source: Caselaw Access Project

author: LEMMON, Justice. PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Wilby Frank SUMMIT.
    No. 83-KA-2423.
    Supreme Court of Louisiana.
    May 14, 1984.
    Rehearing Denied Sept. 19, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Charles Brandt, Asst. Dist. Atty., for plaintiff-appellee.
    Alfred F. Boustany, II, James Michael Wooderson, Lafayette, for defendant-appellant.
   LEMMON, Justice.

This is a death penalty case. La.C.Cr.P. Art. 905.9 provides defendant with an automatic appeal to this court. The principal issues on appeal involve the sufficiency of the evidence supporting the conviction of first degree murder, the misuse in the guilt phase of defendant’s assertion of his right to remain silent, the prosecutor’s closing arguments and the trial court’s jury instruction during the sentencing phase of the bifurcated trial, and the propriety of the death sentence for this particular offense and this particular offender. Finding no merit in any of the assignments of error or in our independent examination of the record, we affirm the conviction and the sentence of death.

GUILT PHASE

Facts

Voorhies Toucheque was stabbed to death at approximately 7:45 p.m. on May 10, 1980 at a rest area on Interstate Highway 10 near Lafayette. Toucheque sustained three stab wounds: one to the right neck area, about two inches in depth, which penetrated the jugular vein and the thyroid artery; one to the right chest area, about four inches in depth, which penetrated the lung; and one in the back, about four inches in depth, which also penetrated the lung. Bruising in the area of entry indicated that the hilt of the knife struck defendant’s back when two of the wounds were inflicted.

The principal evidence of the circumstances surrounding the stabbing was provided by Gerald Bowers, who described critical events at the scene. When Bowers entered the bathroom at the rest area, he observed two men who appeared nervous and gave him a “dirty look”. Suspecting that he had interrupted a drug exchange or some other questionable activity, Bowers immediately left the restroom. A few minutes later, he saw the two men standing beside the open door of a burgundy colored Buick. As Bowers stood outside the bathroom, he heard a yell and three moans from inside the bathroom. Immediately thereafter, defendant ran out of the front door of the bathroom with “something” in his hand, and then Toucheque emerged from the back door, covered with blood and holding his chest. Toucheque told Bowers, “I was just stabbed”, adding, “I never hurt anybody”.

Upon seeing defendant run across a field and into the nearby woods, Bowers followed him, as did several other onlookers. During the search, Bowers observed defendant in an unobstructed front view in a clearing. After about a 15-minute manhunt, police apprehended defendant in the woods, where he was hiding behind some bushes.

When Bowers told police of his observations at the scene of the stabbing, he also mentioned that he had seen a man in blue short pants either enter or leave the bathroom after the stabbing and after defendant had run away from the building.

Detective Mark Comeaux came upon the scene just as defendant was captured. He first saw defendant handcuffed and lying face down on the ground. Comeaux assisted defendant to his feet, informed him of his constitutional rights, obtained an affirmation that defendant understood those rights, and then questioned defendant about the incident. Defendant responded that “I’ll tell you later”. As defendant and Comeaux walked to Officer Mike Landry’s patrol car, Comeaux asked defendant if anyone else was with him, and defendant replied, “Yes, there were three individuals who were in a ’77 or ’78 red Buick, with Ohio plates”. Comeaux then requested the issuance of a police alert for the described vehicle.

On the way to the police station, Officer Landry noted that defendant’s knife pouch was empty. Defendant explained that he had fallen during his flight in the woods and lost his knife and his baseball cap.

At the police station in Lafayette, Officer Landry turned defendant over to Officer Bob Johnson, who again informed defendant of his constitutional rights and inquired if he desired to have an attorney. According to Johnson, defendant replied:

“No. You and I both know what I did is wrong. We were short on cash and out of work. I jumped him. He fought back. I stabbed him. I ran out the front. He went out the back. I ran but the police caught me.”

Officer Johnson then interviewed witnesses and investigators for about 20 minutes in order to learn details of the incident for use in interrogating defendant. When Johnson returned to question defendant further and attempted to obtain a taped statement, defendant told Johnson that he desired to speak to an attorney before making any further statements. Johnson therefore terminated the questioning.

Officer Johnson obtained photographs of blood on defendant’s clothes and on both of his hands. He also noticed a cut on defendant’s left ring finger. He then obtained gauze swab samples of the dried blood from defendant’s hands and sent them to the crime laboratory for testing.

An expert in serology determined that defendant had type A blood. The expert further determined that the blood removed from defendant’s hands, as well as blood samples taken from the floor of the rest room and the adjoining sidewalks, contained type AB antigens. The expert opined that blood from a person with type A blood would not contain type AB antigens unless there were unusual circumstances such as a recent transfusion.

Defendant testified in his own behalf at trial as follows: Three men in a red Buick with Ohio license plates picked him up while he was hitchhiking near Beaumont, Texas. He shared the backseat with a man named Mike, who was wearing blue short pants and a tee-shirt. He described Mike as a “very strange” person who carried a number of knives in a hiking sack and always had one in his hands during the trip. Defendant was asleep when they arrived at the rest area near Lafayette. When he awoke and went into the bathroom, Mike followed him. As defendant was washing his hands and face, he heard a commotion and noticed in the mirror that Mike was struggling with another man in the rest room. He went over to assist, but was cut on the hand by a knife that Mike was wielding. Afraid that Mike was going to use the knife on him, defendant fled from the bathroom. Defendant expressly stated that he had come no closer to the victim than two feet.

Defendant denied telling the police that he had stabbed the victim or that he knew that what he had done was wrong. He explained that he told the police only that he knew (realized) it was wrong for him to have run.

Neither defendant’s knife nor his cap was ever recovered by the police.

The jury, after deliberating for almost two hours, found defendant guilty of first degree murder.

Sufficiency of the Evidence (Assignments Nos. 21, 29)

Defendant contends that the circumstantial evidence was insufficient to prove beyond a reasonable doubt that he was guilty of all of the essential elements of first degree murder. He particularly argues that the evidence does not establish beyond a reasonable doubt that he had the specific intent to kill or to inflict great bodily harm upon the victim.

Defendant is correct in that part of his argument in which he asserts that a reasonable construction of the evidence could lead to the conclusion that the stabbing occurred during a struggle after the victim resisted a robbery attempt. Defendant is incorrect, however, in his argument that such a construction serves to make the stabbing an unintentional second degree murder (felony murder). There can be no reasonable doubt that the person who killed Toucheque by stabbing hiña three times (of which two were to the full length of the knife blade) specifically intended to inflict great bodily harm on the victim. Therefore, defendant’s more weighty sufficiency argument is that the state’s circumstantial evidence did not establish that he was the person who intended to inflict and actually inflicted the bodily harm which resulted in the victim’s death.

In this respect, defendant contends that his version of the incident was a reasonable one which was not inconsistent with the circumstantial evidence. Defendant argues that Bowers actually corroborated his version to some extent by verifying the presence of a man in blue short pants in or near the bathroom at the approximate time of the stabbing. He further points out that neither the murder weapon nor the man named Mike was ever found and that no evidence established that the blood on his hands and clothes matched the victim’s blood type.

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). A Louisiana appellate court, viewing the evidence in the light most favorable to the prosecution, must determine that a rational trier of fact could have concluded that all of the elements of the crime had been proved beyond a reasonable doubt. The Jackson standard is an objective standard for testing the overall evidence, direct and circumstantial, for reasonable doubt. State v. Captville, 448 So.2d 676 (La.1984); State v. Nealy, 450 So.2d 634 (La.1984).

In a circumstantial evidence case in which the defendant was present at the time of the offense and the circumstances reasonably raise the inference that the defendant was the offender, and the jury reasonably rejects the exculpatory version of the incident presented by the defendant’s own testimony, that hypothesis of innocence falls. The defendant is therefore guilty unless there is another hypothesis which raises a reasonable doubt. State v. Captville, above.

In the present case, defendant was present at the time of the stabbing, and he had blood other than his own on his hands, although he denied coming within two feet of the victim. He ran out of the bathroom with something in his hand immediately after the victim’s scream and moans were heard by Bowers. His knife pouch was empty when he was apprehended in the woods. Defendant’s version of being cut while attempting to prevent Mike from robbing the victim was rejected by the jury, and there is no other hypothesis of innocence which might raise a reasonable doubt as to defendant’s guilt.

Moreover, the evidence in this case included a statement by defendant immediately after the incident that he was the one who stabbed the victim. Although defendant denied making such a statement at trial, the jury resolved that conflict in the testimony against defendant, and the incul-patory statement combined with the considerable amount of circumstantial evidence clearly established defendant’s guilt beyond a reasonable doubt. On the basis of the overall evidence, considered in the light most favorable to the prosecution, a reasonable juror could have concluded beyond a reasonable doubt that defendant used a knife to attempt an armed robbery and stabbed the victim when he resisted.

Post-Arrest Assertion of Right to Silence (Assignments Nos. 10, 11, 12)

Citing Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976), defendant contends the trial court erred in allowing the state to use his assertion of his constitutional right to remain silent during post-arrest interrogation by police for the purpose of impeaching the version of the incident that he related at trial. Defendant complains that the state improperly used the fact of his post-arrest silence both during the testimony of Officer Johnson and during the cross-examination of defendant. He further contends that the prosecutor made an impermissible reference during rebuttal argument to the assertion of his right to silence.

In the Doyle case, the defendants remained silent after being expressly advised of their right to do so. At trial, each defendant took the stand and gave a plausible exculpatory account of the drug transaction which was not contradicted by direct evidence. Over objection, the prosecutor asked each defendant why he had not told his version to the police prior to trial. The Court reversed the conviction, holding that “the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.” The Court reasoned that since “[sjilence in the wake of these warnings may be nothing more than an arres-tee’s exercise of these Miranda rights ..., every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested”. 426 U.S. at 617, 96 S.Ct. at 2244.

In the instant case, defendant was advised of his rights several times after his arrest, but nevertheless made several incul-patory statements to the police before eventually exercising his right to remain silent. Because defendant at trial repudiated his post-arrest statements and gave a contradictory version of the incident, it was necessary for the state to establish the entire circumstances surrounding his post-arrest statements.

Actually, the prosecutor at first cautiously avoided any reference to defendant’s invocation of his right to remain silent. During the state’s case, Officer Johnson testified that defendant made the statement about stabbing the victim in response to an inquiry about his desire to have an attorney. Explaining that he had never been to the scene and had no background information with which to question defendant, Johnson testified that he then spoke with several witnesses and investigators before returning to commence the taped interrogation of defendant. When Johnson began a reference to the aborted interview on tape, the prosecutor interrupted with the simple question, “You did not complete that interview?”, and then went on to another subject. However, defense counsel, in cross-examining Johnson on his denial that defendant ever told him anything about the three men in the red Buick, used the transcript of the partially completed taped statement to emphasize that defendant at one point indicated he wished to give a taped statement (before telling Johnson that he preferred to speak to a lawyer first). On redirect by the prosecutor, Johnson verified that he was required by law to terminate the interrogation as soon as defendant stated that he desired the presence of an attorney.

When defendant later took the stand, he admitted making several post-arrest statements, but denied the accuracy of the incul-patory portions of those statements. Defendant then asserted that Officer Johnson refused to listen to him when he attempted to tell the officer that Mike committed the crime and escaped in the red Buick. The prosecutor on cross-examination then went into the complete details of Johnson’s interrogation of defendant in order to impeach defendant’s testimony that Johnson refused to listen to his version.

Under these circumstances, the prosecutor’s bringing before the jury the fact of defendant’s assertion of his constitutional rights was not designed to ascribe a guilty meaning to defendant’s silence, but rather served to demonstrate thé inconsistencies between defendant's post-arrest statement and his trial testimony. See Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980), which distinguished the Doyle situation (in which the prosecutor unfairly used as impeaching evidence the inferences drawn from defendant’s total silence after being informed that he had the legal right to remain silent) from the situation in which the defendant was not induced by Miranda warnings to remain silent, but in fact gave a partial statement after arrest which was inconsistent with his testimony at trial. See also State v. Kersey, 406 So.2d 555 (La.1981), in which the defendant answered a series of questions by the police before invoking his right to remain silent, and this court held that the officer’s reference to this fact merely explained how the interrogation was concluded, rather than calling attention to the silence, and State v. Bell, 446 So.2d 1191 (La.1984), in which this court recognized an exception to Doyle when the evidence of postarrest silence is relevant to rebut a defense raised assertion that the arresting officers failed to properly investigate or that defendant actively cooperated with police when arrested.

Thus, the present case is clearly distinguishable from Doyle on critical points. Unlike Doyle, the defendant was not induced by required warnings to remain silent, and there was no possibility of inherent ambiguity in his eventual silence. Unlike Doyle, this defendant’s trial testimony was impeached by direct evidence and by his own statements. Unlike Doyle, the fact of defendant’s silence was not used principally to undermine by inference an exculpatory version related for the first time at trial, but was used to directly challenge his trial testimony that he tried repeatedly and unsuccessfully to tell the police exactly what happened. See Doyle, note 11, quoted in note 10, above.

We conclude that the prosecutor did not improperly use defendant’s assertion of his right to silence, after giving statements which were inconsistent with his trial testimony, for the purpose of drawing meaning from defendant’s eventual silence. The use of the fact of silence, particularly with respect to defendant’s trial testimony that the police refused to listen to his exculpatory version, did not violate due process.

SENTENCING PHASE

Facts

After the verdict in the guilt phase, the trial court immediately conducted the penalty hearing before the same jurors. La.C. Cr.P. Art. 905.1. The state adopted the evidence from the guilt phase and recalled Officer Johnson, who testified that defendant did not appear to be intoxicated at the time of his arrest. Other than cross-examining Officer Johnson to establish that defendant had not been previously convicted of any felonies, defense counsel did not present any further evidence.

The state thus relied only on the aggravating circumstance which had been relied on as the “aggravating element” of first degree murder: that the defendant was attempting to commit an armed robbery when he intentionally killed his victim. See La.R.S. 14:30(1) and La.C.Cr.P. Art. 905.-4(a).

After closing arguments and jury instructions, the jury deliberated for a while and then asked to see photographs taken of defendant at his arrest. The jury thereafter deliberated about two more hours before unanimously agreeing to recommend the death penalty. On the initial verdict form, the jury listed the aggravating circumstance that defendant at the time of the killing was engaged in the attempted perpetration of an armed robbery. The jury mistakenly also listed one mitigating circumstance, namely, that defendant had no significant prior history of criminal activity. The trial judge again instructed the jury on the proper method of completing the verdict sheet, and the jury, after five minutes of deliberation, returned a second recommendation of death which listed only the single aggravating circumstance. Defendant was sentenced in accordance with that verdict.

Constitutionality of Louisiana Statutory Scheme (Assignments Nos. 17, 18, 19, 20)

Defendant raised three challenges to the constitutionality of the Louisiana death penalty scheme. None have any merit.

Defendant first complains that La.R.S. 14:30, which incorporates an “aggravating element” into the definition of the substantive offense of first degree murder and requires the jury to find at least one aggravating circumstance in order to convict in the guilt phase, unconstitutionally predisposes the jury to return the death penalty in the sentencing phase on the basis of the same aggravating circumstance.

This argument was rejected in State v. Knighton, 436 So.2d 1141 (La.1983). The fact that the Legislature chose to narrow the class of “death qualified” homicide cases by requiring the state to prove an “aggravating element” in the guilt stage does not offend any constitutional principle. Louisiana’s capital sentencing scheme provides that a jury cannot even consider the death penalty unless the crime falls into the narrowly defined category of first degree murder cases. By narrowing the category at the guilt phase, rather than at the penalty phase, Louisiana provides greater protection against arbitrariness than is required by Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Moreover, the jury’s finding of an aggravating circumstance in the guilt phase does not mandate a recommendation of death. The defense thereafter has the opportunity to present evidence of mitigating circumstances, and the jury has the discretion to recommend life imprisonment notwithstanding the presence of any aggravating circumstances.

Defendant also complains that Louisiana’s scheme is unconstitutional because it does not require the selection of a separate jury to determine the penalty in the sentencing phase. He argues that selecting a “death qualified” jury under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) (one selected by eliminating potential jurors who cannot consider imposing the death penalty under any circumstances) results in the selection of a “prosecution prone” jury to serve in the guilt phase. This argument was rejected in State v. David, 425 So.2d 1241 (La.1983), and in Witherspoon itself. Moreover, defendant has not offered any factual support for his contentions.

Defendant also challenges the constitutionality of the Louisiana scheme on the basis that the statute describes the jury verdict as a “recommendation”, when in fact the jury’s “recommendation” is binding on the trial judge who must sentence in accordance with the jury’s “recommendation”.

The fact that the statute describes the verdict as a “recommendation” does not derogate from the jurors’ appreciation of the extreme significance of their “recommendation”. In this case, the jurors were clearly instructed that the trial court must sentence in accordance with their unanimous recommendation. Moreover, the prosecutor informed the jurors that their failure to agree on a “recommendation” would result in a sentence of life imprisonment without parole.

The jurors were therefore aware of the significance of their role, and the use in the statute of the term “recommendation” did not serve to convey any false idea that the trial court was to consider their “recommendation” as only one of several factors in deciding the penalty. Finally, the recommendation of death is always subject to judicial review, both by the trial court on motion for new trial and by this court on an automatic appeal.

Evidence of Lack of Remorse (Part of Assignment No. 30)

During the penalty phase, the prosecutor called Officer Johnson to testify that the defendant exhibited no remorse or concern for the victim at the time of his- arrest (other than commenting to the officer, “You and I both know what I did was wrong”). Defendant claims that this testimony (and the prosecutor’s later reference in closing argument to the lack of remorse) injected an improper factor into the jury’s deliberations.

We do not agree that defendant’s remorse or lack of remorse for the senseless and totally unjustified taking of an innocent human life is not an inappropriate factor for a capital jury to consider. Rather, such matters as an expression of penitence or of concern for the magnitude of the harm are within the scope of the focus on the character and propensities of the accused. La.C.Cr.P. Art. 905.1.

Here, the prosecutor was directly attacking defendant’s resolute denial of any responsibility for the victim’s death, which was clearly the defense strategy at both the guilt and penalty (since no other evidence was offered) phases. Thus, “lack of remorse” was a relevant factor for the sentencing jury’s consideration.

Prosecutor’s Closing Argument (Assignments Nos. 23, 24, 25, 26, 27)

Defendant complains of several remarks made by the prosecutor during his closing argument. These complaints deal with the reference to defendant as a “menace to society”, the reference to the killing of the victim as a “summary execution”, the comment that a death recommendation “does not constitute killing Wilby Summit”, and the argument that defendant’s lack of prior convictions for serious crimes simply meant that defendant had “never been caught before”.

The reference to defendant as a “menace to society” was simply an assessment drawn from the evidence presented at trial. Although such colorful and emotionally charged expressions arguably constitute improper closing argument, there was no undue prejudice shown. However, defense counsel argues that the improper comment, combined with the prosecutor’s earlier statement that the jury’s inability to agree unanimously on a recommendation would result in a sentence of life imprisonment (without mentioning that defendant would not be eligible for parole), placed an arbitrary factor before the jury. We disagree. The comments did not imply that a life sentence might result in defendant’s release and opportunity to harm other innocent persons, nor did it invite the jury to speculate on the possibility of future release. See State v. Robinson, 421 So.2d 229 (La.1982); State v. Willie, 410 So.2d 1019 (La.1982). Compare California v. Ramos, — U.S. —, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983). Moreover, the trial judge instructed the jury expressly on several occasions that a life sentence would be without benefit of parole.

The reference to the victim’s murder as a “summary execution”, without the protections afforded to an accused in a capital case (such as to this defendant), was likewise a colorful and somewhat emotional plea. Although a prosecutor may not appropriately suggest that the protections given an accused are hindrances to the just and fair disposition of a criminal case, there was no such inference raised here. The prosecutor merely presented the rather obvious fact (although in “prosecutorial rhetoric”) that defendant murdered his defenseless victim in an unprovoked and shocking act which was abhorrent to civilized society.

We conclude that this argument did not serve to inflame the jury or to create an unwarranted sense of vengeance, nor did it inject an arbitrary and unduly prejudicial factor into the sentencing process so as to require reversal of the sentence. See State v. Brumfield, 263 La. 147, 267 So.2d 553 (1972); State v. Dupre, 408 So.2d 1229 (La.1982); State v. Monroe, 397 So.2d 1258 (La.1981). Neither did the argument express any personal knowledge of facts outside the record. See State v. Harrison, 367 So.2d 1 (La.1979).

As to the prosecutor’s argument that recommending a death sentence “did not constitute killing Wilby Summit”, we disagree that the argument served to lessen the jurors’ appreciation of their awesome responsibility. The prosecutor did not try to downplay the jury’s verdict as a mere starting point for the capital sentence. See State v. Willie, above. The prosecutor, after having informed the jurors that their recommendation was binding on the sentencing court, simply reminded them that recommending the death penalty was a lawful, societally approved act in a proper case. Thus, this argument did not inject an arbitrary factor into the sentencing process.

The most problematic assignment concerns the prosecutor’s argument about defendant’s lack of a prior record. By arguing that “having no record just means you haven’t been caught”, the prosecutor in effect invited the jury to speculate that defendant may have been the undetected perpetrator of other criminal acts. Nevertheless, while we do not approve of this argument because of its purely conjectural nature (having no basis in the evidence or lack of evidence), we conclude that the argument did not prejudicially mislead the jurors. The jurors in this case indicated in writing that they found as a fact that defendant lacked a significant prior history of criminal activity when they inadvertently listed that statutory mitigating circumstance on the first verdict sheet. Thus, the good common sense of the jurors was not deflected by an improper prosecutorial invitation to speculate on the possibility of unproved prior criminal acts by defendant. See State v. Dupre, above.

Jury Instructions (Assignment No. 28)

Defendant argues here that the trial judge’s instructions failed to specify with sufficient clarity the fact that the jury need not return a death sentence recommendation merely because the jury found an aggravating circumstance. See State v. Watson, 423 So.2d 1130 (La.1982).

The trial judge instructed the jury as follows:

“You are required to consider the existence of aggravating and mitigating circumstances in deciding which sentence should be imposed.
S}J * * * * ¡⅜
“Before you decide that a sentence of death should be imposed, you must unanimously find beyond a reasonable doubt that the alleged aggravating circumstance existed.
“If you find beyond a reasonable doubt the alleged aggravated circumstance existed, you may consider imposing a sentence of death. If however you do not unanimously find beyond a reasonable doubt that the alleged statutory aggravating circumstance existed, then life imprisonment without benefit of probation, parole or suspension of sentence is the only sentence that may be imposed. “Even if you find the existence of the aggravating circumstance, you must also consider any mitigating circumstances before you decide that a sentence of death should be imposed.” (Emphasis supplied.)

This instruction was taken verbatim from the Louisiana Judges’ Benchbook, Volume I, Jury Instructions — Criminal, pp. CI-2 through 10 (La.Jud.College, 1978). We cited this instruction with approval in State v. Watson, above at note 7. The instruction clearly informs the jurors that they must not even consider the death penalty unless they find one aggravating circumstance and that, even then, they must consider mitigating circumstances before deciding upon the penalty to be recommended. The instruction also made it clear that the mere finding of an aggravating circumstance did not necessitate a recommendation of the death penalty.

CAPITAL SENTENCE REVIEW

La.C.Cr.P. Art. 905.9 requires this court to review every sentence of death to decide whether the sentence is excessive. In doing so, this court determines (1) whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) whether the evidence supports the jury’s finding of a statutory aggravating circumstance; and (3) whether the sentence is disproportionate to the sentence imposed in similar cases, considering both the crime and the defendant. Supreme Court Rule XXVIII.

Passion, Prejudice, or other Arbitrary Factors

Both defendant and the 55-year old victim were of the same race. The case apparently attracted little notoriety, since defendant offered no evidence at the hearing on the requested change of venue indicating either extensive or sensational coverage.

The Uniform Capital Sentence Report reveals that defendant was a 29-year old white male who had no prior felony convictions. He was born in Ohio and raised in Lowell, Indiana. His parents, four sisters and one brother still reside in Indiana. He completed the tenth grade, earning average marks, but was several times suspended for missing classes.

During his two years in the Army, defendant was court martialed once and sentenced to one week at hard labor, reduction in rank and restriction for “making a false statement and absenting himself from duty without authority”. During the same period, he also accumulated an extensive record of misdemeanor traffic and vehicle-related violations and fines, several times receiving time in the county jail. He was also arrested on more serious charges. In September, 1974, he received a less than honorable discharge from the Army.

Defendant has been twice married and twice divorced. He is the father of one child, a five-year old daughter. At the time of his arrest, he had not been contributing to the support of the child.

In 1975 defendant returned to Indiana and worked in the construction industry for a number of years. He received two more misdemeanor convictions for violations of the state liquor laws. In January of 1982, he began working for a Louisiana firm as a deckhand and was employed there at the time of his arrest in May of 1982.

Sufficiency of Evidence of a Statutory Aggravating Circumstance

The state relied on only one aggravating circumstance: the attempted commission of an armed robbery. As previously discussed, the evidence was sufficient to establish that “aggravating element” of the offense of first degree murder and also the “aggravating circumstances” found by the jury.

Proportionality Review

Supreme Court Rule XXVIII § 1(c) directs us to compare the proportionality of defendant’s sentence to the sentence imposed in similar eases, considering both the crime and the defendant. Section 4 of that same rule requires the. district attorney to outline in a sentence memorandum “each first degree murder case in the district in which sentence was imposed after January 1, 1976”. We have utilized that information in performing the comparative proportionality review in death penalty cases.

Some salient features of this case make it similar, enough to other death sentence cases from the Fifteenth Judicial District so that we are convinced that the jury’s verdict was not the “action of an aberrant jury”. Gregg v. Georgia, 428 U.S. at 206, 96 S.Ct. at 2940. In this case, as in State v. Narcisse, 426 So.2d 118 (La.1983), State v. Watson, 449 So.2d 1321 (La.1984), and State v. Glass, 455 So.2d 659 (La.1984), the jury was presented with an intentional killing during the perpetration of an armed robbery. In each of those cases, the jury recommended the death sentence, and this court affirmed. A jury in the same district also recommended the death sentence in another robbery-murder case which is presently pending before this court. See State v. Fuller, 454 So.2d 119 (La.1984). A more detailed discussion of the particular circumstances of the similar cases is contained in the unpublished appendix.

Moreover, the death sentence in the present case was in no sense inherently disproportionate or “excessive” (and therefore “cruel and unusual”) in consideration of the nature of the crime itself or the circumstances under which it was committed. See Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). Defendant, without provocation, brutally stabbed to death a defenseless person who happened to be in the bathroom of a rest stop on the interstate highway. The purpose of his killing was to overcome his victim’s resistance to robbery. This is the sort of random murder which undoubtedly terrifies peaceful, lawabiding people. The idea that a man who has in no way encouraged or facilitated any attack and who is literally minding his own business in pursuing his own affairs may suddenly be accosted and murdered by an assailant lurking in wait to rob him is abhorrent to a civilized society.

Furthermore, defendant can point to no mitigating circumstances, other than his lack of a prior significant criminal history, which would suggest that the jury acted unreasonably.

In this case, the jury obviously considered defendant’s relatively minor criminal record, but was nevertheless unanimously convinced that death was the appropriate penalty. Defendant was not a minor participant, but was the sole actor in carrying out a plan he himself devised (although perhaps in confederation with others whose exact role was undisclosed). There were no extenuating “moral”, emotional, or other circumstances reflecting on his mental condition which might require a reasonable juror to conclude that death might be inappropriate in this case. He was not a teenager. He was not supporting a family (as he was divorced and provided no support for his child who lived with her mother). He did not have a stable employment record. He was court-mart-ialed when he was in the military. He had a long history of minor criminal violations.

In reviewing a death sentence for exces-siveness, this court does not sit as a subsequent seven-member sentencing panel. Our primary function is to insure that the jury’s recommendation was not influenced by arbitrary factors. Our review of the record in this case has revealed no arbitrary factors which influenced the jury’s decision. We therefore conclude that the magnitude and viciousness of the crime and lack of strong factors in mitigation reasonably led the jury to recommend death rather than life imprisonment.

Defendant’s conviction and sentence of death are affirmed.

On Application for Rehearing

PER CURIAM.

In his application for rehearing, defense counsel complained that he had not been furnished with a copy of the Uniform Capital Sentence Report filed by the district attorney. This court accordingly ordered that the district attorney’s report be furnished to defendant and to his counsel and that counsel be given additional time to file a supplemental brief in support of his application.

In the supplemental brief filed by counsel, he points out several alleged errors and deficiencies in the report. Because the allegedly inaccurate or deficient report was made after the trial and therefore was not available to the jury which recommended the death sentence, because the alleged inaccuracies and deficiencies were not significant enough to affect the court’s conclusion that the jury’s recommendation was neither disproportionate nor influenced by arbitrary factors, and because defense counsel’s other assignments of error in his application for rehearing were considered and rejected in the original opinion, we find no basis for modifying our original decision.

Accordingly, the application for rehearing is denied.

      . Defendant’s other assignments of error involve only settled principles of law and are treated in an unpublished appendix, which is attached to this opinion and is a part of the official record.

      . In accordance with the policy of this court in capital cases, we have reviewed all assignments of error, even those which were not briefed or argued to this court, and have conducted an independent examination of the entire record for reversible error. See State v. Watson, 423 So.2d 1130 (La. 1982).

      . Bowers testified that defendant "had some object in his hands but I could not swear what it was”. He further stated that he "didn’t get a good look at what it was”.

      .Both in his statement to the police and in his testimony at trial, Bowers was uncertain whether the man in blue shorts was entering or leaving the bathroom. However, Bowers confirmed at trial that the man did not appear excited and was not running.

      . Officer Landry later testified and corroborated Officer Johnson’s testimony in every detail.

      . The autopsy report for some undisclosed reason did not include the victim’s blood type.

      . The photographs showed blood on defendant’s clothes. Although Officer Johnson sent the clothes to the laboratory for testing, the clothes were lost, and no test results were ever received.

      . Defendants’ version in the Doyle case was that they were "framed". They testified that they met the narcotics agent for the purpose of buying (not selling) marijuana. When defendants decided not to complete the transaction, the agent took the marijuana and threw the money into Doyle’s car. Surveillance witnesses, with a limited view of the area, could not see the actual transaction.

      . For example, defendant admitting stating to Officer Landry that he lost his cap when he fell in the woods, but denied stating that he lost his knife in the chase. Also, defendant denied only the inculpatory part of his statement about stabbing the victim, but admitted saying that he said he knew running away was wrong.

      . Indeed, the majority in Doyle expressly pointed out the inapplicability of that decision to a contrasting hypothesized situation which is much closer to the facts of the present case. The Court stated:
      “It goes almost without saying that the fact of postarrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the. fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant's testimony as to his behavior following arrest”. 426 U.S. at 619, note 11, 96 S.Ct. at 2245, note 11.

      . The same reasoning applies to defendant’s complaint about the prosecutor’s comment during closing argument on his assertion of his constitutional rights, as follows:
      "Another point about Mr. Summit trying all evening to alert the police. He testified that when he told Detective Johnson he wanted an attorney, that Detective Johnson stopped questioning him and that, after he got an attorney, he never went back to the police to give his story. So, apparently, after he talked to his attorney, whatever he told him, they decided at that point, it wouldn't be exactly advisable to go and tell the police what had occurred”. The prosecutor then went on to argue that
      defendant in testifying at trial also contradicted his post-arrest statements to his attorney and to the sanity commission doctors, pointing out that these people also "misunderstood” defendant. The prosecutor then argued that the contradictions did not result from misunderstanding, but from a change of stories. We hold that these arguments did not make an improper reference to defendant’s exercise of his constitutional rights.

      . Defendant initially issued a subpoena for production of his prison records. However, after examining the records and consulting with defendant, defense counsel announced that no evidence would be introduced. The trial judge had both defendant and defense counsel state for the record that they had read and discussed the list of statutory mitigating circumstances and had decided not to present any additional evidence. Thus, the defense submitted the question of penalty to the jury essentially on the evidence presented by the defense in the guilt phase, primarily defendant's testimony placing the blame for the murder on his traveling companion.

      . Actually, the jury listed as the sole aggravating circumstance the fact that defendant "was engaged in the perpetration or attempted perpetration of aggravated rape, aggravated kidnapping, aggravated burglary, aggravated arson, aggravated escape, armed robbery, or simple robbery”. This was clearly attributable to the fact that the judge included all of the felonies enumerated in La.C.Cr.P. Art. 905.4 in his instruction and in the list of aggravating circumstances given to the jury. The preferable practice is to prevent confusion by narrowing the jury’s list of aggravating circumstances to those actually urged by the prosecutor and arguably supported by the evidence. See State v. Flowers, 441 So.2d 707 (La.1983).

      .The prosecutor stated in closing argument: "Mr. Wooderson [defendant’s attorney] says that he only was a relatively minor participant in this case, but he's the man who came to Court, so to speak, with bloody hands. It wasn’t the other fellow who had the blood on his hands. It was the defendant, Wilby Summit. And I would suggest to you that his participation was much more than minor. Wilby Summit is the man who committed the crime, did the stabbing, did the running, has this man’s blood on his hands, and deserves the ultimate penalty.
      "Now there are some other mitigating circumstances. The youth — relative youth of this offender. This man is not young. He was not a minor participant. He has shown no remorse or sorrow. There’s no chance of him ever becoming a solid citizen. I can’t think of one good reason why you should allow this man to continue to be a menace to society. I would suggest that the appropriate verdict or the appropriate sentence is the one prepared and provided for by law. There is an aggravating circumstance that you can find. You should find that aggravating circumstance and make a recommendation that the sentence imposed should be capital.
      "Thank you.” (Emphasis supplied.)

      . The prosecutor argued:
      "The defendant has had the benefit of every possible break that the law can give him. He’s had the police follow the correct procedures on interrogation. He’s had the Grand Jury indict him. He’s had a jury listen to the evidence. He’s had a Judge to help him weed out the evidence that was inadmissible. He’s had this jury to listen. He's had a defense attorney to help him decide what course of action to take and to defend him in this case. “Voorhies Toucheque never had that opportunity. He was summarily executed in the bathroom of the I — 10 rest stop, without the benefit of all of the little suttlties [sic] and procedural safeguards that protect this defendant today. He’s had every opportunity up to this point, including just moments ago, to come up and say, ‘Look, I did wrong. I’m sorry. Spare my life.’ But he didn’t do that.
      "Our request by the State is that you, as jurors of this parish, give him the same justice that he gave to Voorhies Toucheque.” (Emphasis supplied.)

      . The reference was made in conjunction with the argument concerning defendant’s lack of remorse (discussed in the previous subsection).

      . In opening argument in the sentencing phase, the prosecutor stated:
      "Ladies and gentlemen of the jury, your recommendation does not constitute killing Wilby Summit. You’re making a recommendation as to the appropriate sentence. The twelve of you are required to make that recommendation. The law provides it. Society accepts it. The law provides for it and it’s appropriate in this case”. (Emphasis supplied.)

      . This court is not compelled by the Eighth Amendment to engage in comparative proportionality review. See Pulley v. Harris, -U.S. -, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984).

      . Arguably, the rule requires a memorandum only of cases in which there were convictions of first degree murder (rather than charges of first degree murder), since those are the only cases in which the jury exercised sentencing discretion.

      . Although the comparative review required by court rule is conducted only on cases within the same judicial district, we nevertheless note the jury in a nearby district recommended the death penalty in a case with remarkably similar facts. In State v. Perry, 420 So.2d 139 (La.1982), the defendant robbed and murdered a 58-year old truck driver who stopped at a rest stop on I — 10 to use the telephone. The defendant was a 34-year old male with prior felony convictions only for nonviolent crimes. The only aggravating circumstance found by the jury was that defendant committed the murder during the perpetration of an armed robbery. This court affirmed the death penalty.

      . See State v. Sonnier, 380 So.2d 1 (La. 1979), in which this court set aside a death penalty because the court decided that the evidence showed that the younger of the two brothers, both of whom raped and murdered a young girl, played a relatively minor role and was under the domination of his older brother. See also State v. Sonnier, 402 So.2d 650 (La.1981), in which the older brother's death sentence was affirmed and has since been carried out.


author: WATSON, Justice.

text:
    Raymond JOHNSON v. INSURANCE COMPANY OF NORTH AMERICA and Louisiana Seed Company, Inc., et al.
    No. 83-C-2628.
    Supreme Court of Louisiana.
    June 25, 1984.
    Rehearing Denied Sept. 14, 1984.

      Howard N. Nugent, Jr., Alexandria, for plaintiff-applicant.
    Albin A. Provosty, Michael Glass, Alexandria, for defendants-respondents.
   WATSON, Justice.

In this suit for workers’ compensation benefits, the issues are:

(1) Whether the trial court was clearly wrong in finding plaintiff, Raymond Johnson, disabled at the time of trial; and
(2) Whether the defendant insurer, Insurance Company of North America, was arbitrary and capricious in terminating benefits, making it liable for penalties and attorneys’ fees.

FACTS

On July 23, 1981, while employed by defendant, Louisiana Seed Company, Inc., Raymond Johnson, a twenty-one year old forklift operator, had his right leg caught between the machine and a wall because of a clutch malfunction. Johnson was admitted to Rapides General Hospital with abrasions on his right leg, severe abrasions of both ankles, a closed fracture of the right tibia, and marked edema of the entire right leg. On July 28, Johnson was discharged from the hospital with a long leg cast and crutches. Although his hospital stay was uneventful, the toes on his right leg remained swollen the day before his discharge and he was complaining of left ankle pain on the day of his discharge. Johnson went to the ninth grade, but he cannot read well and does not have a driver’s license. His employment duties included getting on and off the forklift frequently and moving bags.

After the accident, Johnson was referred to Dr. Douglas Lorin Gamburg, an ortho-paedic surgeon, by Dr. William Brown. Dr. Gamburg said that the edema or swelling of the leg was normal with this type of crushing injury, and he was concerned about the swelling from the soft tissue injury to the right ankle. On November 23, despite some edema in the foot and enlargement at the fracture site, Johnson’s fracture had healed and he seemed to be progressing satisfactorily. Dr. Gamburg suggested that he return to work on light duty status. Johnson returned to Dr. Gam-burg on December 1 with swelling in his right leg; the doctor recommended support hose and no work for another two weeks. When Johnson returned to Dr. Gamburg on December 15, he still had swelling in the area of the fracture as well as in the right ankle. He had a mild limp which appeared related to pain and a tender enlargement over the area of the fracture. Because Johnson still had swelling and pain, Dr. Gamburg prescribed a few more weeks of convalescence. On January 8, 1982, Dr. Gamburg released Johnson for full duty, in the belief that he had reached maximum medical improvement. According to Dr. Gamburg, Johnson had no complaints at that time. In a letter to the insurance company’s adjuster, Dr. Gamburg stated that he did not know what Johnson’s regular work duties entailed and he admitted, in deposition, that he was also unfamiliar with those duties when he released Johnson to full employment. Relying on Dr. Gam-burg’s letter of January 8, 1982, the insurance company’s claims manager, Mrs. Jean Sorsby, terminated compensation benefits.

After his discharge by Dr. Gamburg, plaintiff saw Dr. Thomas C. Laborde, an American Board certified specialist in the field of physical medicine and rehabilitation, on February 10, 1982. When Dr. La-borde saw Johnson the patient complained of pain in the right leg just above the ankle and in the ankle itself. The pain was characterized as a constant background type of pain. Johnson described it to Dr. Laborde as moderate and intermittent, depending on his degree of activity. In Dr. Laborde’s opinion, Johnson’s complaints were consistent with the reasonable and logical assumption that scar tissue had formed in the area of his soft tissue injuries. Strenuous activity could have irritated and possibly aggravated the situation. At the time of his examination, he did not feel that Johnson was capable of returning to work as a forklift operator because active dorsiflex-ion of the ankle produced pain.

Dr. Laborde’s report noted Johnson’s complaints of pain and stated that his continuing difficulty likely resulted from soft tissue scarring, fibrosis, possible muscular deconditioning and tightness. He suggested a vigorous physical therapy reconditioning program. Subsequently, on May 4, 1982, the insurance company’s claims supervisor received a demand letter from plaintiff’s counsel, together with a copy of Dr. Laborde’s report. However, the claims supervisor testified in deposition that she attached little importance to the report. She regarded Dr. Laborde as being a doctor with a lesser medical degree than that of Dr. Gamburg, and Dr. Laborde did not specify in his report that Johnson was disabled. However, Ms. Sorsby acknowledged a conflict between the reports of Dr. Gamburg and Dr. Laborde. Compensation was not reinstated or brought up-to-date and no effort was made to obtain a new evaluation of Johnson’s condition. The recommended physical therapy was not authorized. Suit was filed immediately, and the therapy was subsequently allowed after consultation with defense counsel.

Dr. Laborde’s deposition was taken on September 30, 1982, just over a month before trial. He had received regular reports from the physical therapist, the last one dated July 30. These reports indicated that Johnson had made progress and was having less pain with active motion.

Upon referral from Dr. Laborde, Eugene F. Noel, Jr., a registered physical therapist, saw Johnson in his clinic on June 23, 1982, and instituted a program of physical therapy. At Noel’s initial evaluation, there was swelling at the site of the fracture but not in the ankle. In Noel’s opinion, a soft tissue crushing type injury takes longer to heal than a fracture. Johnson went regularly to therapy through July 8, 1982. He returned on July 19, 1982, and said that he had increased leg pain and returned again on the 20, 21, and 22 of July. As of the 22nd, Noel concluded that Johnson had reached maximum improvement from the therapy. Noel, who had tried Johnson's forklift, thought Johnson was functionally able to operate his forklift on July 22,1982.

Raymond Johnson testified that he was hurting and his left leg was bothering him when he last saw Dr. Gamburg. As of trial, on November 5, 1982, he said that his leg still hurt all the time. Johnson identified a knot in his leg at the point of the fracture. According to Johnson, he went to the therapist until he was unable to get transportation. Despite the therapy, his problems with pain and swelling continued and his leg hurt everytime he went home from therapy. Johnson did not return to Dr. Gamburg after his discharge because he considered Gamburg a company doctor. According to Johnson, he was unable to work after his release by Dr. Gamburg and his supervisor was very unsympathetic.

Alton Laborde, supervisor of shipping and receiving with Louisiana Seed Company, said that when Johnson attempted to return to work he remained less than an hour before complaining of pain in his leg and leaving. According to Johnson’s live-in companion, his leg was swollen and he complained of pain almost every day. A long time friend of Johnson, Donald Ray Smith, confirmed that the leg was swollen after the accident. A co-worker, David Lee Sharp, testified that the brakes on the forklifts were sometimes weak and required heavy pressure and the job required continually getting on and off the forklifts, which were two and a half feet from the ground. According to this witness, the forklifts were easy to operate when they were not broken, but his and Johnson’s had problems. Sharp said that Johnson’s right leg had been swollen since the accident; he confirmed that Johnson had a limp and complaints of right leg pain.

The trial court gave judgment in favor of plaintiff for compensation benefits from January 8, 1982, until plaintiff was no longer disabled, accepting plaintiff’s uncontra-dicted evidence that he was in pain and could not return to his employment at the time of trial on November 5, 1982. Because Dr. Laborde’s report of May 4, 1982, did not specifically state that Johnson was disabled, the trial court denied penalties and attorneys’ fees, concluding that the insurer was not arbitrary and capricious in relying on Dr. Gamburg’s report.

The court of appeal reversed the trial court on the issue of disability at the time of trial with one judge dissenting. Johnson v. Insurance Co. of North America, 440 So.2d 1385 (La.App. 3 Cir.1983). According to the court of appeal, there was no medical evidence that plaintiff was disabled beyond July 22, 1982. The trial court's denial of penalties and attorneys’ fees was affirmed. A writ was granted to consider the judgment of the court of appeal. 445 So.2d 443 (La.,1984).

LAW

In a compensation case, the trial court has the responsibility of determining whether a plaintiff is disabled. Simpson v. S.S. Kresge Co., 389 So.2d 65 (La., 1980). A factual finding by the trial court should not be reversed unless it is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.,1978). A reviewing court should not disturb a reasonable evaluation of credibility by the trial court. Crump v. Hartford Acc. & Indem. Co., 367 So.2d 300 (La.,1979); Cadiere v. West Gibson Products Co., Inc., 364 So.2d 998 (La.,1978).

An employee who can only work in substantial pain may be totally disabled. Calogero v. City of New Orleans, 397 So.2d 1252 (La.,1980); Lattin v. Hica Corp., 395 So.2d 690 (La., 1981); and Martin v. H.B. Zachry Co., 424 So.2d 1002(La., 1982). Plaintiff’s uncontradicted evidence of pain can support a finding of substantial and appreciable pain. Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La., 1980). The opinion of a physician or other medical expert about disability does not necessarily determine legal disability. Whitaker v. Church’s Fried Chicken, Inc., 387 So.2d 1093 (La.,1980).

In evaluating evidence, the trier of fact should accept as true the uneontra-dicted testimony of a plaintiff witness, absent a sound reason for its rejection. Robertson v. Scanio Produce and Institutional Foods, Inc., 449 So.2d 459 (La.,1984); West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La., 1979). Lay testimony can be considered despite the absence of a conflict in medical testimony. Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La., 1975).

An insurer is required to make a reasonable effort to ascertain an employee’s exact medical condition before benefits are terminated. Orgeron v. Tri-State Road Boring, Inc., 434 So.2d 65 (La.,1983). If, subsequent to an initial optimistic report, an insurer receives medical information indicating continuing disability, the insurer may not blindly rely upon the earlier report to avoid penalties for arbitrary nonpayment of compensation benefits. Walker v. Gaines P. Wilson & Son, Inc., 340 So.2d 985 (La.,1976). Penalties and attorneys’ fees are awarded when an insurer discontinues compensation benefits without probable cause. Guillory v. Travelers Insurance Co., 294 So.2d 215 (La., 1974). An insurer has a sixty day grace period before penalties and attorneys’ fees are assessed. LSA-R.S. 22:658.

CONCLUSION

1. Disability.

Although Dr. Gamburg’s letter released Johnson for full duty, Dr. Gamburg was admittedly unfamiliar with Johnson’s job requirements. According to Dr. Laborde, Johnson’s continued complaints of pain were understandable and in accord with the nature of his soft tissue injuries. Thus, Dr. Laborde’s medical testimony was consistent with the lay testimony of Johnson and others about his continuing problem with the right leg. The trial court believed these witnesses, and their testimony can be easily reconciled with that of Dr. Gamburg, a bone doctor primarily concerned with the healing of Johnson’s fractured tibia. Tan-tillo v. Liberty Mutual Insurance Company, supra. This leaves only the deposition testimony of the physical therapist to support the court of appeal’s reversal of the trial court.

Expert therapist Noel said that Johnson complained of leg pain on July 19, 1982. However, on July 22, 1982, Noel observed Johnson perform strenuous exercises without complaint and concluded that Johnson had reached the point of full functional recovery. On the other hand, Johnson said his leg hurt everytime he went home from therapy and that he was still bothered with pain and swelling on the day of trial. Noel’s opinion of Johnson’s disability was not binding on the trial court. Whitaker v. Church’s Fried Chicken, Inc., supra; Simpson v. S.S. Kresge Co., supra.

The trial court reasonably concluded that Johnson might have been able to perform strenuous exercise but the end result of that exertion was pain and swelling. Calogero v. City of New Orleans, supra; Lattin v. Hica Corp., supra; Martin v. H.B. Zachry Co., supra; and Dusang v. Henry Beck Builders, Inc., supra. This conclusion is completely consistent with Dr. Laborde’s testimony that strenuous activity, such as therapy, despite its long term benefits, could irritate the scar tissue. There is no real conflict in the medical testimony. Tantillo v. Liberty Mutual Insurance Company, supra. The only question to be weighed by the trail court was Johnson’s credibility. Robertson v. Scanio Produce and Institutional Foods, Inc., supra; West v. Bayou Vista Manor, Inc., supra. That court’s determination that he was a credible witness should not have been reversed by the court of appeal. Crump v. Hartford Acc. & Indem. Co., supra; Cadiere v. West Gibson Products Co., Inc., supra; and Arceneaux v. Domingue, supra. The workers’ compensation law must be liberally interpreted in favor of the injured worker. Its benefi-cient purposes are best served when great weight is given to a court’s determination that an employee is disabled.

The evidence supports the trial court’s conclusion that Johnson could not perform the only work readily available to him without substantial pain and was therefore totally disabled as of the time of trial.

II. Penalties and Attorneys’ Fees.

The insurer was entitled to terminate compensation benefits on January 8, 1982, relying on Dr. Gamburg’s letter releasing Johnson for full duty. Oregeron v. Tri-State Road Boring, Inc., supra. The question is whether Dr. Laborde’s report, which was received by the insurer on May 4,1982, required reinstatement of benefits or a further investigation into Johnson’s condition. Walker v. Gaines P. Wilson & Son, Inc., supra. Although Dr. La-borde’s report did not specify that Johnson was disabled, it noted that he had “continuing difficulty on the basis of soft tissue scarring and fibrosis and possibly muscular deconditioning and tightness.” Dr. La-borde recommended a “vigorous physical therapy program.” Although the insur-anee company’s claims supervisor was not arbitrary in failing to reinstate benefits on the basis of this report, she was arbitrary in giving it no credence whatsoever. After receiving Dr. Laborde’s report, Ms. Sorsby should have either: (1) authorized the recommended physical therapy, or (2) obtained an updated medical report indicating the therapy was unnecessary. Ms. Sorsby did not have probable cause to completely disregard Dr. Laborde’s report, while recognizing that it conflicted with that of Dr. Gamburg. Guillory v. Travelers Insurance Co., supra. However, the physical therapy was authorized within a sixty day period, apparently on advice of counsel, and the insurer is therefore not liable for penalties and attorneys’ fees. LSA-R.S. 22:658.

For the foregoing reasons, the judgment of the court of appeal is reversed and the judgment of the trial court is reinstated.

REVERSED.

BLANCHE, J., dissents being of the opinion that the opinion of the Court of Appeal was correct.

LEMMON, J., dissents.

      . This hypothesis could only be verified by an autopsy of the leg.

      . According to the court of appeal, "all of the medical testimony in the record indicates that the plaintiff was not disabled at the time of trial.” 440 So.2d 1385 at 1389. While there may be a paucity of medical evidence about plaintiff's disability at the time of trial, there is no medical evidence that plaintiff was not in substantial pain from his injuries at that time. As the dissenting judge in the court of appeal pointed out, the majority speculated that plaintiff was capable of returning to work on July 22.


text:
    STATE of Louisiana ex rel. Timothy George BALDWIN v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 84-KP-1631.
    Supreme Court of Louisiana.
    Sept. 5, 1984.
   In Re: Baldwin, Timothy George, Applying for Writ of Review, Stay of Execution, Supervisory Writs and Writ of Habeas Corpus Parish of Ouachita 4th Judicial District Court Div. “E” Number 38,292

Denied.

DIXON, Chief Justice and CALOGERO, Justice,

additionally assign the following reasons concurring in the denial:

United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), upon which relator relies, “did not hold, as subsequent decisions have made clear, that the Constitution forbids every government imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights.... ” Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973).

Relator’s further contention, that the constitutionally permissible capital sentencing scheme is offended by allowing defendants who might best .qualify for the death sentence to avoid exposure thereto by the simple expedient of pleading guilty to second degree murder (by allowance of the prosecutor) is not meritorious, for the practice complained of does not appear to violate standards for a constitutional death penalty as established by the United States Supreme Court.


text:
    STATE ex rel. Dereck A. BROADNAX v. STATE of Louisiana.
    No. 84-KH-1503.
    Supreme Court of Louisiana.
    Aug. 20, 1984.
   In re Broadnax, Dereck A., applying for remedial writ, Parish of Orleans, Criminal District Court, Div. “A”, No. 298-966.

Denied.


text:
    STATE of Louisiana v. Kevin WISE.
    No. 84-KH-1556.
    Supreme Court of Louisiana.
    Aug. 22, 1984.
   In re Wise, Kevin, applying for remedial writ, Parish of Orleans, Criminal District Court, Div. “G”, No. 298-819.

Granted for the purpose of transferring to the Court of Appeal, 4th Circuit, for consideration.


text:
    STATE of Louisiana v. Clarence RANDOLPH.
    No. 84-KH-1555.
    Supreme Court of Louisiana.
    Aug. 22, 1984.
   In re Randolph, Clarence, applying for prohibition and mandamus, Parish of Orleans, Criminal District Court, Div. “B”, No. 267-145.

Denied.


text:
    STATE of Louisiana v. Harvey ANGEL.
    No. 84-KH-1568.
    Supreme Court of Louisiana.
    Aug. 24, 1984.
   In re Angel, Harvey, applying for remedial writs, Parish of Terrebonne, 32nd Judicial District Court, Div. “E”, Nos. 145829, 76754.

Granted and transferred to the Court of Appeal, First Circuit,'for consideration.


text:
    Captain Michael B. McGINTY v. Leigh H. WILSON.
    No. 84-CC-1501.
    Supreme Court of Louisiana.
    Aug. 24, 1984.
   In re Wilson, Leigh H., applying for supervisory writs to the Court of Appeal, Fifth Circuit, No. 84-C-385; Parish of Jefferson, 24th Judicial District Court, Div. “J”, No. 298-074.

Denied.


text:
    STATE of Louisiana v. William PETERSEN a/k/a Bill Lance.
    No. 84-K-1548.
    Supreme Court of Louisiana.
    Aug. 28, 1984.
   In re State of Louisiana, applying for writ of certiorari, stay, prohibition, mandamus to the Court of Appeal, Fifth Circuit, No. 83-KA-672; Parish of Jefferson, 24th Judicial District Court, Div. “0”, No. 82-1691.

Denied.


text:
    STATE of Louisiana v. James R. SMITH.
    No. 84-KK-1599.
    Supreme Court of Louisiana.
    Aug. 28, 1984.
   In re Smith, James R., applying for stay, supervisory writ, Parish of Rapides, 9th Judicial District Court, Div. “B” No. 206-014; to the Court of Appeal, Third Circuit, No. K-84-828.

Denied.


text:
    Katherine R. KRAMPE v. Edward J. KRAMPE.
    No. 84-OC-1600.
    Supreme Court of Louisiana.
    Aug. 29, 1984.
   In re Krampe, Edward J., applying for writ of certiorari, writ of review, stay, writ of mandamus and writ of prohibition to the Court of Appeal, Third Circuit, No. 84-764; Parish of Lafayette, 15th Judicial District Court, Div. “J”, No. 80-4209-J.

Granted. The judgment of the Court of Appeal denying relator’s motion to remand is reversed. The case is hereby remanded to the trial court with orders to permit the relator to perfect a suspensive appeal no later than 5:00 PM on September 4, 1984.


text:
    STATE of Louisiana ex rel. Barry Don PAYNE v. John WHITLEY, Warden.
    No. 84-KH-1012.
    Supreme Court of Louisiana.
    Aug. 30, 1984.
   In re Barry Don Payne, applying for remedial writ to the Thirty-Second Judicial District Court, Parish of Terrebonne, No. 95-539.

Granted. Since this case involves a post-July 1, 1982 sentence, jurisdiction in the Court of Appeal, First Circuit. Accordingly, we remand the case to that court for its consideration.


text:
    Succession of Charles Haskel GRICE.
    No. 84-CD-1580.
    Supreme Court of Louisiana.
    Aug. 30, 1984.
   In re Grice, Agnes Boutte, applying for writ of review, supervisory writ, Parish of Terrebonne, 32nd Judicial District Court, Div. “D”, No. 9034.

Granted. Relator’s application will be docketed in this Court as an appeal.


text:
    STATE of Louisiana v. Cullen DOMINGUE.
    No. 84-KK-1608.
    Supreme Court of Louisiana.
    Aug. 30, 1984.
   In re Domingue, Cullen, applying for writ of certiorari, writ of review, writ of prohibition and writ of mandamus, Parish of Assumption, 23rd Judicial District Court, Div. “D”, No. 83-33; to the Court of Appeal, First Circuit, No. KW-84-0992.

Denied.


author: LEMMON, J.,

text:
    Luis ORTIZ and Alma Ortiz v. Raoul GALAN, Clerk of Court and Ex-Officio Recorder of Mortgages and Registrar of Conveyances For the Parish of Jefferson, State of Louisiana and Eugene Barriffe, Jr. and Errol Ware.
    No. 84-CC-1607.
    Supreme Court of Louisiana.
    Aug. 31, 1984.
   In re Barriffe, Eugene, Ware, Errol, applying for stay, supervisory writ and remedial writ to the Court of Appeal, Fifth Circuit, No. 84-C-445; Parish of Jefferson, 24th Judicial District Court, Div. “L”, No. 296-796.

The stay order is denied because the requested relief is moot; the writ application will be considered along with Ortiz v. Demarest, # 84-CC-1598, in due course.

LEMMON, J.,

concurs, noting that the relators are not precluded from supplementing their application to seek reinscription.


text:
    STATE ex rel. Dennis PETERS v. Hon. John W. GREENE, Judge, Division “D”, Criminal District Court, Parish of Washington.
    No. 84-KH-1570.
    Supreme Court of Louisiana.
    Sept. 5, 1984.
   In re Peters, Dennis, applying for writ of certiorari, writ of mandamus, prohibition, and habeas corpus, Parish of Washington, 22nd Judicial District Court, Div. “D”, No. 36368; to the Court of Appeal, First Circuit, No. KA-840679.

It is ordered that relator’s appeal be reinstated. Because S. Austin McElroy is representing defendant in this matter, appointment of additional counsel is not necessary.


text:
    STATE of Louisiana v. Dennis PETERS.
    No. 84-OK-1622.
    Supreme Court of Louisiana.
    Sept. 5, 1984.
   In re Peters, Dennis, applying for writ of review to the Court of Appeal, First Circuit, No. KA 84-0679; Parish of Washington, 22nd Judicial District Court, Div. “D”, No. 36368.

Granted. See order in No. 84-KH-1570, 454 So.2d 1123.


author: SCHOTT, Judge.

text:
    William Borden SOSA v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. CA 1678.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 26, 1984.
    Allain F. Hardin, Wiedemann & Fransen, New Orleans, for plaintiff-appellant.
    Floyd F. Greene, New Orleans, for defendant-appellee.
    Robert E. Jones, III, New Orleans, for defendant-appellee (City of New Orleans).
    Before GULOTTA, SCHOTT and WILLIAMS, JJ.
   SCHOTT, Judge.

This is a suit for personal injuries sustained by plaintiff when he was struck in the face by a street sign while riding as a passenger on a streetcar owned by defendant, New Orleans Public Service, Inc. Also made a defendant was the City of New Orleans, owner of the street sign. Following a bench trial the court dismissed his suit, and he has appealed.

On October 24, 1979, plaintiff was a passenger on a Public Service, Inc. streetcar. As the streetcar approached the stop where plaintiff was to exit, he moved to an empty seat in front of the one he had been occupying. As he was moving into this seat, while still standing and facing the window, he leaned forward from the waist in order to look out the open window to determine how near his intended stop was. While leaning forward in this fashion, he lost his balance causing his head to be projected through the open window. At that moment his head struck a traffic control sign owned by the City of New Orleans.

The trial judge, in dismissing plaintiffs suit, did not accept plaintiffs uncorroborated testimony that the streetcar was traveling in an unsafe or unusual manner at the time of the accident. The court also found no negligence on the part of the City. The trial judge felt the most plausible explanation for the accident was that plaintiff, “just lost his balance as result of the manner in which he was attempting to look out of the window.”

Plaintiff has confined his argument on appeal to the assertion that the trial judge erred by not finding the City negligent for placing its street sign too close to passing streetcars. In this case the sign was fourteen and one half inches from the side of the streetcar and six feet, ten inches above the ground at its nearest point to the streetcar.

Actionable negligence results from the creation or maintenance of an unreasonable risk of injury to others. Not only is the seriousness of the harm that may be caused relevant in determining whether a risk is unreasonable, but also the likelihood that harm may be caused. Guilbeau v. Liberty Mutual Insurance Company, 338 So.2d 600 (La.1976).

In this case the likelihood that someone would be injured by projecting a part of his body fourteen and one half inches through the open window of a moving streetcar and striking a sign at that spot was too remote so as to constitute an unreasonable risk of injury to others. It is true, as plaintiff argues, that under a duty-risk analysis defendant had a duty to protect streetcar passengers from the type of injury suffered by plaintiff. However, this duty was met because the sign was located far enough away from the streetcar window so as not to create an unreasonable risk of injury to others. It is likely that a streetcar passenger might rest his elbow on the ledge of the open window or even extend his neck outward a couple of inches to see what is approaching. This possibility the defendant clearly protected against. However, it is not likely that a streetcar passfenger would extend his head and neck as far as plaintiff did in this case through the streetcar window.

Plaintiff places much emphasis on the fact that defendant’s general policy is to install all street signs eighteen inches from the sides of passing streetcars and that the sign plaintiff struck did not have an eighteen inch clearance between it and passing streetcars. However, while customary practices may be relevant in determining negligence, they are not conclusive or controlling in the judicial determination of whether unreasonable risk has resulted from the conduct in question. See Guil-beau, supra. It is not a breach of defendant’s own general policy provisions, but the creation of an unreasonable risk of injury to others, an element not present in this case, which creates actionable negligence.

Furthermore, findings of negligence are subject to the manifest error standard of Canter v. Koehring, 283 So.2d 716 (La.1973). See Bonnet v. Slaughter, 422 So.2d 499 (La.App. 4th Cir.1982). Our review of the record does not indicate the trial judge committed manifest error by concluding the City of New Orleans was not negligent under the circumstances of this case.

Accordingly, the judgment is affirmed.

AFFIRMED.


author: WILLIAMS, Judge.

text:
    James BEASLEY v. Louis S. PUGLISE and State Farm Insurance Company (Two Cases).
    Nos. CA-1466, CA-1756.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 14, 1984.
    Rehearing Denied Sept. 27, 1984.

      Martin A. Welp, New Orleans, for defendant-appellant.
    David M. Tichanski, James S. Rees, III, New Orleans, for General Accident Insurance Company — plaintiffs-appellees.
    Burt K. Carnahan, Metairie, for State Farm Mutual Automobile Insurance Company — defendant-appellee.
    Before GULOTTA, BARRY and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal by defendant Louis F. Puglise from a decision by the trial court finding Puglise liable to plaintiff James Beasley and his insurer, General Accident Insurance Company of America [“General Accident”], and dismissing State Farm Mutual Automobile Insurance Company [“State Farm”], defendant’s insurer.

On March 24, 1982, defendant Puglise collided in his pickup truck with an automobile operated by plaintiff Beasley. After the accident, General Accident paid its insured Beasley $3,549.95 for damage done to his ear. Subsequently, Beasley and General Accident sued defendant and its insurer State Farm. Defendant Puglise denied the allegations in the suit and reconvened for damages. State Farm also made a general denial, but also alleged that Pu-glise had no coverage with the company. The action of plaintiff General Accident was tried by a jury, and Beasley’s suit was tried by the judge. The jury returned its verdict in favor of General Accident and James Beasley and against Puglise. All suits against State Farm were also dismissed. On appeal, defendant-appellant has asserted only one issue: whether the trial court erred in its charge to the jury that:

“[T]he notice of cancellation does not actually have to be received by the policyholder; rather it is sufficient that the insurance company mail the notice to the policyholder at the policyholder’s address shown on the policy.”

The correctness of the jury decision finding Puglise liable for the damages occasioned to Beasley in the accident and also the finding that Beasley was not liable for any damages sustained by Puglise have not been addressed in defendant’s brief and are considered abandoned. We, therefore, shall only address the issue of the correctness of the jury charge.

At issue in this case, is whether State Farm had complied with notice requirements in cancelling defendant’s insurance coverage prior to the accident.

State Farm had insured Puglise for several years. In the end of December, 1981, a bill was issued to Puglise for renewal of his insurance policy for the six month period from January 31, 1982 through July 31, 1982. This payment was due on January 31, 1982. After the payment due date of January 31, 1982, Puglise sent State Farm a check for the premium. This check was returned to State Farm marked as having insufficient funds. This check was presented for-payment a second time, but was again dishonored. State Farm then issued a Notice of Cancellation to defendant on March 2, 1982, indicating that the policy would be cancelled on March 15 unless payment were made. This Notice was sent by certified mail to the address indicated in the policy. The post office later returned the certified mailing, indicating that delivery had been attempted on three separate occasions, but that these attempts were not successful.

The accident occurred March 24, 1982. A check dated March 22, 1982, mailed in an envelope postmarked March 25, 1982, was received by State Farm on March 26, 1982.

Defendant Puglise contends that simple proof of mailing is insufficient to comply with the requirements of La.R.S. 22:636.1. La.R.S. 22:636.1(B) states:

“No notice of cancellation of a policy ... shall be effective unless mailed or delivered by the insurer to the named insured at least 20 days prior to the effective date of cancellation; provided, however, that where cancellation is for non-payment of premium at least 10 days notice of cancellation accompanied by the reason therefore shall be given. Unless the reason accompanies, or is included in the notice of cancellation, the notice of cancellation shall state or be accompanied by a statement that upon written request to the named insured, mailed and delivered to the insurer not less than 15 days prior to the effective date of cancellation, the insurer will specify the reasons for such cancellation. This subsection shall not apply to non-renewal.”

This section has been the subject of much litigation. The majority of cases involving this statutory provision are concerned with whether simply mailing is sufficient to comply with these requirements. In Pincus v. Pumilia, 412 So.2d 151, 152 (La.App. 4th Cir.1982), this court held that proof of mailing creates a presumption of receipt by the insured. This presumption, however, may be rebutted. Id. at 152 citing Broadway v. Allstar Insurance Corp., 285 So.2d 536 (La.1973); Automobile Club Insurance Co. v. Aaron, 296 So.2d 464 (La.App. 4th Cir.1974), writ ref. 300 So.2d 186 (La.1984).

It appears, therefore, that the charge given to the jury may have been incorrect. The jury should have been charged that proof of mailing created the presumption of receipt, but that this presumption could be rebutted by evidence produced by the defendant. We have, however, reviewed the evidence contained in the record and find that notwithstanding the erroneous jury charge, the decision below finding that the insurance coverage by State Farm had been cancelled was correct.

Defendant Puglise testified that he did not receive any notices of certified mail from the post office. State Farm representative testified that the post office returned the cancellation notice to them with the notations that it had attempted to deliver the letter on three separate occasions. This Notice of Cancellation was sent to the address supplied by defendant to the insurance company.

This ease is somewhat different from the cases that have preceded it in that it is clear that the defendant did not receive Notice of Cancellation. This failure, however, to receive notice is imputable to defendant himself by virtue of his failure to respond to any notices from the post office. Defendant has failed to offer any reasonable explanation as to why he may not have received these notices despite the post office’s assertion that he had.

For the foregoing reasons the decision of the court below is affirmed.

AFFIRMED.


author: GULOTTA, Judge.

text:
    David F. PYBURN v. WALLE CORPORATION.
    No. CA-1717.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1984.
    Rehearing Denied Sept. 27, 1984.
    Guy Wootan, Lee R. Miller, Jr., New Orleans, for appellant.
    Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, Robert A. Redwine, New Orleans, for appellee.
    Before GULOTTA, SCHOTT and WILLIAMS, JJ.
   GULOTTA, Judge.

David F. Pyburn filed this suit against defendant for principal and interest due on a demand note. The claim was met with a dilatory exception of prematurity based on the grounds that Pyburn had agreed that his rights under the promissory note would be subordinated to the rights of Jefferson Bank and Trust Company under a separate loan agreement with the defendant, Walle Corporation, and that Pyburn’s action on the note was therefore premature because the defendant had not yet repaid the bank.

In support of the dilatory exception, defendant filed a copy of the “Subordination Agreement” between Pyburn and the Bank, and an affidavit of Walle Corporation’s president stating that the loan from Jefferson Bank to Walle had not yet been repaid. In a memorandum opposing the exception, Pyburn contended the affidavit and subordination agreement were foreign to the note, and that defendant’s arguments were properly the subject of a trial on the merits instead of a dilatory exception.

Relying on the affidavit of defendant’s president, the trial judge maintained the exception, concluding that plaintiff’s suit to recover under the subordinated note was premature until defendant satisfied its debt to Jefferson Bank. In written reasons incorporated into his judgment, the trial judge noted that Pyburn had offered no evidence to contradict the “facts” that had been “established” by the affidavit.

At the outset, we agree with defendant’s contention that the dilatory exception of prematurity in this case is the proper procedure for determining whether payment on the note is suspended until payment of Walle’s loan to Jefferson Bank is fulfilled.

Our jurisprudence makes a procedural distinction between two types of “prematurity” in cases involving suspen-sive conditions to contractural obligations. If the obligation sought to be enforced is in existence and certain, but the right to enforce it has not yet accrued because of the non-occurrence of some act or event upon which enforcement is conditioned, the objection of prematurity to a suit on this obligation may be raised by a dilatory exception. On the other hand, if the obligation itself has not yet come into existence because of the non-occurrence of a suspen-sive condition on which its creation depends, the resulting issue of prematurity properly belongs to the merits of the case. Pringle Associated Mortgage Corporation v. Eanes, 211 So.2d 399 (La.App. 1st Cir. 1968); Halbert v. Klauer Mfg. Co., 181 So. 75 (La.App. 2nd Cir.1938).

The instant case involves a claim of the first type of prematurity, which may be attacked by a dilatory exception. This suit is brought on a demand promissory note in existence. Defendant merely claims that plaintiff’s right to enforce the note has not yet matured because the suspensive condition of full payment by Walle Corporation of its debt to Jefferson Bank has not yet occurred. The existence of the obligation itself, as evidenced by the signed note, does not depend on the occurrence of a suspen-sive condition; only plaintiff’s existing right to enforce it is at issue. Accordingly, we conclude the exception of prematurity is the proper remedy to seek in this ease.

In so holding, we distinguish Gammon Enterprises, Inc. v. Vanguard Investment, Inc., 449 So.2d 1077 (La.App. 4th Cir.1984), relied on by Pyburn. In Gammon, citing Halbert v. Klauer Mfg. Co., supra, we simply reiterated the rule of law that an issue of prematurity properly belongs to the merits of the case where the creation of the obligation depends on the happening of an uncertain event. In Gammon, we were not confronted, as in the instant case, with an existing obligation that allegedly cannot be enforced because of the non-occurrence of a suspensive condition. Our case is more akin to Pringle Associated Corporation v. Eanes, supra, where the promissory note sued on is in existence, but the debtor objects to its collection based on the non-fulfillment of a suspensive condition to its enforcement. Under these circumstances, the debtor’s objection is properly raised through the dilatory exception of prematurity.

Nonetheless, despite our conclusion, we hold the trial judge erred in maintaining the exception in the instant case based upon defendant’s affidavit.

LSA-C.C.P. Art. 930 provides, in pertinent part:

“On the trial of the dilatory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.”

The word “evidence”, as used in this article, has been interpreted to mean “competent legal evidence”, which does not include hearsay evidence. At a trial of an exception of prematurity, therefore, affidavit evidence is inadmissible. Board of Com’rs v. Louisiana Com’n on Ethics, 416 So.2d 231 (La.App. 1st Cir.1982).

In the case now before us, the trial judge heard no sworn, live testimony, and did not formally admit any documents into evidence in support of defendant’s exception. When the objectionable affidavit and the attached copy of the subordination agreement are eliminated, there remains no substantial evidence upon which to maintain the exception of prematurity. Serious questions in this case concerning contract interpretation and parol evidence can only be decided at a proper evidentiary hearing.

Accordingly, we reverse and set aside the trial court’s judgment. The matter is remanded to the trial court for an eviden-tiary hearing on the exception of prematurity; assessment of costs to await termination of the litigation.

REVERSED AND SET ASIDE;

REMANDED.

      . The subordination agreement between Pyburn and Jefferson Bank reads as follows in part:
      “WHEREAS Walle Corporation is indebted unto Cecil M. Keeney and David Pyburn in the sum of Three hundred twenty-eight thousand two hundred ninety-one dollars ($328,291.00) as evidenced by certain promissory notes, as per the May 31, 1982 Year End Statement, and whereas Walle Corporation has applied for a loan or loans from Jefferson Bank and Trust Company totaling Three hundred thousand dollars ($300,000.00).
      Now, therefore in consideration for the loan or loans to Walle Corporation by Jefferson Bank and Trust Company in the sum of Three hundred thousand dollars ($300,000.00), the said Cecil M. Keeney and David Pyburn do hereby subordinate the indebtedness of Walle Corporation in the sum of Three hundred twenty-eight thousand two hundred ninety-one dollars ($328,291.00) owed to them to balance loan or loans from Jefferson Bank and Trust Company to Walle Corporation in the sum of Three hundred thousand dollars ($300,000.00).
      The said Cecil M. Keeney and David Pyburn do further agree that payments due on the indebtedness of Walle Corporation to them shall not exceed twenty percent (20%) of Three hundred twenty-eight two hundred ninety-one dollars ($328,921.00) per year plus interest.”