author: BARRY, Judge. REDMANN, Chief Judge,

text:
    Peggy L. WHEELAHAN v. Mary Ann ELLER and Allstate Insurance Company.
    No. CA-1115.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Concurring Opinion Feb. 16, 1984.
    Writ Denied March 23, 1984.

      Harold M. Wheelahan, III, New Orleans, for plaintiff-appellee.
    Thomas D. Benoit, Staff Atty., State Employees Group Benefits Program, Baton Rouge, for intervenor-appellant.
    Before REDMANN, BARRY and WILLIAMS, JJ.
   BARRY, Judge.

In this tort suit an insurer appeals the denial of its intervention for reimbursement' of medical expenses paid to its insured. The sole issue is whether a medical benefits insurer, in the absence of conventional subrogation, is legally subrogated to its insured against a tortfeasor.

Plaintiff Peggy Wheelahan claims injuries from an automobile accident and sued the driver of the other vehicle and her insurer Allstate Insurance Company, and Government Employees Insurance Company (GEICO), plaintiffs uninsured motorist carrier. Plaintiff was an employee of the L.S.U. Medical Center and a member of the State Employees Group Benefits Program which provided accident-benefits. The Program paid plaintiff $12,098.14 for medical expenses and filed an intervention for reimbursement from the driver and her insurer. The trial judge, without assigned reasons, denied the intervention and the Program now appeals.

A person may pay another’s debt, but there is no subrogation under C.C. Art. 2134, which provides:

An obligation may be discharged by any person concerned in it, such as a eo-obli-gor or a surety.
The obligation may even be discharged by a third person no way concerned in it, provided that person act in the name and for the discharge of the debtor, or that, if he act in his own name, he be not subrogated to the rights of the creditor.

An exception (not applicable here) is C.C. Art. 2160 which provides for express conventional subrogation.

Intervenor contends it is legally subrogated under C.C. Art. 2161(3):

Subrogation takes place of right:
3. For the benefit of him who, being bound with others, or for others, for the payment of the debt, had an interest in discharging it.

Thus, legal subrogation occurs if the party who paid the debt is “bound with others, or for others.” Intervenor cites Pringle-Associated Mortgage Corp. v. Eanes, 254 La. 705, 226 So.2d 502 (1969) which interprets Art. 2161 to require that an obligation be in solido for subrogation to take place.

The intervenor concludes: “This principle [Pringle] certainly fits the present situation. Due to the injury to the plaintiff, the Program was obligated (by ‘contract’) to pay certain medical expenses up to a designated amount. If a third person (the defendant-driver) is at fault in causing the injury, then she is obligated to pay those same expenses (by ‘tort’). Thus the Program is ‘bound with’ the defendant for these expenses and is entitled to legal sub-rogation from the plaintiff to collect them from the defendant.”

Intervenor also cites Volume Shoe Corp. v. Armato, 341 So.2d 611 (La.App. 2d Cir.1977) (hazard insurer), Hartford Accident & Indemnity Company v. Byles, 280 So.2d 624 (La.App. 3d Cir.1973) (uninsured motorist insurer) and Sentry Indemnity Co. v. Hester, 430 So.2d 1159 (La.App. 1st Cir.1983) (casualty/fire insurer), all of which held that Art. 2161(3) grants subrogation against the negligent tortfeasor.

Plaintiff counters that the Program is a bargained-for exchange in which the plaintiff/employee received benefits in lieu of additional salary. Plaintiff points out the Program is financed by equal contributions from the State and its Employees and their contract provides:

In consideration of the payment of contributions by the contract holder in the amounts and at the times hereinafter provided, the Program hereby agrees with the contract holder, subject to the terms appearing on this and the following pages of this contract including, if any, the riders, endorsements, and amendments to this contract which are signed by the board to pay benefits in accordance with the terms of this contract. The obligations and the rights of all persons under this contract shall be determined in accordance with the terms of this contract without regard to the terms of any prior agreement or of any instrument amending or supplementing or replacing any such agreement,

and later, further provides:

This written contract and the individual application of the Covered Employee constitutes the entire contract between the parties.

Plaintiff notes her contract fails to grant conventional subrogation, and argues in the absence of a solidary obligation there is no legal subrogation under Art. 2161(3). Harris v. Huval Baking Co., 265 So.2d 783 (La.App. 3d Cir.1972) writ denied 263 La. 103, 267 So.2d 210 (1972); Courtney v. Harris, 355 So.2d 1039 (La.App. 4th Cir.1978). Both cases denied subrogation where the insurer paid medical expenses caused by a third party tortfeasor. In Courtney v. Harris we pointed out Hartford Accident & Indemnity Co. v. Byles, supra, (relied on by intervenor) was distinguishable. Byles involved uninsured motorist coverage (not medical payments) and held in favor of legal subrogation; however, the Court carefully distinguished Harris v. Huval Baking Company, supra, and American Indemnity Co. v. New York Fire & Marine Underwriters, Inc., 196 So.2d 592 (La.App. 1st Cir.1967) (no legal subrogation for medical insurer, nor right of direct action by medical insurer against tortfeasor) and said:

[T]he insurer was not legally subrogated to the rights of the insured insofar as the medical payments were concerned. In [American Indemnity] as in Harris v. Huval Baking Co., supra, the medical payments were owned by the insured regardless of liability on the part of anyone else, and the insurer thus was not bound with or for any other person for those payments. Article 2161 of the Civil Code did not apply, and the insurer thus was not entitled to a legal subrogation to the rights of its insured under that article.
Byles, supra, at 627.

The two other cases cited by intervenor, Volume Shoe and Sentry Indemnity, are also distinguishable. In Volume Shoe the defendant’s automobile damaged Payless Shoe Store, a wholly owned subsidiary of Volume Shoe. The hazard insurer, Fireman’s Fund, paid Volume Shoe and a sub-rogation agreement was executed. Without addressing the effect of the subrogation, the Court relied exclusively on Byles, supra, and held Fireman’s Fund was legally subrogated under Art. 2161.

Sentry Indemnity, supra, involved a subrogation claim pursuant to a fire policy. Sentry’s policy stated the insurer “may require from the insured an assignment of all rights of recovery against any party for the loss.... ” The insured informed the insurer “he did not wish to subrogate” and no subrogation agreement was effected. Without discussing this further, the Court, relying on Bytes, Volume Shoe and Prof. Johnson’s article (footnote 1 supra), granted subrogation under Art. 2161(3). Bytes, Volume Shoe and Sentry are inapplicable.

The public policy considerations urged by intervenor are without merit. To deny sub-rogation will not result in the wrongdoer escaping responsibility as suggested by in-tervenor (and by Sentry, supra, at 1162 and Johnson, supra, at 679, 684). The “collateral source rule” prevents such a “windfall” to the defendant. On the other hand, plaintiff’s insurance recovery is what she paid for; the proceeds are “net” after considering premium payments.

Nor do we agree that permitting legal subrogation will necessarily result in lower premiums for insureds. That academic supposition presupposes numerous variable factors. During argument intervenor’s counsel stated that the Program’s coverage now includes subrogation, but that premiums were recently increased.

The basis of the debts are different (contract-tort) and the amounts may vary. The insurer’s liability exists regardless of fault, so it is not “bound with” the tortfeasor.

The judgment of the district court is affirmed at intervenor’s/appellant’s- costs.

AFFIRMED.

REDMANN, C.J., concurs with reasons to follow.

REDMANN, Chief Judge,

concurring.

I subscribe to Judge Barry’s opinion, but, because we differ with so respected a legal scholar as Professor Johnson (cited above at note 1), I offer an expansion of our view that a tort victim’s personal medical insurer and the tortfeasor are not liable in soli-do.

Hoefly v. Government Employees Ins. Co., 418 So.2d 575 (La.1982), may be deemed an obstacle to this view. In Hoefly an accident victim did not sue an uninsured motorist carrier until more than two years after the accident, by which time the two-year prescription would have accrued unless interrupted. Prescription was interrupted, Hoefly reasons (with three dissents), by the victim’s suit against the uninsured motorist tortfeasor, because suit against one solidary co-obligor interrupts prescription as to all, and the UM carrier is liable in solido with the tortfeasor. UM carrier and tortfeasor are liable in solido, says Hoefly, because their respective obligations to the victim meet the definition of La.C.C. 2091 of an obligation in solido:

“There is an obligation in solido on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them, exonerates the others towards the creditor.”

Payment by the UM carrier or tortfeasor does “exonerate” the other toward the victim, Hoefly declares.

Hoefly is cited by Johnson v. Fireman’s Fund Ins. Co., 425 So.2d 224, 227 (La.1982), in reasoning that the liability of workers’ compensation insurer and uninsured motorist insurer is solidary. But Johnson holds that on public policy grounds the compensation insurer is not subrogated to UM insurance for which the employee has personally paid the premiums. Thus, where an employee has personally paid for UM insurance, notwithstanding any solidarity between workers’ compensation and emyloyer-^shd UM insurers, payment by a worker’s compensation insurer presumably does not exonerate the employee’s own UM insurer towards the employee (as a consequence of which those two insurers cannot be liable in solido). Not controlling here, Johnson nevertheless suggests the possibility that an injured person’s having personally paid insurance premiums may be a factor in deciding whether or not some other seeming co-obligor is liable in solido and therefore subrogated to the injured person’s claim against the insurer.

In any case it does not follow, from a UM insurer’s being held solidarily liable with an uninsured motorist (or with a workers’ compensation insurer) that a medical insurer is solidarily liable with a tortfeasor. The UM carrier contracts to pay the uninsured part of the motorist's debt, arguably “the same thing” within art. 2091. If there is no uninsured (or underinsured) motorist, or if the uninsured motorist is not (initially) liable, the UM carrier is not liable. No such relationship exists between medical insurer and alleged tortfeasor; the medical insurer contracts to be and is always liable, whether or not there is an alleged tort-feasor and whether or not the alleged tort-feasor is liable. Most important of all, there is a statute declaring the UM insurer “entitled to the proceeds,” R.S. 22:1406D(4), of the victim’s claim against the tortfeasor (and there is a similar statute for a workers’ compensation insurer, R.S. 23:1101); there is no such statute in favor of a medical insurer.

Two persons may be debtors to the same creditor and for the same number of dollars without being bound in solido, even when their liability arises in part out of the same event. The death of one person may cause two different life insurers to owe, say, $500,000 each to the decedent’s surviving spouse. Yet, evidently, what is owed by each is not “the same thing,” art. 2091, despite their measure’s being the same; perhaps more immediately evident, payment by one life insurer does not “exonerate” the other, does not discharge the other’s liability towards the beneficiary.

The same death might also oblige the person whose fault caused the death to owe the surviving spouse damages, C.C. 2315. Let us assume a jury fixes those damages at $1,000,000. That is the same amount that the insurers owe, but it is not “the same thing,” and payment by either tort-feasor or insurer does not exonerate the other.

To hold the contrary — to hold that C.C. 2091 makes the victim’s insurer and the tortfeasor co-obligors in solido — would mean that by subrogation under C.C. 2161(3) both tortfeasor and insurer would escape 50% (C.C. 2103), or else one of them escapes 100% (C.C. 2106), of their “soli-dary” liability (assuming both are solvent). As to the tortfeasor, it is simply inconceivable that C.C. 2091 thus requires the victim’s own insurance to relieve the tort-feasor of liability. As to the victim’s insurer, it is also inconceivable that C.C. 2091 halves or extinguishes its debt. The insurer collected premiums from the victim (and other insureds) during the victim’s life that were actuarially calculated, on a precise mathematical basis, to produce an amount sufficient to pay the victim’s death benefit (and the death benefits of every other insured). It is not insurance company shareholders’ contributions, but insureds’ premiums, accumulated and invested by the insurer over the years, that pay contractual death benefits.

A medical insurer is not significantly different from a life insurer in this respect. Medical insurance benefits similarly constitute a return of the insureds’ and other insureds’ own premium money.

The essential difference between a large group of persons’ paying money as premiums to an insurer and their paying the same amounts of money to a bank as “rainy-day” savings is that their agreement with the insurer makes the total of the payments made by all of them available to each of them for the specified risks, while their agreements with the bank give each access only to his or her own deposits and interest. When an insured risk materializes and the insurer pays the agreed indemnity, it is not unfair to treat the payment as if a return to the insured of the insured’s own money (as if he or she had withdrawn the money from his or her “rainy-day” savings account).

Because the proceeds of insurance whose premiums were paid by the victim can fairly be treated as if a return to the victim (or his or her beneficiary) of the victim’s own funds, the victim’s insurer’s obligation to make such a return of the victim’s own funds can hardly be held to be “the same thing” as the tortfeasor’s obligation to repair damages; and the victim’s insurer’s actual return of the victim’s own funds cannot reasonably be held to entitle the victim’s insurer, instead of the victim, to recover the victim’s damages from the tort-feasor — unless that was the agreement of the parties by express provision of their contract.

There is nothing to prevent such an express provision in a medical insurer’s contracts, providing for reimbursement from any recovery by its insureds. Noting the statutory reimbursement provisions in uninsured motorist insurance, La.R.S. 22:1406D(4), and fire insurance, R.S. 22:691, this writer in Liberty Mutual Ins. Co. v. Weinberger, 329 So.2d 254, 256 (La.App. 4 Cir.1976), upheld a medical policy reimbursement provision, expressing the view that

“public policy prefers reimbursement provisions in order to have the reduction in premium. There is no public advantage to the entire public paying a higher insurance premium in order that injured persons can collect twice for the same medical expense.”

In the absence of a reimbursement or similar provision in the insurance contract, however, C.C. 2161(3) does not give legal subrogation to a medical insurer paid by the victim, because the tortfeasor and such an insurer are not liable in solido.

“An obligation in solido is not presumed; it must be expressly stipulated.
“This rule ceases to prevail only in cases where an obligation in solido takes place of right by virtue of some provisions of the law.” C.C. 2093.

The best-known example of solidarity by law may be the case of joint tortfeasors, C.C. 2324. But the broadest “provisions of the law” are those of C.C. 2091, whose least self-defining criterion of solidarity is that payment by one debtor in solido exonerates all.

To decide whether one debtor’s payment exonerates the others involves several considerations. Surely the socially desirable aims of Professor Johnson are considerations; as Weinberger noted, double recovery (even if not of “the same thing”) and higher premiums are not deemed socially desirable. Perhaps a more significant consideration (though not paramount in the face of a statute or contract, as Hoefly and Weinberger prove) is whether one debtor’s payment is akin to a mere restoration to the creditor of his or her own money, as in the case of a payment of insurance proceeds to an insured (or to the beneficiary of an insured) whose own money has paid the premiums, as in Johnson v. Fireman's Fund. The paramount consideration is the wording of any applicable statute or, in the case of a contractual debtor, the wording of the contract itself.

The wording of the contract in Wein-berger did not provide solidarity, but it did provide conventional subrogation or reimbursement; the wording of the present contract provides neither. Wording an insurance contract to provide reimbursement can allow lower premiums, and that possibility and the absence of a societal need for double recovery do justify putting a reimbursement clause into future insurance contracts, but do not justify reading a reimbursement clause into this contract.

The contract in this case has no such clause, and the facts of this litigation in no way support a conclusion that the medical insurer is liable in solido with the tort-feasor. The insurer is not “bound with ... or for” the tortfeasor, C.C. 2161(3), by whom the insured was injured. The insurer is therefore not subrogated, by contract or by law, to its insured's claim against the tortfeasor.

      . See Legal Subrogation of Insurer to Insured's Rights Upon Payment of Claim, Johnson, Prof. H. Alston, 39 La.L.Rev. 675 (1979) which criticizes Courtney v. Harris.

      . In a case involving comparative negligence, subrogation could provide for less than the insurance recovery, or the tortfeasor might be forced to pay the total loss even though the comparative fault was disproportionate. Query: adopting intervenor's position, is a life insurer legally subrogated for death benefits against a tortfeasor?

      . This second "when” might be translated “that," for the two “whens” are not two distinct components of solidarity. The 1825 French text (which prevails over a mistranslation, Bradford v. City of Shreveport, 305 So.2d 487 (La.1974)), declares solidarity of debtors “lorsqu’ils sont obligés á une méme chose, de maniere que chacun puisse étre contraint pour la totalité, et que payement fait, par un seul, libére les autres envers le créancier.” The debtors’ being obliged to “the same thing” is the essence of solidarity; being obliged to the same thing has, inescapably, the two effects that (1) each debtor can be compelled to pay the whole debt and (2) payment by one discharges all the others towards the creditor (but not necessarily towards the paying debtor, who is subrogated, C.C. 3053, to the creditor’s right against the others, C.C. 2161(3), unless they are but his sureties, C.C. 2106).

      . It is somewhat inconsistent with solidarity theory, although otherwise justifiable, that the UM carrier may remain liable after the tortfeasor is released by the victim, Niemann v. Travelers Ins. Co., 368 So.2d 1003 (La.1979), and that the tort-feasor’s (but not the UM carrier’s) liability is lessened by the tortfeasor’s inability to pay, Bond v. Commercial Union Assur. Co., 407 So.2d 401 (La.1981).


source: Caselaw Access Project

author: AUGUSTINE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Frank SCOTT, Jr.
    No. KA-0618.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Rehearing Denied March 21, 1984.
    Writ Denied May 11, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    George P. Vedros, Gretna, for defendant-appellant.
    Before AUGUSTINE, LOBRANO and WILLIAMS, JJ.
   AUGUSTINE, Judge.

In the pre-dawn hours of April 10, 1981, Michael Dugan was shot and killed as he walked with his girlfriend Cynthia Glover near the intersection of First and Clara Streets in New Orleans. Glover later identified Dugan’s assailant as Frank Scott, Jr., a former friend of the decedent’s. On the basis of this information, Scott was arrested on a warrant and charged with second-degree murder. Following a three-day trial of the matter, a twelve-member jury found the defendant guilty as charged. Accordingly, he was sentenced to serve a term of life imprisonment under La.R.S. 14:30.1.

Scott now appeals his conviction on the basis of the following assignments of error:

FIRST AND SECOND ASSIGNMENTS OF ERROR

Because the factual circumstances which give rise to the defendant’s first two assignments of error are so closely intertwined, we shall treat these assignments together.

First Assignment: the district attorney in his opening statement alluded to statements and threats allegedly made by the defendant.

‘ Second Assignment: the trial judge committed reversible error in failing to grant a mistrial when the State of Louisiana attempted to introduce inculpatory statements allegedly made by the defendant when the State had previously advised defense counsel that there were no such statements.

The trial record reveals that during the opening statement, the prosecutor told the jury that:

“The case is one not only of murder, but of threats, and you’ll hear testimony of threats. You’ll hear the testimony of Cynthia Glover, of her sister Cheryl Glover...”

Defense counsel’s timely objection to these remarks stopped the prosecutor in mid-sentence. The court immediately called both attorneys to the bench for a conference, after which the prosecutor continued with his statement to the jury. He made no further reference to any threats made by the defendant. Later in the trial, however, when the State called Cheryl Glover to the stand, defense counsel anticipated her testimony concerning the alleged threats and entered an objection to any further reference to them. Scott’s attorney also moved, for the first time, for a mistrial, apparently on the basis of the remarks made previously by the prosecutor during his opening statement. As of yet, there had been no actual testimony of threats.

In response to the objection and motion, the trial court advised defense counsel that a mistrial would be granted if requested, and allowed counsel a recess to discuss the matter with the defendant. Before the trial resumed, however, Frank Scott, Jr. informed the court of his intention to go forward with the trial. In an open-court colloquy, the trial judge interrogated the defendant to determine whether he understood the meaning of his waiver. Scott-answered that his attorney had explained to him the consequences of a mistrial, and that it was his (Scott’s) wish to proceed with the trial. Defense counsel then withdrew the motion for mistrial and the objection to the anticipated testimony of Cynthia and Cheryl Glover. The Glovers’ later testimony concerning the threats made against them by Scott was accepted without objection.

The defendant contends that the prosecutor’s reference in his opening statement to testimony of threats by the defendant violates C.Cr.Proc. Art. 767, which provides:

The State shall not, in the opening statement, advert in any way to a confession or inculpatory statement made by the defendant.

The appellant argues that a threat is an “inculpatory statement”, and that the prosecutor’s reference to “threats” in his opening statement violates the above article.

In State v. Labostrie, 358 So.2d 1243 (La.1978), it was held that, as used in the above provision, “inculpatory statement” refers to the out-of-court admission of incriminating facts made by a defendant after the crime has been committed. (Emphasis added). See also State v. Miles, 339 So.2d 735 (La.1976); State v. Brumfield, 329 So.2d 181 (La.1976); State v. Williams, 326 So.2d 815 (La.1976). Thus, although a threat may be an incriminating fact, it does not, of itself, constitute an admission of incriminating facts. Therefore, a prosecutor’s mention of a defendant’s threats does not violate Art. 767, supra.

Alternatively, the defendant argues that the prosecutor’s remarks were grounds for mistrial under C.Cr.P. Art. 770(2), which provides:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(2) another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. (Emphasis added).

The defendant contends that the trial court erred^'in failing to order a mistrial under the above article, and that his own express, in-court waiver of mistrial was invalid, having been the product of his ignorance of the consequences.

The defendant cannot prevail on these grounds, for although a prosecutor’s remark concerning the defendant’s other crimes warrants mistrial if evidence of those crimes is inadmissible, Art. 770(2), a defendant’s failure to request corrective action forecloses any later claim of prejudice. State v. Baylis, 388 So.2d 713 (La1980); State v. Sims, 346 So.2d 664 (La.1977); State v. Nero, 319 So.2d 303 (La.1975). In' the present case, the defendant did not merely fail to request corrective action; he entered a considered, deliberate rejection of the trial court’s proffered mistrial. And although a trial judge is not required to conduct a “Boykinization” of sorts every time cause for mistrial arises under Art. 770, the defendant was offered that protection in this case. The record affirmatively establishes that Scott knowingly withdrew his motion. He thereby waived any claim of error on appeal.

In the same vein, Scott’s withdrawal of his objection to the anticipated testimony concerning his threats against the Glovers, and his later failure to object when the Glovers actually testified foreclose any later claim of prejudice. La.C.Cr.P. Art. 841; State v. Johnson, 389 So.2d 372 (La.1980).

Defendant’s first two assignments of error lack merit.

THIRD ASSIGNMENT OF ERROR

The defendant claims that the trial court erred by admitting certain photographs into evidence at the trial. He contends that two color photographs of the victim at the scene of the crime are gruesome and lack any probative value.

“The ruling of a trial court with respect to the admissibility of allegedly gruesome photographs will be disturbed only if the prejudicial effect of the photographs clearly outweighs their probative value. State v. Tonubbee, 420 So.2d 126, 133 (La.1982); State v. Landry, 388 So.2d 699, 703 (La.1980), cert. denied, 450 U.S. 968, 101 S.Ct. 1487, 67 L.Ed.2d 618 (1981).” State v. Germain, 433 So.2d 110 (La.1983).

It is well-settled that post-mortem photographs of murder victims are admissible to prove corpus deleeti, to corroborate other evidence establishing the cause of death, and to provide positive identification of the victim. State v. Brogdon, 426 So.2d 158 (La.1983).

The photographs in question were admissible to corroborate identification of the victim. Although the photographs are disagreeable, they are not so gruesome that the prejudicial effect clearly outweighs their probative value.

Defendant’s third assignment of error lacks merit.

CONCLUSION

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

AFFIRMED.

      . La.C.Cr.P. Art. 841 provides, in part:
      An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.


text:
    GERTRUDE GARDNER, INC. v. Earl BRYANT, Jr.
    No. CA-0785.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Rehearing Denied March 21, 1984.
    Writ Denied May 11, 1984.
    Post, Reinhardt & Rougelot, John M. Garic, Metairie, for plaintiff-appellee.
    Bruce M. Danner, Philip S. Brooks, Me-tairie, for defendant-appellant.
    Before AUGUSTINE, LOBRANO and WILLIAMS, JJ.
   AUGUSTINE, Judge.

Appellee, Gertrude Gardner, Inc., (Gardner) sued appellant Earl Bryant, Sr. for a commission due to Gardner on the sale of a house to Mr. Bryant’s next door neighbors, Mr. and Mrs. Richard Evans. The trial court held that Gardner was entitled to a six percent commission. We affirm.

Earl Bryant entered into a listing agreement with Gardner for the sale of his house. That agreement was dated May 7, 1981. The pertinent language of that contract is as follows:

I/We agree to pay you ... a commission of 6 (six) percent on the gross amount of any agreement to sell ... that may be negotiated during the existence of this contract, ... or on the gross amount of any such agreement made within ninety days after the expiration or termination of this contract, with anyone to whom said property has been quoted, during the term of this contract ...

An extension of the listing agreement was signed on that agreements’ original expiration date, August 6, 1981, extending the term of the contract to November 7, 1981. Thus the 90 day post listing period would have expired on February 5, 1982.

Mary Edlebut, a Gardner real estate agent testified that a few weeks after the listing agreement extension was signed she held an “open house” to allow prospective purchasers to view the Bryant house. On the day of the open house Mrs. Edlebut saw the Evans’ son Rickey in the Evans’ yard. Rickey Evans was an acquaintance of Mrs. Edlebut’s. Mrs. Edlebut spoke briefly to Rickey Evans, who then introduced Mrs. Edlebut to his mother. Mrs. Edlebut asked Rickey and Mrs. Evans if they wanted to see the house. The Evans-es replied affirmatively and Mrs. Edlebut gave them a tour of the house. During the time that she was showing the house to the Evanses she told them the price. Sometime after showing the house to the Evans-es Mrs. Edlebut suggested to Mr. Bryant that the Evanses might be interested in purchasing the house. Mrs. Edlebut also gave Mrs. Evans some advertising materials concerning the house. Mrs. Evans testified that she subsequently showed those materials to her husband and discussed the purchase price with him. She also testified that she had known that the house was for sale prior to the tour conducted by Mrs. Edlebut but had never considered buying the house.

On December 1,1981 Mr. Bryant entered into a purchase Agreement with Mr. and Mrs. Evans for the sale of his house. Pursuant to that agreement the house was sold to Mr. and Mrs. Evans on December 7, 1981.

The trial court held that Mrs. Edlebut’s showing of the house coupled with the information Mrs. Evans received from Mrs. Edlebut entitled Gardner to the six percent commission required by contract and to reasonable attorney’s fees.

On appeal, Earl Bryant argues that Gardner is not entitled to the six percent commission because Mary Edlebut was not the procuring cause of the sale. This argument must fail because it is not necessary that Mrs. Edlebut have been the procuring cause of the sale for Gardner to receive its commission.

In the leading case of Harkey v. Gahagan, 338 So.2d 133 (La.App. 2nd Cir.1976), there was a 12-month listing agreement with a 12 month extension clause. That extension clause was activated if the property was sold “to anyone with whom said agent or owner had negotiated or to whom this property had been shown or submitted prior to the termination ...” supra, at 135. In determining that the broker in Harkey was not entitled to a commission the court set forth the applicable law as follows:

The realtor does not have to be the procuring cause in order to activate the extension clause. He need not have been involved in active negotiation with the purchaser at the time of the expiration of the primary term. However, his activities must have been the cause of creating some minimal interest in the purchaser which contributed to bringing about the eventual sale,

supra, at 135.

Commentators have read the Harkey case to “require the broker to prove two things in order to recover his commission under the extension clause: (1) that he carried on the kind of activity specified in the extension clause, and (2) that the activity created some minimal interest in the purchaser which contributed to the eventual sale.”

In this ease the specified activity was to “quote” the property. In Ruiz v. Kiehm’s Pharmacy, 37 So.2d 720 (La.App.Orl.Cir.1948) the word quote, as used in this context, was defined. “To quote property surely means nothing more than to offer it and to state the price asked.” supra, at 725.

It is clear to us that Mrs. Edlebut’s conduct at the open house constituted a quotation of the property. Not only did Mrs. Edlebut tell the Evanses what the asking price of the house was, she also suggested to them that they might like to buy the house for use as rental property. See, Searcy v. Jacobs, 151 So.2d 166 (La.App. 4th Cir.1963).

Furthermore, it is apparent that Mrs. Edlebut’s efforts contributed to creating at least a minimal interest in the Evanses in buying the house. Mrs. Edlebut showed the house to the Evanses; she delivered a great deal of information to them and her actions apparently precipitated discussions between Mr. and Mrs. Evans in regard to purchasing the house prior to the termination of the listing agreement. Under these circumstances we believe that Gardner fulfilled the Harkey test and is thus entitled to its commission.

For the foregoing reasons the judgment of the trial court is affirmed.

      . See, Comment, The Law of Real Estate Brokerage Contracts: The Broker's Commission, 41 La.L.Rev. 857, at 899 (1981).

      . Hyde and Norwood, Extension Clauses in Louisiana Listing Agreements, 42 La.L.Rev. 1011, at 1025 (1982).


text:
    STATE of Louisiana v. Paul L. SENIOR.
    No. KA-1045.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
    Harris & Stampley, Arthur L. Harris, Sr., New Orleans, for defendant-appellant.
    Before GARRISON, AUGUSTINE and BYRNES, JJ.
   AUGUSTINE, Judge.

Defendant, Paul Senior, was charged by bill of information with aggravated burglary in violation of LSA-R.S. 14:60, to which charge he pled not guilty. After the trial court denied several of the defendant’s motions to suppress, he changed his plea to guilty of simple burglary of an inhabited dwelling, a violation of LSA-R.S. 14:62.2, reserving his right to appeal the rulings on the motions to suppress. The state filed a multiple offender bill against Senior and he was sentenced to serve six years at hard labor. Senior appeals the denial of the motion to suppress the identification.

On July 12, 1982 sometime after 1:00 a.m. Ms. Eileen Delaney was at home reading a book when a man she later identified as Paul Senior broke into her apartment. She observed the man for ten or fifteen minutes while all of the lights were on in the apartment. Ms. Delaney described the man as wearing a “flanallette plaid shirt with the color of gray, brown, yellow stripes. He was wearing faded blue jeans with buttons down the front.”

A few minutes later Paul Senior was apprehended by the police one block from Ms. Delaney’s apartment. Senior was wearing blue jeans and was carrying a plaid, flannel shirt. The police then either drove Senior to Ms. Delaney’s apartment or brought Ms. Delaney to the location at which he had been arrested. In either circumstance, Senior was seated in the back seat of the police car, the interior light of the car was on and it was parked under a street lamp. One of the police officers present shined a flashlight onto Senior’s face and asked Ms. Delaney whether Senior was the same man she had seen in her apartment — she replied that he was the same man. This identification took place approximately ten minutes after the burglar had left her apartment. Ms. Delaney also made a positive in-court identification of Senior.

On this appeal the defendant makes only one assignment of error. He contends that the trial court erred when it denied the defendant’s motion to suppress the identification. The defendant argues that the one-on-one confrontation was impermissably suggestive; that the in-court identification was tainted by the out of court identification; and that the victim, Ms. Delaney, picked out the photograph of someone other than the defendant at a photographic lineup conducted subsequent to the arrest of the defendant, all of which circumstances suggest that there is a substantial likelihood that the defendant was misidentified.

In State v. Bickham, 404 So.2d 929, 934 (La.1981) the Louisiana Supreme Court discussed one on one identifications.

One-on-one confrontations between a suspect and a victim, while.not favored by the law, are permissible when justified by the overall circumstances. State v. Dunbar, 356 So.2d 956 (La.1978). Such identification procedures are generally permitted when the accused is apprehended within a short time after the offense and is returned to the scene of the crime for on-the-spot identification.

The circumstances of this identification clearly fall within the Bickham exception. The defendant was apprehended and arrested only a few minutes after the burglary took place. Furthermore, although there was conflicting evidence as to the exact location of the identification, it clearly took place within close proximity to the actual crime. We do not think it was necessary for Mr. Senior to have been escorted back to the precise location of the offense.

In addition it has been well established that

[Reliability is the linchpin in determining the admissibility of identification testimony. The factors to be considered include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty displayed at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification ... the standard, after all, is that of fairness as required by the due process clause of the fourteenth amendment. In the final analysis, it must be determined whether under all the circumstances of a particular case there is a very substantial likelihood of irreparable misidentification.

State v. Davis, 409 So.2d 268, 270 (La.1982) discussing Manson v. Brathwaite, 482 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

Ms. Delaney testified that she saw the defendant for ten or fifteen minutes in a well lighted apartment. Although there was no direct testimony as to the degree of attention which the witness paid to the defendant, Ms. Delaney’s description was very accurate, and on being asked to identify him she was certain that Senior was the same man she saw in her apartment. < In addition only ten minutes elapsed between the time the burglar left her apartment and the identification confrontation. Given these circumstances we cannot say that there was a “substantial likelihood of irreparable misidentification.” Manson, supra. These factors also weigh against a finding that the in-court identification was tainted.

Nor can we say that the conduct of the photographic lineup indicates a sufficiently strong likelihood of misidentification to warrant reversal.

For the reasons assigned, the trial court’s denial of the motion to suppress the identification is affirmed. Accordingly, we also affirm the defendant’s conviction and sentence.

AFFIRMED.


author: BYRNES, Judge. WARD, Judge,

text:
    STATE of Louisiana v. Henry TALLEY.
    No. KA 1194.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.

      Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William Guste, Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joann C. Marier, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
    Before BYRNES, AUGUSTINE and WARD, JJ.
   BYRNES, Judge.

Defendant-Appellant, Henry Talley was charged by Bill of Information with possession of pentazocine in violation of LSA-R.S. 40:967. On June 10, 1981, a unanimous six member jury found the defendant guilty as charged. He was found to be a multiple offender and sentenced to ten ^years at hard labor. Defendant brings this appeal contending that the trial court erred by imposing an unconstitutionally excessive sentence.

FACTS

On February 19, 1981 the defendant was observed allegedly selling narcotics at the corner of Orleans and Prier Streets in New Orleans. When the two police officers, who had been watching appellant for forty-five minutes to one hour, approached him he ran into a nearby grocery store where he was apprehended. As they approached the patrol car the defendant began choking and spit up a tin foil packet containing “T’s and Blues”. Talley then fainted and an ambulance was called. He was taken to Charity Hospital where his stomach was pumped but no other narcotics could be detected.

SENTENCE

Appellant contends that his sentence of ten years at hard labor is unconstitutionally excessive. He argues that the trial judge failed to disclose any reasons for the severe sentence and failed to properly consider the sentencing guidelines as required by C.Cr.P. Art. 894.1.

The sentence in question herein is the maximum which could have been given a double offender under R.S. 40:967 prior to its amendment in 1982. It is well settled that a sentence may be considered excessive although it is within the statutory limits. State v. Sepulvado, 367 So.2d 762 (La.1979). It is equally well settled that the trial court must consider the guidelines of C.Cr.P. Art. 894.1 and articulate reasons for imposing a maximum sentence. State v. Oubichon, 422 So.2d 1140 (La.1982).

In the case at bar, the defendant was convicted as a multiple offender. He was convicted of the same offense approximately one year prior to being arrested in 1981. As that was' his first offense he was placed on probation. The trial court considered these facts when sentencing the defendant.

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

AFFIRMED.

WARD, J., dissents with reasons.

WARD, Judge,

dissenting with reasons.

I respectfully dissent from the majority decision which affirms Henry Talley’s sentence, and holds the Trial Judge complied with La.C.Cr.P. Art. 894.1.

The record reflects only the Trial Judge’s consideration of subsection A of Art. 894.1, while State v. Saunders, 393 So.2d 1278 (La.1981) requires him to weigh the mitigating factors of subsection B and to articulate his consideration of those factors for the record.

Since the record does not show he considered the mitigating factors, I would remand for re-sentencing with instructions to consider them.


text:
    Patricia MORRIS v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. CA 1122.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Writ Denied April 2, 1984.
    Darleen Jacobs, New Orleans, for plaintiff-appellee.
    James Maher, III, New Orleans, for defendant-appellant.
    Before BYRNES, AUGUSTINE and WARD, JJ.
   BYRNES, Judge.

This appeal arises out of a tort action involving injuries sustained by plaintiff when she fell while disembarking from a NOPSI bus. Patricia Morris, plaintiff-ap-pellee, brought suit against New Orleans Public Service Inc. in the Civil District Court for Orleans Parish. The matter was tried before a jury on January 31, 1983 which, returned a verdict in favor of the defendant finding the plaintiff contributorily negligent. The trial judge entered judgment in accordance with the jury’s findings, dismissing plaintiff’s suit at her cost. On March 22, 1983 the judge, on his own motion, amended the earlier judgment and assessed all costs against NOPSI. NOPSI appeals.

NÓPSI contends that the trial judge abused his discretion and acted in contravention of C.C.P. Art. 1951 by assessing costs against NOPSI in an amended judgment. Article 1951 states that judgments may be amended by the court at any time: “(1.) To alter the phraseology of the judgment, but not the substance; or (2.) to correct errors of calculation.” NOPSI argues that the change in the assessment of costs alters the substance of the judgment and is therefore prohibited.

A trial court has wide discretion in assessing costs as it deems most equitable. C.C.P. Art. 1920; Bowman v. New Orleans Public Service Inc., 410 So.2d 270 (La.App. 4th Cir.1982). On review we are mandated to render any judgment which is proper based on the record, including the assessment of trial court costs. C.C.P. Art. 2164. See also Custom Builders and Supply Inc. v. Revels, 310 So.2d 862 (La.App. 3rd Cir.1975).

In the present case both parties were found negligent. The accident occurred prior to our new comparitive negligence statutes and plaintiff was therefore barred from recovering damages. The trial court apparently felt that equity demanded that the plaintiff not be taxed with the costs of the suit. At the close of proceedings the trial judge stated:

The court is going to assess as expert fees $150.00 for [each doctor] ... and, of course, will sign a judgment tomorrow, taxing all costs against the defendant. (tr. 396). [emphasis added]

The court then asked each party if they wished to add anything to the record and counsel for each responded “no”. We note that the defendant made no objection to the assessment of costs when the court made the above statement.

Article 1951 permits the amendment of judgments on the court’s own initiative to correct a clerical error, as long as the substance of the judgment remains unchanged. James v. James, 393 So.2d 162 (La.App. 1st Cir.1980); Frazier v. Carl E. Woodward, Inc., 378 So.2d 209 (La.App. 4th Cir.1979).

It is clear from the transcript that the court originally intended to assess costs against the defendant. Due to an apparent clerical error the court signed a judgment which assessed costs against the plaintiff. Upon discovering the mistake the court amended the original judgment to be consistent with the court's intended assessment of costs. We find that the amended judgment did not alter the substance of the original judgment as evidenced by the court’s statements in the record.

For the foregoing reasons the judgment of the trial court is affirmed.

All costs of this appeal are to be borne by appellant.

AFFIRMED.

WARD, J., dissents in part with reasons.

WARD, Judge,

dissenting in part with reasons.

I agree with the majority’s conclusion— the Trial Judge had authority to amend the written judgment to conform with his previously expressed intention to assess costs to NOPSI.

However, I dissent from that portion of the majority’s opinion which found the Trial Judge acted within his discretion when he first assessed costs to the successful litigant, NOPSI. C.C.P. Art. 1920 is the determinative law:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
Except as otherwise provided by law, the court may render judgment for costs, on any part thereof, against any party, as it may consider equitable.

Thus the basic rule is set out in the first paragraph: all costs are to be paid by the party cast. The second paragraph is broad, indeed, and as the majority holds it has been judicially interpreted to give the Trial Judge discretion to assess costs against a successful litigant as long as the Trial Judge believes the assessment to be “equitable”. In the instant case, I do not believe assessment of costs to NOPSI is equitable. I believe a reasonable interpretation of Art. 1920 and the jurisprudence is that the plaintiff in a civil action is primarily bound for all costs until a defendant is cast in judgment, Vernon Co. v. Carter, 254 So.2d 297 (La.App. 4th Cir.1971), and the Trial Judge may exercise his discretion to assess costs to a successful litigant to do justice, as in those rare cases, for example, when the litigant acts unreasonably or abuses the judicial process by unreasonably incurring unnecessary costs.

I believe it is not equitable, rather it is an abuse of discretion to assess costs to a successful litigant either on a deep pockets theory or because the defendant, NOPSI, as well as the plaintiff, Morris, was found to be negligent. The Trial Judge should not consider only the negligence of the defendant, but the negligence of the plaintiff, as well as the reasonableness of both the cause of action and the defense against it. Plaintiff was found contributorily negligent and barred from recovery under the law at the time of her injury and, therefore, the defendant was reasonable in asserting a defense which proved successful and should not be cast in judgment.

I recognize the force of authority of the cases cited by the majority, but I am not persuaded by their logic and I disagree with their conclusions, and, insofar as they are inconsistent with these views, I would overrule them.

The Trial Judge abuses his discretion, when as in the instant case the effect of his ruling is — you win, but you lose. And while not the instant case, the collateral effect of the ruling will be to encourage suits by plaintiffs who will have nothing to lose but everything to gain, who can now reasonably hope to recover nuisance value claims from some litigants who, after this decision, can anticipate they will always lose because they will be assessed costs of court.


author: BYRNES, Judge.

text:
    Eletha Cato, Wife of Donald MORALES v. Donald MORALES.
    No. CA 1170.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Delery, Michaelis & Delery, New Orleans, Winifred M. Delery, for plaintiff-appellant.

      Before BYRNES, AUGUSTINE and WARD, JJ.
   BYRNES, Judge.

This appeal is concerned with the awarding of custody of two children to their father. The only issue on appeal is the use by the trial judge of a confidential report of the Department of Health and Human Resources in making his custody determination. This report was not introduced into evidence by either party and does not form part of the record on appeal.

Generally the trial judge is given much discretion in awarding child custody and his ruling is not disturbed absent a clear abuse of that discretion. Traylor v. Traylor, 388 So.2d 70 (La.App.1980). Schexnayder v. Schexnayder, 371 So.2d 769 (La.1979).

However, in this case the record is so incomplete that we can not adequately review the trial judge’s exercise of his discretion. The trial judge obviously relied heavily on the report in reaching his conclusions. In the absence of that report we are incapable of giving a reasoned opinion as to the correctness of his choice.

Moreover, because appellant and her attorney were denied access to the report, she was unable to rebutt or contest the information it contained, nor could she adequately develop facts more favorable to her position when she could not know the case against her. There was no showing in the trial of any compelling reason to deny appellant access to this report. In the absence of such a showing it was error for the trial judge to deny either appellant, or at least her attorney, the right to inspect the report.

We therefore remand this case a new hearing in accordance with this decision.

All costs of this appeal are to be borne by the appellant.

REVERSED AND REMANDED.


text:
    In the Interest of Murray McGUIRE.
    No. CA 0827.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.

      John Levy, New Orleans, for plaintiffs-appellants.
    Bradley N. Gater, Karen Halstrom and Patricia Davis, student attorneys, New Orleans, for defendant-appellee.
    Before BYRNES, AUGUSTINE and WARD, JJ.
   BYRNES, Judge.

The sole issue before us in this case is the granting of a Motion to Dismiss an appeal. Appellants are the parents of Murray McGuire, a minor child who was found to be a Child in Need of Care under La.R.S. 13:1570, by a judgment of disposition in Juvenile Court dated September 27, 1982. Appellants filed a motion to appeal this judgment on October 27, 1982. A return date of December 29, 1982 was set and an appeal bond fixed at $4,000.00.

A motion to dismiss the appeal as untimely was filed by the state on November 19, 1982. This motion was subsequently withdrawn. However, the state reserved its right to reurge the motion in the appellate court. A second motion to dismiss was filed on January 4, 1983. This motion sought dismissal because the appellants had not timely paid the costs of their appeal and had not obtained an extension of time in which to pay those costs.

The trial judge granted the state’s motion, ruling that:

... the only step I can take at this time is to grant the Motion to Dismiss and, the reason for that is that the appeal was not taken timely. The bond was not furnished and the record was not prepared and lodged timely and the reason it was not done so was because payment of cost was not made or advanced by the appellant timely.

The procedure for perfecting an appeal from a judgment of disposition in juvenile court is set forth in C.J.P. Articles 97-104. C.J.P. Article 99 provides that:

Appeals shall be taken within fifteen (15) days from the entering of the judgment of disposition.

C.J.P. Article 100 provides that an appeal is taken by obtaining an order from the court which rendered the judgment. Appellants did not seek an order of appeal until October 27,1982, thirty days after the judgment of disposition was entered. They contend however that, because the Code of Juvenile Procedure does not provide for notice of judgment before the commencement of appeal delays, they have been denied due process of law in violation of their constitutional rights.

We do not address this issue because the facts of this case do not require it. The record reveals that in the judgment of disposition, the trial judge directed the clerk of court to mail a copy of the judgment to all attorneys of record. Appellants’ attorney of record contends that this notice was never received by him. The record also contains an affidavit by the court reporter stating that she was informed that appél-lants’ attorney did not receive his copy of the signed judgment of disposition and that she gave another copy to the father of appellant, Casandra McGuire, for delivery to her attorney of record. Thus there appears to be a genuine question as to whether a copy of the signed judgment was ever received by appellants’ attorney as was ordered by the court.

While the Code of Juvenile Procedure does not require notice of judgment before the commencement of appeal delays we feel that, in this case, appellant’s attorney was entitled to rely on the trial judge’s order to his clerk to mail a copy of the judgment to all attorneys of record. The law favors appeals and they should be dismissed only when a legal ground for dismissal is clearly shown. Davidge v. Magliola, 346 So.2d 177 (La.1977) writ denied, 354 So.2d 1385 (La.1978). An appeal should be dismissed only when an error, irregularity, or defect in the appeal is imputable to the appellant. C.C.P. Art. 2161.

We distinguish the cases of Sub-Let v. United Television Rental, 284 So.2d 783 (La.App. 4th Cir.1973). State v. Mitchell, 337 So.2d 1186 (La.1976). Both Mitchell and Sub-Let involved a customary practice of the Clerk of Court to mail notice of judgment to all parties even if the parties did not request it and the law did not require it. Those cases cited C.C. Art. 21 and held that, custom cannot prevail over the express provisions of law, dealing with notice of judgment and the commencement of appeal delays and therefore upheld dismissal of the appeal as untimely in spite of the parties reliance on the custom. In the present case the custom of the clerk of court is not the issue, rather the issue is whether appellant’s attorney could rely on an express order of the trial judge. Although parties may not rely on the custom of the clerk of court, they may rely on the actual words of a judgment. The judgment in this case gave appellants’ attorney a reasonable expectation that he would receive a signed copy. Under these circumstances we hold that the untimeliness of appellants appeal was not imputable solely to them and therefore should not be grounds to dismiss their appeal. C.C.P. Art. 2161. Fairness to the parties and the strong policy of the state favoring appeals requires this result.

As to appellee’s contention that the cost of preparing the trial transcript was not timely paid, we note that counsel for appellant never received the certified letter estimating those costs which the clerk is required to send. C.C.P. Art. 2126. This omission, like the first, is therefore not imputable to appellants and, for the same reason dismissal of their appeal is not warranted. This is not to say that appellants would not be responsible for the cost of preparing their appeal were they properly notified of those costs. However, in the absence of proper notice, failure to pay these costs should not result in dismissal of the appeal.

Finally we address appellee’s assertion that the appeal should be dismissed for failure to post the bond of $4,000.00 set by the trial judge when granting the appeal. C.J.P. Art. 103 provides that:

The effect of a judgment of disposition shall not be suspended by an appeal unless the trial court or court of appeal directs otherwise.

Code of Civil Procedure Art. 2124 states that no security is required to take a devol-utive appeal. Because all appeals from a judgment of disposition in juvenile court are presumed to be devolutive in the absence of a contrary order by the trial or appellate court (C.J.P. Art. 103), we conclude that the fixing of bond in the order of appeal was erroneous.

Since there was no bond required by law in this, case and because appellants did not receive notice of the estimated costs of appeal as required by C.C.P. Art. 2161, we conclude that their failure to furnish that bond or pay those unknown costs was not imputable to them and should not result in dismissal of their appeal.

For the foregoing reasons we reverse the trial judge and order that this appeal be reinstated.

All costs of this appeal are to be borne by appellees.

REVERSED.


text:
    Petition for concursus In re James W. HAMILTON.
    No. CA 1067.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Fawer, Brian, Hardy & Zatkis, Michael S. Fawer, Sessions, Fishman, Rosenson, Bois-fontaine & Nathan, Terence L. Hauver, New Orleans, Poynter, Mannear & Speer, Baton' Rouge, Freeman & Pendley, Ltd., Patrick W. Pendley, Plaquemine, Preston G. Sutherland, New Orleans, for defendant-appellant.
    Before BYRNES, AUGUSTINE and WARD, JJ.
   BYRNES, Judge.

The sole issue presented by this appeal is whether appellee, the beneficiary of a life insurance policy, is precluded from recovering the proceeds of that policy by entering a guilty plea to manslaughter charges in connection with the death of the insured, her common law husband. The facts of the case are as follows:

On the evening of July 15, 1980 appellee, Joann Hamilton, had an argument with the deceased James W. Hamilton. Mr. Hamilton was apparently intoxicated, and when the argument became more violent Joann Hamilton picked up a knife and cut Mr. Hamilton on the leg several times. Mr. Hamilton died as a result of these wounds.

A dispute arose as to Joann Hamilton’s right to the proceeds of insurance on Mr. Hamilton’s life and a concursus action was filed by the insurance company. A motion for summary judgment was filed by Delia Johnson Hamilton, Mr. Hamilton’s wife, and their two children, Maude Hamilton Davis and Sandra Hamilton Hardy. This motion sought dismissal of Joann Hamilton’s claims on the basis that her guilty plea to manslaughter charges barred her from receiving the proceeds of the policies in question.

In response a “Motion to Clarify That Conviction under La.Rev. Statute 14:31 Was Entered Under Subdivision (2)(A) Thereof” was filed by Joann Hamilton in Criminal District Court. That subdivision deals with noil-intentional manslaughter. The Criminal Court Judge granted the motion, because he felt Mr. Hamilton’s death which was the result of an intentional misdemeanor committed by Joann Hamilton fit the part of the manslaughter statute. Joann Hamilton then filed a cross motion for summary judgment in the civil concur-sus proceedings, urging that her conviction of a non-intentional homicide did not bar her recovery. The trial judge agreed and granted her motion. This appeal followed.

Because both parties have admitted by their respective motions for Summary Judgment that there are no genuine issues of material fact in dispute, we will confine our analysis to the application of the law to those undisputed facts.

The statute which directly addresses the issue before this court is La.R.S. 22:613(D). That statute is entitled “Insurable Interest Required; Personal Insurances; Intentional Acts Exclusion”, and reads in part:

No beneficiary, assignee, or other payee of any personal insurance contract shall receive from the insurer any benefits thereunder accruing upon the death, disablement or injury of the individual insured when said beneficiary, assignee, or other payee who is held by a final judgment of a court of competent jurisdiction to be criminally responsible for the death, disablement or the injury of the individual insured...

It is contended that an ambiguity exists between the title “Intentional Acts Exclu-. sion”, and the text which makes criminal responsibility the basis for excluding beneficiaries from recovering the proceeds of insurance policies. Appellee argues that the title of the statute indicates that only an act intended by the beneficiary to lead to the death of the insured should bar recovery. We do not agree.

One can be found “criminally responsible” for a d.eath without having intentionally caused that death. This is precisely the situation before this court. Joann Hamilton has been found criminally responsible for Mr. Hamilton’s death, but has also been found not to have intentionally caused that death.

Historically “as a matter of public policy a beneficiary named in a life insurance policy is not entitled to the proceeds of the insurance if he or she feloniously kills the insured.” American National Life Insurance v. Shaddinger, 205 La. 11, 16 So.2d 889 (1944). It has also been the rule historically, that if a beneficiary accidentally or unintentionally kills the insured he or she is not barred from recovering the proceeds of insurance on the life of the deceased. Pan American Life Insurance Co. v. Hancock, 415 So.2d 422 (La.App. 1st Cir.1982).

However, we have concluded that the enactment of R.S. 22:613(D) changed the law. The legislature in enacting that statute chose to make criminal responsibility the standard by which to judge a beneficiary’s right to insurance proceeds in the circumstances presented by this case. We feel this is a broader exclusion than was the case before the enactment of the statute. The fact that title of the statute refers to intentional acts does not, in our opinion, cloud the clear intent of the legislature to restrict the class of beneficiaries who may recover insurance proceeds when their actions contribute to the death of the insured.

The title of an act is not part of the statute, but may be considered to determine legislative intent. State v. Madere, 352 So.2d 666 (La.1977). However, reference to the title of an act is restricted to situations where the text contains some ambiguity or is otherwise an unclear expression of legislative intent. Melancon v. Mizell, 216 La. 711, 44 So.2d 826 (1950). In construing a statute, courts should ascertain and give effect to the intention of the legislature as expressed in the statute. It is presumed that the legislature understands the effect and meaning of the words it uses in a statute. Clark v. Board of Commissioners of the Port of New Orleans, 422 So.2d 247 (La.App. 4th Cir.1982).

As to the statute in question, even assuming the conflict between the title and text of the statute creates an ambiguity, we find that the preamble to act 246 of 1979, which created R.S. 22:613(D), clarifies any ambiguity and indicates the true intent of the legislature. That preamble provides in part:

That a beneficiary, assignee, or other payee who intentionally contributes to the death, disablement or injury of the individual insured should not receive any benefits accruing from the insurer under any personal insurance contract...
The preamble further forbids
The exclusion of deaths caused by the intentional actions of another, provided that such death was not caused by the actions of a beneficiary directly or indirectly. .. (Emphasis added)

This leaves no doubt that the phrase “criminally responsible” as used in the text of the R.S. 22:613(D), was intended to include situations such as that presented by this case, where a beneficiary does not intentionally and feloniously cause the death of the insured but is nonetheless held criminally responsible for that death. When Joann Hamilton pled guilty to manslaughter she admitted criminal responsibility for Mr. Hamilton’s death, notwithstanding her contention that she did not intend to kill him. There is no doubt that Joann Hamilton’s intentional assault on Mr. Hamilton contributed to his death. The statute does not require more than a finding by a court of competent jurisdiction that the beneficiary was criminally responsible for the death of the insured.

The case of California Western States Life Insurance Co. v. Sanford, 515 F.Supp. 524 (E.D.La.1981) has been cited to the court by both parties and by the trial judge in his reasons for judgment. In that case Judge Sear ruled that the enactment of La.R.S. 22:613(D) made a criminal conviction conclusive proof of a beneficiary’s exclusion from benefits, but still allowed the issue of criminal responsibility to be litigated in a civil proceeding when there has been no criminal conviction. The beneficiary in Sanford was a husband who shot and killed his wife but was found not guilty by reason of insanity. That case is clearly distinguishable on its facts. In Sanford there was no finding by a court of competent jurisdiction that the beneficiary was criminally responsible for the insured’s death, in the present, case there was.

Because the Criminal District Court for the Parish of Orleans (a court of competent jurisdiction) found the beneficiary (Joann Hamilton) to be criminally responsible for the death of the insured, we conclude that the trial judge was wrong in granting her Motion for Summary Judgment and denying the motion of Delia Johnson Hamilton and her children. Accordingly the judgment of the trial court is reversed and the motion for summary judgment in favor of Delia Johnson Hamilton and her children is hereby granted.

All costs of this appeal to be borne by the appellee.

REVERSED AND RENDERED.


author: CIACCIO, Judge.

text:
    Kirt A. BECNEL v. Jeffrey D. CHARLET, et al.
    No. CA 1013.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Rehearing Denied March 21, 1984.

      George O’Dowd, William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Stephen J. Caire, Asst. Atty. Gen., New Orleans, for appellants.
    Wayne E. Garrett, Charbonnet & Char-bonnet, New Orleans, for appellee.
    Before SCHOTT, KLEES and CIACCIO, JJ.
   CIACCIO, Judge.

Plaintiff, Kirt A. Becnel, filed suit against defendants, Jeffrey D. Charlet and his employer, the State of Louisiana, through the Department of the Military and the Department of Corrections, seeking damages for an injury received allegedly as the result of the negligence of defendant Charlet. The State answered plaintiff’s petition and filed a third party demand seeking indemnification from Char-let. Alleging that Charlet could not be located to be served, plaintiff moved the trial court to appoint an attorney to represent Charlet. The court appointed a curator ad hoc, who was then cited and served with the main demand. The curator answered the main demand and subsequently filed an answer to the third party demand. Defendant Charlet did not appear, except through the curator.

The matter proceeded to a trial on the merits. The trial judge rendered judgment in favor of plaintiff and against defendants in solido. The court also cast defendants in solido for $2,500 as a fee for the curator. On the third party demand the court granted judgment in favor of the State for full indemnification from Charlet.

On behalf of Charlet, the curator ad hoc timely filed a motion for a new trial on the ground that the judgment was contrary to the law and evidence. Subsequently, Char-let appeared through retained counsel and filed a supplemental motion for a new trial on the grounds that he had not been cited or served with any notice of the lawsuit or trial and that appointment of the courator had been improper. Later, Charlet filed a motion to dismiss because of abandonment. In support of his motions Charlet filed an affidavit outlining his places of residence and employment (all of which were in the New Orleans area) from a few years prior to the lawsuit through the date of the affidavit.

Plaintiff opposed both motions. The State opposed the motion to dismiss, but filed a memorandum in support of the motion for a new trial wherein the State argued that if Charlet was granted a new trial, the State should also be granted a new trial because its liability is entirely dependent upon Charlet’s liability.

The trial judge denied the motion to dismiss. He also denied the motion f.or a new trial as to the main demand. As to the third party demand, however, the trial judge granted a new trial ordering that the “third party demand be severed and tried after citation and service of process.”

The State and Charlet have appealed. The plaintiff has answered the appeal and seeks to have the amount of the damage award increased.

The issue which we find dispositive concerns the appointment of a curator to represent Charlet.

The requisites for the appointment by the court of an attorney to represent an absent defendant are provided in La.C.C.P. Art. 5091 which reads:

“When the court has jurisdiction over the person or property of the defendant, or over the status involved, on the petition or ex parte written motion of plaintiff, it shall appoint an attorney at law to represent the defendant if he is: (1) A nonresident or absentee who had not been served with process, either personally or through an agent for the service of process, and who has made no general appearance; * ⅝ * ”

An absentee is defined by La.C.C.P. Art. 5251 as follows:

“(1) ‘Absentee’ means a person who is either a nonresident of this state, or a person who is domiciled in but has departed from this state, and who has not appointed an agent for the service of process in this state in the manner directed by law; or a person whose whereabouts are unknown, or who cannot be found and served after a diligent effort, though he may be domicled or actually present in the state; * * * ” (Emphasis added.)

A curator was appointed to represent Charlet on the basis of an ex parte motion filed by the plaintiff. In his motion, plaintiff alleged,

“The citation issued in these proceedings on the 7th day of August, 1977 for service upon Jeffrey D. Charlet has been returned by the Sheriff marked ‘address unknown.’
Plaintiff is informed, believes and alleges that said defendant, Jeffrey D. Charlet, has his legal domicile in the Parish of Orleans but has no agent or other legal representative in the parish and no fixed place of residence with a person living there competent to receive service of process.... ”

Other than plaintiff’s allegation, there is nothing in the record to indicate that citation was issued to Charlet on August 7, 1977. The record contains only citations which were issued to Charlet through the curator ad hoc.

The fact that Charlet was and is domiciled in Louisiana, in the New Orleans area, is evidenced by his affidavit to that effect and is uncontroverted. The question remains whether a diligent effort was made to cite him.

No evidence was offered to support the allegations of plaintiff’s motion to have an attorney appointed. As mentioned previously, the record does not contain the citation to which the motion makes reference, nor does it contain any return by the deputy civil sheriff. Further, even if a citation had been returned marked “address unknown,” this alone could not authorize appointment of an attorney. The other allegation of plaintiff’s motion, even accepting it as true, would apply to any Orleans Parish domiciliary, living alone and not already represented by an attorney or agent for service of process.

Plaintiff’s motion does not allege that a diligent effort was made to serve Charlet. The record contains no evidence that any effort was made to serve Charlet. Consequently it was not established that Charlet was an absentee within the contemplation of La.C.C.P. Arts. 5091 and 5251. The trial court, therefore, was without authority to appoint an attorney to represent Charlet.

Having found the appointment of the curator to have been improper, we find that there was no service of citation on either Charlet or upon his duly appointed agent. As a result the trial court lacked personal jurisdiction over Charlet. La.C. C.P. Art. 6. Any judgment as to Charlet emanating from the proceedings wherein he was represented by the curator is therefore a nullity. See: Wood v. Hyde, 209 So.2d 51 (La.App. 4th Cir.1968).

Since the judgment resulting from the trial on the merits is a nullity in so far as it relates to Charlet, the trial court should have granted Charlet’s motion for a new trial on both the main demand and the third party demand. We, therefore, reverse the judgment which denied Charlet a new trial on the main demand and affirm that portion of the judgment which granted a new trial on the third party demand.

Further, in the interest of justice, we also grant a new trial to the State of Louisiana. La.C.C.P. Arts. 1973 and 2164. We do this because, any liability of the State is vicarious, based entirely upon the liability of Charlet. We have determined that the judgment declaring Charlet’s liability is null. Consequently, we feel that justice is best served by granting all parties a new trial. In this way the liability of all parties can be determined in a single proceeding, and the .possibility of awkwardly conflicting judgments may be avoided.

On June 27, 1983, defendant Charlet moved the trial court to dismiss plaintiffs case as abandoned “because no legal action has been taken against him within 5 years of the pleadings being filed on May 5, 1976.” See La.C.C.P. Art. 561. He made the same argument as to the State’s third-party demand which was filed on October 26, 1977. The basis for Charlet’s motion is his argument that the appointment of the curator was improper, and therefore, any action in the proceedings wherein he was represented by the curator is of no effect and is as if it were non-existent.

The trial judge denied Charlet’s motion to dismiss. Charlet has appealed this denial and reiterates his argument.

This same argument has previously been addressed to and rejected by the courts of this State. The Supreme Court stated in Wilson v. King, 233 La. 382, 96 So.2d 641 (1957), that the rule on abandonment after five years inaction “was never intended to apply to a case where a suit was prosecuted to final judgment even though that judgment was afterwards set aside.” The First Circuit Court of Appeal has noted that “The law does not strictly insist that a party take a ‘right’ step in order to maintain the viability of his suit. He is only required to take an ‘active’ step in the judicial proceeding itself aimed at moving the suit along toward a judgment.” Succession of Moody, 306 So.2d 869 (La.App. 1st Cir.1974). We, too, reject defendant Charlet’s argument on abandonment. There has been no five year period during which the plaintiff failed to take an “active” step in the judicial proceeding itself toward prosecution of his claim against Charlet. The judgment of the district court dismissing Charlet’s motion to dismiss is affirmed.

Appellant Charlet has filed in this court, apparently for the first time, an exception of no cause or right of action. We recognize that the exceptions of no cause of action and no right of action are different, requiring different grounds to sustain. Nevertheless, we will address appellant’s argument as if it were intended to apply to either one or both of the exceptions mentioned.

At the time of plaintiff’s injury, plaintiff was an inmate in the custody of the Department of Corrections. He was being housed at Jackson Barracks where he was assigned to work with defendant Charlet, a carpenter employed by the State. Appellant argues that because plaintiff and Charlet were doing work for the State, they were co-employees and plaintiff’s exclusive remedy is by a worker’s compensation claim against the State. We do not agree.

The courts have held that an inmate receiving payment for work at a state penitentiary cannot be considered as an employee of the State for purposes of worker’s compensation benefits where he suffers injuries while engaged in the work program. Parker v. State, 353 So.2d 333 (La.App. 1st Cir.1977); Jones v. Houston Fire and Casualty Insurance Company, 134 So.2d 377 (La.App. 3d. Cir.1961). Appellant argues that these two cases are distinguishable because the injuries occurred at the penitentiary. We do not find this distinction affects the reasoning behind the courts’ decisions. From the evidence in the record we find, that except for the geographical location, plaintiff’s legal position is the same as that of the plaintiffs in the two cited cases. The exception is, therefore, overruled.

In summary, for the reasons given, the judgment of the district court granting a new trial on the third party demand is affirmed. The judgment denying Charlet a new trial on the main demand is reversed. A new trial is granted to both Charlet and the State on all demands. The judgment of the district court denying Charlet’s motion to dismiss for abandonment is affirmed. Charlet’s exception of no cause or right of action is overruled.

All costs pertaining to this appeal are to be paid by plaintiff-appellee. The fee of the curator, who was improperly appointed at plaintiff's request, is to be borne by the plaintiff. All other costs are to await the final determination of this matter.

AFFIRMED IN PART, REVERSED IN PART, NEW TRIAL GRANTED, EXCEPTION OVERRULED.


text:
    Ellis HULL v. Rayfield COLMAN, et al.
    No. CA 1044.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Writ Denied March 23, 1984.

      Roy J. DiVincenti, III, Pitard, Pitard & Porobil, P.C., New Orleans, for appellants.
    Sidney L. Shushan, Guste, Barnett & Shushan, Ralph S. Johnson, New Orleans, for appellee.
    Before SCHOTT, KLEES and CIACCIO, JJ.
   CIACCIO, Judge.

This suit arose out of an automobile collision in a grocery store parking lot. Plaintiff, the driver of one car, sued the driver of the other car, Rayfield Colman, DeJoie Cab Company (Colman was on duty, driving his cab) and North-West Insurance Company. Defendants filed a third party demand against Schwegmann Giant Super Markets, Inc. Plaintiff filed a supplemental petition wherein he added Schwegmann as a defendant.

After trial the jury returned a verdict which found both drivers and Schwegmann negligent, found that defendant Colman had the last clear chance to avoid the accident, and awarded plaintiff $140,000 in damages. After the trial judge inquired of the jury the basis of its verdict, he ordered the jury to redeliberate. Although we find no precedent permitting such a procedure, in the absence of objection by any party, the jury resumed its deliberations and returned an identical verdict except that the award for damages was reduced to $75,000. DeJoie Cab Company was granted a directed verdict at the close of plaintiffs case.

Schwegmann filed a motion to dismiss which the trial court granted. Then, in accordance with the verdict, the trial judge rendered judgment in favor of the plaintiff and against Colman and Northwest for $25,000 (the limits of the insurance policy) and in favor of the plaintiff, and against Colman individually for $50,000. DeJoie Cab Company and Schwegmann were dismissed on the basis of their respective motions for directed verdict and to dismiss.

Defendants Colman and Northwest have appealed raising issues on a question of evidence, application of the doctrine of last clear chance, and the excessiveness of the damage award in general and in consideration of a second accident in which plaintiff was involved. Plaintiff has appealed the dismissal of Schwegmann.

After a careful review of the record, we find the doctrine of last clear chance inapplicable to the facts of this case. Defendant Colman, therefore, may not be held liable for plaintiffs damages. Further, we find that in light of the jury verdict, Schwegmann was properly dismissed.

Plaintiff and defendant Colman had parked their cars across from each other on opposite sides of a two-way driveway in the parking lot of a Schwegmann store. The parking lanes were perpendicular to the driveway and were staggered so that one lane would not be directly across from the lane on the opposite side of the driveway.

The collision occurred when both drivers simultaneously backed from their parking spots into the driveway. The rear ends of the cars came into contact approximately five feet on plaintiff's side of the center line of the driveway.

Plaintiff testified that as he walked to his car he saw Colman and a passenger placing groceries into the cab. Plaintiff entered his car and began backing out when he stopped to allow a car to pass along the driveway between his car and Colman’s cab. After the car passed, plaintiff testified that “before I could look around again I was hit by the cab.”

Colman testified that he loaded his cab with a passenger and her groceries. He then entered his car, looked in the rearview mirror, turned around and looked through the rear window, and began backing up. He testified that the collision occurred after he had stopped backing and had placed the car’s transmission in drive; that he was stopped at the time of the collision and had not yet begun to move forward. Colman testified that plaintiff backed into the cab and that the collision caused the passenger to be thrown forward against the front seat.

The passenger did not testify.

The jury, responding to special interrogatories, found that both plaintiff and Colman had been negligent. The jury also answered affirmatively that Colman had the last clear chance to avoid the accident. The jury was not asked whether plaintiff had an opportunity t.o avoid the accident.

The concept of “last clear chance” applies to plaintiffs as well as defendants. Reliance upon “last clear chance” necessarily assumes that both parties were negligent. If either party becomes aware of an apparently imminent collision, that party is required to take every reasonable measure available to avoid the collision. Whichever party sues first, so as to make himself plaintiff, does not dictate who was required to take reasonable steps to avoid the collision. Both parties have a duty to avoid the collision, if possible.

If neither party is aware that a collision is imminent, then, in practical terms, neither party is going to take any steps to avoid it. The law, however, inquires whether a party should have been aware of the danger and whether the collision could have been avoided if the party had been aware. Where both parties have had an opportunity to avoid the collision and neither did so because each failed to timely discover the other, neither may recover. Under these circumstances both are at fault for failure to see the other and neither has had a last clear chance. Glatt v. Hinton, 205 So.2d 91 (La.App. 4th Cir.1967), writ refused, 251 La. 861, 206 So.2d 712 (1968); see also, George v. Bertrand, 262 So.2d 398 (La.App.3d Cir.1972); Gendusa v. Rabel, 212 So.2d 854 (La.App. 4th Cir.1968); Kraft v. U. Koen & Company, 188 So.2d 203 (La.App. 4th Cir.1966); Emco Insurance Company v. Employers Mutual Liability Insurance Company of Wisconsin, 150 So.2d 338 (La.App. 1st Cir.1963).

The jury found both plaintiff and defendant Colman negligent. The evidence supports this finding. Both drivers were inattentive and negligently backed into the driveway without first ascertaining that such a manuever could be accomplished safely. Neither driver was aware that their paths of travel would intersect until the collision occurred. Each driver should have been aware, and could have easily made himself aware, of the situation and could have taken steps to avoid the accident.

Plaintiff argues that Colman had more rearview mirrors which provided him better rear visibility and that Colman had more room to maneuver so that he may have been able to back out without crossing the center line of the driveway. Even accepting these arguments as true, plaintiffs own negligence is not diminished and we find that plaintiff, if he had been attentive and seen what he should have seen, could have avoided the accident. Plaintiff had as much opportunity to avoid the accident as did Colman.

Having determined that “last clear chance” is inapplicable to the facts of this case, plaintiff is barred from recovery against Colman because of plaintiffs contributory negligence (this incident occurred prior to this State’s adoption of comparative negligence).

Plaintiffs contributory negligence also prevents his recovery against Schweg-mann. The jury found plaintiff and Schwegmann negligent. A judgment in accordance with the jury’s verdict would dismiss plaintiff’s claim against Schwegmann. The proper result was obtained, therefore, when the trial court dismissed plaintiff’s claims against Schwegmann, as this result was in accord with the verdict of the jury.

Plaintiff argues that Schwegmann should be held strictly liable under La.C.C. Art. 2317. Plaintiff argues further that contributory negligence is not a bar to recovery against a defendant held strictly liable, and so he should recover against Schwegmann. We avoid discussing the availability of contributory negligence and victim fault as defenses to strict liability, because we find that Schwegmann is not strictly liable.

Plaintiff⅛ argument for Schweg-mann’s strict liability is that the parking lot was improperly designed and that Schweg-mann should not have placed barrels across the end of the driveway adjacent to the up ramp leading to roof top parking. Even assuming that plaintiff wants to argue that the design of the parking lot and the placement of the barrels created an unreasonably dangerous condition (which is what he must prove to establish strict liability), we do not find his arguments or the evidence persuasive.

The only non-medical expert who testified at trial was an accident reconstruction expert called by the plaintiff. An accident reconstruction expert is not, by the nature of his expertise, qualified to give an expert opinion on the design and operation of a parking lot. Of the qualifications of plaintiff’s expert elicited at trial none provided a foundation for him to give an opinion concerning the design and operation of a parking lot. Nevertheless, plaintiff relies heavily upon this expert’s opinions to support his argument for Schwegmann’s strict liability.

Even if we consider the expert’s opinions, we do not find them persuasive. He stated that he would prefer the parking lanes to be 10 feet wide rather than 8 feet. Plaintiff also argues that a two-way driveway adjacent to the parking lanes created an unreasonable risk because drivers would be required to look both ways. Further the placement of the barrels, plaintiff argues, limited his options as to which way he wished to back out, and contributed to the collision.

We are not convinced that parking lanes eight feet wide create an unreasonably dangerous condition. While the increased maneuverability of a lane ten feet wide might be nice, this does not make eight foot lanes dangerous. The two-way driveway adjacent to the parking lanes is not an unusual design, and creates a situation similar to backing from one’s own driveway into any two-way city street. We are not persuaded that this design created an unreasonably dangerous condition.

Plaintiff says that the barrels blocking the up ramp to his left forced him to back out so that he would be facing to the right of his starting position. This may be so. We note, though, that plaintiff wished to travel to the right in order to exit the parking lot. There was no need to travel left onto the roof. The blocked driveway did not create a dangerous condition. It was not the barrels, but plaintiff’s inattentiveness which precipitated the collision, as plaintiff backed his car without first seeing what he should have seen.

The jury found Schwegmann negligent. It was not asked, and therefore did not find Schwegmann strictly liable. We have reviewed the record and considered plaintiff’s arguments and we do not find Schweg-mann strictly liable. Since the only finding against Schwegmann involves negligence, plaintiffs contributory negligence bars his recovery.

For the foregoing reasons, the judgment of the district court is reversed in so far as it casts Rayfield Colman and Northwest Insurance Company liable for plaintiff’s damages. The judgment is affirmed as to its dismissal of claims against Schweg-mann. The judgment dismissing DeJoie Cab Company was not appealed.

Accordingly, judgment is hereby rendered dismissing plaintiff’s claims as to all defendants. All costs are to be paid by plaintiff.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.


text:
    Dr. James H. STEWART, M.D. v. Harold R. AINSWORTH, Jr., and American Employers Insurance Co.
    No. CA-1108.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Writ Denied March 23, 1984.
    George Kutzgar, Metairie, for plaintiff-appellant.
    Before SCHOTT, KLEES and CIACCIO, JJ.
   CIACCIO, Judge.

Plaintiff sued the driver and owner of a vehicle, and their insurer, for damages he sustained to his house as a result of a vehicular accident. The defendants filed a third party action against the driver of a second vehicle involved in the accident. The trial was bifurcated, with the issue of liability being tried by the judge and the issue of damages being decided by a jury. The district court rendered judgment in favor of the plaintiff against-the defendant driver, Harold Ainsworth, Jr., and American Employers Insurance Company, in soli-do, in the sum of $37,081.00. The court dismissed the third party demand. Plaintiff appealed the judgment of the district court and we affirm.

The sole issue presented on appeal is whether the trial judge erred in refusing to allow the plaintiff to present to the jury the issue of his loss of interest income from investments.

The plaintiff contends that in order to repair his house he used $8,700, which sum had formerly been invested at a rate in excess of legal interest. He argues that his case was delayed from June 1, 1981 to mid-1982 due to the unwarranted actions of the defendant and as a result he lost the conventional interest he would have earned on his money for this period of time. Accordingly, he reasons that his loss of investment income, to the extent that it exceeds the judicial rate of interest, is an additional element of damages. He alleges that he should have been allowed to present this issue to the jury for its consideration.

The plaintiff has not cited legal authority for his position and we know of none.

Those damages which are a direct result of the tortious act are compensable. C.C. Arts. 2315 et seq. The loss of interest income sought by plaintiff is only compen-sable to the extent provided by our laws. The legislature has provided for the payment of judicial interest in those cases which sound in tort, and that interest is as follows:

R.S.13:4203. Interest on judgments from judicial demand in ex delicto cases Legal interest shall attach from date of judicial demand, on all judgments, sounding in damages, “ex delicto”, which may be rendered by any of the courts.

Moreover, the express language of Civil Code Article 2924 evidences an intent by the legislature to draw a distinction between legal and conventional interest. See also: C.C.Art. 1936.

Civil Code Article 2924 provides, in pertinent part:

Rates of legal and conventional interest; usury
Interest is either legal or conventional. Legal interest is fixed at the following rates, to-wit:
At twelve percent per annum on all sums which are the object of a judicial demand. Whence this is called judicial interest; And on sums discounted at banks at the rate established by their charters.
The rate of judicial interest resulting from a lawsuit pending or filed during the indicated periods shall be as follows: Prior to September 12, 1980, the rate shall be seven percent per annum. On and after September 12, 1980, until September 11, 1981, the rate shall be ten percent per annum. On and after September 11, 1981, the rate shall be twelve percent per annum.
The amount of conventional interest cannot exceed twelve percent per annum. The same must be fixed in writing; testimonial proof of it is not admitted in any case. (Emphasis Supplied)

Conventional interest presupposes a contract and in order to be enforceable, it must be in writing. No such proof exists as between the parties in this case. Accordingly, the plaintiffs sole remedy is for the recovery of judicial interest from the date of judicial demand.

Accordingly, we find no error in the trial court’s refusal to allow the plaintiff the opportunity to present evidence of his loss of investment interest to the jury because R.S.13:4203 provides an exclusive remedy to compensate a tort claimant for interest losses incurred in any fashion whether by payment of interest on funds borrowed by the tort claimant to make repairs, pay medical bills, etc., or as in this case, by the loss of investment interest because the claimant used his own cash resources prior to judgment.

For the reasons assigned the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.