author: CURRAULT, Judge.

text:
    Walter JAMES v. CELOTEX CORPORATION.
    No. 84-CA-431.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.
    Rehearing Denied Jan. 17, 1985.
    Writ Denied March 22, 1985.

      M.H. Gertler, New Orleans, for plaintiff-appellant.
    Thomas L. Gaudry, Jr., Windhorst, Pas-torek & Gaudry, Gretna, for defendant-ap-pellee.
    Before BOUTALL, KLIEBERT and CURRAULT, JJ.
   CURRAULT, Judge.

This appeal arises from a judgment in favor of defendant, Celotex Corporation (Celotex), dismissing an action for worker’s compensation benefits brought by plaintiff, Walter James.

The facts reveal that plaintiff, Walter James, was employed by Celotex for thirty years from 1946 until he retired in 1975 at the age of sixty-five. During that time he worked in the asphalt department as well as the tile and interior products department. Plaintiff’s various duties included working with processes involving the coating of boards with asphalt as well as the turning and stacking of the coated boards. While working in the plant, plaintiff was exposed to some degree of coal tar pitch volatiles, the chemical components of which include medically documented carcinogens. While employed in the interior products department, he was exposed to some level of silica dust particles.

On May 27, 1982, plaintiff filed suit for worker's compensation alleging that he contracted a lung disease related to his employment. He was later diagnosed as having lung cancer.

Trial was held on November 28, 1983, January 18 and January 19, 1984. Plaintiff was unable to attend the trial due to the advanced state of his lung cancer and subsequently died on January 22, 1984. Judgment was rendered on May 10, 1984 in defendant’s favor, dismissing plaintiff’s suit.

Thereafter, an appeal of that judgment was perfected on plaintiff’s behalf.

Appellant specifies as error the trial court finding that plaintiff had not met his burden of proving the causal connection between his employment and his lung cancer.

Appellant argues that the medical testimony coupled with plaintiff’s deposition testimony satisfied the burden of proof required for a causal connection between the illness and the employment. A plaintiff in a worker’s compensation action must prove he contracted an employment-related disease by a preponderance of the evidence. Howard v. Johns-Manville Sales Corporation, 420 So.2d 1190 (La.App. 5th Cir.1982); Hebert v. Lake Charles American Press, 427 So.2d 916 (La.App. 3d Cir.1983).

The rules relative to causation are set forth in Hammond v. Fidelity & Casualty Company of New York, 419 So.2d 829 (La.1982), a case involving a trauma to plaintiff’s arm which ultimately resulted in a cancerous tumor growth. There the Louisiana Supreme Court stated:

“The plaintiff-employee in a workmen’s compensation case bears the burden of establishing the causal connection between the disability and the employment accident by a reasonable preponderance of the evidence. Prim v. City of Shreveport, 297 So.2d 421, 422 (La.1974). Nevertheless, it is not necessary for the experts to determine the exact cause of the disability in order for the employee to recover. The complaint need show only by a preponderance of the evidence that the work accident caused the disability. Allor v. Belden Corp., 393 So.2d 1233, 1236 (La.1981); Lucas v. Insurance Company of North America, 342 So.2d 591, 595 (La.1977). “... Furthermore, medical testimony ‘must be weighed in the light of other credible evidence of a non-medical character, such as a sequence of symptoms or events in order to judicially determine probability’ Schouest v. J. Ray McDermott & Co., 411 So.2d 1042, 1044-45 (La.1982).”

In determining causal connection, the court distinguished medical causation from legal causation as follows:

“[6] The lower courts based their decisions upon the assertions of Dr. Gun-derson, Dr. Gore and Dr. Romsdahl that in their opinion a trauma could not cause a tumor and that trauma would have no effect upon the eventual progression of the disease. The lower courts believed that the medical evidence was sufficient to deny compensation. They failed to distinguish the ‘medical’ meaning of cause from the ‘legal’ meaning of cause. When the doctors speak of cause they are essentially speaking of etiology — the origin of disease; what initially causes a disease. When courts and lawyers speak of cause they are concerned with the question of whether the particular incident in question contributed to the plaintiff’s disability by making manifest symptoms previously unnoticed. ‘Causation is not necessarily and exclusively a medical conclusion. It is usually the ultimate fact to be found by the court, based on all the credible evidence.’ Haughton v. Fireman’s Fund American Insurance Companies, 355 So.2d 927, 928 (La.1978).
“Furthermore, ‘[i]t is immaterial that the disability could have been brought on by causes other than a work-related trauma, if, in fact, trauma on the job which meets the standards of accidental injury is a disabling factor....’ Parks v. Insurance Company of North America, 340 So.2d 276, 281 (La.1976). See Allor v. Belden Corp., supra at 1237; Bertrand v. Coal Operators Casualty Co., supra [253 La. 1115, 1146, 221 So.2d 816, 827-28 (1969)].” At pages 832, 833.

In the case of Hebert v. Lake Charles American Press, supra, the plaintiff developed a respiratory ailment following his prolonged exposure to toxic chemicals present in his occupational environment. The defendant employer sought to establish that plaintiff’s occupational lung disease was due to a pre-existing asthmatic condition. There the Louisiana Third Circuit Court applied the Hammond rationale and discounted the argument that the disability could have been brought on by causes other than those related to plaintiff’s employment. The court held that the crucial aspect of the case was that plaintiff was in essentially good health prior to the prolonged exposure to toxic chemicals and that, thereafter, the symptoms of respiratory disease manifested themselves, “thereby creating the presumption of causal connection.” 427 So.2d at page 919.

Thus, appellant argues, pursuant to Hammond, supra, and Hebert, supra, that plaintiff in this case is entitled to the legal presumption of a causal connection between his disabling lung cancer and his occupational exposure to industrial carcinogens at Celotex. Based on these cases, plaintiff submits that the record of this matter clearly establishes that plaintiff was a healthy man when he began his employment with Celotex in 1946 and that following a continuous employment exposure to medically documented carcinogens, the plaintiff’s disabling condition (cancer of the lung) appeared and continually manifested itself.

According to plaintiff, asphalt was shipped to the plant to dip or spray building materials manufactured by defendant. He further testified that the fumes and dusts were pervasive throughout the plant during the 1940’s, 1950’s and 1960’s. He stated that in the early years the asphalt coated his clothing to the extent that the clothes were stiff and testified that no masks were provided the workers. He also testified that the inside area was smoky from dust due to the process involved in cutting the boards. When he left in 1975, he stated he was getting short of breath, a condition which ultimately worsened.

Defendant called two witnesses, Mr. Ampton LeCompte and Mr. Harvey Killeen, regarding the plant layout and conditions. Mr. LeCompte became the foreman in the asphalt department in the 1970’s. Prior to then, he worked in maintenance for thirteen years. He stated that the asphalt came to the plant in liquid state by tank cars and was then transferred to stills by pumping the material through a pipeline. It then was drained into a pan, &k feet wide by 30 feet, by opening a valve. On cross-examination, he stated the odor of asphalt fumes was detectable in the department. He admitted that he did not work with Mr. James, however; and, prior to becoming foreman, he did not spend a significant amount of time in the asphalt department.

Mr. Killeen was the quality control supervisor for thirteen years (1971-1984). He began working with Celotex in 1951 in engineering and his first job involved time studies. He remained in engineering for thirteen years and then supervised exterior products for the six years prior to his employment as quality control supervisor.

Mr. Killeen testified that he spent a couple months in the department in 1951 performing the actual operations in connection with his time studies. Mr. Killeen stated that the fumes were not detectable unless one placed his head directly over the area of the hot asphalt. Both he and Mr. Le-Compte insisted that the machines had always been, to their knowledge, vented and enclosed.

The expert testimony related to the carcinogenic effects of chemicals found in asphalt fumes agreed that studies regarding exposure to the type of chemicals found in asphalt fumes detected an association with lung cancer. Defendant’s experts were Dr. Robert Jones, certified as an expert in chest and pulmonary disease, and Dr. Ye-hia Hammed, a PhD in engineering and industrial hygiene. Plaintiff’s experts were Mr. Laurence R. Durio, whose education included a master’s degree in industrial hygiene and certification by the American Board of Industrial Hygiene, and Dr. Victor Alexander, Chairman of the Occupational Medicine Department at Oschner Clinic. The experts generally agreed that cancer can be caused by unknown factors as well as the known factors including smoking, individual susceptibility, personal characteristics and habits, carcinogen exposure and genetic composition.

Mr. Durio, plaintiff's expert in industrial hygiene, noted that the type of cancer (ade-nocarcinoma) plaintiff suffered from is classically related to asphalt vapors. Given the hypothet of a period of exposure over thirty years, in his opinion the disease would be more likely to be caused by the exposure to the coal tar pitch volatiles found in asphalt fumes. Dr. Alexander, plaintiff's expert in occupational medicine, spoke to plaintiff at home, took a lengthy history and briefly examined plaintiff. After a detailed discussion of various studies regarding lung cancer and in particular adenocarcinoma, coupled with the history given to him by plaintiff, he stated, “I believe from my reasonable medical certainty that Mr. James’s occupational exposure over a period of thirty years was a significant contributing factor to the development of his lung cancer.” Other contributing factors included silica dust and smoking, but the doctor pointed out that smoking is usually associated with squamous cell carcinoma and only weakly associated with adenocarcinoma.

Defendant’s first expert witness was Dr. Jones who examined plaintiff in 1983 and saw him again a few months later after the cancer was diagnosed. He felt it was possible, but not probable, that the cancer was job-related although he agreed that ben-zo(a)pyrene, a chemical found in asphalt fumes, is a carcinogen. While he didn’t agree with the studies regarding silica, he stated studies show the combined effects of the two increased the potency of the benzo(a)pyrene, thus producing a greater likelihood of cancer. He pointed out, however, that those studies were conducted on animals. In his opinion, based on a recent British study, smoking was the most likely cause of plaintiff’s particular type of cancer. In regard to a study conducted on roofers, which plaintiff’s experts relied upon to a great extent, he' differentiated the roofer’s exposure from plaintiff’s exposure. The doctor stated that the situations were not analogous as the roofers were in much closer proximity to the asphalt fumes in an unvented work environment.

Defendant’s final expert was Dr. Yehia Hammad. Dr. Hammad was consulted by Celotex and conducted studies at the plant in 1981, 1982 and 1983. Based on his own studies as well as literature involving steel plants where workers were exposed to coke, he stated the coal tar pitch volatiles can be carcinogenic, but that there is a dose and duration relationship. He testified that those studies are the basis upon which the National Institute of the Division of Safety & Health developed a standard accepted by OSHA. Comparing the high level of exposure shown in the studies of the coke ovens, the lesser level of exposure of the roofers, and plaintiff’s exposure at Celotex, he stated plaintiff’s exposure was too minimal to associate the disease with his occupation. His opinion was based on the various national and international studies, his own studies of this plant environment, information on the environment given to him by defendant’s employees and a hypothesis placing plaintiff in the asphalt area for fifteen years, but working 25-40 feet from the hot substance which was enclosed and ventilated to the outside. He noted that the roofing studies did not differentiate between smokers and nonsmokers, and pointed out that the study compared those workers to the general population which also included smokers and non-smokers. He commented that some of the more recent literature does show a relationship to adenocarcinoma, while others do not. However, he stated that the number of adenocarcinomas found in smokers is three times that of nonsmokers. On cross-examination, he agreed that the roofing studies did not indicate actual individual length of exposure, but divided the length of employment into periods of time.

As to the plaintiff’s allegation regarding exposure to silica dust, Dr. Hammad stated that, assuming the plant operations remained the same over the years and comparing dust studies conducted by Aetna in 1971 and OSHA in 1980, his study reflected a constant level well below the standard considered by OSHA to constitute exposure. Based on a hypothesis utilizing plaintiff’s employment history in packing and stacking boards and his history of working in the area where boards were cut for prolonged periods of time, Dr. Hammad stated it is highly unlikely that a worker would develop a fibrogenic lung disease from the baseboard.

We have thoroughly reviewed the evidence in this case. It is contradictory as to the conditions of appellant’s work environment in regard to the actual operations, the levels of fumes and dust and the exposure time. The excellent testimony of all the experts shows differing opinions as to the effects of the exposure to the carcinogens and silica dust and the studies relied upon were at times interpreted differently.

It is well established that in order to reverse factual findings of the trial court, it is necessary for the appellate court to find manifest error. Arceneaux v. Do mingue, 365 So.2d 1330 (La.1978). Taking the evidence as a whole, we find that the appellee rebutted the presumption in appellant’s favor and that the trial court was not clearly wrong in finding the evidence insufficient to prove a causal relationship between appellant’s illness and his employment. Thus, we hold that the trial court did not err in finding appellant failed to meet his burden of proof by a preponderance of the evidence.

Therefore, after a review of the law and evidence, the judgment of the trial court is hereby affirmed. Costs of the appeal are to be assessed in equal proportions between the parties.

AFFIRMED.

      . Appellee filed an answer raising issues related to costs and the propriety of dismissal without prejudice, but failed to include the issues in the brief. Consequently, those issues are deemed abandoned pursuant to Rule 1-3 of the Uniform Rules of the Courts of Appeal.

      . Hammond, Selikoff, Lawther and Seidman, Inhalation of Benzpyrene and Cancer in Man, 271 Annals of the New York Academy of Sciences 116, (1976).


source: Caselaw Access Project

license: Public Domain

text:
    Logan T. GATLIN v. The COCA-COLA COMPANY.
    No. 84-CA-110.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.
    Garland R. Rolling, Metairie, for plaintiff-appellant.
    Arthur C. Reuter, Jr., Reuter, Reuter, Reuter & Pizza, New Orleans, for defendant-appellee.
    Before BOUTALL, KLEIBERT and CURRAULT, JJ.
   CURRAULT, Judge.

This appeal arises from a summary judgment granted to defendant, Louisiana Coca-Cola Bottling Company, Ltd. (Coca-Cola) pursuant to an action for personal injuries filed by plaintiff, Logan T. Gatlin.

The facts herein reveal that on July 20, 1982, plaintiff Logan T. Gatlin was engaged in his usual occupation of collecting discarded items for resale from the St. Charles Parish landfill. Noticing a small, unopened bottle of Coca-Cola lying on top of some trash at the landfill, plaintiff picked it up and placed it on the flatbed portion of his truck. The bottle then exploded causing it to shatter. Glass from the neck of the bottle struck and injured his left eye. The Coca-Cola bottle was a non-returnable type with a twist-off cap.

Plaintiffs injuries required hospitalization and minor eye surgery, with subsequent care in an out-patient basis.

As a result of plaintiffs injuries, suit was filed against the Coca-Cola company, but amended on August 2, 1982 to reflect the proper defendant, Louisiana Coca-Cola Bottling Company, Ltd. Subsequently, on August 19, 1983, defendant filed a motion for summary judgment. Hearing on the motion was held on November 2, 1983, and judgment was rendered in defendant’s favor on November 25, 1983.

Plaintiff thereafter perfected this appeal, alleging that the trial court erred in granting the motion for summary judgment on' the facts of the case.

The jurisprudence is well established that a motion for summary judgment is not a substitute for trial. Laufer v. Touro Infirmary, 334 So.2d 541 (La.App. 4th Cir.1976). It is only properly granted where, “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. 966.

The considerations necessary to determine the applicability of the motion in a particular case were recently delineated by this court in Kinney v. Hutchinson, 449 So.2d 696 (La.App. 5th Cir.1984). There we stated:

“The courts favor a trial on the merits; however, ‘a motion for summary judgment must be granted when reasonable minds must inevitably conclude that the mover is entitled to judgment on the facts before the court.’ Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772, 775 (La.1980). Assuming facts in favor of plaintiff, the crucial question is whether reasonable minds might conclude that defendant breached a duty. Sanders, supra, at p. 775. On the other hand, where there are contradictions on factual issues created by depositions, and affidavits state conclusions of law rather than evidentiary facts, a party is not entitled to summary judgment. Thompson v. South Central Bell Telephone Co., 411 So.2d 26 (La.1982). Any doubt concerning a dispute as to a material fact must be resolved against the granting of a motion for summary judgment. Pennington v. F.G. Sullivan, Jr. Contractors, Inc. et al, 416 So.2d 192 (La.App. 1st Cir.1982). Furthermore, a mere belief that a litigant is unlikely to prevail upon the merits is not a sufficient basis to warrant the rendition of summary judgment and thus deprive the litigant of a trial. The function of the court is not to determine merits or issues, but rather to determine whether there is genuine issue of material fact. Laufer v. Touro Infirmary, et al, 334 So.2d 541 (La.App. 4th Cir.1976).” At pages 697-698.

The inquiry in a product’s liability case is whether the product is defective and whether the defect proximately caused the injury. Robertson v. Gulf South Beverage, Inc., 421 So.2d 877 (La.1982); Weber v. Fidelity & Casualty Insurance Company of New York, 259 La. 599, 250 So.2d 754 (La.1971). A product is defective when it is unreasonably dangerous for normal use. Robertson, supra; Weber, supra.

The plaintiff who is injured as a foreseeable consequence of a defective product placed in the consumer market by the manufacturer must prove:

that (1) the defendant manufactured the product; that

(2) defendant placed the product on the consumer market; that

(3) the product reached the user in substantially the same condition in which it was when defendant placed it on the consumer market; and that

' (4) at the time the injury was caused, the product was being used in the manner intended by the manufacturer.

Proof of negligence on the part of the manufacturer is not a prerequisite to recovery inasmuch as the theory of recovery is one of strict liability. Andry v. Canada Dry Corporation, Division of Norton Simon, Inc., 355 So.2d 639 (La.App. 4th Cir. 1978), writ den. 357 So.2d 1167 (La.1978).

Appellee argues that the manufacturer is not liable for an injury sustained after a bottle has been improperly handled, citing LaFleur v. Coca-Cola Bottling Company of Lake Charles, Inc., 195 So.2d 419 (La.App. 3d Cir.1966). The LaFleur ease, among others, as noted by the Louisiana Supreme Court in Robertson, was brought under the theory of negligence to which the doctrine of res ipsa loquitur . was applied in order to obviate the need of the plaintiff to prove the details of the manufacturer’s negligence. In this regard, the court in Robertson stated:

“This line of cases ignored the fact that it is reasonably foreseeable that these returnable glass bottles might be subjected to minor knocks in the course of normal use. Instead of focusing the inquiry on whether the fact of the explosion under the circumstances of each case made the product unreasonably dangerous for normal use, these cases focused on whether the explosion was brought about by some intervening cause such as the contributory negligence of the plaintiff or the negligence of some other person. We consider that these types of cases are better analyzed under the test set out in Weber v. Fidelity & Casualty Insurance Co., 259 La. 599, 250 So.2d 754 (1971).
“In Weber, we focused the inquiry in a products liability case on whether the product was defective. In order to recover from the manufacturer of a product, the plaintiff had to prove, first, that the product was defective, and second, that the defect was the proximate cause of the injury. We held that a product is defective when it is unreasonably dangerous for normal use. 250 So.2d at 755; cf. Restatement of Torts (2nd) § 402A (1965); cf. other jurisdictions, Venezia v. Miller Brewing Co., 626 F.2d 188 (1st Cir.1980); Sochanski v. Sears, Roebuck and Co., 621 F.2d 67 (3rd Cir.1980).” 421 So.2d at page 879.

The record herein reveals that the appel-lee, Coca-Cola, neither admits nor denies the manufacture of the bottle, but does admit that the Coca-Cola bottles originating from its plant are placed in the consumer market. There is no evidence that the bottle was not in substantially the same condition as when it left the plant, nor is there a showing that the bottle of Coca-Cola found by appellant was being used by him in a way not intended by the manufacturer. The only allegation which supports appellee’s position is that the bottle was mishandled. In this respect, appellee claims that the bottle must have been mishandled since it had been subjected to extremes of vibration, temperature and impact. However, the only evidence in this regard is appellant’s answer in deposition that he thought the bottle was probably brought in by a truck, and that it was found on top of a pile of trash. Appellee consequently conjectures that the bottle was, “properly disposed of by some third party in a landfill area and subject to extremes of temperature, vibration and impact,” and could not be considered in “normal use.” This conjecture by the appellee is disputed by appellant and the record discloses no basis from which the assumption might reasonably flow. For example, there is no evidence or allegation by appel-lee in his affidavit that such conditions would cause an explosion, or what the weather conditions were prior to or on the day in question, or in fact how the object was actually mishandled. Until such questions can be answered after a full trial on the merits, the issue of whether the product, under these circumstances, created an unreasonable risk of injury for normal use cannot be resolved. Consequently, it was error for the trial court to grant a summary judgment in this particular case.

After a review of the record and pertinent legal principles, therefore, the summary judgment is hereby reversed and the case remanded for proceedings consistent with this opinion. Appellee is to pay costs of this appeal.

REVERSED AND REMANDED.


author: CURRAULT, Judge. BOWES, Judge,

text:
    STATE of Louisiana v. Douglas KENNEDY.
    No. 84-KA-143.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.
    Rehearing Denied Jan. 17, 1985.
    John M. Mamoulides, Dist. Atty., Dorothy A. Pendergast, Asst. Dist. Atty., Gret-na, for plaintiff-appellee.

      John H. Craft, Indigent Defender Bd., Gretna, for defendant-appellant.
    Before CHEHARDY, BOWES and CUR-RAULT, JJ.
   CURRAULT, Judge.

On October 8, 1982, the defendant, Douglas Kennedy, and two accomplices accosted the victim, Jessie Ortega, while he was entertaining a “lady of the evening” in the rear of his van. The three perpetrators had intended to only rob Mr. Ortega; however, when he was apparently slow in responding to their demands, the victim was shot three times. He died on October 14, 1982.

Three money orders, which had been purchased by the victim shortly before the incident and taken in the robbery, were traced back to the defendant by Jefferson Parish authorities. Further investigation revealed the identity of the prostitute who was with Mr. Ortega at the time he was shot. She was located and, when questioned, related the details of the incident. She also identified Douglas Kennedy as one of the men who had committed the crime. Kennedy was arrested October 22,1982 for the murder of Mr. Ortega.

On December 3, 1982, a Jefferson Parish grand jury indicted Douglas Kennedy and two co-defendants for the second degree murder of Jessie Ortega. Pursuant to a plea bargain, whereby the defendant agreed to testify against his co-defendants, the State accepted Kennedy’s plea of guilty to a reduced charge or manslaughter (LSA-R.S. 14:31) on April 13, 1983. A pre-sentence investigation was ordered and, following its completion and review by the district court, the defendant was sentenced on September 6, 1983 to 21 years at hard labor, the maximum sentence permitted.

It is from that sentence the defendant appeals, specifying the following three assignments of error:

(1) The court erred in imposing an excessive sentence upon defendant;

(2) The court erred in failing to comply with the mandates of Article 894.1 of the Code of Criminal Procedure in sentencing the defendant;

(3)Also assigned as error are any and all errors patent on the face of the record.

The Louisiana Constitution of 1974 in Article I, Section 20, specifically protects the individual from the imposition of cruel, excessive or unusual punishment. This section has been interpreted in recent Supreme Court decisions allowing review of whether a sentence is excessive though within the statutory prescribed range. State v. Smith, 433 So.2d 688 (La.1983); State v. Guajardo, 428 So.2d 468 (La.1983); State v. Telsee, 425 So.2d 1251 (La.1983). The court in Telsee, swpra, articulated several factors useful in determining whether the sentence is excessive or greatly dispro-portioned to the underlying offense. Those factors are: (1) the nature of the offense and the offender; and (2) comparison of defendant’s punishment with sentences imposed for similar crimes by the same court and other courts.

When determining whether the punishment is constitutionally disproportionate, considering the nature of the offense and the offender, the court in Telsee, supra, at 1253 stated, “the goal of the legislative scheme ... is to tailor the individual sentence imposed on the particular defendant to the particular circumstances of the case ... the maximum sentences are to be reserved for the most egregious and blameworthy of offenders within a class.”

In reviewing Kennedy’s sentence, considering the principles of appellate review of sentences and the objective factors, we conclude that the imposition of a 21 years at hard labor sentence in this particular ease is not grossly disproportionate to the offense and does not constitute excessive punishment prohibited by Article 1 § 20 of the 1974 Louisiana Constitution. The defendant before us was originally charged with second degree murder (see LSA-R.S. 14:30.1). Had he been convicted of this crime he would have faced life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Through the plea bargain process and because of his willingness to testify against his co-defendants, Kennedy was allowed to plead guilty to the reduced charge of manslaughter, which, as a reading of the record shows, really does not accurately describe the defendant’s actions. The life term would have been without benefits, whereas with the diminution of sentence allowed for good behavior on the manslaughter conviction, Kennedy could be out in ten and a half years. The appellant obviously benefitted considerably from the plea bargain which reduced his exposure to imprisonment from a life term without benefits to 21 years with benefits.

A review of recent cases upholding the maximum penalty for manslaughter further supports the sentence handed down in the instant case. See State v. Richardson, 446 So.2d 820 (La.App. 2d Cir.1984); State v. Smith, 437 So.2d 252 (La.1983); State v. Germain, 433 So.2d 110 (La.1983); State v. Crawford, 410 So.2d 1076 (La.1982). The dominant theme in these cases is the death of a helpless victim at the hands of the defendants. In the instant case, a 56-year old man, cornered in the back of his van, pled for his life (before the victim died, he related to his wife that he told the robbers —“take my money, but please don’t shoot me.”) — but was gunned down. Analogy with the victims of the above cases comes easily.

We now consider whether the trial court adequately complied with LSA-C.Cr.P. art. 894.1. Rather than articulate reasons for sentencing, the trial court made defendant’s pre-sentence investigation a part of the record.

If where the trial court has failed to comply with LSA-C.Cr.P. art. 894.1 by providing some reasons for its maximum sentence, and there are facts in the record which would allow us to make an independent determination of whether this sentence is excessive, we may do so. State v. Smith, 452 So.2d 251 (La.App. 5th Cir.1984).

The defendant is a 26-year old man with an adult record of convictions for crimes against the persons. Defendant also has a lengthy arrest record and has been described as “an incorrigible criminal” who has been continually involved in either criminal violations of the law or on the fringes of criminal activity. In the past, defendant has shown a very poor attitude while dealing with authorities. He has an eighth grade education and has neither held steady employment nor ever established permanent residence. Considering the severity of defendant’s offense and his past criminal record, we do not find the maximum sentence of 21 years for manslaughter excessive.

Finally, we have reviewed the record for error patent and do not find any error present on the face of the record.

Accordingly, for the reasons assigned, the conviction and sentence of Douglas Kennedy are affirmed.

AFFIRMED.

BOWES, J., concurs with written reasons.

BOWES, Judge,

concurring.

I agree with the majority in regard to the following: (1) That the conviction should be affirmed and (2) that the sentence imposed was not excessive under the circumstances of the case.

As I stated previously in State v. Smith a/k/a William Hart, 452 So.2d 251, 254 (La.App. 5th Cir.1984), see Bowes, J. concurring, I am opposed to the practice of entering unsealed pre-sentence reports into the record and simply referring to the report, in lieu of articulating any reasons for the imposition of a sentence as required by La.C.Cr.P. art. 894.1 — and because I believe this is a violation of the confidentiality imposed by Art. 877, C.Cr.P., which will inhibit or destroy the flow of confidential information to the Probation Officer.

My disagreement with the majority in Smith, supra, stemmed from their apparent approval of this practice and from the fact that the trial judge gave no reasons whatsoever for the sentence imposed and, in my opinion, the record did not contain enough information to clearly show the factual basis for the trial judge’s sentence.

My disagreement with my learned brothers in the majority in the instant case is because of their apparent approval of the trial judge placing an unsealed, unfettered P.S.I. Report into the record — for the same reasons regarding confidentiality mentioned above.

However, with regard to the articulation of reasons for sentence by the trial judge, I find this case distinguishable from Smith, supra, in that the trial judge, in sentencing Kennedy, stated:

Before me is the pre-sentence investigation relative to Douglas Kennedy. That is ordered to be part of this record. I consider Mr. Kennedy an encouragea-ble [sic] criminal as stated in the pre-sen-tence investigation who, I believe, was the paramount mover in the series of events that brought him before this court to be sentenced as to the charge and crime of manslaughter.

In addition, there are abundant facts in the record here showing that the crime actually committed was a cold-blooded murder, but the defendant was allowed to plead guilty to the lesser offense of manslaughter. I agree that these facts “clearly il-lume the sentencing choice of the trial judge” (See State v. Martin, 400 So.2d 1063 (La.1981) and “allow us to make an independent determination of whether this sentence is excessive” (see State v. Smith, supra). These facts, along with the minimal, but cogent, reasons given by the trial judge make it obvious to me that the sentence imposed, although the maximum for manslaughter, was clearly not excessive.

Further, I recognize that full compliance by the trial judge, with art. 894.1, is not an end in itself. The articulation of the factual basis for a sentence is the goal of the article, not the rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed (as in this case), remand is unnecessary, even where there has not been full compliance with art. 894.-1. See State v. Lanclos, 419 So.2d 475 (La.1982) and State v. Wimberly, 414 So.2d 666 (La.1982). However, it would surely be helpful to the appellate process, which must be undergone in nearly every serious criminal case, if the trial judge would give sufficient reasons for his sentence in compliance with the spirit of the law.


text:
    John N. RICO and Mary B. Rico v. Patricia A. VANGUNDY, Allstate Insurance Company and the Parish of Jefferson.
    No. 84-CA-176.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.

      Nelson J. Cantrelle, Jr., Gretna, for plaintiff-appellee.
    James L. Donovan, Jr., Donovan & Law-ler, Metairie, for defendant-appellant.
    Before KLIEBERT, BOWES and CUR-RAULT, JJ.
   CURRAULT, Judge.

This appeal arises from a judgment in favor of plaintiffs, John N. and Mary B. Rico, and against defendants, Patricia Van-gu'ndy and her insurer, Allstate Insurance Company, for damages sustained in an automobile collision.

The facts reveal that on May 16, 1980, plaintiff, Mary B. Rico, was travelling on Lapalco Boulevard toward Marrero, Louisiana at approximately 35 miles per hour. About two blocks from the controlled intersection at Lapalco Boulevard and Manhattan Boulevard, Mrs. Rico noticed that the signal lights were inoperative and thus slowed her speed to 25-30 miles per hour. Plaintiff entered the intersection, maintaining the slower speed in conjunction with the traffic flow; but, nevertheless, collided with defendant’s vehicle which was making a left turn across the intersection.

Defendant who had been travelling on Lapalco Boulevard in the same direction as plaintiff missed a right turn at Manhattan Boulevard. As a result, she proceeded further along until she was able to make a U-turn. When defendant arrived at the intersection of Lapalco and Manhattan, she attempted to make a left turn, crossed plaintiffs path and was struck by plaintiffs vehicle. Defendant was also aware that the traffic signals were inoperative.

As a result of property damages and personal injuries sustained in the collision, plaintiff filed suit on September 12, 1980 for damages in the amount of Two Hundred Fifty Thousand Dollars ($250,000). On October 2, 1980, defendants filed an answer, reconventional demand, third-party demand and request for trial by jury. The jury order was signed on October 3, 1980 and bond was timely posted. At that time, LSA-C.C.P. Article 1733 allowed civil jury trials in cases in which the amount in dispute was One Thousand Dollars ($1,000) or more.

Trial was held on January 17, 1984. Pri- or to commencement of the proceedings, plaintiff orally requested and was granted permission to reduce the demand, by amendment, to Five Thousand Dollars ($5,000). As a consequence, the trial judge struck the jury on the authority of LSA-C. C.P. Article 1732(1), amended and renumbered in 1983, which limits the right to a civil jury trial to cases where the amount in dispute exceeds $5,000. Defendant objected on the basis that on the date the jury order was signed, the limitation in the amount in dispute was One Thousand Dollars ($1,000) under prior LSA-C.C.P. Article 1733. Over defendant’s objection to the court’s action in striking the jury, the case was heard on the merits. On January 20, 1984, judgment was rendered in plaintiff’s favor in the amount of Five Thousand Dollars ($5,000) which included the stipulated amount of Four Thousand, Six Hundred Twenty Dollars and Fifty-Three Cents ($4,620.53) in special damages for medical expenses, lost wages and property damages.

Defendants subsequently perfected this appeal alleging the following as error:

that (1) the trial judge erred in giving retroactive effect to Article 1732(1) of the Louisiana Code of Civil Procedure; and that

(2) the trial judge erred in failing to find plaintiff, Mary P. Rico, contributorily negligent in this matter and thereby barring her recovery from the defendants.

Appellants contend on the first assignment of error that in October, 1980, they were vested with a fundamental right under the then existing Article 1733 of the Louisiana Code of Civil Procedure, and that a subsequent amendment to said article in August of 1983 cannot divest them of a jury trial.

The right to a trial by jury, in civil matters, is granted with limitations by legislative enactment, and is found in the Louisiana Code of Civil Procedure Articles 1731 et seq. In 1983, the section was reorganized; however LSA-C.C.P. Article 1731 which provides the right to a jury trial in civil actions remained the same in substance. New LSA-C.C.P. Article 1731, which provides for the right, states:

A. Except as limited by Article 1732, the right of trial by jury is recognized.
B. The nature and amount of the principal demand shall determine whether any issue in the principal or incidental demand is triable by jury.

The article which defines the limitations on the right was amended, as well as renumbered in 1983, to provide the following:

Art. 1732. Limitation upon jury trials A trial by jury shall not be available in:
(1) A suit where the amount in dispute does not exceed five thousand dollars exclusive of interest and costs.
(2) A suit on an unconditional obligation to pay a specific sum of money, unless the defense thereto is forgery, fraud, error, want or failure of consideration.
(3) A summary, executory, probate, partition, mandamus, habeas corpus, quo warranto, injunction, concursus, worker’s compensation, emancipation, tutorship, interdiction, curatorship, legitimacy, filiation, separation from bed and board, annulment of marriage, or divorce proceeding.
(4) A proceeding to determine custody, visitation, alimony, or child support.
(5) A proceeding to review an action by an administrative or municipal body.
(6) All cases where a jury trial is specifically denied by law.'

The amendment, for our purposes, reflects that the prior article (1733) limited the right to a trial by jury in civil matters to cases where the amount in dispute was One Thousand Dollars ($1,000) or more. Under Article 1731, the amount in dispute determines the right, but as noted in the official comments, it is the amount demanded in good faith, not simply the amount of plaintiff’s demand. In further explanation of the changes made by the legislature, the official comments note:

(a) This article is renumbered due to a rearrangement of the articles on jury trial by Acts 1983 No. 534. The first two articles — 1731 and 1732 — deal with the right to trial by jury and the limitations on that right. The subsequent articles of the section provide the procedures for implementing that right.
(b) Paragraph (1) increases the minimum amount necessary in order to have a trial by jury from one thousand dollars to five thousand dollars. This increase is appropriate in light of the increasing cost of jury trials and is in keeping with the expanded jurisdiction of city and parish courts in which there is no right to a jury trial. See Arts. 4842, 4843, and 4871.

Appellants argue that the trial court’s action in striking the jury order in effect applied the new law retroactively in violation of LSA-C.C. Article 8 which generally forbids the application of laws in a retroactive manner. It is further asserted that even if this article is deemed an exception as procedural law, the court erred in that procedural laws which disturb a vested right cannot be applied retroactively. On the other hand, appellee argues that the good faith amount in dispute determines the right, and that on the day of trial, that good faith demand totalled Five Thousand Dollars ($5,000).- Consequently, appellee asserts, the trial court did not apply a law retroactively, but properly applied LSA-C. C.P. 1731, striking the jury based on the demand.

While the jurisprudence does not address the right to jury in conjunction with our particular facts, the general right to a civil trial by jury has been held to be fundamental and the courts are urged to indulge a presumption against waiver, loss or forfeiture. Champagne v. American Southern Insurance Company, 295 So.2d 437 (La.1974); Duplantis v. U.S. Fidelity and Guaranty Insurance Corp., 342 So.2d 1142 (La.App. 1st Cir.1977). The litigant, it is held, may be deprived of the right only by express exceptions provided by the legislature. Jones v. City of Kenner, 338 So.2d 606 (La.1976); Ruston State Bank & Trust Co. v. Theodus, 367 So.2d 899 (La.App. 2d Cir.1979). In doubtful circumstances, a liberal construction in favor of the jury trial is favored in law. Duplantis, supra; Arrington v. McCarty, 136 So.2d 119 (La.App. 3d Cir.1962).

Generally, a law can prescribe only for the future. LSA-C.C. art. 8. However, the jurisprudence provides that the rule applies solely to substantive law as distinguished from merely procedural, interpretive, curative or remedial law. Ardoin v. Hartford Accident & Indemnity Co., 360 So.2d 1331 (La.1978); Miller v. Board of Directors of Fireman’s Pension and Relief Fund of City of Lake Charles, 378 So.2d 973 (La.App. 3d Cir.1979), writ denied 379 So.2d 1104 (La.1980); Orleans Parish School Board v. Pittman Construction Co., 372 So.2d 717 (La.App. 4th Cir.1979). This jurisprudential rule is subject to the exception that procedural, interpretive, curative or remedial laws are not accorded retroactive effect when to do so would operate to unconstitutionally disturb vested rights. Lott v. Haley, 370 So.2d 521 (La.1979). A right is vested when,

“the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest. The right must be absolute, complete and unconditional, independent of a contingency, and a mere expectancy of future benefit or contingent interest in property ... does not constitute a vested right. Tennant v. Russell, 214 La. 1046, 39 So.2d 726, 728 (1949); Draughn v. Mart, 411 So.2d 1188 (La.App. 4th Cir.1982).”

Keeping these principles in mind, we nonetheless recognize that plaintiff has a right to amend the petition with leave of court after an answer is filed, to alter the substance or the demand. LSA-C.C.P. 1151. Giron v. Housing Authority of City of Opelousas, 393 So.2d 1267 (La.1981). In this regard, the trial judge herein struck the jury after allowing appellee to amend the petition as to the demand on the day of trial.

After our review, we are of the opinion that the facts do not support appellant’s contention that the trial court’s actions violated appellant’s fundamental right to a jury trial. The right granted by the legislature with express limitations is contingent upon the good faith amount in dispute, not simply the amount demanded. (Revised comments LSA-C.C.P. 1732, paragraph B). Thus, the right may rise or fall depending upon the good faith actions of plaintiff in making his demand whether it remains constant or changes upward or downward due to factors subsequently discovered. An original action for damages below the minimum might later be amended to a higher amount so as to cause the right to a jury trial to vest. A later amendment to reduce should not be treated differently. The fact that the minimum amounts were raised by the legislature is not the primary factor in appellant’s loss of the right. Under any circumstances, it is plaintiff’s good faith actions that determine either party’s right to a trial by jury, and we are convinced that the intent of the legislature is best served by this interpretation. As the Revised Comments note under LSA-C.C.P. Article 1732, the increase in the minimum amount is due to the rising increase in jury costs (as well as consistency with the expansion of jurisdiction of city and parish courts). The costs of the jury are those in existence at time of trial.

Consequently, we hold that the trial court did not err under these facts in striking the jury at the time of trial based on the amended demand.

Appellant’s second assignment of error alleges that the trial court erred in failing to find appellee contributorily negligent, thus barring her right to recovery.

Appellant cites Soprano v. State Farm Mutual Automobile Insurance Company, 246 La. 524,165 So.2d 308 (1964) to support a finding of contributory negligence on the part of appellee.

Generally, the duty of drivers entering uncontrolled intersections is governed by LSA-R.S. 32:121 which grants the right of way to the vehicle approaching from the right. Under LSA-R.S. 32:122, a high degree of care is placed on left turning vehicles and the left-turning driver is required to yield the right of way to oncoming traffic. In the Soprano case, however, the Louisiana Supreme Court held that the statutory right of way provided in LSA-R.S. 32:121 is inapplicable to situations involving three phase, four-sided semaphore signals, in place, but temporarily out of order. The court then delineated the rights and duties under those circumstances as follows:

“A non-functioning, four-sided semaphore signal device at an intersection in plain view of an ordinary observant motorist imposes a duty of extreme caution on any motorist approaching or entering that intersection. To enter such an intersection without slowing down or stopping to ascertain whether the crossing can be negotiated in safety is imprudent and constitutes negligence in legal contemplation.” At page 312.

Following the Soprano rationale, in Orazio v. Durel, 407 So.2d 75 (La.App. 4th Cir.1981), the Fourth Circuit Court of Appeal found LSA-R.S. 32:122 likewise inapplicable, and instead applied the standard of care as enunciated in Soprano.

The Third Circuit Court of Appeal, on the other hand, in Gibson v. Fisher, 401 So.2d 565 (La.App. 3d Cir.1981) resolved a case under similar facts on the basis of LSA-R.S. 32:122 and the jurisprudence interpreting the statute, as opposed to applying the Soprano test.

After our review of the applicable law, we conclude, as did the Fourth Circuit Court, that the rationale of the Soprano case applies to LSA-R.S. 32:122. As LSA-R.S. 32:122 is inapplicable, the facts herein will be scrutinized under the standard of care enunciated in Soprano.

The facts herein indicate that both parties knew the traffic signal device was inoperative. The weather was clear and the collision occurred in daylight. Appellant passed through the intersection, made a U-turn and proceeded back to the intersection, stopped and then attempted a left turn on Manhattan Boulevard. She was a manager of K-Mart at the time and was coming from the store in Gretna to go to the one in Marrero. Appellant testified that appellee was travelling in the right hand lane of oncoming traffic. She stated her vision was unobstructed, but the investigating officer and appellee husband who arrived later both indicated she told him a truck to her right partially obscured her vision to the westbound traffic.

Appellee, on the other hand, asserted that she was in the left oncoming lane going westward toward the Lapalco Bridge. She testified that about two blocks from the intersection she noticed that the signal lights were inoperative, and thus slowed her speed to 25-30 miles per hour. While not able to state she saw appellant’s car, specifically, in the lane turning into Manhattan Boulevard, she said she was aware of several vehicles stopped preparing to make the left hand turn. She stated she braked as appellant crossed her path but was unable to stop or take evasive action. Appellee further testified that appellant told her after the accident that she (appellant) had the green light and had the right of way.

Douglas Robert, employed by Jefferson Parish, was qualified as an expert in traffic engineering. He testified that Lapalco Boulevard was considered the major thoroughfare for signal timing purposes as it received the most volume of traffic which is the factor determining classification of a street as major or minor.

Applying the standard of review of facts set forth in Arceneaux v. Domingue, 365 So.2d 1330 (La.1979), and considering the legal duty set forth in Soprano, we are of the opinion that the trial court was not manifestly erroneous in finding appellant solely liable. Appellee herein exercised due care in approaching the intersection, acted reasonably in moving with the flow of traffic, observed what she should have observed and had a right to assume that vehicles stopped in preparation for a turn which would cross her path would not suddenly proceed without warning. Consequently, we hold that appellee was not con-tributorily negligent as she exercised a proper degree of caution under the circumstances of this case.

After a review of the law and evidence, therefore, we hereby affirm the trial court judgment. All costs of this appeal are to be paid by appellant.

AFFIRMED.

      . In LSA-C.C.P. art. 1731, a change in the cross reference to the limitation article was made since that article was renumbered from Article 1733 to Article 1732.

      . The accident occurred prior to August 1, 1980, the effective date of the amendment to LSA-C.C. Article 2323, providing for comparative negligence in this state.


author: GAUDIN, Judge.

text:
    Herbert RAINEY v. Mary GERARVE, et al.
    No. 83-CA-840.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.
    Writ Denied Feb. 8, 1985.
    Gregory J. Laborde, Lafayette, for plaintiff-appellant.

      John A. Cvejanovich, New Orleans, for defendant-appellee.
    Before KLIEBERT, GAUDIN and DU-PRESNE, JJ.
   GAUDIN, Judge.

The narrow issue involved in this appeal is whether the Administrator of the State of Louisiana’s Division of Property and Casualty Insurance had the authority to sign a waiver and thereby reject uninsured motorist coverage for the Department of Public Safety.

The district judge decided that the Administrator had the authority and could legally execute such a waiver. After considering the testimony and evidence, we cannot say that such a conclusion was erroneous. The judgment appealed from is affirmed.

Appellant is Herbert Rainey, a state trooper injured on August 31, 1979 when his motorcycle collided with an oncoming automobile that negligently turned left into his path.

Mr. Rainey filed tort claims against (1) the other driver, Mrs. Gerard Gerarve, her husband and their liability insurance company, State Farm Mutual Automobile Insurance Company; (2) Allstate Insurance Company, Mr. Rainey’s personal uninsured motorist carrier; and (3) Travelers Insurance Company, the alleged uninsured motorist carrier of the Department of Public Safety, Mr. Rainey’s employer. Mr. Rai-ney settled with the Gerarves and State Farm for $15,000.00, the policy limits, and proceeded to trial against Allstate and Travelers.

The trial judge ordered Allstate to pay $10,000.00 to Mr. Rainey and dismissed claims against Travelers. Reasons for judgment were not assigned, but appellant and appellee agree that Travelers was absolved of responsibility because the trial judge felt that this company did not extend uninsured motorist coverage due to a waiver signed by Edward Anderson, the Administrator of the Division of Property and Casualty Insurance.

On appeal, Mr. Rainey contends that Mr. Anderson had no authority, express or implied, to waive uninsured motorist coverage for the Department of Public Safety. Therefore, Travelers should have been cast in judgment, along with Allstate, for claims in excess of the $15,000.00 State Farm policy. The $10,000.00 judgment against Allstate was not appealed by either Mr. Rai-ney or Allstate.

Travelers’ policy was issued for three years, commencing on September 29, 1976. At that time, LSA-R.S. 22:1406(D)(1)(a) was in effect and it stated:

“No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in the state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than-the limits of bodily injury liability provided by the policy, under provisions filed with an approved by the Commissioner of Insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this subsection shall not be applicable where any inusured named in the policy shall reject the coverage or selects lower limits. Such coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy issued to him by the same insurer.” (Underlining supplied.)

As the policy was issued to the Department of Public Safety and not to Mr. Anderson, appellant argues, Mr. Anderson was not “... any insured named in the policy ...” Consequently, the waiver executed by him was invalid.

When a state agency, corporation or similar entity is insured and wishes to waive uninsured motorist protection, an authorized representative can execute the waiver form. See Johnson v. Ortego, 408 So.2d 397 (La.App. 1st Cir.1981, where a vice president of administration executed the waiver for McNair Transport, Inc., and Jordan v. Honea, 407 So.2d 503 (La.App. 1st Cir.1981), writs denied at 409 So.2d 654, where the waiver was signed by a person identified as “... an official of Browning-Ferris, the insured ...”

From Johnson:
“The endorsement rejecting the uninsured motorist coverage is a part of the policy and appears to be a considered waiver of uninsured motorist coverage, under-insured motorist coverage and the option to select lower limits. There is no question of their knowledge and affirmative action regarding the options ...”

Here, too, the waiver was “considered”, i.e., with the knowledge and consent of the insured (Department of Public Safety).

The Department of Property and Casualty Insurance was established by statute within the Division of Administration approximately 40 years ago to determine the insurance needs of all but a few of the state’s budget agencies. Pertinent testimony regarding Mr. Anderson’s authority to waive uninsured motorist coverage and the Department of Public Safety’s awareness of and consent to the waiver was provided by James Ray Nelson-, the Travelers agent who placed the coverage; Joe A. Terrell, former. Deputy Commissioner of Administration; Howard Elliott, attorney for the Department of Public Safety; and Mr. Anderson himself.

Their uncontroverted testimony indicated that while Mr. Anderson did not have written or formal authorization from the Department of Public Safety, all of the Department’s insurance policies, including endorsements, were negotiated and purchased through his office and that Mr. Anderson annually signed waiver forms. Mr. Anderson discussed the Department’s insurance needs with Mr. Elliott, then negotiated and purchased policies agreed on and approved by everyone concerned.

Mr. Elliott, the Department of Public Safety’s general counsel since 1974, stated that he would discuss insurance requirements with the heads of the Department and convey their sentiments to Mr. Anderson. Mr. Elliott was asked:

“Did you relate to Mr. Anderson an approval on behalf of the Department of Public Safety of the rejection of uninsured motorist coverage?
He answered: “Yes.”

Mr. Anderson, employed by the Division of Administration for the past 17 years, explained that his job was to “... determine the insurance needs of the State, acquire the insurance through the bid process ... I think the best way to describe it, I was the local agent for the state budget agencies. I was their insurance man.”

Appellant relies on Landry v. GEICO, 390 So.2d 1385 (La.App. 3rd Cir.1980), arguing that the instant facts and circumstances are “closely analogous” to those in Landry.

In this case, the Calcasieu Parish Policy Jury rejected uninsured motorist coverage for 1966-68, 1970 and 1975, while the sued-on accident occurred in 1973. The Third Circuit said that “... an express written rejection of uninsured motorist coverage was required ... ”. As the insurance policy in effect in 1973 did not have attached to it such a rejection, the court said the police jury had uninsured motorist protection. These facts are not synonymous with those now before us.

Appellee, on the other hand, cites various statutes and also LSA-C.C. arts. 2985, 2992 and 3000, under Title XV — Of Mandate.

Art. 2985 states that a mandate “... is an act by which person gives power to another to transact for him and in his name, one or several affairs.” Art. 2992 says that while powers of attorney can be . bestowed in writing, they . may also be given verbally ...”

Art. 3000 reads:
“Powers granted to persons, who exercise a profession, or fulfill certain functions, or doing any business in the ordinary course of affairs to which they are devoted, need not be specified, but are inferred from the functions which these mandataries exercise.”

No doubt the trial judge discounted Landry v. GEICO, supra, and instead decided that Arts. 2985, 2992 and 3000 were applicable, finding that in the exercise of Mr. Anderson’s functions and’ in the carrying out of his responsibilities in the ordinary course of affairs to which he and his office were dedicated, he was the proper person to execute uninsured motorist waivers for the Department of Public Safety. The record supports this finding and we cannot set it aside.

Finally, we note that the Department of Public Safety is not suggesting either that it had uninsured motorist coverage or that Mr. Anderson lacked authority to sign the waivers. The obvious intent of the Department was to waive uninsured motorist coverage, which Mr. Anderson effectively did by yearly executing the waiver forms. There was a distinct agreement between the Department of Public Safety and Travelers whereby the Department would not have uninsured motorist coverage and the insurance company would not receive an appropriate premium. The judgment of the district court, which we affirm, recognized this agreement. Appellant is to bear all costs.

AFFIRMED.


author: DUFRESNE, Judge.

text:
    Andrew J. WARE v. Elizabeth P. WARE.
    No. 84-CA-148.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.
    See also, 424 So.2d 500, 398 So.2d 1234.

      Jonathan M. Lake, New Orleans, for plaintiff-appellee.
    Santo A. Dileo, Kenner, for defendant-appellant.
    Before KLIEBERT, BOUTALL and DU-FRESNE, JJ.
   DUFRESNE, Judge.

The defendant, Elizabeth P. Ware, asserts that the trial court’s refusal to increase the award of alimony after divorce is in error. Furthermore, she argues that the denial of attorney’s fees for past due alimony and expert medical fees is also judicially improper.

The plaintiff, Andrew Ware and the defendant, Elizabeth Ware, were divorced on April 1,1975. Alimony was awarded to the defendant-wife along with child support. In 1983, the plaintiff filed a rule to terminate child support and alimony. The last child of the marriage was now a major, consequently the child support award was terminated. The defendant has also reconvened with a rule to increase alimony.

At the time of trial, the defendant introduced her alleged expense list indicating monthly expenditures of $1,093.00, with $325.00 in alimony representing her monthly income. The defendant alleges that she does not have the physical ability to earn a living and introduced Dr. George Murphy as an expert witness in internal medicine to substantiate this allegation. Dr. Murphy testified that the defendant was suffering from hemorraghic gastritis relating to her chronic anxiety and severe depression. Additionally, there is testimony found in the record establishing the plaintiff’s husband’s monthly income at approximately $9,000.00.

After hearing the evidence, the trial court denied all rules and terminated child support, but required the plaintiff to continue to pay $325.00 per month in alimony until December 31, 1984. The trial court also denied any award for attorney or expert fees. From this judgment, the defendant-wife has appealed.

The most serious issue in this case is raised by the defendant’s argument that the trial court misconstrued her earning capacity as required by LSA-C.C. Art. 160. The trial court was convinced that the defendant presented no evidence that she did not have the ability to find sufficient means for her support. When alimony terminates on December 31, 1984, the defendant will have had over ten (10) years to acquire appropriate education, training and/or employment. The trial court was convinced that her health and age were not impediments to her ability to support herself.

The spouse’s earning capacity is a factor to be considered in determining need for purposes of alimony after divorce. The record reveals that the defendant has separate assets, including a home and other income generating property. She also has work experience which would allow her an opportunity to earn a living through her employment.

While the earning capacity of the defendant is to be considered an establishing need and the amount of. alimony, it does not necessarily follow that the spouse should be required to take employment of any nature immediately following the divorce. Difficulty in finding employment which would fit in the defendant’s long-term gainful employment and which is suitable for her age, training and ability is a proper consideration. Another consideration in evaluating earning capacity, specifically mentioned in Article 160, is further training and education for a reasonable period of time directed toward improving her earning capacity.

On the other hand, the alimony article does not contemplate that in this case the plaintiff-husband should be required, in effect, to subsidize a life-time of employment inactivity by his former wife.

The lack of her seriousness in trying to provide for her economic future during the past several years seems to suggest to this court that the defendant desires to support herself by manipulation of the provisions of the Civil Code.

We believe that under the facts and circumstances found in the record, as they existed at the time of this hearing, the trial court’s denial of increased alimony and its eventual termination on December 31, 1984, was within the court’s sound discretion. We hold that it would be inconsistent with the codal mandate requiring consideration of earning capacity to require the plaintiff-husband to subsidize the defendant-wife’s long-term economic future. Further, she has a demonstrated capacity to earn sufficient income to meet her basic needs. She has had previous work experience as a private secretary, a seamstress and has obtained a real estate license. However, during the last few years, has not even tried or applied for any type of job.

The trial court is vested with much discretion in fixing alimony after divorce and should not be reversed, absent a clear abuse of discretion, Loyacano v. Loyacano, 358 So.2d 304 (La.1978).

Our examination and review of the record supports the finding of the trial judge and we affirm his judgment.

AFFIRMED


text:
    Sara GOLDMAN, Wife of Allen James Logue v. Allen James LOGUE.
    No. 84-CA-76.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.
    Writ Denied Feb. 4, 1985.

      Ferdinand J. Kleppner, Metairie, for plaintiff-appellant.
    Bernard M. Plaia, Jr., Metairie, for defendant-appellee.
    Before GAUDIN, GRISBAUM, and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This is an appeal by Sarah Goldman, plaintiff-appellant and former wife of Allen Logue, defendant-appellee, from a judgment denying her petition for sole custody, or in the alternative for joint custody of the nine year old son of their prior marriage. Because we find no abuse of the trial court’s discretion in refusing to award either sole custody to the mother, or joint custody, but rather permitting the child to remain in the sole custody of his father with visitation rights to his mother, we affirm.

In February of 1980, the parties were divorced, and the mother was granted sole custody of the one child of the marriage.

In June of 1981, the father sought, and was granted, sole custody of the child on the apparent grounds that he had remarried and could provide a more stable home for the child, while the mother was then living a somewhat chaotic and unsettled life. As a condition of this award, the father’s second wife, Lynette Campbell, was ordered to quit her job in order to provide 24 hour supervision of the child. Visitation privileges of every other weekend, alternating holidays, and six weeks during the summers, were granted the mother.

In the early part of 1982, the mother initiated contempt proceedings against the father claiming that he was violating her visitation privileges. The father responded with a rule to modify the mother’s visitation rights alleging that the mother was unduly interfering with the child’s organized sports activities during her periods of visitation. While these matters were pending, the father also filed a rule for child support. The mother responded by filing a rule for custody, alleging that she was remarried to Howard Stembel, and could not provide a stable environment for the child. In May 1982, after a full trial on the merits of above matters the trial court dismissed the mother’s rule for custody, and ordered her to pay $225 per month in child support. It appears that the problems over the mother’s visitation rights were left for resolution by the parties.

In early June of 1983, the mother filed the present action, again seeking to be granted sole custody, or in the alternative, joint custody, and to have child support payments eliminated or reduced. The father responded by filing a rule to make executory past due child support, claimed to be over $1200. On June 24, 1983, the mother filed a motion to specify visitation rights for the remainder of that summer. After a hearing on this last motion, the trial court rendered a judgment specifying the dates and times during which the mother would have visitation. He also specified that on certain of those days, she would see to it that the child would be brought to baseball practice and that he would be permitted to participate in a baseball tournament.

A full hearing on the change of custody rule was held in August and September of 1983. During the course of that proceeding, the trial judge interviewed the child in chambers, but refused either to permit the attorneys to be present or to have a transcript made of the interview. On September 28, 1983, judgment was rendered denying the mother sole custody as well as joint custody. No judgment was rendered on the rule for past due alimony, and apparently that matter is still pending. Since the filing of this appeal, the mother has filed yet another rule for determination of visitation privileges.

The mother urges two errors on the part of the trial court. Her first contention here is that because no transcript appears in the record of the trial judge’s interview with the child, appellate review is impossible. Her second contention is that the trial court erred in concluding that the statutory presumption in favor of joint custody was rebutted by the father.

As to the absence of a transcript of the trial judge’s interview with the child, we do not find that relevant. We have carefully reviewed the court’s reasons for judgment, and find nothing therein that indicates any reliance on the interview. Moreover, each of his findings of fact is amply supported by evidence and testimony which does appear in the record, as will appear in more detail below. This allegation is thus without merit.

The mother’s second allegation, that the presumption in favor of joint custody was not rebutted, is equally without merit.

Before turning to the record, we note that the standard to be applied by the trial court in custody disputes is that of the best interest of the child. Turner v. Turner, 455 So.2d 1374 (La.1984). Further, the presumption in favor of joint custody created by La.Civ.Code, art. 146, does not mandate joint custody, “but only provides the judge with a first choice, which choice must be rejected in the face of evidence which tends to disprove the conclusion,” (i.e. that joint custody would be in the best interest of the child.) Turner v. Turner, supra. Finally, the standard of appellate review here is whether the trial court has clearly abused its discretion in fixing custody, Bordelon v. Bordelon, 390 So.2d 1325 (La.1980).

With these principles in mind, we now address the facts. It is undisputed that the child’s mental ability is in the 99th percentile of his age group. It is also agreed that he is active in, and enjoys organized sports, and plays on baseball, football and basketball teams. What is disputed is whether his intellectual abilities are being properly developed. The mother’s main reason for seeking custody is that the father is allegedly overemphasizing sports in the boy’s life and neglecting or improperly providing for his education.

In support of this allegation, the mother called as an expert Dr. Judith Roheim, a child psychiatrist who saw the child once. She testified that the child would benefit by being placed in a school for gifted children, and that the mother had informed her that she intended to enroll the boy in a private school specializing in the education of such children, if she were awarded custody. The doctor further stated that in her opinion academics were more important than sports, and that after interviewing the father she felt that he was overemphasizing sports. She also noted that the parents have entirely different life styles and value systems. Her recommendation to the court was that because in her opinion the mother could provide a better “schooling experience”, a custody arrangement whereby the child would spend the school year with his mother, and the summers with his father was in the child’s best interest. She also stated that this change of custody would not damage the child in any way.

In rebuttal, the father’s expert, Dr. C.A. Cowardin, also a child psychiatrist, who had seen the child at least five times in the two years prior to trial, disagreed with Dr. Roheim’s recommendations. In her opinion, the parents have demonstrated that they cannot cooperate to further their child’s best interest, as is clear from their continuing resort to the courts. Further, she saw no indications that the child’s intellectual development was being hampered by his sports activities. This assertion was based on both her interviews with him and his school records which show him to be almost a straight A student. It was further clear from the school records that his academic performance has improved during the time that he has been in his father’s custody, and that he is now in a program for gifted children at his present public school. Her recommendation to the court was that because he was doing so well in his father’s custody, it would not be in his best interest to subject him to the disruptions and anxieties which any change in the present custody arrangement would necessarily entail.

It was also established at trial that the mother is in arrears in child support payments, and that she and her present husband have a marriage contract whereby he is not liable for such payments. Her husband testified that although he has made no effort to assist his wife in meeting her support obligations, and feels no responsibility to do so, if the child were to live with them he would help her in providing for his financial needs, obviously including private school tuition.

The father testified that he had no objection to a private school for gifted children, and had indicated this to the mother. He further stated that he told her he could not afford such a school and she made no offer of financial assistance. As to his attitude toward sports, he asserted that they-should not be emphasized over academics, but that both were equally important in a child’s development. He also noted that sports were a reward for proper behavior, and that recently the child had been refused permission to play on the soccer team for a season because he had forged his stepmother’s name on a note sent to her by his teacher.

Obviously, then, the trial judge was forced with conflicting testimony and opinions as to how the child was progressing as well as how his best interest would be effected by a change in the present custody arrangement.

Our review of the judge’s reasons for judgment does not disclose any abuse of discretion in resolving these issues. In those reasons he first stated that since being in his father’s custody, the child has progressed both intellectually and physically, and is well rounded and happy. These findings are well supported by the testimony of Dr. Cowardin and the school records. Moreover, although Dr. Roheim stated, on the basis of one interview, that the child needed more intellectual stimulation and guidance, we see nothing erroneous in the trial court giving more credibility to the opinion of Dr. Cowardin who has seen the child over a number of years, especially in view of the excellent school records.

The judge next stated that the relations between the parents have been strained, and there has been a failure of communications and lack of amicable decision making. Again, the record supports this conclusion. The parties have had a continuing conflict over visitation rights which they have repeatedly called upon the courts to resolve. The mother claims she is unable to meet her child support obligations, yet asks for custody so she can enroll the child in a private school. The father is amenable to a private school, but claims he cannot afford the tuition, yet the mother has not offered to help with this expense. The mother’s present husband is apparently willing to help with tuition, but only on the condition that the child comes to live with them. It is apparent to us, as it was to the trial court, that the inability of the parties to resolve their conflicts over such an essential aspect of the child’s life as his education mitigates strongly against a joint custody arrangement.

The judge further stated that although the mother’s basic complaint was that the child’s intellectual potential was not being developed, he found no evidence to substantiate this assertion. The record supports this conclusion as well. The child’s report cards and teacher evaluations show that he is doing extremely well in school. The father reveals that at the time of the hearing he was enrolled in a program for gifted children in the public school system.

The trial court then concluded that the best interest of the child would not be served by any change of custody at this time. He emphasized that in reaching this decision he had considered the length of time, approximately two years, that the child has been in a stable, satisfactory environment, and the desireability of maintaining continuity. He also considered the favorable home, school and community record of the child. It is again obvious to us that he relied in part on Dr. Cowardin’s testimony as to the unsettling effects of any change in custody and we have already determined that such reliance on a physician with longer contact with the child was not erroneous.

The mother urges, however, that because she meets many of the factors set forth in La.Civ.Code, art. 146(C)(2)(a-i), as considerations by the court in determining whether joint custody is appropriate, that it was error for joint custody to be denied. Particularly, she points out that she loves her child, is genuinely interested in his growth and education, and feels she could provide him with, a proper home. While we do not doubt these assertions, the fact remains that the parents here do not appear to be able to put aside their differences and cooperate in matters affecting the child’s well being. It is precisely this lack of a spirit of cooperation which the Louisiana Supreme Court has held to be one of those “other .factors” within the scope of La.Civ.Code, art. 146(C)(2)(i). Turner v. Turner, supra. In the absence of such cooperation, and considering as well all other evidence in this case, we find that the trial court’s decision to deny joint custody on the grounds that the best interest of the child would not be served by such an award was not a clear abuse of his discretion.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    Cynthia LEITZ, et al. v. William WENTZELL, et al.
    No. 84-CA-100.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.
    Writ Denied Feb. 4, 1985.

      Dwight W. Norton, New Orleans, for plaintiff-appellant.
    R.K. Christovich, Glen B. Adams, New Orleans, for defendant-appellee.
    Before BOUTALL, GRISBAUM and DUFRESNE, JJ.
   DUFRESNE, Judge.

The facts giving rise to this matter are undisputed. Cynthia Leitz Salito and William Wentzell were involved in a two car collision on November 9, 1978. Mr. Went-zell’s negligence is the undisputed cause of this accident, as admitted by him and found as a matter of fact by the trial court.

Mrs. Salito named as defendants in her suit the following parties: (1) William Wentzell, the driver of the offending vehicle; (2) Julie Maffe, the owner of the offending vehicle, at the time of the accident; and (3) American International Insurance Company, the automobile liability insurance carrier of the Maffe vehicle. Subsequently named as additional defendants were (4) State Farm Mutual Automobile Insurance Company which provided automobile liability coverage under a policy issued in the name of William Wentzell’s wife, Wanda and (5) Mrs. Salito’s uninsu-rance (under-insurance) carrier, Allstate Insurance Company.

Mr. Wentzell admitted his negligence as the sole cause of the accident, thus liability was clearly established at the beginning of the trial at which time the cause of action against Julie Maffe was dismissed. Allstate Insurance Company had settled with Mr. and Mrs. Salito two years prior to the trial; and subsequently dismissed without prejudice its Third Party Demand against all other defendants. Also, before trial American International Insurance Company tendered its policy limits subject to judgment (and immediately satisfied same when rendered).

Defendant, State Farm has steadfastly, denied that its policy issued in the name of William Wentzell’s wife, Wanda, provided coverage to Mr. Wentzell. This issue was tried and the trial court dismissed the claim against State Farm and awarded the plaintiff $35,395.00, representing special damages of $22,045.50 and general damages of $13,350.00. From this judgment the plaintiffs have appealed.

They have presented the following issues for our review:

I. Insurance Coverage
a) Whether Mr. Wentzell was a resident of his wife’s household for insurance purposes and thus an “insured” under the State Farm Policy.
b) Alternatively, whether Mr. Wentzell was a “named insured” under the policy provisions applicable to a “temporary substitute vehicle”.
c) Alternatively, whether the policy of State Farm should be reformed to read Mr. Wentzell as the named insured.
II. Quantum:
a)' Whether the $13,350.00 general damage award was manifestly erroneous in that it was inadequate in light of Mrs. Salito’s past and future physical condition.

I. Insurance Coverage

The issue to be resolved on appeal by this court is simply stated: Did the policy of insurance issued by State Farm naming Wanda Wentzell as titled owner and insured provide coverage to William Wentzell for his negligent driving of another separate unrelated vehicle?

At the time of the accident, William Wentzell was driving a vehicle owned by Julie Maffe and insured by American. Both Julie Maffe and William Wentzell testified at trial that they were living together at the time of the accident. It was also established at trial that William and Wanda Wentzell were voluntarily living separate and apart on the date the accident occurred. Although there was no legal separation or divorce proceedings pending or filed, they had been physically separated for approximately seven months prior to the accident and were still physically separated as of the date of the trial.

On appeal the plaintiff has argued that the factual situation in the present case is similar to that of Bearden v. Rucker, 437 So.2d 1116 (La.1983), in which the Louisiana Supreme Court held that the wife was a “resident of the same household” and was a “named insured” covered under the uninsured motorist provision of the policy, even though the couple had been physically separated for over nine months.

In Bearden the facts indicated that Ms. Bearden had possession of the automobile which was insured in her husband’s name. She had keys to the family home where she visited several times a week and there occasionally had meals with her children. She was also free to come and go from the family home as she pleased. The policy issued to Mr. Bearden also provided a “Family Protection Coverage” for the insured for injuries caused by an uninsured automobile.

Ms. Bearden, who was living separate and apart from her husband was injured in an automobile accident while a guest passenger in a non-owned automobile. The Beardens owned two automobiles and both were listed on the “Family Combination Automobile Policy” issued in the name of Lloyd Bearden, husband of Ms. Bearden.

We find the present case distinguishable from Bearden in a number of aspects. Wanda Wentzell is the named insured on the State Farm policy in question; thus, it must be shown that her husband was a member of his wife’s household.

Clearly, if Mr. Wentzell was a member of his wife’s household, he would be an insured under State Farm’s policy, and coverage would be applicable even though he was operating a non-owned vehicle.

The record clearly reflects that William and Wanda Wentzell had divested themselves of their relationship. Each had abandoned their former domicile at one time or another and both were residing with other mates. After reviewing the record, we find the trial court was correct in concluding that William Wentzell was not a resident of Wanda Wentzell’s household at the time of the accident and thus, no coverage was provided under the terms of the State Farm policy.

In Bearden we had Ms. Bearden seeking coverage for injuries incurred while a guest passenger in a non-owned automobile. Here we have the plaintiff, Mrs. Sali-to, attempting to extend the coverage on Wanda Wentzell’s car to the car owned by Julie Maffee, merely because William Wentzell was negligently operating that vehicle.

We recognize, as indicated in Bear-den, that the controlling test of whether persons are residents of the same household at a particular time, does not depend on whether they are residing together under one roof.

However, we feel the issue should not be whether under the laws of this State the husband and wife are lawfully bound, but rather our interpretation of an insurance contract based on the factual situation at hand.

Further, in Bearden the policy in question, as previously indicated provided “Family Protection Coverage” of two automobiles. The agent at the time of the renewal of the policy had knowledge that one of the Bearden ears was in the possession of Ms. Bearden and that she was not living with her husband. In the present case there is no testimony in the record concerning the knowledge of the State Farm agent. The one Wentzell .car was registered in Wanda Wentzell’s name and the policy was also issued in her name.

The Wentzells were living separate and apart and with other mates. The trial judge correctly concluded that “the overwhelming weight of the evidence indicates that William Wentzell was not a member of the household of Wanda Wentzell.” Also, there were no indications that there were any possibilities of reconciliation or that they intended their separation to be a temporary one.

Accordingly, the trial judge as the trier of fact, has determined that there was no coverage here under the terms of the State Farm insurance policy. His judgment is entitled to great weight and as a reviewing court, we should not substitute our opinion unless there has been manifest error. We find the evidence supports the judgment of the trial court and agree therewith.

The State Farm policy issued to Wanda Wentzell is void of any description of the vehicle being operated by William Wentzell when the accident occurred. There is no ambiguity in the wording of State Farm’s contract and the policy holder (namely, Wanda Wentzell) made no declaration that she intended any vehicle registered to any other party to be covered under the terms of her policy. We agree with the trial court that the Maffe vehicle, used by William Wentzell at the time the accident occurred was not a “temporary substitute automobile”, as that term is used in the State Farm policy. In order to apply this contractual provision, the Maffe vehicle must have been in the possession or under the control of Wanda Wentzell. There can be no coverage via the State Farm policy because William Wentzell was operating a vehicle not in the possession, or in the control of Wanda Wentzell when the accident occurred. William Wentzell was operating a vehicle registered to a third-party, namely Julie Maffe, which vehicle is not listed on the declaration page pf the policy issued to Wanda Wentzell.

Lastly, our courts have recognized that written contracts of insurance can be reformed to conform to the original intention of the parties if there exists either mutual error or for fraudulent, negligent, or mistaken conduct on the part of the agent issuing the policy, Herbert v. Breaux, 285 So.2d 829 (La.App. 1st Cir.1973); Trahan v. Bailey’s Equipment Rentals, 383 So.2d 1072 (La.App. 3rd Cir.1980). In order to accomplish reformation, a party must prove that the policy does not express the actual contract intended by the parties, Kolmaister v. Connecticut General Life Ins. Co., 370 So.2d 630 (La.App. 4th Cir.1979).

The record is absent an evidentiary basis which would indicate that Wanda Wentzell or State Farm, as parties to the contract of automobile insurance, wanted to include William Wentzell as an additional insured.

The parties knew how they wanted the contract to read and the contention that this contract of insurance should be reformed has no merit.

Accordingly, we hold that the record supports the finding of the trial judge and we affirm his judgment dismissing the plaintiffs’ claim against the defendant, State Farm Insurance Company.

II. Quantum

The second error urged by the plaintiffs here is that the trier of fact abused its much discretion in fixing the award of general damages at $13,350. Again, we disagree. The well established rule is that an award for damages will not be disturbed on appeal unless an appellate court can give articulable reasons why on the particular facts of the case before it the award is an abuse of the trier of fact’s “much discretion”, Reck v. Stevens, 373 So.2d 498 (La.1979).

We do recognize that the plaintiff has experienced considerable problems and pain as a result of the accident. The record discloses unrefuted testimony that Mrs. Salito to was confined to bed for about thirty days following the accident; that she underwent a left rib resection and that in August 1980, a cervical fusion was performed to alleviate neck pain and headaches. She further stated she is still suffering shoulder pain caused by a popping scapula at the time of trial, over four years after the accident.

Although the general damage award appears low; when reviewed in conjunction with the entire award, we do not find that the trial judge has abused his much discretion in fixing said award.

For the above and foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.


author: YELVERTON, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Nicholas BABCOCK, Defendant-Appellant.
    No. CR 84-666.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      J.P. Mauffray, Jr., Jena, for defendant-appellant.
    Norris Dale Jackson, Asst. Dist. Atty., Jena, for plaintiff-appellee.
    Before DOUCET, LABORDE and YEL-YERTON, JJ.
   YELVERTON, Judge.

Having pled guilty to DWI third offense reduced from DWI fourth offense, LSA-R.S. 14:98(E) and (D), defendant, Nicholas Babcock, was sentenced to five years at hard labor in the custody of the Department of Corrections. He appeals the sentence assigning as errors that the sentence was excessive and that the trial judge failed to comply with the sentencing guidelines of C.Cr.P. art. 894.1.

Defendant was arrested for the present offense on September 5, 1983. Circumstances of the present offense were not aggravated. He was not involved in an accident. He was pulled over and arrested only because he was driving erratically, crossing the center line and going on the shoulder. What makes the offense stand out is the number of times defendant has been convicted for DWI in the recent past.

His DWI record started with a first offense conviction in 1980. He was then 40. A year later, 1981, he was convicted of DWI second offense, followed shortly that year by another DWI second offense, then by a DWI third offense conviction. In 1983 he got his second DWI third conviction. The instant case started as a DWI fourth offense, but it. was reduced to DWI third offense, and on May 2,1984, defendant was sentenced to five years at hard labor. He was 44 on the date of conviction.

In the four years 1980-1984 while defendant was logging five DWI convictions before the present one, he was ordered to pay a total of $1825 in fines, all court costs, and some alternative time for default of payment of fine and court costs, and he was given a total of two years and four months imprisonment. The record does not show how much he actually paid in fines, or how much time he actually served in prison.

By two assignments of error, defendant complains that his sentence of five years at hard labor was excessive. He also complains that the sentencing judge failed to follow the guidelines of C.Cr.P. art. 894.-1.

Neither of these assignments have merit.

The sentencing judge complied with the guidelines. He looked at the mitigating as well as the aggravating circumstances. He took into account the mitigating factor that this was a victimless crime; defendant was merely observed driving erratically, no other vehicles were involved. He discussed the mitigating factor that necessarily flowed from the circumstances: there was nothing to indicate defendant wanted to cause harm, he did not cause harm, and therefore no compensation or restitution was involved.

On the other hand, the sentencing judge took into account that defendant’s blood alcohol concentration was .22% at the time of his arrest. Also, with five prior DWI convictions the defendant might well have been convicted of fourth offense DWI in which case the sentencing range would have been 10 to 30 years. Thus, the acceptance of his plea to DWI third offense reduced his sentencing exposure to one-half the minimum on a fourth conviction.- The benefit to a defendant resulting from a reduced-charge type of plea bargain, with resulting reduced exposure to imprisonment, has long been recognized as a legitimate factor in determining whether a sentence is excessive. State v. Lanclos, 419 So.2d 475 (La.1982).

• In the instant case, defendant’s DWI record of five offenses in four years alone furnishes a factual basis supporting the sentence, and also supporting the trial court’s apprehension that a lesser sentence would deprecate the seriousness of the offense, and that defendant’s conduct was likely to recur.

Defendant’s claim of excessiveness is based solely on his having received the maximum sentence for the offense to which he pled guilty. He argues that in every case the maximum punishment is reserved for the worst offender, and that he is not the worst offender, as shown by the circumstances of the present arrest.

It has been held that, because of the high potential of danger to the innocent public caused by the habitual drunken driver, the minimum penalty of 10 years imprisonment on a conviction of DWI fourth offense is not excessive. State v. Beavers, 382 So.2d 943 (La.1980). We must hold, similarly, that the maximum penalty of five years imprisonment on a plea to DWI third offense, reduced by plea bargain from fourth offense, where the record shows defendant actually had five DWI convictions within the previous four years, was not excessive.

The sentence is affirmed.

AFFIRMED.