:
    Hazel ELLIS v. ALLSTATE INSURANCE COMPANY, et al.
    No. 83-CA-678.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.
    Rehearing Denied Aug. 17, 1984.

      Morris Bart, III, New Orleans, for plaintiff-appellee.
    Murphy & Simon, James S. Rees, III, New Orleans, for defendants-appellants.
    Before CHEHARDY, KLIEBERT and GRISBAUM, JJ.
   GRISBAUM, Judge.

This is an appeal from a judgment notwithstanding the verdict.

Three issues are presented:

(1) Whether the trial court erred in granting a judgment notwithstanding the verdict?

(2) Whether the trial court erred in casting the defendant for expert witness fees?

(3) Whether the trial court erred in casting the defendant for jury costs in its judgment notwithstanding the verdict?

This is a personal injury suit to recover damages for an automobile accident. The accident involved an automobile driven by plaintiff, Hazel Ellis, a tractor trailer cab driven by Paul Goudy and owned by Cazell Goudy, an automobile owned and operated by David Ragusa, and an automobile driven by Linda Hennessey. Initially, Ellis named as defendants David Ragusa, Allstate Insurance (as insurer of David Ragusa), Linda Hennessey, Cazell Goudy, and Paul Gou-dy; however, Ellis requested service only upon Allstate. Denying liability, Allstate answered the plaintiff’s petition and filed a third-party demand against Linda Hennes-sey and Paul Goudy. Allstate requested service of this third-party demand only upon Paul Goudy. No answer was filed by Mr. Goudy, and a preliminary default was entered against him.

The case was tried before a jury which returned a verdict in favor of the plaintiff and against Allstate for $2394.67. The jury also found defendant, David Ragusa, to be 49 percent at fault in causing the accident, and defendant, Paul Goudy, to be 51 percent at fault. The judgment further cast Allstate for the expert witness fee of Dr. Chapel (plaintiff’s medical expert — a chiropractor) and awarded a $200 expert fee. Allstate was also cast for court costs. On the same day the judgment was signed, plaintiff filed a “Motion for Judgment N.O. V.” seeking an increase in the quantum award. The trial court granted the motion and increased the quantum to $6985.08. In addition, the trial judge specified the jury cost as $813.41.

The trial judge justified his granting of a judgment notwithstanding the verdict in the following manner:

Prior to trial on this matter, plaintiff and defendant entered into the following stipulations concerning damages:
Property Damage. $1,800.00
Vehicle Rental. 480.61
Dr. LaNasa. 25.00
Appraisal on Car Damage. 15.00
Towing . 45.00
Prescriptions . 9.67
Dr. Chapel . 1.049.80
Total. $3,485.08
Although the award in this matter was “in globo”, it is readily apparent that the jury failed to award all the damages which were stipulated. As near as the court can discern, the jury awarded plaintiff the following:
Property damage . $1,800.00
Appraisal . 15.00
Towing . 45.00
Dr. LaNasa. 25.00
Prescription. 9.67
Pain and Suffering. 500.00
Total. $2,394.67
Apparently the jury failed to award: The medical expenses incurred by Dr. Chapel’s treatment which totaled $1,049.80; vehicle rental of $480.61 and the cost of the medical report of $60.00.

These special damages total $1,590.41. He further explained the jury apparently ignored his instructions which read “when the attorneys on both sides stipulate or agree to the existence of a fact, the jury must accept the stipulation as evidence, and regard that fact as conclusively proved.” He reasoned that once the jury found fault on the part of defendant, the jury had no discretion in determining what special damages were due since the amount of the special damages was stipulated to by the parties.

The jury interrogatories did not specifically itemize the damage award. The interrogatories with the jury’s answers read as follows:

JURY INTERROGATORIES
1. Do you find that David Ragusa was at fault in this accident between plaintiff and defendant? Yes 9 No 3
A) If so, was his fault a cause, in fact, of the damages sustained by Hazel Ellis? Yes 12 No 0
B) Please state the percentage of fault of David Ragusa in causing this accident? 49%
2. Do you find that Paul Goudy was at fault in causing the accident? Yes LI No 1
A) If so was his fault a cause, in fact, of the damages sustained by Hazel Ellis? Yes 11 No 1
B) Please state the percentage of fault of Paul Goudy in causing this accident. 51%
3.The total dollar amount of damages sustained by Hazel Ellis as a result of the injury and/or loss. $2394.67
Gretna, Louisiana, this 27 day of October 1982.

When the trial judge presented his charges and these jury interrogatories, both were generally accepted by plaintiff and defendant. Plaintiff’s counsel did request that the stipulated damages for her automobile of $1800 be taken in with the jury when it retired. Other than this request, no objection was made to the jury interrogatories.

Importantly, Allstate argues although it stipulated to the amount of the chiropractor’s service, it did not stipulate that chiropractic services were connected to or required by the injury incurred by plaintiff. Allstate contends that this connection between the injury and the need for chiropractic services was a question of fact to be determined by the jury.

ISSUE ONE

In analyzing this issue, the central question to be addressed is whether the trial court’s granting of a judgment notwithstanding the verdict deprived the defendant of the jury trial guarantee of our Code of Civil Procedure articles 1731-1732. See, Ruston State Bank & Trust Company v. Theodus, 367 So.2d 899, 900 (La.App.2d Cir.1979). We find the trial court violated defendant’s right to a jury trial on the issue of damages by its granting a judgment notwithstanding the verdict. Two Louisiana Code of Civil Procedure articles are pertinant to our analysis: First, Louisiana Code of Civil Procedure article for a judgment notwithstanding the verdict, article 1810.1, which provides:

A. After a verdict has been returned by the jury, the court upon timely motion may set aside the verdict and enter a judgment notwithstanding the verdict in favor of any party.
A motion for a new trial may be joined with a motion for a judgment notwithstanding the verdict, or a new trial may be prayed for in the alternative.
B. A motion for a judgment notwithstanding the verdict shall be made not later than seven days after the clerk has mailed, or the sheriff has served, the notice of judgment. If a verdict was not returned, a party, not later than seven days after the jury was discharged, may move for a judgment notwithstanding the verdict.
C. If a verdict was returned, the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct that a judgment be rendered. If no verdict was returned, the court may direct that a judgment be rendered or may order a new trial.
D. If the motion for a judgment notwithstanding the verdict is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted, and shall specify the grounds for granting or denying the motion for a new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment.
In case the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court orders otherwise.
If the motion for a new trial has been conditionally denied, and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.
E.The party whose verdict has been set aside on a motion for a judgment notwithstanding the verdict may move for a new trial pursuant to Articles 1972, 1973, or both. The motion for a new trial shall be filed no later than seven days after the signing of the judgment notwithstanding the verdict. The motion shall be served pursuant to Article 1976.
If the motion for a judgment notwithstanding the verdict is denied, the party who prevailed on that motion may, as appellee, assert grounds entitling him to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for a judgment notwithstanding the verdict. If the appellate court reverses the judgment, nothing in this Article precludes the court from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.

Article 1811 presently provides:

A. (1) Not later than seven days after the signing of the judgment or, if notice of the signing of the judgment is required under Article 1913, not later than seven days after the clerk has mailed or the sheriff has served the notice, a party may move for a judgment notwithstanding the verdict. If a verdict was not returned, a party may move for a judgment notwithstanding the verdict not later than seven days after the jury was discharged.
(2) A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative.
B. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or render a judgment notwithstanding the verdict. If no verdict was returned, the court may render a judgment or order a new trial.
C. (1) If the motion for a judgment notwithstanding the verdict is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed and shall specify the grounds for granting or denying the motion for a new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment.
(2) If the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court orders otherwise.
(3) If the motion for a new trial has been conditionally denied and the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.
D. The party whose verdict has been set aside on a motion for a judgment notwithstanding the verdict may move for a new trial pursuant to Articles 1972 and 1973. The motion for a new trial shall be filed no later than seven days after the signing of the judgment notwithstanding the verdict or if notice of the signing of the judgment is required under Article 1913, not later than seven days after the clerk has mailed or the sheriff has served the notice. The motion shall be served pursuant to Articles 1976 and 1314.
E.If the motion for a judgment notwithstanding the verdict is denied, the party who prevailed on that motion may, as appellee, assert grounds entitling him to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for a judgment notwithstanding the verdict. If the appellate court reverses the judgment, nothing in this Article precludes the court from determining that the appellee is entitled to a new trial or from directing the trial court to determine whether a new trial shall be granted.

Also of importance is Louisiana Code of Civil Procedure article for general verdict accompanied by answers to interrogatories, article 1812, which provides:

The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict.
When the general verdict and the answers are harmonious, the court shall direct the entry of the appropriate judgment upon the verdict and answers.
When the answers are consistent with each other but one or more is inconsistent with the general verdict, the court may direct the entry of judgment in accordance with the answers, notwithstanding the general verdict, or may return the jury for further consideration of its answers and verdict, or may order a new trial.
When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, the court shall not direct the entry of judgment but may return the jury for further consideration of its answers or may order a new trial.

Paragraph 3 of this article would allow the court to grant a judgment notwithstanding the general verdict when the answers to the interrogatories were consistent, but one or more of the answers was inconsistent with the general verdict.

Louisiana’s procedural articles for judgment notwithstanding the verdict and for general verdicts accompanied by answers to interrogatories are patterned after Federal Rules of Civil Procedure 50(b), (c), (d), and 49(b) respectively; we, therefore, consult federal decisions interpreting these provisions for guidance. Madison v. Travelers Insurance Co., 308 So.2d 784, 786 (La.1975).

Examining the appropriateness of a district court’s increase in damages justified on the basis of its conclusion that answers to interrogatories were consistent with each other but inconsistent with the general verdict, the court in United Air Lines, Inc. v. Wiener, 335 F.2d 379, 407 (9th Cir. 1964), enunciated the following guidelines:

... an increase by a court of the jury’s assessment of damages which is a bald addition of something which in no sense can be said to be included in the verdict is violative of the Seventh Amendment; the rule that special findings prevail over a general verdict must be carefully applied so as not to invade the province of the jury; no such invasion occurs where the special findings are in conflict with the general verdict and where the special findings compel the judgment rendered thereupon. (Emphasis added)

In the present case there is no itemization of various aspects of damages in the interrogatories presented to the jury. The jury merely awarded a lump sum award. The trial court’s calculation of additional damages based upon its conclusion that the jury excluded the special damages is speculative. Because the jury returned a general verdict of a lump sum, the trial court’s increase in this award deprived defendant of a jury trial on the issue of quantum. See, Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935); United Air Lines, 335 F.2d 379, 406.

We also conclude that an additur (which would allow avoidance of a new trial if defendant consents to the additur) under article 1813 is not appropriate. Our Code of Civil Procedure article 1813 in effect in 1982 provided:

If the trial court is of the opinion that the verdict is so excessive or inadequate that a new trial should be granted for that reason only, it may indicate to the party or his attorney within what time he may enter a remittitur or additur. This remittitur or additur is to be entered only with the consent of the plaintiff or the defendant as the case may be, as an alternative to a new trial, and is to be entered only if the amount of the excess or inadequacy of the verdict or judgment can be separately and fairly ascertained. If a remittitur or additur is entered, then the court shall reform the jury verdict or judgment in accordance therewith. (Emphasis added)

This article provided that the trial court could order additur or remittitur only if the amount of the excess or inadequacy could be separately and fairly ascertained. In Miller v. Chicago Insurance Company, 320 So.2d 134, 139 (La.1975), the Louisiana Supreme Court interpreted this language to mean—“additur and remittitur are available if the issue of quantum is clearly and fairly separable from other issues in the case.” Reasoning that additur and remitti-tur are alternatives to a new trial, the Supreme Court explained that a trial court can grant a new trial on some but not all of the issues but only where those issues are clearly and fairly separable.

The issue of quantum is not separable from the question of degree of injury. Defendant, as previously stated, contends the plaintiff did not prove her use of chiropractic services was sufficiently connected with the injury she received from the automobile accident. The jury verdict, it claims, reflects an exclusion of this amount as well as amounts for car rental and a medical report. Since the jury damage award was an in globo award, it is impossible to discern what amounts the jury felt were appropriate for various items of damages. We find the issues of causation, degree of injury, and the amount of damages are not separable; therefore, an additur is not available in this case.

ISSUE TWO

In addressing the second issue of whether the trial court erred in casting the defendants for expert witness fees, we note Louisiana Revised Statute 13:3666, which provides:

A. Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and to state the results thereof, shall receive additional compensation, to be fixed by the court, with reference to the value of time employed and the degree of learning or skill required.
B. The court shall determine the amount of the fees of said expert witnesses which are to be taxed as costs to be paid by the party cast in judgment either:
(1) from the testimony adduced upon the trial of the cause, the court shall determine the amount thereof and include same, or
(2) by rule to show cause brought by the party in whose favor a judgment is rendered against the party cast in judgment for the purpose of determining the amount of the expert fees to be paid by the party cast in judgment, which rule upon being made absolute by the trial court shall form a part of the final judgment in the cause....

Our caselaw, which has interpreted our statutory provisions, generally holds the fixing of an expert witness fee lies within the sound discretion of the trial court and is not subject to reversal unless there exists an abuse of discretion. See, Kalmn, Inc. v. Empiregas Corp., 406 So.2d 276, 282 (La.App. 3rd Cir.1981). After a careful review of the record, we find no such abuse.

ISSUE THREE

Finally, the record reflects in the trial court’s initial judgment, which was dated November 9, 1982, the defendants being assessed for “all costs.” The record also reflects, from the judgment N.O.V., which was dated January 4, 1983, the court assessed the defendants with “jury costs of $813.41.” Apparently, the trial court was simply further defining its prior judgment by specifying certain court costs (jury costs) and in assessing the expert fee of $200, which was in conformity with its pri- or judgment of November 9, 1982.

Louisiana Code of Civil Procedure article 1951, which addresses an amendment of judgment, states that a trial judge has the discretion to alter the phraseology of a judgment or errors in calculation. We find, from the circumstances presented, the trial court, in casting the defendant for the jury costs, did nothing more than clarify its initial judgment and alter its phraseology. Therefore, we find the trial court did not err in casting the defendants for the jury costs of $813.41.

For the foregoing reasons, the judgment notwithstanding the verdict is set aside. The judgment of November 9, 1982 is reinstated. Appellants are assessed to pay for all costs of this appeal and jury costs of $813.41.

SET ASIDE IN PART AND AFFIRMED IN PART.

KLIEBERT, J., concurs.

KLIEBERT, Judge,

concurring.

I concur in the results but not necessarily for the reasons stated by the majority.

      . Louisiana Code of Civil Procedure article 1810.1, which was effective in 1982, is presently Louisiana Code of Civil Procedure article 1811. Plaintiff’s motion for judgment notwithstanding the verdict was filed on November 9, 1982. The motion came for hearing on December 6, 1982, and the trial court granted the judgment notwithstanding the verdict on January 4, 1983. In his reasons for judgment, the trial judge stated he entered the judgment pursuant of Louisiana Code of Civil Procedure article 1810.1. In 1983, article 1810.1 was amended with only a slight change (the last paragraph was designated as section F). Acts 1982, Number 534, Section 11, repealed 1810.1; the substance of 1810.1 was retained in a new article, article 1811, which is presently effective. Article 1811 contains the provisions of former article 1810.1 with a few changes in style and a change in when the motion for judgment notwithstanding the verdict must be filed. (See Louisiana Code of Civil Procedure article 1811, 1983 Revision Comments.)

      . The provisions of article 1812 effective in 1982 are presently found in Louisiana Code of Civil Procedure article 1813, which provides:
      A. The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict.
      B. The court shall inform the parties within a reasonable time prior to their arguments to the jury of the general verdict form and instructions it intends to submit to the jury, and the parties shall be given a reasonable opportunity to make objections.
      C. When the general verdict and the answers are harmonious, the court shall direct the entry of the appropriate judgment upon the verdict and answers.
      D. When the answers are consistent with each other but one or more is inconsistent with the general verdict, the court may direct the entry of judgment in accordance with the answers, notwithstanding the general verdict, or may return the jury for further consideration of its answers and verdict, or may order a new trial.
      E. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, the court shall not direct the entry of judgment but may return the jury for further consideration of its answers or may order a new trial.

      . The new additur/remittitur article, article 1814, embodies this interpretation. It provides:
      If the trial court is of the opinion that the verdict is so excessive or inadequate that a new trial should be granted for that reason only, it may indicate to the part or his attorney within what time he may enter a remitti-tur or additur. This remittitur or additur is to be entered only with the consent of the plaintiff or the defendant as the case may be, as an alternative to a new trial, and is to be entered only if the issue of quantum is clearly and fairly separable from other issues in the case. If a remittitur or additur is entered, then the court shall reform the jury verdict or judgment in accordance therewith. (Emphasis added.)

      . Plaintiff did not join a motion for new trial with her motion for judgment notwithstanding the verdict nor was a new trial prayed for in the alternative. (Louisiana Code of Civil Procedure article 1810.1)


author: STOKER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Danny CARRIER, Defendant-Appellant.
    No. CR 83-1102.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.

      Jerry P. Harmon, Crowley, for defendant-appellant.
    Glenn Foreman, Asst. Dist. Atty., Crowley, for plaintiff-appellee,
    Before CUTRER, STOKER and KNOLL, JJ.
   STOKER, Judge.

After waiving his right to trial by jury, defendant, Danny Carrier, was convicted of attempted manslaughter and sentenced to a term of six years in the custody of the Department of Corrections. The maximum available penalty is ten and one-half years. He appeals his sentence claiming that it is excessive, that the trial judge did not comply with LSA-C.Cr.P. art. 894.1, and that the presentence investigation should have been made a part of the record. We affirm.

The incident from which this conviction resulted occurred on the night of December 17, 1982. Defendant and the victim, Dirk Olivier, were in a bar in Church Point, Louisiana. The victim objected to defendant dancing with his girl friend, Linda Sat-ler, and when the victim punched the defendant, Ms. Satler fell and cut her head. The victim and a friend, Michael Tillman, then left the bar with Ms. Satler to take her to the hospital. Defendant followed the party out of the bar and tried to prevent them from taking Ms. Satler away. A fistfight ensued between the victim and the defendant which was broken up by Mr. Tillman. Apparently both victim and defendant wished to continue fighting, so Mr. Tillman released the victim from his grasp. During the course of this third altercation, the victim received critical stab wounds. The defendant fled the scene.

We will consider defendant’s assignments of error regarding excessiveness and compliance with Article 894.1 together.

It is well settled that the trial court need not articulate every aggravating and mitigating circumstance under LSA-C.Cr.P. art. 894.1 if the court indicates that it has considered those guidelines in particularizing the sentence to the offender. State v. Howard, 414 So.2d 1210 (La.1982). In this case the trial judge noted that he had studied the presentence report very carefully. The trial judge then stated, “The Court feels that now is the time to call your attention to the way to live, that you cannot go around and escape the consequences of your acts.... You must understand that the way you are going now is a dead end.” He noted further that the injuries incurred by the victim in this case were very severe and the defendant was fortunate the victim lived. Although the trial judge was brief, we find that he adequately complied with the requirements of Article 894.1.

In addition, we note that the trial judge was the trier of fact in this case, and in his reasons for finding defendant guilty, it is apparent that he was fully aware of the mitigating circumstances urged by defendant in this appeal. Although the victim struck the first blow, that altercation had ended. The defendant followed the victim out of the bar and fought with him again after Mr. Tillman had separated the two. In his reasons for judgment, the trial court stated, “But under these circumstances, there is no justification for the use of the knife and to use it so competently.” (The victim was stabbed seven or eight times.)

In any event, we do not find that the sentence imposed in this case is “apparently severe” to the extent that it would require a remand. See State v. Jones, 381 So.2d 416 (La.1980). The defendant in this case used unreasonable force, inflicting critical injuries on the victim, and he failed to take advantage of two clear opportunities to walk away from the conflict. A six-year sentence in this case where the maximum available sentence is ten and one-half years is not apparently severe and is not an abuse of the wide discretion accorded a trial judge in sentencing.

In regard to the presentence investigation, defendant makes only the following argument on appeal:

“It must also be noted that it is impossible to review the mitigating circumstances in this matter because the presentence investigation has not been made part of the record.”

LSA-C.Cr.P. art. 877 protects the confidentiality of presentence investigation reports; however, it provides that “the court may advise the defendant or his counsel of the factual contents and conclusions of any pre-sentence investigation report.” There is no requirement that the report be entered into the record for review on appeal, nor does the record show that defense counsel made any such request. In fact, there is no allegation that defendant requested that the report be made part of the record or that he be allowed access to it. Absent such a request, there is no error in not making the report a part of the record. State v. Boone, 364 So.2d 978 (La.1978), cert. den. 444 U.S. 825, 100 S.Ct. 46, 62 L.Ed.2d 31 (1979). Defendant also makes no claim that the report contained false information prejudicial to him which would entitle him to access. See State v. Bindom, 410 So.2d 749 (La.1982).

Finding no reversible error, we affirm defendant’s sentence.

AFFIRMED.


author: JASPER E. JONES, Judge.

text:
    Floria Sercarz KAPLAN, Plaintiff-Appellee, v. Jack Harold KAPLAN, Defendant-Appellant.
    No. 16267-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.
    Writ Denied Oct. 26, 1984.

      Gamm, Greenberg & Kaplan by Irving M. Greenberg, Shreveport, for defendant-appellant.
    Sockrider & Bolin by H.F. Sockrider, Jr., Shreveport, for plaintiff-appellee.
    Before JASPER E. JONES, FRED W. JONES, JR. and NORRIS, JJ.
   JASPER E. JONES, Judge.

In this domestic litigation, Jack Harold Kaplan appeals a judgment which awarded him a divorce and custody of his minor son and which awarded his wife Floria Sercarz Kaplan $2,100.00 per month alimony pen-dente lite and $1,700.00 per month permanent alimony.

Appellant married Floria Kaplan in 1954 and three children were born of the marriage, one of whom was a minor at the time of the divorce judgment. The family has always lived in Shreveport where appellant practices law.

Mrs. Kaplan rented an apartment to use as a separate domicile in January, 1980 and moved out of the matrimonial domicile. Thereafter she and appellant attempted reconciliation on several occasions for short periods of time but have not lived together since May of 1980.

Throughout most of the marriage Mrs. Kaplan insisted upon a life style which cost more than Mr. Kaplan could afford. She required on several occasions the changing and upgrading of the family home and its furnishings. She demanded the services of a maid and often required two maids, one of whom worked the late evening and night shift. She preferred to eat at restaurants several times weekly and frequently took the children out to eat. She routinely purchased expensive unnecessary clothing and occasionally purchased unnecessary furniture. She frequently overdrew her bank account incurring substantial unnecessary bank overcharges. She demanded expensive vacations and weekend recreation trips. Mr. Kaplan’s expenses were also increased by Mrs. Kaplan’s frequent illness and the treatment which she required.

Early during the marriage Mrs. Kaplan commenced having disabling migraine headaches for which she sought and obtained medication, some of which were habit forming drugs. She gradually became dependent upon the medication. Mrs. Ka-plan’s health problems were greatly increased by her depression following her third pregnancy which was unwanted. Following the birth of her third child in February, 1966 she required extensive psychiatric hospitalization in Texas where she received electric shock treatment.

Mrs. Kaplan’s drug dependency and depression continued to increase until 1977 when she commenced seeing Dr. Worth Wilkenson, a Shreveport psychiatrist, who diagnosed her mental illness as “depressive reaction.” Dr. Wilkenson hospitalized her from March 25 to August 1, 1977. During this lengthy stay in the hospital Mrs. Ka-plan discontinued the use of the habit forming drugs which had for many years contributed to her health problems. She continued to suffer from her mental illness. She remained under the treatment of Dr. Wilkenson. She was again hospitalized on several occasions, including a hospitalization for the mental illness from December 29, 1979 until April 19, 1980, with the exception of a two week period between February 7 and February 21. It was during the early part of this hospitalization that she rented the apartment and moved from the matrimonial domicile.

The evidence establishes that throughout the marriage appellant has been a model husband in every respect. He had done his very best to provide his wife with the luxuries of life which she required, even though his attempts to satisfy her has forced him to the brink of bankruptcy. He aided her in taking care of the children. He constantly sought medical treatment for her illnesses and at the recommendation of her psychiatrist participated in lengthy marriage counseling. After Mrs. Kaplan rented the apartment he frequently urged her to return to the matrimonial domicile and though she responded on several occasions she has not returned since May of 1980.

Though Mrs. Kaplan has a splendid husband she complains that he fails to adequately communicate with her and assist her in the solution of her problems. For these reasons she has developed a strong dislike for appellant and avoids being in his presence. She stated the stress of living with him aggravated her mental illness and required her additional hospitalization. She stated she was forced to separate from him to avoid this stress factor and to avoid a return to the use of drugs which she felt she could not resist if she continued to live with him.

The trial judge awarded appellant the divorce on the grounds of living separate and apart for more than one year. The trial judge found Mrs. Kaplan at fault for abandoning the appellant but found the fault excused by her mental illness and awarded Mrs. Kaplan permanent alimony.

The principal issues presented by this appeal are:

(1) was the finding that Mrs. Kaplan’s fault was excused by mental illness correct;
(2) should the trial court have made a finding that appellant was free from fault;
(3) was the alimony pendente lite award excessive;
(4) if Mrs. Kaplan was entitled to the permanent alimony award was the amount of it excessive;
(5) is a reduction of alimony on appeal retroactive;
(6) was the trial judge correct in accruing alimony pendente lite owed under a judgment that was not final;
(7) was appellant entitled to credit on his unpaid alimony for an insurance check given to Mrs. Kaplan which was collected for the loss of Mrs. Kaplan’s ring; and
(8) was the attorney fee award against the community for Mrs. Kaplan’s attorney authorized by law and if so, was it excessive.

Other incidental issues raised by the litigants in their briefs which merit discussion will be addressed in connection with the discussion of the principal issues.

WAS MRS. KAPLAN’S FAULT EXCUSED

A wife who has not been at fault and has insufficient means for her support is entitled to receive alimony after divorce. LSA-C.C. art. 160. Brannon v. Brannon, 362 So.2d 1164 (La.App. 2d Cir.1978). The wife bears the burden of proving freedom from fault in order to be entitled to alimony following divorce. Sachse v. Sachse, 150 So.2d 772 (La.App. 1st Cir.1963); Brannon v. Brannon, supra. Fault which will deprive a spouse of permanent alimony after divorce must be of such a degree that it would independently constitute a grounds for a separation. Pearce v. Pearce, 348 So.2d 75 (La.1977); Brannon v. Brannon, supra; Vail v. Vail, 390 So.2d 978 (La.App. 2d Cir.1980); Adams v. Adams, 389 So.2d 381 (La.1980). Fault is a question of fact and the trial court’s finding on the issue will not be disturbed on appeal absent a manifest abuse of discretion. Pearce v. Pearce, supra.

Actions that would normally be construed as fault contributing to the separation are excused when involuntarily induced by a preexisting mental illness. Courville v. Courville, 363 So.2d 954 (La.App. 3d Cir.1978); Gipson v. Gipson, 379 So.2d 1171 (La.App. 2d Cir.1980); Bettencourtt v. Bettencourtt, 381 So.2d 538 (La.App. 4th Cir.1980); Morrison v. Morrison, 395 So.2d 909 (La.App. 2d Cir.1981).

Dr. Worth Wilkenson, Mrs. Ka-plan’s psychiatrist since 1977, diagnosed her mental illness as an acute depression reaction with anxiety. He stated that because of Mrs. Kaplan’s mental illness she could not live in the family home at the time she abandoned it and refused to return. He testified:

I believe Mrs. Kaplan wanted to cope with the situation she had and I believe she was unable to do it because she had severe depression with a lot of anxiety that she had for a long period of time. I think she tried as hard as she could to cope with everything that she could deal with.

He refused to corroborate Mrs. Kaplan’s statement that if she returned to Mr. Ka-plan she would again become dependent upon drugs but he did state that the stress she would sustain as a result of a return to Mr. Kaplan and the family home would again cause her to become mentally ill. He concluded, from a medical position, that her living in the family home created a stressful situation which she should avoid. Dr. Wilkenson was of the opinion, as of the time of trial, that Mrs. Kaplan’s mental illness was arrested but not cured and that a return to a stressful situation would again cause her to be ill.

The appellant produced no medical testimony to refute the testimony of Dr. Wilk-enson that his wife’s abandonment of him and the family home was caused by her mental illness.

The testimony of Mrs. Kaplan, viewed in the light of her extensive lengthy mental illness, strongly corroborated by Dr. Worth Wilkenson, is substantial evidence which supports the trial court’s factual finding that Mrs. Kaplan’s fault was excused by her mental illness. Findings of fact by the trial judge when supported by substantial evidence cannot be disturbed on appeal.

Mrs. Kaplan is entitled to permanent alimony.

SHOULD THE TRIAL JUDGE HAVE MADE AN ADJUDICATION THAT APPELLANT WAS FREE FROM FAULT

Appellant contends the trial court erred in not including a determination that he was free from fault in the divorce judgment. The record reveals and the trial court found appellant free from fault in causing the dissolution of the marriage; however, the trial judge refused to include this finding in the judgment because appellant’s fault was not at issue since he was not seeking alimony.

In brief appellee cites two First Circuit cases supporting the trial court’s decision not to include the fault determination on the part of appellant in the judgment. Brady v. Brady, 388 So.2d 57 (La.App. 1st Cir.1980); Latino v. Latino, 400 So.2d 1152 (La.App. 1st Cir.1981). We find that these two cases are contrary to the supreme court decision in Thomason v. Thomason, 355 So.2d 908 (La.1978). There the court found a wife entitled to a divorce because of her husband’s felony conviction and further found her guilty of fault because of her adultery even though she had not sought alimony. This court affirmed a trial court adjudication that the wife was not free from fault in a judgment wherein she was awarded a separation on the grounds of her husband’s adultery. Since she necessarily had not sought permanent alimony in her separation action, the determination of her fault was made solely to preclude her from seeking permanent alimony in a future divorce action. Vail v. Vail, supra.

This circuit, citing Thomason v. Thomason, supra, stated the trial court should decide the fault issue in the separation or divorce suit in the interest of judicial efficiency and economy. Jordan v. Jordan, 408 So.2d 952 (La.App. 2d Cir.1981). If a spouse who does not seek alimony in the divorce proceedings should later decide that he or she is in need of alimony, much of the case would have to be retried at the later date if the fault issue is not initially determined. It is desirable to decide the issue during the initial proceedings while the facts establishing that party’s fault or lack thereof are still relatively fresh and more easily proved.

We conclude appellant is entitled to the inclusion of a finding that he was free from fault in the divorce judgment.

WERE THE ALIMONY PENDENTE LITE AND THE PERMANENT ALIMONY AWARDS EXCESSIVE

A spouse who does not have sufficient income for maintenance pending suit for a separation or a divorce is entitled to a sum from the other spouse proportioned to the needs of the claimant spouse and the means of the other spouse. LSA-C.C. art. 148. The payments which the husband is required to make on outstanding community obligations are to be considered in determining the amount of alimony pendente lite he is capable of paying. Stansbury v. Stansbury, 258 So.2d 170 (La.App. 1st Cir.1972).

Where the needs of the wife exceed the husband’s ability to pay, the alimony pendente lite should be fixed at a sum which will be fair to both parties. Frederick v. Frederick, 379 So.2d 808 (La.App. 4th Cir.1980).

The appellant contends the alimony pendente lite award in the amount of $2,100.00 per month is excessive.

The trial judge, in making this award, found that when appellant’s income from the practice of law for the years 1979 through 1982 was averaged, it reflected that appellant had an annual gross income from the practice of law of approximately $61,000.00. The trial judge further found in the year 1982 that the appellant had income from other sources in the amount of approximately $11,000.00. (We note most of this other income was from a non-repetitive source.) The trial court further pointed out that in the first part of 1983 the appellant was only grossing $3,700.00 a month. Based upon these gross income figures, the trial judge made the alimony pendente lite award of $2,100.00 per month.

We find the trial court made an excessive award because it failed to consider the substantial community debts and fixed expenses which the appellant is required to pay. When these factors are given the consideration to which they are entitled, it is apparent the appellant cannot possibly pay the alimony pendente lite award, provide a home for himself and his minor son and pay other required obligations.

The evidence establishes the appellant owes approximately $175,000.00. Not including his house note and car note which total the sum of $62,600.00, he owes borrowed money in the sum of $73,803.69. Most of these debts are bank obligations of long standing, having been renewed on numerous occasions. A substantial part of this indebtedness represents debts which appellant incurred in an effort to provide his wife with the life-style which she required. The appellant has filed in this record an exhibit which reflects his gross income for 1980, 1981 and 1982, the three year average of which reflected an annual gross income of $60,619.00. When the gross income is reduced by state and federal income taxes for each of these three years, they reflect an after-tax average income of approximately $48,000.00, or the sum of $4,000.00 per month. These income and tax amounts are substantially corroborated by copies of appellant’s 1980, 1981 and 1982 federal tax returns.

We have reviewed the appellant’s Affidavit of Necessary Expenses and extracted therefrom the following essential monthly obligations which appellant is required to pay:

House note 504.61
Car note 221.25
Auto & house insurance 266.90
Monthly auto expense 170.00
Dial Finance 100.00
Mastercard 100.00
Real estate taxes 33.00
Hospital & major med. ins. 271.00
Utilities 239.21
Interest costs on numerous debts excluding the interest included within the house & car note 917.42
Monthly payment on $23,000 unpaid 1982 income tax obligation 500.00
TOTAL $3,323.39

A review of the above list reflects that it includes no sum to be paid on the principal of the extensive bank notes owed by the appellant, nor does it include any sum for food and clothing for appellant and his son who was a minor at the time the alimony judgment was rendered and for whom he was responsible until February, 1984 when the child became 18. In spite of the omissions of these essential expenses which the appellant is required in some manner to pay, there only remains from the appellant’s monthly net of $4,000.00, after the payment of the expenses listed above, the sum of $676.61 available for payment of alimony pendente lite.

While this court cannot attempt to rearrange the appellant’s fixed expenses and debt structure, it appears his financial position could be improved by sale of the community home.

It is impossible for appellant to pay $2,100.00 a month alimony pendente lite and for that reason we reduce the monthly pendente lite alimony to the sum of $750.00.

The appellant also complains the permanent alimony award of $1,700.00 is excessive and more than he is able to pay. LSA-C.C. art. 160 provides that the obligations of the paying spouse are to be considered in reaching a determination of the amount of permanent alimony. While the wife has adequately established needs within the guidelines of permanent alimony to support the $1,700.00 award, we reduce the permanent alimony award to the sum of $750.00 for the same reasons that we reduced the alimony pendente lite award. The appellant’s income, fixed expenses and debt structure reveal that he can pay no more than the sum of $750.00 each month for permanent alimony.

Appellant contends Mrs. Kaplan has the ability to work and that her earning ability should be considered under Article 160 as a factor requiring a reduction in her permanent alimony. We find Mrs. Kaplan’s mental illness, together with her hypertension, migraine headaches and other health problems, result in her having no earning ability within the contemplation of Article 160. We further observe that she will need any sum that she may be able to earn to supplement the permanent alimony which we have fixed.

IS THE REDUCTION OF ALIMONY ON APPEAL RETROACTIVE

Appellant seeks to have this court reduce the alimony awards retroactive to the date of the trial court judgment. It is well settled that an appellate court judgment modifying an alimony award can have prospective effect only. Frederic v. Frederic, 302 So.2d 903 (La.1974); Bruner v. Bruner, 373 So.2d 971 (La.App. 2d Cir.1979); Hamiter v. Hamiter, 419 So.2d 517 (La.App. 2d Cir.1982).

Appellant is not entitled to a retroactive reduction of alimony.

Mrs. Kaplan argues in brief that the issue of the correctness of the alimony pendente lite is moot and should not be here considered by us. She cites Hamiter v. Hamiter, supra, wherein we declined to consider the contention that the alimony pendente lite was excessive because the judgment of divorce was not appealed and was final and for this reason alimony pen-dente lite had terminated and been replaced by the permanent alimony award.

The appellant appealed the entire judgment and did not limit his appeal to issues involving alimony. Appellant in brief seeks to have the judgment granting the divorce affirmed. Appellant’s permanent alimony obligation becomes effective when the divorce becomes final. Until then appellant remains liable for alimony pendente lite and the issue of its correctness remains viable even though our reduction of it has only prospective effect.

WAS THE TRIAL COURT CORRECT WHEN IT ACCRUED AND MADE EXECUTORY PAST DUE ALIMONY PENDENTE LITE WHEN THE JUDGMENT WHEREIN IT WAS FIXED WAS NOT FINAL

The trial judge, in his written reasons for judgment rendered on August 11, 1983, made the monthly alimony pendente lite award effective on August 18, 1982, which was the date Mrs. Kaplan commenced this litigation by instituting a suit for a separation containing a demand for alimony pen-dente lite. A judgment was signed pursuant to the written reasons on October 7, 1983 and on this date.Mrs. Kaplan filed a motion to accrue and make executory the unpaid alimony pendente lite from August 18, 1982. The appellant filed a motion for new trial and an exception of prematurity directed at the rule to accrue. On October 28, 1983 a judgment was rendered denying the motion for new trial, rejecting the plea of prematurity and accruing past due alimony pendente lite from August 19, 1982 to October 19, 1983.

The appellant contends this accrual judgment is invalid because the correctness of the judgment which set the alimony was the subject of his motion for a new trial at the time the rule to accrue was being considered by the court. We note that the motion for new trial was denied at the same time the judgment to accrue was rendered. The contention that a pending motion for the new trial suspended the execution of the alimony judgment was rejected by us in Fontana v. Fontana, 426 So.2d 351 (La.App. 2d Cir.1983). We there stated that the nature of an alimony judgment requires that it be immediately effective and pointed out that it’s execution is not suspended by appeal. LSA-C.C.P. art. 3943.

The appellant also argues the accrual judgment is invalid because the signed judgment which fixed the alimony was not approved as to form by his attorney before the judge signed it as required by court rules of Caddo Parish. During the interim between written reasons for judgment, which were filed on August 11, 1983, an,d October 7, 1983 when the judgment was signed, numerous unsuccessful attempts were made to secure written approval of counsel for the litigants to the form of a judgment to be submitted to the judge for his signature. Under these circumstances the trial judge did not abuse his discretion when he signed the judgment without the written approval of appellant’s attorney. The trial judge has the responsibility of controlling his docket and disposing of the cases upon his docket. His disregard of a court rule which was unjustifiably delaying the progress of the case does not invalidate the judgment signed in violation of the court rule.

WAS APPELLANT ENTITLED TO CREDIT ON HIS UNPAID ALIMONY PENDENTE LITE FOR AN INSURANCE CHECK HE HAD GIVEN TO MRS. KAPLAN WHICH WAS COLLECTED FOR THE LOSS OF MRS. KAPLAN’S RING

Appellant contends the trial court erred in not allowing a setoff against the alimony he owed for the proceeds from an insurance policy he turned over to Mrs. Kaplan. The proceeds arose from a claim Mrs. Kaplan filed for a lost ring. Appellant paid for the policy.

This court recently faced a similar issue in West v. West, 438 So.2d 706 (La.App. 2d Cir.1983). There the trial court allowed the ex-husband a setoff against the alimony he owed for funds the ex-wife withdrew from a community bank account. In ruling the trial court erred in allowing the setoff, we stated:

The concept of compensation or set-off is provided for in La.C.C. Arts. 2207-2209.- In order for compensation or set-off to be applicable, there must be a contemporaneous existence of • distinct debts, each equally liquidated and de-mandable. Hartley v. Hartley, 349 So.2d 1258 (La.1977). An essential prerequisite to determining whether or not a plea of compensation is applicable to a claim is the determination of the liquidity of the claim. While it is clear from the facts presented that Mr. West has a potential claim against Mrs. West for community funds, which is very likely to be contested, that claim is properly determined in a partition of the community property, rather than as a defense to a claim for unpaid alimony. Hartley v. Hartley, supra; Hamilton v. Hamilton, 421 So.2d 291 (La.App. 1st Cir.1982); Thomas v. Thomas, 400 So.2d 1120 (La. App. 1st Cir. 1981); Castille v. Castille, 358 So.2d 1002 (La.App. 3rd Cir.1978); Dees v. Dees, 382 So.2d 1057 (La.App. 2d Cir.1980). Based on the rule of law enunciated in the aforementioned cases, the trial court was in error in finding that compensation or set-off was available to Mr. West to offset or reduce the debt owed to Mrs. West for unpaid alimony. (footnotes omitted).

The insurance check was probably community property and any claim appellant has against Mrs. Kaplan related to her use of the funds from this check should properly be decided in the community property partition. It is possible that at this time these funds could be adjudicated Mrs. Ka-plan’s separate property. We find no abuse of discretion in the trial court’s not allowing the setoff against the alimony pendente lite.

WAS THE JUDGMENT AGAINST THE FORMER COMMUNITY EXISTING BETWEEN THE LITIGANTS IN FAVOR OF MRS. KAPLAN FOR HER ATTORNEY’S FEES AUTHORIZED BY LAW AND IF SO WAS IT EXCESSIVE

The appellant argues that his wife’s attorney fees are not community obligations because LSA-C.C. art. 2360 defines community obligations as those incurred by a spouse for the common interest of the spouses or for the interest of the other spouse. He contends the attorney’s fees were not incurred for the interest of both spouses nor for his interest, but on the contrary, were incurred for services rendered against his interest.

The argument has no merit because the wife’s attorney’s fees have been specifically recognized as a community obligation by the terms of LSA-C.C. art. 159 which reads in pertinent part as follows:

If a community property regime exists on the date of filing of the original petition in the action in which the judgment of divorce is rendered, the judgment of divorce carries with it the dissolution of the community, which dissolution is retroactive to the date on which the original petition in the action was filed, but such retroactive effect shall be without prejudice (a) to the liability of the community for the attorney fees and costs incurred by a spouse in the action in which the judgment is rendered, or (b) to rights validly acquired in the interim between commencement of the action and recordation of the judgment, (emphasis supplied).

The record contains detailed time records of Mrs. Kaplan’s attorney which fully support the attorney fee award made against the community and the award is not excessive.

We order the monthly alimony pendente lite award reduced to $750.00 and the monthly permanent alimony award reduced to $750.00. We further amend the judgment by adding to it the following paragraph:

“IT IS ORDERED that Jack Harold Ka-plan is free of fault contributing to the dissolution of the marriage.”

As amended the judgment signed October 7, 1983 is affirmed.

We affirm the judgment signed October 28 which accrued past due alimony penden-te lite.

All costs of appeal are assessed equally to the litigants.

      . We note this child became 18 in February, 1984, while this case was pending on appeal.

      . LSA-C.C. Art. 160 provides in pertinent part as follows: "In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; and any other circumstances that the court deems relevant.”

      . The judgment gave appellant credit against alimony pendente lite for sums he had given Mrs. Kaplan for her support since August 18, 1982.

      . Art. 2360. Community obligation
      An obligation incurred by a spouse during the existence of a community property regime for the common interest of the spouses or for the interest of the other spouse is a community obligation.


author: SCHOTT, Judge.

text:
    Willie Mae COFFIL v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. CA 1490.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.
    Rehearing Denied Aug. 24, 1984.

      Steven M. Koenig, Heisler & Wysocki, New Orleans, for plaintiff-appellee.
    James Maher, III, New Orleans, for defendant-appellant.
    Before SCHOTT, LOBRANO and WARD, JJ.
   SCHOTT, Judge.

Plaintiff was injured while boarding a bus owned by defendant, New Orleans Public Service, Inc. After trial by jury she was awarded $100,000. Defendant has appealed seeking a reduction in the award. Liability is uncontested. The issue is whether the jury abused its much discretion in the amount of the award.

Plaintiff is a widow who was 49 years old at the time of trial on May 19, 1983. She was employed prior to the accident on January 27, 1982 in various capacities at different times, including stock clerk at a department store, baby sitter, nurse’s assistant, beautician and seamstress. She said she was an independent person before the accident, in that she did her own grocery shopping and house cleaning. Since the accident, however, plaintiff must depend on her daughter to do these chores. Her daughter must even assist her in getting out of the bathtub. Additionally, plaintiff has had to decrease the frequency of her church going because she is no longer able to walk to and from the church. Plaintiff is also no longer able to exercise or attend concerts and movies, her favorite pastimes prior to the accident. Plaintiff has gained approximately 25 pounds since the accident, she claims because of inactivity resulting from her injuries. She said she gets depressed periodically because of her limited lifestyle caused by the accident. Plaintiff is no longer able to sit or stand for long periods of time without being in pain. Plaintiff’s daughter testified that her mother complains about her health almost daily, whereas, before the accident she rarely complained. Plaintiff said she gets “stiff” from sitting down, her ankle becomes weak when she walks and her toes “tuck under” involuntarily. She takes hot baths and uses a heating pad twice a day, every day, for temporary relief. She wears a back brace and is unable to lift anything heavy.

Plaintiff sought the medical services of Dr. A. Z. Blamphin, a general practitioner, the day after the accident. He testified as follows: She was seeing him weekly until March 11. She complained of pain in her right foot, knee, thigh, hip, and lower back. Although there were intermittent remissions of this pain to some extent, the pain persisted in her back and leg. He was under the impression that she had a lumbo-sacral sprain and prescribed medication and physical therapy treatments. However, because she continued to have problems he recommended that she see an orthopedist. When she returned to Dr. Blamphin on April 28 she had gone to Dr. Charles Billings, an orthopedist, and pending a report from him, Dr. Blamphin discontinued plaintiffs physical therapy treatments of which she had received a total of thirty over a three month period. She returned to him on July 29 complaining of her back pain then radiating into the right leg. This led him to suspect a disc problem and to recommend that she get a Cat Scan which was done at Hotel Dieu Hospital on August 9. This revealed “abnormal bulging disc space structures with most prominent deformities at L4-S, L5-S1 levels.” When she next returned to Dr. Blamphin on September 30, she was wearing a lumbosacral corset which had been prescribed by Dr. David M. Jarrot, a neurosurgeon, whom she had begun to see. Her last visit to Dr. Blamphin was on November 8 when she was still complaining of the toes in her right foot “tucking under,” stiff right ankle, cramps in the right leg, pain in the right thigh on sitting, and pain in her right hip and groin. His final impression was that plaintiff had a ruptured disc with nerve root radiation pain. Her bill for services totaled $1295.00.

Plaintiff first saw Dr. Charles Billings, an orthopedist, on April 1,1982. His examination revealed tenderness in the low back and buttocks, especially on the right and limitation of motion. He found no evidence of spasm or neurological deficit and muscle strength was normal in both legs. Based on his examination and the X-ray studies previously made he diagnosed a resolving lumbar strain with possible disc problems. He recommended physical therapy, medication, and restriction of activities. When she next returned on May 20 her condition was unchanged, but upon returning on July 8 she had some improvement in the low back but she complained of pain in the right knee and ankle. The doctor prescribed continuing conservative treatment but maintained the diagnosis of possible disc problems. He next saw her on December 7 and found she had improved with only intermittent pain in her low back and no evidence of nerve impairment. Because of her apparent positive response he continued to prescribe conservative treatment. However, when she returned on March 8, 1983, she complained of increased symptoms. His examination revealed tenderness and pain in her back with radiation into the leg during the straight leg raising test. He felt that this demonstrated the possibility of nerve irritation from back problems. He still advised non-operative, conservative treatment with a change in medication to better control her symptoms but he now felt that the persistence of her symptoms, if unchecked by the medication change, required further evaluation of her spine such as a myelogram or discogram. He described these procedures as uncomfortable and involving a hospital stay of three or four days and said the radiologist’s fee would be between $175 and $250. Plaintiff was last seen by Dr. Billings on April 19, 1983, a month before trial, at which time her symptoms were about the same. He stated that he would continue treating her conservatively unless she could no longer tolerate her pain or if objective evidence of nerve damage were present. On cross examination he stated that her history was consistent with lumbar disc disease caused by the aging process but changed or aggravated by the accident. He felt that she should restrict her activities of lifting and bending as well as sitting and standing and he advised her to return for conservative treatment on an as-needed basis. In answer to whether her disc problem might resolve itself as time passes he stated that once a disc has bulged it will not return to normal and while she may improve somewhat she would never be free of all pain.

Plaintiff consulted Dr. David Jarrot, a neurosurgeon, on August 19, 1982. She complained of back pain radiating into the right buttock and leg with muscle cramps in the right foot. On examination he found limitation of motion, muscle tenderness, and a slight degree of muscle spasm in the back. He reviewed the Cat Scan done on August 9 and found abnormal bulging of the discs at L4-S and L5-S1 with arthritic changes or overgrowth, hypertrophy of the facet joints. He diagnosed lumbar irritation or neuralgia secondary to lumbar spon-dylosis or degenerative bulging disc aggravated by the injury she sustained in January. He prescribed a lumbosacral corset to be worn a few hours each day and a return to him in six weeks. When she returned she still complained of pain but said the corset had helped and she was able to perform some housework. Upon examination he found tenderness and limitation of motion, positive straight leg raising test, but no spasm. He held to the same diagnosis as before, recommended her continued use of the corset, but formed the opinion that she could not be completely cured even with surgery which he discussed with her as an alternative form of treatment. Asked whether she would have had the problems because of her spondylosis even without the accident Dr. Jarrot referred to plaintiffs statements that she had no problems before the accident and stated that it was “characteristic” of middle aged patients with degenerative spine disease that symptoms are minimal or not felt at all until they experience trauma. Plaintiff was last seen by Dr. Jarrot on December 29, 1982. She stated her back pain was less in general but that she had increased pain from standing or walking for long periods, stooping, or doing heavy housework beyond cooking and washing dishes. She was still wearing the corset and taking the arthritis medicine. His examination revealed that her condition had improved. His final diagnosis was the same as before but with clinical improvement. He recommended exercises designed to perpetuate this improvement and rated her ten percent functionally disabled.

Dr. Jarrot testified extensively on the possibility that plaintiff might require surgery. He stated that this might’be considered only if her symptoms worsened to a significant degree, but the risks and discomfort accompanying disc surgery are not warranted by her present condition. When he first saw her in August her condition was such that she was a candidate for surgery but she improved to the extent that he no longer recommended it. This could change if she had a relapse. He then went on to testify that such surgery would cost $13,000, that one operation may not be effective and that follow-up surgery may be required, and that she would be left with some disability even with successful surgery.

On cross examination Dr. Jarrot repeated that plaintiff had improved between August and December and she no longer had nerve root irritation on the final visit. At this time her problems were associated with her muscles. Asked what her chances were to have problems in the future he stated that “for a pátient with this particular collection of symptoms, clinical course, response to treatment, I would expect one or two patients in ten to deteriorate to the point where surgery becomes a serious consideration.” He stated that it was “more than likely” that she had some degenerative changes before the accident, and he explained her ten percent functional disability to mean that she could perform nine out of ten given tasks. He further explained that her restrictions consisted of “avoiding activities that are regularly productive of increased pain or use of common sense in avoiding lifting over thirty or forty pounds;” and “repetitive bending, crawling, squatting, or stooping” as might be associated with heavy housework.

In analyzing the jury’s verdict of $100,000 we must first recognize that none of this involves loss of earnings. It does include medicals which consist of about $1300 for Dr. Blamphin, $500 for Drs. Billings and Jarrot, $400 for the Cat Scan, and about $200 for prescriptions — total $2400. If plaintiff is entitled to recover for the cost of the myelogram discussed by Dr. Billings and the surgery discussed by Dr. Jarrot an additional amount of about $15,-000 would be incurred. However, we have concluded that the evidence did not establish with legal certainty, i.e. more probable than not, that these procedures would be undertaken.

As to the myelogram by Dr. Billings, he would consider this only if plaintiffs pain could no longer be tolerated or if objective evidence of increasing nerve damage were present. Nowhere in his testimony does he state this to be a probability. Similarly, Dr. Jarrot made it clear that he was not recommending surgery but held it out as a possibility if her symptoms worsened. Thus, we have concluded that only $2400 special damages were properly included in the award. The question remains whether $97,600 constituted an abuse of the jury’s much discretion.

The record establishes that this plaintiff has been caused considerable pain and suffering and changes in her life because of defendant’s negligence. On the other hand, some of her problems are due to her degenerative spine disease of spon-dylosis which pre-existed her accident and which would probably give her some trouble even without the accident. While she has had flareups from time to time all three of her physicians found improvement and thought conservative treatment was sufficient. This consisted of prescribed medication, hot soaks, exercises, common sense restriction of activities and occasional use of a corset. She had no surgery and there is no probability that it will ever be required. We are convinced that the jury based its award in large measure on the conclusion that plaintiff is faced with surgery because of the accident, but the record does not support this. Following Reck v. Stevens, 373 So.2d 498 (La.1979), we have concluded that the award constitutes an abuse of discretion.

Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977) dictates that the award be lowered to the highest point reasonably within the jury’s discretion. We have concluded that $75,000 is the proper amount under all the circumstances.

Accordingly, the judgment is affirmed but amended so that there is judgment in favor of plaintiff and against defendant in the amount of $75,000 with legal interest from date of judicial demand until paid plus all costs of these proceedings except appellate costs which are assessed against plaintiff.

AMENDED AND AFFIRMED.


text:
    Jackie STARKS v. Peter E. SILTON, Richard Gerlach, and State Farm Mutual Insurance Company.
    No. CA 1543.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.
    Rehearing Denied Aug. 24, 1984.
    Writ Denied Nov. 9, 1984.

      Edmond J. Harris, Heisler & Wysocki, New Orleans, for plaintiff-appellant.
    James S. Thompson, Porteous, Hainkel, Johnson & Sarpy, New Orleans, for defendants-appellees.
    Before SCHOTT, LOBRANO and WARD, JJ.
   SCHOTT, Judge.

From a $15,000 judgment for personal injuries sustained in an automobile accident plaintiff has appealed seeking an increase in the award. The only issue is whether the trial court abused its discretion.

The accident happened on October 14, 1980, when plaintiff’s automobile was struck from the rear by defendant’s automobile. He consulted Dr. John Garoutte, an orthopedic surgeon, on November 7 with complaints of neck and back pain. Dr. Garoutte diagnosed an acute cervical and lumbar strain. The cervical strain resolved itself in ten weeks, but the lumbar problems persisted over a long period of time although at times Dr. Garoutte felt plaintiff’s condition was near normal. Treatment consisted of muscle relaxants, analgesics, a flexible lumbar support, and a support for use by plaintiff while driving his automobile.

Dr. Garoutte found that plaintiff was essentially over his back discomfort on January 3, 1981, but a few days later his condition worsened. By March 9, 1981, he was near normal again, but on March 27 he had suffered a setback. By May, 1981, he was near normal but in August plaintiff returned with increased symptoms. On October 2, plaintiff’s range of motion was normal but shortly thereafter he suffered another setback. When plaintiff saw Dr. Garoutte on December 11, 1981, and in January and February, 1982, he was said to be near normal and considerably improved. Plaintiff next returned to Dr. Garoutte in June, 1982, when he was found to be doing satisfactorily. He next returned in March, 1983, when he was said to have 75% of normal range of motion, problems with increased activities, and mild pain at 90% bending.

Asked at trial on June 1, 1983, about plaintiff’s prognosis Dr. Garoutte stated that plaintiff would have continuing difficulty of an intermittent sort for an indefinite period of time. The doctor declined to estimate a percentage of disability explaining that plaintiff’s problems were not constant,

“.... and [assigning a disability percentage] would also be a great deal easier if he had an objective demonstrable surgical-type injury with a well-defined patho-logic basis. Mr. Starks’ problem is not of that nature. It is a much more subjective problem in that a great deal of the problem is the discomfort and pain which he perceives, and which I believe he has. But which I cannot feel .... I believe he has a chronic problem with his back at this point.”

At the conclusion of the trial, the judge gave extensive oral reasons for judgment which are summarized as follows: Plaintiff led an active life prior to the accident, and his life style has been considerably impaired since. He deserves much sympathy because he has been forced to give up so many athletic and outdoor activities he previously enjoyed. The setbacks he experienced during his course of treatment resulted from activities with his children and other activities which would not normally be expected to create problems. His case “becomes complicated” because he has a chronic low back problem aggravated by normal activity. The trial judge observed,

“.... I believe that the defendants should not now be liable for your current and future unlimited, indefinite, non-specific chronic back injury that the doctor claims you may have. Which, parenthetically, you can control by your own voluntary engagement in activities, strenuous or not.”

The trial judge went on to find that by March, 1982, a year and a half postacci-dent, plaintiff “had recovered from all possible direct or indirect consequences caused by the October 14, 1980, accident.” Noting that plaintiff did not lose any time from his work but he did have to forego a number of personal experiences and suffered a loss of companionship with his children he concluded that $15,000 would adequately compensate plaintiff “for a year and a half loss of activities and pain and suffering.”

In this court plaintiff argues that the trial court erred in substituting his opinion for Dr. Garoutte’s, considering that the doctor was a specialist, the treating physician, and the only medical witness in the case. He points to Dr. Garoutte’s unequivocal statement that plaintiff would suffer with his chronic low back problems indefinitely and argues that the trial court’s one and a half year compensable period is manifestly erroneous.

Before a court of appeal may disturb an award of the trial court the record must clearly reveal that the trier of fact abused its discretion in making the award. Coco v. Winston Industries, 341 So.2d 332 (La.1977). Only after an articulated analysis of the facts and circumstances peculiar to this case and this individual may a reviewing court determine that an award is excessive or inadequate. Reck v. Stevens, 373 So.2d 498 (La.1979). Under these constraints we are unable to conclude that plaintiff is entitled to an increase as a matter of law.

In the first place, the record does not compel a conclusion that the trial court abused its discretion in limiting plaintiff’s recovery to an eighteen month period, considering Dr. Garoutte’s testimony that plaintiff’s problems were practically resolved except for some occasional flare-ups following specific incidents of activity which plaintiff can apparently avoid. But even granting that plaintiff should be compensated to some extent for future flareups we are unable to articulate a basis for concluding that the trial court abused its much discretion in the amount of the award.

AFFIRMED.