author: HALL, Judge.

text:
    Burl J. THOMAS v. Herman JACKSON, Jr., et al. SOUTHERN COUNTY MUTUAL INSURANCE COMPANY v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al.
    Nos. 15763-CA, 15764-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.

      Eugene P. Cicardo, Alexandria, for plaintiff-appellant, Burl J. Thomas.

      Cicero & Moak by Stacey Moak, Baton Rouge, for defendant-appellant, State of La., Dept, of Transp. and Development.
    Gold, Little, Simon, Weems & Bruser by Robert G. Nida, Alexandria, for Southern County Mut. Ins. Co. and Douglas Hatta-way.
    Bethard & Davis by Walter E. Dorroh, Jr., Coushatta, for defendant-appellee, Herman Jackson, Jr.
    Edward 0. Kernaghan, Shreveport, for Herman Jackson, Jr. and Insured Lloyds Ins. Co.
    Before. PRICE, HALL and NORRIS, JJ.
   HALL, Judge.

These consolidated suits arise out of an accident which occurred November 28,1979 on U.S. Highway 71 about five miles south of Coushatta, involving a southbound pickup truck driven by Herman Jackson, Jr. with Burl Thomas as a passenger, and a northbound 2Va ton loaded dump truck driven by Bethel Risinger. The Jackson pickup went onto the shoulder of the road and after traveling some distance reentered the highway spinning counterclockwise and crossed over to the northbound lane where it collided with the dump truck.

After trial of the multiple demands, re-conventional demands, and third party demands, the district court found Jackson and Risinger were not negligent and that the sole proximate cause of the accident was a drop-off between the paved surface and the shoulder of the road which constituted a vice or defect which created an unreasonable risk of injury to a motorist attempting to reenter the highway from the shoulder, rendering the DOTD strictly liable under LSA-C.C. Art. 2817.

Judgment was rendered against the Department of Transportation and Development in favor of Jackson and Thomas for their injuries, and in favor of the owner and subrogated collision insurer of the Ri-singer truck for property damage. All other demands of the parties were rejected. All parties except Jackson appealed.

The issues presented on appeal are:
(1) Liability of the DOTD;
(2) Negligence of Risinger;
(3) Negligence of Jackson; and
(4) Amount of damages awarded to Thomas.

Liability of DOTD

The record reveals that there is substantial evidence supporting the district court finding that there existed a defective condition in the disparity of the levels of the paved surface and shoulder of the highway which presented an unreasonable risk of injury.

Mrs. Carroll, a witness who was driving behind the dump truck and stopped at the scene, testified there was a four to six-inch drop-off at the point where the Jackson pickup reentered the highway, and that the drop-off was “dramatic.” Thomas’s brother, who went to the scene shortly after the accident, testified the drop-off was nine to ten-inches deep at that point, a little deeper than the length of his hand. Thomas went to the scene two days after the accident and found the drop-off to be nine to ten inches. Jackson observed a drop-off of four to five inches when he returned to the scene about two months after the accident. Photographs of the scene taken two months after the accident show a significant drop-off.

There was some testimony to the contrary. Trooper Graves who investigated the accident testified there was no drop-off between the road surface and shoulder although there was a slanted difference in elevation of two inches over a six-inch span at the edge of the highway. The trial court expressly stated that it placed little, if any, significance on the trooper’s testimony. The weight of that testimony is diminished by the fact that the trooper’s accident report showed a check mark by “defective shoulder”, which the trooper said was done because of a direct order by his supervisor. Another witness, McDonald, who was driving ahead of the dump truck and walked back to the scene of the accident, testified the shoulder was in good shape and he noticed no drop-off. Risinger said he did not pay much attention to the shoulder but noticed a drop-off of no more than three to three and one-half inches. Oberlander, the highway department superintendent, testified maintenance work was done on the highway about a month before the accident and that he had not seen any drop-off in drive-by inspections. He also testified, however, that he did not know the exact site of the accident.

The preponderance of the evidence is that there was a significant and dangerous drop-off at the point where the Jackson pickup reentered the highway. The drop-off was unquestionably a substantial contributing factor in causing the pickup to go out of control and spin counterclockwise across the highway. DOTD’s breach of its duty to maintain the highway and shoulder in a reasonably safe condition encompassed the risk of just the kind of accident and injury involved here, and it is strictly liable under LSA-C.C. Art. 2317 for the injuries caused by the defective condition of the highway. See LeBlanc v. State, 419 So.2d 853 (La.1982); Sinitiere v. Lavergne, 391 So.2d 821 (La.1980); Rue v. State, Dept. of Highways, 372 So.2d 1197 (La.1979); Smith v. State, through Dept. of Transp., Etc., 412 So.2d 685 (La.App. 2d Cir.1982).

Negligence of Risinger

The trial court found that the evidence did not substantiate any negligence on the part of Risinger, the driver of the dump truck. This finding is not seriously contested by any party on appeal, and is clearly correct. He was traveling at 50-55 miles per hour, as shown by his testimony and that of Mrs. Carroll, who had been traveling two cars behind him for several miles. Jackson and Thomas both testified that the Risinger dump truck was about two feet over the center line as it was negotiating the curve, but Risinger denied that his truck ever crossed the center line. Importantly, Mrs. Carroll, whose testimony the trial court found to be “most persuasive”, testified that at no time did the Risinger truck cross the center line. The preponderance of the evidence establishes that Risinger was driving in a proper manner and was not negligent.

Negligence of Jackson

The trial court found that the evidence was insufficient to establish that Jackson was traveling at an excessive rate of speed. It further found that at the time he entered the shoulder, Jackson either believed the oncoming Risinger truck was across the center line or he eased onto the shoulder to get as far to the right side as possible to avoid oncoming traffic negotiating a curve ahead of him. In either event, the court found Jackson was not negligent in driving onto the shoulder.

These findings by the trial court, as far as they go, are correct. Although Risinger and McDonald testified that in their opinion Jackson was traveling at a high rate of speed, about 70 miles per hour, they were not in a good position to be able to make an accurate judgment as to Jackson’s speed. Mrs. Carroll was unable to say that Jackson was speeding. Jackson and his passenger both testified he was going 50 to 55 miles per hour.

Driving onto the shoulder, which was wide and did not have a significant drop-off at the point where Jackson drove onto the shoulder, was not negligence. Several cases have held that inadvertently driving onto a shoulder is not negligence. See Rue, supra, Sinitiere, supra, and other cases cited infra. In McDaniel v. State, Dept. of Transp. & Etc., 398 So.2d 88 (La.App. 3d Cir.1981), the court held that a driver who drove onto the shoulder because of an “illusion” that oncoming traffic was in his lane was not negligent.

The really difficult issue in this case, that is, whether Jackson was negligent in attempting to reenter the highway, was not specifically addressed by the trial court.

Although Jackson testified that he did not attempt to steer the pickup back onto the highway and that the pickup suddenly hit something and jumped back on the highway, the trial court found that he was attempting to reenter the highway, and the preponderance of the evidence supports this finding. Jackson’s passenger, Thomas, testified Jackson was trying to get back on the road. Risinger stated that the driver of the pickup was trying to get it back on the road. Mrs. Carroll testified the driver of the pickup “jerked” the wheel to come back on the road. The manner in which the pickup reentered the road, crossing it diagonally as it spun counterclockwise, strongly indicates that the wheels of the truck were turned toward the paved surface of the highway when it hit the drop-off.

The evidence as to whether only the right wheels or all four wheels of the pickup went onto the shoulder, and as to what distance the pickup traveled on the shoulder, is conflicting and confusing. McDonald testified the pickup was entirely off the highway onto the shoulder when it passed him 100 yards from the scene of the accident and that the truck left the road 200 yards before it passed him. The trooper placed Jackson’s exit onto the shoulder at 240 feet north of the point of impact. Jackson testified he was on the shoulder two to four seconds, that all four wheels were on the shoulder and that he was about 45 yards from the oncoming truck when he hit the shoulder. Thomas made the unlikely estimate that they were on the shoulder 25 to 30 seconds, and said only the two right wheels were on the shoulder. Mrs. Carroll testified she saw the pickup’s right wheels go off the paved surface and then travel only about one car length before it returned to the paved surface.

There was evidence that the drop-off along the shoulder deepened as it ran from the north to the point where the pickup reentered the highway. Thomas’s brother testified the rut ran along the shoulder for 100 to 150 feet and got deeper as the road went toward the curve to the south. Another witness who went to the scene two months after the accident testified there was not much of a drop-off at the point where the pickup left the road.

In considering whether Jackson's actions after he got onto the shoulder were negligent, we first note that the party asserting the negligence of another party has the burden of proving that negligence. However, it is also a well-settled principle of law that where a motorist crosses the center line of a highway and collides with an oncoming vehicle in the motorist’s wrong lane of travel, the motorist is presumed to be negligent and has the burden of exculpating himself from negligence. Simon v. Ford Motor Company, 282 So.2d 126 (La.1973); Foster v. Marshall, 341 So.2d 1354 (La.App. 2d Cir.1977). Under the facts of the instant case, Jackson has the burden of proving that he was free from fault.

Next, we note that a body of law relative to defective shoulder accidents has developed from numerous cases decided in recent years beginning with Rue.

In Rue, the court held that even if a motorist’s conduct was substandard in inadvertently driving onto the shoulder of a road, such substandard conduct does not encompass the risk of injury from striking an unexpected, negligently maintained highway shoulder. This is so because a motorist has a right to assume that a highway shoulder, the function of which is to accommodate motor vehicles intentionally or unintentionally driven thereon, is maintained in a reasonably safe condition. The court held that the driver who inadvertently allowed the right tires of her vehicle to leave the paved surface and lost control of her vehicle when the right wheel struck a deep rut adjacent to the ragged, eroded edge of the highway as she attempted to regain the paved portion of the road, was not barred from recovering from the highway department.

In the later Sinitiere case, the court held that the rule of Rue does not establish the highway shoulder as a “zone of recovery” for every straying motorist. Rather, it states the principle that a person is not automatically barred from recovery or charged with liability where the person does not have actual or constructive knowledge of an avoidable danger. If a person is chargeable with knowledge of a shoulder defect and disregards his own safety and that of others, his action in leaving the main traveled portion of the highway is a breach of his duty to himself and to others who can reasonably be expected to be injured by his action. The driver in the Sini-tiere case inadvertently allowed his right two wheels to ease onto the shoulder. There was only a slight depression, if any, on the shoulder at the point where the wheels left the paved portion of the highway, but the depression deepened over a 100 foot span to the point where the driver attempted to reenter the highway. The driver allowed his vehicle to slow to about 35-40 miles per hour and then attempted to reenter the highway at a point where there was a 3V2 to 4-inch drop-off from the paved portion of the highway to the shoulder. Contact between the wheel and the elevated edge of the roadway caused the driver to lose control of his vehicle, careen across the highway, and collide with an oncoming vehicle. The court held that the driver was not negligent in going onto the shoulder but he should have known something was seriously wrong at the point where he attempted to reenter the paved portion of the highway. He was not justified in failing to see the significant depression at that point and his breach of duty to observe what he should have seen was a cause-in-fact of the accident and had a substantial relation to the harm encountered by himself and the occupants of the vehicle with which he collided. The court held the driver was liable to the other parties and was precluded from recovering from the Department, which was also found liable to the other parties because of the defective shoulder.

Then in LeBlanc, the court allowed recovery by a motorist against the Department where the motorist inadvertently allowed her vehicle to stray from the roadway onto a dangerously low shoulder with a four to six-inch drop-off, immediately, and instinctively attempted to steer her vehicle back onto the roadway, lost control, and collided with an oncoming vehicle on the other side of the road. The court held that a motorist’s instinctive overreaction to an abrupt drop-off between the roadway and the shoulder is part of the risk against which the Department’s duty to maintain the shoulder in a reasonably safe condition is designed to protect. In distinguishing Sinitiere, the court noted the Department’s duty does not protect a motorist against a shoulder defect of which the motorist has knowledge and a reasonable opportunity to avoid, but in LeBlanc the motorist had no knowledge of the defect.

Several court of appeal cases have reached varying results, depending on the facts and circumstances of each ease. Smith v. State, through Dept. of Transp., supra, involved facts similar to the instant case but the driver who lost control while attempting to reenter the highway and who was found negligent in the trial court did not appeal and his negligence was not at issue on appeal.

Godwin v. Government Emp. Ins. Co., 394 So.2d 751 (La.App. 3d Cir.1981), also involved similar facts. The driver inadvertently allowed the right wheels of her vehicle to leave the paved portion of the highway. She had no prior knowledge of the 2½ to 3-inch drop-off and was not negligent in leaving the highway. After she got on the shoulder she had no difficulty controlling her automobile and there were no obstructions on the shoulder to prevent her from gradually slowing her vehicle to a complete stop if necessary and then maneuvering her automobile back onto the paved surface. The accident was caused by her attempting to return to the pavement at too great an angle, failing to significantly reduce the speed of her automobile, and oversteering to the left. The court concluded that the driver’s actions after she left the pavement and traveled on the shoulder were negligent, barring her recovery against the Department and rendering her jointly responsible with the Department for injuries sustained by a passenger in her car.

In Edwards v. State, Dept. of Transp. & Devel., 403 So.2d 109 (La.App. 3d Cir.1981), there was a drop-off of approximately three inches between the level of a new asphalt overlay and the shoulder of the road. The driver allowed the right wheels of his vehicle to go off the asphalt onto the shoulder. When he subsequently attempted to reenter the highway he lost control of his vehicle which skidded across the highway and turned over. The driver was traveling at an excessive rate of speed and knew of the drop-off. There was nothing to indicate that he could not have remained on the shoulder until he reduced his speed enough that reentry could have been safely made. The court held the driver’s actions were substandard and amounted to a breach of the duty of reasonable care owed himself and was a cause-in-fact of the accident. His negligence contributed substantially to the accident and barred his recovery against the Department.

A contrary result was reached in McDaniel v. State, Dept. of Transp. & Etc., 398 So.2d 88 (La.App. 3d Cir.1981). The driver steered his vehicle to the shoulder on the right because of an illusion that the lights of oncoming cars in a curve were in his lane. He subsequently lost control of his car, veered across the highway, and collided head-on with an oncoming vehicle. There was a four to 10-inch drop-off between the recently overlaid surface of the highway and the shoulder, and also a steep shoulder-ditch drop-off. Significantly, it was not established that the driver ever regained control after slipping off the paved surface. The court affirmed a trial court finding that the driver was free of negligence.

In a series of cases involving separate accidents which each occurred in a curve on the same stretch of a highway, the court found motorists free of negligence. Payne v. Louisiana Dept. of Transp., & Etc., 424 So.2d 324 (La.App. 1st Cir.1982), involved a motorist whose right tires strayed onto the shoulder of the road. After slowing down, she attempted to regain the paved roadway but lunged across the road into the path of an oncoming car. There was a six to eight-inch drop-off from the paved roadway to the shoulder. The court found the driver was not guilty of victim fault so as to preclude recovery. She was not familiar with the highway defect, she was propelled to the shoulder by inadvertent straying and an adverse crown to the road on a curve, almost turned over when she went on the shoulder, and instinctively tried to protect her child riding with her. In Thornhill v. Louisiana Dept. of Transp., & Etc., 424 So.2d 331 (La.App. 1st Cir.1982), the motorist found free from fault slowed down as he entered the curve, eased onto the shoulder because an oncoming car had drifted into his lane, and continued through the curve steering to the left. All of a sudden the car went roughly to the left, shot across the road, through a ditch and into trees on the other side of the road. The court held that the Department’s duty extended to protecting this motorist from this type of accident. Although the motorist knew of the defective condition of the road, he had no reasonable opportunity to avoid driving onto the shoulder. In Everett v. Louisiana Dept. of Transp., & Etc., 424 So.2d 336 (La.App. 1st Cir.1982), the driver failed to negotiate the curve and ran onto the shoulder, traveled 264 feet on the shoulder along the ditch, straightened the vehicle preparatory to reentering the highway, reentered and crossed both lanes sideways, hit the opposite ditch bank and overturned. The driver’s negligence was not at issue in this suit brought against the Department by the decedents of the driver’s wife who was a passenger in the car and was killed in the accident. In Murphy v. Louisiana Dept, of Transp., & Etc., 424 So.2d 344 (La.App. 1st Cir.1982), the driver drove the right wheels of her car onto the shoulder to avoid an oncoming vehicle, traveled an undetermined distance along the shoulder, and jerked the wheel “real hard” to get her car back on the road. The vehicle “jumped” back on the road, threw the driver into a passenger, went out of control across the highway, and turned over. The court affirmed a trial court finding that the driver was free from negligence, without further explanation.

In Cullivan v. State Farm Mut. Auto. Ins. Co., 428 So.2d 1281 (La.App. 3d Cir.1983), the court affirmed a trial court holding that the motorist was free from negligence where she did not have actual or constructive knowledge of the defective condition of the shoulder which was soft and slippery with a five to six-inch drop-off. There the right wheels left the road and veered onto the shoulder. When the driver attempted to reenter the roadway her car hurtled across the highway and collided with an oncoming vehicle.

In Palermo v. Allstate Ins. Co., 415 So.2d 437 (La.App. 1st Cir.1982), the driver inadvertently hit a deep rut on the shoulder next to the paved portion of the highway and then swerved across the highway and collided with an oncoming truck. In affirming a finding of negligence on the part of the driver, the court found no negligence in going onto the shoulder and pointed out that the Department, which made no claim of “negligent re-entry”, had failed to develop any theory of negligence on the part of the driver.

Turning to the facts of the instant case, Jackson deliberately drove his pickup truck, traveling at or near the 55-mile-per-hour speed limit, either partially or all the way onto the shoulder because of an erroneous perception of the necessity of doing so in order to avoid oncoming traffic. He • traveled a considerable distance with his wheels on the shoulder, only slightly reducing his speed. There is no evidence of any obstructions existing on the dirt and gravel shoulder, which appears to have been fairly wide and flat. The rut or drop-off deepened as Jackson traveled south to approximately four to 10 inches at the point where he attempted to reenter the highway. The evidence does not indicate any reason why Jackson could not have proceeded farther along the shoulder, further reducing his speed.

While it cannot be said that Jackson had actual knowledge of the extent of the drop-off at the exact point where he attempted to reenter the paved portion of the highway, he testified he felt a drop when he left the highway and that the rear end of his truck skidded a little. His passenger testified the tire went down as if in a trench.

Having driven onto the shoulder, knowing that there was some degree of difference in the elevation of the paved surface and the dirt and gravel shoulder, it was incumbent upon Jackson to remain on the shoulder, there being no obstruction to his doing so, until he had reduced his speed to a point where he could reenter the pavement safely without danger of losing control of his truck. It was incumbent upon him to make sure the highway surface was such that it did not present a hazard to his safe reentry to the pavement. His action in attempting to reenter the pavement from the shoulder while still traveling at a substantial rate of speed in the face of oncoming traffic at a point where there was a significant drop-off was substandard and negligent. His breach of duty in this respect encompassed the risk of injury to himself, his passenger, and others traveling on the highway. The accident would not have happened but for his negligent attempt to reenter the highway under these circumstances, and his negligence was a cause-in-fact of the accident. Vis-a-vis the DOTD, the duty of the Department to maintain the shoulder in a reasonably safe condition, while encompassing the risk of injury to a motorist driving on the shoulder in a reasonable manner under the circumstances, does not encompass the risk of injury to a motorist who negligently, as distinguished from instinctively or because of necessity, attempts to exit from the shoulder onto the paved portion of the highway, so as to excuse the motorist’s substandard driving in that respect.

Because of his negligence, Jackson is barred from recovery from the DOTD and is liable in solido with the DOTD to Thomas and to the owner and insurer of the other vehicle involved in the accident.

Amount of Damages Awarded to Thomas

Burl Thomas argues that the general damage award of $25,000 is inadequate and that the trial court erred in failing to make any award for loss of earnings.

Thomas was seen by Dr. Hanna in Cous-hatta on the day of the accident. He had a large laceration of the scalp, which was sutured, and complained of neck pain. He was fitted with a cervical collar. Several days later he was referred to the LSU Medical Center in Shreveport for evaluation of his neck injury.

Examination and X-rays at the medical center disclosed that Thomas had a fracture of the second odontoid process or second vertebra in the neck, with minimal displacement. He was admitted to the hospital and placed in head halter traction. He was later fitted with a halo, a metallic device with four screws in the head. He was also placed in a plaster cast with the halo attached to it. Thomas remained in the hospital for 24 days.

He returned for checkups on two occasions, an was last seen at the center on January 28, 1980, about two months after the accident.

According to the doctor, an injury of this type ordinarily heals in 12 to 16 weeks and leaves no permanent disability. The injury was painful, and the cast which he was required to wear was very uncomfortable. Thomas himself removed the cast and the halo, including the screws in his head, about three months after the accident.

Thomas testified as to his substantial pain and stated he was unable to go back to work for a year after the accident. Thomas testified he worked as a body repair man at Linwood Body Shop at the time of the accident, earning $450 per week which he was paid in cash. He offered no supporting documentary evidence, such as W-2 forms, and his employer was not called to testify.

The fact that Thomas worked at Linwood Body Shop and could not go back to work for a year was corroborated by the testimony of his brother. There was no corroboration of the amount of his pay and no medical corroboration of disability beyond the three or four-month period ordinarily expected for this type injury. Dr. Bicknell, an orthopedic specialist, saw Thomas a little more than a year after the accident and opined the fracture had entirely healed since it did not show up on his X-rays. The doctor attributed Thomas’s complaint of neck pain as being muscular and was of the opinion Thomas was not disabled in any respect.

The trial court found Thomas to be a rather tough individual with a somewhat unusual tolerance for pain, that there was no evidence that his recovery was other than normal, and that he certainly had quite a bit of pain and anguish associated with his injury. The court found no substantiation for the lost wages claim.

While the award is on the low side, we find no abuse of discretion in the court’s award of $25,000 for general damages. We do find, however, that the trial court erred in failing to make an award for lost earnings or earning capacity. Thomas’s testimony that he was employed at the time of the accident is corroborated. That he was disabled from working for several months is certain. The lack of corroboration of the amount he earned at his employment makes his testimony in that regard highly suspect. Nevertheless, Thomas is entitled to an award for lost earning capaci'ty during the period of disability. We fix the award at $4,000.

Decree

For the reasons assigned, the judgment of the district court is reversed in part, amended in part, affirmed in part, rendered and recast as follows:

It is ordered, adjudged, and decreed:

(1) That there be judgment rejecting and dismissing all demands of Herman Jackson, Jr. against all parties herein;

(2) That there be judgment in favor of Burl J. Thomas against the Department of Transportation and Development, State of Louisiana, Herman Jackson, Jr., and Jackson’s liability insurer, Insured Lloyds Insurance Company, in solido, in the amount of $32,972, with legal interest thereon from date of judicial demand until paid; all other demands of Burl J. Thomas against other parties are rejected and dismissed;

(3) That there be judgment in favor of Southern County Mutual Insurance Company against the Department of Transportation and Development, State of Louisiana, Herman Jackson, Jr., and Jackson’s liability insurer, Insured Lloyds Insurance Company, in solido, in the amount of $7,920.78, with legal interest thereon from date of judicial demand until paid;

(4) That there be judgment in favor of Douglas Hattaway against the Department of Transportation and Development, State of Louisiana, Herman Jackson, Jr., and Jackson’s liability insurer, Insured Lloyds Insurance Company, in the amount of $1,171.72, with legal interest thereon from date of judicial demand until paid;

(5) That Herman Jackson, Jr. and his liability insurer, Insured Lloyds Insurance Company, are awarded contribution against the Department of Transportation and Development, State of Louisiana, for one-half of the amount of the judgments rendered herein; and the demands of Herman Jackson, Jr., and Insured Lloyds Insurance Company against the Department for indemnification are rejected and dismissed;

(6) That expert witness fees of Dr. Richard Hanna, Dr. Herbert Husbands, Dr. Harold Bicknell, and Dr. Don Burt are fixed at the sum of $150 each; and the fee of Dr. John Gregory is fixed at the sum of $250, with all fees to be taxed as costs of court; and

(7) Costs of these proceedings, including the cost of appeal, are assessed to the Department of Transportation and Development, State of Louisiana, Herman Jackson, Jr., and Jackson’s liability insurer, Insured Lloyds Insurance Company, in solido.

Reversed in part, amended in part, affirmed in part, rendered and recast.


source: Caselaw Access Project

author: SEXTON, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Mark Damon BURNS, et al. (Kenneth Darrel Foster, Appellant), Appellant. STATE of Louisiana, Appellee, v. Mark Damon BURNS, et al., Appellant. STATE of Louisiana, Appellee, v. Mark Damon BURNS, et al. (Roger Dale Manshack, Appellant), Appellant.
    Nos. 15546-KA, 15601-KA and 15625-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.
    Rehearing Denied in 15625-KA Dec. 22, 1983.

      Steven R. Thomas, Mansfield, for appellants, Mark Damon Burns and Kenneth Darrel Foster.
    Henry C. Walker, Shreveport, for appellant, Roger Dale Manshack.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, James L. Davis, Dist. Atty., Many, Abbott J. Reeves, Asst. Dist. Atty., Gretna, for appellee.
    Before PRICE, SEXTON and NORRIS, JJ.
   SEXTON, Judge.

The separate appeals of these three jointly charged defendants are consolidated for consideration herein. The defendants Burns, Foster and Manshack, were originally charged with two counts of simple burglary (LSA-R.S. 14:62) in DeSoto Parish. These defendants benefited by a plea bargain arrangement by each being allowed to plead guilty to one count of simple burglary. Burns additionally benefited from his plea bargain as he was allowed to plead to only one count of forgery on a charge of eight counts of forgery which was not related to the instant offense.

Burns was sentenced to three years imprisonment at hard labor on each conviction (the simple burglary and the forgery), with the two sentence terms to run consecutively. Foster and Manshack each received a sentence of six years confinement at hard labor on the one count of simple burglary. These three defendants have perfected appeals to this court on claims of excessive sentence. Burns’ claim of the excessiveness of the forgery sentence is treated in 442 So.2d 1197, handed down contemporaneously herewith.

Excessive punishment is prohibited by Art. 1, § 20 of the Louisiana Constitution. A sentence is excessive if it is grossly out of proportion to the severity of the crime, or if it is a needless imposition of pain and suffering. State v. Donahue, 408 So.2d 1262 (La.1982); State v. Bonanno, 384 So.2d 355 (La.1980).

The imposition of a sentence within the statutory limits is within the sound discretion of the trial court, subject only to constitutional limitations on excessive sentences, and should not be disturbed absent manifest abuse. State v. Forshee, 395 So.2d 742 (La.1981). The sentences received by these defendants were less than the maximum penalty of confinement provided in LSA-R.S. 14:42, which is twelve years imprisonment at hard labor.

In reviewing the sentences of these defendants to insure that they are not constitutionally excessive, it is necessary to look at the nature of the plea bargain arrangement with each defendant. Foster and Manshack benefited from plea bargains which allowed them to plead guilty to one count of simple burglary, and in return the State agreed not to prosecute the charges on the remaining counts of burglary.

Likewise, the defendant Burns benefited from his plea bargain arrangement. He pled guilty to one count of simple burglary and one count of forgery. At Burns’ sentencing, the trial court noted the defendant’s recent involvement in several forgery and burglary offenses, his previous juvenile record, his unstable employment history, and his failure to complete his education.

In the case of the defendant Poster, the trial court noted the defendant’s good home environment but found that this factor was not sufficient to prevent the defendant from committing future crimes. The court was concerned by the defendant’s criminal activity as a juvenile and with his recent involvement in thefts and burglaries committed in Louisiana and Texas. The court concluded that the circumstances of the defendant’s criminal activities outweighed the mitigating factor of his good home environment, and required the defendant to be kept in a custodial environment.

Similarly, the trial court found that the defendant Manshack was in need of a custodial environment. In stating the factual basis and reasoning behind this determination, the trial court referred to a crime spree during which Manshack and the other defendants burglarized several establishments in Texas and Louisiana. The trial judge also noted the defendant’s age (21 years), his employment and his lack of dependents to support.

Appellate counsel for the defendant Man-shack strongly contends that there is nothing in the record to support the trial court’s references to the defendant’s involvement in other crimes. However, the pre-sen-tence investigation, made a part of the appellate record, states that according to the report of the police the defendant was involved in a whole series of burglaries with his co-defendants. Listed in the report as subjects of burglaries are at least eight business establishments in Texas and Louisiana, as well as a welding truck in Shreveport. The transcript shows that court-appointed trial counsel stated to the court prior to sentencing that the defendant Manshack had seen the pre-sentence investigation in the case. Counsel stated that a sentencing hearing was not requested as “there is nothing in [the pre-sentence investigation] to traverse.” Thus the record shows that the defendant was aware that he was implicated in a number of offenses by the pre-sentence report and that he did not wish to contest that information. Even assuming arguendo that the defendant was not involved in these offenses, he benefited substantially from the plea bargain agreement.

Furthermore, the record shows that the trial court adequately complied with LSA-C.Cr.P. Art. 894.1 in evaluating the sentencing factors listed in that article.

Considering the individual circumstances presented by each defendant and the plea bargain benefits received, each of the sentences imposed are within the discretion of the trial judge and are supported by the record. The trial judge adequately complied with Art. 894.1 in imposing each sentence.

Each of the sentences appealed is hereby affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Appellee, v. Mark Damon BURNS, Appellant.
    No. 15600-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.

      Steven R. Thomas, Mansfield, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, James L. Davis, Dist. Atty., Many, Abbott J. Reeves, Asst. Dist. Atty., Gretna, for appellee.
    Before PRICE, SEXTON and NORRIS, JJ.
   SEXTON, Judge.

The defendant, Mark Damon Burns, was originally charged with eight counts of forgery (LSA-R.S. 14:72) in DeSoto Parish. The Bill of Information charged that beginning on February 20, 1982, Burns forged seven checks in the amount of $10.00 and one check for $20.00. Pursuant to a plea bargain in which the State agreed not to prosecute on the remaining counts, the defendant plead guilty to one count of forgery. Also at this time, two unrelated counts of simple burglary were also pending against this defendant. As part of the entire plea bargain, the defendant was allowed to plead guilty to one count of simple burglary and was sentenced to three years confinement at hard labor.

He was sentenced to three years imprisonment at hard labor on the forgery offense and was also assessed a three year sentence at hard labor for the offense of simple burglary, the two sentences being ordered to run consecutively to each other.

At issue in this appeal is the defendant’s contention that the forgery sentence was excessive. He complains of the excessiveness of the burglary sentence in 442 So.2d 1195, handed down contemporaneously herewith.

At sentencing, the trial court noted the defendant’s recent involvement in numerous forgery and burglary offenses, his unstable employment history, and his failure to complete his education. The trial judge considered Burns’ youth as the primary mitigating factor present .in the case. It was determined that this factor could not outweigh the aggravating factors which were applicable in the defendant’s case.

The imposition of a sentence within statutory limits is within the sound discretion of the trial court, subject only to the constitutional limitations on severe sentences, and should not be disturbed absent an abuse of discretion. State v. Forshee, 395 So.2d 742 (La.1981).

The maximum penalty for forgery is ten years at hard labor and thus the sentence imposed is well within the statutory limits. A sentence is excessive if it is grossly out of proportion to the severity of the crime or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Donahue, 408 So.2d 1262 (La.1982); State v. Guiden, 399 So.2d 194 (La.1981).

The record reveals the defendant benefited from a plea bargain arrangement, whereby seven counts of forgery pending against the defendant were not prosecuted. Furthermore, when sentenced on the burglary, the defendant received three years at hard labor, when in contrast, each of his co-defendants in the burglary offense received a sentence of six years at hard labor on the burglary alone. Thus, the defendant’s total term of imprisonment for the forgery and the burglary is comparable to the sentences received by his co-perpetrators in the burglary itself.

Under these circumstances, this sentence is not excessive and the sentence appealed is affirmed.

AFFIRMED.


author: BOUTALL, Judge. GRISBAUM, Judge,

text:
    STATE of Louisiana v. Eric ENGLAND.
    No. 83-KA-343.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 30, 1983.
    John M. Mamoulides, Dist. Atty., and William C. Credo, III, Asst. Dist. Atty. Research & Appeals, Gretna, for state plaintiff-appellee.
    Martha E. Sassone, Staff Appeals Counsel, 24th Judicial Dist. Court, Indigent Defender Board, Gretna, for Eric England defendant-appellant.
    Before BOUTALL, GRISBAUM and DU-FRESNE, JJ.
   BOUTALL, Judge.

This is a criminal appeal in which defendant, Eric England, assigns as errors the failure of the trial judge to comply with his legal duty under La.C.Cr.P. art. 894.1 and the imposition of a constitutionally excessive sentence of 50 years at hard labor without benefit of probation, parole, or suspension of sentence under the armed robbery statute.

The defendant was charged by a bill of information with violation of LSA-R.S. 14:64, armed robbery, and after a bench trial was found guilty as charged. On November 29, 1982, he was sentenced to 50 years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence.

The facts of the offense reveal on April 27, 1982 a man entered the Happy Hour Lounge on Fourth Street in Marrero, between 9:30 and 10 o’clock in the evening. As he approached the bar, the barmaid, Linda Perry, leaned over the bar to see what he wanted and noticed he had what appeared to be a gun in his hand, wrapped up in a blue denim rag. He first asked for potato chips and then, according to Ms. Perry’s testimony, he said, “I’ve got a gun, ... give me the money that you got and don’t do nothing or I will blow your head off.” Ms. Perry got the potato chips and placed the money from the register in the same bag as England had demanded. She then fled to a back room and told her boss that they were just robbed. A patron of the bar, Daniel Lee Kniesly, who had watched the exchange between the robber and Ms. Perry, got in his car and gave chase but was unable to locate him in the area. He did see a woman with a shirt emblazoned “Tammy”, who was identified as England’s girl friend. About two months after the robbery, Linda Perry saw a man, who resembled the robber, on Fourth Street in Westwego. Shortly thereafter a detective presented her with a photo lineup from which she selected Eric England’s photo identifying him as the person who had robbed her. Thereafter, England was apprehended at his residence.

Trial was held on September 13, 1982 and the trial judge found England guilty as charged, ordering a presentence investigation and setting a sentencing proceeding on November 29, 1982. In imposing sentence the court remarked that England had been found guilty; that the victim identified him and that he told her “give me all the money in the register or I will blow your head off.” Additionally, the judge noted that the presentence investigation revealed that England had a history of seven previous arrests; in one conviction, he was sentenced to DeQuincy in 1979 and while armed he committed another crime. The judge concluded saying “you are a menace to society and you are hereby sentenced to serve a period of 50 years within the State Correctional System without benefit of parole, probation or suspension of sentence.”

Although the penalty provision of the statute under which the defendant was convicted, R.S. 14:64, provides for a penalty of not less than 5 years nor more than 99 years at hard labor, without benefit of parole, probation or suspension of sentence, England has appealed asserting that the length of sentence is cruel and excessive under the Constitution and that the trial judge has failed to properly follow the guidelines for sentencing provided in Code of Criminal Procedure article 894.1. As for the first premise appellant simply argues to us that a term of 50 years is greater than the average sentence imposed in armed robbery cases. There is no evidence or statement of facts upon which the premise is founded. We believe that issue to be set at rest by the decision in State v. Smith, 433 So.2d 688 (La.1983) in which a sentence of 60 years at hard labor was upheld upon an armed robbery conviction.

Nevertheless, as pointed out in that case, even sentences within statutory limits may be reviewed for excessiveness and intertwined with that is a review of the record to insure that the trial court complied adequately with C.Cr.P. article 894.1 and accorded proper weight to all relevant sentencing factors. While the trial judge need not articulate every aggravating and mitigating circumstance outlined in article 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. Following these principles, we stated in State v. Barrios, 425 So.2d 980 (La.App. 5th Cir.1983) at page 983:

“However, lack of compliance with the sentencing guidelines of C.Cr.P. art. 894.1 does not necessarily require that the sentences be set aside, if the record otherwise clearly illumines the trial court’s sentencing choice and demonstrates that the sentence is not arbitrary or excessive. State v. Jett, 419 So.2d 844 (La.1982). See also, State v. Lanclos, 419 So.2d 475 (La.1982); State v. Boatright, 406 So.2d 163 (La.1981); State v. Martin, 400 So.2d 1063 (La.1981), on rehearing, 400 So.2d 1074 (La.1981).”

In applying those principles to the instant case, we refer particularly to the case of State v. Dirden, 430 So.2d 798 (La.App. 5th Cir.1983) which also involved a consideration of excessive sentence under an armed robbery charge. We apply the same controlling principles we announced in that decision to the facts in this case. We note that the trial judge did not undertake the matter of sentencing lightly, but that he gave it serious consideration, indeed at the outset he ordered a pre-sen-tence investigation and set the sentencing hearing off for some two months so that the investigation could be made in depth. He certainly considered all of the items that were contained therein, and we must note that the defendant does not point out any error in the statements the trial judge made concerning it, nor indeed does he point out any mitigating circumstances beyond that which are contained in the trial record. Since the sentencing judge was also the trial judge who heard the evidence and found the defendant guilty, certainly he was aware of those factors. The only mitigation that defendant would point out is that he helped take care of his aged grandmother who was ill. As a balance to this, we also note that the record does not reflect that the defendant was working or providing financial support, but simply lived with his mother and grandmother in the grandmother’s house since his release from imprisonment some 2 years earlier.

Thus we point out that the record clearly reflects that all of the circumstances which the defendant points out to us in mitigation of his sentence have been considered by the trial judge in imposing this sentence and we conclude that the sentence imposed constitutes a fair and equitable penalty under the circumstances.

Accordingly, the conviction and sentence of the defendant, Eric England, is affirmed.

GRISBAUM, J., dissents.

GRISBAUM, Judge,

dissenting.

I respectfully dissent.

Unlike the majority, I do not find the trial judge’s remarks at the sentencing hearing comply with Louisiana Code of Criminal Procedure art. 894.1. The trial judge did not specify the nature of the seven arrests, and his subsequent comment —“in one conviction, you were sentenced to DeQuincy in 1979 and while armed you committed another crime” — is confusing, ambiguous, and obscure.

Upon further reflection, I can no longer subscribe to the reasoning expressed in State v. Dirden, 430 So.2d 798 (La.App. 5th Cir.1983). The Court in Dirden, of whom I was a panel member, refused to remand the case for the trial court’s compliance with Louisiana Code of Criminal Procedure art. 894.1 nor did it find the sentence excessive. The Court reasoned that the convicted defendant did not point out specific mitigating factors in his status, his previous arrest and conviction record, or in the commission of the crime, nor were any other mitigating factors delineated by which the Court could evaluate the excessiveness of the imposed sentence. I can find no authority for imposing upon a convicted defendant such a duty to demonstrate mitigating circumstances. As a practical matter, a convicted defendant would normally demonstrate mitigating circumstances at a sentencing hearing. However, Louisiana Code of Criminal Procedure art. 894.1 sets sentencing guidelines for trial judges. When complied with, it provides a framework for appellate review of a sentence. Where there has been a lack of compliance, such as the present case, an appellate court must refer to the record as a basis for evaluating the sentence.

I disagree with the majority’s finding that the record “clearly illumines” the trial judge’s sentencing choice. The record, in my opinion, is essentially sparse. The sparse record, along with the minimal remarks of the trial judge during sentencing, make it impossible for me to determine whether this sentence is excessive. This matter should, therefore, be remanded for the trial court’s compliance with Louisiana Code of Criminal Procedure art. 894.1.

      . Defendant England made two other assignments of errors which were neither briefed nor argued; therefore, we consider them to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975). In any event, they are without merit. State v. Perry, 420 So.2d 139 (La.1982).


author: PER CURIAM.

text:
    William H. “Billy” SCOGGINS, Plaintiff-Appellant, v. Cecil JONES; James H. Brown, Secretary of State; Jerry Fowler, Commissioner of Elections et al., Defendants-Appellees.
    No. 16172-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1983.
    Writ Denied Dec. 12, 1983.

      Hamilton and Carroll by Donald K. Carroll, Oak Grove, for plaintiff-appellant.
    James D. Sparks, Jr., Monroe, Charles L. Little, III, Oak Grove, for defendants-ap-pellees, Cecil Jones.
    Before PRICE, HALL, MARVIN, FRED W. JONES, Jr. and SEXTON, JJ.
   PER CURIAM.

In this appeal by the plaintiff and one of the defendants from a judgment rendered and signed in a police juror election context, we rule as follows:

(1) The Motion to Dismiss the Appeal is overruled, since the duty to timely file the record in this court is that of the Clerk of Court for the District Court and the failure of that official to do so is not chargeable to the plaintiff-appellant. Further, no prejudice to the defendant has been shown because of this failure.

(2) We find no merit to defendant’s contention that the trial judge erred in overruling his exceptions directed at plaintiff’s failure to post the petition as required by the Election Code, concluding that the ruling in Charbonnet v. Braden, 358 So.2d 360, dealing with this precise question is dispositive of the issue.

(3) Conversely, we find merit in plaintiff’s argument that the trial judge erred in dismissing his suit because the trial date was fixed on the seventh day rather than on the fourth day after plaintiff filed his suit as required by R.S. 18:1406(C).

It is our ruling that the fixing of matters for trial is clearly the responsibility of the trial judge. La.C.C.P. Arts. 191, 193, 194, 1571. In the absence of record evidence that plaintiff was involved in this fixing to the extent that he should be held responsible, and also in the absence of evidence of prejudice to defendants by the particular fixing, we do not conclude that plaintiff should be chargeable with the trial judge’s failure in this particular instance to comply with the Election Code.

For these reasons, we reverse the judgment of the district court dismissing plaintiff’s suit and remand the matter to the trial court for further proceedings consistent with this opinion.


author: FRED W. JONES, Jr., Judge. HALL, Judge, MARVIN, Judge, SEXTON, Judge,

text:
    William H. “Billy” SCOGGINS, Plaintiff-Appellant, v. Cecil JONES; James H. Brown, Secretary of State; Jerry Fowler, Commissioner of Elections et al., Defendants-Appellees.
    No. 16229-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 6, 1984.

      Hamilton & Carroll by Donald K. Carroll, Oak Grove, for plaintiff-appellant.
    James D. Sparks, Jr., Monroe, Charles L. Little, III, Oak Grove, for defendants-ap-pellees.
    Before PRICE, HALL, MARVIN, FRED W. JONES and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

In this appeal from a district court judgment involving an election contest, plaintiff [who lost a police jury seat by 24 votes out of 790 votes cast] contends the trial judge erred in rejecting his demand to nullify the election after it was shown that 25 illegal votes were cast.

For the reasons hereinafter explained, we affirm.

According to the evidence presented at the trial, police jury districts in West Carroll Parish generally cut across ward lines. As a consequence, those who vote at a given precinct are usually [depending upon their place of residence] eligible to vote in different police jury districts. Proper voting is supposed to be accomplished by a commissioner handing the voter a piece of paper showing his police jury district after the voter has signed the polling list. The paper designating the police jury district where the voter resides is to be handed the commissioner operating the voting machine. The latter commissioner is then to operate a lever which permits the voter to vote for the police jury candidate only in the proper district.

The record evidence further revealed that the election district for District 4 in West Carroll Parish is composed of seven precincts, including the two which are the subject of this litigation — two and three. Each precinct had two voting machines. Depending upon their residence, voters in these two precincts were eligible to vote either for the police jury candidate in District Four or in District Five.

Election commissioners from the two described precincts testified that, at the police jury runoff election held on November 19, 1983, for the District 4 position between plaintiff Scoggins and defendant Jones, the lever prohibiting District Five residents from voting in the District Four police jury election was not operated as prescribed during the first few hours because of their confusion — due to District Five not having a police jury election on that date. It was only after a voter called this to their attention around 9:00 A.M. that they thereafter properly used the described lever.

The Registrar of Voters stated that on the date in question in these two precincts 25 more people voted on the machines in the Ward 4 police jury election than signed the poll list. Fourteen of those were in Precinct 2 and eleven in Precinct 3. Out of a total of 790 votes cast in all the District 4 precincts, Jones won over Scoggins by 24 votes.

Plaintiff argues that, since the 25 illegal votes exceeded Jones’ 24 vote margin of victory, the election should be voided and a new police jury election scheduled for District 4. The trial judge ruled to the contrary and we agree with him.

In Moreau v. Tonry, 339 So.2d 3 (La.1976), it was found that 315 more votes were cast on voting machines than signatures on the precinct registers — out of a total of almost 100,000 votes cast. In addition, there were 43 forged signatures on the precinct register. Plaintiff asserted that if the number of illegal votes cast exceeded the difference between the candidates, the election should be nullified because its outcome could not be determined. In response, our supreme court ruled:

“... This has never been the law. If the candidate cannot prove he would have been elected ‘but for irregularities or fraud/ our jurisprudence refers to an alternative: if the court finds the proven frauds and irregularities are of such a serious nature that the voters have been deprived of the free expression of their will, the election will be nullified.
For this Court to render such a drastic order, there must be a clear showing that a course of fraudulent conduct was employed which effectually prevented the electors from expressing their will.’ Lewis v. Democratic Executive Committee, 232 La. 732, 95 So.2d 292 (1957).
“No case has been called to our attention (and we know of none) where an election has been upset because of serious and pervasive irregularities when the evidence falls short of proving that ‘but for’ the irregularities, the one contesting the election would have won.”

This rule in election cases was later followed in Kelly v. Village of Greenwood, 363 So.2d 887 (La.1978) and Huckaby v. Hunter, 427 So.2d 1 (La.App. 2d Cir.1983). •

The evidence in this case does not indicate that any fraud was perpetrated in the police jury election that resulted in illegal votes being cast. Further, neither candidate was responsible for any irregularity that might have caused District 5 residents to be permitted to vote in the District 4 police jury election. Most significant, it was not shown nor was there any inference that any of the 25 votes above the number shown on the polling lists were cast for the defendant Jones rather than plaintiff Scog-gins.

In summary, we agree with the trial judge that plaintiff Scoggins failed to discharge his burden of proof that, but for the asserted illegal votes, he would have won the police jury election.

In view of this holding, we pretermit the necessity of considering other issues raised by defendant Jones, particularly with reference to various exceptions filed by him which were overruled and the motion filed in this court, 442 So.2d 1202.

For these reasons, we affirm the judgment of the district court dismissing plaintiff Scoggins’ suit, with costs of appeal assessed to plaintiff-appellant.

HALL, J., concurs and assigns written reasons.

MARVIN and SEXTON, JJ., dissent and assign written reasons.

HALL, Judge,

concurring.

I concur in the result. The plaintiff failed to prove that except for substantial irregularities or error he would have been elected, LSA-R.S. 18:1401 B., or that it is impossible to determine the result of the election, LSA-R.S. 18:1432 A.(l), or that the number of unqualified voters who were allowed to vote by the election officials was sufficient to change the result of the election if they had not been allowed to vote, LSA-R.S. 18:1432 A.(3).

The evidence establishes that at least 25 voters who were not residents of District 4 voted in the District 4 police juror election. The election officials allowed 73 voters who were not residents of District 4 to enter voting machines which had not been adjusted so as to preclude their voting in the District 4 election. Whether any more than 25 of these voters voted in the District 4 election is speculative and is not established by the evidence.

With 25 unqualified voters voting in the election, all 25 would have had to have voted for the defendant in order to change the result. The evidence does not establish for whom any of the unqualified voters voted, but it is virtually certain that defendant did not receive the votes of all 25 in this close election. Although it is mathematically possible that the number of unqualified voters who were allowed to vote was sufficient to change the result, it is factually highly improbable.

Accordingly, the plaintiff failed to prove by a preponderance of the evidence that, except for the votes cast by the unqualified electors, he would have been elected, or that it is impossible to determine the result of the election, or that the number of unqualified voters who were allowed to vote was sufficient to change the result.

The primary reason for expressing these concurring reasons is that I do not fully agree with the proposition that, in an election contest based on LSA-R.S. 18:1432, the plaintiff must prove that, but for the alleged illegal votes, he would have won the election; nor do I fully agree with the significance placed on the failure to show for whom the illegal votes were cast. The “but for” test strictly applied makes mandatory an inquiry into how certain voters voted which runs into the teeth of the secret ballot required and guaranteed by Article XI, § 2 of the Louisiana Constitution. Where the grounds for the contest are the enumerated statutory grounds set forth in § 1432, the plaintiff’s burden should be to prove by a preponderance of the evidence that it is impossible to determine the results, or that the number of qualified voters who were denied the right to vote or the number of unqualified voters who were allowed to vote, more probably than not, was sufficient to change the result. .

In this case, it is more probable than not that the 25 votes by unqualified voters had no effect on the result of the election, which defendant won by a margin of 24 votes. The number of unqualified votes, viewed in terms of realistic probabilities, was not sufficient to have changed the result.

MARVIN, Judge,

dissenting.

In this election contest reduced to its simplest facts, the losing candidate alleged and proved that at least 25 unqualified voters were allowed to vote in the election which he lost by only 24 votes.

LRS 18:1432(A)(3), in my opinion, should be literally applied to order a new election for the office in question where

“... the number of unqualified voters ... [is] sufficient to change the result of the election if they had not been allowed to vote.”

The number of unqualified voters (at least 25 and perhaps as many as 73) was sufficient to change the result where the winning margin is less than 25 votes.

I cannot conceive that the Legislature, by this language adopted in 1980, meant to imply that the losing candidate must additionally prove how the unqualified voters actually voted. The statute speaks only of the number of unqualified voters who voted, not how they voted. This unconditional statutory expression should prevail over pronouncements of cases which did not squarely consider the issue, whether before or after the 1980 legislation.

I respectfully dissent from the majority’s holding that the losing candidate must show but for those unqualified votes he would have won the election.

SEXTON, Judge,

dissenting.

I respectfully dissent.

In my view, the election code abolished Louisiana’s previously existing “but for” rule in election cases. Specifically, LSA-R.S. 18:1432(A)(3) states that to obtain a new election the plaintiff must only show that “the number of unqualified voters who were allowed to vote by the election officials was sufficient to change the result of the election if they had not been allowed to vote.” I believe that the plaintiff discharged this burden by proving that at least 25 people voted in this election who were unqualified and by proving that the margin of victory was 24 votes.

I agree that it is extremely unlikely that the result would have been changed, even if all 73 of the unqualified voters who had an opportunity to vote did indeed vote. However, in my view, the statute is clear and unambiguous and plaintiff has discharged his burden thereunder.


author: BOUTALL, Judge.

text:
    James WILLIAMS v. PAYNE & KELLER, INC. and American Motorists Insurance Company.
    No. 83-CA-381.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.
    Joseph F. Clark, Jr., Hammett, Leake & Hammett, New Orleans, for Payne & Keller, Inc. and American Motorists Ins. Co., defendants-appellants.
    Sylvia E. Taylor, Reserve, and Charles R. Jones, New Orleans, for James Williams, plaintiff-appellee.
    Before BOUTALL, CHEHARDY and GAUDIN, JJ.
   BOUTALL, Judge.

This is a workman’s compensation case. Because of the procedural problems it contains, we do not consider the merits, but remand to the trial court for further proceedings.

The suit arises from a back injury incurred by James Williams' on August 3, 1981, when he was employed by Payne and Keller as a cement finisher on a construction job. Payne and Keller paid medical bills and compensation from August 3 through September 10, 1981, when company physicians declared Williams fit to return to work. As the company refused further claims, Williams filed suit against Payne and Keller and its insurer, American Motorists Insurance Company, on February 2, 1982.

Trial was held on September 14, 1982, and the judge ruled from the bench at its conclusion, as follows:

“The Court finds that a compensable accident did take place on August 3rd, 1981, and for which workman’s compensation benefits are due. The only evidence in the record preponderates in favor of the plaintiff in this respect ... which certainly indicates that at least up until the present time that Mr. Williams is totally disabled since this accident on August 3rd, 1981....”

The judge stated that he would take the issue of penalty and attorney’s fees under advisement and ordered the parties to submit briefs. He further ordered the plaintiff’s counsel to submit a judgment in accordance with his ruling. The judge signed the submitted judgment October 6, 1982, in which it was decreed that plaintiff was totally and permanently disabled. The defendants filed a motion for appeal and also a petition for nullity on November 24,1982. Grounds for the action of nullity were that the signed judgment did not reflect the judge’s decision as rendered from the bench, which was for temporary total disability rather than permanent total disability; that counsel for the plaintiff failed to notify the defendants that the judgment had been filed or send a copy of it; and that the defendants had not received actual notice of the judgment.

On May 24, 1983 the court on its own motion, but apparently after conference with defendants’ attorney, signed an amended judgment declaring plaintiff to be temporarily totally disabled. On June 8, 1983 the plaintiff filed an appeal from the amended judgment. This court then had two appeals before it, one by the defendants from the judgment of October 6, 1982 and one by the plaintiff from the amended judgment of May 24, 1983, docketed as one appeal and set to be heard November 2, 1983.

Defendant’s Appeal from October 6, 1982 Judgment

On October 13, 1983, before the hearing date, Payne and Keller and its insurers filed a motion to dismiss their appeal. The chief judge notified all the attorneys that the plaintiffs appeal had been inadvertently filed under the same docket number as the original appeal rather than under a separate number. Considering that the parties might be misled, the chief judge allowed the parties to evaluate the ramifications of dismissal and requested memo-randa. As neither party responded, we have by separate motion ordered the defendants’ appeal dismissed in accordance with its request. This leaves only plaintiff’s appeal from the amended judgment before us for consideration.

Plaintiffs Appeal from Amended Judgment of May 24, 1983.

We note at the outset that the amended judgment, dated May 24, 1983, is null on the face of the record, because the change in the decree from permanent total disability to temporary total disability is clearly a substantive modification of judgment. While La.C.C.P. art. 1951 permits amendment of final judgment by the trial court at any time, it permits the amendment only to alter the phraseology of the judgment but not the substance. Where a substantive error occurs in a written judgment, the remedy is ordinarily a timely application for a new trial or a timely appeal. Hebert v. Hebert, 351 So.2d 1199 (La.1977); Villaume v. Villaume, 363 So.2d 448 (La.1978). At the same time, dependent upon facts such as are alleged here, it is possible that the nullity of a final judgment may be demanded for vices of either form or substance under C.C.P. art. 2001.

Our conclusion as to the nullity of this judgment places us in a procedural posture where we have no vehicle with which to inquire into the merits of the plaintiff’s claim for disability. As noted above, the original judgment is no longer before us because the appeal of that judgment has been Voluntarily dismissed.-

In an ordinary proceeding we might nevertheless feel constrained to make inquiry into the merits of the case in order to insure fairness to the parties before the court, but this is a workman’s compensation proceeding and it appears that there are available remedies which may solve the dispute between the parties. First, we refer to the existence of the petition for nullity of the original judgment which is still pending in the trial court and is available to assert defendant’s claim of impropriety. Secondarily, there is available to both parties the re-examination of the plaintiff for a modification of the judgment on the grounds that the incapacity of the employee has been subsequently diminished or increased, or that the judgment was obtained through error, fraud or misrepresentation, as provided in L.R.S. 23:1331. Assuming, but not deciding, that the evidence justifies the trial court’s finding of temporary disability, we note that neither in his oral reasons or in the decree did the trial judge set a time limitation as to the cessation of disability. Accordingly, even if we took up the matter on the merits for the sake of judicial economy and time, this matter would still have to be taken up again by the trial court in order to determine when the temporary disability would cease. Thus we conclude that our examination into the merits would be of no avail and would not conclude the issues between the parties with any finality.

Accordingly, considering that we have dismissed the appeal of Payne and Keller, Inc. and American Motorists Insurance Company by separate judgment, we render judgment in favor of appellant James Williams setting aside and annulling the amended judgment dated May 24, 1983, and we remand this matter to the trial court for consideration of such proceedings as may be appropriate under the nullity petition or the provisions of L.R.S. 23:1331 or both.

JUDGMENT OF MAY 24, 1983 ANNULLED AND CASE REMANDED.


text:
    Frank W. SAVOY v. Diane DeLAUP and Enrique Carvajal.
    No. 83-CA-457.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.
    David A. Hilleren, Hilleren & Bains, New Orleans, for Frank W. Savoy plaintiff-appellant.
    W. Marvin Hall, Hailey, McNamara, Hall, Larmann & Papale, Metairie, for Diane DeLaup and Enrique Carvajal.
    Before BOUTALL, BOWES and GRIS-BAUM, JJ.
   BOUTALL, Judge.

This is an appeal from a summary judgment rendered in favor of the defendants in a tort suit brought by a tenant against his lessors.

Frank W. Savoy (“Savoy”) was injured on June 4, 1982, when the ground gave way beneath him in the yard of a home he rented from Diane DeLaup (“DeLaup”) and Enrique Carvajal (“Carvajal”). The hole was located near a shrub at the edge of the lawn and was caused by the rotting of a stump underneath the surface soil of the yard. Savoy filed suit on July 21, 1982, alleging the landlords were negligent in failing to keep the premises in reasonable and proper condition, failing to inspect, failing to remedy defects and vices, and failing to warn of the condition of the premises. Summary judgment was rendered in favor of the defendants on December 23, 1982. This appeal followed.

The question before this court is whether summary judgment was appropriate. La. C.C.P. article 966 provides that summary judgment shall be rendered when:

“... The pleadings, deposition, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

The adverse party is required by article 967:

“... by affidavits or as otherwise provided above, ... [to] set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.”

The motion for summary judgment here submits the lease along with affidavits of Carvajal and DeLaup which deny prior knowledge of a hole or depression. The lease is a printed lease form signed by Mr. and Mrs. Savoy and by DeLaup. It contains a clause in which the lessee accepts the premises in their present condition, except for specified repairs, and the lessee agrees to keep the premises in the same condition. The lease further contains an exculpatory clause, as follows:

“Lessee assumes responsibility for the condition of the premises and Lessor will not be responsible for damage caused by leaks in roof, by bursting of pipes by freezing or otherwise, or by any vices or defects of the leased property, or the consequences thereof, except in case of positive neglect or failure to take action toward the remedying of such defects within reasonable time after having received written notice from Lessee of such defects and the damage caused thereby. Should Lessee fail to promptly so notify Lessor, in writing, of any such defects, Lessee will become responsible for any damage resulting to Lessor or other parties.”

An additional provision typed at the end of the lease states that the lessee assumes responsibility for maintaining the lawns and shrubbery. We note from the lease, and from the excerpted depositions of De-Laup and of Carvajal, submitted in opposition to summary judgment, that the lease was a renewal lease. The defendants first bought the property in March, 1980 and Savoy first rented the premises sometime before December 1,1981, when the renewal term was to begin.

The plaintiffs memorandum in opposition to summary judgment relies on the excerpts from the two defendants’ depositions. Carvajal stated that he had checked the yard on only a few occasions: once in March, 1980, once in November, 1980, and once or twice in the early part of 1982. The purpose of his November, 1980 inspection prior to Savoy’s tenancy was to determine whether any work was needed to clean up from the previous tenants, such as removing debris or trimming shrubbery, or if the previous tenants had made holes in the ground which needed filling. He discovered no holes or weak surfaces. He had not seen the stump before and knew not how it came to be there. When questioned about the later inspections, Carvajal responded:

“I don’t know the specific dates but they were sometime in the early part of 1982. Of this year. With Wayne [Savoy], and I looked over the back yard and front part of the property and agreed that some kind of filling of the lot was needed because apparently the property had not been filled in a long time. So we felt it was due time due to the natural sinking of the land in the outlying areas of the city that we put some good soil down and build the property back up.”

He testified further that no filling was done in the back yard, only along the perimeter of the house itself. That filling was accomplished in May, 1982, about a month before Savoy’s accident.

The plaintiff first argues that a landlord is strictly liable for damages resulting from a defect even though he may not be aware of such defects. The cases cited are based on LSA-C.C. 2322, regarding the liability of a building owner. As the jurisprudence clearly holds that this article applies only to structures, we find his argument to be without merit. Loescher v. Parr, 324 So.2d 441 (La.1975).

The liability of a landlord for damages to his tenant from defects of the premises is governed by LSA-C.C. art. 2695, which states:

“The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.”

However, LSA-R.S. 9:3221 allows the parties to contract for the lessee to assume liability, as in the lease signed by Savoy. The statute provides:

“The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.”

Our examination of the affidavits, excerpts of depositions, and arguments of counsel at the hearing reveals the undisputed fact that a hole was not visible at the time the lease was confected. Also that neither Carvajal nor Savoy detected a problem when they walked around the premises together in 1982 and determined some fill was needed in certain areas of the yard but not in the back yard. The fill was added in May, 1982, only around the edge of the house. As Savoy had assumed specific responsibility for the lawn and shrubbery, the applicable law is that quoted in LSA-R.S. 9:3221 and the owner is not liable to the lessee. The relevant facts are that Carvajal neither knew nor should have known that a defect existed under these circumstances. Under the factual situation presented, we cannot conclude that the owner is responsible merely because he inspected the premises occasionally or repaired the premises earlier.

Accordingly, we find that the terms of the lease prevent the lessee from recovering from this particular accident. As the plaintiff, Savoy, has not shown that there is a genuine issue of relevant fact, we hold that the trial judge was correct in rendering summary judgment in favor of the defendants, Carvajal and DeLaup, and affirm.

AFFIRMED.


author: CHEHARDY, Judge.

text:
    Edward J. ZERINGUE v. Sharon Lancaster ZERINGUE
    No. 83-CA-445.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.
    Writ Denied Feb. 27, 1984.

      Emile R. St. Pierre, Destrehan, for plaintiff-appellant.
    Steven F. Griffith, Sr., Destrehan, for defendant-appellee.
    Before BOUTALL, CHEHARDY and GAUDIN, JJ.
   CHEHARDY, Judge.

Edward J. Zeringue appeals from a judgment dismissing his suit to rescind the community property partition between him and his former wife, Sharon Lancaster Ze-ringue (now Mrs. Sharon Lancaster Bañas).

The Zeringues were divorced on August 8, 1979. On October 31, 1979 they entered into a community property settlement agreement. Pursuant to that agreement, Mrs. Zeringue received a lot in Luling Heights Subdivision in St. Charles Parish, together with an automobile and certain other movable property; Mr. Zeringue received a lot in Coronado Park West subdivision in St. Charles Parish, various movables, Mrs. Zeringue’s interests in certain Monsanto pension and savings plans, and a $10,000 mortgage note from Mrs. Zeringue for his interest in the Luling lot.

The parties filed a joint “Motion to Ho-mologate” their community property settlement agreement in the record of their divorce proceedings. On November 5, 1979 the district court signed an order approving and homologating the community property settlement “on the grounds that the same is fair and equitable.” The record reflects that both parties were represented by counsel.

On June 2, 1982, Mr. Zeringue filed suit for rescission of the partition, alleging he had suffered lesion beyond moiety. Basing his action on LSA-C.C. arts. 1397, 1398 and 1861, he averred “the difference of values of properties received by petitioner and defendant amounts to more than one-half the values of same to the prejudice of petitioner.”

The former Mrs. Zeringue, now known as Mrs. Bañas, filed an answer in proper person, alleging that by language specifically incorporated into the community property settlement document, the parties had declared they were receiving their fair share of the community property, and further had waived any and all accounting from each other and relieved each other from any liability for such accounting. She asserted that the document had been notarized and the settlement then homologated by the court.

Subsequently Mrs. Bañas retained counsel, who filed on her behalf peremptory exceptions of no right or cause of action and res judicata, and also a motion for summary judgment. On March 2, 1983, the district court rendered judgment dismissing the exception of no right of action, maintaining the exceptions of no cause of action and res judicata, and granting the motion for summary judgment, thus dismissing Mr. Zeringue’s suit. From this judgment Mr. Zeringue has appealed.

In oral reasons for judgment, the trial judge stated,

“Okay, in reference to this particular matter, the exception of no right of action is overruled. Of course the party does have a right of action to proceed. However, in reference to the no cause of action and summary judgment and res judicata, as in the McDaniels’ ease I had yesterday and for the reasons that this matter has been judged before, there’s no issue of fact. There may be an issue of law. With all of the pleadings before me, I’m going to sustain the motion for res judicata, summary judgment, and the exception of no cause of action, and the matter will be dismissed. * * * ”

Because the crux of the matter is the applicability of res judicata, we will consider that exception first. Mrs. Bañas contends, in effect, that all Mr. Zeringue’s rights under the partition were concluded by the partition agreement. She argues that once it was homologated by the court and the judgment of homologation became final without appeal, that judgment was res judicata to his subsequent suit for rescission. Her motion for summary judgment relies on the same contentions.

Res judicata is a presumption established by law, defined as the authority which the law attributes to the thing adjudged. LSA-C.C. art. 2285. The authority of the thing adjudged takes place only with respect to what was the object of the judgment. LSA-C.C. art. 2286. Thing adjudged is said of that which has been decided by a final judgment, from which there can be no appeal, either because the appeal did not lie, or because the time fixed by law for appealing is elapsed, or because it has been affirmed on appeal. LSA-C.C. art. 3556(31).

The Zeringues elected to have their voluntary partition made definitive by ho-mologation into a judgment. No appeal having been taken, that judgment became final long before Mr. Zeringue instituted the present suit for rescission.

Although the articles on rescission of partition allow minors, interdicts or absentees to rescind judicial partitions, no such provision is made for parties not in those categories. See LSA-C.C. arts. 1397-1414. Competent persons who are of age and who appear in the judicial partition have their remedy by appeal of the judgment of partition or by suit to annul that judgment.

Because Mr. Zeringue did not appeal and the judgment homologating the partition is now final, his only remedy is to seek to annul it, under the grounds applicable to annulment of judgments. He may not rescind the partition, however, because it has acquired the authority of a thing adjudged.

Where the facts support a finding of res judicata, a mover is entitled to summary judgment as a matter of law. R.G. Claitor’s Realty v. Juban, 391 So.2d 394 (La.1980).

Having reached this conclusion, it is unnecessary for us to address whether Mr. Zeringue’s petition stated a cause of action.

In a supplemental brief, appellant cites the case of McDaniel v. McDaniel, 441 So.2d 353, handed down on November 9, 1983. Although the basic situation in McDaniel parallels the situation before us — one spouse suing the other to rescind a partition on the ground of lesion — the facts are different. The McDaniel partition was never judicially approved, and therefore was never a judgment. Here, as discussed above, the partition was homologated by the district court, and became a final judgment when the time in which to appeal elapsed. Accordingly, the McDaniel case is distinguishable.

Considering the foregoing, the judgment of the district court is affirmed. All costs are to be paid by appellant, Edward J. Zeringue.

AFFIRMED.


text:
    SUCCESSION OF John T. HODGES.
    No. 83-CA-481.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.
    Henry Tutt Dart, New Orleans, for appellant.
    Martin P. Kelly, Jr., Metairie, for appel-lee.
    Before CHEHARDY, GAUDIN and DU-FRESNE, JJ.
   CHEHARDY, Judge.

The issue before us on this appeal is whether the appellant presented sufficient proof that the decedent, John T. Hodges, Jr., converted the assets of their mother’s estate to his own use.

John T. Hodges, Jr., died on July 15, 1982. His son, Turner W. Hodges, opened his succession on July 27, 1982 and was appointed administrator. The only assets of the succession were three bank accounts — a checking account and two savings accounts — with a total value of $60,-551.98.

On September 13, 1982, Daniel L. Hodges filed a motion to traverse the descriptive list and a petition for declaratory judgment in the succession proceedings. He stated he was the provisional administrator of the succession of Alice Campbell Hodges White, and that John T. Hodges was the son of Alice Campbell Hodges White and the brother of petitioner, Daniel L. Hodges. He alleged that upon the death of Alice White on December 11, 1975, John T. Hodges had converted her assets to his own use, and that the cash and accrued interest thereon, claimed by Turner W. Hodges as assets of John T. Hodges’ succession, in fact are assets of the succession of Alice White. Daniel Hodges sought a declaratory judgment returning all the cash to the succession of Alice Campbell Hodges White for proper distribution therein. He alleged, alternatively, that if the cash were determined to be a donation by Alice White to John Hodges the donation should be declared an impingement on the legitime of her other children, Daniel L. Hodges, Frank C. Hodges and Robert B. Hodges, and should be reduced to the disposable portion.

Daniel Hodges’ claim was tried on the merits on November 9, 1982. On January 14, 1983, the district court rendered judgment dismissing Daniel Hodges’ motion to traverse and his petition for declaratory judgment. Daniel Hodges has appealed.

In his reasons for judgment, the trial judge concluded that Daniel Hodges had failed to present sufficient evidence that the assets in the possession of John Hodges at the time of his death had belonged to Alice White. Further, the judge stated, even if he were to conclude Mrs. White had donated funds to John Hodges, he was unable to determine the amount or the form of the donation, and so could not consider the claim for reduction.

Daniel Hodges’ major contention is that, because his brother’s only known source of income was a Veteran’s Administration disability pension, it would have been impossible for John Hodges to have accumulated the sums of money found in his accounts at his death. Appellant contends the greater part of these funds was money belonging to their mother, the residue of funds she received from the sale of her house several years before she died.

Daniel Hodges’ evidence in support of his claim consisted of his own testimony and voluminous bank records, primarily records of John Hodges’ banking transactions. (Because of the length of time since Mrs. White’s death, appellant was unable to obtain complete records of Mrs. White’s transactions from the banks.) Despite all his efforts, however, appellant’s case turns on circumstantial evidence.

The documentary evidence establishes that Mrs. White sold her house in 1971 for $20,000, of which she probably received about $12,000 after paying the mortgage balance; that she converted her bank accounts to joint accounts, with John as co-owner, in 1972; that these joint accounts were closed on December 19, 1975, eight days after Mrs. White’s death; that John opened five bank accounts, totaling $16,-268.46, in his own name about five months after his mother died.

Further, appellant established that $117.92 of the money used to open one of these accounts came from Medicare checks, issued after Alice White’s death, on which she was the named payee. The rest of the initial deposit in that particular account consisted of Veterans Administration checks to John Hodges. The initial deposits in three other accounts opened that day were in cash, totaling $10,050; the last account was opened with a deposit of $4,000, but the evidence does not establish whether this was in cash or by check.

Daniel Hodges testified that his brother John’s only source of income was his Veterans Administration pension, that John was not a frugal man, that he was an exceptionally heavy drinker, that “wine, women and song ... was the pattern of his life.” Appellant stated further that while John was living with their mother, she more or less put up the expenses. On the other hand, after their mother sold her house and moved with John to an apartment, Daniel testified, John paid the apartment rent. He could not establish positively which one customarily paid for food, although he said his wife had seen his mother write a check for groceries a couple of times. He felt his brother John’s financial condition would “definitely not” have enabled him to amass savings of some $60,000 by the time of his death.

Reducing his testimony to its bare bones, appellant’s arguments are, first, that the greater part of the money in John Hodges’ accounts must have been money obtained from their mother’s accounts after her death, or alternatively, that John used their mother’s money for living expenses, enabling him to hoard his Veterans Administration income, thus accumulating the large savings he had by the time he died.

Appellant was unable, however, to establish how much money was in Mrs. White’s bank accounts at the time of her death. Nor was he able to establish what she did with the lump sum she received from the sale of her house — his testimony was, “Only thing she could do was to bank it.” He offered no positive testimony as to what her living expenses may have been, or as to whether she had any other source of income.

Similarly, he was unable to establish the source of the money used to open the five bank accounts after Mrs. White’s death; he can only infer from the circumstances that the money was his mother’s. Although he would have the court believe, from his testimony, that his brother was a wastrel who never saved a dime, he cannot offer us real proof. John Hodges received a pension from, apparently, World War II until his death — a period of more than forty years. Apart from Daniel Hodges’ vague testimony as to his brother’s lifestyle, there is nothing to refute the presumption that John Hodges saved a considerable amount of money in all those years. *

Daniel Hodges also introduced into evidence — over objection by counsel for appel-lee, Turner Hodges — an unsigned carbon copy of a purported will by John Hodges, on which was scribbled in pencil, over a paragraph bequeathing to Turner Hodges his legitime of John Hodges’ estate, the following: “What estate? A bunch of wsky botles [sic]? Not my money”. Appellant identified the scribbles as being in his brother John’s handwriting. On appeal, Daniel Hodges cites this document as evidence that John Hodges had disclaimed having any money of his own. We find this argument without merit. Not only are we dealing with an unsigned document, but also with phrases that can be interpreted in more than one way.

Turner Hodges, John Hodges’ son and succession representative, offers in his brief the theory — by implication — that John Hodges may have kept his money in his mother’s bank accounts to prevent its being seized to satisfy a large judgment outstanding against him. Turner Hodges also points out that the bank records placed in evidence by Daniel Hodges clearly establish that, within the last 2½ years of his life, John Hodges was able to save almost $16,000 in accumulated unspent pension checks. As Turner Hodges says, it is not unlikely that John Hodges could have saved $10,000 in cash in the period between World War II and May 10, 1976, when he opened the two banking accounts for $5,000 each in cash.

While circumstantial evidence alone can constitute the required preponderance of evidence in a civil case, the test of its sufficiency is whether, taken as a whole, such proof shows that the fact to be proved is more probable than not. Klumpp v. Colonial Pipeline Co., 389 So.2d 457 (La. App. 3 Cir.1980); Campbell v. Mouton, 373 So.2d 237 (La.App. 3 Cir.1979); Vonner v. State Department of Public Welfare, 273 So.2d 252 (La.1973); Jordan v. Travelers Insurance Company, 245 So.2d 151 (La.1971). A case based on circumstantial evidence must fail unless the circumstances lead to the exclusion of other reasonable hypotheses with a fair amount of certainty. Maryland Cas. Co. v. Trahan, 384 So.2d 819 (La.App. 4 Cir.1980).

“* * * Proof which establishes only possibility, speculation, or unsupported probability does not suffice to establish a claim. * * * Mere proof that something is possible is of little probative value as to ari ultímate issue of fact, unless it is established with reasonable certainty that all other alternatives are impossible. * * *” IMC Exploration Co. v. Henderson, 419 So.2d 490, 509 (La.App. 2 Cir.1982).

Daniel Hodges’ evidence established that $117.92 of money that properly belonged to the succession of Alice Campbell Hodges White was deposited by John Hodges to a bank account in his name. Except for that item, appellant’s evidence fails to exclude other reasonable alternatives as to the source of John Hodges’ savings.

Accordingly, we conclude the trial judge erred in dismissing Daniel Hodges’ demand only insofar as the sum of $117.92 should have been found to be an asset of Alice White’s estate. Further, because a suit for conversion is an action ex delicto, the successful party is entitled to interest from date of judicial demand on the amount awarded. LSA-R.S. 13:4203. In all other respects, the district court’s judgment was correct.

Judgment is hereby rendered in favor of Daniel L. Hodges, in his capacity as provisional administrator of the Succession of Alice Campbell Hodges White, and against Turner W. Hodges, in his capacity as administrator of the Succession of John T. Hodges, Jr., in the amount of ONE HUNDRED SEVENTEEN AND 92/100 DOLLARS ($117.92), plus interest from date of judicial demand, and for all costs of these proceedings. As provisional administrator of the Succession of Alice Campbell Hodges White, Daniel L. Hodges is ordered to include the amounts thus awarded among the assets of that succession for proper distribution according to law.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.