author: NORRIS, Judge. SEXTON, Judge,

text:
    STATE of Louisiana, Appellee, v. Linda HALL, a/k/a Phyllis Smith, Appellant.
    No. 15581-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.

      Piper <& Brown, Inc. by Frank E. Brown, Jr., Shreveport, for appellant.
    Paul J. Carmouche, Dist. Atty., Gary M. Parker and Tommy J. Johnson, Asst. Dist. Attys., Shreveport, for appellee.
    Before FRED W. JONES, Jr., SEXTON and NORRIS, JJ.
   NORRIS, Judge.

Defendant, Linda Hall a/k/a Phyllis Smith, appeals a jury conviction of attempted public intimidation in violation of La. R.S. 14:122 and 27 and a resulting sentence of one year imprisonment at hard labor, suspended subject to a two year probationary period with a sixty day jail term as a condition of probation.

On February 27, 1982, defendant was arrested for the theft of a pair of shoes from Bevo’s Shoe and Dress Store in Shreveport, Louisiana. The store manager notified the security guard employed by the shopping center of the theft and he detained the defendant returning her to Bevo’s where Betty Williams, a salesperson working in the shoe department, retrieved the empty shoe box from which the shoes had been removed and showed it to the security guard. Defendant, who had given the name of Phyllis Smith to the arresting officer, was then charged in Shreveport City Court with theft.

According to the testimony presented by the state at trial, on the day following the theft incident, defendant, Beverly Wilson and another black female went in a green Volkswagen to the apartment complex where Ms. Williams resided and proceeded to cause a scene in the parking lot during which they yelled at Ms. Williams threatening to cause her to lose her job. The next morning while Ms. Williams was on her way from her apartment to a nearby bus stop to go to work, she again encountered the same individuals in the same vehicle who would not allow her to cross the street, pointed a gun at her, hollered at her, and again threatened to make her lose her job as well as further threatening to break her legs. Later that same day, phone calls started to Bevo’s wherein the caller again threatened Ms. Williams with the loss of her job. Two days later, Ms. Williams observed the same individuals in front of Bevo’s where they continued to make similar remarks and otherwise harrass her. Similar incidents occurred over the next few weeks even after March 25, 1982. Although threatened with the loss of her job and physical harm, at no time did anyone ever tell or in any other manner convey to Ms. Williams the message that she should not testify against this defendant in connection with the theft charges in city court.

At her first appearance in court for the purpose of arraignment on the theft charge on March 25, 1982, defendant pled guilty without the benefit of counsel and paid a fine. Thereafter, on April 2, 1982, she was arrested for the instant offense. It is from her conviction that she appeals assigning five errors. Because after our review of the record we have concluded that this conviction and sentence must be reversed, we pretermit discussion of the other assignments of error and address the assignment of error pertaining to the sufficiency of the evidence presented in support of the conviction.

The defendant argues that the state presented insufficient evidence of guilt to convince a rational trier of fact beyond a reasonable doubt that the defendant was guilty of the offense of attempted public intimidation.

La.R.S. 14:122 provides:

Public intimidation is the use of violence, force, or threats upon any of the following persons, with the intent to influence his conduct in relation to his position, employment, or duty:
(1) Public officer or public employee.
(2) Grand or petit juror.
(3) Witness, or person about to be called as a witness upon a trial or other proceeding before any court, board or officer authorized to hear evidence or to take testimony.
(4) Voter or election official at any general, primary, or special election.
(5) School bus operator.
Whoever commits the crime of public intimidation shall be fined not more than one thousand dollars, or imprisoned, with or without hard labor, for not more than five years, or both. [Emphasis added.]

Public intimidation is a specific intent crime [State v. Daniels, 236 La. 998, 109 So.2d 896 (1958) overruled on other grounds 129 So.2d 4 (La.1961) ]; thus, proof of specific intent is required as an essential element of the crime. 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 the act or failure to act. La.R.S. 14:10. The controlling language contained within La.R.S. 14:122 that requires proof of specific intent is “with intent to influence his conduct...”. See State v. Johnson, 368 So.2d 719 (La.1979). [Compare State v. Duncan, 390 So.2d 859 (La.1980), concerning the crime of public bribery.] Thus, the statute requires proof of an intent to produce the consequence of influencing conduct, and in order to have convicted the defendant the state must have proved that the defendant had a specific intent, i.e. actively desired, to influence the conduct of Ms. Williams in relation to her position or duty as a prospective witness in the theft trial.

Attempted public intimidation is a responsive verdict to the crime charged. La.R.S. 14:27 provides:

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.
B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.
C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt. [Emphasis added.]

Thus, by the very definition of an attempt, specific intent is required to convict of an attempt to commit a crime. In order to attempt to commit a crime an offender must actively desire to cause the specific result required by a particular criminal statute [here influence the conduct of a potential witness] and do or omit an act for the purpose of and tending directly toward the accomplishing of his object. See State v. Parish, 405 So.2d 1080 (La.1981).

Intent, absent an admission of such by a defendant, must necessarily be proven by inferences from surrounding facts and circumstances. State v. Duncan, supra. In all cases where an essential element of the crime is not proven by direct evidence, La. R.S. 15:438 applies:

The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.

As an evidentiary rule, this statute restrains the factfinder in the first instance, as well as the reviewer on appeal, to accept as proven all that the evidence tends to prove and then to convict only if every reasonable hypothesis of innocence is excluded. Whether circumstantial evidence excludes every reasonable hypothesis of innocence presents a question of law. State v. Shapiro, 431 So.2d 372 (La.1982). In applying La.R.S. 15:438, all the facts that the evidence variously tends to prove on both sides are to be considered, disregarding any choice by the factfinder favorable to the prosecution. As. a matter of law, the reviewer can affirm the conviction only if the reasonable hypothesis is one favorable to the state and there is no extant reasonable hypothesis of innocence. State v. Shapiro, supra.

In the instant case, there is no direct evidence of an essential element of the crime; that is, whether the defendant acted with the requisite specific intent to influence Ms. Williams in her conduct as a potential witness. Thus, it was necessary that the state prove this element of the crime by circumstantial evidence. The test of the sufficiency of circumstantial evidence is not whether it produces the same conviction as the positive testimony of an eyewitness, but whether it produces moral conviction such as would exclude every reasonable doubt. The proof ought to be not only consistent with the defendant’s guilt but inconsistent with any reasonable hypothesis of innocence. State v. Shapiro, supra.

Our review of the record compels us to conclude that the state did not meet its burden in this respect. The only testimony presented on behalf of the state regarding the actual circumstances surrounding the offense came from the victim and the investigating officer. It was the testimony of the victim that at no time did anyone ever warn her not to appear in court or otherwise attempt to influence her actions in connection with her role as a witness in the city court proceeding. The stated intent of the threats, as testified to by the victim, was to cause her to lose her job or to cause her physical harm. The testimony of the investigating officer was that the threats continued even after the defendant had pled guilty to the theft charge in city court. Other evidence clearly establishes that prior to her arrest on the instant charge, the defendant pled guilty to theft at her first court appearance. Considering the facts established at trial, while perhaps it might be concluded that the evidence tends to prove that the defendant acted as she did in order to influence Ms. Williams’ conduct as a potential witness, it might equally be concluded that the actions of the defendant were intended to accomplish another purpose, e.g. to punish or get even with Ms. Williams’ for her actions in connection with defendant’s arrest for theft. Thus, inferences from the proven facts developed at trial do not support a finding of moral certainty of the specific intent required to find guilt of attempted public intimidation. While we are convinced that the evidence was sufficient to prove several other crimes that the defendant may have committed in connection with her behavior toward the victim, the state chose to prosecute her for the crime of public intimidation, and by its own evidence did not exclude the reasonable hypothesis that the defendant acted for purposes of vengeance or retaliation rather than to influence the conduct of the victim in relation to her duty as a potential witness. The facts and circumstances surrounding the incidents complained of coupled with defendant’s plea of guilty to the theft charge simply do not lead to an inference that these actions were done with the specific criminal intent to influence within the meaning of La.R.S. 14:1212. The evidence is insufficient as a matter of law under La. R.S. 15:438. See State v. Daniels, supra.

Accordingly, because the evidence is insufficient to prove this element of the crime of attempted public intimidation, the defendant’s conviction and sentence are reversed and she is ordered discharged. See State v. Shapiro, supra.

CONVICTION AND SENTENCE REVERSED AND DEFENDANT DISCHARGED.

SEXTON, J., dissents with written reasons.

SEXTON, Judge,

dissenting.

I respectfully dissent.

In my view, these continuous and violent threats which began immediately after the initial arrest of the defendant and thereafter continued, constituted ample evidence from which the jury could have reasonably inferred and concluded that this defendant was in fact attempting to influence Ms. Williams’ testimony.

The holding of this case requires that the State prove as an element of witness intimidation that the defendant expressly communicated to the witness that he must either change or abandon his testimony, or suffer adverse consequences. I do not believe that to be an essential element of the offense. It should be sufficient to prove that the defendant used violence, force or threats upon a potential witness under such circumstances as would enable a juror to reasonably infer that the defendant intended to influence the witness’s testimony. In other words, I do not believe it is necessary for the State to prove that the defendant expressly stated, “I’m going to harm you, unless you don’t testify or change your testimony.”

As the majority opinion notes, specific intent can be established by inferences from surrounding facts and circumstances. It is only necessary that the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. LSA-R.S. 14:10.1.

The actions of this defendant under the extant circumstances clearly show, from my appreciation of the record, that defendant intended to influence the conduct of Ms. Williams as a witness.

      . The defendant was charged and pled guilty to the crime of theft as Phyllis Smith. However, it was conclusively proven at trial that defendant is the same individual as Phyllis Smith.

      . Beverly Wilson was charged and tried as a co-defendant in this case. She also was found guilty. However, she has not appealed.

      . La.R.S. 14:10 provides:
      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.
      (2) General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.


source: Caselaw Access Project

author: NORRIS, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. James HUNTER, Roderick Bristo & Jack Mayweather, Appellants.
    No. 15,610-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.
    Steven R. Thomas, Mansfield, for appellants.
    James L. Davis, Dist. Atty., Many, Abbott J. Reeves, Asst. Dist. Atty., Gretna, for appellee.

      Before FRED W. JONES, Jr., SEXTON and NORRIS, JJ.
   NORRIS, Judge.

Roderick Bristo and Jack Mayweather, appeal as excessive sentences of three and four years imprisonment at hard labor respectively after they pled guilty to simple burglary [La.R.S. 14:62.].

Not only do defendants complain that the trial judge imposed excessive sentences but they also contend that he failed to state for the record, a factual basis for the sentences imposed. Finding no merit to the contentions of the defendants, we affirm.

Article I, § 20 of the Louisiana Constitution 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 review. State v. Sepulvado, 367 So.2d 762 (La.1979). In imposing sentence, a trial court is mandated to comply with the 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). However, this article does not require the trial judge to set forth for the record all of the factors listed in the statute which were accorded weight by him in determining to impose a sentence of imprisonment rather than to grant suspension of sentence or probation. State v. Jacobs, 383 So.2d 342 (La.1980). It is sufficient that the record reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Vaughn, 378 So.2d 905 (La. 1979); State v. Cunningham, 431 So.2d 854 (La.App. 2d Cir.1983).

In sentencing Bristo, the trial judge stated that after reviewing the pre-sentence report, he was of the opinion that Bristo was in need of custodial environment which could be best provided by confinement in a correctional institution and that Bristo would be likely to commit another crime during a period of probation or suspended sentence. These conclusions were based on Bristo’s previous juvenile record, his poor employment record, the fact that he had escaped from jail during his incarceration pending the outcome of this charge and the fact that he had no dependents. The trial judge also stated that he had reviewed the applicable mitigating circumstances, including Bristo’s age (18) and his first felony offender status, and found them to be outweighed by the aggravating factors, even though it was stated that the mitigating factors had a bearing on the length of the sentence. Based on those considerations, the trial judge sentenced Bristo to serve three years at hard labor.

In sentencing Mayweather, the trial judge stated that he had reviewed the pre-sentence investigation report and was of the opinion that the aggravating factors set forth in Article 894.1 were controlling, specifically the factor that Mayweather would commit another crime during a suspended sentence or probationary period and that he was in need of correctional treatment best provided by confinement in a correctional institution. These conclusions were based on Mayweather’s juvenile record, which included another simple burglary offense, and serious misdemeanor offenses committed after he became an adult. Also considered were defendant’s prior unsatisfactory probationary period and his poor employment record. The trial judge further stated that he had considered the relevant mitigating factors but considered them to be outweighed by the aggravating factors present. Based on these considerations, the trial judge sentenced Mayweather to four years at hard labor.

Based on the foregoing, we conclude that the trial judge adequately considered and complied with the requirements of La. C.Cr.P. Art. 894.1.

When Article 894.1 has been complied with, a sentence should not be set aside as excessive in the absence of a clear abuse of the wide discretion accorded a trial judge in the imposition of sentences within statutory limits. State v. Trahan, 425 So.2d 1222 (La.1983). Thus, our review of these sentences is confined to whether the trial judge has abused his great discretion in sentencing these defendants. The three factors which are essentially considered in such a review are (1) the nature of the crime (2) the nature and background of the offender and (3) the sentences imposed for similar crimes by the same court or other courts. State v. Finley, 432 So.2d 243 (La.1983). We have reviewed this record carefully, including the pre-sentence reports, and have reviewed sentences imposed in similar cases. Based upon this review, we conclude that the trial judge did not abuse his discretion in imposing these sentences. The sentences imposed are well within the lower range of sentences for the crimes charged, and there is nothing contained in the record to conclude that probated or suspended sentences were required.

Accordingly, defendants’ convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.

      . La.R.S. 14:62 provides in part:

      Whoever commits the crime of simple burglary, shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than twelve years, or both.


author: NORRIS, Judge. HALL, Judge,

text:
    Annie T. DUPREE, Plaintiff-Appellant, v. LOUISIANA TRANSIT MANAGEMENT, INC. D/B/A Sportran, John Dixon and National Union Fire Insurance Company of Pittsburgh, Pennsylvania, Defendants-Appellees.
    No. 15617-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.
    Rehearing Denied Dec. 22, 1983.
    Writ Denied Feb. 27, 1984.

      Smith & Bowers by Gary A. Bowers, Shreveport, for plaintiff-appellant.
    Cook, Yancey, King & Galloway by Samuel W. Caverlee, Shreveport, for defendants-appellees.
    Before HALL, MARVIN, JASPER E. JONES, SÉXTON and NORRIS, JJ.
   NORRIS, Judge.

Annie T. Dupree appeals a judgment of the trial court rejecting her claim for damages sustained as a result of personal injuries allegedly sustained while she was a passenger on a “Sportran” bus in Shreveport.

On April 14,1982, Mrs. Dupree boarded a bus owned by Louisiana Transit Management, Inc., d/b/a Sportran, which was operated by John Dixon and insured by National Union Fire Insurance Company of Pittsburgh, Pennsylvania. According to the claim of Mrs. Dupree, while she was en-route to her daughter’s house as a passenger on the Sportran bus, a passenger who had been drinking stepped on her right foot while she was in the act of seating herself. Because Mrs. Dupree suffered from a preexisting diabetic peripheral vascular disease, she contends that the injury inflicted by the passenger resulted in gangrene necessitating hospitalization, surgery and an extended period of recovery.

The issues presented by this appeal are whether Sportran exculpated itself of even slight negligence causally connected to Mrs. Dupree’s injury; if so, whether any trauma caused thereby accelerated and/or aggravated her pre-existing condition; and if so, what is the amount of her damages.

Although a carrier of passengers is not an insurer of its passenger’s safety, it is required to exercise the highest degree of care and is liable for the slightest negligence. Burnell v. Sportran Transit System Co., 421 So.2d 1199 (La.App. 2d Cir.1982). Where there is proof of injury to a fare-paying passenger, the burden shifts to the defendant carrier to show that it is free from negligence because the mere showing of injury to a fare-paying passenger on a public conveyance and his failure to reach his destination safely establishes a prima facie case of negligence and imposes the burden on the carrier of convincing by overcoming the prima facie case. Galland v. New Orleans Public Service, Inc., 377 So.2d 84 (La.1979). When a prima facie case of negligence against defendant is established, it imposes the burden on the defendant carrier to exculpate itself by proving that it exercised the highest degree of diligence, care and precaution for the safety of its passengers. Ellizey v. New Orleans Public Service, Inc., 365 So.2d 10 (La.App. 4th Cir. 1978). The carrier must do all that human sagacity and foresight can do under the circumstances in view of the character and mode of conveyance to prevent injury to passengers. McDermott v. New Orleans Public Service Inc., 420 So.2d 993 (La.App. 4th Cir.1982). There is a heavy presumption of negligence accompanying a carrier’s duty of care toward its passengers. Pilipovich v. New Orleans Public Service, Inc., 422 So.2d 262 (La.App. 4th Cir.1982). Any negligence, however slight, subjects the carrier to liability even assuming that the concurring negligence of a third party contributed primarily to the accident. Burnell v. Sportran Transit System, Co., supra; Campbell v. New Orleans Public Service, Inc., 369 So.2d 733 (La.App. 4th Cir.1979).

Thus, the burden of proof placed on Sportran in this case to exculpate itself from negligence was to show that there was no disregard of its duty or its employee’s duty to Mrs. Dupree and that her injury resulted from a cause which human care and foresight could not prevent. Sportran need not establish the manner in which Mrs. Dupree was injured but need only prove that its actions at the time of the injury were not negligent ones. In this case where the passenger was injured by another passenger, the high duty of care placed on Sportran would have been violated if there existed reason on the part of the driver to anticipate or foresee that injury may occur. Burnell v. Sportran Transit System, Co., supra. Therefore, Sportran must have proven that there was no reason for the carrier’s employee to foresee or anticipate the injury to Mrs. Dupree from her fellow passenger’s actions and that the employee did not fail to take such action as may have been practicable under the circumstances to prevent the injury from occurring. See Aime v. Hebert, 282 So.2d 566 (La.App. 4th Cir.1973).

Applying all of the foregoing principles to the instant case, we conclude that the trial court was clearly wrong in finding that Sportran had exculpated itself from even the slightest negligence. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Our review of the record reveals that there is sufficient, uncontradieted evidence in the record to support a finding that Mrs. Dupree was a fare paying passenger on a public conveyance who failed to reach her destination safely. Therefore, the burden shifted to Sportran to exculpate itself from negligence. While Sportran’s counsel would have us construe the trial court’s reasons as implicitly containing a finding that Mrs. Dupree was a totally incredible witness, after considering the reasons as a whole, we do not choose to do so. There was never a specific finding made by the trial court that Mrs. Dupree was incredible concerning the sustaining of an injury to her foot. Rather the trial court chose to specify the areas of Mrs. Dupree’s testimony which it found to be “not very reliable”, in fact considered these areas to be insignificant to the decision of the case, and proceeded to address the issue of whether or not Sportran had exculpated itself from negligence stating:

If one accepts as true the recital of the actual incident in which another passenger stepped on Mrs. Dupree’s foot which she had left in the aisle and if one finds this minor occurance (sic) to amount to an “injury” in view of Mrs. Dupree’s particular susceptibility to vascular problems in her extremities, one must then determine whether or not the defendants have carried the burden of exculpating themselves from even the slightest negligence.
The court is of the opinion that the defendants have carried that burden.

While we agree with the trial court’s conclusion that Mrs. Dupree’s injury was unconnected with the crowded condition of the bus and could have occurred with only two passengers on the bus, thereby finding that Sportran was not negligent in this respect, we take issue with the trial court’s conclusion that the defendants exculpated themselves of even the slightest negligence causally connected to Mrs. Dupree’s injury.

Even accepting the premise that Sportran has an obligation to afford transportation to the public [Orr v. New Orleans Public Service, Inc., 349 So.2d 417 (La.App. 4th Cir.1977) ], that premise is qualified by the fact that the transportation provided to the public should be safe and free from hazards. One of the hazards which should be protected from is that of anticipated or foreseeable negligent injury at the hands of a fellow passenger. Thus, when the actions of the carrier or its employees place a passenger in an unnecessary position of peril the carrier is liable. Skipper v. New Orleans Public Service, Inc., 338 So.2d 771 (La.App. 4th Cir.1976).

While any decision in this case at first glance appears to turn on factual findings of the trial court, in fact, the pivotal issue may actually be resolved by the sole consideration of whether under the facts as testified to by the driver, John Dixon, the driver did or omitted to do anything which would constitute a breach of duty to Mrs. Dupree. Under the record facts most favorable to Sportran, the party prevailing in the trial court, it is undisputed that when the passenger in question boarded the bus he had been drinking to such an extent that the driver, even without talking to him, could smell alcohol on his breath from a distance of approximately three feet. Coupled therewith is the admission that this particular passenger, who is identified by the driver as being the only passenger on the bus who had been drinking, had ridden this particular driver’s bus after drinking from “time to time” and had caused problems in the past. When questioned more closely about the nature of the trouble which this passenger had caused, the driver became evasive and non specific. However, he thought that this particular passenger had been involved in an incident with a passenger before. While the driver testified he did not observe this passenger to be unsteady on his feet or boisterous, he refers to him at one point in his testimony as being the only “drunk passenger on the bus.” Construing all of these factors together, we conclude that the driver had sufficient knowledge and information regarding this particular passenger to at least foresee or anticipate that he might be intoxicated and thus unsteady on his feet or inattentive on the moving bus causing him to fall or step on another passenger. While we are not prepared to hold that allowing a person who has been drinking on a public carrier to be negligence per se, we are of the opinion that carriers who allow persons to travel who obviously manifest signs of drinking to a driver, have an obligation to other passengers to do more than to simply allow that person to board the bus and ignore him thereafter — which is exactly what occurred in this case. By the driver’s own admission he paid no further attention to this passenger and was not even aware of the incident until it was reported to him by Mrs. Dupree. It is further noteworthy that Sportran has no policy regarding the proper procedure for its drivers to follow when a passenger who has been drinking boards a bus.

Negligence must be determined in each case according to the particular facts and circumstances. Baptiste v. Washington, 359 So.2d 1122 (La.App. 4th Cir.1978). We conclude that under these particular facts and circumstances that it was certainly foreseeable that at the least this passenger who had obviously been drinking and had caused problems in the past would be unsteady enough on his feet or inattentive enough while in the aisle to step or fall on another passenger because unsteadiness or inattention are consequential risks inherent in drinking. We further conclude that as a matter of public policy, the law imposes a duty on a public carrier either to refuse to board a passenger, whose probable impaired ability to ambulate is known, constructively or actually, by the carrier, or to warn other passengers on the carrier to remain clear of the aisle so that the boarding passenger may be seated. The wisdom of this rule of law is apparent. It not only protects the person who has been drinking but also protects his fellow passengers from injuries arising as a result of his impaired ability to ambulate. As the impairment of the drinking passenger increases, the need for greater precaution in allowing him to board the public carrier increases.

Accordingly, Mrs. Dupree’s injury falls within the ambit of foreseeable risk, and Sportran failed to observe the high degree of care placed upon it as a public carrier in such instances to avoid such a risk. The existence of the risk imposed a corresponding duty on the part of the bus driver to take reasonable action to avoid the risk— here to either refuse to board the drinking passenger or to warn other passengers on the carrier to remain clear of the aisle so that he might be safely seated. See Burnell v. Shreveport Transit System Co., supra. Here, the driver admittedly did nothing. Consequently his inaction was a failure to take reasonable action which breached his duty and resulted in damages to Mrs. Du-pree. Because of this “ease of association” between the risk and the duty, liability should be imposed. Hill v. Lundin & Assoc., Inc., 260 La. 542, 256 So.2d 620 (1972).

Because the burden in this case had shifted to Sportran to show that the incident did not occur or that it exercised reasonable care in discharging Mrs. Dupree or that any negligence on its part was not the legal cause of the mishap, we conclude that the evidence presented by Sportran was insufficient to rebut the prima facie case of negligence. Because Sportran did not prove that the incident did not occur, that it was free from the slightest negligence or that any negligence on its part was not a legal cause of the mishap, the trial court was clearly wrong in its legal conclusion of exculpation. Galland v. New Orleans Public Service, Inc., supra; Arceneaux v. Domingue, supra; Burnell v. Sportran Transit System, Co., supra.

Having concluded that Mrs. Dupree was injured as a result of the negligence of Sportran, we consider the issue of damages. Under La.C.C.P. Art. 2164, Courts of Appeal are empowered to award damages in cases where the trier of fact initially rejects the plaintiff’s demands, and the record is complete with regard to damages. Burnell v. Sportran Transit System Co., supra.

Admittedly had a person with no pre-existing health problems been stepped on to the degree present here, it would be a minor occurrence, and a court would be hard pressed to award any damages. However, a defendant takes his victim as he finds him and is responsible for all the natural and probable consequences of his tortious conduct. When the defendant’s negligent action aggravates a pre-existing condition, he must compensate the victim for the full extent of this aggravation. Perniciaro v. Brinch, 384 So.2d 392 (La.1980). Each case involving personal injuries to a claimant is different, and an award should be determined by the facts and circumstances peculiar to the case under consideration which will adequately compensate the injured party for his injury under the facts shown to exist in the case. Holman v. Reliance Ins. Companies, 414 So.2d 1298 (La.App. 2d Cir.1982).

Our evaluation of the evidence, both medical and lay, leads us to conclude that the incident on the Sportran bus aggravated the pre-existing diabetic peripheral vascular disease suffered by Mrs. Dupree. Taken as a whole, the testimony supports a finding that it was more probable than not that Mrs. Dupree’s difficulties with her right leg and foot were aggravated and accelerated by the injury suffered. The medical evidence revealed and it is undisputed that Mrs. Dupree suffers from diabetes and that vascular problems are commonly associated with diabetics. Mrs. Dupree suffered accompanying vascular problems which required treatment and surgery in 1980 after another accident. Because sufferers of vascular disease do not heal as well as those who are in good health, any type of trauma, even slight, may accelerate into a major problem. Mrs. Dupree was suffering from this condition on the date of the accident. She had developed a condition described as pre-gangrene in the involved toes. Upon this finding, her treating physician admitted her to the hospital where she underwent surgery consisting of a bypass from the groin to just above her knee utilizing a Dacron graft to implant a dacron femoral artery to the popliteal artery. This procedure bypasses the area where the blockage is located in the artery. When there is a blockage in the artery, any type of trauma to the extremity does not heal normally, and gangrene may develop which can result in loss of the extremity. Gangrene [or death of tissue] is frequently precipitated in sufferers of vascular disease by trauma. Stepping on such a person’s foot constitutes trauma. From the history related to the physician and the physical symptomology, the trauma suffered as a result of her foot being stepped upon precipitated the changes in the condition of foot which necessitated her hospitalization from April 16-26, 1982 and the accompanying surgery to prevent the future loss of the extremity.

The medical expenses incurred by Mrs. Dupree are stipulated to be in the amount of $7285.11. Therefore, we award special damages in that amount in accordance with the stipulation.

According to Mrs. Dupree, she immediately began to suffer pain after the incident which worsened progressively. When she left the hospital, she had problems working and it was approximately four months before she recovered. She was discharged by the surgeon in June, 1982. Before the stitches were removed, the ones located in the incision in the groin pulled loose necessitating their replacement. At the time of trial, Mrs. Dupree admitted that her leg had returned to normal except for problems with its becoming stiff if she attempts to walk for an extended distance. She also continued to complain that she was unable to walk as far as she could prior to the surgery and that she cannot engage in all of the activities in which she participated prior to the accident, including taking care of her daughter’s children.

Accordingly, we find that $7500 will adequately compensate Mrs. Dupree for her pain and suffering.

According to the stipulation filed of record by the parties, Allstate Insurance Company had a policy of automobile medical payments coverage in effect on April 14, 1982, in favor of Mrs. Dupree. The $2000 limit of medical payments coverage was paid to Mrs. Dupree and the parties have agreed that Allstate is to be subrogated conventionally to the first $2000 of damages recovered.

Accordingly, and for the foregoing reasons, the judgment of the trial court is reversed and judgment is rendered in favor of Annie T. Dupree and against Louisiana Transit Management, Inc., d/b/a Sportran, John Dixon and National Union Fire Insurance Company of Pittsburgh, Pennsylvania in the full sum of $14,785.11 with legal interest from date of judicial demand until paid and for all costs of these proceedings subject to the subrogation agreement with Allstate Insurance Company*

JUDGMENT REVERSED AND RENDERED.

HALL, J., dissents and assigns written reasons.

SEXTON, J., dissents for the reasons assigned by HALL, J.

HALL, Judge,

dissenting.

Taking the evidence in a light most favorable to the plaintiff (which we should not do because the trial judge found her to be an unreliable witness), the evidence establishes that the driver allowed a man who had been drinking and who had created disturbances on the bus in the past to get on the bus, and the driver did not supervise or otherwise pay any attention to the man.

Plaintiff, who had been standing, went to a seat when it was vacated. As she was sitting down and before she moved her right foot out of the aisle, the man who had been drinking stepped on her foot in the aisle as he was walking to a seat.

The evidence is insufficient to warrant the conclusion that the man’s condition, assuming some degree of intoxication, had any causal connection with his stepping on her foot. This is the kind of accident that can and does frequently happen in the absence of intoxication.

Further, I do not believe the evidence supports a finding that the driver should have suspected this passenger would step on somebody’s foot, or otherwise harm another passenger, or a holding that the driver was guilty of even the slightest negligence in allowing the man on the bus or in failing to monitor his conduct on the bus.

Accordingly, I respectfully dissent from the opinion reversing the trial court.


author: FRED W. JONES, Jr., Judge.

text:
    STATE of Louisiana, Appellee, v. Ross O. FREDENBURG, Appellant.
    No. 15619-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.
    Rehearing Denied Dec. 22, 1983.
    Caddo Parish Indigent Defender Office by Timothy R. Fischer, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty. by Sonia D. Peters and Catherine M. Estopinal, Asst. Dist. Attys., Shreveport, for appellee.
    Before HALL, JASPER E. JONES and FRED W. JONES, JJ.
   FRED W. JONES, Jr., Judge.

Defendant, Ross Fredenburg, was charged with attempted second degree murder (R.S. 14:27, 30.1) and attempted armed robbery (R.S. 14:27, 64). In a bench trial he was acquitted of the attempted second degree murder charge but was found guilty of attempted armed robbery and subsequently sentenced to imprisonment at hard labor for 10 years. The conviction and sentence were appealed, with defendant relying upon two assignments of error for reversal.

Context Facts

At about 2:00 o’clock P.M. on September 24,1981 Fredenburg parked his car at a dry cleaning establishment in south Shreveport, put a hunting knife in his back pocket, got out of the automobile and locked it. Upon entering the business premises, defendant approached the attendant, Mrs. Dell Spinks, and inquired about having a sleeping bag cleaned and about the possibility of securing employment there. Defendant next asked Mrs. Spinks for some change. She opened the cash register to demonstrate that there was very little cash on hand for making change. Defendant then announced that it was a robbery, partially withdrew the hunting knife from his back pocket, ordered Mrs. Spinks to place all the money in a paper bag, and threatened to kill her if she failed to comply with his directions.

Mrs. Spinks replied that she did not have a paper bag, but tried to hand the money to defendant. The latter refused the tender, ordered Mrs. Spinks to place the money back in the cash register and to call the police and report the robbery. When the attendant got the police operator on the telephone, defendant took it and conversed with the operator until a police officer arrived to arrest the defendant.

Following the formal lodging of criminal charges against the defendant, a sanity commission was appointed. After a hearing and consideration of the commission’s report, defendant was found mentally incompetent to proceed and was committed to Feliciana Forensic Facility on January 18, 1982. Subsequently, defendant was returned from that facility and, after another sanity hearing, deemed mentally competent on November 18, 1982 to proceed to trial.

Upon arraignment defendant pleaded not guilty and not guilty by reason of insanity. Jury trial was waived.

Assignment of Error No. 1

Defendant argues in this assignment that “there was insufficient evidence adduced to prove the specific intent of attempted armed robbery beyond a reasonable doubt.”

Armed robbery is the theft of anything of value 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. 14:64.

La.R.S. 14:27 provides in part:

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.

From the foregoing, it is obvious that specific intent is an essential element of attempted armed robbery.

Our law defines specific intent as “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.” La.R.S. 14:10(1).

Since specific intent is a purely subjective state of mind, its existence may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Williams, 383 So.2d 369 (La.1980). Also see State v. Procell, 365 So.2d 484 (La.1978); State v. Garner, 241 La. 275, 128 So.2d 655 (1961).

In State v. Martin, 356 So.2d 1370 (La.1978), the defendant, holding a gun on a plain-clothes officer in a parking lot, uttered only “give me your .. . . ” when he was abruptly seized by two other officers. Defendant contended on appeal that, because he was interrupted in mid-sentence, there was no evidence of his specific intent to commit theft of anything of value belonging to another. Rejecting this argument, the court commented:

“The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence .... Taken in context defendant’s words and deed excluded every reasonable hypothesis of innocence.” (p. 1373)

Also see State v. Sutton, 436 So.2d 471, (La.1983).

The thrust of the defense argument on this assignment is that the mildly retarded defendant never intended to permanently deprive the owner of money, as shown by defendant’s refusal of the cash when tendered to him by Mrs. Spinks. Further, it is asserted that defendant’s request for Mrs. Spinks to call the police substantiates the hypothesis [advanced by psychiatric testimony] that defendant’s criminal activity was simply a charade—representing a “cry for help” from one who was emotionally disturbed and desired to return to the structured environment of a prison from which he had been recently released.

On the other hand, the state argues that defendant’s refusal of the money tendered by Mrs. Spinks merely reflected a change of mind—because of which he was charged with an “attempt” rather than a completed offense.

Adverting to the proven facts in this case, defendant confronted Mrs. Spinks, stated that he had a knife, partially withdrew the weapon from his pocket, announced that it was a robbery and demanded money from the cash register. The critical question is, despite his subsequent refusal of the tendered money, did the described circumstances exclude every reasonable hypothesis of innocence of attempted armed robbery, i.e., prove beyond a reasonable doubt that defendant actively desired at that time to permanently deprive the owner of the money? We answer in the affirmative.

As explained in LaFave & Scott, Criminal Law (1972), p. 449:

“The traditional view as expressed by most commentators is that abandonment is never a defense to a charge of attempt if the defendant has gone so far as to engage in the requisite acts with criminal intent. The assumption seems to be that because a completed crime may not thereafter be abandoned it follows that the same must be true as to the crime of attempt.
“ ‘A criminal attempt is a complete offense in the sense that one who has carried a criminal effort to such a point that it is punishable, can no more wipe out his criminal guilt by an abandonment of his plan than a thief can obliterate the larceny by a restoration of the stolen chattel.’ ”

Regardless of defendant’s motive in engaging in this unlawful conduct, the offense of attempted armed robbery was complete when he threatened Mrs. Spinks with the knife and demanded the money. Viewing this evidence in a light most favorable to the prosecution, a rational trier of fact could have found proof of the essential elements of the crime of attempted armed robbery beyond a reasonable doubt.

Defendant’s apparent change of mind [by refusal of the tendered money] prevented the attempt from flowering into a completed crime.

For these reasons, this assignment lacks merit.

Assignment of Error No. 2

Defendant complains in this assignment that the sentence of 10 years imprisonment at hard labor without benefit of parole is excessive.

In compliance with La.C.Cr.P. 894.1, prior to imposition of sentence the trial judge [who had the benefit of an extensive pre-sentence report] considered as mitigating factors the 24 year old defendant’s emotional instability, that he did not physically harm Mrs. Spinks, and that he abandoned the robbery. On the other hand, he noted that Mrs. Spinks was terrified and continued to suffer from the frightening experience; that the offense occurred only a few weeks after defendant was paroled from Angola where he had been incarcerated for attempted aggravated rape; that defendant was likely to commit another offense and the public needed to be protected; and that any lesser sentence would deprecate the seriousness of this offense.

The maximum imposable sentence for attempted armed robbery is 49½ years at hard labor without benefit of probation, parole or suspension of sentence. The sentence imposed was in the lower range of this possible sentence. In view of all of the circumstances, we cannot say that it was either disproportionate to the severity of the crime or a purposeless imposition of pain and suffering.

Since the sentence is not excessive, this assignment is without merit.

Decree

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


author: PRICE, Judge.

text:
    Shirley McNAMARA, Secretary of the Department of Revenue and Taxation, State of Louisiana, Plaintiff-Appellee, v. ARKANSAS-LOUISIANA GAS COMPANY, Defendant-Appellant.
    No. 15776-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.

      Blanchard, Walker, O’Quin & Roberts by J. Edgerton Pierson, Jr., Shreveport, for defendant-appellant.
    Douglas F. Herbert, Baton Rouge, for plaintiff-appellee.
    Before PRICE, HALL and NORRIS, JJ.
   PRICE, Judge.

Defendant, Arkansas-Louisiana Gas Company, appeals from a judgment rendered in favor of plaintiff, Shirley McNamara, Secretary of the Department of Revenue and Taxation, State of Louisiana, in the amount of $53,787.00 plus interest, said amount representing defendant’s alleged underpayment of corporation franchise taxes for the calendar years 1974-1977 as provided in La. R.S. 47:601 et seq.

The pertinent stipulated facts adduced at the trial on this matter establish that Arkansas-Louisiana Gas Company, now known as Arkla, Inc., is a Delaware Corporation which is authorized to do and is doing business in the State of Louisiana. Arkla, Inc., has five subsidiary corporations in which it owns 100 percent of the stock. These subsidiaries are Arkla Exploration Company, Arkansas-Louisiana Finance Corporation, Arkla Industries Inc., Arkla Chemical Corporation and Arkansas Cement Corporation. Each of the subsidiaries is qualified to do and is doing business in this state. During the years at issue in this case, each subsidiary corporation and Arkla, Inc., the parent corporation, filed a return and paid Louisiana Franchise Tax to the Department of Revenue and Taxation, formerly known as the Department of Revenue.

As a regulated public utility, defendant is subject to the jurisdiction of the Federal Energy Regulatory Commission (FERC), formerly the Federal Power Commission. This agency has prescribed specific rules of accounting which must be employed by the defendant.

Prior to January 1, 1973, Arkla, Inc., was required to employ the cost method of accounting. Under this method, Arkla, Inc., recorded on its financial books and records the initial investment that it made in the subsidiary corporation. Thereafter, the earnings of the subsidiary corporation were accumulated on the books of that corporation in the retained earnings. However, these earnings were not reflected in the financial records of Arkla, Inc.

On January 1, 1973, Arkla, Inc., was directed by the FERC to change to the equity method of accounting pursuant to F.P.C. Order Number 469. Under this method, the earnings of a subsidiary were accumulated on its books in the retained earnings of that corporation and then the total retained earnings of each of the subsidiaries, including the sum total of all accumulated and undistributed earnings, whether appropriated or not, were reflected also as additional retained earnings of the parent corporation, Arkla, Inc.

Prior to the change of accounting methods mandated by F.P.C. Order Number 469, Arkla, Inc., had determined and paid franchise tax by utilizing the cost method. After January 1, 1973, Arkla, Inc., continued to use the cost method of accounting in computing the amount of franchise tax owed to plaintiff despite the use of the equity method in maintaining its financial books.

As previously noted, by utilizing the cost method of accounting, the retained earnings of the five subsidiaries are not included in the financial records of the parent corporation, Arkla, Inc., and thus, do not act to increase the franchise tax base of Arkla, Inc. However, under the equity method of accounting, the retained earnings of the subsidiary corporations are included in the financial records of the parent corporation thereby increasing its franchise tax base.

The Department of Revenue and Taxation contends that Arkla, Inc., has underpaid franchise taxes for the calendar years 1974-1977 because the books and retained earnings account of Arkla, Inc., prepared in accordance with the equity method of accounting, reflected the retained earnings of its subsidiaries thereby resulting in a larger franchise tax base than obtained by defendant’s use of the cost method of accounting.

After a trial on the merits, in a thorough and well-reasoned opinion, the trial court found that defendant was required to utilize the equity method of accounting to compute the amount of franchise tax due and therefore had underpaid franchise taxes for the years at issue.

On appeal, defendant, Arkla, Inc., presents the following specifications of error:

1. The trial court erred in finding that the surplus of a public utility includes the earnings of its subsidiaries when those earnings are included in the defendant’s books solely pursuant to the order of a regulatory commission and where each subsidiary has paid a franchise tax.
2. The trial court erred in not interpreting the pertinent tax statutes so as to avoid an unjust, oppressive and absurd result.

For the reasons set forth below, this court finds that the ruling of the trial court was correct and therefore affirm the judgment.

Defendant argues that the earnings of the subsidiaries reflected on its books as the result of being mandated by the FERC to utilize the equity method of accounting should not be included in the computation of franchise taxes owed by the parent corporation. Rather, Arkla, Inc., contends that it should be allowed to continue to use the cost method to determine the amount of tax due.

La.R.S. 47:605 provides in pertinent part that “(f)or the purpose of ascertaining the tax imposed in this Chapter, surplus and undivided profits shall be deemed to have such value as is reflected on the books of the corporation ...” (emphasis added).

Plaintiff contends that under the statute it is required to compute the franchise tax owed by defendant based upon the value stated on the taxpaying corporation’s books and cites Maplewood Housing Corporation v. Fontenot, 238 La. 378, 115 So.2d 386 (1959) and Cities Service Co. v. McNamara, 366 So.2d 1013 (La.App. 1st Cir.1978) in support of this position.

In Maplewood, supra, the plaintiff corporation by means of a bookkeeping entry increased the amount of the book value of certain assets which represented the appraised value of the assets at that time rather than the cost of those items as originally reflected on the books. In computing the franchise taxes due for that year, the plaintiff did not include the increased value effected by the journal entry, but rather ignored the entry and computed the tax using the original cost of the assets. In an audit, the Collector of Revenue determined that the plaintiff owed additional franchise taxes based upon the increased value of the assets as reflected by the books of the corporation.

Plaintiff made a reversing entry on its books to eliminate the surplus after a deficiency assessment was made but the Collector refused to recognize such an entry.

Upon examining the statute, the Supreme Court held that La.R.S. 47:605 required that the increased value be included in the franchise tax base as it was shown on the books of the taxpaying corporation at the time plaintiffs tax liability became fixed. The court noted that ... “if a taxpayer could revise the value of assets back and forth without limitation, his tax liability would constantly be fluid, thus prohibiting a fixed and effective audit for tax purposes resulting in an avoidance of responsive tax liability” at 115 So.2d p. 389.

In Cities Service Co. v. McNamara, supra, plaintiff originally showed on its books at cost its investment interest in its subsidiaries but later changed to the equity method of accounting. Following an assessment for additional taxes based upon equity figures, plaintiff entered a reversing entry to remove these figures. The First Circuit found the case of Maplewood, supra, to be controlling and held that the statute “.. . clearly empowers and requires the collector to use the figure on the taxpayer’s books” at p. 1014.

It is the opinion of this court that under La.R.S. 47:605 and the pertinent jurisprudence that the amount of franchise tax due shall be based on the values reflected in the books of the corporation.

In the instant case, Arkla, Inc., maintains its books employing the equity method of accounting. Under the clear, unambiguous language of the statute, the amount of franchise tax owed by Arkla, Inc., must be calculated upon values contained in these books and not by another method of accounting. As noted by the Supreme Court in Maplewood, supra, if a taxpayer was permitted to change the value of its assets for different purposes, tax liability would never become fixed thus preventing an effective tax audit to ascertain the correct amount of tax owed. By requiring that the franchise tax be computed using the values reflected on the books of the corporation, the statute insures that the tax obligation would become definitely fixed and easily ascertainable.

Defendant asserts that since it did not voluntarily choose to use the equity method to maintain its corporate books, it should not have to suffer the adverse tax consequences resulting from the use of this method but rather should be allowed to continue to use the cost method to calculate its franchise tax.

The statute makes no distinction as to the reasons a particular method of accounting is employed by the taxpayer. Although the additional franchise tax assessments in Ma-plewood, supra, and Cities Service Co., supra, were the result of voluntary actions on the part of the plaintiff corporations, a close examination of these cases reveals that the voluntary or involuntary nature of the action was not a crucial factor in the decision of the courts. Rather, the courts simply adhered to the clear language of the statute.

Defendant argues that the trial court erred in not interpreting the tax statutes so as to avoid an unjust, oppressive and absurd result.

Defendant contends that the result is oppressive in that both the parent corporation and subsidiaries pay franchise tax based upon the same earnings. In other words, the subsidiary pays a franchise tax based in part upon its retained earnings and the parent corporation pays franchise tax on its retainéd earnings which, using the equity method, also include the retained earnings of the subsidiaries. This, defendant claims, amounts to prohibited double taxation.

La.R.S. 47:601 provides that "... the purpose of this section (is) to require the payment of this tax to the State ... by domestic corporations for the right granted by the laws of this state to exist as such an organization, and by both domestic and foreign corporations for the enjoyment, under the protection of the laws of this state, of the powers, rights, privileges and immunities derived by reason of the corporate form of existence and operation.”

It is clear that the underlying purpose of the franchise tax is not to tax the mere ownership of property, but is designed instead to tax the intangible right to exist and function as a corporation with all rights and privileges in the State of Louisiana.

The parent corporation, Arkla, Inc., and each subsidiary enjoy separate corporate existence. Therefore, franchise tax is exacted for each corporate existence and thus does not result in double taxation when both the parent and subsidiary are taxed. In other words, while some of the assets upon which the tax is based may be the same, the taxable incident underlying the tax, separate corporate existence, is different. The courts have upheld that the franchise tax does not result in prohibited double taxation. See Cities Service Co., supra, and Arkansas Fuel Oil Corp. v. Fontenot, 225 La. 166, 72 So.2d 465 (1954).

Furthermore, there is nothing unfair or oppressive in requiring Arkla, Inc., to pay franchise taxes based upon the values reflected upon its books. Rather, Arkla, Inc., is simply directed to pay the franchise tax in accordance with the statute as would any other corporation, regulated or not, employing the equity method of accounting.

Defendant asserts that it is entitled to an exemption under La.R.S. 47:605. That statute provides:

(W)hen, because of regulations of a governmental agency controlling the books of a taxpayer, the taxpayer is unable to record in its books the full amount of depreciation sustained, the taxpayer may apply to the collector of revenue for permission to add to its reserve for depreciation and deduct from its surplus the amount of depreciation sustained but not recorded, and if the collector finds that the amount proposed to be so added represents a reasonable allowance for actual depreciation, he shall grant such permission.

Defendant asserts that because such an exemption relating to depreciation is contained in the statute, the statute should be construed so as to include a similar exemption for defendant because it is required by law to use the equity method of accounting.

It is apparent that the depreciation exemption contained in the statute was intended by the legislature to be exclusive and not to be illustrative. Furthermore, it is well-settled that exemptions from taxation must be strictly construed against the person claiming the exemption. As it constitutes an exceptional privilege, an exemption must be clearly, unequivocally and affirmatively established. Meyers v. Flournoy, 209 La. 812, 25 So.2d 601 (1946); Mattingly v. Vial, 193 La. 1, 190 So. 313 (1939); Ruston Hospital, Inc. v. Riser, 191 So.2d 665 (La.App. 2d Cir.1966); Ethyl Corp. v. Collector of Revenue, 351 So.2d 1290 (La.App. 1st Cir.1977) and citations therein. Following these principles of interpretation, it is clear that no exemption is afforded to Arkla, Inc., under the statute and this court cannot so construe the statute.

Defendant argues that this court should find the Texas case of Bullock v. Enserch, 583 S.W.2d 950 (Tex.Civ.App.1979) to be controlling. In Bullock, supra, the taxpayer was a public utility required by the FERC to use the equity method of accounting. In interpreting a ruling by the comptroller, the court found that the comptroller’s method of assessing franchise tax against the taxpayer was fundamentally wrong in that the retained earnings of the subsidiaries were also included in the franchise tax base of the parent corporation.

This court finds that Bullock, supra, is easily distinguished from the instant case. In Texas, the comptroller was given discretion to determine how the franchise tax base was to be calculated. Whereas, in Louisiana, the legislature has clearly mandated that the franchise tax shall be based on the values reflected in the corporate books. Bullock, supra, involved the interpretation of a discretionary, administrative rule which could be and was changed by the comptroller. This case involves the specific, unambiguous enactment of the state legislature and therefore, the rule enunciated by Bullock, supra, is not persuasive.

For these reasons, the judgment of the trial court in favor of Shirley McNamara, Secretary of the Department of Revenue and Taxation, State of Louisiana against Arkansas-Louisiana Gas Company in the amount of $53,787.00 plus interest is affirmed at Arkansas-Louisiana Gas Company’s costs.

AFFIRMED.


text:
    Harold Thomas TARVER, Plaintiff-Appellant, v. Stella Sanders TARVER, Defendant-Appellee.
    No. 15796-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.
    Rehearing Denied Dec. 22, 1983.
    Writ Denied Feb. 27, 1984.
    Sanders & Sanders by Martin S. Sanders, Jr., Winnfield, for plaintiff-appellant.
    James B. Wells & Associates by Sam A. Smith, Bossier City, for defendant-appellee.
    Before PRICE, HALL and NORRIS, JJ.
   PRICE, Judge.

Plaintiff appeals the trial court judgment dismissing his petition to rescind his 1974 community property settlement agreement to pay his former wife one-half of his military retirement benefits. The critical question on this appeal is whether this agreement incorporated into the judgment of the Bossier Parish Court may be rescinded on the ground that plaintiff was under an error of law.

The parties were married in California in 1951. They were Louisiána domiciliaries at that time and throughout their marriage. Mr. Tarver retired from the United States Air Force in June 1972 after more than 20 years service. On November 12, 1974, a judgment of divorce between the parties was rendered, incorporating the provision of the parties’ community property settlement agreement whereby Mr. Tarver agreed that Mrs. Tarver would receive one-half of his military retirement benefits. No appeal was taken from the judgment. Plaintiff filed this suit January 26, 1981, seeking rescission of the community property agreement and recovery of the money paid to Mrs. Tarver thereunder on the basis of error and lack of cause. The suit was prompted by the decision of the United States Supreme Court in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), holding that a wife has no community interest in her husband’s military retirement pension.

The trial court treated the action as one to nullify the previous judgment and held plaintiff had proved none of the grounds necessary for nullification of the judgment. He therefore found it useless to consider rescinding the parties’ agreement since the judgment withstands the claim of nullity and rejected plaintiff’s petition. On appeal plaintiff takes issue with the trial court ruling that rescission of the agreement could not furnish a basis for nullification of the judgment. He also cites as error the finding that military retirement was a community asset under Louisiana law until the McCarty decision, so that there was no error of law to invalidate the agreement when it was signed.

That portion of the settlement whereby Mr. Tarver agreed to pay his ex-wife one-half of his military retirement pay was incorporated into the divorce judgment in the following manner, with no reference to the parties’ agreement. “It is further ordered, adjudged and decreed that there be judgment herein in favor of Stella Sanders Tar-ver awarding unto her one-half (½) of all pay received by petitioner, Harold Thomas Tarver, from his military retirement, commencing December 5, 1974.” Mr. Tarver testified that he agreed to the payment because he was advised by counsel that the retirement was community property and Mrs. Tarver was therefore entitled to a share of the payments. He argues persuasively that his error of law as to the character of retirement pay renders the agreement, and therefore presumably the judgment also, null.

We cannot, however, agree with plaintiff’s position. Regardless of the consensual nature of the parties’ settlement agreement which forms the basis for the pertinent portion of the judgment, this judgment remains the final determination of the rights of the parties to this action. La.C.C.P. Article 1841. Once a final judgment has been rendered, it may only be annulled for vices of form, not pleaded here, or where it has been obtained by fraud or ill practices. La.C.C.P. Article 2006. No such grounds have been alleged here. See Zeigler v. Zeigler, 420 So.2d 1342 (La.App. 3d Cir.1982). It has been held that a judgment obtained with the consent of the parties is not subject to nullity on the basis of mistake of law. Doll v. Doll, 206 La. 550, 19 So.2d 249 (1944). The court in Doll noted that the joint petition by which judgment was obtained was more than a mere agreement among the parties. It was a judicial proceeding, having for its express purpose the closing of the deceased’s succession, and the parties made no express reservation concerning the binding effect of the judgment rendered pursuant to the agreement of the parties. We likewise find in this record no reservation on the part of the plaintiff restricting the extent to which the parties would be bound by the judgment rendered pursuant to the agreement. Inasmuch as plaintiff has failed to show any ground for nullity of the judgment, pleading only an error of law, we have no basis upon which to delete that part of it providing for division of plaintiff’s retirement pay.

For this reason, rescission of the underlying agreement would be an idle gesture as it could not affect the judgment, although there was obviously an error of law in light of the ruling in McCarty, supra. However, McCarty has not been given retroactive effect to modify earlier judgments to the contrary. See Wilson v. Wilson, 667 F.2d 497 (5th Cir.1982); Erspan v. Badgett, 659 F.2d 26 (5th Cir.1981). In any case, we perceive this agreement to be a contract made for the purpose of avoiding litigation on the issue of the community nature of military retirement. The plaintiff evidently weighed the likelihood of loss against gain in light of the applicable legal precepts and decided against litigation. See, for example, Swope v. Mitchell, 324 So.2d 461 (La.App. 3d Cir.1975). La.C.C. Art. 1846(2) provides that such agreements may not be rescinded for errors of law. Therefore, in our view, there is also no basis for nullification of the agreement.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

      . It should be noted that the decision in McCarty has been legislatively overruled by Public Law 97-252, Title X, Sec. 1002(b) [10 U.S.C.A. Sec. 1408(c)(1)] which became effective on February 1, 1983.


text:
    Ennis Mayfield TIPTON et ux., Plaintiffs-Appellants, v. BOSSIER PARISH SCHOOL BOARD et al., Defendants-Appellees.
    No. 15806-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.
    Rogers M. Prestridge, Bossier City, for plaintiffs-appellants.
    Henry N. Brown, Jr., Bossier City, for defendants-appellees.
    Before FRED W. JONES, SEXTON and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

Plaintiffs, husband and wife, appealed a judgment rejecting their claims against the defendant school board and its insurer for damages resulting from personal injuries allegedly suffered by the wife when she tripped and fell over a curb abutting a sidewalk on school board property.

Concluding that the trial judge correctly decided the question of liability, we affirm.

On April 1, 1978 at about 5:00 o’clock P.M., Ennis Tipton and his 69 year old wife, Emma Tipton, went to vote at Curtis Elementary School in Bossier Parish in a special election called by the police jury. Upon arriving at their destination, Tipton parked his vehicle in the school parking lot near a side entrance to the polling place. The two then went in to vote, completed that process, chatted briefly with friends, and started back to their car. As they approached the parking lot, Mrs. Tipton stumbled and fell when she stepped from the sidewalk to the parking lot.

Suit was instituted by the Tiptons against the Bossier Parish School Board and its insurer and the Bossier Parish Police Jury and its insurer. Settlement was effected with the latter two defendants.

At the trial Mrs. Tipton testified that upon leaving the described polling place [housed in the school building] she walked down a sidewalk to the parking lot. In the act of stepping from the sidewalk into the parking lot, her right shoe caught on a raised curb, causing her to fall and suffer painful injuries. Her shoes were described as being flat-bottomed with wedge-shaped heels.

In general Tipton corroborated the testimony of his wife. This witness stated that he was walking beside his spouse when she stumbled and fell, but conceded that he did not observe her foot come into contact with the curb. Tipton added that the couple had voted at this school site on many occasions over a span of some years, usually parked on the same parking lot and entered the polling place along the same general route as that traversed on the date of the accident. In response to a query, Tipton admitted that nothing prevented them from seeing the raised curb either on approaching the building or leaving it.

According to the record evidence, at the site of the alleged accident the sidewalk had originally been level with the curb. However, over a period of time the sidewalk had settled to the extent that the curb separating it from the parking lot was elevated about 1¼ inches above the sidewalk.

In written reasons for judgment the trial court, applying the doctrine of strict liability [La.C.C. Art. 2317] found that there was a defect in the sidewalk where it abutted the curb at the accident site, but concluded that this defect did not pose an unreasonable risk of injury to Mrs. Tipton. Alternatively, the trial judge determined that there was an absence of negligence on the part of the school board. Consequently, the judgment of which plaintiffs complain was rendered and signed.

On appeal plaintiffs contend that the school board should have been held strictly liable or liable under the general negligence theory. They argue that Shipp v. City of Alexandria, 395 So.2d 727 (La.1981), upon which the trial judge relied, is factually distinguishable because there the unsuccessful injured party stumbled and fell when she stepped off a sidewalk into a street — as opposed to this case in which Mrs. Tipton was traversing an exclusively pedestrian area.

In the recent case of Kent v. Gulf States Utilities Company, 418 So.2d 493 (La.1982) our supreme court explained:

“In a strict liability case [as opposed to a typical negligence case] .... the claimant is relieved only of proving that the owner knew or should have known of the risk involved. The claimant must still prove that under the circumstances the thing presented an unreasonable risk of harm which resulted in the damage (or must prove, as some decisions have characterized this element of proof, that the thing was defective). The resulting liability is strict in the sense that the owner’s duty to protect against injurious consequences resulting from the risk does not depend on actual or constructive knowledge of the risk, the factor which usually gives rise to a duty under negligence concepts....
“Thus, while the basis for determining the existence of the duty .... is different in C.C. Art. 2317 strict liability cases and in ordinary negligence cases, the duty which arises is the same.” (p. 497).

Justice Dennis pointed out in his concur-' ring opinion in Kent:

“All of these ‘unreasonable risk’ tests imply a process of balancing the risk against the value of the interest which the defendant is seeking to protect, and the expedience of the course pursued. Prosser, at p. 149. This is the standard negligence test. In strict liability, except for the element of the defendant’s knowledge, the test is the same as that for negligence.” (p. 501).

The pivotal question in our case is: did the slightly elevated curb pose an unreasonable risk of harm to Mrs. Tipton? Put another way, considering all relevant factors [extent of elevation, nature and volume of pedestrian traffic, frequency in the area of ground “settling”, cost of remedying every similar condition], was the school board under a duty to eliminate the raised curb? After weighing the interests involved, we answer these questions in the negative.

We agree with the trial judge that, although sidewalks and curbs must be kept reasonably safe, expecting them to be maintained in perfect condition is unrealistic.

For these reasons, we affirm the district court judgment, at plaintiffs’ cost.


text:
    Carl E. TOMPKINS, Plaintiff-Appellant, v. The SCHERING CORPORATION, D/B/A U.S. Animal Health Products, Defendant-Appellee.
    No. 15812-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.

      Thompson & Harp by George E. Harp, Shreveport, for plaintiff-appellant.
    Blanchard, Walker, O’Quin & Roberts by John T. Cox, Jr., Shreveport, for defendant-appellee.
    Before PRICE, HALL and NORRIS, JJ.
   NORRIS, Judge.

Carl E. Tompkins appeals a judgment rejecting his demands for certain commissions and vacation pay which he claimed to be due and owing to him from Schering Corporation after he was terminated.

Tompkins was employed by Schering Corporation on August 24,1981 to sell its veterinary products in a three state area. It was the agreement between the parties that Tompkins would be paid a straight salary plus additional bonuses in lieu of commissions through 1981 and thereafter he would continue to receive a salary plus additional compensation in accord with Schering’s commission or incentive program. His employment was subject to all employee policies as described in the Employee Handbook, sales manuals, and other company communications. During the first week of January, 1982, Schering introduced an “Incentive and Awards Program” to its sales personnel at its annual sales meeting in Chicago. The plan specifically noted significant changes in the method of determining incentive payouts for 1982. The total incentive payout was to consist of commissions and “push programs” (money and premiums). The commissions were to be paid at varying rates depending on the category of products sold. The plan provided for three commission periods during the year and that any representative leaving Scher-ing for any reason during a commission period would be ineligible for any incentive payment during that period.

Tompkins was present at the annual sales meeting when this new incentive program was introduced and was aware of its provisions. This program was equally applicable to all of Schering’s sales representatives. On March 15,1982, during the first commission period under the plan, Tompkins was terminated for unsatisfactory job performance. After his termination, Tompkins demanded his accrued vacation pay and the commissions which he contended were due him for the period from January 1, 1982 through his date of termination.

Schering contended that the only sum owed to Tompkins at the time of his termination was five days’ vacation pay. This amount was tendered to Tompkins in the form of a check dated March 19,1982. Sent with the check but not made a part of it, was a form which was entitled “Certification Receipt and Release”. Tompkins refused to sign the form or cash the check. Thereafter, his attorney contacted the company demanding that Tompkins be paid an additional week of vacation pay, reimbursement for long distance calls, five sick days, commissions and a premium award. Because Schering disputed that these amounts were owed [with the exception of the phone bill which was promptly paid], this suit followed. At trial, Tompkins conceded that the only sums actually in dispute were the vacation pay and the bonuses or commissions due under the incentive plan. The trial court concluded that Schering had paid Tompkins all the sums which he was due; and Tompkins appeals.

The two pivotal issues presented by this appeal are (1) whether or not the tender of the check for the vacation pay was a conditional tender, and (2) whether or not the eligibility provisions of the incentive and award plan are ambiguous and/or constitute a forfeiture of wages under La.R.S. 23:634.

La.R.S. 23:631 provides:

A. Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation. Said payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.
B. In the event of a dispute as to the amount due under this Section, the employer shall pay the undisputed portion of the amount due as provided for in Subsection A of this Section.
C. With respect to interstate common carriers by rail, a legal holiday shall not be considered in computing the three day period provided for in Subsection A of this Section.

A conditional tender of a check in final payment of a claim for wages does not constitute compliance with La.R.S. 23:631(B) and does not absolve the employer from the penal provisions of the statute. Haywood v. Salter, 421 So.2d 1190 (La.App. 2d Cir.1982); Rush v. Ryan Chevrolet, Inc., 408 So.2d 984 (La.App. 2d Cir.1981). Thus, in order to comply with La.R.S. 23:631, Schering’s tender of the check for the vacation pay must have been unconditional and not contingent upon Tompkins’ execution of a release or compromise settlement. Hess v. Pembo, 422 So.2d 503 (La.App. 4th Cir.1982).

It is significant that the check which was received by Tompkins was devoid of any restrictive or settlement language. The notation on the ledger simply stated that it was for five days vacation pay. The release was simply included with the check with no instructions. Certainly, under these particular facts and circumstances, the cashing of the check without signing the release form and returning it to Scher-ing would not have constituted an accord and satisfaction or a release in favor of Schering for other amounts alleged to be due and owing. Furthermore, in a letter dated April 20, 1982, written by Tompkins’ attorney to Schering demanding payment of amounts contended to be owed, we find the following language:

... Mr. Tompkins was paid his regular salary (less commission) through March 15, 1982, and five days vacation pay. However, the following remuneration was not paid ... [Emphasis added.]

Thus, by Tompkins’ own admission it is obvious that he did not consider this to be a conditional tender at the time that the letter was written and in fact acknowledged that this amount had been paid. Therefore, we conclude that under the particular facts and circumstances of this case, that the check issued by Schering for the vacation pay was not a conditional tender because it was not delivered to Tompkins conditioned upon his signing the release. Therefore, we conclude that Schering adequately complied with La.R.S. 23:631(B).

A more serious issue is raised by the eligibility provision of the incentive program which states:

As in the past, our incentive programs are designed to reward sales performance, while merit salary increases reward the territory management of your job.
In 1982, we will implement the trimester commission payout plan. There will be three (3) commission payment periods and they will be: January-April (payment about June 15); May-August (payment about October 15); and September-December (payment about February 15, 1983). This method of payment is designed to help you see the results of your efforts and be able to enjoy them (the dollars) sooner.
With the changes in the payout schedule, there will be corresponding changes in the eligibility of representatives for commission income. Representatives employed during the first half of the commission periods (i.e., January, February, May, June, September, October) will receive pro-rated incentive payments for that period. Representatives employed during the second half of each commission period will receive no incentive payment for that period. Representatives leaving Schering, for any reason, at any time, during the commission period will be ineligible for any incentive payment during that period. [Emphasis added.]

Tompkins first argues that the language contained within the eligibility provisions of the incentive program is ambiguous and because of this ambiguity should be interpreted against Schering.

Tompkins’ contention apparently would have us interpret the eligibility provision to mean that because he was in the employ of Schering for the first half of the commission period, that he is entitled to benefits until the time of his termination. The particular word which Tompkins apparently relies on as being controlling is “employed.” Employed is defined by Black’s Law Dictionary:

Term signifies both the act of doing a thing and the being under contract or orders to do it. To give employment to; to have employment.

Accordingly, “employed” may be synono-mous with “hired.”

We conclude, as did the trial court, that the only reasonable interpretation to be given to the paragraph in question is that a representative employed initially [or hired] during the first half of a commission period will receive prorated incentive payments; a representative employed initially [or hired] during the second half of a commission period will receive no incentive payment for that period and a representative leaving Schering for any reason during the incentive period [no matter when hired] will receive no incentive payments. This is the only interpretation which can be given the agreement which does not lead to absurd and ridiculous results and which clearly reflects and gives effect to the true intent of the parties. La.C.C. Arts. 1945, 1946, 1951, 1952, and 1955. This interpretation gives effect to the agreement rather than rendering its language without meaning. See Crow v. Southern Natural Gas Co., 210 So.2d 596 (La.App. 2d Cir.1968).

Tompkins next argues that the provision which applies to an employee leaving Scher-ing for any reason during a commission period and rendering that employee ineligible for any incentive payments during that period is in violation of La.R.S. 23:634, which provides:

No person, acting either for himself or as agent or otherwise, shall require any of his employees to sign contracts by which the employees shall forfeit their wages if discharged before the contract is completed or if the employees resign their employment before the contract is completed; but in all such cases the employees shall be entitled to the wages actually earned up to the time of their discharge or resignation.

It is clear under the facts of this case that under the terms of Tompkins’ employment, he was subject to the incentive program. It is undisputed that he was terminated for cause prior to the end of the first commission period. The bonus payments were part of his compensation for services rendered conditioned upon his remaining with Schering for the entire commission period.

Tompkins argues that the case of Pender v. Power Structures, Inc., 359 So.2d 1321 (La.App. 4th Cir.1978) is authority for our holding that Tompkins is entitled to recover the commissions which he earned prior to his termination.

Pender is an extension of the rationale in Morse v. J. Ray McDermott, 344 So.2d 1353 (La.1976) which addressed the issue of whether a former employee who was terminated without cause due to the state of the economy was entitled to recover amounts due under the company’s supplemental compensation plan which contained a forfeiture clause. The supplemental compensation plan in that case was to reward salaried employees and to induce them to continue in their employment. In accordance with the plan, the company placed a fixed percentage of the company’s profits for each fiscal year in a reserve from which awards were made on the basis of each employee’s contribution to the success of the company during that year. The awards were made annually and were payable in five equal installments. The first installment was paid when the award was made and four remaining installments were paid on July 15 of each of the four succeeding calendar years during which the employee remained in the company’s employ. If employment was terminated for reasons other than death, disability or retirement, all unpaid portions of the prior awards were forfeited. The plan referred to the right of the employee to receive monies, once awarded, as a “contractual right.” The court held that this forfeiture provision was invalid because an employer cannot take a man’s labor on the condition of possibly awarding retrospective pay, then award the retrospective pay but deliver only a portion of the pay and prevent him from collecting the delayed portions by terminating his employment. This was found to be particularly true where the denying of the benefit did not impose on the employer any supplemental obligation and the company in its unfettered discretion may decide to make payments to other similarly terminated employees. The court found that such awards were not gratuities but were delayed compensation or pay for performed services. The supplemental cause was to encourage employees to remain with the company. There, the employee had performed and was willing to continue his employment therefore the plan was unenforceable when applied to the circumstance where the unilateral act of the employer kept the employee from performing his part of the bargain, i.e. remaining employed to the date on which the delayed portions were payable. The employer was not allowed to defeat its obligation to pay by preventing the employee from fulfilling his obligation by terminating without cause because of the overriding considerations of justice and fair play and the strong public policy against wage forfeitures, coupled with the employer’s discretionary denial of the employee’s earned compensation. Morse expressly did not address the issue of whether such a plan would be enforceable should it not contain a waiver of non termination provision.

Thereafter, the court in Pender v. Power Structures, Inc., supra, addressed the issue of the validity of a bonus plan’s requirement that an employee still be employed on a scheduled date, i.e., thirty days beyond the bonus period, for the payment of the bonus. The plan in question required that an employee work thirty days beyond the bonus period as a contingency to its collection. The bonus was part of the employee’s bargained for compensation. The court concluded that La.R.S. 23:634 prohibited the employer from forfeiting such compensation when the employee had worked for the entire period of profits upon which the bonus was based but did not work the required additional thirty days. The court found Morse not to be controlling because the employee was fired for cause and expressly did not address the issue of whether an employer can require an employee to continue in its employment until the end of the bonus period in order to collect a bonus for the period.

In Seifert v. General Tire and Rubber Co., 381 So.2d 1262 (La.App. 4th Cir.1980), an employee who had been terminated for cause sought to recover a bonus to which he would have been entitled had he worked through the end of the fiscal year. The employee was terminated on November 4, 1976 and the fiscal year ended November 30, 1976. Under the terms of this plan, the employee who received a fixed salary and did not receive commissions on sales could earn additional wages based on two particular stores’ quota achievement. The eligibility requirements for the plan provided that the employee be in the employment of the company at the time of the bonus payment. The court found Morse not to be controlling because the employee was terminated for cause. Therefore, he was not eligible for the bonus because he was not in the company’s employment at the end of the bonus period.

In Hinton v. Owensby & Kritikos, Inc., 425 So.2d 926 (La.App. 4th Cir.1983), an employee sued to recover sums due under an incentive compensation program. The employee had entered into an agreement with the company which provided for an incentive program where he would receive as part of his compensation 1% of the net volume of annual business generated during a fiscal year from November 1 to October 31. The agreement provided that compensation generated for a fraction of the year would not be paid except at the direction of the Board of Directors. The employee was terminated on July 24, 1980 for cause. Thus, the court concluded, as it had in Sei-fert, that Morse was not controlling because this was a situation where the employee was fired because of fault on his part. Pen-der was also distinguished by the court and it was held that because the employee was terminated prior to the end of the fiscal period which would have given rise to his incentive compensation, the right to the money had not accrued at the time of the discharge.

Applying the foregoing rationale to the instant ease, we conclude that the provision of the Incentive and Awards Program which requires that the eligibility of the employee be conditioned upon his being in Schering’s employee at the end of the commission period is not a prohibited forfeiture under La.R.S. 23:634 under the facts of this case where the employee was terminated for cause and the requirement was uniformly applied to all of Schering’s sales personnel. We find Morse to not be controlling in the factual situation presented by this case.

Accordingly, we conclude that the trial court was not in error in determining that Tompkins had received all of the money which he was due under his employment agreement with Schering. Therefore, the judgment of the trial court is affirmed in its entirety. Costs of this appeal are cast against appellant.

JUDGMENT AFFIRMED.

      . Vacation pay is considered to be “wages” for the purposes of La.R.S. 23:631. Draughn v. Mart, 411 So.2d 1188 (La.App. 4th Cir.1982).

      . This enclosure reads as follows:
      CERTIFICATION, RECEIPT AND RELEASE (1)This is to certify that I have returned to Schering all of its property entrusted to my care or use during my employment and remaining in my possession (including but not limited to any and all research notes, technical data, compounds and product samples, company credit cards).
      (2) In reliance upon the aforesaid certification, Schering Corporation has paid me, and receipt is hereby acknowledged of, the sum of $241.02 NET, representing all sums due me from Schering Corporation. I understand that any sums due me from the Schering Corporation Employees Federal credit Plan, Schering Employees’ Suggestion Plan, sales incentive plans and Retirement Plan, will be paid separately by those entities in accordance with their respective procedures.
      (3) I hereby release and discharge Schering Corporation from any and all claims and demands whatsoever.