author: GARRISON, Judge.

text:
    STATE of Louisiana v. Stanley BLUNT.
    No. KA 0338.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., Susan Scott Hunt, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
    Dwight M. Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GARRISON, Judge.

Defendant, Stanley Blunt, was charged by bill of information with armed robbery in violation of La.R.S. 14:64. A jury found the defendant guilty as charged on July 24, 1982. The State of Louisiana subsequently charged the defendant as a multiple offender in accordance with La.R.S. 15:529.1. After a hearing, the trial judge found the defendant guilty on the multiple bill and sentenced him to serve thirty-three and one-third years at hard labor. Defendant appeals this conviction and sentence.

The facts of this case are as follows: On the evening of August 3, 1981, Ms. Victo-rine Matthews walked out of a lounge and was accompanied to her car by Mr. Cedric Cook. Ms. Matthews and Mr. Cook were approached by an assailant as Ms. Matthews was starting her car. The assailant carried what appeared to be a pistol and demanded that Matthews and Cook surrender their valuables to him. Jewelry, cash and Ms. Matthews’ car were stolen from the victims. The victims pursued their assailant in Mr. Cook’s car for a short distance until they lost sight of him. The incident was then reported to the police.

On the following day, August 4, 1981, the stolen vehicle was spotted by the police. The defendant was driving the car and was commanded to stop by the police. The defendant refused to stop the car and a high-speed chase ensued. The chase ended when the car driven by the defendant collided with another police ear which had been summoned for assistance. The defendant was then arrested and was later booked with the armed robbery which had occurred the evening before after being picked out of a photographic lineup by Ms. Matthews. Mr. Cook was unable to make an identification of the armed robber, having told police that he would not recognize his assailant if he saw him again. Therefore, the defendant was only charged with the armed robbery of Ms. Matthews. Ms. Matthews positively identified the defendant as her assailant again at trial.

As an alibi, the defense offered the testimony of Marsha Johnson who testified that the defendant was at her home on the evening of the armed robbery. Additionally, a police officer testified that, two days after the robbery, he arrested Michael Coleman for having the victim’s credit cards in his possession. Coleman claimed that he found the cards on the street.

The defendant’s mother testified that she had overheard Ms. Matthews state to the district attorney at an earlier court proceeding that the defendant was not her assailant. This testimony contradicted Ms. Matthews’ earlier statement on cross-examination that she had not made this alleged statement to the district attorney. The district attorney then took the stand as a rebuttal witness and testified that at no time did Ms. Matthews ever tell him that the defendant was not her assailant. Therefore, he contradicted the testimony of the defendant’s mother.

On appeal, the defense alleges two assignments of error:

1) The trial court erred in denying the defense access to the State’s information concerning members of the jury panel; and

2) The trial court erred in allowing the prosecutor to testify as a witness and then continue in his role as prosecutor in the case.

A review of the record discloses that there are no errors patent.

Although not alleged as an assignment of error, the sufficiency of evidence to support appellant’s conviction must be reviewed as per State v. Raymo, 419 So.2d 858 (La.1982). In assessing the sufficiency of evidence in a direct evidence case, the reviewing court must determine whether, viewing the facts in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306 (La.1982).

The appellant was convicted of armed robbery. In order to support this conviction, the State had to prove that the appellant committed (1) a theft; (2) of anything of value; (3) from the person of or from the immediate control of another; (4) by use of force or intimidation; (5) while armed with a dangerous weapon. In this case, jewelry, cash and a car were taken from Ms. Matthews and Mr. Cook after the defendant threatened them with a gun and insisted that they comply with his demands. Ms. Matthews unhesitatingly identified the appellant as the man who robbed her and Mr. Cook. Viewing the facts in the light most favorable to the prosecution, the jury could have convicted the appellant of armed robbery. State v. Bruins, 407 So.2d 685 (La.1981); State v. Tucker, 405 So.2d 506 (La.1981).

ASSIGNMENT OP ERROR # 1

Prior to trial, the defense requested and was denied information gathered by the State’s arrest register concerning prospective jurors’ arrests and convictions as well as their voting records in previous cases. The defense argued that use of the computerized arrest register gave the State an unfair advantage over the defendant in selection of the jury.

It is well settled that in order to obtain the voting records held by the prosecution, the defendant must show that the records are necessary to prevent undue prejudice, hardship or injury to the defendant. State v. Swift, 363 So.2d 499 (La. 1978). The two-prong test which defendant must satisfy is: (1) that the defense cannot practicably obtain the information, and (2) that the State intends to use the information in selecting the jury. Swift, p. 501.

As for the first prong, the State argues that this information is available to the defense through public records and may be gathered from jurors on voir dire examination. State v. Wright, 344 So.2d 1014 (La.1977); State v. Holmes, 347 So.2d 221 (La.1977); State v. Swift, supra. The defense contends that gathering this information through public records is a monumental task which should not be required of a defense attorney. Additionally, the defense argues that the direct questioning of prospective jurors as to their arrests and convictions is impractical in that it results in the alienation of prospective jurors.

The defendant has failed to satisfy the first prong of this test; i.e. that the information was not practicably obtainable through alternative means. The defendant had the opportunity on voir dire to obtain information from prospective jurors as to their arrests, convictions and voting records in previous cases. However, the defendant chose not to ask these questions on voir dire for fear of alienation of the jury. Much of this information about prospective jurors was also available to defendant in that the Office of the Indigent Defender Program keeps records similar to those of the District Attorney’s Office. This factor was noted in the case of State v. Swift, supra.

As for the second prong of this test, the State only stipulated that it possessed the information in question; the State did not say that it planned to use the information in the selection of the jury. (Tr. at pp. 30-31). The defense argues that the State stipulated that it planned to use the information contained in the arrest register.

The transcript in this case clearly reveals that the defendant did not satisfy the second prong of the Swift test; i.e. that the State intended to use the information in selecting the jury. The State merely acknowledged possession of the information in question.

Accordingly, counsel for the defendant has failed to make a clear showing of unfair prejudice to the defendant in this case. Therefore, this assignment of error is without merit.

ASSIGNMENT OF ERROR # 2

Defendant’s second assignment of error concerns the rebuttal testimony of an assistant district attorney who participated in the prosecution of this case. The defense called the defendant’s mother to the stand where she testified that she had previously overheard the victim tell Assistant District Attorney Cliff Strider that the defendant was not her assailant. This testimony contradicted Ms. Matthews’ earlier statement during cross-examination in which she directly refuted the defense’s allegation that the defendant was not her assailant. The State then called Mr. Strider to the stand as a rebuttal witness. Mr. Strider testified that at no time did Ms. Matthews ever tell him that the defendant was not the person who had robbed her. (Tr. at p. 375). In doing so, Mr. Strider corroborated Ms. Matthews’ testimony and contradicted Mrs. Blunt’s testimony. Before Strider took the stand, the defense argued that he should not be allowed to testify. In the alternative, the defense urged that once Strider testified, he should not have been allowed to continue to act as prosecutor in the case. The trial judge denied both motions. Defendant assigns as error the denial of these motions.

The controlling case on this issue is that of State v. Miller, 391 So.2d 1159 (La.1980). In Miller, the Louisiana Supreme Court recognized that the prosecuting attorney is a competent witness even though this practice is discouraged. The court found that even if the ruling of the trial judge to allow the prosecutor to testify and remain in the case was erroneous, this error was harmless in light of the fact that the prosecutor was called as an impeachment witness and that his testimony was cumulative of other witnesses’ testimony. The Miller case is factually similar to the instant case in that respect. Additionally, any error in allowing this testimony was harmless because Mr. Strider was the last witness to testify at this trial and he was not the State’s principal witness. Therefore, the admission of the testimony of Mr. Strider in the instant case was harmless error, if any, and the defendant has failed to prove that Strider’s failure to withdraw from the case after testifying had a prejudicial effect on the defendant.

Finding no reversible error in the record before us, we affirm defendant’s conviction and sentence.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Portia L. HUBBARD v. Jonas JOHNSON, Sr.
    No. CA 1397.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.

      Harry Cantrell, New Orleans, for plaintiff-appellant.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the First City Court rendered July 22, 1983, granting judgment in favor of Jonas Johnson, dismissing plaintiff’s action to recover $633 allegedly owed to her. From that judgment which we affirm, plaintiff appeals.

Portia Hubbard’s husband Nicolas Esti-verne is an attorney. Jonas Johnson was convicted of receiving stolen property and placed on active probation, requiring that he report to his probation officer every other day. Jonas Johnson is a contractor and the reporting requirement “interfered with his business.” Nicolas Estiverne then agreed to represent Jonas Johnson for the purposes of attempting to have his status changed to inactive probation. No fee was charged, but Mr. Johnson agreed to perform construction services on plaintiff’s house.

According to Johnson’s testimony, he removed, replaced, and painted 400 square feet of weather boards, replaced all studs in the section, shored up a “seal”, spent two days painting another section of the house, and fixed a section of the roof and soffit that had rotted. While in the process of fixing the roof, Estiverne asked Johnson about the possibility of putting central air conditioning into the home. Johnson examined the existing ductwork for the heating system and advised Estiverne that it could be done. Johnson testified that about this point in time, he informed Estiverne that although Estiverne was paying for the cost of the material used and Johnson was not charging for this time, he could no longer continue absorbing his workmen’s labor costs and that anything further he wanted done was “strictly on a business basis.” Estiverne testified that Johnson told him he would perform the work for free.

Estiverne apparently called a number of air conditioning sales outlets and was quoted a price of $1900.00. Johnson said that he could get the unit for a cheaper price. Johnson quoted $1640.00 and was given a check for that amount. Johnson and his crew of two men picked up and uncrated the unit and proceeded to mix and pour a 4 foot by 4 foot cement slab on which the unit was to rest. At that time, Estiverne requested that they pour an additional slab in the back of the house as he wanted the hot water heater moved outside of the house. Johnson and his men returned the next day and poured the slab for the water-heater.

Johnson and his crew did not return for several days. Estiverne testified that after Johnson’s delay, he traced the serial number on the unit to a local distributor. He returned the unit and discovered that Johnson had only paid $1007.00 for it. Esti-verne, thinking that Johnson was not returning to finish the job, had contacted another contractor who said the unit would not fit in the space. Johnson, who had made the same installation in his own house, said that the unit would fit and that he had told Estiverne he would return to finish the job but that he had a few other construction jobs going in the interim. The distributor issued a $907.00 check ($100.00 return charge) to Johnson which Johnson gave to Estiverne. Johnson further testified that although Estiverne returned the unit, he did not return a number of other items purchased for the job, such as wiring and a thermostat, which items made up the difference in the two amounts, as well as $200 he had to pay his crew.

The trial judge apparently concluded that Johnson agreed to provide his own labor free, but did not intend to absorb the costs of other laborers wages. Additionally, he must have concluded that the work already performed by Mr. Johnson was substantially equal in value to the services performed by Mr. Estiverne such that all indebtedness had been discharged and the obligation underlying the oral contract was fulfilled.

In light of the testimony presented, we cannot conclude that the trial judge was manifestly erroneous in his factual determinations nor can we conclude that any error of law was committed.

For the reasons discussed, the judgment of the First City Court is affirmed.

AFFIRMED.

BARRY, J., concurs.


author: GARRISON, Judge. BARRY, Judge,

text:
    Joyce Marie MILLER v. NEW ORLEANS HOME AND REHABILITATION CENTER, State of Louisiana, and City of New Orleans.
    No. CA 1519.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.

      Marc L. Popkin, Manard, Schoenberger & Ryan, New Orleans, for plain tiff-appellant.
    Mavis S. Early, Uddo & Early, New Orleans, for defendants-appellees.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GARRISON, Judge.

Plaintiff, Joyce Miller, was injured on December 11,1981 while riding in an elevator on the premises of the New Orleans Home and Rehabilitation Center. This facility is operated by and under the control of the State of Louisiana. Maintenance of this facility’s elevators is the responsibility of the City of New Orleans.

On February 8, 1982, plaintiff filed suit for tort damages against New Orleans Home and Rehabilitation Center, the State of Louisiana and the City of New Orleans. Plaintiff was an employee of the Center at the time of the accident; however, she was not scheduled to work on the day of the accident. A disputed fact in this ease is whether or not plaintiff was within the course and scope of her employment at the time of the accident.

On February 28, 1983, more than one year after the accident occurred, plaintiff filed a supplemental and amended petition to assert a claim for workmen’s compensation benefits pursuant to LSA-R.S. 23:1201 et seq.

On March 11, 1983, defendants filed an exception of prescription which was maintained by the trial judge in his judgment dated May 2,1983. The trial judge thereby dismissed plaintiff’s amended petition which asserted her claim for compensation benefits. From this judgment which we reverse, plaintiff appeals.

On appeal, the only issue argued is whether or not the filing of a petition for a tort action interrupts the prescriptive period for bringing a workmen’s compensation claim arising out of the same accident, when the allegations in the original petition are sufficient for bringing the tort action but not for the workmen’s compensation action. Plaintiff-appellant contends that the timely filing of the tort suit interrupted prescription as to the workmen’s compensation claim. This contention is based on the premise that the supplemental and amended petition “relates back” to the date of the filing of the original petition because the action asserted in the amended petition arose out of the same occurrence set forth or attempted to be set forth in the original petition. Defendants-appellees contend that plaintiff is attempting to assert a new cause of action based upon the workmen’s compensation claim in her amended petition. This contention is based on the fact that plaintiff did not timely plead that she was employed by the defendants in order to provide notice to them of possible workmen’s compensation benefits. Therefore, the defendants argue that when a new cause of action is asserted in an amended petition after the prescriptive period has run as to that cause of action, such action may not be maintained.

We agree with plaintiff and we hold that the timely filing of the tort suit interrupted prescription as to the amended petition which set forth a claim for workmen’s compensation benefits. This holding is based upon Louisiana Code of Civil Procedure Article 1153 which provides:

“When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.”

The original petition which states a cause of action in tort clearly details the factual situation and the alleged tortious conduct upon which this suit is based. The amended petition which states a cause of action in workmen’s compensation does not add any new factual allegations which have not already been called to the defendants’ attention. Plaintiff was an employee of the defendants and they admitted knowledge of this fact in their answers to interrogatories. The amended petition merely adds a new legal theory of recovery based upon the factual allegations of which defendants have already received notice in the original petition. The Louisiana Supreme Court in Baker v. Payne and Keller of Louisiana, Inc., 390 So.2d 1272 (La.1980), stated that:

“It is well established that Louisiana Code of Civil Procedure Article 1153 permits amendment despite technical prescriptive bars where the original pleading gives fair notice of the general fact situation out of which the amended claim or defense arises.”

Therefore, Article 1153 mandates that the running of prescription was interrupted at the time when defendants were put on notice that a tort claim was being made against them. The allowance of an amended petition stating an additional theory of recovery in workmen’s compensation does not place defendants at a disadvantage because they were put on notice in the plaintiffs original pleading that they would be required to collect and preserve all evidence relating to the particular factual situation in which plaintiff was injured.

In his reasons for judgment, the trial judge cited the case of Aleem v. Aabco Construction, Inc., 422 So.2d 1293 (La. App. 4th Cir.1982), as authority for maintaining the defendant’s exception of prescription and for dismissing plaintiff’s amended petition asserting her claim for workmen’s compensation benefits. The trial judge stated that Aleem and the instant case are factually indistinguishable. However, the Aleem case is distinguishable. In Aleem, the original petition stated the plaintiff’s claim for workmen’s compensation benefits. The amended petition, filed more than one year after the plaintiff’s injuries, asserted a claim in tort. The plaintiff’s original petition only gave the defendants notice of a claim in workmen’s compensation. In this petition, the plaintiff made the minimal allegations as required by the workmen’s compensation statute; i.e. that the plaintiff was involved in an accident while in the course and scope of his employment and that injury or disability resulted. This original petition did not contain the factual allegations needed to litigate a claim in tort. Therefore, the bar-ebone allegations of the original workmen’s compensation petition were insufficient to provide notice to the defendants that they might be required to defend a suit based on tortious conduct in addition to a suit for workmen’s compensation benefits.

In a decision entitled Chenier v. Vanguard Party Sales, Inc., 430 So.2d 367 (La.App. 3rd Cir.1983), the Third Circuit was presented with the identical factual situation of the instant case. In Chenier, the court ruled that plaintiff’s amended petition, asserting a claim in workmen’s compensation and filed more than a year after the injury occurred, did not relate back to the date of the original petition asserting a claim in tort and, therefore, had prescribed. We respectfully disagree with our brethren on the Third Circuit.

We hold that the factual allegations contained in the plaintiff’s original tort petition were sufficient to interrupt the prescriptive period for bringing a workmen’s compensation claim arising out of the same accident. Because the defendants received notice of the necessary factual allegations in the original petition, Code of Civil Procedure Article 1153 allows the amended petition to relate back to the date of the filing of the original petition.

For the reasons stated above, the judgment of the trial court is reversed, the exception of prescription is overruled, and the case is remanded for further proceedings, at the cost of the defendants.

REVERSED AND REMANDED.

BARRY, J., concurs with written reasons.

BARRY, Judge,

concurring with written reasons.

Aleem v. Aabco Contractors, Inc., 422 So.2d 1293 (La.App. 4th Cir.1982) involved the same factual situation, but the court incorrectly applied R.S. 9:5801 and found prescription. Aleem should be overruled.

In National Surety Corp. v. Standard Accident Ins. Co., 247 La. 905, 175 So.2d 263 (1965) our Supreme Court stated:

A cause of action is an act on the part of a defendant which gives rise to a plaintiffs cause of complaint; the existence of those facts which give a party a right to judicial interference in his behalf; the situation or state of facts which entitles a party to sustain an action. When used with reference to the pleadings by which the cause of action is alleged, the phrase signifies the facts upon which the plaintiff’s right to sue is based, and upon which the defendant’s duty has arisen, coupled with the facts which constitute the latter’s wrong.

Allstate Ins. Co. v. Theriot, 376 So.2d 950 (La.1979) said:

When the defendant knows or should know, prior to the expiration of the prescriptive period, that legal demands are made upon him from the occurrence described in the petition filed, prescription is interrupted.

New Orleans Home and Rehabilitation Center was an original defendant and had notice plaintiff was asserting a legal demand due to the elevator accident. The original petition did not say plaintiff was the Center’s employee, but in answers to interrogatories filed on September 3, 1982 plaintiff was identified as its employee.

Allstate Ins. Co., v. Theriot, supra, at 954 also stated:

The underlying reason why prescription does not bar the subsequent claim ... is that the defendant has adequate and timely notice by legal demand on behalf of indicated interests that liability arising out of the factual occurrence pleaded is sought to be enforced against him. The fundamental purpose of prescription statutes is only to afford a defendant security of mind and affairs if no claim is made timely, and to protect him from stale claims and from the loss or non-preservation of relevant proof....

These tort and compensation claims are based on the same factual situation — only the legal theories differ. The defendant had fair and timely notice of both claims and the amended petition should be permitted under C.C.P. Art. 1153.


author: KLEES, Judge.

text:
    Joseph E. LOFTIN, Sr. v. LOUISIANA STATE RACING COMMISSION.
    No. CA-1204.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.

      Stacey Moak, Cicero & Moak, Baton Rouge, for plaintiff-appellant.
    William J. Guste, Jr., Atty. Gen., Robert A. Barnett, Staff Atty., John E. Jackson, Jr., Asst. Atty. Gen., New Orleans, for defendant-appellee, Louisiana State Racing Comm’n.
    Before KLEES, BYRNES and WILLIAMS, JJ.
   KLEES, Judge.

The trial court affirmed the Louisiana State Racing Commission’s determination that Joseph E. Loftin, Sr. was guilty of negligence thereby violating LAC 11-6:54 of the Rules of Racing. As a result his trainer’s license was suspended for a period of six months. From this ruling Loftin appeals, and we affirm.

The facts of the case are as follows. On April 30, 1982, “The Beginning”, a horse trained by appellant, won the tenth race at Delta Downs Race Track. Immediately following the race, the horse was brought to the track test barn where a urine sample was collected. An analysis of the urine sample taken indicated the presence of me-thaphentamine, a prohibited central nervous system stimulant. At the appellant’s request, a split sample of the urine was re-analyzed by the University of Kentucky’s College of Agriculture and that test again proved positive for methaphenta-mine. Subsequent to receipt of the test reports from the State Chemist and the University of Kentucky, the track stewards held a series of hearings regarding possible disciplinary action against Loftin. As a result of these hearings his trainer’s license was suspended and the matter was referred to the Louisiana State Racing Commission for disciplinary action.

Prior to the Commission’s hearing scheduled for July 30, 1982, appellant sought to propound four interrogatories to the Commission eliciting information regarding possible irregularities in the post race testing procedure. On July 27, 1982, attorneys for the Commission filed a Motion to Quash the Interrogatories. The Commission subsequently granted the-Motion to Quash. On July 30, 1982 the Commission convened to hear the appellant’s case and rendered a decision on the same date upholding the steward’s decision and imposing a six month suspension of his license.

Appellant sought judicial review of the Commission’s decision to the Civil District Court for the Parish of Orleans. The Court affirmed the decision of the appellee by judgment rendered and signed on March 3, 1983.

Appellant appeals suspensively from the decision of Civil District Court for the Parish of Orleans noting the following specifications of error: 1) The trial court erred in not finding that the refusal of the Louisiana State Racing Commission to answer the interrogatories propounded to it precluded him from preparing his case on the critical issue of sub-standard conduct of the Louisiana State Racing Commission test-barn employees; 2) the trial court erred in not finding LRS 4:150(A) inapplicable where there is evidence of sub-standard performance of the duties of the Louisiana State Racing Commission test-barn employees; and 3) the trial court erred in not finding that equal protection of the laws required that each trainer found guilty of the same offense should be given the same penalty.

SPECIFICATION OF ERROR NO. 1

In responding to Loftin’s assertion that the trial court erred in not finding that the refusal of the Commission to answer the interrogatories denied him procedural due process, we must disagree. The Commission buttressed its argument of granting the motion to quash plaintiff’s interrogatories on LA.R.S. 49:960(A) which reads in pertinent part:

§ 960. Ex parte consultations and re-cusations.
A. Unless required for the disposition of ex parte matters authorized by law, members or employees of an agency assigned to render a decision or to make findings of fact and conclusions of law in case of adjudication noticed and docketed for hearing shall not communicate, directly or indirectly, in connection with any issue of fact or law, with any party or his representative, or with any officer, employee, or agent engaged in the performance of investigative, prosecuting, or advocating functions, except upon notice and opportunity for all parties to participate.

As noted by the underlined section, notice and an opportunity for all parties to participate qualifies the earlier part of the text that prohibits non-public contacts between a party litigant and a member of the Commission.

Though we cannot find 49:960(A) controlling in the factual context of this case, the granting of the motion to quash those interrogatories submitted to the ap-pellee did not prejudice Loftin’s case. He had the ability to cross-examine those employees of the Commission who are responsible for conducting the post-race urine and blood tests at Delta Downs Race Track, and in fact the record disclosed that at the steward’s hearing held on July 3, 1982, appellant actually cross-examined: 1) Dr. James Broussard, D.V.M., the veternarian regularly on duty at Delta Downs Race Track; 2) Joseph Trial, test barn employee at Delta Downs; 3) Mark Anthony Lafi-nette, test barn employee at Delta Downs; 4) Dr. Howard “Red” Smythe, D.V.M., the veternarian who filled in for Dr. Broussard on April 30, 1982; and 5) Harry Malone, specimen collector.

The testimony of all of the employees of the commission’s test barn at Delta Downs (including Dr. Broussard and Dr. Smythe) were generally consistent as to the procedures involved in taking the urine and blood samples. Further, their testimony indicates that the procedures involved were adhered to. Only one witness, Joseph Lof-tin, Jr., appellant’s son, testified that someone other than the supervising veternarian was involved in taking a blood sample (a deviation from the standard practice).

While we may be inclined to conclude that the motion to quash the interrogatories should not have been granted, in view of the facts brought out at trial, we conclude that this would constitute harmless error.

SPECIFICATION OF ERRORS NOS. 2 AND 3

Insofar as specification of error No. 2 is concerned the record does not disclose any evidence, other than appellant’s son’s testimony that someone other than the supervising vet conducted the blood test, to warrant a conclusion that the actions of appellee’s test barn employees were substandard.

Louisiana Revised Statute 4:150(A) reads in pertinent part:

The granting of a license to a trainer shall make him responsible for and be the absolute insurer of the condition of the horses he enters regardless of acts of third parties.

In commenting on LRS 4:150(A) as well as Loftin’s specification of error No. 3 that there was a denial of equal protection or equal treatment of the laws, we quote our brethren on the Third Circuit with approval.

“[4, 5] It is true that the statute does not set out any specific penalty for a specific violation; however, the determination of a fine or other penalty is vested in the Commission subject to judicial review for abuses of discretion. Here the penalty given, three years suspension, is not an abuse of discretion and is not constitutionally excessive.
The flexibility of the statute in allowing the Commission to look to all the evidence and consider all the surrounding circumstances before imposing a fine or penalty, once all due process and equal protection considerations are met, subject to judicial review, meets the legislative intent and policy, is uniform in its application and effect, and, is constitutional in its application. To hold otherwise would be to mandate the same penalties for a similar violation regardless of its frequency of occurrence and/or sever-ety. We hold, therefore, that LSA-R.S. 4:155 is constitutional and does not allow an unequal application of the law.” Briley v. Louisiana State Racing Commission, 410 So.2d 802 (La.App. 3rd Cir. 1982)

Accordingly, for the reasons assigned, the judgment of the trial court is affirmed. All costs to be borne by appellant.

AFFIRMED.

WILLIAMS, J., concurs without reasons.


text:
    Musette TURNER v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. CA-1407.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.

      Nahum Laventhal, Herman, Herman & Katz, New Orleans, for plaintiff-appellee Musette Turner.
    James Maher, III, Legal Affairs/Litigation #41, New Orleans, for defendant-appellant New Orleans Public Service, Inc.
    Before REDMANN, C.J., and KLEES and BYRNES, JJ.
   KLEES, Judge.

This appeal is from a suit brought by Musette Turner against New Orleans Public Service, Inc. and Tommy Bolds. Mrs. Turner was injured when she was struck by a NOPSI bus operated by Tommy Bolds. The trial court found both plaintiff and defendant at fault and rendered judgment for Mrs. Turner against NOPSI for stipulated damages in the amount of $3,614.50. It is from this adverse judgment that the defendants appeal. The issue presented on appeal is whether the trial court was correct in refusing to apply comparative negligence to reduce Mrs. Turner’s award even though it found that she was also negligent.

Mrs. Turner was on her way to work in the uptown area on the morning of February 1, 1982 when the accident in question occurred. She had taken the NOPSI Express 93 bus from Downman Road to Canal Street and was going to transfer to a Riv-erbound bus on Canal Street. The accident took place between 8:00 and 8:30 a.m., a very busy time of the morning. Mrs. Turner and many of the other passengers on Express 93 had to cross Canal Street at the corner of Basin Street in order to catch riverbound and lakebound busses which travel in the neutral ground on Canal Street. Mrs. Turner testified that she was rushing to cross Canal Street to get to the neutral ground and upon reaching the lake-bound lane of the neutral ground was startled by a fellow pedestrian. She turned around and realized that a lake bound bus was almost upon her. She attempted to get out of the bus’ path but instead slipped and fell, at which time the bus ran over her foot.

The bus driver, Tommy Bolds, testified that he did not see Mrs. Turner crossing the street and was proceeding with caution at a speed of between 3 to 5 mph. He did not in fact know that his bus had struck Mrs. Turner until someone banged on his door and told him what had happened.

Elaine Walker, a witness to the accident, testified that she saw the plaintiff crossing Canal Street and that apparently she did not see the bus because she ran right up to the bus and walked into it. Another witness, Mary Ann Scheuermann, testified that she saw the plaintiff walking quickly across Canal Street looking straight ahead and seemingly unaware of the lakebound bus’ presence. Sandra Gates also witnessed the accident that morning. She was crossing Canal Street behind the plaintiff who seemed to her to be unaware of the bus’ presence. Ms. Gates testified that a woman at her side screamed when she realized that the bus was coming towards the plaintiff, startling the plaintiff, at which point she slipped, catching her foot in the wheel of the bus.

The trial judge found that both the plaintiff and the defendant were negligent and applied the standard of care enunciated in Baumgartner v. State Farm, 356 So.2d 400 (La.1978). The Supreme Court in that case said,

“Since the operator of a motor vehicle is aware that he could meet many emergencies in which pedestrians will not always act prudently and will sometimes be found in perilous situations, he should have the added burden of keeping the roads safe, even for those who are negligently caught off their guard. Further, where injury results, the burden should fall on the motorist who, with the exercise of care reasonable under the circumstances, saw or should have seen the impending peril and had, at that moment, the opportunity to avoid it.” 365 So.2d 400, 405.

In Bays v. Lee, 432 So.2d 941 (La.App. 4th Cir.1983), this court dealt with an automobile-pedestrian accident in which the defendant sought to apply LSA-C.C. art. 2323, the Louisiana Comparative Negligence Law, to reduce the plaintiff’s recovery. The Court, using the Baumgartner rationale, held that because contributory negligence was not a defense in an automobile-pedestrian accident, under the strict wording of LSA-C.C. art. 2323, comparative negligence would not apply to reduce the plaintiff’s recovery.

We find, that based on the facts of the instant case, the holding of Bays v. Lee is controlling and accordingly we affirm the judgment of the trial court in favor of Ms. Turner in the amount of $3,614.50, and against New Orleans Public Service, Inc., and the driver, Tommy Bolds. All costs of this appeal to be borne by appellant.

AFFIRMED.

      . Art. 2323. Computation of damages
      When contributory negligence is applicable to a claim for damages, its effect shall be as follows: If a person suffers injury, death or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the claim for damages shall not thereby be defeated, but the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death or loss.


text:
    STATE of Louisiana v. Thomas GREEN.
    No. KA-0582.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.

      Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant Thomas Green.
    Before REDMANN, C.J., and KLEES and BYRNES, JJ.
   KLEES, Judge.

The defendant, Thomas Green, was charged with cruelty to a juvenile under LSA-R.S. 14:93, by a bill of information signed on September 11, 1981. On April 15 and 16, 1982, the defendant stood trial and was found guilty as charged by a jury of six. On September 3, 1983, he was sentenced to serve five years at hard labor, with credit for time served.

On June 30, 1981, at approximately 7:00 p.m., Patricia Bartley left her children in the care of defendant, Thomas Green, her live-in companion of approximately four months. When Bartley returned, at 10:00 p.m., the defendant met her one block away from the apartment and told her that he had made a mistake and had dropped a bucket of water on her two-year-old daughter, Lakisha’s, feet. He told Bartley that they should take the child to a hospital.

The two took the child to New Orleans General Hospital where she was initially examined by Dr. Gerald Neri, an emergency physician. Dr. Neri testified that the child had second degree burns on both feet; the skin was blistered all the way around, up to the ankles. Dr. Eliza Sproles of the Child Protection Center, who examined Lakisha at Charity Hospital three days later, described the burn as a “stocking-type” burn. Both doctors agreed that it was unlikely that the child had either stepped in a pail of hot water, or that she had been splashed by hot water when the pail was dropped. In the first instance, only one foot would have been burned because a child’s instinctive response would be to withdraw the scalded member immediately. In the second instance, in a splash burn, the configuration of blisters would be uneven. Lakisha underwent skin grafts on both feet on July 14, 1981.

Patricia Bartley and her sister, Lynn, both testified that there was no running water in the apartment and that Patricia bathed all of the children by filling a tin bucket with water, boiling it on the stove, removing it to her bedroom, and then setting the children in the bucket when the water had cooled. Lynn Bartley testified that she visited with the children on the night in question after Patricia’s departure. She stated that the children were asleep when she left the residence.

Several witnesses testified that both the defendant and Patricia Bartley had given conflicting accounts as to how the incident occurred. Patricia Bartley stated that the defendant first told her that he’d made a mistake and had dropped a bucket of water on the child’s feet which splashed on her. She further testified that a week later, Green told her that the child had “messed on herself” and he had poured a pitcher of cold water in the bucket. When he placed Lakisha in the bucket he did not know why she was screaming. Bartley told a detective assigned to the case that she, herself, had made a mistake and had dropped a bucket and that the water in it had splashed on Lakisha. On the witness stand, she explained that she had lied to the detective because she did not want her welfare worker to find out that she had a man living with her. Dr. Neri testified that the man who accompanied Patricia Bartley to New Orleans General’s emergency room told him that the child had stepped into a bucket of water. When Neri told the man that it would be unlikely that a child would step into a bucket of scalding water with both feet, the man said that the child’s mother had spilled hot water and Lakisha had stepped into it. Bartley testified that the defendant told her that he had made a mistake and splashed water on the child’s feet.

Patricia Bartley testified that it was possible that the child could have “messed” as she was not completely potty trained at the time in question. Patricia stated that the child had on white shorts when she left the residence that evening and had the same shorts on when she returned. The shorts were not soiled. However, Lynn Bartley testified that the child was wearing yellow shorts when she and Patricia left the residence at 7:00 that evening.

The state introduced several photographs of Lakisha as well as the nurse’s discharge notes from Charity Hospital. No other evidence was introduced by the state nor did the defense offer any additional evidence in Thomas Green’s behalf.

After deliberating for less than an hour, the jury returned with a verdict convicting the defendant of cruelty to a juvenile.

The record reveals no errors patent.

DEFENDANT’S ASSIGNMENT OF ERROR

For his sole specification of error, the defendant contends that the jury failed to exclude every reasonable hypothesis of innocence and, as such, the conviction should be reversed.

In direct evidence cases, the standard of review is found in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), as adopted by Louisiana in State v. Edwards, 400 So.2d 1370 (La. 1981). The reviewing court is called upon to take the evidence in the light most favorable to the state and determine whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt on every essential element of the offense. A stricter standard of review is applied in Louisiana when a case is comprised of circumstantial evidence. LSA-R.S. 15:438 establishes the rule of circumstantial evidence: “assuming every fact to be proved that the evidence tends to prove, in order to convince, it must exclude every reasonable hypothesis of innocence.” Stated differently, “The reviewer, as a matter of law, can affirm the conviction only if the reasonable hypothesis is the one favorable to the state and there is no extant reasonable hypothesis of innocence.” State v. Shapiro, 431 So.2d 372 (La.1983).

The case at bar consists almost entirely of circumstantial evidence. Circumstantial evidence is defined as evidence consisting of “proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and experience.” State v. Jackson, 419 So.2d 837, 839 (La.1982).

LSA-R.S. 14:93 defines cruelty to juveniles as “the intentional or criminally negligent mistreatment or neglect, by anyone over the age of seventeen, of any child under the age of seventeen, whereby unjustifiable pain or suffering is caused to said child. Lack of knowledge of the child’s age shall not be a defense.”

Thus, it is necessary that the state prove the following facts, excluding every reasonable hypothesis of innocence:

1) That the defendant was over 17; and,

2) That the child was under 17; and,

3) That the child was caused unjustifiable pain or suffering; and,

4) That the defendant intentionally mistreated or neglected the victim; or

5) That the defendant was criminally negligent in his mistreatment or neglect of the child.

The record reveals that the defendant was twenty-three at the time of the offense and that the child was two. That the child was caused unjustifiable pain and suffering can be reasonably inferred by the severity of the burns and the fact that she was made to undergo reconstructive surgery on both feet. Thus we are confronted with the question of whether the state proved that the defendant intentionally mistreated or neglected the child, or was the defendant criminally negligent in his treatment or neglect of the child.

“The term ‘intentional’ as used in the statute, refers to general criminal intent, ‘present whenever there is specific intent and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.’ ” State v. Sumler, 395 So.2d 766, 769 (La.1981) citing LSA-R.S. 14:10(2).

In the instant case, the only consistent evidence produced by the state was medical testimony that the circumferential burns sustained by Lakisha Bartley indicated that the child had been placed in scalding water.

Criminal negligence is defined as such “disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.” LSA-R.S. 14:12. See State v. Barr, 354 So.2d 1344 (La.1978).

In the instant case, both medical experts ruled out the possibility that the child either stepped into the pail with both feet or that she was splashed with scalding water. The state was understandably unable to produce evidence as to the actual temperature or amount of water or duration of immersion but the serious damage which resulted was obvious.

Counsel for the defendant argues that a reasonable hypothesis exists which would exonerate the defendant. He suggests that Thomas Green attempted to bathe the child as he had seen her mother bathe all the children; that he filled the bucket with water and heated it, called the child, to be bathed, but failed to test the water.

Defense counsel directs the court’s attention to State v. Savoy, 418 So.2d 547, 551 (La.1982), wherein the Supreme Court conceded that the defendant was a “consúmate liar”. The court nonetheless reversed, stating that “the total destruction of the defendant’s credibility did not entail the creation of affirmating, substantive evidence which weighs on the side of the state ...”. The defense argues that Thomas Green’s conflicting accounts of the incident in question cannot be considered affirmative substantive proof which would support his conviction.

This argument was not accepted by the trier of fact. Our independent review of the record including a review of exhibits S-l through S-5, which indicate the severity of the burns, the depth to which the burns extend demonstrates that a jury could have reasonably concluded, to the exclusion of every reasonable hypothesis of innocence that the defendant deliberately placed and held the child’s feet in scalding water or was criminally negligent in preparing scalding water and thereafter placing the child into it without testing it.

Accordingly, for the reasons herein expressed, the conviction and sentence are hereby affirmed.

AFFIRMED.


author: AUGUSTINE, Judge. WILLIAMS, Judge,

text:
    EXPRESS PUBLISHING COMPANY, INC. v. GIANI INVESTMENT COMPANY, INC.
    No. CA-0765.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.

      Brian M. Begue, New Orleans, for plaintiff-appellee.
    Henican, James & Cleveland, C. Ellis Henican, Jr., Melanie Shaw, New Orleans, for defendant-appellant.
    Before GARRISON, AUGUSTINE, BYRNES, LOBRANO and WILLIAMS, JJ.
   AUGUSTINE, Judge.

Express Publishing Company, Inc. filed this suit against Giani Investment Company to recover $6,672.44 allegedly due on open account. The plaintiffs petition alleges that the indebtedness arises from GIA-NI’s refusal to pay for certain goods delivered to the defendant between the dates of November 30, 1981 and March 4, 1982. GIANI answered, denying that it had purchased any goods from EXPRESS on open account, and denying plaintiff’s allegation that the goods in question had been delivered.

Plaintiff subsequently filed a motion for summary judgment, attaching the sworn affidavit of Mr. Edward Randazza, the president of EXPRESS. The pertinent part of that document states:

“1. That he (Randazza) is the President and sole shareholder of Express Publishing Company, Inc., and in that capacity is familiar with the daily operations of the company;
2. That he (Randazza) personally supervised all transactions with the defendant, Giani Investment Company, Inc., which are the subject matter of this lawsuit, and swears that the merchandise was delivered as alleged, and that the payments were not made;”

The defendant, GIANI, moved to strike the plaintiffs affidavit on the ground that the allegations of fact contained therein (specifically, those concerning delivery) were not based upon the affiant’s personal knowledge, as required by Article 967 of the Louisiana Code of Civil Procedure. Before the trial court ruled on defendant’s motion to strike, plaintiff amended the affidavit to aver that:

“4. Affiant further declares that this Affidavit is based on his personal knowledge, all gathered as a result of his activities in connection with paragraphs one and two hereinabove;”

GIANI again opposed the plaintiff’s motion for summary judgment, contending that the plaintiff’s affidavit, even as amended, did not sufficiently indicate that it was based upon Randazza’s personal knowledge. The trial court disagreed, and granted judgment in favor of EXPRESS in the amount prayed for.- GIANI now appeals, again urging the insufficiency of Randazza’s affidavit.

In weighing the merits of appellant’s opposition to the plaintiff’s motion, it must be constantly borne in mind that summary judgment is a drastic remedy which should not be granted unless the moving party has established his right to judgment with such clarity as to leave no room for controversy. A motion for summary judgment should be granted if, and only if, the pleadings, depositions, admissions, and affidavits show that there is no genuine dispute as to any material fact, and that the mover is entitled to judgment as a matter of law. La.Code of Civil Proc. Art. 967; Andrew Development Corp. v. West Esplanade Corp., 347 So.2d 210 (La.1977); Santiago v. Equipment Leasing of California, 420 So.2d 209 (La.App. 4th Cir. 1982). Any doubt is resolved against the granting of summary judgment and in favor of a trial on the merits to resolve disputed facts. Employers’ Surplus Line Co. v. City of Baton Rouge, 362 So.2d 561 (La.1978); Andrew Development Corp. v. West Esplanade Corp., supra.

Regarding the use of affidavits, the requirement of La.C.C.P. Art. 967 that “affidavits shall be made on personal knowledge” has been strictly enforced: it is insufficient for an affiant to merely declare that he has “personal knowledge” of a certain fact. The affidavit must affirmatively establish that the affiant is competent to testify to the matters stated by a factual averment showing how he came by such knowledge. Barnes v. Sun Oil Co., 362 So.2d 761 (La.1978); Benoit v. Burger Chef Systems of Lafayette, Inc., 257 So.2d 439 (La.App. 1st Cir.1972); Antonio v. Barnes, 464 F.2d 584 (4th Cir.1972).

The trial court erred in finding that Randazza’s affidavit satisfied the strict requirements of Art. 967, for it is one thing for a merchant to be “familiar with the daily operations of the (plaintiffs) company” and to “supervise all transactions” with another merchant; it is something else entirely for him to personally know that a certain delivery of goods has actually taken place. “Personal knowledge” encompasses only those facts which the affi-ant saw, heard or perceived with his own senses. Atkinson v. Allstate Ins. Co., 361 So.2d 32 (La.App. 3rd Cir.1978). Randazza made no such averrments with respect to delivery of the goods in question, and reduced to its elements, his affidavit is nothing more than an allegation based upon “information and belief.” No matter how apparently reliable, “information and belief” is universally rejected as a substitute for personal knowledge and therefore cannot form the basis of a motion for summary judgment. See Benoit v. Burger Chef Systems of Lafayette, Inc., supra, and cases cited in 10A Wright, Miller & Kane Federal Practice and Procedure, 2738 (1983).

Given that the plaintiffs affidavit was fatally defective, the summary judgment in his favor is hereby vacated and the case is remanded for further proceedings. Costs of this appeal are to be borne by the plaintiff.

REVERSED and REMANDED.

WILLIAMS, J., dissents with reasons.

WILLIAMS, Judge,

dissenting.

I would hold that the amended affidavit was adequate. The majority opinion severely and unrealistically limits the use of affidavits in summary judgment proceedings.

      . La.C.C.P. Art. 967 states, in pertinent part:
      "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”


author: AUGUSTINE, Judge.

text:
    SUCCESSION OF Mrs. Marie Theresa DUVIO, Divorced Wife by First Marriage of Jacob Zechenelly, and Divorced Wife by Second Marriage of Joseph Dee.
    No. CA-1025.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.
    Writ Denied June 1, 1984.

      Steven K. Faulkner, Jr. of Morphy, Faulkner & Dimaria, Metairie, for defendant and plaintiff in reconvention-appellant.
    Thomas E. Papale, Marksville, for defendant and plaintiff in reconvention-appel-lee.
    Fernand F. Willoz, III, New Orleans, for substituted parties plaintiff-appellee.
    Before AUGUSTINE, BYRNES and WARD, JJ.
   AUGUSTINE, Judge.

Appellee, Robert J. Duvio, Sr., individually and as testamentary executor for the estate of his mother, Mrs. Marie Duvio, brought this action for collation against his brother Maurice Duvio and his half-sister Mrs. Shirley Osment. Subsequently both Maurice Duvio and Shirley Osment filed reconventional demands and third party demands claiming that collation was due from each other and from Robert Duvio. A judgment was rendered in the trial court ordering Shirley Osment to collate $14,-875.78 to the succession of her mother. Mrs. Osment appeals from that judgment. We affirm.

Mrs. Marie Duvio died in 1977 leaving 3 heirs: two sons from her first marriage, Robert and Maurice Duvio, and one daughter from her second marriage, Shirley Osment. During her lifetime Mrs. Duvio gave two gifts of money to her daughter. Those gifts are the subject of this appeal. The first gift Mrs. Osment received was in 1957 in the amount of $5,000 which constituted Mrs. Duvio’s share of the community property from her second marriage to Joseph Dee. In addition, in 1970 Mrs. Duvio withdrew $9,875.78 from her savings account and gave it to her daughter.

The decedent disposed of her estate by a statutory will dated March 13, 1968 which states in pertinent part, “I leave to my children, Robert Duvio, Sr., Maurice Zen-chenelly, also known as Maurice Duvio, and Shirley Dee, wife of Harry Osment all of the property which I may die possessed, both real and personal to be shared among them equally, share and share alike.” In the course of closing the succession an action was brought by Robert Duvio for collation. As a result, the trial court ordered Shirley Osment to collate the total of the two gifts of money, or $14,875.78.

On appeal Mrs. Osment claims that she does not have to collate the gifts of money because those gifts were an extra portion which were dispensed from collation by her mother’s will.

Collation, i.e., the “return to the mass of the succession which an heir makes of property which he received in advance of his share_” La.Civ.Code art. 1227, “is always presumed, where it has not been expressly forbidden.” La.Civ.Code art. 1230. “But ... things ... shall not be collated, if the donor has formally expressed his will that what he thus gave was an advantage or extra part.” La.Civ. Code art. 1231.

There are two methods of declaring the dispensation from collation. The first method of dispensation from collation is express. “The declaration ... may be made, not only in the instrument where such disposition is contained, but even af-terwards by an act passed before a notary and two witnesses.” La.Civ.Code art. 1232. “The declaration that the gift ... is intended as an ... extra portion may be made in other equivalent terms provided they indicate, in an unequivocal manner, that such was the will of the donor.” La. Civ.Code art. 1233.

In Succession of Gomez, 223 La. 859, 67 So.2d 156, 163 (1953) the court established a second method for indicating the dispensation from collation.

[W]e could hold that the donor’s intent to dispense collation of a manual gift could be established by the facts and circumstances of the case. Under this latter holding the donee would have the burden of establishing the intent to dispense by strong and convincing proof so as to overcome the presumption of collation

The Gomez rationale has been followed in the more recent case of Succession of Skye, 417 So.2d 1221 (La.App. 3rd Cir. 1982). In Skye the issue was whether a check made payable to the plaintiff by the decedent in the amount of $10,000 was subject to collation. The plaintiff introduced into evidence a birthday card and several letters written by the decedent in which the decedent clearly and unequivocally stated that the plaintiff was being given the $10,000 because the decedent had given many gifts to her other children. The Skye court held that by that evidence the donee had clearly and convincingly proven that the decedent intended to dispense from collation the $10,000 gift.

In accord with Skye, Mrs. Osment would have us hold that her mother dispensed with the collation of the cash gifts she gave to the appellant by means of the phrase in the decedent’s will, “all of the property which I may die possessed.” The appellant contends that by that phrase, Mrs. Duvio intended that her three children share only the property which she actually possessed at the time of death. We cannot agree with that contention. The phrasing of the decedent's will does not unequivocally dispense with collation. Furthermore, there was no other evidence submitted at trial which showed any intention on the part of Mrs. Duvio to exempt the gifts to Mrs. Osment from collation.

For the foregoing reasons we believe that Mrs. Duvio’s gifts to Shirley Osment in the amount of $14,875.78 must be collated. The decision of the trial court is hereby affirmed.

AFFIRMED.


author: BYRNES, Judge. REDMANN, Chief Judge,

text:
    Laura R. Kramer, wife of/and Jerome KRAMER v. DENNY’S INC. OF CALIFORNIA et al.
    No. CA 1381.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.

      Rene A. Curry, Jr., New Orleans, for plaintiff-appellee.
    William G. Tabb, III, Kimberly A. Diamond, New Orleans, for defendant-appellant.
    Before REDMANN, C.J., and KLEES and BYRNES, JJ.
   BYRNES, Judge.

This is an appeal from a judgment in favor of appellant Laura Kramer, and against Denny’s Inc. of California (hereinafter Denny’s) for injuries she received as a result of a fall in a Denny’s parking lot. We affirm.

On December 19, 1980, Mrs. Kramer and her husband ate at the Denny’s Restaurant in Metairie, Louisiana. As they left the restaurant the Kramers followed the sidewalk leading to the parking lot where their car was parked. This area was landscaped with plants and “lava rocks” which were used as a decorative ground covering. As Mrs. Kramer stepped down from the sidewalk onto the parking lot surface, she slipped on a lava rock and fell to the ground, injuring her ankle and mouth. This suit followed.

The liability of Denny’s in this situation is predicated on its duty to customers. That duty has been expressed in Bolin v. National Tea Co., 359 So.2d 690, 691 (La. App. 1st Cir.1978), writ denied 362 So.2d 577 (La.1978) as follows:

... A store keeper although not the insurer of the safety of his patrons, is required to exercise reasonable care to keep the aisles in his store in a safe condition, and must make a reasonable effort to keep the floor free of objects or substances which might cause someone to slip and fall. Once a customer has shown that there was a foreign substance on the floor which caused him to slip and fall and that he was injured as a result, a presumption that the store keeper was negligent arises. The storekeeper then has the burden of exculpating himself from the presumption, which he can do by proving that he was reasonably prudent in his effort to keep the floors in a reasonably safe condition and free from foreign objects and substances. Citing Kavlich v. Kramer, 315 So.2d 282 (La.1975). In addition, a storekeeper has a duty to keep areas away from display areas, such as a parking lot, in a reasonably safe condition, and may not permit hazardous conditions of which he has actual or constructive notice to exist; however, a patron in such area is charged with using reasonable care for his own safety and must see and avoid obvious hazards.

Denny’s introduced evidence at trial to show that it kept the parking lot in a reasonably safe condition by means of a regular schedule of clean up and inspections. The manager of the Denny’s testified that an inspection and/or clean up was conducted at regular intervals during a 24 hour period and that in addition, all employees were under general instructions to pick up debris in the parking lot when it was observed. A waitress corroborated this testimony. The manager further testified that the last inspection prior to Mrs. Kramer’s accident was conducted at approximately 5:00 p.m. However, no records were produced showing, a regular schedule of inspection and clean up. Moreover, photographs were introduced showing numerous lava rocks out of their beds and on the parking lot, indicating that clean up procedures were not adequate.

The trial judge did not feel the evidence offered by Denny’s was sufficient to exculpate it from the presumption of negligence which arose when Mrs. Kramer established that she slipped and fell on a foreign object in its parking lot. We cannot say that this conclusion was manifestly erroneous and therefore will not disturb it.

Appellant also contends that Mrs. Kramer’s negligence in not looking where she was going was the cause of her injury. We do not agree. At trial both the manager of the restaurant and a waitress testified concerning the circumstances surrounding the accident. While their testimony was not identical, they indicated that the accident took place at approximately 5:30 P.M. All witnesses agreed that it was dusk when the accident occurred.

There was some dispute as to whether the lights in the parking lot were illuminated at the time of the accident. The manager of the restaurant testified that the lights were functional at the time but could not testify that they were actually illuminated at the time Mrs. Kramer fell. Both Mr. and Mrs. Kramer testified that the lights were not on.

The record established that the rock which caused the accident was near the edge of the curb separating sidewalk from parking lot, and was therefore not readily observable, particularly by the Kramers who approached from the sidewalk side of the curb. The height of the curb would tend to obscure a pedestrian’s view of objects near the edge. Given the time of day and the position of the rock we conclude that a reasonably prudent person would not have been able to observe it. We therefore agree with the trial judge that Mrs. Kramer was not negligent.

For the foregoing reason the judgment below is affirmed at appellant’s cost.

AFFIRMED.

REDMANN, C.J., concurs with reasons.

REDMANN, Chief Judge,

concurring.

I doubt that self-service store standards are applicable, but I concur in the decree because of the foreseeability that defendant’s own loose lava rocks could easily be displaced by customers onto pathways where other customers might stumble on them.


author: BYRNES, Judge.

text:
    Joyce Cauvin HOCKE v. Leslie G. HOCKE.
    No. CA 1422.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.
    Writ Denied June 1, 1984.
    Neil C. Hall, III, Metairie, for defendant-appellee.
    Satterlee, Mestayer & Freeman, A.D. Freeman, New Orleans, for plaintiff-appellant.
    Before REDMANN, C.J., and KLEES and BYRNES, JJ.
   BYRNES, Judge.

This is a separation action. Plaintiff-Appellant Joyce Cauvin Hocke, appeals from a judgment of separation in the Civil District Court, Orleans Parish, decreeing mutual fault.

Joyce Hocke and Leslie Hocke were married on July 14, 1951. They lived in the same home until Mr. Hocke moved out of the matrimonial domicile on June 23, 1982. However, sometime in 1975 Mr. and Mrs. Hocke ceased having sexual relations when Mr. Hocke moved out of their bedroom and onto the couch. He later moved into his child’s bedroom.

Approximately one month after Mr. Hocke left the house Mrs. Hocke filed a petition for separation from bed and board on grounds of mental and physical cruelty. Mr. Hocke answered and reconvened praying for separation on similar grounds.

The case was tried before a judge in May 1983. On June 3, 1983 judgment was rendered granting the separation and finding the parties to be mutually at fault. Plaintiff has perfected this appeal.

ASSIGNMENT OF ERROR

Appellant contends that the trial judge abused his discretion in finding her at fault.

MUTUAL FAULT

The record before us clearly establishes the fact that Mr. & Mrs. Hocke did not get along very well. Particularly during the five years that they did not sleep in the same bedroom. Testimony by both parties sets forth instances of bickering, physical violence, and public humiliation. Mrs. Hocke embarrassed her husband in public, occasionally refused him sex, and provoked arguments. The record also establishes that Mr. Hocke actively participated in these arguments and, on at least one occasion struck appellant, who was 59 years old when the action was brought. In short the atmosphere in the Hocke household was nearly intolerable.

It is well settled that on review, findings of fact and issues involving the credibility of witnesses are accorded great weight and will not be disturbed absent a showing that they are manifestly erroneous. Pearce v. Pearce, 348 So.2d 75 (La. 1977).

While we can feel sympathy for appellant’s situation the trial judge apparently felt that the evidence of bickering and mental if not physical abuse by both parties warranted a finding of mutual fault. A review of the record clearly supports this conclusion.

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

Costs of this appeal to be borne by appellant.

AFFIRMED.


text:
    Leonard GORDON v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, Pennsylvania Budget Rent-A-Car of New Orleans, Inc., Homer Brister, Snee Lumber Co. and the XYZ Insurance Company.
    No. CA 1352.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.

      Peter F. Liberto, New Orleans, for plaintiff-appellee.
    Edward J. Rice Jr., F. Lee Butler, New Orleans, for defendants-appellants.
    Before REDMANN, C.J., and KLEES and BYRNES, JJ.
   BYRNES, Judge.

Leonard Gordon, plaintiff-appellee, was injured while a guest passenger in an automobile involved in an accident on June 28, 1978. Plaintiff originally filed suit in Civil District Court, Orleans Parish, against his employer, Budget Rent-A-Car, [“Budget”], Budget’s liability insurer, National Union Fire Insurance Company, [“National”], the driver of the other vehicle and his employer. The case was tried before a jury and at the close of plaintiff’s case the judge granted motions for directed verdict dismissing all defendants. Plaintiff appealed and this court affirmed the dismissals as to all defendants except National and remanded the case to determine National’s liability. See Gordon v. National Union Fire Insurance Co., 411 So.2d 1094 (La.App. 4th Cir. 1982).

On remand, the jury found that the plaintiff was outside the course and scope of his employment when the accident occurred and awarded him $55,000.00 in damages. National filed a motion for a judgment notwithstanding the verdict which was denied. The court adopted the jury’s verdict and National perfected this appeal. We affirm.

ASSIGNMENT OF ERROR

National contends that the jury’s findings regarding course and scope of employment were manifestly erroneous because they were against the weight of the evidence.

FACTS

Plaintiff was employed by Budget as a car hiker. His job involved taking Budget’s cars to and from repair shops and other Budget locations. On June 28, 1978 the plaintiff and a co-employee were told by their supervisor to use a company car, which was strictly against company policy, to get lunch, and bring a sandwich back for the supervisor as a favor. Plaintiff had not planned to eat lunch on that day because he had no transportation. Shortly after they left Budget an intersectional collision with a tractor-trailer occurred, killing the coemployee who was driving, and seriously injuring plaintiff.

As previously stated, it is plaintiff’s contention that he was on lunch break when the accident occurred. National maintains that plaintiff was told to pick up a car as well as lunch for his supervisor.

COURSE AND SCOPE

The only issue herein is whether the jury’s finding that Gordon and his fellow employee were not in the course and scope of their employment when the accident occurred, was erroneous. If we find the jury’s conclusions to be erroneous then plaintiff’s sole remedy would be under the Workers’ Compensation statutes.

Generally, where an employee takes his lunch hour away from his job at a place of his own choice it is assumed that his lunch hour is his own time and that where he eats is not effected by the nature of his job. See Malone, Louisiana Civil Law Treatise, Vol. 13 Sec. 163 (1980). However, the surrounding circumstances must be reviewed to determine whether this general rule applies. These circumstances include:

When the accident occurred, if it occurred on or off the company premises, was the accident a risk of employment, whether the employee was paid at the time of the accident, was the employee’s activity at the direction of or in the interest of the employer.... The proper question here is to ascertain if plaintiff was on his own time merely accommodating his supervisor or was plaintiff acting at the direction of his supervisor. Gordon v. National Union Fire Insurance Co., Supra at 1098.

In the case at bar Nolan Darby, plaintiff’s supervisor, testified that he sent plaintiff and his co-employee to retrieve a Budget car from a repair shop and to get lunch. He also asked them to bring back a sandwich for him. Plaintiff testified that they were only asked to bring back a sandwich as a favor to their supervisor and that there was nothing work related as suggested by Darby. Further, plaintiff punched out before leaving the premises so he was apparently not on company time. The defense presented evidence suggesting that plaintiff punched back in 2 minutes after he left Budget. Plaintiff stated that he did not.'

It is well settled that on review we are mandated to uphold the findings of fact and credibility determinations of the trier of fact absent a showing that such findings are not reasonably based upon the facts presented at trial. Arceneaux v. Dominique, 365 So.2d 1330 (La.1979) and Brown v. McDonald’s Corp., 428 So.2d 560 (La.App. 4th Cir.1983). The same standard of review is applied to a jury’s findings, particlarly when those findings involve credibility evaluations. Stevens v. Allstate Insurance Co., 428 So.2d 834 (La.App. 5th Cir.1983). The jury apparently found the plaintiff to be more credible. We cannot say, from the record before us, that the jury’s findings in this regard were manifestly erroneous.

CONCLUSION

Since plaintiff was not on company time and was not performing work related duties when the accident occured, we affirm the finding that he was outside the course and scope of his employment.

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

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

AFFIRMED.


text:
    STATE of Louisiana v. James N. PRUITT.
    No. KA 1522.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.

      William Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Connick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    John W. Porterfield, Baton Rouge, for defendant-appellant.
    Before REDMANN, C.J., and KLEES and BYRNES, JJ.
   BYRNES, Judge.

Defendant was charged by bill of information, with committing a crime against nature in violation of LSA-R.S. 14:89(A)(2), by soliciting oral sex from a female undercover assistant district attorney. He was found guilty as charged by a six member jury and sentenced to 2 years in parish prison with credit for time served. The sentence was suspended and he was placed on one year’s active probation, fined $1,000.00 plus $74.00 court costs and ordered to stay out of the French Quarter.

On appeal defendant makes one assignment of error. He contends that the trial court erred in disallowing expert testimony as to whether or not oral sex between a man and a woman was unnatural.

FACTS

On February 9, 1983 Jenifer Olinde, an assistant district attorney, was assigned to do undercover work in the French Quarter. She was backed up by two police officers. Olinde was standing on the corner of St. Ann and Dauphine when the defendant, James Pruitt, stopped his truck and motioned to her. He opened the door and asked Olinde to get in the truck. The defendant then asked Olinde if she was working to which she replied yes. Pruitt then offered Olinde twenty-five dollars to have oral sex with him. Olinde then gave a signal to the back up officers and they came to the truck and arrested Pruitt for solicitation “with the intent to engage in unnatural carnal copulation for compensation”. LSA-R.S. 14:89(A)(2).

Defendant argues that his expert witness should have been allowed to testify regarding the definition of unnatural carnal copulation. At trial the defendant attempted to prove that oral sex between a man and a woman was not unnatural and thus could not constitute a crime against nature.

Defendant had subpoened Dr. Ray Swann as an expert witness on this issue. Counsel for defendant was forced to ask for a continuance when Dr. Swann, was taken ill and hospitalized for emergency surgery. The state then made an oral motion in limine seeking to prohibit Dr. Swann from testifying. The court ordered both sides to file briefs and subsequently granted the state’s motion. We reverse.

RS 14:89 defines crime against nature as; The unnatural carnal copulation by a human being with another of the same sex or opposite sex or with an animal, except that anal sexual intercourse between two human beings shall not be deemed as a crime against nature when done under any of the circumstances described in R.S. 14:41, 14:42, 14:42.1 or 14:43. Emission is not necessary; and, when committed by a human being with another, the use of the genital organ of one of the offenders of whatever sex is sufficient to constitute the crime.
2. The solicitation by a human being of another with the intent to engage in any unnatural carnal copulation for compensation. (Emphasis added)

The term unnatural carnal copulation has been given meaning by judicial interpretation rather than by legislation. It is this jurisprudential definition of the term which has enabled R.S. 14:89 to withstand constitutional attacks based on vagueness. See State v. Phillips, 365 So.2d 1304 (La.1979) and State v. Bonnano, 245 La. 1117, 163 So.2d 72 (1964). However, a review of reported cases dealing with the scope of the offense of crime against nature has revealed that none have dealt with the factual situation presented by the present case. Indeed it appears that all previously reported cases dealing with this crime involved homosexual encounters. Thus any statement in prior cases which purported to include heterosexual oral sex in the definition of unnatural carnal copulation would be dicta and not controlling in this case.

We have concluded that fairness to the defendant requires that he be given the opportunity to present expert testimony concerning whether or not oral sex between a man and a woman is unnatural. The expert testimony of Dr. Swann would have been both relevant and material. By denying defendant the opportunity to present this testimony he has been effectively denied his right to present a defense.

For the foregoing reasons defendant’s conviction is reversed and his case remanded for a new trial not inconsistent with this opinion.

REVERSED AND RENDERED.

REDMANN, C.J., dissents in part with reasons.

REDMANN, Chief Judge,

dissenting in part.

If the question whether heterosexual fellatio is “unnatural carnal copulation” is a question of law, then defendant may not introduce evidence on the question.

If that question is not one of law but of fact, then defendant need not introduce evidence because the district attorney did not. Defendant does not have the burden of proving his innocence.

Thus defendant either may not, or need not, introduce evidence on the naturalness of fellatio.

Defendant’s conviction should nevertheless be reversed. Defendant has not been proven guilty of the charge of crime against nature within La.R.S. 14:89 A(2):

“Crime against nature is:
“(2) The solicitation by a human being of another with the intent to engage in any unnatural carnal copulation for compensation.” (Emphasis added.)

The evidence in this case is that defendant, driving a small truck, five times passed the French Quarter corner on which a female assistant district attorney stood in the rain at 9:30 p.m. (“I imagine,” she testified, her actions gave her the “appearance of being a street-walker”.) On a sixth pass, defendant finally stopped, “rolled down his window and asked me to come over_ I walked over there _ And he asked me, he said ‘Are you working?’ And I said, ‘Yes.’ And he said, ‘I’ll give you $25 for a blow job.’ ”

There is no evidence that defendant either solicited, or had the intent to engage in copulation, for compensation. A solicitor who intends to engage in copulation for compensation intends to be paid for sex, not to pay for sex. The statute does not read “solicitation of another to engage in” sex for compensation, but “solicitation ... of another with the intent [on the part of the soliciter] to engage in” sex for compensation.

The pari materia statute on prostitution, R.S. 14:82, is instructive both because it uses the same “for compensation” phrase and because its definition (like that of crime against nature) includes not only (a) the completed act but also (b) the solicitation for the act:

“Prostitution is:
“(a) The practice by a person of indiscriminate sexual intercourse with others for compensation.
“(b) The solicitation by one person of another with the intent to engage in indiscriminate sexual intercourse with the latter for compensation.”

That prostitution statute was amended in 1977 to be gender-neutral in the sense that it penalizes both male and female prostitutes. But the statute was not made gender-neutral in the sense that it would penalize both a prostitute of either gender and a customer of either gender (whatever the moral rightness of treating both similarly). The statute penalizes only the prostitute and not the customer. Only the prostitute engages in the “practice ... [of] intercourse ... for compensation.” Only the prostitute engages in “solicitation ... with the intent to engage in ... intercourse ... for compensation”-, only solicitation to sell is defined as prostitution by the statute.

Similarly, the legislature defines only solicitation to sell as crime against nature in R.S. 14:89 A(2). The statute penalizes “solicitation ... with the intent to engage in unnatural carnal copulation for compensation,” for pay. Only an offeror-to-sell solicits with the intent to engage for compensation; only solicitation to sell meets the statutory definition of crime against nature.

The evidence is not that defendant asked the female assistant district attorney to pay him to let her perform fellatio upon him, but that he offered to pay her for that performance. That is not crime against nature as defined by La.R.S. 14:89 A(2).

Perhaps it should be. But whether or not it should be is a question for the legislature, and not for the courts.

Defendant’s conviction should be reversed and he should be ordered discharged.


author: CIACCIO, Judge.

text:
    In re Gayfryd Dorothea McNabb JOHNSON Application for Separation of Property.
    No. CA 1232.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.
    George J. Kambur, New Orleans, for1 appellant.

      Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, William H. Cook, Jr., New Orleans, for appellee.
    Before CIACCIO, LOBRANO and WARD, JJ.
   CIACCIO, Judge.

Gayfryd Dorothea McNabb Johnson petitioned the district court for an order separating the property and terminating the community property regime between her and her husband, Norman LaBaume Johnson. Norman L. Johnson made no appearance in this proceeding. Ultimately the district court rendered a default judgment ordering a separation of property and a termination of the community property regime.

Norman L. Johnson requested the district court to allow him to appeal suspen-sively from the default judgment. The district court denied him a suspensive appeal, but granted him a devolutive appeal. He perfected his appeal in this court and assigned the following two errors to the actions of the trial court. (1) The default judgment was erroneously entered because he had never been cited nor waived citation, and without citation the proceedings are absolutely null; and (2) the trial court erroneously denied him a suspensive appeal.

In this court, Gayfryd Johnson filed a motion to dismiss the appeal on the ground that appellant’s proper remedy, if he neither received nor waived citation, is by an action in nullity, and not by appeal. We agree.

This identical issue has been addressed previously by the courts of this state. The following exerpt from the opinion of the Third Circuit Court of Appeal in McMickens v. McMickens, 386 So.2d 972 (La.App. 3d Cir.1980), is both comprehensive and directly relevant to the issue, and we adopt it as our reasoning in this case.

Insufficiency of citation is an objection which must be raised through the decli-natory exception and is waived if the defendant makes a general appearance. ■The declinatory exception must be pleaded prior to answer or judgment by default. LSA-C.C.P. Article 925 and 928. LSA-C.C.P. Article 2001 provides:
“The nullity of a final judgment may be demanded for vices of either form or substance, as provided in Articles 2002 through 2006.”
LSA-C.C.P. Article 2002 provides in pertinent part as follows:
“A final judgment shall be annulled if it is rendered:
(2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance.”
The official comments to this article state in part:
“(d) The above article covers judgments rendered in cases where there was no citation at all, cases involving defective citation, and cases where the defendant did not effect a waiver of service and citation by making a general appearance.”
In light of the cited articles we conclude that appellant’s remedy, if he be aggrieved by the judgment rendered in this case is by way of a suit for nullity of judgment and not by appeal.
In Michigan Wisconsin Pipe Line Co. v. Sugarland Development Corporation, 221 So.2d 593 (La.App. 3rd Cir.1969), writ refused 254 La. 469, 223 So.2d 872, we stated:
“the alleged insufficiency of the citation or statutory notice (LSA-R.S. 19:5), not questioned by declinatory exception, cannot be questioned on appeal. LSA-C. C.P. Art. 925: Tenneco Inc. v. Earhart, La.App.3d Cir., 220 So.2d 109 (1969); Michigan Wisconsin Pipe Line Co., La. App.3d Cir., 217 So.2d 741.:
In Boyce Machinery Corporation v. Interstate Paving Corporation, 356 So.2d 505 (La.App. 1st Cir.1977), the court refused to consider an appeal from a default judgment where the only issue raised concerned sufficiency of service of process on defendant and stated:
“Appellant ‘attacks the validity of the judgment based on the insufficiency of the service of process’ its remedy is by a suit to annul the default judgment and not by appeal. C.C.P. Arts. 925 and 928; Crescent Welding Supply Co. v. Harding, 197 So.2d 405 (La.App. 4th Cir. 1967) ...”
Supportive of the conclusion which we reach is the case of Dicta Realty Associates v. Conrad, 230 So.2d 595, (La.App. 4th Cir.1970), which holds to the effect that a motion for new trial, amounting to a declinatory exception of insufficiency of service of process made after granting of a default judgment, is without merit, the sole remedy being a suit to annul the judgment.

Counsel for Mr. Johnson argues that the McMickens case and the other cases cited therein are distinguishable from the situation presented by the instant appeal. The distinction relied upon is that McMickens and the other cases involved appeals where the sole issue concerned citation. Counsel argues that the issues he raises concerning a suspensive appeal and entitlement to in-junctive relief render this appeal one which should not be dismissed.

The suspensive appeal issue is not affected by the decision of whether the appeal is dismissed. If the appeal is dismissed because an appeal is the improper vehicle to assert appellant’s claim, then whether appellant is entitled to a suspensive appeal is moot. If the appeal is not dismissed, by the time this court renders its opinion, the suspensive appeal issue becomes moot.

Counsel for appellant also raises an issue in brief concerning appellant’s right to injunctive relief under La.C.C.P. art. 3944. This article makes injunctive relief available to “either party to an action for separation from bed and board or divorce”. The instant suit is not one of these actions; La.C.C.P. art. 3944 is inapplicable. Further, we find nothing in the record to indicate that Norman L. Johnson ever sought such relief in the district court. He may not now seek injunctive relief for the first time on appeal.

In any event, neither of these two issues creates a distinction which will save this appeal from dismissal. Accordingly, this appeal is dismissed. All costs in connection with this appeal are to be paid by appellant, Norman L. Johnson.

APPEAL DISMISSED.


text:
    STATE of Louisiana v. Marcus T. FOSS.
    No. CA 1358.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.

      Kenneth V. Ward, Jr., Metairie, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., Charles Spinuzza, Asst. Dist. Atty., New Orleans, for the State.
    Before CIACCIO, LOBRANO and WARD, JJ.
   CIACCIO, Judge.

Defendant was charged in the Juvenile Court for the Parish of Orleans with criminal neglect of family, La.R.S. 14:74. He now appeals from a judgment ordering him to make semi-monthly child support payments. La.R.S. 14:75. Defendant has specified four assignments of error all of which concern the trial judge’s ruling which construed a certain document as an act of acknowledgement. We affirm the action of the trial court.

The document in question is entitled “Act of Legitimation”. It is signed by the defendant, the mother of the child, two witnesses and a notary. The document indicates that defendant appeared before the notary and declared under oath that he was the father of the child.

At trial defendant presented evidence that at the time he executed the act of legitimation he had a legitimate descendant. Under La.C.C. Art. 200, prior to its amendment in 1983, the existence of a legitimate descendant was a legal impediment to defendant’s legitimating this child. Defendant argues, therefore, that the document is invalid as a legitimation.

The trial judge recognized that the document “is defective as a legitimation” but ruled it “nonetheless, serves as a formal acknowledgement of the minor child.” We agree.

The pertinent language from the document is as follows:

PERSONALLY CAME AND APPEARED: Marcus T. Foss, presently residing at 815 Frenchman St., N.O. La., who was born in Brawley, Calf., that his age at the time of the birth of the above named child was 26 and that his race is white, who declared to me, Notary, under oath that he is the father of the child born on Aug. 11, 1980, whose mother is Patricia A. Moolekamp and whose birth is registered in the records of the Parish of Orleans under the name of Gabrielle Mary Madonna Moolekamp, that it is the appearer’s intention to legitimate and he does here by so legitimate said child, in accordance with Civil Code, Article 200.

The method for acknowledging an illegitimate child is provided in La.C.C. Art. 203.

Art. 203. Methods of making acknowl-edgement
The acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in the presence of two witnesses, by the father and mother or either of them, or it may be made in the registering of the birth or baptism of such child.

The “Act of Legitimation” executed by the defendant is a “declaration executed before a notary public, in the presence of two witnesses.” This document satisfies all of the requirements for a formal act of ac-knowledgement under La.C.C. Art. 203, cf. Escort v. Lafargue, 142 So.2d 549 (La.App. 4th Cir.1962) and Haynes v. Cargo, 422 So.2d 267 (La.App. 4th Cir.1982). The external legal impediment, i.e. defendant’s legitimate descendant, which prevented defendant from executing a valid legitimation did not interfere with the execution of a formal acknowledgement. The trial judge correctly ruled that the “Act of Legitimation” constituted a formal act of acknowl-edgement.

Defendant also argues that the criminal proceedings were improperly converted into a paternity hearing. We do not agree.

Defendant was charged with having violated La.R.S. 14:74. One of the elements which the State must prove is a pre-exist-ing civil liability on the part of defendant to support the minor child. In the case of an illegitimate child this element may be established in one of two ways, viz. by an acknowledgement before a notary public and two witnesses, or by a judgment establishing paternity. State v. Mack, 224 La. 886, 71 So.2d 315 (1954); State v. Braxton, 238 La. 13, 113 So.2d 292 (1959).

In this case the State offered the “Act of Legitimation” as proof of defendant’s preexisting civil liability to support the minor child. The trial court ruled, and we have affirmed, that the “Act” constituted a formal acknowledgement, by defendant, of the child. This procedure constitutes a necessary part of the State’s case at trial. It does not improperly convert the criminal proceedings into a paternity suit. This contention by defendant is without merit.

Defendant has also assigned as error the admission into evidence of the “Act of Legitimation.” Counsel for defendant argues in brief the incorrectness or absence of certain information in the document. The authenticity of the document, however, is not attacked. Most importantly, defendant did not object to the admission of the document at trial, and therefore, he may not raise this objection for the first time on appeal. This assignment is without merit.

Lastly defendant argues that the trial court erred by ignoring his testimony that he signed the “Act of Legitimation” under duress. Defendant testified that he signed the document after having first discussed the situation with his lawyer. The extent of defendant’s testimony concerning duress concerned the family of the child’s mother imploring him “to do the right thing.” He testified to an absence of threats or violence. The trial judge apparently concluded that defendant did not execute the document under duress. Our review of the record has not disclosed any reason to reach a different conclusion.

Accordingly, the judgment appealed from is affirmed. All costs are to be paid by defendant-appellant.

AFFIRMED.