author: GAUDIN, Judge.

text:
    Carl B. SWIFT, et al. v. CONTINENTAL INSURANCE COMPANY, et al.
    Nos. 83-CA-361, 83-CA-362 and 83-CA-363.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 1984.
    Writ Denied Sept. 28, 1984.

      Robert L. Manard, III, New Orleans, for plaintiffs-appellees.
    Dermot S. McGlinchey, New Orleans, for appellee-appellant.
    C. Gordon Johnson, Jr., and Joseph F. Clark, Jr., New Orleans, for defendants-appellants.
    Before BOUTALL, GAUDIN and GRIS-BAUM, JJ.
   GAUDIN, Judge.

The primary issue in this somewhat complex litigation is the possible negligence of Bernard J. Bailey, who was driving his pickup truck within the speed limit on a clearly favored roadway when confronted by another pickup truck that ran through a stop sign and was suddenly in his path. The vehicles collided.

Mr. Bailey had been proceeding on U.S. Highway 90 while the other pickup, driven by John Wisotzkey, was on Louisiana Highway 443. The accident occurred just before dawn in an area of patchy fog.

The trial judge determined that Mr. Bailey was negligent in driving too fast under existing weather conditions and that his negligence was a proximate cause of the collision. This finding, however, was not supported by the evidence and we reverse it.

There are secondary issues, dealing with awards of workmen’s compensation, and we affirm these awards.

THE ACCIDENT

At approximately 6:25 a.m. on February 6, 1980, Mr. Bailey was driving his 1979 Ford pickup in a westerly direction on U.S. 90 with Gary Wyman as a passenger.

Meanwhile, a 1975 Dodge pickup operated by Mr. Wisotzkey was on La. 433 and heading east toward the U.S. 90-La. 433 intersection. The intersection is Y-shaped, with La. 433 angling into U.S. 90 as shown here:

Mr. Wisotzkey was a dispatcher employed by Gulf Coast Contracting Services, Inc. His passengers were fellow Gulf Coast employees Curtis Ingersoll and Carl owned by Gulf Coast. Mr. Ingersoll was in the rear seat, while Mr. Swift was in the front next to Mr. Wisotzkey.

When Mr. Wisotzkey reached U.S. 90, he ignored the stop sign. Mr. Ingersoll testified that he “... told him to slow down, he was going too fast for that kind of conditions ...” Mr. Wisotzkey, however, said, “I’m going to run it,” meaning that he was going to drive past the stop sign. Mr. Wisotzkey finally applied his brakes when he drove onto U.S. 90 and came face-to-face with Mr. Bailey’s truck.

Mr. Bailey said that he was driving at 50 miles per hour, five miles per hour under the speed limit, with his headlights and internal defroster on. He estimated that he was 60 feet from the point of impact when he first noticed Mr. Wisotzkey’s pickup, and that one and a half seconds passed between the time he first noticed the other truck and the moment of impact.

He first turned to his right, ⅛. Bailey stated, then veered left when he realized Mr. Wisotzkey’s vehicle was in the westbound lane and coming directly at him.

Mr. Wisotzkey’s pickup, once it entered U.S. 90, was never in the eastbound lane. It stayed in the westbound lane (Mr. Bailey’s proper lane) until the trucksj hit.

THE TRIAL

Three lawsuits were filed and 'were consolidated for trial. Mr. Swift’s injuries resulted in his death shortly after the accident, and a tort suit was filed by ¡his widow and children and by Mr. Ingersoll, who sustained serious personal injuries. Named defendants were Mr. Wisotzkey, Mr. Bailey, Continental Insurance Company (insurer of Mr. Wisotzkey’s pickup) and State Farm Mutual Automobile Insurance Company (insurer of Mr. Bailey’s pickup).

Also filed were suits by Mr. Ingersoll and by Mr. Swift’s widow and children seeking workmen’s compensation benefits from Gulf Coast and its compensation insurer, Travelers Insurance Company.

Following a two-day trial, the district judge, finding Mr. Bailey negligent, rendered judgment, making these awards:

(1)To Mr. Ingersoll, the sum of $275,-000.00 against Mr. Bailey, State Farm and Continental, with State Farm’s liability limited to $20,000.00;

(2) To Sandra Swift Robinson, Mr. Swift’s widow, the sum of $176,000.00 against the same defendants listed in (1) above, with State Farm’s liability limited to $13,858.27;

(3) To Mr. Swift’s minor children, through their tutor, the sum of $78,000.00, against the same defendants listed in (1), above, the amount to be equally divided among the three children, with State Farm’s liability limited to $6,141.73;

(4) To Travelers, the sum of $21,208.09, against Mr. Bailey and State Farm;

(5) To Travelers, the sum of $18,026.18, against Mr. Bailey and State Farm;

(6) To the Swift children, $49.00 per week from February 6, 1980 until each child reaches the age of 18 or, if enrolled as a full time student, until that child reaches the age of 23, against Travelers, subject to a credit of $2,288.00 previously paid; and

(7) To Mr. Ingersoll, $144.00 per week from February 6, 1980, and continuing into the future, until it is shown that Mr. Inger-soll is no longer totally and permanently disabled, against Gulf Coast and Travelers, subject to a credit of $9,380.00 previously paid.

The judgment also (a) dismissed the demands of Mr. Swift’s widow against Gulf Coast and Travelers, (b) set the fees of the expert witnesses and (c) ordered Gulf Coast, Travelers, State Farm and Continental to pay court costs.

In his “Reasons for Judgment,” the trial judge noted that because Mr. Wisotzkey, Mr. Ingersoll and Mr. Swift were in the course of their employment, Mr. Ingersoll and Mr. Swift were limited to workmen’s compensation benefits as far as Mr. Wi-sotzkey and Gulf Coast were concerned. In tort, they had to proceed only against Mr. Bailey and his insurer.

The “Reasons” also stated:

“Mr. Ingersoll testified that the accident occurred in the pre-dawn hour in a heavy fog, which statement was supported by the testimony of State Trooper Nobles

Based on this and other testimony, the trial judge found “... that Bernard Bailey was traveling at an excessive rate of speed under the existing weather conditions, and thus is guilty of negligence in regard to this accident.”

THE APPEALS

Appeals were lodged by Mr. Bailey, Continental and by Gulf Coast-Travelers.

Mr. Bailey contends that he was not negligent and that the trial judge “... misinterpreted and placed unreasonable reliance ...” on the testimony of the state trooper and Olin Dart, an expert called by plaintiffs.

Continental’s contentions:

(1) The trial court erred in finding Bernard Bailey guilty of negligence which was a proximate cause of the accident;

(2) The trial court erred in finding that the uninsured motorist provisions of the policy issued by Continental provided coverage for the damages sustained by these plaintiffs; L

(3) The trial court’s award to Sandra Swift Robinson, widow of decedent Carl Swift, was excessive;

(4) The trial court’s awards to the minor children of decedent Carl Swift are excessive;

(5) The damages awarded by the trial court to Curtis Ingersoll are excessive; and

(6) The trial court erred in awarding interest from date of judicial demand on that portion of the judgment which it decreed was covered by the uninsured motorist provisions of the policy issued by Continental Insurance Company to Gulf Coast Contracting Services, Inc.

Subsequent to the oral arguments in this case, a joint motion was filed by Mr. Swift’s widow and children, Mr. Ingersoll and Continental, stating that they have “... completely settled and compromised their disputes ...” and that Continental’s suspensive appeal should be dismissed with prejudice. We will not, therefore, consider the merits of this appeal.

The appeal by Gulf Coast and Travelers specifies four errors:

(1) The trial court erred in finding that the minor children of Carl W. Swift were partially dependent on him at the time of his death;

(2) The trial court erred in finding that each child was entitled to the minimum weekly compensation benefits of $49.00 per week.

(3) The trial court erred in not awarding full recovery to Travelers and Gulf Coast for monies paid to and on behalf of Carl W. Swift’s widow and minor children; and

(4) The trial court erred in not awarding Travelers and Gulf Coast full credit towards future weekly compensation benefits against the award rendered on behalf of Carl B. Swift as tutor of the minor Swift children.

MR. BAILEY’S NEGLIGENCE

Mr. Bailey testified that there was “some haze” as he approached the La. 433 intersection, but that “... from a mile away I could see the outline of the bridge fine and the lights on the bridge.”

Glen Nobles, a Louisiana state trooper, arrived at the accident scene at approximately 6:40 a.m., or about 15 minutes after the collision. He said:

“I did not cite Mr. Bailey for driving too fast for conditions; he was not the major cause of the accident.”

Trooper Nobles drove to the intersection on La. 433, and he observed that the fog was “solid” on that roadway but only “patchy” on U.S. 90.

Mr. Ingersoll testified that from the back seat of Mr. Wisotzkey’s pickup he could see the lights of Mr. Bailey’s truck when the vehicles were 100 yards apart.

Considering the testimony of Mr. Bailey, Trooper Nobles and especially Mr. Inger-soll, we cannot find that “a heavy fog” shrouded the U.S. 90-La. 433 intersection at the time of the accident and that, at 50 miles per hour, or even 55 miles per hour, Mr. Bailey’s speed was excessive.

Mr. Bailey was faced with a sudden and unexpected emergency, and even Mr. Dart, petitioners’ expert in accident reconstruction, acknowledged the swiftness of events just before the collision and his best estimate of time available to Mr. Bailey was three seconds, half of which would be reaction time.

Perhaps Mr. Bailey could have turned either to his right or left and avoided the onrushing pickup (although it is not reasonable to so conclude), but a motorist who finds himself in a position of imminent peril without sufficient time to consider and weigh all the circumstances or best means that may be adopted to avoid an impending danger is not guilty of negligence if he fails to adopt what subsequently and upon reflection may have been a better way, unless, of course, the emergency is brought on by his own negligence. See Hickman v. Southern Pacific Transport Company, 262 So.2d 385 (La.1972) and numerous other cases with similar holdings.

The record does not indicate that Mr. Bailey’s alleged excessive speed contributed to this accident or that he in any way caused the emergency situation. Thus, we find the instant facts and circumstances different from those in Fabio v. New Orleans Public Service, 429 So.2d 875 (La.App. 4th Cir.1983), an opinion relied on by appellees.

This accident was caused solely by Mr. Wisotzkey’s negligence in recklessly driving past the stop sign and onto U.S. 90 with Mr. Bailey’s vehicle in very close proximity, and the awards based on Mr. Bailey’s negligence must be voided and set aside.

COMPENSATION AWARDS

Gulf Coast and Travelers’ major contention is that the testimony and evidence failed to show that Mr. Swift’s minor children were partially dependent on him.

Mr. Swift’s former wife, Shirley Leish-man, and the three children live in Philadelphia, Pennsylvania, the Swifts having been divorced in October of 1976. Shirley remarried in April, 1978.

Shirley said that her ex-husband "... sent money when he could; he sent them things on their birthdays and Christmas ...” She further stated that Mr. Swift’s support money varied, but that he paid “... between 75 and 100 (dollars) a month

Mr. Smith’s father, who resides in West Virginia, confirmed the fact that sporadic support payments were sent to Shirley and the children.

As the record contains this testimony, we cannot say that the trial judge was manifestly erroneous in finding the three Swift children partially dependent on their now deceased father and in requiring Travelers to pay the minimum benefit, $49.00 per week.

DECREE

For these reasons,

IT IS ORDERED:

(1) That there be judgment in favor of Bernard J. Bailey and State Farm Mutual Automobile Insurance Company and against Curtis Ingersoll, Sandra Swift Robinson, Carl B. Swift, as tutor for the minor children, Diana, Kathleen and Kevin Swift, and Travelers Insurance Company, dismissing all claims based on the tortious negligence of Mr. Bailey;

(2) That the workmen’s compensation awards to the Swift children are affirmed, as specified in the appealed-from judgment; and

(3) That the costs of this appeal are to be borne by Mr. Ingersoll, the Swift children, Travelers Insurance Company and Gulf Coast Contracting Services, Inc.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.


source: Caselaw Access Project

author: AUGUSTINE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Leroy WILLIAMS.
    No. KA-1334.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 30, 1984.
    Rehearing Denied June 26, 1984.
    Writ Denied Sept. 20, 1984.
    Harry F. Connick, Dist. Atty., Susan Scott Hunt, Asst. Dist. Atty., Orleans Parish, New Orleans, for plaintiff-appellee.
    Edward A. Haggerty, Jr., New Orleans, for defendant-appellant.
    Before BARRY, AUGUSTINE and CI-ACCIO, JJ.
   AUGUSTINE, Judge.

Defendant Leroy Williams was charged by bill of information with distribution of heroin, a violation of LSA-R.S. 40:966(A). Williams was arraigned and pleaded not guilty. Following trial of this matter, a twelve-member jury found the defendant guilty as charged. Williams was sentenced to serve the remainder of his natural life at hard labor without benefit of probation, parole or suspension of sentence. Williams now brings this appeal assigning two errors as grounds for reversal of his conviction.

FIRST ASSIGNMENT OF ERROR

Appellant contends that the trial court erred by not requiring the State to disclose the address of a confidential informant at the beginning of trial. Appellant also argues that the court committed error by not allowing him to demand this same information from the prosecutor in front of the jury-

These alleged errors occurred in the following context:

Prior to trial, it was understood by opposing counsel that the State’s case-in-ehief would tell of Williams’ sale of two “bags” of heroin to Agent Audis Wells of the federal Drug Enforcement Agency. The defendant knew, also, that a confidential informant who had been working for August Wells was present when Williams negotiated the sale at the intersection of Bar-onne and Melpomene Streets. Given this information, the defense moved for disclosure of the informant’s name and address under Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the leading case concerning disclosure of an informant’s identity.

The trial court found merit in the defendant’s motion and thus ordered the prosecutor to reveal the informant’s name and, if known by the State, the informant’s address. The prosecution subsequently named the informant but answered that it could not disclose his address because that information was not known by the District Attorney’s office. The informant’s address was known, however, to Agent Wells, who would later play a prominent role in the trial of this case.

Despite several further requests by the defense during the weeks before trial, the State did not divulge the C.I.’s address, apparently because the prosecutor in charge of the case did not have this information in his own file. As a consequence, the defense had not yet interviewed the informant as of the morning of trial. Nevertheless, the defendant proceeded to trial without objection. Immediately after the first witness had been sworn, however, defense counsel interrupted the proceedings as though on the verge of requesting a mistrial.

There followed an in camera conference, during which defense counsel formally complained that the State, by failing to reveal the informant’s address, had violated the pre-trial disclosure order. The trial judge explained that his former order required disclosure if the address was known by the State. Again, the prosecutor answered that he had no personal knowledge of the C.I.’s address. Defense counsel then requested permission to bring his demand and the prosecutor’s response into open court, before the jury. The trial judge emphatically denied this request, and advised defense counsel that:

“The D.E.A. agent will be on the stand. You may ask them the name if you would like. If they hesitate to give the address, I will order them to give the address. You’ll have enough time to instanter that subject for trial.” Tr. 21.

Counsel for the defendant objected to the court’s ruling, stating that he should be permitted to make his request before the jury to show that, despite the court’s previous order to disclose, the informant’s address was still unknown to the defense. With that, the in camera conference ended and the trial resumed — without objection by the defendant.

Several witnesses were called by the State, all of whom were law enforcement personnel. Of these, three testified that they personally witnessed the transaction between the defendant and Wells from an unmarked police vehicle parked some distance away. On cross-examination, however, none knew the address of the informant.

Finally, Agent Wells took the stand and testified in detail as to the sale of heroin by Williams. On cross-examination, defense counsel asked Wells for the informant’s address. The agent answered that the address was recorded in a file at his office. Defense counsel then stated before the jury:

I’m going to ask this witness to give me that information for this reason, your honor. I previously filed a pleading in this Court and had a ruling by the Court and I think I’m entitled to get that address so that I can have an instanter subpoena issued immediately for the appearance of this man.

The trial judge granted the request, and, after Wells concluded his testimony, ordered a recess to allow the defense to locate the informant and bring him to court. The C.I. was not to be found at his Gretna, Louisiana home, however, and after a time , the trial resumed, again, without objection from the defense. In actuality, there were no further proceedings — the State had rested with the conclusion of Well’s testimony and, following the recess, the defense did not to call any witnesses.

We find nothing in the above-cited facts to warrant reversal of the defendant’s conviction. Assuming, for the sake of argument, that the State did violate the court’s disclosure order by failing to reveal the C.I.’s address prior to trial, the defendant bypassed several avenues of recourse provided by Louisiana Code of Criminal Procedure Art. 729.5(A):

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.

Thus, under the above article, the defendant might have made a pre-trial motion for a continuance until the informant’s address was revealed. Instead, the appellant proceeded to trial. He therefore cannot be heard to complain that his inability to interview the C.I. hindered his preparation of the case.

Again, once the trial had begun, the defendant was entitled to a recess to allow the informant to be located and brought to court. This request was made and was granted. When the C.I. could not be found, however, the defendant might have requested a reasonable extension of the recess until the informant could be located; and if after a reasonable extension, the informant still could not be located, the defendant might have aborted the proceedings entirely by requesting a mistrial. Instead, the defendant bypassed all of these remedies and proceeded with the trial to verdict. Given that in every aspect of this ease, defense counsel skillfully applied a thorough knowledge of the law and facts, we must conclude that his decision to proceed with the trial without the informant was a considered choice. Having made this election, the defense thereby waived any later claim of prejudice and cannot seriously assert that the proceedings against him lacked fundamental fairness.

Finally, we find no merit whatsoever to the objection that the court did not allow appellant to demand the C.I.’s address from the prosecution in open court. The trial transcript reveals that appellant did in fact make this demand before the jury during Agent Wells’ testimony, and that the trial court responded by granting a recess.

Accordingly, we hold that the appellant has failed to show reversible error on the grounds alleged in this assignment.

SECOND ASSIGNMENT OF ERROR

Appellant also argues that the trial court committed reversible error in not allowing defense counsel to inquire of Agent Wells how much he had paid the informant over the course of the twelve narcotics cases in which they worked together.

This assignment of error lacks merit. Defense counsel was given wide latitude in questioning the agent about his relationship with the informant, and the defense was permitted to ask how much the informant was paid in this case. Trial judges are vested with great discretion to decide the scope and extent of cross-examination. State v. Coleman, 406 So.2d 563 (La.1981). Regarding the informant’s remuneration, the trial court was within its discretion to allow questioning only as to the case before the court.

ERROR PATENT

With regard to the defendant’s sentence, our independent review of the record for errors patent discloses that Williams was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. However, the applicable sentencing provision, LSA-R.S. 40:966(B)(1), does not authorize the denial of parole, but rather provides that “upon conviction [the defendant] shall be sentenced to life imprisonment at hard labor without benefit of probation, or suspension of sentence, ...”. (Emphasis added). Accordingly, the defendant’s sentence is hereby amended in accordance with the above statute. We find no other errors patent.

For the reasons assigned, the conviction is affirmed and the defendant’s sentence is amended as stated above, and, as amended, is affirmed.

AFFIRMED AND AMENDED.

      . Although the record before us does not show a return on the subpoena, defense counsel represented at oral argument (without contradiction by the State) that the informant could not be located at the address supplied by Agent Wells. The record also fails to disclose the length of the recess.


author: HALL, Judge.

text:
    STATE of Louisiana, Appellee, v. Brenda JOHNSON, Appellant.
    No. 16156-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.

      Nelson & Achee, Ltd. by Harry R. Nelson, Shreveport, for appellant.
    William R. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Richard Carney, Catherine M. Estopinal, Asst. Dist. Attys., Shreveport, for appellee.
    Before PRICE, HALL and NORRIS, JJ.
   HALL, Judge.

The defendant, Brenda Johnson, appeals her conviction by a jury of Theft of property valued at more than $100 and less than $500, LSA-R.S. 14:67, and her sentence to two years at hard labor.

On November 15, 1981, the defendant and three or four other women were seen entering the Piggly Wiggly Store on Greenwood Road in Shreveport. The women were seen taking items of meat from the meat counter and stuffing the meat in their coats. The total value of all the meat taken, which was discarded in the aisles of the store when the police arrived, was between $150 and $200. It was the state’s contention at trial that the defendant acted in concert wif^e °⅝ Pf*30118 ⅛ commit one crime of Pelony Theft The W re' turned a verdlct fmdmg the Cendant Suilty of Felony Theft as cha^ed'

The defendant on appeal assigns as error the following:

(1) The court erred in overruling the objection to testimony, except that which specifically deals directly with the defendant, Brenda D. Johnson, in permitting testimony as to the actions of others.
(2) The court erred in further overruling the objection to any testimony that in any way refers to anyone else other than directly to Brenda Johnson.
(3) The court erred in overruling the objection to produce photographs marked as S-l disclosing items of merchandise without foundation connecting the defendant, Brenda Johnson, with any items of merchandise shown therein.
(4) The court erred in overruling the objection to testimony of value by Howard White without laying foundation identifying any item as connected with Brenda Johnson, and a lack of foundation to establish basis for knowledge as to value.
(5) The district attorney committed reversible error and the court erred in permitting the use of photograph S-2 referring to items shown in exhibit marked S-2 as stolen items, it not having been established that any of these items had been stolen by Brenda Johnson.
(6) The court erred in overruling the objection to the leading question by the district attorney in referring to S-2 “are those items that you recovered that day from the people in the store?”, the witness having already testified that he himself did not recover these items as such.
(7) The district attorney committed reversible error after being instructed by the court not to use the terms “stolen” before the jury by using terminology and leading questions inquiring of Howard White “and does that picture fairly and accurately depict those items on the date of the crime?”, and by repeating such leading questions as to S-3, S-4 and S-5.
(8) The court erred in overruling objection to testimony pertaining to items in a shopping cart, there being no foundation connecting defendant, Brenda Johnson, with a shopping cart or items contained therein.
(9) The court erred in permitting testimony and use of photographs identified as S-6, S-7, S-8.
(10) The court erred in overruling objection to leading questions by the district attorney referred to in the transcript.
(11) The court erred in overruling objection to continued leading questions by the district attorney referred to in the transcript.
(12) The court erred in continuing to permit the use of the photographs S-l through S-9.
(13) The court erred in overruling the objection to the testimony as to value in the absence of proper foundation connecting any items to the defendant, Brenda Johnson.
(14) The court erred in overruling the objection to leading questions by the district attorney as follows: “Ms. Litton, the items that you were shown on the pictures, are those items that were recovered from the ladies that day?”.
(15) The court erred in overruling the objection to the introduction in evidence of the exhibits S-l through S-9.
(16) The court erred in overruling the objection to the showing of exhibits S-l through S-9 to the jury, there being no connection of any items to the defendant, Brenda Johnson, and it being prejudicial.
(17) The court erred in overruling the objections as heretofore enumerated, having the cumulative effect prejudicial to the rights of the defendant, Brenda Johnson, as evidenced by the findings of guilty; whereas, Howard White, the employee of Piggly Wiggly, and Officer Warren, who arrested the defendant, testified that Brenda Johnson was at the checkout line at the store at the time of her arrest, that when searched she did not have in her possession any items of merchandise referred to on the photographs and that Brenda Johnson did not run to the back of the store as testified by Mrs. Rosanna Litton. That for the overruling for the objections by the court in the admissibility of the prejudicial testimony the defendant, Brenda Johnson, would have been acquitted.
(18) The court erred in rendering sentence as set forth in the record.

Assignments of Error Nos. 1 and 2:

By these assignments of error the defendant argues that the trial court erred in permitting the state to introduce evidence of the actions of the other women who entered the Piggly Wiggly store. The defendant asserts that the actions of the other persons were irrelevant and not material to the issue of whether she was guilty of theft.

All evidence which is relevant to a material fact in issue, necessary to be known to explain a relevant fact, or which supports an inference raised by such a fact is admissible except as otherwise provided by the constitution of the United States or this state, by law or by rule of the supreme court. LSA-R.S. 15:435; State v. Ludwig, 423 So.2d 1073 (La.1982). Our law defines relevant evidence as that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. LSA-R.S. 15:441. Relevancy of evidence is determined by the purpose for which it is offered. LSA-R.S. 15:442. The trial court has wide discretion in determining the relevancy of evidence and its determination will not be overturned absent a clear abuse of discretion. State v. Allen, 440 So.2d 1330 (La.1983); State v. West, 419 So.2d 868 (La.1982); State v. Huizar, 414 So.2d 741 (La.1982). Further, error made by the trial court is not fatal unless the defendant demonstrates prejudice. State v. Allen, supra; State v. Humphrey, 412 So.2d 507 (La.1981).

The defendant herself did not take enough meat to be valued at over $100. In order to establish facts indicating a felony theft of property amounting to a value of more than $100 under LSA-R.S. 14:67, the state had the burden of showing that all the persons involved in the crime were acting in concert in the commission of the crime. The actions of the other persons were clearly relevant to the charged offense. The defendant has failed to show that the trial court abused its wide discretion in determining issues of relevancy. Therefore, these assignments of error are without merit.

Assignments of Error Nos. 3, 5, 9, 12, 15, and 16:

By these assignments, defendant asserts that the trial court erred in allowing into evidence photographs of the meat which was gathered after the arrest of the defendant.

A photograph becomes admissible when a witness has testified that it is a correct and accurate representation of what was personally observed by that witness. State v. Moore, 419 So.2d 963 (La.1982). The test of admissibility is whether the probative value of the photograph outweighs the possible prejudice which might result from its display to the jury. State v. Moore, supra; State v. Berain, 360 So.2d 822 (La.1978). Additionally, the trial court has considerable discretion in admitting photographs. The trial court’s ruling concerning the admission of photographs will not be disturbed in the absence of an abuse of that discretion. State v. Moore, supra; State v. Gallow, 338 So.2d 920 (La.1976); State v. Gipson, 271 So.2d 868 (La.1973).

The supreme court has consistently held that to admit demonstrative evidence at trial, the law requires that the object be identified. State v. Smith, 430 So.2d 31 (La.1983); State v. Moore, 419 So.2d 963 (La.1982); State v. Drew, 360 So.2d 500 (La.1978). This identification can be visual, that is, by testimony at trial that the object sought to be introduced into evidence is one related to the case. State v. Robertson, 358 So.2d 931 (La.1978). A sufficient foundation has been laid for the admission of demonstrative evidence if it has been established that it is more probable than not that the object is one connected with the case. State v. Smith, supra; State v. Sharp, 414 So.2d 752 (La.1982); State v. Davis, 411 So.2d 434 (La.1982).

Applying the applicable jurisprudence to the facts in the present case, the photographs of the meat were clearly relevant to the material issue of the defendant’s guilt. The fact that no particular item of meat was specifically connected to the defendant goes to the weight of the evidence. The evidence indicates that it is more probable than not that at least some items in the pictures were connected with the defendant, that is, taken by her. Additionally, should the state be able to prove that all the suspected persons were acting together, the cumulative nature of the evidence would be relevant to the defendant’s guilt. Therefore, these assignments of error are without merit.

Assignments of Error Nos. 6, 7, 10, 11, and 14:

By these assignments of error, defense counsel asserts that the trial court erred in overruling his objection to leading questions by the district attorney. The supreme court has held that although counsel should not be permitted to mold the witness’ testimony, a verdict should not be reversed in the absence of a clear abuse calculated to prejudice the accused’s rights. State v. Vanderhoff, 415 So.2d 190 (La.1982); State v. Swift, 363 So.2d 499 (La.1978); State v. Sheppard, 350 So.2d 615 (La.1977).

From the record it appears the district attorney did lead the witnesses in certain instances; however, it does not appear that these questions were calculated to prejudice the defendant’s rights. We find no abuse of discretion in the trial court’s rulings. Therefore, these assignments of error are without merit.

Assignments of Error Nos. ⅛ and 13:

By these assignments of error defendant asserts that the state failed to establish a connection between any item of meat taken and the defendant. In sum, defendant asserts that there was a lack of proper foundation for testimony as to value of the meat taken when no one item was connected to the defendant.

Howard White, employed by the store as a sacker, testified that he helped in determining the value of the items in question. He also stated that in viewing exhibit S — 1, a picture of all the meat, that it fairly and accurately showed the items that were recovered that day. Ms. Litton, head cashier at the store, testified that she made a list of all the items on the table shown in S-l. Ms. Litton also testified that she added up the value of the meat from the price tags.

In order to find the defendant guilty of felony theft of property of a value of over $100, the state had the burden of proving that the defendant acted along with others in the commission of the crime. The state was attempting to prove that the defendant was acting in concert with others in attempting to shoplift meat from the Piggly Wiggly store. Therefore, the fact that no particular item of meat was connected to the defendant merely goes to the weight of the evidence. It is well settled that a witness can testify as to facts within his knowledge. LSA-R.S. 15:463. The two witnesses were merely testifying as to the cumulative value of the meat which was recovered. The value of this meat was clearly a fact within their knowledge. Whether any particular item or all the items were connected to the defendant goes to the ultimate issue of guilt to be decided by the factfinder. Therefore, these assignments of error are without merit.

Assignment of Error No. 8:

The defendant asserts by this assignment that the trial court erred in overruling its objection to testimony pertaining to items in a shopping cart in that there was no foundation connecting those items with the defendant. Howard White testified concerning a photograph of several grocery items in a shopping cart.

The defendant asserts that there is a lack of foundation connecting those items to the defendant. However, the record reveals that White testified he had seen the defendant place those items in a shopping cart. It therefore appears that there was a sufficient connection between those items and the defendant. Therefore, this assignment of error is without merit.

Assignment of Error No. 17:

By this assignment, the defendant asserts that the trial court erred in overruling the objections previously argued in other assignments of error and that the cumulative effect was prejudicial to the rights of the defendant. Having determined in consideration of the other assignments of error that there was no prejudicial error in the rulings of the trial court, it follows that the cumulative effect assignment does not have merit.

Although not clearly specified, this assignment when read with the argument in brief, also raises a Jackson v. Virginia contention of insufficiency of the evidence.

In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under that standard, the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proven beyond a reasonable doubt.

As defined by LSA-R.S. 14:67, theft consists of three elements: (a) the misappropriation or taking of anything of value which belongs to another, (b) either without the consent of the other ... or by means of fraudulent conduct, (c) with intent to deprive the other permanently of the object of the taking or misappropriation. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential. An additional element under LSA-R.S. 14:67 is proof of the value of the object or objects taken in order to determine the grade of the offense.

Under LSA-R.S. 14:24, all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aide and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

The sacker and the head cashier both testified that they saw defendant and three or four other women come into the store together. They all had on coats. Defendant and one of the women got a shopping cart. They all went to the back of the store to the meat counter. Both witnesses testified they saw the women, including specifically the defendant, stuffing steaks, hams, and other meat items in their coats. Defendant and the woman she was with came to the front of the store, leaving the cart which had a few miscellaneous items in it at the rear of the store.

The head cashier had called the police when the sacker first observed the shoplifting operations going on. When the police got to the store, the women, with the possible exception of defendant, ran throughout the store, discarding meat in the aisles. Defendant and her friend were arrested. The others were not apprehended. Meat valued in excess of $100 was recovered from the aisles of the store.

The testimony is in conflict concerning defendant’s actions at the time the police arrived. The sacker testified defendant was at the front of the store near the checkout counter with no shopping cart. When the officers came in the other women ran but defendant stayed where she was until an officer got her. The head cashier testified that defendant and the other women were going around the counter to leave the store when the police got there, that they all ran, and that defendant disposed of at least one ham in the candy aisle. A police officer testified that when she arrived defendant was approaching the checkout counter, that she detained defendant at the checkout counter while another officer ran after defendant’s friend, and that she searched defendant and didn’t find anything.

Defendant denied that she entered the store with anybody else, although she admitted that she and her friend drove to the store together. Defendant said she did not get a shopping cart, said she picked up a few items which she had in her hand at the checkout counter, and said that she didn’t have on a coat. Her credibility was substantially impeached by her admission of several previous shoplifting convictions.

In spite of the conflicting versions of defendant’s actions after the police got to the store, there is ample credible evidence upon which a reasonable juror could have concluded beyond a reasonable doubt that defendant, together with others with whom she was acting in concert, took over $100 in meat from the meat counter of the store with the specific intent of permanently depriving the owner of the meat. The two store employees saw her come in the store with the other women, saw the women, including defendant, taking meat from the meat counter and stuffing it in their coats, saw defendant and the others go to the front of the store leaving their shopping cart with a few items at the rear of the store, and saw the women with the possible exception of defendant running and discarding the meat when the police arrived. Meat valued in excess of $100 was recovered from the aisles of the store.

The only reasonable inference from these facts is that all the women came into the store together with the intent of committing a theft of meat from the meat counter as a joint and common enterprise, and that each was a principal with the others in the commission of the crime of theft of property valued at over $100. LSA-R.S. 14:24.

This insufficiency of evidence argument is without merit.

Assignment of Error No. 18:

By this assignment of error, the defendant asserts that her sentence of two years at hard labor is excessive and unduly harsh.

It is well settled that the sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Hammonds, 434 So.2d 452 (La.App.2d Cir.1983); State v. Brooks, 431 So.2d 865 (La.App.2d Cir.1983); State v. Square, 433 So.2d 104 (La.1983).

The sentencing guidelines of LSA-C.Cr.P. Art. 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Tully, 430 So.2d 124 (La.App.2d Cir.1983); State v. Sepulvado, 367 So.2d 762 (La.1979). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in Art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Hammonds, supra; State v. Cunningham, 431 So.2d 854 (La.App.2d Cir.1983); State v. Smith, 433 So.2d 688 (La.1983).

It is pointed out in brief that defendant is a 21-year-old unwed mother of five, and dropped out of high school at 16. It is argued that the trial judge included erroneous reasons in arriving at the sentence in that he considered the defendant’s level of education, her economic status, and her number of children born out of wedlock.

The trial court’s consideration of the defendant’s personal history and background was not only proper, but is required. LSA-C.Cr.P. Art. 894.1; State v. Jackson, 360 So.2d 842 (La.1978). Important elements in considering the sentence are the defendant’s personal history such as age, family ties, marital status, health, and employment record. The trial court noted, from the pre-sentence investigation report, that as far back as the defendant could remember her parents had not been employed and she had never been employed. She did not know who was the father of any of her children. The court went through the 894.1 factors. The court particularly noted the defendant’s lengthy history of criminal conduct which included five previous shoplifting convictions and several pending charges. The defendant had not responded favorably to previous probationary treatment. The court noted the hardship to the children, but felt defendant’s criminal conduct would probably reoccur.

Under the circumstances, we find no manifest abuse of discretion on the part of the trial court in imposing the maximum two-year hard labor sentence.

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

Affirmed.


author: PRICE, Judge.

text:
    WINN STATE BANK & TRUST COMPANY, Plaintiff-Appellant v. Paul BROWNING, et al., Defendants-Appellees.
    No. 16254-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 6, 1984.

      William M. Russell, III, Winnfield, for plaintiff-appellant.
    Culpepper, Teat, Caldwell & Avery by James D. Caldwell, Jonesboro, for defendants-appellees.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   PRICE, Judge.

Plaintiff, Winn State Bank and Trust Company, appeals a judgment in favor of defendant on his reconventional demand in an action originally instituted by plaintiff upon a promissory note executed by defendants, Paul Browning and Kevin Browning.

The record reveals that Paul Browning was in the logging business under the name “Browning Wood Haulers” in Winn Parish, Louisiana. In 1979, Browning obtained a contract with Willamette Industries to haul logs. In order to service the contract it was necessary that Browning purchase additional equipment. Paul Browning, accompanied by his son, Kevin Browning, went to the plaintiff-bank to obtain a loan so as to enable him to purchase the needed equipment. Kevin Browning introduced his father to Mr. Dan Bowker, president of the plaintiff-bank.

During this initial meeting, Mr. Bowker and Paul Browning discussed the preliminary details of the loan. Mr. Browning was advised that collateral was necessary to secure the loan and that accident and health insurance (hereinafter referred to as disability insurance) and life insurance were available. The parties briefly discussed Paul Browning’s state of health and the possibility that he would not be able to qualify for disability insurance.

Paul Browning used his home and surrounding acreage as collateral to secure the loan. Mr. Browning and his wife, Gloria Browning, signed a mortgage on the property for this purpose a few days after this meeting.

On June 5, 1979, Paul Browning again met with Dan Bowker to finalize the loan and to sign the promissory note. Kevin Browning was not present at this meeting. Mr. Bowker referred Mr. Browning to Mr. Cooper Little for final processing of the loan. Mr. Little drew up the note and obtained Mr. Browning’s signature. Mr. Browning was given a copy of this note. The loan proceeds in the amount of twenty-two thousand dollars ($22,000) were placed into a checking account at that time. Kevin Browning later signed this note and an application for disability insurance around June 20, 1979.

In November 1979, Mr. Browning became ill and was subsequently hospitalized with a rather serious condition. When defendant later made inquiries at the bank as to disability insurance to cover the payments due under the loan, he was advised that such insurance did not exist. On August 26, 1981, plaintiff-bank filed suit on the promissory note seeking to recover the unpaid balance on the loan in the amount of twenty-three thousand fifty-seven and 38/100 dollars ($23,057.38), stating that the installment due on May 15, 1981 had not been paid. Defendants, Paul and Kevin Browning, filed a reconventional demand claiming that they were damaged by the plaintiff-bank’s failure to secure disability insurance for Paul Browning.

At the trial on the merits, the parties stipulated as to the genuineness of signatures and the balance due on the note but the testimony of the parties as to the existence of disability insurance was quite conflicting.

Paul Browning testified that at the initial meeting, he advised Mr. Bowker that he had experienced medical problems with high blood pressure in the past. Mr. Bowker told him that there may be some problem in obtaining the disability insurance. However, regarding the later meeting when the note was actually confected, Mr. Browning testified that Mr. Little advised him that he should get as much insurance as possible and that there would be no problem in obtaining disability insurance. Mr. Browning testified that he then told Mr. Little that he wanted the insurance if he could get it. Mr. Browning stated that he was not aware that his son, Kevin Browning, was required by the bank to sign the note.

Mr. Browning stated that in November 1979, he became ill and was later hospitalized. Browning testified that he was diagnosed as having blastomycosis, a woods fungus. Browning underwent surgery and a substantial portion of his left lung was removed. Browning stated he remained in the hospital for approixmately thirty-eight days and underwent chemotherapy treatments at the hospital as an outpatient for approximately thirty days after his release. Mr. Browning testified that he was not aware that he did not have disability insurance until his wife made inquiries at the bank after the onset of his illness and subsequent hospitalization.

At the trial there was absolutely no expert medical testimony as to the nature of Mr. Browning’s illness and resulting alleged disability.

Mr. Bowker testified that Paul and Kevin Browning were aware from the preliminary discussions that Kevin was intended to be a co-signer on the note. Mr. Bowker stated that he was under the impression that Paul and Kevin Browning were going into business together and he felt that Kevin would be the strength behind the note. Mr. Bowker stated that due to Paul Browning’s previous health problems, he did not feel disability insurance could be obtained for him and therefore made the decision to attempt to place the insurance coverage upon Kevin. He further testified that he instructed Mr. Little that both Kevin and Paul Browning were to sign the note and that the disability insurance was to be placed on Kevin Browning.

Mr. Cooper Little, former vice-president of the plaintiff-bank, testified that Mr. Bowker gave him instructions as to how to properly draw up the note in the presence of Mr. Browning. Little stated that he was instructed that both parties were to sign the note and that the disability insurance was to be placed upon Kevin Browning.

Kevin Browning testified that he simply accompanied his father to the bank in order to introduce him to Mr. Bowker. Kevin stated he was present at this initial meeting and that he was not questioned as to his health, credit history, or collateral for the loan nor was he informed that he was required to sign the loan. Kevin testified that sometime later he signed papers at the bank in connection with another loan but was not aware he had signed the note in dispute and an application for insurance.

It was established that the bank did receive commissions on the insurance purchased in connections with loans.

The note in the instant case is in a standard printed form payable in eighty-four installments commencing on July 15, 1979. The note shows that a premium in the amount of two thousand five hundred eighty-five and 31/100 dollars ($2,585.31) was charged for accident and health insurance. The note contains an option line to request such insurance but this line was not signed by either party. Paul Browning signed the note on line 1 with Kevin’s signature on line 2. The note provides that “[u]nless other wise indicated, credit life insurance and credit accident and health insurance, if provided, insures only the maker signing on line (1).”

The evidence shows that Mr. Browning received a letter from the bank dated March 30, 1981. The letter stated in pertinent part that the bank had failed to have defendant sign the option line for accident and health insurance. In order to have the insurance to remain in force, defendant was to sign the letter and return it within a forty-five day time limit. Mr. Browning signed the letter indicating that he desired the insurance and it was promptly returned to the bank. The testimony established that this letter was sent in compliance with a FDIC examination wherein it was discovered that certain notes were lacking an option line for insurance or a signature on this option line if one was contained in the note. The bank employees were instructed to briefly examine the face of the notes for this discrepancy and the files attached to the notes were not examined. As Mr. Browning had signed the note on the line 1 but there was no signature on the insurance option line, the note appeared to be deficient and the letter was routinely sent to him in conformance with the FDIC requirements.

The trial court found that Paul Browning was covered by the disability insurance. The court noted that a premium for the insurance was charged on the face of the note and was financed as part of the loan. The note was signed on line 1 by Paul Browning and provided that the insurance would insure only the maker signing on line 1 unless otherwise indicated. Paul Browning owned the collateral which was mortgaged to secure the loan and although Kevin Browning did not sign the note until a later date, Mr. Browning received the loan proceeds on June 5, 1979.

Having determined that the defendant, Paul Browning, was entitled to disability-insurance under the terms of the note, the court concluded that plaintiff-bank was liable for all damages sustained by defendant as a result of plaintiff-bank’s failure to obtain such insurance.

In ascertaining the amount of damages, the court noted that the lack of expert testimony made a determination of the length of Mr. Browning’s disability difficult. Examining the defendant’s testimony, the court noted that as a large portion of his left lung was removed, Paul Browning was “obviously seriously ill.” The court stated that “Hogging is commonly done in dry weather and great clouds of dust raised by such operations ... are obvious to any traveler in Winn Parish. Dust prevents Browning from working. Thus, I find that Browning was totally unable to return to the logging business at any time since he became ill. The evidence leaves no doubt that logging was his occupation at the time of the loan and would have been his occupation during the term of the loan.” The court then found that the damage sustained by Paul Browning was the balance due on the note.

The only issues before this court on appeal are:

(1) Whether the trial court was correct in finding that Paul Browning was entitled to coverage by disability insurance; and
(2) Whether the trial court was correct in finding that the damages sustained by defendant were the balance due upon the note, that is, he would be disabled for the remainder of the loan term.

Upon a review of the record, it is the opinion of this court that the trial court was correct in finding that Paul Browning should have had disability insurance coverage.

Although the testimony is conflicting, it appears that when Paul Browning signed the note on June 5, 1979, he was under the impression that he would have disability insurance.

In construing contracts, it is well established that "... the contract itself is the best evidence of the relationship existing between the parties and the true intention of the parties is to be sought and determined by the language of the contract when the wording is clear.” Guillory v. Grain Dealers Mutual Insurance Co., 203 So.2d 762 (La.App. 3d Cir.1967) at page 763. It is also well recognized that a contract “... is to be most strictly construed against the party who prepared it.” Lawson v. Martin Timber Company, 238 La. 467, 115 So.2d 821 (1959) at page 828 and numerous citations therein.

The face of the note clearly supports a finding that Browning should have been the insured party. Paul Browning signed the note on line 1. The note specifically stipulated that the accident and health insurance would insure only the maker signing on line 1 unless otherwise indicated. There were no other provisions contained in the note to indicate that Paul Browning was not the insured. A premium was charged for the insurance and was financed as part of the loan. The content of the note left no doubt that Paul Browning was intended to be the insured. This conclusion is further supported by the letter which was sent to the defendant by the plaintiff-bank in 1981 to comply with the FDIC examination.

In a very similar recent case, this court noted the following burden upon a party seeking to recover losses arising from the failure of an insurance agent to obtain insurance coverage:

(1) an undertaking or agreement by the insurance agent to procure insurance;
(2) failure of the agent to use reasonable diligence in attempting to place the insurance and failure to notify the client promptly if he has failed to obtain the insurance; and
(3) the actions of the agent warranted an assumption by the client that he was properly insured.
Bonner v. Bank of Coushatta, 445 So.2d 84 (La.App. 2d Cir.1984) at p. 87 and numerous citations therein. See also Boothe v. American Assurance Co., 327 So.2d 477 (La.App. 1st Cir.1976) and American Bank and Trust Co. of Houma v. Deroche, 357 So.2d 1176 (La.App. 1st Cir.1978).

In the instant case, as in Bonner v. Bank of Coushatta, supra, the note clearly contained an agreement between the plaintiff-bank and the defendant, Paul Browning, that he would have disability insurance. It is clear from the evidence that Mr. Bowker did not even attempt to place the insurance upon Paul Browning. A premium was paid for the insurance and the note, a copy of which Mr. Browning received, indicated that he was in fact insured. Thus, defendant met his burden of proof regarding the issue of insurance coverage.

However, it is not sufficient that Paul Browning merely show that the plaintiff-bank breached its duty to obtain disability insurance on his behalf. In order to recover, defendant must prove that he was damaged by the failure of the bank to secure such insurance. See American Bank and Trust Co. of Houma v. Deroche, supra.

The trial court found that Browning was seriously ill and totally unable to return to the logging business. The court then awarded damages in the amount of the balance remaining due on the promissory note.

In order to prove that the failure of the plaintiff-bank to obtain insurance damaged him, it was incumbent upon defendant to prove two essential elements. First, the likely content of the policy which should have been issued in favor of defendant and the definition of disability contained therein, and second, that defendant, Paul Browning, is disabled as defined by the policy and will continue to be so disabled for the remainder of the loan term.

At trial, no evidence was introduced as to the likely content of the insurance policy which should have been issued to defendant. It is obvious why the defendant must prove the likely content of the policy and the definition of disability therein. It is well known that there is no standard definition of disability. Rather, the definition of disability can range from the inability to perform one specific occupation to the inability to perform any occupation to which the claimant is reasonably suited by education, training, or experience. In the absence of such evidence, it would be engaging in pure speculation for this court to determine that Mr. Browning was “disabled” under the terms of his particular policy.

Mr. Browning could have easily met this burden of proof by simply issuing a subpoena to the bank or to the insurance company the bank normally deals with, or both, for a copy of the standard policy.

Assuming that defendant had proven the likely content of the policy, the record does not contain sufficient evidence as to defendant’s alleged disability.

While the record reveals that defendant was treated by several physicians for his illness, none of these physicians were called to testify on behalf of defendant. Thus, there was no expert medical testimony regarding Mr. Browning’s illness and alleged disability.

The sole evidence presented at trial as to the illness and resulting alleged disability was the testimony of defendant, Paul Browning. Browning testified that he was diagnosed as having blastomycosis which necessitated removal of a substantial portion of his left lung.

In essence, defendant’s testimony was that he has not been able to work in the logging business since the onset of his illness as the dust aggravates his condition. Although this testimony may be sufficient to prove a disability, since the likely content of the policy was not proven, it is impossible to ascertain from the record whether this illness would have come within the confines of this policy. Furthermore, this testimony does not establish that Browning will be unable to return to the logging business at a future date. Finally, the record established that Mr. Browning had engaged in various occupations in the past and there is no evidence as to whether he will be unable to return to one of these former occupations.

La.C.C.P. Art. 2164 provides that an "... appellate court shall render any judgment which is just, legal and proper upon the record on appeal.” It is well settled that an appellate court is empowered under this article to remand a ease to the trial court for the taking of additional evidence where it is necessary to reach a just decision and to prevent a miscarriage of justice. See Succession of Brice, 390 So.2d 905 (La.App. 2d Cir.1980), Peterson v. Herndon, 235 So.2d 178 (La.App. 2d Cir.1970), McCullough v. Hart, 424 So.2d 531 (La.App. 5th Cir.1982), Guillott v. Guillott, 326 So.2d 551 (La.App. 3d Cir. 1976), Salley Grocer Co. v. Hartford Accident & Indem. Co., 223 So.2d 5 (La.App. 2d Cir.1968), Hamilton v. Hamilton, 258 So.2d 661 (La.App. 3d Cir.1972), Herbert v. Travelers Indemnity Co., 255 La. 645, 232 So.2d 463 (1970), and Emery v. Cabral, 400 So.2d 340 (La.App. 4th Cir.1981).

“Although a court should always remand a case whenever the nature and extent of the proceedings dictate such a course ... whether or not any particular case should be remanded is a matter which is vested largely within that' court’s discretion and such power to remand should be exercised only according to the peculiar circumstances presented in each individual case.”
Jones v. LeDay, 373 So.2d 787 (La.App. 3d Cir.1979) at p. 789, and cases cited therein.

However, while the appellate court is empowered to remand a case for the introduction of additional evidence, this procedure must be sparingly exercised. Jones v. LeDay, supra, White v. Johns-Manville Sales Corp., 416 So.2d 327 (La.App. 5th Cir.1982), McKinney v. Levy, 212 So.2d 279 (La.App. 3d Cir.1968), Von Cannon v. State, Department of Highways, 306 So.2d 437 (La.App. 3d Cir.1975) and numerous citations therein. The reason behind a party’s failure to produce available evidence material to a proper decision is not determinative of whether the power to remand shall be exercised. See Arkansas Louisiana Gas Co. v. Morehouse Realty Co., 126 So.2d 830 (La.App. 2d Cir.1961), Bodin v. Bodin, 392 So.2d 759 (La.App. 3d Cir.1980) and numerous citations therein.

In the instant case, the record is deficient as to the likely content of the insurance policy and definition of disability therein which should have been issued in favor of defendant, Paul Browning. Further, the record does not contain sufficient expert evidence as to defendant’s illness and alleged resulting disability. We find that this matter cannot be properly resolved without additional evidence on these particular issues.

For these reasons, the judgment appealed from is reversed and set aside and it is now ordered that this matter be remanded to the trial court for further proceedings consistent with law and the views expressed above. The costs of this appeal are assessed equally between the plaintiff, Winn State Bank and Trust Company, and defendants, Paul and Kevin Browning.

REVERSED AND REMANDED.


author: GULOTTA, Judge. BARRY, Judge,

text:
    Charles Joseph CERTAIN v. EQUITABLE EQUIPMENT COMPANY and Allen Bradley Company.
    No. 13150.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 1984.
    Rehearings Denied July 24, 1984.
    Writ Denied Nov. 9, 1984.

      Orlando G. Bendana, Wayne H. Carlton, Jr., New Orleans, for appellant.
    R.K. Christovich, New Orleans, for ap-pellees.
    Wayne J. Fontana, New Orleans, for in-tervenor.
    Before GULOTTA, GARRISON, BARRY, BYRNES and WARD, JJ.
   GULOTTA, Judge.

Plaintiff, injured in an elevator accident arising out of and in the course of his. employment, appeals from the dismissal of his tort suit against the elevator owners on exceptions of no right and no cause of action. In maintaining the exceptions, the trial judge concluded that plaintiff’s exclusive remedy was in workers’ compensation and that defendants, therefore, were immune from tort liability. We affirm.

Charles J. Certain, a laborer employed by Prestressed Concrete Products Company, Inc. (Prestressed), which manufactures concrete construction pilings and components, was injured at his employer’s plant on November 6, 1976, when the “elevator” or mechanized work platform on which he was standing fell to the ground. The elevator was owned by Mandeville Properties, a joint venture of defendants Brown & Root, Inc. (Brown & Root) T.L. James & Company, Inc. (T.L. James) and Raymond International, Inc. (Raymond), and was leased to Prestressed. The three defendants were also the sole stockholders of Prestressed, and used Prestressed’s concrete components in the construction of bridges and highways.

Plaintiff’s suit is based on negligence, products liability, and strict liability under LSA-C.C. Arts. 2317 and 2322. Plaintiff asserts that his injury was caused by the defective and dangerous design and construction of the elevator, and defendants’ failure to warn of the defects.

In exceptions of no cause and no right of action, defendants claimed they were immune from tort liability to plaintiff as the sole stockholders of Prestressed, and as plaintiffs statutory employer. The exceptions were referred to the merits and maintained after trial. In written reasons, the trial judge characterized the relationship between the parties as one bf “a stockholder who is an employer of an individual”, and concluded that plaintiff’s ease against defendants must therefore be dismissed.

Appealing, plaintiff contends that defendants cannot invoke the tort immunity of LSA-R.S. 23:1032 as “principals” or “statutory employers” of plaintiff since the evidence did not establish that he was injured while doing work that is part of defendants’ “trade, business or occupation”. Plaintiff further argues that defendants are not immune as “stockholders” of Pre-stressed since they were not engaged in the “normal course and scope” of their employment at the time of the injury. Certain claims his immediate employer Pre-stressed, a separate corporate entity from defendants, had exclusive use of the equipment and plant leased from Mandeville, (owned by defendants), and was simply acting as a fabricator and vendor of concrete parts for defendants’ use in building bridges. We disagree.

PRINCIPAL OR STATUTORY EMPLOYER

LSA-R.S. 23:1032 provides that an action in worker’s compensation shall be the ex-elusive remedy of an injured employee against any “principal”. The statute defines “principal” as “... any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.”

A principal is considered the employer of a contractor’s employee when that employee is engaged in work that is part of the principal’s regular business. Barnes v. Sun Oil Co., 362 So.2d 761 (La.1978); Fontenot v. Andrus Homes, Inc., 391 So.2d 42 (La.App. 3rd Cir.1980). This “statutory employment” consists of two essential elements: 1) the “work” must be part of the principal’s “trade, business or occupation”, and 2) the principal must have been engaged in that trade, business or occupation at the time of the injury. Lewis v. Exxon Corp., 441 So.2d 192 (La.1981), on rehearing.

Defendants’ tort immunity in the instant case as a “principal” or “statutory employer” under LSA-R.S. 23:1032, therefore, requires a finding that plaintiff’s work at Prestressed is part of defendants’ regular trade, business or occupation. This issue is a factual question. See Lewis v. Exxon Corp., supra; Dixon v. Tugwell, 409 So.2d 343 (La.App. 1st Cir.1982); Sisk v. Insurance Co. of North America, 356 So.2d 1109 (La.App. 2nd Cir.1978).

The elevator involved in plaintiffs accident was designed by Raymond Concrete Pile Co. (now Raymond International) and was originally operated by Louisiana Bridge Company (a joint venture composed of defendants Brown & Root, T.L. James and Raymond) in the fabrication of concrete pilings for its own use in constructing the Lake Pontchartrain Causeway in the 1950’s.

Louisiana Bridge Company thereafter leased its plant and equipment to Pre-stressed Concrete Company, a corporation wholly owned by Brown & Root, T.L. James, and Raymond International as equal shareholders. Mandeville Properties, the successor to Louisiana Bridge Company and likewise owned by defendants, continued to lease the land and equipment to Prestressed. At the time of plaintiff's accident, Prestressed had “two major contracts” for fabrication and delivery of concrete bridge components for use by defendants in construction projects in Louisiana and Alabama. One construction project was a causeway over Mobile Bay, and the other was the Louisiana 1-55 elevated highway.

Although Prestressed daily maintained and operated the elevator and plant, defendants received dividends from the company as its sole stockholders, and held periodic board meetings. Occasionally, tours of the Prestressed plant were conducted for defendants’ prospective clients and visitors.

Prestressed, owned solely and entirely by the three defendants, fabricated concrete components that were an essential and integral part of defendants’ bridge and roadway construction business. Certain, a Pre-stressed employee, was injured while fabricating components for use in defendants’ two construction contracts.

This evidence considered, we conclude that plaintiff’s employment was part of defendants’ business, trade or occupation, and that defendants are plaintiff’s statutory employer.

In so holding, we reject plaintiff’s argument that the relationship between defendants and Prestressed is one of vendor-vendee, not principal-contractor. According to plaintiff, defendants only leased the elevator and plant to Prestressed and purchased components from the company, but did not engage, as a usual and customary business practice, in Prestressed’s activity as a manufacturer of concrete components.

Where an employee is injured when undertaking work that is part of the trade, business or occupation of the principal, the mere fact that elements of sale are present in the relationship is not fatal to a finding of statutory employment. Hart v. Richardson, 272 So.2d 316 (La.1973). Furthermore, although defendants and Pre-stressed may be lessor and lessee, they are additionally principal and contractor because defendants have undertaken to perform part of their trade or business of constructing bridges by contracting with their lessee to fabricate and deliver essential construction components. See Schmolke v. Krauss Company, 217 So.2d 789 (La.App. 4th Cir.1969); Malone and Johnson, 14 La. Civil Law Treatise: Workers’ Compensation, Second Edition, Sections 123 and 125.

In Gray v. Louisiana Power and Light Company, 247 So.2d 137 (La.App. 4th Cir.1971), writ refused 259 La. 59, 249 So.2d 202 (1971), an electrical utility company that had contracted with Prestressed for the construction of foundations for towers supporting overhead transmission lines was held to be a “statutory employer” of an injured Prestressed employee, where the utility was in the business of manufacturing and producing electricity and the means to transmit it to its users. The facts in the instant case are even more compelling than those in Gray, supra, for application of the tort immunity afforded a “principal” under LSA-R.S. 23:1032.

Under the circumstances, we find no error in the trial judge’s conclusion that these defendants are immune from tort liability to plaintiff as a principal.

STOCKHOLDER IMMUNITY

Plaintiff contends, however, that defendants, though stockholders of his immediate employer Prestressed, cannot avail themselves of this statutory immunity since they were not engaged at the time of his injury in the “normal course and scope” of their employment. According to Certain, there is no evidence that any of the defendants customarily constructed the concrete pilings used in building bridges, or that they operated, supervised, or otherwise played any part in Prestressed’s actual construction work.

In addition to providing tort immunity to an “employer” or any “principal” of an injured worker, LSA-R.S. 23:1032 further provides that an action in workers’ compensation shall be the exclusive remedy of the plaintiff-employee against “any ... stockholder ... of such employer or principal, for said injury.” This broad language is limited by the final paragraph of the statute, however, which further states that the immunity from civil liability “shall not extend to ... any ... stockholder ... who is not engaged at the time of the injury in the normal course and scope of his employment.”

LSA-R.S. 23:1032, written in the disjunctive, affords civil immunity from suits by an injured worker to his “employer, or any principal or any ... stockholder ... of such employer or principal_” [Emphasis ours]. Defendants in the instant case are in the unique position of being both plaintiff’s “principal”, as well as “stockholders” of plaintiff’s immediate employer.

Although we have concluded that defendants have tort immunity as a “principal”, we now address the issue of stockholder immunity because plaintiff claims tort liability attaches to defendants as stockholders not engaged at the time of the injury in the normal course and scope of their employment.

As stated in our prior discussion of statutory employment, the manufacture of concrete components by Prestressed is an in-tregral part of defendant’s trade, business or occupation as bridge builders. During the 1950’s, defendants manufactured the components for use in their Lake Pontchartrain Causeway construction project. The later incorporation of Prestressed with defendants as its sole stockholders did not change the “course and scope” of their employment.

At the time of plaintiff’s accident, defendants were still engaged in the construction of bridges and the fabrication of components used in them, albeit through the corporate entity of Prestressed as well as their joint venture. Under these circumstances, it is clear that the defendant-stockholders were engaged in the normal course and scope of their employment when plaintiff was injured, and are entitled to the “stockholder” immunity afforded by LSA-R.S. 23:1032.

The final paragraph of LSA-R.S. 23:1032, which requires that the stockholder be engaged in the “normal course and scope of his employment” at the time of the injury, is obviously a necessary limitation on the broad language of the first paragraph of the same statute, which affords civil immunity to “any ... stockholder .. of ... [the] employer or principal”. For example, the statutory immunity would not apply to every private investor who owns shares in a major corporation and injuries a corporate employee in a automobile collison with the employee’s delivery truck on company business. The investor, who has unrelated employment, could not raise his stock ownership as a shield to the injured employee’s tort action against him, since the investor was not engaged in the normal course and scope of the corporation’s employment at the time of the accident.

The situation now before us is different from this hypothetical example, however, since the defendant-stockholders were engaged in the normal course and scope of their employment at the time of the injury. The “stockholder” immunity of LSA-R.S. 23:1032 clearly applies to them.

DUAL CAPACITY

We further conclude the trial judge properly dismissed plaintiff’s damage suit, whether it be viewed as one in negligence, products liability or strict liability under LSA-C.C. Art. 2317 or 2322.

In Hebert v. Gulf States Utilities Co., 369 So.2d 1104 (La.App. 1st Cir.1979), cited by the trial judge, the First Circuit squarely confronted the issue whether an employee, who is injured in the course and scope of his employment on property owned by the statutory employer, may sue the landowner-statutory employer in tort for breach of a duty owed the employee. The Hebert court stated that such allegations of fault were essentially a claim of failure to furnish the employee a safe place to work, and held that the landowner, pursuant to LSA-R.S. 23:1032 and 1061, was immune from tort liability to his statutory employee. The court concluded that the “dual capacity doctrine” (whereby the employee sought liability against the defendant in his capacity as landowner but not his capacity as employer) was not viable in Louisiana.

Similarly, the “dual capacity” argument has been rejected in “products liability” actions by employees against their direct or statutory employers. An allegation of a work-related injury from equipment improperly designed and constructed by the principal does not state a cause of action against such a defendant who is shielded from tort liability to the employee by the workers’ compensation statute. See Tomasich v. United States Fidelity and Guaranty Co., 415 So.2d 1002 (La.App. 4th Cir.1982); Smith v. AMF Tuboscope, Inc., 442 So.2d 679 (La.App. 1st Cir.1983).

Citing Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1978), plaintiff further contends, however, that the elevator involved is a “building”, within the meaning of LSA-C.C. Art. 2322, and that his injury resulting from “ruin” in its original design and construction makes the defendant-owners “strictly” liable. Although we do not quarrel with the Olsen decision, it does not afford plaintiff with a right of action against his statutory employer in the instant case.

The Supreme Court in Olsen construed LSA-C.C. Art. 2322 in the context of an owner’s strict liability to a third person injured by a building defect, but did not address the issue whether an owner-statutory employer can be held strictly liable under this codal article to his injured employee. Plaintiff’s reliance on Olsen is therefore misplaced.

Significantly, language in Olsen indicates that LSA-C.C. Art. 2322 does not afford an injured employee a right of action against his statutory employer or pierce the immunity afforded by LSA-R.S. 23:1032. The Supreme Court in Olsen stated:

“In the absence of another statute providing otherwise, the strict liability of Article 2322 of the owner of a building for harm caused by defects in its structure or appurtenances imposes a nondele-gable duty upon him to keep his building and appurtenances in repair and to be responsible to third persons for harm caused by any defect in the structure or its appurtenances.” [Emphasis ours]. Supra, at p. 1291.

Reading Olsen in light of the workers’ compensation statutes, we conclude that LSA-R.S. 23:1032 is a statutory exception to the strict liability of LSA-C.C. Art. 2322 and 2317, and that an employee injured in the course and scope of his employment is not a “third person” to whom the statutory employer-building owner is responsible. Under these circumstances, even assuming the elevator in the instant case constituted a defective “building” under LSA-C.C. Art. 2322, or a defective “thing” under LSA-C.C. Art. 2317, we find no error in the judgment maintaining defendants’ exception of no right of action.

Accordingly, for the foregoing reasons, the judgment is affirmed.

AFFIRMED.

GARRISON, J., dissents for reasons assigned by Judge BARRY.

BARRY, Judge,

dissenting with reasons.

The three defendant corporations were not engaged in the manufacture of conCrete pilings and are not statutory employers or principals under the compensation act. See Waldrop v. Vistron Corp., 391 So.2d 1274 (La.App. 1st Cir.1980), writ denied 394 So.2d 281 (La.1980).

Herbert v. Gulf States Utilities Co., 369 So.2d 1104 (La.App. 1st Cir.1979) relied on by the majority, the trial judge, and defendants, involved a landowner who was a statutory employer, not a shareholder of plaintiffs employer.

I find no jurisprudence interpreting the specific language of Section 1032 as to shareholder immunity as found by the majority here. It seems to me this provision is designed to preclude tort immunity for an individual who happens to own stock in the injured worker’s corporate employer, but whose liability to the worker is unrelated to the worker’s job or the tortfeasor’s status as a shareholder.

Raymond designed the elevator structure and its work was not part of any joint venture with the two other defendants. Raymond acted as an independent third party and should bear liability if its work was faulty.

Further, strict liability (Art. 2317 and Art. 2322) should apply to all defendants for their clear failure to keep the elevator in good repair.

      . Plaintiffs original and first supplemental petitions were in products liability against Equitable Equipment Company (as manufacturer and installer of the elevator), Allen Bradley Company (as manufacturer of switches and electrical wiring used in the machine) and Shepard Niles Crane and Hoist Corporation (as manufacturer and/or installer of cables and other devices).
      In a second supplemental and amending petition, however, plaintiff named Brown & Root, T.L. James and Raymond International as defendant owner-lessors of the fabrication plant and elevator.
      During trial, plaintiff consented to a dismissal of his suit against Equitable, Allen Bradley and Shepard Niles Crane, and proceeded solely against Brown & Root, T.L. James and Raymond.

      . LSA-R.S. 23:1032 Exclusiveness of rights and remedies; employer’s liability to prosecution under other laws
      The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word “principar shall be defined as any person who undertakes to execute any work, which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
      Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
      The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.


author: DOUCET, Judge. DOMENGEAUX, Judge,

text:
    ODESSA HOUSE, Plaintiff-Appellee, v. Kenya Sue GOSS, and State Farm Mutual Automobile Insurance Company, Defendants-Appellants.
    No. 83-548.
    Court of Appeal of. Louisiana, Third Circuit.
    June 14, 1984.

      Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., for defendants-appellants.
    Chris J. Roy, Alexandria, for plaintiff-ap-pellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   DOUCET, Judge.

Plaintiff, Odessa House, instituted the present suit on September 23, 1980, claiming personal injuries and medical expenses as a result of an automobile accident which occurred in Oakdale, Louisiana, on September 22, 1979. Defendants, Kenya Sue Goss and her liability insurer, State Farm Mutual Insurance Co., responded by filing a peremptory exception of prescription of one year. The trial judge subsequently overruled the exception and thereafter rendered judgment in favor of plaintiff in the sum of $15,000.00. Defendant State Farm Mutual Insurance Company appeals the overruling of its exception of prescription. We affirm.

Plaintiff was a passenger in an automobile owned and operated by her husband, Billy House, when it collided on September 22,1979, at an intersection with an automobile driven by Kenya Sue Goss who failed to stop at a stop sign. Both automobiles were insured for liability and medical coverage by State Farm Mutual Automobile Insurance Company. Negotiations between plaintiff and the insurer ensued and it is on this basis that appellee contends prescription was interrupted by acknowl-edgement.

Plaintiff introduced into evidence a letter from plaintiff’s attorney to defendant’s adjuster dated June 6, 1980 advising of representation by him, that State Farm insured the House automobile and inquiring which policy would take care of the House medical bills. Introduced as Exhibit “House-2” was a letter dated June 9, 1980 from defendant’s adjuster to plaintiff’s attorney which stated in pertinent part:

“Under Mrs. House’s personal insurance policy with State Farm there is a medical pay coverage of $2,000.00 on which we do have subrogation rights. Therefore, her medical bills have not been paid under the medical portion of her policy, but rather under the liability portion of the Kenya Sue Goss policy who is evidently at fault in this accident.
“If you have any medical specials which I have not paid to date, please forward them directly to my attention and they will be promptly paid as a liability advance payment under the Goss policy. “To date, on behalf of Odessa House, I have paid the following medical bills:
Total paid to date $524.39
“Please review this claim at your very earliest convenience and provide me with your evaluation of it and settlement demand.”

Subsequently, the adjuster tendered an offer of $5,000.00 plus medicals in an attempt to settle the claim. The offer was never revoked.

On June 30, 1980, defendant’s adjuster again wrote to plaintiffs attorney requesting a settlement demand.

Mrs. House never personally dealt with the defendant’s insurer or any of the insurer’s agents. Mr. House testified that after the accident, he initially contacted his agent, Wade Green, for State Farm in Oak-dale. Nolan Craven, a claims adjuster for the insurance company, later got in touch with Mr. House and from then on handled the House case. Thereafter, Mr. Craven arranged the payment of $5,600.00 for the House’s totaled automobile and arranged the payment of all medical bills arising from the accident. Subsequently, Mr. Craven and Mr. House had a series of conversations with respect to the plaintiff’s claim for personal injuries. The adjuster admitted the defendant was “evidently at fault” and three to four weeks after the accident made an offer of $5,000.00 plus medicals in an attempt to settle the claim. Mr. House felt that his acceptance of the offer on behalf of his wife would be premature, in light of her continuing medical problems. At no time was the settlement offer subsequently withdrawn. Mr. Craven then told Mr. House to continue taking the plaintiff to doctors and to send him all medical bills. He told Mr. House to come back once his wife’s medical condition was ascertainable and they would settle on an acceptable sum for her personal injuries. Thus the adjuster paid all of plaintiff’s medical expenses under the Goss policy, paid for the loss of the House’ vehicle, and sought to pay ap-pellee’s personal injury claim.

In the trial court, plaintiff contended that the parties’ communication constituted sufficient acknowledgement of plaintiff’s “right” to interrupt the running of the one year prescription against plaintiff’s claim. The trial court agreed and overruled defendant’s exception of prescription without assigning reasons.

At the time of this accident Civil Code Article 3520 provided:

“Prescription ceases likewise to run whenever the debtor or possessor, makes acknowledgement of the right of the person whose title they prescribed.”

The article was changed effective January 1, 1983, and now bears Civil Code Article 3464 and states:

“Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe.”

An acknowledgement interrupting liberative prescription may be oral or written, formal or informal, express or tacit. Lake Providence Equipment Co. v. Tallulah Production Credit Assoc., 257 La. 104, 241 So.2d 506 (1970). However, the interruption of prescription has no effect beyond the specific right of the person of which the debtor makes acknowledgement. Flowers v. United States Fidelity & Guaranty Co., on rehearing, 381 So.2d 378 (La.1980).

Appellant contends that as there was medical expense coverage under the House policy which applied to Mrs. House’s injuries, the payment of medical expenses, even under the Goss policy, did not constitute an acknowledgement of Mrs. House’s personal injury claim. Appellant also contends that the requests for a settlement demand in an attempt to negotiate a settlement did not constitute an acknowledgement of plaintiff’s bodily injury claim sufficient to interrupt prescription citing Emery v. Cabral, 400 So.2d 340 (La.App. 4th Cir.1981) writ denied, 405 So.2d 533 (La.1981), wherein the court stated:

“The general rule regarding the burden of proof is that when the plaintiff’s petition shows on its face that the prescriptive period has run, and the plaintiff is contending there was a suspension or interruption of prescription, the burden is on the plaintiff to prove the suspension or interruption. Cordova v. Hartford Accident and Indemnity Company, 378 So.2d 1088 (La.App. 3rd Cir.1979) ; Yarbrough v. Louisiana Cement Company, Inc., 370 So.2d 602 (La.App. 4th Cir.1970) writ denied, 373 So.2d 531 (La.1979).
Furthermore, the recognition of the mere existence of a disputed claim is not such an acknowledgement within the contemplation of Article 3520 as will effect an interruption of the running of prescription. The acknowledgement must be accompanied by or coupled with a clear declaration of intent to interrupt the prescription then running. Marathon Insurance Company v. Warner, 244 So.2d 353 (La.App. 2nd Cir.1971).”

Prescription statutes are strictly construed against prescription and in favor of the obligation sought to be extinguished by it. State ex rel. Guste v. Simoni, Heck and Associates, 331 So.2d 478 (La.1976); Gulf Oil Corp. v. State Mineral Board, on rehearing, 317 So.2d 576 (La.1975); Foster v. Breaux, 263 La. 1112, 270 So.2d 526 (1972). Prescription statutes find their justification in the desire to avoid unfair prejudice to the defendant by requiring him to defend a stale claim and to be put to a defense after memories have faded, witnesses are gone, and evidence has been lost; and to avoid prejudice to a defendant who was in ignorance of the asserted obligation. Here, the defendant was fully aware of the asserted obligation as evidenced by representations to plaintiff and suit was filed only one day after the prescriptive period.

As the Supreme Court stated in Flowers v. U.S. Fidelity & Guaranty Company, supra:

“... acknowledgement sufficient to interrupt prescription may be made verbally, in writing, by partial payment, by payment of interest or by pledge or in other ways; ... it may be implicit or it may be inferred from the facts and circumstances.”

The policy considerations regarding the weight of evidence to support a plea of interruption of prescription were set forth in Trainer v. Aycock Welding Co., 421 So.2d 416 (La.App. 1st Cir.1982) as follows:

“It has long been the public policy of this state that the compromise of disputes are highly favored and promote judicial efficiency. La.C.C. Art. 3071, et seq.; Richard v. Southern Farm Bureau Casualty Insurance Company, 254 La. 429, 223 So.2d 858 (1969); Saunders v. New Orleans Public Service, Inc., 387 So.2d 603 (La.App. 4th Cir.1980), writ denied 394 So.2d 614 (La.1980); McKowen v. Gulf States Utilities Company, 358 So.2d 675 (La.App. 1st Cir.1978); Louisiana Farm Bureau Mutual Insurance Company v. State Farm Mutual Automobile Insurance Company, 348 So.2d 1311 (La.App. 3rd Cir.1977). Candid and good faith settlement negotiations should be encouraged between the parties to a dispute to implement this policy. If settlement negotiations which do not result in an oral compromise agreement can constitute an acknowledgement of the disputed indebtedness so as to interrupt prescription, then undoubtedly in the future such negotiations will be less candid and less productive. We do not believe that the law should be interpreted to place such a chilling effect on settlement negotiations.”

The Louisiana Supreme Court in Collins v. Capital Valve and Fitting Company, 409 So.2d 579 (La.1982), held that the compromise of plaintiffs property damage claim arising out of an automobile accident did not serve to constitute an acknowledgement of plaintiffs claims for medical expenses, lost wages and personal injuries arising out of the same accident sufficient to interrupt the running of prescription and therefore maintained defendant’s plea of prescription. In Collins, supra, the insurer issued a draft for only the plaintiffs property damage. The court distinguished Flowers, supra, and found that this alone was not an acknowledgement as to other elements of damages but, instead, was a settlement which acted as a compromise of the property damage only. The court stated: “It is not necessary to address the arguments made by plaintiffs concerning the effect of Flowers because we find that is not controlling in this case. Flowers dealt with the effect of acknowledgement of the prescriptive period and, here, it is apparent that there was not an acknowl-edgement but, rather, a settlement which acted as a transaction and compromise of the property damages.” It appears the scope of the parties’ negotiations in Collins was limited to property damage. Furthermore, it was apparent to the Collins that the prescriptive period was running on the other elements of damages as their counsel related by letter to the insurance company that filing of suit would be necessary before the prescriptive date.

The instant case does not involve compromise as in Collins but rather involves an open-ended assurance that all of Mrs. House’s medical bills would be promptly paid under the liability provisions of the Goss policy. This admission of liability for all medical payments is inconsistent with anything but an acknowledgement of full coverage under the Goss policy.

In Flowers, supra, a claims adjuster entered into negotiations with the plaintiff relative to a January 11, 1976 auto accident and indicated he did hot want to make an appointment with Mrs. Flowers until she was in receipt of her final medical reports. Subsequently, Mr. Flowers, as head and master of the community, accepted payment from the insurer for damage to the family automobile and all but $175.00 of the medical expenses. When Mrs. Flowers received final medical reports, she called the adjuster on January 14, 1977 and was informed that her claim had prescribed. As aforementioned, the Supreme Court held that the adjuster’s actions with regard to medical claims did not interrupt the wife’s tort claim.

Subsequent to Flowers, the 1979 revision of the matrimonial regimes law removed the head and master concept, and provided for equal management of community property by the spouses. When the revision went into effect on January 1, 1980, wives became proper parties plaintiff to assert community rights.

We find Flowers distinguishable from the present case on two grounds. First, the uncontradicted testimony is that the adjuster offered $5,000.00 plus medicals in settlement of Mrs. House’s personal injury claim and this offer was never revoked. Mr. Craven manifested an intention to admit the insurance company’s indebtedness to Mrs. House for her personal injuries. Under our law of offer and acceptance, the tender of settlement offer was presumed to remain open for a reasonable period of time. The offer contained no terms limiting the time for its acceptance. Compare: Trainer v. Aycock Welding Co., supra. Secondly, the record shows that the majority of the medical payments made to Mrs. House by the defendant were made after January 1, 1980, when Mrs. House had an equal right to enforce this community claim. Of particular importance is the letter dated June 9, 1980, written by the claims adjuster to the attorney representing Mrs. House. In the letter, the adjuster stated that the medical payments were being made under the liability portion of the Goss policy, and that any other medical bills would be promptly paid as a liability advance payment under the Goss policy. At the very least, this letter clearly acknowledges the insurer’s liability for all medical bills incurred by Mrs. House. More importantly, the right acknowledged is one held by Mrs. House, who by then was an equal manager of community property. In Flowers, the Supreme Court’s decision is based in part on the fact that the right acknowledged belonged to Mr. Flowers, and such acknowledgement had no effect on a right belonging to another, i.e., Mrs. Flowers’ right to claim damages for her personal injuries. In other words, at the time Flowers was decided (prior to the 1979 revision of the matrimonial regimes law), when a married woman suffered injuries as a result of an accident, there arose two distinct claims, i.e., a claim for medical expenses assertable by the husband alone as head and master of the community and a claim for general damages assertable by the wife alone. However, since the effective date of the revision, all of the elements of damages occasioned when a married woman is injured are recoverable by the wife as an equal manager of the community and, thus, it can be said that there is but one claim composed of distinct elements of damages, special and general. We find from our review of the record that the adjuster acknowledged Mrs. House’s special and general claims.

We agree with the trial judge that such action by the insurer constituted sufficient acknowledgement to interrupt prescription under the circumstances.

For the reasons assigned hereinabove, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.

DOMENGEAUX, J., concurs and assigns brief reasons.

GUIDRY, J., concurs without comment.

DOMENGEAUX, Judge,

concurring.

I respectfully concur in the result reached in the majority opinion. I find that the actions of defendant’s adjuster, Mr. Craven, was sufficient to acknowledge liability, and to thereby interrupt prescription.

       Reversed on other grounds, 387 So.2d 574 (La.1980). Footnote by this Court.