author: MARVIN, Judge.

text:
    Ricky Edward FROST, Plaintiff-Appellant, v. Charles ALBRIGHT, dba Albright Sawmill, Defendant-Appellee.
    No. 16601-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.
    Writ Denied Feb. 4,1985.

      Donald R. Miller, Shreveport, for plaintiff-appellant.
    Hudson, Potts & Bernstein by Gordon L. James, Monroe, for defendant-appellee.
    Before PRICE, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

In this worker’s compensation action plaintiff appeals a judgment barring plaintiff’s recovery because his injury was caused by his own intoxication. LRS 23:1081.

Plaintiff contends that the trial court erred in finding that the employer proved by a preponderance of the evidence that plaintiff was intoxicated; in finding that plaintiff’s intoxication was the cause of the accident; and in failing to find, in the alternative, defendant estopped to raise the defense of intoxication when defendant knew or should have known that plaintiff was intoxicated and could not safely operate the radial arm saw which amputated his three fingers. We affirm.

FACTS

Plaintiff is a 25-year-old male with a seventh grade education who had worked for defendant from time to time for several years before the accident. On August 24, 1979, while operating a radial arm saw, plaintiff accidentally amputated the three middle fingers of his right hand.

Plaintiff’s testimony regarding the day of the accident was that he had two beers when he awoke about 7 a.m., and that he shared a quart of beer with another employee around 2:30 p.m. before the accident occurred about 4:00 p.m. Other witnesses testified that plaintiff bought some beer and consumed a quart of beer during the noon hour on the day of the accident.

Plaintiff was using the radial arm saw to “cut and notch” fence boards. The saw is designed to be held with the right hand by a handle and is then drawn across a board that is held in a patterned jig with the left hand. Plaintiff explained that the accident occurred when the saw blade hit a knot hole in the board he was cutting and kicked forward, causing his hand to be forced loose from the handle and to make contact with the saw blade.

Plaintiff was apparently alone in the building when the accident occurred. Defendant’s son, a managerial employee, stated that he saw beer bottles in the area of the saw when he went to the building after the accident. He also stated that he found a board in the jig but the board had not been notched or “sawed.”

A blood sample taken from plaintiff about an hour and a half after the accident showed an alcohol level of .135 grams percent. Defendant’s medical expert testified that a person with such a blood alcohol level would be intoxicated and could not safely operate a radial arm saw. He explained that a person so intoxicated would have diminished vision, slowed thought processes, reduced balance, and poor hand and eye coordination.

INTOXICATION

Plaintiff does not primarily argue that the court erred in finding plaintiff intoxicated but directs his attack toward the finding that plaintiffs intoxication caused the accident.

The standard courts should use in determining whether or not intoxication is the “cause” of an accident has been recently discussed. Prior to 1981 only two reported cases had upheld the intoxication defense. Professor Johnson initially commented that “the appellate court ha[s] taken such a narrow view of the intoxication defense as virtually to eliminate it from the Act,” because the standard was that intoxication “solely caused” the accident. 42 La.L.Rev. 620, (1982) at 640.

Recent cases have rejected the “solely caused” standard. Renfroe v. City of New Orleans, 394 So.2d 787 (La.App. 4th Cir.1981); Clay v. Bituminous Cas. Co., 401 So.2d 1257 (La.App. 1st Cir.1981). Malone-Johnson has since observed that the more recent view is correct and “may restore the defense of intoxication to its proper place in the Act.” We agree the defense should be applicable when “intoxication is a substantial cause of the injury.” Malone-Johnson, Vol. 14, § 344.

In O’Neal v. Home Ins. Co., 404 So.2d 1355, 1357 (La.App. 2d Cir.1981), we held that the defendant has the burden of proving both the intoxication and that the intoxication caused the accident. We observed that if defendant proves intoxication and that the accident is of a sort that would not ordinarily happen absent intoxication, then perhaps the burden of proving another (and equally substantial) cause would shift to the plaintiff.

Defendant introduced testimony and a video tape illustrating the operation of the radial arm saw.

Plaintiff argues that the length of time he worked and the number of fence boards he successfully cut and notched, without mishap, before the accident, indicate that his intoxication was not the cause of the accident.' Plaintiff emphasizes that part of Ray v. Superior Iron Works and Supply Co., Inc., 284 So.2d 140 (La.App. 3d Cir.1973), writ refused, which reasoned that intoxication could not be the cause of Ray’s injury because Ray had successfully negotiated a winding road just prior to running off the road. The Ray court found that intoxication was not the “proximate” cause of the accident, which we interpret to mean as not a substantial cause in fact of the accident. “Proximate” cause primarily inquires whether a defendant’s duty extends to the particular risk in question that causes injury to a plaintiff in a tort action. The LRS 23:1081 cause is cause in fact, and not “legal” cause, in our opinion.

Whether intoxication is the cause in fact of an accident covered by the worker’s compensation law, of course, must be determined by the circumstances of the individual case.

Here the trial court found plaintiff’s attempt to explain how the accident happened was unbelievable. The court focused on the defendant’s son’s testimony that after the accident a board was in the jig but had not been notched. This testimony contradicted plaintiff’s statement that the saw hit a knot hole in the board while he was notching the board. If the saw had lurched because of a knot in the board, the saw marks and the knot should have been evident upon examination after the accident. Examination was made and none were found. The court also noted that the video tape demonstration showed that the saw could not lurch forward from its “rest” position with a board in position in the jig to be cut. The trial court found that plaintiff’s “well-proven intoxication more probably than not caused the accident.”

An employer in a worker’s compensation suit who pleads the defense of intoxication, must prove by a preponderance of the evidence, that plaintiff’s intoxication was a substantial cause of the accident, one which would not ordinarily happen absent intoxication. The trial court in this case impliedly applied the correct standard. The record supports the conclusion that defendant proved by a preponderance of the evidence that plaintiff’s intoxication was a substantial cause of the injury, one which ordinarily would not happen absent intoxication. We will not disturb the trial court’s finding. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

ESTOPPEL

Plaintiff further argues that defendant should not have been allowed to assert the intoxication defense but should be estopped because defendant knew or should have known that plaintiff was intoxicated. Plaintiff refers to his telephone conversation with defendant on the morning of the accident in which plaintiff claims that defendant insisted he come to work even though defendant had been told that plaintiff was “sick” from drinking the night before; defendant’s “close contact” with plaintiff after defendant came and drove plaintiff to- work at noon after plaintiff had the two beers; that plaintiff was obviously intoxicated during the day, as evidenced by testimony of the store clerk who sold plaintiff the beer; that defendant or his managerial employees had seen plaintiff only V-k hours before the accident when they instructed plaintiff to cut and notch fence boards, and that the blood sample, taken at 5:30 p.m., indicated that plaintiff was intoxicated to some greater degree when the accident occurred.

Defendant replies that he should not have known of plaintiff’s intoxication because plaintiff called defendant requesting a ride in “mid-morning” and did not inform defendant that he had been drinking; neither defendant nor any of his managerial employees had any “close contact,” but only “distant contact,” with plaintiff until after the accident; defendant should not be required to ferret out his employees who violate his rule that prohibits drinking on the job; and that plaintiff knew that drinking was prohibited at the mill and concealed his consumption of alcohol and his condition.

The trial court, in any event, implicitly concluded that defendant did not know that plaintiff was intoxicated until after the accident. The manifest error rule applies to this finding. There is sufficient evidence in the record to show that this conclusion is not clearly wrong.

Our review convinces us that defendant did not know, or should not have known, that plaintiff was intoxicated until after the accident, and that plaintiff’s contention to the contrary is untenable.

Plaintiff testified that he drank two beers between 7 and 8 a.m. He said that defendant picked him up to drive him to work around noon. Defendant testified that while he was not sure, he thought he picked plaintiff up earlier, during the mid-morning.

Defendant’s medical expert stated that, assuming plaintiff’s version of his consumption of alcohol, plaintiff would have had about a .10 percent blood alcohol level at 10 a.m. on the day of the accident. The expert also testified that at noon plaintiff would have had a blood alcohol level of .05 percent. The expert concluded that at both 10 a.m. and at noon, plaintiff would have been on the down side of his blood alcohol level, i.e. that his level would be decreasing rather than increasing. This expert also testified that it would be difficult to detect that plaintiff was intoxicated when his blood alcohol level was .10 percent and diminishing or decreasing because most of the behavioral indications of intoxication would be absent at that level.

Testimony that plaintiff was obviously intoxicated at noon lends some support to plaintiff's contentions that defendant should have known that plaintiff was intoxicated. Plaintiff, however, admitted that he knew of the “well-known rule” forbidding alcohol on the job, and the contact he had with managerial employees was at some distance. Under these circumstances it is easy to deduce that plaintiff was careful to disguise his intoxication. When we also consider the statements by plaintiffs co-workers that during the noon hour they did not know that plaintiff was intoxicated until plaintiff told them, and plaintiffs statement that his contact with managerial employees was at some distance and not close, we conclude that defendant should not have known of plaintiffs intoxication.

Under these circumstances, we hold that defendant did not have a duty to determine, and should not have determined, whether plaintiff was intoxicated. The trial court did not err in allowing the defendant to advance the defense of intoxication and correctly sustained that defense.

At appellant’s cost, the judgment is AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Harry J. HART, Individually d/b/a C & H Management, Plaintiff-Appellant, v. Rachael S. HART, et al., Defendants-Appellees.
    No. 16635-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.
    J. Stacey Freeman, Bossier City, for plaintiff-appellant.
    Love, Rigby, Dehan, Love & McDaniel by Joe Cordill, Jr., Shreveport, and William J. Gardner, Longview, Tex., for defendants-in-rule, appellees, Rachel S. Hart, Ryan-Hart, Inc., Dr. Henry D. Smith and Ruth Smith.
    . Charles Rowe, Bossier City, for petitioner-in-rule, appellee, Candi Hart.
    ' Before PRICE, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

Mr. Hart, who is embroiled in divorce litigation with his wife in Texas, appeals a judgment denying his demands in a rule to show cause against his wife’s parents why they should not be cast for $625 costs incurred by him because of their failure to appear, when subpoenaed, for the purpose of giving depositions.

Appellant erroneously bases his rule on CCP Art. 1473. The sanctions of that article, however, do not apply to a deponent who is not a party or who is not designated to be a deponent by an organization that is a party. Compare Art. 1447.

Appellant’s in-laws are not parties. Hart has no cause of action against them for his expenses caused by their alleged disobedience. CCP Arts. 927, 934. A witness-deponent who disobeys a subpoena for a deposition is subject only to the contempt authority of the court. See CCP Art. 1357 and comment (d) thereunder. Appellant’s in-laws were not cited for contempt.

At appellant’s cost, the judgment denying and dismissing his demands is AFFIRMED.


author: SEXTON, Judge.

text:
    Patricia Butler LAKE, Plaintiff-Appellee, v. Jock Antiono LAKE, Defendant-Appellant.
    No. 16631-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.
    Gamm, Greenberg & Kaplan by Alex Ru-benstein, Shreveport, for defendant-appellant.
    Frank E. Brown, Jr., Shreveport, for plaintiff-appellee.
    Before HALL, SEXTON and NORRIS, JJ.
   SEXTON, Judge.

Defendant herein is appealing the award of permanent alimony in the amount of $100.00 by default judgment to his former spouse. We reverse.

Plaintiff, Patricia Lake, was awarded a legal separation against this defendant by default as well as $100.00 per month child support for the minor child of the marriage on December 22, 1982. Plaintiff subsequently filed a petition for divorce on August 31, 1983 on the grounds of having lived separate and apart for more than six months since the judgment of separation. In that petition she specifically plead that she desired a “rule nisi” ordering the defendant to show cause why he should not be ordered to pay $500.00 per month “as alimony and child support for the care and support of her and the minor children of the marriage.” In the prayer she specifically prayed for a “rule nisi” ordering the defendant to show cause why he should not be ordered to pay the $500.00 in the same language as asserted in the petition.

Subsequent to the issuance of the rule and domiciliary service on the defendant, the defendant appeared without counsel on the date the rule was set, September 13, 1983. In the transcript of that proceeding the attorney for plaintiff stated that he and the defendant had discussed the matter and that they had reached an agreement “in respect to child support that he is agreeable to paying $200.00 per month.” There was also an indication of agreement on other matters at issue, however, no mention was made of alimony to the plaintiff.

On October 12, 1983, plaintiff, with the same counsel, confirmed a- default judgment of divorce against the defendant. The various items of relief which had previously been granted Mrs. Lake at the uncontested rule were incorporated into the divorce judgment. In addition, there was judgment rendered ordering the defendant, Mr. Lake, to pay to the plaintiff $100.00 per month as permanent alimony. Defendant has appealed, asserting both procedural and substantive errors. We do not reach the substantive contentions of the defendant because of our determination that his procedural complaint has merit.

LSA-C.C.P. Art. 1703 states, “A judgment by default shall not be different in kind from or exceed in amount that demanded in the petition.” It is our determination that this award of alimony by default at the trial on the main demand is improper because it is an award which is “different in kind from” the prayer and the allegations of the petition. As the redactors’ comment to LSA-C.C.P. Art. 1703 indicates, it is essential that a default judgment not exceed the scope of the petition, for a defendant may decide not to defend with respect to a particular prayer for relief “whereas he would defend if relief beyond the prayer were available.”

This cause presents a classic illustration of the purpose of LSA-C.C.P. Art. 1703. The plaintiff alleged the necessity for a rule to set permanent alimony. That allegation was carried forth in the prayer. The defendant was served a copy of the petition so asserting, as well as with a “Rule To Show Cause” which ordered him to appear at a specific time and date, September 13, 1983, to show cause why he should not pay up to $500.00 as alimony and child support. He appeared as ordered and reached an agreement with respect to child support. Alimony was not mentioned. It was therefore reasonable for the defendant to assume that both the child support and alimony aspects of the cause were resolved on the rule to show cause, for such was the specific allegation and prayer of the defendant.

In other words, plaintiff alleged and prayed specifically for a rule to set alimony and child support on a certain date. Defendant appeared and support was set. Alimony to the spouse was not. The subsequent setting of alimony by default one month later at the trial of the main demand exceeds the allegations and demands of the petition and is thus contrary to LSA-C.C.P. Art. 1703. The award of $100.00 alimony rendered herein on October 12, 1983 is therefore reversed and that judgment of October 12, 1983 herein is hereby amended to strike therefrom the following paragraph:

IT IS LASTLY ORDERED, ADJUDGED AND DECREED that petitioner PATRICIA BUTLER LAKE is awarded permanent alimony in the full sum of One Hundred and No/100 per month also payable on the first and fifteenth day of each month.

Costs of this appeal, if pertinent, are assessed against appellee.

REVERSED.

      . Apparently a second child had been born subsequent to the separation.


author: JASPER E. JONES, Judge.

text:
    E.J. WALKER, Individually and as Natural Tutor of Virginia Walker, Patrick Walker and Derick Walker, Plaintiffs-Appellants, v. DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, OFFICE OF HIGHWAYS, State of Louisiana, Defendant-Appellee.
    No. 16641-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.
    Rehearing Denied Jan. 4, 1985.
    Writ Denied March 15,1985.

      Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., Shreveport, for E.J. Walker, et al.
    Wilkinson, Carmody & Gilliam by Arthur R. Carmody, Jr., Shreveport, for The St. Louis Southwestern R. Co.
    John W. King, Baton Rouge, for La. Dept, of Transp. & Development.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

In this wrongful death action against the Department of Transportation & Development, Office of Highways, State of Louisiana and the St. Louis Southwestern Railway Company, the plaintiff, E.J. Walker, individually and in his capacity as natural tutor of Virginia Walker, Derick Walker and Patrick Walker, appeals a judgment rejecting his demands. We affirm.

At about 5:30 a.m. January 1,1979 Shelly Carr Walker, wife of E.J. Walker and mother of Virginia, Derick and Patrick, was killed when the south bound automobile in which she was a passenger collided with a large tree lying across both lanes of LA # 3 (Benton Road) in Bossier Parish. The vehicle was driven by decedent’s brother, James Carr. He was taking the decedent to work. A severe and wide spread ice storm had commenced in northwest Louisiana on the night of December 31 and was still in progress at the time of the accident. The accident occurred about 30 minutes after the 70 year old cottonwood tree, which was located on the defendant railroad’s right of way, uprooted and fell across the highway. Plaintiff’s surveyor and the plat he prepared established the tree to be entirely on the railroad right of way before it fell and the railroad concedes the correctness of this determination. The tree was covered with a heavy accumulation of ice at the time it uprooted and fell across the highway.

The plaintiff sought to establish his cause of action against the defendants on the basis of strict liability by virtue of their custody and control of the tree and on the basis of their negligence for failing to remove the tree before and after it fell.

The case was tried simultaneously against the DOTD by the judge, as required by LSA-R.S. 13:5105, and against the railroad by a jury.

After the plaintiff rested the judge sustained a motion for dismissal filed by the DOTD pursuant to LSA-C.C.P. art. 1810(B). The judge found the plaintiff failed to establish any basis for liability against DOTD. At the conclusion of the trial the jury made a finding in response to the first special interrogatory submitted to it that the accident was caused “in whole or in part by an Act of God.” Pursuant to this finding a verdict was entered in favor of the railroad.

The plaintiff assigns as error the jury finding that the accident was caused by an Act of God contending the evidence established the tree was diseased, rotten and defective which was a contributing cause to the uprooting of the tree and for these reasons the railroad was liable on the theory of strict liability and negligence.

The plaintiff also assigns as error the trial judge’s dismissal of his action against the DOTD pursuant to the LSA-C.C.P. art. 1810(B) motion to dismiss.

LIABILITY OF THE DOTD

(A) Strict Liability

A claimant is entitled to establish liability pursuant to the strict liability provision of LSA-C.C. art. 2317 only if he can prove the following required elements:

1) that the “thing” which caused the injury was the “care, custody, and control” of the defendant;
2) that the “thing” was defective in that it posed a condition creating an unreasonable risk of harm; and
3) that the defective “thing” caused the injury complained of.

See Loescher v. Parr, 324 So.2d 441 (La.1975); Jones v. City of Baton Rouge, etc., 388 So.2d 737 (La.1980); Toussant v. Guice, 414 So.2d 850 (La.App. 4th Cir. 1982).

The defect must be some flaw or fault existing in the thing itself. Brown v. Winn-Dixie Louisiana, Inc., 417 So.2d 44 (La.App. 1st Cir.1982), reversed on other grounds 452 So.2d 685. See also Toussant v. Guice, supra.

The plaintiff failed to establish the tree before it fell upon the highway was in the “care, custody and control” of the DOTD. The plaintiff established the tree before it fell was on the railroad right-of-way. Following the tree’s fall upon the highway’s surface it did not become a part of the highway. It was not a defect in the highway which was under control of the DOTD. The plaintiff did not establish his cause of action against the DOTD under the provisions of LSA-C.C. art. 2317.

(B) Negligence

The DOTD is not a guarantor of the safety of travelers, but it owes a duty to keep the highways and it’s shoulders reasonably safe for non-negligent motorists. Liability based upon negligence is imposed when the DOTD is actually or constructively aware of a hazardous condition upon its highways and fails to take corrective action within a reasonable time. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980).

The DOTD has the right to remove a tree located on private property adjacent to it's right-of-way when the tree poses imminent dangers to the users of the highways. Adams v. State, Dept. of Highways, 357 So.2d 1239 (La.App. 2d Cir.1978). The DOTD has a duty to remove a tree from property adjacent to its right-of-way when it has actual or constructive knowledge the tree is in a condition where it may fall upon the road and create imminent danger'for the users of the road. Wilson v. State, Through Dept. of Highways, 364 So.2d 1313 (La.App. 3d Cir.1978).

The accident occurred within less than one hour after the tree fell across the high: way early New Year’s morning while a severe ice storm was in progress. There is no evidence that the DOTD had knowledge of the obstruction to the road before the accident. All available highway personnel had been called to work about 9:00 p.m. December 31st and were actively engaged throughout the night and the following day salting down frozen highways and bridges in an effort to protect the traveling public from the third worst ice storm in the five preceding years.

The case of Porta v. State, State Board, 242 So.2d 64 (La.App. 1st Cir.1970) involved an automobile accident which occurred when an automobile struck a tree lying on a highway in south Louisiana the day after Hurricane Betsy devastated the area. Plaintiff claimed the State Department of Highways was derelict in it’s duty of removing the tree from the highway. The court rejected this contention citing the severity of the storm, the number of trees knocked down by the hurricane, the immensity of the clean-up job, as factors resulting in its conclusion. Failure to remove the tree one day after the storm did not constitute a breach of the department’s duty.

The DOTD was under no duty to obtain actual or constructive knowledge of the tree across the highway which had fallen before daylight and remove the tree or otherwise warn against it within one hour from the time it fell.

During the presentation of the plaintiff’s case there were numerous witnesses who testified they were familiar with this 70 year old cottonwood tree. These witnesses established it was a green tree which appeared healthy and from general observation showed no apparent signs of defect. The only evidence produced by the appellant to the contrary was the expert testimony of a forester who had never seen the tree.

Henry L. Bango, a consulting forester, testified on behalf of plaintiff as an expert witness as to the cause of the tree’s fall. He stated he made a personal inspection of the tree stump on June 17, 1980 — over 18 months after the occurrence of the accident. Mr. Bango has a B.S. in forestry from L.S.U. and has worked in the field for over 40 years. However, he has no specialization in tree pathology and he testified his main area of expertise is managing timber lands for commercial timber production. He testified all he did was make an eyeball examination of the tree stump and that he conducted no laboratory tests to determine if any diseases afflicted the stump. He estimated that the tree was 65 to 70 years old, characterizing this as a “pretty good guess.”

His examination led him to conclude the tree was rotten in the center of the stump and it’s roots were afflicted with a fungal infection. He claimed the tree was suffering from “heart rot” or “butt rot.” Mr. Bango also noted there was substantial fire damage at the base of the stump extending 18 inches up the west side of the stump. He contends the fire damage which occurred over the preceding 18 to 20 years caused root damage which was a contributing factor to the uprooting of the tree. A number of pictures of the tree stump taken at the time of Mr. Bango’s inspection fail to clearly reveal this fire damage. Pictures of the tree were taken from almost every conceivable angle and it was brought out on cross-examination that there was no picture of the tree showing its west side which was the site of the alleged fire damage. Bango had never seen a fire at the site of the tree but he opined the fires could have been caused by friction between the steel wheels of trains rubbing against the steel tracks in the area adjacent to the tree. Mr. Bango stated these fires burned the cambium layer of cells immediately beneath the tree’s bark, killing the tree, and setting off the process of fungal rot. The pictures offered with Mr. Bango’s testimony do show a great deal of decay with respect to the center of the tree stump. There is a picture of Mr. Ban go holding a stick against the stump and he testified the stick was in a hole at the base of the stump. However, Mr. Bango admitted freely on cross-examination that this rot could have occurred after January 1, 1979 due to rapid deterioration of the stump after its prolonged exposure to the elements. The picture of the stump taken on the date of the accident reflects very little evidence of any condition at the center of the stump which could be considered rot and show no evidence of any burn damage to the stump. Mr. Bango admitted on cross-examination that the ground level moisture, the ice accumulation and wind at least contributed to the tree’s being uprooted at the time of the accident.

The plaintiffs, in an attempt to substantiate Mr. Bango’s testimony, offered the testimony of several area residents, and supervisory personnel for both DOTD and the railroad. Some of these witnesses testified that fires were possible as a result of friction on the wheels of railroad cars, and some did indicate that fires had occurred in the vicinity of the tree over the past 20 years. However, none of them could ascertain with any accuracy as to the frequency or the exact occurrence of these fires. Bango admitted that upon casual examination of the stump it did not appear black or charred as it would appear had it recently burned.

DOTD is not required to make a minute examination of the base of every tree along it’s right-of-way. The duty of DOTD is to observe and remove trees that are dead or leaning or otherwise appear defective by general observation. This tree did not break or fall from any defect that existed in the trunk of the stump which was examined by Bango. It uprooted. It would be an impossible task to carefully inspect every tree on property adjacent to the highway right-of-way to determine if there is a possibility of root deterioration that could result in a tree covered with ice uprooting and falling across the highway. We conclude that the appellant’s evidence fails to establish the DOTD had either actual or constructive notice of a possible root defect in the cottonwood tree that would cause it to uproot and fall upon the highway. This green cottonwood tree which grew for many years adjacent to the highway gave no indication to the highway employees who frequently inspected the area that it was in a condition where it might fall and create imminent danger to the users of the highway.

The plaintiff failed to establish by a preponderance of evidence a cause of action against the DOTD on the theory of negligence.

The trial judge properly granted the DOTD’s motion to dismiss.

LIABILITY OF THE RAILROAD

(A) Strict Liability

The plaintiff contends the jury's finding that the tree fell because of an Act of God was not supported by the evidence and further complained that because of the Act of God interrogatory the jury never reached the issue of whether the tree was defective. We note the appellant made no objection to the form of the first special interrogatory and should not complain of it on appeal. However, we find it unnecessary to address this issue because under the circumstances we are mandated in the interest of judicial economy to evaluate the evidence submitted to the jury and decide the case in accordance with the evidence. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975).

The Act of God defense to strict liability is an affirmative defense which the railroad is required to establish by a preponderance of the evidence. Loescher v. Parr, supra; Robertson v. Parish of East Baton Rouge, 415 So.2d 365 (La.App. 1st Cir.1982). We find it unnecessary to determine whether the railroad established the affirmative defense that the tree fell solely because of an Act of God because the plaintiff failed to establish the tree was defective.

The tree was on the railroad right-of-way and for this reason it was in the custody of the railroad within the contemplation of C.C. 2317. Jones v. Sewerage & Water Bd. of New Orleans, 430 So.2d 1063 (La.App. 4th Cir.1983), Smith v. Chemical Construction Corporation, 215 So.2d 530 (La.App. 1st Cir.1968). The tree was a substantial contributing cause of the accident and the damage suffered by appellant. The plaintiff has established by a preponderance of the evidence the railroad had control of the thing which caused the harm but in order for him to seek the application of strict liability he must also establish the thing (tree) was defective and the defect caused the harm. See Toussant v. Guice, supra, where ownership of the thing from which the harm came was established but strict liability denied because of the failure to establish a defect in the thing.

The plaintiffs evidence contains the testimony of numerous witnesses who were familiar with the tree who stated the tree was green and healthy and not apparently defective. The railroad’s evidence also contained the testimony of several witnesses who lived in the area of the accident who observed the tree on a daily basis all of whom stated the tree was green and healthy and showed no signs of being defective.

Mr. Bango, the appellant’s expert, was the only witness who testified the tree was defective. Mr. Bango’s testimony was also contradicted by the railroad’s expert, Frederick F. Jewell, a professor of forestry at Louisiana Tech. Mr. Jewell has a Ph.D in plant pathology with a specialty in forest pathology. He is well versed in his field, the member of several professional organizations, and has done extensive research and work in the area of tree diseases. Dr. Jewell testified he inspected the stump in October, 1981, that he had listened to all the testimony in this case prior to his and had examined all of the pictures in evidence including those taken of the tree stump and roots on the day of the accident. Based on these facts he concluded that there was no root problem with the tree, there was no fire damage to the tree, that any rot which was inside the heart of the stump had occurred after the accident, and he concluded by stating that this healthy tree fell in an ice storm under the weight of a great deal of ice. He noted the absence of mushroom-like fungal growths on the roots of the tree stump as evidence of the fact that the roots were not diseased. Dr. Jewell also disclaimed Mr. Bango’s theory that a tree could be killed by fire claiming that cottonwood trees have an ability like all living things to heal themselves by developing scar tissue over the areas damaged by fire in a relatively short period after such fires.

Jewell stated that you cannot determine root disease by examining the roots 18 months after they were removed from the ground. He stated the picture of the roots taken on the day of the accident do not indicate any root disease. He testified that root disease is first indicated at the top or crown of the tree where the leaves and limbs will die. All of the testimony from those familiar with the tree indicate the tree was fully green and none observed dead leaves and limbs on the crown of the tree. Jewell testified the picture of the roots indicate they had “excellent soil holding capacity.” He expressed the opinion the accumulation of ice could cause a healthy tree to uproot. A witness who lived across the highway from the location of the cottonwood tree testified a healthy tree 8 inches in diameter fell upon his house and electric lines in the very early morning hours of January 1 during this ice storm. Another witness testified he saw an ice laden tree fall about a mile from the accident site about one hour after the accident. There were several reports of trees across the road received during the ice storm by the Bossier Parish Headquarters of the DOTD.

Our review of the totality of the evidence establishes that the testimony of appellant’s expert when evaluated against all the contrary evidence in the record does not establish by a preponderance of evidence that the cottonwood tree was defective and for that reason strict liability is not applicable.

(B) Negligence

The railroad established adequate and frequent inspection of its right-of-way and that those inspections did not reveal the tree was defective. We have found the appellant failed to establish the tree was defective. The railroad is not required to remove non defective trees from its right-of-way. The railroad breeched no duty to the users of the highway.

Judgment affirmed at appellant’s cost.

      . This provision is now contained in LSA-C.C.P. art. 1672(B).
      B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

      . RESPONSIVE VERDICTS
      1. Was the harm caused to the plaintiffs as a result of this accident caused in whole or in part by an Act of God?
      YES X NO_
      If your answer is yes, then you will return a verdict for the defendant railway company and not concern yourself with the balance of these interrogatories; but if your answer is no, then you should go on to question # 2.

      . Ait. 2317. Acts of others and of things in custody
      We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.


author: NORRIS, Judge.

text:
    STATE of Louisiana, Appellee, v. Roger James EASON, Appellant.
    No. 16648-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.
    Writ Denied Feb. 15,1985.

      Robert W. Gillespie, Jr. and John Broad-well, Asst. Dist. Attys., Shreveport, for ap-pellee.
    Dimos, Brown, Erskine, Burkett & Smith by George Ross, Monroe, for defendant-appellant.
    Before MARVIN, FRED W. JONES, Jr. and NORRIS, JJ.'
   NORRIS, Judge.

Defendant, Roger James Eason, was charged by bill of information with attempted second degree murder and with armed robbery. A jury found him guilty as charged on both counts. Defendant was sentenced to 25 years at hard labor without benefit of probation, parole or suspension of sentence, on the armed robbery conviction and to a concurrent hard labor term of 15 years on the attempted second degree murder conviction. Defendant now appeals his convictions and sentences, advancing five assignments of error.

FACTS

Defendant and the victim, Sheila Sowell, had known each other for six or seven years. During much of this time they had lived together. Two children were born as a result of their relationship. The victim has a third child who was fathered by a man named Garland Jones. During this third pregnancy the defendant had moved to Iowa to work. Shortly before the child was born, the victim moved to Iowa to be with the defendant. After the birth of the child, the defendant and Miss Sowell had a disagreement and she left the defendant in Iowa and returned to Shreveport to live with her family.

Sometime in November 1982, the defendant also returned to Shreveport. After defendant’s return to Shreveport and prior to January 30, 1983, Eason and Miss Sowell had little contact since she was attempting to end their relationship. On January 30, 1983, there was an exchange of telephone calls between the two. The. testimony, however, is in conflict as to who called whom and how many calls were made. The victim testified that defendant called her early in the evening and she told him that she would call him back. She called back about 7:00 p.m. and there was a discussion about the couple breaking up, but, according to Miss Sowell, Eason would not accept this situation. At approximately 10:00 p.m. Eason called and informed the victim’s sister that he was going to come over. Miss Sowell was on her way to the grocery store with Garland Jones and she declined to wait for Eason to arrive. Defendant arrived at the victim’s house while she was gone and was admitted by her sister. Eason played with the victim’s third child for a short time. The victim’s sister then left the house to pick up her mother from work. Eason left the house sometime between the sister’s departure and return. In the meantime, Miss Sowell and Garland Jones returned from the store. About five minutes after Miss Sowell’s sister and mother returned, Eason reappeared at the house.

The victim’s mother left defendant in the house and he went straight to the victim’s bedroom. Eason then asked Garland Jones, Miss Sowell’s mother and sister to allow him to have a private talk with the victim. Her mother left the room, but Jones and the sister remained. Defendant again asked Jones if he could talk to Miss Sowell alone, but Jones refused to leave until Miss Sowell stepped between the two men and requested that he do so. Miss Sowell’s sister, however, remained in the room for most of the time while defendant and the victim engaged in what was described by all as a normal, low voiced discussion. During the conversation Miss So-well admitted that her third child was fathered by Garland Jones and informed the defendant that she no longer wished to carry on their relationship. Suddenly, the defendant produced a .22 pistol and fired five shots at Miss Sowell, striking her in the head and hands. The victim’s sister witnessed the shooting and testified that the victim made no threats or threatening actions toward defendant, but only tried to avoid being shot. She testified that the defendant told Miss Sowell that she “didn’t deserve to live” just prior to opening fire.

After the shooting, Eason immediately attempted to flee. The victim’s other sister and Garland Jones attempted to stop the defendant, but he was able to escape by pointing the gun in Jones’ face. Miss So-well was taken to LSU Medical Center by her mother and her sister where she was treated for gunshot wounds to the head and hands. The treating physician testified that the wounds to the hands were the most serious and that follow up surgery was required to correct the damage caused by the bullets. Miss Sowell testified that she still has one bullet in her head, just behind her left ear and that the other bullet in her head was removed without surgery.

After Eason fled from the house, Miss Sowell’s brother and Garland Jones gave chase. They followed Eason to a nearby apartment complex, but abandoned the chase when they saw the defendant apparently attempting to reload his weapon.

Defendant fled to a nearby Kroger grocery store where Cleveland Robertson was parked in his 1973 Olds Cutlass in the parking lot waiting for Ramona Theus to return from the store. Robertson noticed a man pass his ear and enter the store. Robertson looked away, and when he looked back, the same man had a gun in his face and ordered him to get out of his car. The man told Robertson he wanted his car and because of the gun, Robertson complied. The man drove off in Robertson’s car. Meanwhile, Ramona Theus had exited the store and had observed the events. She recognized the defendant as the culprit because she knew him fairly well. Later, both Miss Theus and Robertson identified Eason from a photographic lineup as the person who took Robertson’s car at gunpoint.

The next day, Miss Theus was contacted by the defendant’s sister and was told where Robertson’s car could be found. She contacted Robertson with the information and the car was recovered. Robertson noticed, however, that two of his credit cards were missing from the vehicle.

Two days later, on February 2, Eason voluntarily surrendered to the Shreveport police. He was charged with attempted second degree murder and armed robbery. He was tried and a jury found him guilty as charged on both counts. Defendant appeals his convictions and sentences, advancing five assignments of error. He claims the trial court erred in allowing two allegedly gruesome and prejudicial photographs into evidence; that there was insufficient evidence to convict him on either charge; and, that the sentences imposed are unduly harsh and excessive.

DISCUSSION: ASSIGNMENT OF ERROR NO. 3

Defendant alleges that the trial court erred in allowing the state to introduce into evidence two allegedly gruesome photographs of the victim’s bedroom which show blood spots and spatters, contending that the probative value of the pictures was outweighed by their prejudicial effect.

The admission of gruesome photographs will not be overturned unless it is clear that the prejudicial effect of the photographs outweighs their probative value. State v. Brogdon, 426 So.2d 158 (La.1983); State v. Perry, 420 So.2d 139 (La.1982); State v. Lindsey, 404 So.2d 466 (La.1981). Photographs which illustrate any fact, shed light upon any fact or issue in the case, or are relevant to describe the person, place or thing depicted are generally admissible. State v. Kirkpatrick, 443 So.2d 546 (La.1983); State v. Lindsey, supra; State v. Bodley, 394 So.2d 584 (La.1981); State v. Landry, 388 So.2d 699 (La.1980). In this case it was not error for these photographs to be admitted. They are not particularly gruesome and were certainly relevant to show the room where the shooting took place. One depicts a bed that has a pillow with a few blood spots on it. The second picture shows more of the bedroom with a medium size bloodstain and a few spots of blood on the floor. The exhibits complained of do not unduly prejudice the defendant. They serve the purpose of depicting for the jury the layout of the room where the shooting occurred, as it looked at the time of the occurrence. When the probative value of the photographs in depicting the crime scene is balanced with the small possibility of their prejudicial effect on the jury, we find their probative value far outweighs any possible prejudicial effect. State v. Kirkpatrick, supra; State v. Lindsey, supra. This assignment is without merit.

ASSIGNMENTS OF ERROR NOS. 1 & 2

Here defendant contends his convictions were based on insufficient evidence.

The constitutional standard of review for the sufficiency of evidence to support a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Nealy, 450 So.2d 634 (La.1984). The statutory rule as to circumstantial evidence is that assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. La.R.S. 15:438. This statutory rule is not a purely separate test from the Jackson standard to be applied instead of a sufficiency of the evidence test whenever the state relies on circumstantial evidence to prove an element of the crime. State v. Wright, 445 So.2d 1198 (La.1984). Ultimately, the Jackson standard is the objective standard for testing the overall evidence, direct and circumstantial, for reasonable doubt. State v. Wright, supra; State v. Sutton, 436 So.2d 471 (La.1983). The statutory rule, however, provides an evidentiary guideline for the jury when considering circumstantial evidence and facilitates appellate review of whether a rational juror could have found the defendant guilty beyond a reasonable doubt. Exclusion of every reasonable hypothesis of innocence is, therefore, a component of the more comprehensive reasonable doubt standard, where circumstantial evidence is used to convict. Thus, although the circumstantial evidence rule may not establish a stricter standard of review than the more general reasonable juror’s reasonable doubt formula, it does emphasize the need for careful observance of the usual standard and provides a helpful methodology for its implementation in cases which hinge on the evaluation of the circumstantial evidence. State v. Wright, supra; State v. Sutton, supra; State v. Chism, 436 So.2d 464 (La.1983).

Defendant first argues that a review of the evidence under the applicable standard does not support a finding of guilty of the offense of attempted second degree murder. Defendant’s argument is twofold. First, defendant contends that the state failed to prove he had the required specific intent to kill or inflict great bodily harm. Secondly, defendant argues that the evidence, at most, only supports a verdict of guilty of the crime of attempted manslaughter.

La.R.S. 14:30.1 defines second degree murder as:

... the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm

La.R.S. 14:27, in pertinent part, defines attempt as follows:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

Specific intent is defined by La.R.S. 14:10:

Criminal intent may be specific or general:
(1) Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.
⅜ sfc sjs ⅜ ⅜ *

The evidence at trial viewed in the light most favorable to the prosecution reveals that defendant armed himself when he left home to visit the victim. The witnesses present when the crime was committed testified that the victim and defendant did not argue with each other in her bedroom and that she committed no acts of aggression toward him. Although there was evidence that the discussion between the two, at one point, concerned the paternity of Miss So-well’s third child, at no time did defendant appear to be angry, agitated or upset. He carried on a normal conversation with the defendant conducted in a low voice. When the victim turned away from defendant, the testimony is that he stated to her “you don’t deserve to live,” and shot her at least five times with a .22 pistol. Two bullets struck the victim in the back of her head and several struck her hands as she obviously raised them to protect herself.

In State v. Procell, 365 So.2d 484 (La.1978), the court held that the pointing of a gun at a victim as it was fired, was evidence of a specific intent to kill. Although intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. La.R.S. 15:445.

Viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found beyond a reasonable doubt that defendant had the requisite specific intent to kill the victim or inflict great bodily harm upon her.

Likewise, we conclude that defendant’s attempted manslaughter argument lacks merit. La.R.S. 14:31 provides: Manslaughter is:

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed ...

Defendant contends that a rational juror viewing the evidence in a light most favorable to the prosecution must have concluded that defendant was sufficiently provoked so as to deprive him of his self control and cool reflection thus causing him to shoot the victim in a sudden passion or heat of blood.

Defendant points to his mother’s testimony that the victim made a series of harassing telephone calls to defendant during the day of the incident and the testimony that the victim admitted, during their discussion immediately prior to the incident, that her third child’s father was Garland Jones, to bolster his argument.

However, his mother’s testimony was uncorroborated, unclear, contradicted by the victim and in light of cross-examination, arguably unbelievable. Further, the evidence does not picture defendant at the scene of the crime as one lacking self control and cool reflection.

The evidence most favorable to the prosecution shows that the victim returned an earlier telephone call from the defendant around 7:00 or 8:00 p.m. The victim testified they talked about breaking up and that the defendant had a hard time accepting that fact. The victim stated that the defendant subsequently called her sister and informed her he was coming over. The defendant arrived at the victim’s residence around 10:30 p.m. while the victim was at the grocery store, played with the baby, left, and returned about 45 minutes later. According to the victim’s sister, he did not appear agitated or angry.

After the defendant returned to the victim’s residence, there was no evidence of arguing or fighting between the victim and the defendant nor evidence that defendant was angry, agitated or upset prior to the unexpected shooting.

We conclude that a rational juror certainly eould have concluded from the evidence adduced that the shooting offense was not committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Evidently, defendant had enough self control and cool reflection to talk and act normally prior to shooting the victim. Also, as further evidence of the defendant’s self control and cool reflection, it is noteworthy that he did not harm anyone else in the house even though he was attacked by one of the victim’s sisters and confronted by Garland Jones as he made his escape.

In sum, we conclude that a rational trier of fact, viewing the evidence in a light most favorable to the prosecution, could have concluded beyond a reasonable doubt that defendant committed the crime of attempted second degree murder.

Defendant further argues that the state failed to prove beyond a reasonable doubt that he had the specific intent to commit armed robbery in that it failed to show that the defendant had a specific intent to permanently deprive the victim of his property-

La.R.S. 14:64 defines armed robbery as follows:

Armed robbery is the theft of any thing of value belonging to another from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
La.R.S. 14:67 defines theft as:
Theft is the misappropriation or taking of any thing of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential. [Emphasis added.]

An essential element of the crime of theft is a specific intent to permanently deprive the victim of his property. Since armed robbery is a species of theft, the state must show that the defendant had the intent necessary for the offense of theft. State v. Bruins, 407 So.2d 685 (La.1981). Although intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction. La.R.S. 15:445.

We conclude that there was ample evidence from which the jury could conclude under the circumstances of this case that defendant intended to permanently deprive Cleveland Robertson of something of value. Robertson testified that defendant put the gun in his face and ordered him to get out of his car and that when he asked defendant what he wanted, he replied, “the car, now get on out.” Even though the car was subsequently abandoned and ultimately recovered by the victim, the actions of the defendant, at the time of the transaction, provide ample evidence of an intent to permanently deprive Robertson of his vehicle. Further, Robertson also testified that two credit cards which were in his car were never recovered. Compare, State v. Meade, 377 So.2d 79 (La.1979).

In Griffin v. State, 614 S.W.2d 155 (Tex. Cr.App.1981), the defendant commandeered a taxicab at gunpoint. A short while later, the defendant was apprehended by authorities and the taxicab was found about a mile away from the place of the apprehension. The defendant was subsequently charged with and convicted of aggravated robbery. On appeal, the defendant argued that the evidence was insufficient to prove that the defendant intended to permanently deprive the owner of the taxicab. The appellate court held that the evidence of intent to deprive was sufficient to support the conviction. The following passage is relevant to the court’s conclusion and to the instant case:

Applying this standard to the case before us, we hold that the evidence of intent to deprive was sufficient to support the conviction. Intent to deprive must be determined from the words and acts of the accused. Banks v. State, 471 S.W.2d 811 (Tex.Cr.App.1971). The appellant’s argument is that his driving the taxicab only a few miles and leaving it parked on a street while he walked a mile away from it, means that no rational finder of fact could have believed beyond a reasonable doubt that he had an intent to deprive the owner when he took the cab. It must be remembered that the element which must be proved is not a deprivation, but the defendant’s intent to deprive at the time of the taking. The fact that the deprivation later becomes temporary does not automatically mean that there was no intent to deprive permanently or for so long as to satisfy the statutory definition. Draper v. State, 539 S.W.2d 61, '68 (Tex.Cr.App.1976). [Footnote omitted.]

The evidence in the instant case, viewed in a light most favorable to the prosecution, does not permit the reasonable inference that, at the time of the taking, the defendant ever intended to return the property forcibly taken but requires the conclusion that defendant was totally indifferent as to whether the owner ever recovered the property or not. The fact that defendant may have subsequently decided to abandon the vehicle, perhaps to avoid detection, does not detract from his initial intent to permanently deprive.

The facts established by the direct evidence and inferred from the circumstantial evidence are sufficient here for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime of armed robbery.

Assignments of error numbers 1 and 2 lack merit.

ASSIGNMENTS OF ERROR NOS. 4 & 5

Defendant appeals as excessive his sentence of 25 years at hard labor, without benefit of probation, parole or suspension of sentence for armed robbery and a concurrent 15 year hard labor sentence for attempted second degree murder. We affirm.

Article I, § 20 of the Louisiana Constitution of 1974 prohibits the imposition by law of excessive punishment. Although a sentence is within statutory limits it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sep- ulvado, 367 So.2d 762 (La.1979). However, 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 a sentencing judge. State v. Square, 433 So.2d 104 (La.1983); State v. Brooks, 431 So.2d 865 (La.App. 2d Cir.1983); State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir. 1983), writ denied 439 So.2d 1074 (La.1983).

In imposing sentence, the trial judge must comply with the mandatory requirements of La.C.Cr.P. Art. 894.1 and individualize the sentence by stating for the record the considerations taken into account and the factual bases therefor. State v. Jones, 381 So.2d 416 (La.1980). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in article 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). The sentencing guidelines of La.C.Cr.P. Art. 894.1 also provide the criteria to consider in determining whether a sentence is excessive. State v. Sepulvado, supra; State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983).

The record reflects that the sentencing judge adequately considered the factors enumerated in La.C.Cr.P. Art. 894.1 in imposing this sentence. The penalty for armed robbery is not less than five nor more than ninety-nine years at hard labor, without benefit of probation, parole or suspension of sentence; and the penalty for attempted second degree murder is not more than 50 years at hard labor. In imposing the concurrent sentences of 25 years at hard labor for armed robbery and 15 years at hard labor for attempted second degree murder, the judge noted that the defendant was not entitled to probation, in that a sentence for armed robbery must be served without benefit of probation, parole or suspension of sentence. He noted that the defendant had a prior record of auto theft and receiving stolen goods, and had been on probation earlier, without the desired results. The trial judge stated that since defendant had been convicted of two very serious crimes, a lesser sentence would deprecate the seriousness of these offenses.

In mitigation, however, the judge did note that there was some evidence that the defendant had been provoked in the shooting of Miss Sowell and that he had two children by her, who might suffer some hardship as a result of his imprisonment.

Moreover, we note that the sentences received are less than one-third (⅛) of the maximum possible sentence on each conviction and are being served concurrently rather than consecutively. Based upon the defendant’s prior record and the seriousness of the two offenses for which he was convicted, we cannot find the sentences imposed herein to be excessive. They are not so disproportionate to the crimes committed to shock our sense of justice. State v. Bonanno, 384 So.2d 355 (La.1980).

Accordingly, defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . La.R.S. 14:30.1 and 14:27.

      . La.R.S. 14:64.

      . Act No. 70 of 1983 amended La.R.S. 14:64(A) to read as follows:
      Armed robbery
      A. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
      We note that under the new amendment a theft, i.e., taking of the property of another with intent to deprive permanently, is no longer required. A mere "taking” will suffice.


author: HALL, Judge.

text:
    James D. NORRED and Jessie Lee Norred, Plaintiffs-Appellants, v. The EMPLOYERS FIRE INSURANCE COMPANY, Defendant-Appellee.
    No. 16650-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.
    Writ Denied Feb. 4,1985.

      Culpepper, Teat, Caldwell & Avery by Bobby L. Culpepper, Jonesboro, for plaintiff s-appellants.
    Theus, Grisham, Davis & Leigh by Phil D. Myers, Monroe, for defendant-appellee.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   HALL, Judge.

James Norred, the owner of a pickup truck involved in an accident, is appealing the trial court’s decision that the truck was not covered by insurance. The trial court found that the policy had expired prior to the occurrence of the accident, renewal had not taken place, and adequate notice of the insurance company’s intent not to renew had been given to the owner. Because we find the insurance company’s notice was inadequate, the trial court’s judgment is reversed and the case is remanded for determination of damages.

Employers Fire Insurance Company (E.F.I.C.) issued an automobile insurance policy to James Norred on December 11, 1981. Coverage was effective until December 11, 1982. In May 1983, Mr. Norred’s son was involved in an accident while driving the vehicle described in the policy. The accident was promptly reported, but Mr. Norred was informed that the policy had not been renewed by the company; coverage had ended on midnight, December 11, 1982. Mr. Norred then filed suit for a declaratory judgment and to recover under the collision coverage of the policy, contending that E.F.I.C. did not notify him in accordance with LSA-R.S. 22:636.1 of E.F. I.C.’s intent not to renew the policy. By stipulation, only the issue of the insurance company’s liability was tried.

The trial court held that notice of nonre-newal was sent to Mr. Norred. The court noted that a post office certificate of mailing was introduced into evidence. This certificate showed that the letter was deposited with the post office, although unlike certified mail, the certificate did not indicate that the mail was received by Mr. Norred. The court also noted that the insurance agency received a copy of the notice by mail. The court found that under LSA — R.S. 22:636.1, receipt was not required; proof of mailing was sufficient. The court noted that while it fully believed Mr. Norred’s statement that he did not receive the notice, the law did not require proof of receipt, and coverage was thus not in effect at the time of the accident.

LSA-R.S. 22:636.1 regulates cancellation and nonrenewal of automobile insurance policies covering private passenger automobiles. Subsection E. of the statute provides that no insurer shall fail to renew a policy unless it shall “mail or deliver” to the named insured, at the address shown in the policy, at least 20 days advance notice of its intention not to renew. Subsection F. provides:

“Proof of mailing of notice of cancellation, or of intention not to renew or of reasons for cancellation, to the named insured at the address shown in the policy, shall be sufficient proof of notice.”

Cases interpreting LSA-R.S. 22:636 which regulates cancellation of other types of insurance policies and which also requires mailing or delivery of notice have held that since the purpose of notice is to inform the insured that the policy is being terminated, and to afford sufficient time to obtain other insurance, an interpretation which would permit deposit in the mail to conclusively terminate coverage would undermine the purpose of notice. “Mailed to the insured” connotes the completed process of transmission of notice through the mails rather than merely a depositing of notice in the mails. Affirmative proof of nondelivery renders notice ineffectual. Proof of mailing establishes a rebuttable presumption of delivery; the presumption can be rebutted by affirmative proof of nondelivery. Broadway v. All-Star Insurance Corporation, 285 So.2d 536 (La.1973); Aultman v. Rinicker, 416 So.2d 641 (La.App.2d Cir.1982).

Other cases have logically applied the same interpretation to the mailing of notice of cancellation or nonrenewal under LSA-R.S. 22:636.1. Automobile Club Insurance Company v. Aaron, 296 So.2d 464 (La.App. 4th Cir.1974), writ refused 300 So.2d 186 (La.1974); Red Stick Confectionaries, Inc. v. Commercial Union Ins. Co., 365 So.2d 580 (La.App. 1st Cir.1978), writ refused 366 So.2d 574 (La.1979); Pincus v. Pumilia, 412 So.2d 151 (La.App. 4th Cir. 1982); Rosenburg v. Carr, 422 So.2d 526 (La.App. 5th Cir.1982). Compare Harang v. Sparacino, 257 So.2d 785 (La.App. 4th Cir.1972); Dufrene v. Dixie Auto Ins. Co., 376 So.2d 507 (La.App. 4th Cir.1979), writ denied 378 So.2d 1390 (La.1980); Green v. Motors Ins. Corp., 389 So.2d 1370 (La.App. 4th Cir.1980), writ denied 396 So.2d 884 (La.1981).

In the instant case, the trial court correctly found that the defendant insurer convincingly proved the mailing of the notice of intent not to renew. However, the trial court erred in not giving effect to its finding that it fully believed the plaintiff insured did not receive the notice. The affirmative proof of nondelivery should have been considered.

The trial court’s finding that the insured did not receive the notice is supported by the evidence and is not clearly wrong. Mr. Norred testified that he nearly always was the one who picked up the mail at the post office box. His wife, the only other person with the combination to the post office box, infrequently picked up the mail on her day off from work, and did not recall ever picking up a letter from the insurance company. The circumstances under which the mail was picked up serve to help distinguish the present case from Aultman v. Rinicker, supra, in which notice was found adequate. There the insured testified that he never saw a notice of cancellation while his wife testified that she could not recall receiving any mail from the insurance company. However, the insured apparently seldom picked up the mail; the insured’s wife and teenage children had a loose arrangement by which the mail was picked up.

Furthermore, Mr. Norred presented additional evidence of nondelivery. Mr. Norred testified that he knew his policy expired in December 1982, and that on or about January 3, 1983, he called Mr. Patrick Cone, an employee of the insurance agency, and told Mr. Cone to draw a draft on his account to renew the insurance policy. This method of handling matters between Mr. Norred and the insurance agency was not unusual. Mr. Norred also testified that in March 1983, he sold a pickup and personally went by the agency to tell Mr. Cone to take the truck off the insurance policy. Certainly, both of these conversations between Mr. Norred and Mr. Cone are difficult to explain if Mr. Norred had received notice of nonrenewal in 1982.

While Mr. Norred’s recollection of his second conversation with Mr. Cone was clear and detailed, and was corroborated to some extent by the testimony of another witness, Mr. Cone’s testimony was vague and unclear. On direct examination, Mr. Norred stated that after selling a truck to a Mr. Maxwell, Mr. Maxwell and he stopped by the bank, that Mr. Norred went in and told Mr. Cone to take the truck off the insurance policy, and that Mr. Norred watched Mr. Cone write his request down on a piece of paper. On cross-examination, Mr. Norred gave a more detailed account of this event:

“Q. And when you talked to Pat Cone and told him that you had sold the truck and to take that truck off your policy, again he didn’t tell you that the policy was expired?
“A. Now I’m going to tell you about that. He works in that little office and he was busy. What I mean is, you know. And when I went in and told him, I said, Pat be sure and take that pickup off my insurance because I just sold it and he had a piece of paper lying there and he wrote it down, but he was busy with someone else, but he definitely wrote it down. And that’s all I can say.”

Mr. Maxwell corroborated Mr. Norred’s testimony by acknowledging that he accompanied Mr. Norred to the bank and waited outside after Mr. Norred told him that he was going in to have the truck removed from the insurance policy.

On the other hand, Mr. Cone could not recall either conversation with Mr. Norred:

“Q. Okay. Now, do you recall between the date of October 25, 1982 and when Mr. Norred came in and said my boy has had an accident and I need to report it. In that several months in between there, do you ever remember Mr. Norred contacting you in person or by telephone and saying go' ahead and draw drafts on my account to pay the insurance premiums on this insurance policy?
“A. To the best of my knowledge, I cannot remember Mr. Culpepper.
“Q. Okay. What you are saying is, I can’t say yea or nay but I just don’t remember it?
“A. I don’t think so, but to be honest with you I can’t remember.
“Q. Okay. Well during that time period, do you remember Mr. Norred contacting you and saying I have sold one of these vehicles that is insured on this policy. I need to delete or take that vehicle off of my coverage?
“A. To be honest with you, he could have, but I do not think so, but again I can’t remember.”

Mr. Norred’s clear, detailed testimony, corroborated to some extent by Mr. Maxwell, combined with the testimony of how Mr. Norred picked up his mail, together with evidence that Mr. Norred had regularly insured his vehicles with the agency over a period of several years, indicating that he would have made other arrangements for insurance if he had received notice that the defendant’s policy would not be renewed, provides sufficient affirmative evidence of nondelivery from which the trial judge properly concluded that Mr. Norred did not receive notice of nonrenewal. The rebut-table presumption of delivery was rebutted by sufficient evidence of nondelivery of the mailed notice. Accordingly, the notice requirements of LSA-R.S. 22:636.1 were not met; the policy was renewed and in effect at the time of the accident.

Since the issue of the amount of the loss under the policy was not before the trial court, the case will be remanded for determination of the amount due Mr. Norred. However, because the factual question presented was substantial, we find the insurer was not arbitrary or capricious in withholding payment, and that penalties and attorney fees should be disallowed.

For the reasons assigned above, the judgment of the trial court is reversed and the case is remanded for determination of the amount due under the policy. Costs are assessed to the appellee.

Reversed and remanded.


text:
    Connie Louise Ellerbe ROBERTS, Plaintiff-Appellant, v. Michael Cromer ROBERTS, Defendant-Appellee.
    No. 16652-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.
    Johnny R. Boothe, Winnsboro, for plaintiff-appellant.
    S.E. Lee, Jr., Winnsboro, for defendant-appellee.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

The mother appeals that portion of a divorce judgment which removed the two children of the marriage from her sole custody and awarded joint custody to her and to the father. CC Arts. 146, 157. She also complains that the trial court erred in reducing the father’s monthly support obligation by $82.

We find no error or abuse of discretion by the trial court and affirm. Turner v. Turner, 455 So.2d 1374 (La.1984), Peters v. Peters, 449 So.2d 1372 (La.App. 2d Cir.1984).

CC Art. 146 “clearly provides ... only a presumption in favor of joint custody, [which] may be rebutted upon a proper showing that a different arrangement is in the child’s best interest. Such a showing now must include a consideration of eleven specific ... factors, plus ‘any other factor’ which the trial court deems ... relevant.” The burden of proving that joint custody would not be in the best interest of the children is on the party seeking sole custody. Turner, supra, at 1379.

Each custody case, of course, must be determined on its own facts with much discretion being afforded the trial court. A plan of alternating living arrangements for the child is not, as a matter of law, either required or prohibited, and the overriding codal direction remains the best interest of the child. Peters, supra. Adams v. Adams, 441 So.2d 490 (La.App. 2d Cir.1988).

The children in this action were IV2 and 3-year-old boys. The trial court directed that the parties submit plans for joint custody for its consideration. The mother proposed, and urges here, a plan that would have the children spending six days with her and three days with the father. The trial court adopted a plan, essentially as proposed by the father, of alternate two week periods with each parent. The mother argues that the children have never stayed away from “home” more than three days and that a mother is often better suited to care for children of tender age. Plemer v. Plemer, 436 So.2d 1348 (La.App. 4th Cir.1983). Stability, of course, is a consideration, but CC Art. 146(A)(2) expressly forbids preferring a parent as the custodian because of that parent’s sex. Turner, supra, at 1379.

These parents live about a mile apart. They attend the same church and are able to communicate with each other. The mother asserts that she has since married the man she had been living with and that the children enjoy a good relationship with him. The father lives with his parents, who also enjoy a close relationship with the children and who have adequate room and desire to accommodate them. A baby sitter, with whom the children are comfortable, is available and agreeable to sitting in either home. Also living in the mother’s home is her brother, her male friend (or new husband) and his three-year-old son. The trial court characterized both parents as “intelligent and ... reasonable people.” The father’s residence with his parents is less permanent than the residence of the mother but that home is shown to be stable and comfortable and not detrimental to the children. Compare Adams, supra, where custody of a child under two years of age was jointly awarded both parents for substantially equal periods of time.

The father is employed as a maintenance man at a trailer factory and also part time as a disc jockey at a radio station, and earns $185 per week take home pay. The mother earns $858 per month net pay as a school teacher. Under the separation judgment, sole custody was vested in the mother with the father enjoying reasonable visitation (every other weekend) privileges. Her contention that the expenses of her household exceed her income is somewhat enervated by the presence of her brother, her new husband and his son in that household. The children are provided medical insurance coverage by their father.

Under the circumstances of this record, we find no error or abuse of discretion in the award of joint custody or in the reduction of child support from $182 to $100 per month.

At appellant’s cost, judgment is AFFIRMED.


text:
    Margie HINES, Plaintiff-Appellee, v. Claude A. DANCE, Jr., Defendant-Appellant.
    No. 16685-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.

      Evans, Feist, Auer & Keene by George H. Mills, Jr., Shreveport, for defendant-appellant.
    Bowers & Bowers by Burt A. Bowers, Shreveport, for plaintiff-appellee.
    Before MARVIN, FRED W. JONES, Jr. and NORRIS, JJ.
   MARVIN, Judge.

The defendant purchaser of a Shreveport lot at a city tax sale in 1978 appeals a judgment annulling his tax deed.

Defendant contends that the 1964 instrument by which the plaintiff claims to have acquired the lot should not have been construed as being translative of title and, alternatively, that the trial court failed to order plaintiff to pay him the proper amount of costs and taxes that he had paid for and since the 1978 tax sale. LSA-Const. Art. 7, § 25; LRS 47:2221. Defendant also complains that he should not have been solely assessed with costs in this action. CCP Art. 1920. We affirm.

FACTS

The instrument in question was prepared by the attorney for the owner of the property in 1964, a Mrs. Bredthauer. Both Mrs. Bredthauer and her attorney died before this action was instituted. The instrument was recorded shortly after it was executed. The trial court called the instrument ambiguous, less than precise, but found it to be translative of title as a credit sale containing security provisions in favor of the styled “vendor,” Mrs. Bredthauer. Plaintiff Mrs. Hines is styled “vendee” in the instrument. The trial court further identified Mrs. Hines, a widow, as a kitchen worker in a local hospital who had only a “limited education.”

Mrs. Bredthauer died in 1977 while living with her daughter, Mrs. Price, in Lake Charles. Mrs. Price testified that her mother believed she had sold the property to Mrs. Hines in 1964 when the instrument was executed and when Mrs. Hines moved into the residence on the property which she has since occupied. Mrs. Hines testified to the same effect. Three months after this action was filed Mrs. Price and Mrs. Hines executed and recorded a “correction” deed declaring the effect of the 1964 “deed.”

Neither party contests the principle derived from constitutional and statutory authority that notice of a tax delinquency to the person designated as owner on the tax assessor’s rolls is not sufficient to support a tax deed if the conveyance records show that another person is the owner. Recker v. Dupuy, 160 La. 392, 108 So. 782 (1926); Cook v. Morgan, 142 So. 279 (La. App. 2d Cir.1932); Di Giovanni v. Cortinas, 216 La. 687, 44 So.2d 818 (1950). See LSA-Const. Art. 7, § 25; LRS 47:2180.

The legal issue is relegated to how the 1964 instrument is to be construed and characterized. In part, it reads:

“Vendor agrees to sell, and vendee agrees to buy ... upon the terms and conditions hereafter recited, the following property ...
“Lot 12, etc. ...
“The consideration ... is ... $6,500, with ... interest from date, payable in monthly installments of $65 each ... applying in the order followihg:
“¾⅛ of a sufficient amount to cover annual taxes and hazard insurance ... “Interest ...
“... [Principal
“Upon default ... vendor shall have the right to cancel ... this contract, and retain all payments made as liquidated damages ...
“There shall be maintained ... hazard insurance ... in vendor’s name.
“Vendee will keep the improvements ... in good repair ...”

Mrs. Hines paid each installment on the note, which was placed by Mrs. Bredthauer with a Shreveport bank for collection. Tax notices after 1964 were mailed to Mrs. Bredthauer in Lake Charles. Mrs. Bred-thauer paid the annual taxes until her death in 1977.

A delinquent tax notice for 1977 city taxes was mailed to Mrs. Bredthauer in Lake Charles by certified mail. Mrs. Price signed for the letter. Taxes were not paid, however, and defendant purchased the lot ■at tax sale in July 1978 for the delinquent 1977 city taxes.

A Sheriff’s tax sale, for delinquent taxes owed the state and parish was conducted in May 1978 and the property was sold at that sale to one George Gorsulowsky. Mrs. Hines learned of these tax sales in 1980 when she sought to use her home as security for a loan. She later bought the interest Gorsulowsky acquired from the Sheriff’s tax sale. This action was filed in 1983 to annul the 1978 tax deed to defendant from the city.

We find no error in the trial court’s conclusions and, as here summarized, we adopt reasons for judgment given by the trial court. The instrument at best is ambiguous. It is not, however, a bond for deed contract under LRS 9:2941, as defendant contends, because it does not comply with the statutory provisions which require the contract to contain a provision to the effect that seller, after receiving payment of a stipulated sum, agrees to deliver title to the buyer.

A contract of sale is complete when the parties concur on three circumstances: the thing sold, the price, and the consent. La. CC Art. 2456. The conclusion that this instrument should be construed as a credit sale with some security provision for the vendor is not clearly wrong. The vendee-debtor was paying first the taxes, then insurance, then interest, and finally principal each month to the vendor-creditor, apparently to assure the vendor-creditor that sufficient funds would be available to pay taxes and insurance as they became due and in whatever amount was owed from time to time. This does not create an uncertainty in the price of the thing, but indicates a security device similar to that which is contained in conventional vendor’s lien-credit sales in private and in commercial transactions. Similarly, vendee’s obligation to keep the improvements in good repair at vendee’s expense protects the vendor’s security interest. The remaining part of this paragraph, that vendee advise “vendor in advance of such improvements,” adds to the ambiguity of the instrument, but does not negate or refute vendee’s obligation to maintain the improvements or indicate that the vendor retained ownership or title to the lot and the improvements.

Defendant cites Peck v. Bemiss, 10 La. Ann. 160 (La.1855) in support of his argument that the language of the present contract is not translative of title but is a 'promise of sale instead of a contract of sale. In Peck, the instrument contained somewhat similar language. Peck, however, construed the language of that ambiguous contract in the light of the surrounding circumstances. In Peck, the buyer never went into possession of the property, and the buyer knew when the instrument was executed that another, not the seller, had been in possession for many months.

Peck is inapposite, because in the present case the surrounding circumstances show the intent and the ability of the parties to perfect a contract of sale when they executed the instrument and placed it of record.

Scott v. Apgar, 238 La. 29, 113 So.2d 457 (1959); Louisiana Delta Farms Co. v. Davis, 202 La. 445, 12 So.2d 213 (1942); and Page v. Loeffler, 146 La. 890, 84 So. 194 (1920), also cited by appellant, are inappo-site except that they recognize that a contract to sell is not translative of title. A tax sale in any event, illustrates the rule of “caveat emptor.” Lindner v. City of New Orleans, 116 La. 372, 40 So. 736 (1906); Jones v. Police Jury of Cameron Parish, 5 La.App. 336 (1st Cir.1927).

APPELLANT’S RECOVERY

The testimony of the city, and the state and parish tax collector’s respective representatives and the testimony of defendant simply show that defendant paid only the amount awarded by the court. There is some indication of payment of taxes by Gorsulowsky or others during the 1978-1980 period, but no evidence of payment by defendant. We find no error in this respect by the trial court.

COURT, COSTS

The statutory and constitutional costs, which defendant says should include court costs incurred in this action, generally have been recognized as costs that are charged for the tax deed and for the advertisement of the delinquency and pending sale. These “costs” have been construed not to include a tax purchaser’s attorney fees incurred in an action to compel him to execute a redemption deed. Builder’s Lumber & Supply Co. v. Jordan Lands, Inc., 228 So.2d 359 (La.App. 3d Cir.1969), writ refused. The statutory and constitutional costs should not include, in our opinion, court costs assessed against a tax sale purchaser in an action to annul his tax deed.

Court costs were assessed in accord! with CCP Art. 1920. The trial court has some discretion under this article to consider a more equitable assessment but cannot be compelled to exercise that discretion by the mere urging of a litigant. Appellant’s contention that he should not have to pay because he had offered to “amicably settle” also does not avail him because the litigants apparently could not agree on what amounts defendant had paid after the tax deed was executed to him. Appellant did not prove to the trial court or to us that he paid more than the trial court awarded.

DECREE

At the cost of defendant-appellant, the judgment is AFFIRMED.