text:
    Louis VELEZ, Jr., Individually and as Administrator of the Estate of His Son, Marc Velez v. SENTRY INSURANCE COMPANY, Strauss Fuchs Organization, Inc., United Employers Insurance Trust.
    No. CA-1036.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.

      Herman, Herman & Katz, Fred L. Herman, New Orleans, for plaintiff-appellee.
    Dodge, Friend, Wilson & Spedale, Gordon F. Wilson, Jr., New Orleans, for defendants-appellants.
    Before GULOTTA, GARRISON and LO-BRANO, JJ.
   GULOTTA, Judge.

This appeal involves the question of plaintiff’s entitlement to health and accident insurance benefits for mental illness expenses incurred on behalf of his son in the stipulated amount of $28,076.65.

Louis Velez, Jr., an employee of Ricca Demolishing Co., Inc., was covered by a group policy obtained by Strauss Fuchs Organization, Inc. (SFO), administrator of United Employers Insurance Trust (Trust).

In August, 1971, when Ricca joined the Trust, coverage was afforded by Hartford Life Insurance Company. In 1973, American Republic Insurance Company replaced Hartford. Plaintiff’s son had a history of mental illness and was paid by the insurers for expenses incurred in connection with that illness.

In February, 1975, Sentry Life Insurance Company was named as the insurance carrier for the Trust’s group hospitalization programs. However, Sentry refused payment of the expenses of the son’s hospitalization for mental disorders from May, 1976 to July, 1977. The basis of this denial was the $10,000.00 maximum benefit for mental disability provided for in the Sentry policy.

Plaintiff settled his claim against Sentry and directed this suit against the Trust and its administrator for the remaining stipulated medical expenses incurred. From a judgment in favor of plaintiff in the sum of the stipulated expenses, SFO and the Trust appeal.

In clear, concise reasons for judgment, the trial judge stated:

“The Court finds that the defendants had an obligation to clearly point out a change in the coverage for mental illness which provided for less coverage.
“The Court finds that the defendants failed to adequately notify Mr. Velez of this reduction in benefits.”

Defendants raise three arguments on appeal. The first is that Missouri law applies since the Trust is a Missouri corporation, and administers a plan under the laws of Missouri on an insurance policy delivered to it in that state. In this connection, defendants claim that Missouri in 1976 and 1977 did not have a statute similar to LSA-R.S. 22:213.1 and 2 (now LSA-R.S. 22:669), which provides that an insurer of group health and accident insurance shall provide the same limitations of coverage for mental illness as for other benefits.

Defendants’ second contention is that, assuming the Trust and the administrator had a duty to notify the beneficiary of the reduction in mental health benefits, the trial judge erred in finding that no notice was given.

Finally, defendants claim that plaintiff failed to prove the Trust or the administrator breached any duty concerning the Louisiana statutory requirements of mental disorder coverage in the policy. According to defendants, if the policy did not comply with LSA-R.S. 22:213.1 and 2, plaintiff’s sole remedy is against the insurer alone, not defendants, to have the policy reformed to increase coverage for mental disorders to an amount equal to those for other disabilities.

Because we find no merit to defendants’ contentions, we affirm.

CONFLICT OF LAWS

We reject defendants’ assertion that plaintiff’s claim is governed by the laws of the state of Missouri. Both plaintiff and his employer are residents of Louisiana. Although the Trust was created in Missouri where its administrator is also located, the coverage is on Louisiana residents and the insurance contract was issued for delivery in this state.

LSA-R.S. 22:629 provides that no insurance contract delivered or issued for delivery in this state covering Louisiana residents shall contain any condition, stipulation, or agreement requiring that the contract be construed according to the laws of any other state, (except as necessary to meet the requirement of the motor vehicle financial responsibility law of such other state), or contain a condition or stipulation depriving the courts of this state of jurisdiction against the insurer.

Although this action is not against the insurer, this suit seeks recovery by a Louisiana resident on a policy of insurance delivered in Louisiana by a Trust through its administrator, which had the responsibility of providing group health and accident benefits to these Louisiana residents. Indeed, this court looks unfavorably upon an argument (raised by a nonresident provider of insurance to residents of this state) that seeks to circumvent the protective legislative enactments governing non-resident insurers and providers of insurance when those non-residents offer coverage in this state and receive premiums from Louisiana residents.

We are in accord with the decisions of our brothers in the Second Circuit in Johnson v. Nationwide Life Ins. Co., 388 So.2d 464 (La.App. 2nd Cir.1980) and the Third Circuit in Casey v. Prudential Ins. Co. of America, 360 So.2d 1386 (La.App. 3rd Cir.1978), writ denied 363 So.2d 536 (La.1978), which held insurance policies similar to the one in the instant case to be governed by Louisiana law and not Missouri law.

Accordingly, we hold Louisiana law applies to the instant case.

NOTICE

LSA-R.S. 22:215(A)(3)(g) provides that a certificate of insurance shall disclose the benefits, limitations, exclusions and reductions contained in the policy. See also Greer v. Continental Cas. Co., 347 So.2d 70 (La.App. 2nd Cir.1977).

As a provider of insurance benefits, the Trust and its administrator, in their capacity as agent for both the insurer and the employer, are clothed with the same responsibility of notice required of insurers. Indeed, the communications from the Trust to the employer-beneficiaries informing them of periodic change in underwriters is recognition of this responsibility (and that of the administrator) to inform the beneficiaries regarding coverage. Despite defendants’ recognition of that responsibility, they failed to give notice to plaintiff of the diminished benefits for mental health costs.

In the first insurance coverage provided by Hartford Insurance Company, there was no $10,000.00 limitation for psychiatric services. In a May 11,1973 communication by Eugene M. Strauss, President of SFO, the beneficiaries were advised that the Trust coverage had been transferred to the American Republic Insurance Company. The letter states that members “... will enjoy this extended rate guarantee which, coupled with improvements in the plan, as indicated by the attached brochure, results in the UET becoming an even better insurance program for you and your employees.”

In the attached brochure, maximum benefits per disability were provided in the amount of $50,000.00. The maximum lifetime benefit per person was $1,000,000.00. The outline of policy benefits significantly points out also that “inpatient psychiatric treatment [is] covered just as any other disability.”

Further, in an undated communication from the vice-president of SFO, the beneficiaries were informed that effective February 1, 1975 Sentry Life Insurance Co. had been named as the insurance underwriter. The communication reads, in pertinent part: “We feel confident that you will notice remarkable improvement in both service and products in the very near future as a result of this change.” Further in that letter is the statement: “We feel confident that this move to Sentry Life Insurance Corporation will work to the benefit of all of our UET insureds.” The letter further advises that Sentry will assume policy risks of the retiring American Republic Insurance Co. under the same coverage as of February 1, 1975.

When we consider these communications from SFO to the Trust beneficiaries, we cannot say the trial judge erred in concluding that defendants had failed to provide proper notice of the reduction in benefits. We come to this holding despite evidence that the booklet from the insurer furnished to the employer, if examined with utmost scrutiny by the most educated person, discloses the limitation in benefits. This is particularly true when the booklets from various insurers are considered in light of the communications from the administrator of the Trust of the “improvements” in the various plans.

Nor do we conclude that plaintiff, the general manager of Ricca responsible for handling Ricca’s insurance, had a greater responsibility to be on notice of the $10,-000.00 limitation. Again, the letters from the administrator notifying the employers of the change of underwriters and improvements in the plan reinforced the belief of any reasonable person that the $50,000.00 per disability for physical or mental disorder, as outlined in the brochure, was applicable.

REFORMATION

Because we have concluded, as did the trial judge, that SFO and the Trust breached their duty to plaintiff by failing to provide him with a proper notice of the reduction in benefits under the Sentry policy, we find no necessity to discuss defendants’ third contention that plaintiff’s sole remedy is against the insurer for reformation of the policy.

Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

      . The purpose of the Trust was to facilitate the obtaining of group insurance benefits for businesses. The Trust, through its administrator Strauss Fuchs Organization, Inc., procured group health and accident insurance policies from various underwriters for the benefit of the employees of Ricca Demolishing Co. and other employers.

      . Old Security Insurance Company later replaced Sentry; however, Old Security went into liquidation and is not a party to this suit.

      . The health and accident benefits under Sentry's policy exceeded the mental illness limitations.


source: Caselaw Access Project

author: GULOTTA, Judge.

license: Public Domain

text:
    SUCCESSION OF Newton Charles DEGELOS, Sr.
    No. CA-1131.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Charles E. Cabibi, New Orleans, for plaintiff-appellant.
    Manuel A. Fernandez, Chalmette, for defendants-appellees.
    Before GULOTTA, GARRISON and LO-BRANO, JJ.
   GULOTTA, Judge.

A daughter not mentioned in her father’s will, which bequeathed his property to his surviving spouse and the three children of his second marriage, appeals from a judgment dismissing her claim for an undivided ¼ interest in his estate. We affirm.

In his statutory testament, Newton Charles Degelos, Sr. bequeathed his estate as follows:

“I leave and bequeath to my wife, Althea Kramer Degelos, the usufruct of all property which I may die possessed of, both separate and community, for the remainder of her life.
“I leave and bequeath to my children, Noelle Eve Degelos, wife of Lucien Gioe, Newton Charles Degelos, Jr. and Elizabeth Degelos, legally separated wife of Horace Alexander, the remainder of all property of which I may die possessed of.”

The will made no disposition to or mention of Inez Marie Degelos Lalanne (hereinafter referred to as Inez), the testator’s daughter by his prior marriage.

The petition for possession filed by the surviving spouse Althea, as testamentary executrix, prayed that Inez be recognized as a forced heir of the decedent and entitled to her legitime. Accordingly, the judgment of possession recognized the usufruct in favor of the surviving spouse of all property of the estate for the remainder of her life, and recognized Inez as a forced heir entitled to %4ths of her father’s estate subject to the usufruct. The remaining three children Noelle, Newton, Jr., and Elizabeth were recognized as heirs and legatees each entitled to ’/kths of the estate, likewise subject to Althea’s usufruct.

Inez thereafter filed a petition to annul the judgment of possession, complaining of an “apparent misinterpretation of the law with respect to the will” and seeking entitlement to ¼⅛ of the estate free of the usufruct, except as to the matrimonial domicile. Her petition was dismissed on an exception of no cause of action.

The thrust of Inez’ appeal is that her father’s universal bequest to the other three children contains no wording specifying that it is given to them as an “extra portion” over the V.tth allocated by law to each of his issue. She argues that this failure to declare the legacy as an advantage or extra portion causes it to be null and void for the whole and entitles her to obtain “collation” of the testamentary dispositions and an equal division of the entire estate among all four children. In support of her position, Inez relies on LSA-C.C. Arts. 1233 and 1501, which provide as follows:

Art. 1233: “The declaration that the gift or legacy is intended as an advantage or extra portion, may be made in other equivalent terms, provided they indicate, in an unequivocal manner, that such was the will of the donor.”
Art. 1501: “The disposable quantum may be given in whole or in part, by an act inter vivos or mortis causa, to one or more of the disposer’s children or suc-cessible descendants, to the prejudice of his other children or successible descendants, without its being liable to be brought into the succession by the donee or legatee, provided it be expressly declared by the donor that this disposition is intended to be over and above the legitimate portion.”
“This declaration may be made, either by the act containing the disposition, or subsequently by an instrument executed before a notary public, in presence of two witnesses.”

In Jordan v. Filmore, 167 La. 725, 120 So. 275 (1929), a time honored case, the Supreme Court confronted virtually the same issue now raised by plaintiff. In Jordan, a testatrix named only one of her two heirs as a universal legatee, and made no mention of the other. In a petition to annul the will, the omitted heir prayed that both forced heirs be recognized and the estate divided equally between them. The only question confronting the court was whether the petitioner was entitled to only lk of the estate as a forced heir or ½ on the theory that the testatrix did not declare unequivocally her intention to leave the estate to the named heir “as an advantage or extra portion.”

In upholding the will and decreeing that the heir could only claim a of the estate as her legitime, the Supreme Court in Jordan, at page 278, construed LSA-C.C. Art. 1501 as follows:

“There is no indication in article 1501— for there would be no sense in the requirement — that a testator who bequeaths more of the disposable portion of his estate to one of his descendant heirs than to another must express, any more plainly than his favoritism itself expresses, his intention that the legacy bequeathed to the favorite heir is intended as an advantage over the other heir, or an extra portion — in order to avoid the obligation of collation, strictly so called. All that the testator has to do in the distribution of his estate among his heirs as he sees fit, to be sure that his will shall be carried out, is to avoid impinging upon the legitime which the law reserves to each of his forced heirs.”

The court in Jordan further cited French authorities holding that an exemption from collation need not be expressed in any “sacramental terms”, but may necessarily be inferred from the language of . a testament granting a universal or residuary legacy.

The holding in Jordan is dispositive of the instant case. The testator’s intention to favor the three children of his second marriage over his oldest daughter Inez is expressed in his bequest to the former as universal legatees and his failure to mention Inez. There is no legal requirement that he expressly state or declare the bequests to be an advantage or extra portion. The legacy to three of the children must be reduced only to the extent sufficient to leave Inez her share of the legitime, i.e. xk of ½ of the estate that could not be disposed of to the prejudice of the forced heirs.

To uphold Inez’ claim for an undivided ¼ interest in the entire estate would effectively ignore the testator’s intent and cause the property to pass as if by intestacy. It is well settled that when a testator disposes of his entire estate to the prejudice of a forced heir, such a bequest does not make the will null and void but merely subjects it to an action for reduction by the forced heir for the recovery of his legitime. See LSA-C.C. Art. 1502: Roach v. Roach, 213 La. 746, 35 So.2d 597 (La.1948).

Plaintiff’s reliance on Succession of Higgins, 275 So.2d 447 (La.App. 4th Cir.1973) is misplaced. In Higgins, the decedent left her estate by olographic will to her two sons “share and share alike”. One son who predeceased the testatrix left seven children (grandchildren of the testatrix) who opposed the executor’s allocation of ¾ of the estate to the surviving son and ¼ to the grandchildren. The Higgins court held that the words “share and share alike” obviously expressed the testatrix’ intention not to favor either of her sons to the prejudice of the other. Accordingly, the surviving son was precluded from maintaining that his legacy of lh of his mother’s estate was an “extra portion” not subject to collation.

The factual situation in Higgins, supra, is entirely different from that in Jordan v. Filmore, supra, and the instant case where the decedent expressed an intention to afford some of the heirs an extra advantage by naming them in the testament as universal legatees and omitting the other heir.

Accordingly, we find no error in the judgment dismissing plaintiff’s suit. The trial judge properly recognized plaintiff as a forced heir entitled to a 3/24ths interest in the estate, subject to the usufruct in favor of the surviving spouse.

AFFIRMED.

      . Because the decedent left four children, one half of his estate constitutes the disposable portion that can be bequeathed to the three children of the second marriage to the prejudice of Inez. LSA-C.C. Art. 1493. Her legitime is ¼ of the remaining ½, i.e., Vs or VsaÚis of the entire estate. The other three children are entitled to 7/24ths each of the estate, all subject to the usufruct for life in favor of the surviving spouse.


author: GULOTTA, Judge. LOBRANO, Judge,

text:
    STATE of Louisiana v. Edward OGLETREE and Adolph Young.
    No. KA-1144.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry Connick, Dist. Atty., William R. Campbell, Jr., New Orleans, for appellee.
    M. Craig Colwart, Orleans Indigent Defender Program, New Orleans, for appellants.
    Before GULOTTA, GARRISON and LO-BRANO, JJ.
   GULOTTA, Judge.

These two appeals are from convictions for violations of LSA-R.S. 14:62.2, simple burglary of an inhabited dwelling. That statute denies a convicted defendant the benefit of parole, probation or suspension of sentence during the first year of his sentence.

The seven year sentence imposed on defendant Edward Ogletree (with credit for time served) failed to mention that this defendant would not have the benefit of parole, probation or suspension of sentence for one year as required by the statute. The six year sentence imposed on defendant Adolph Young (with credit for time served) without benefit of probation, parole or suspension of sentence (to run consecutively with a previously imposed 18 month sentence for contempt of court) failed to restrict the ineligibility of parole, probation or suspension of sentence to the first year as required by the statute.

In their sole assignment of error, defendants request this court to review the record for errors patent and to reverse their convictions and sentences.

The only error patent in the record is the trial judge’s failure to restrict the ineligibility of both defendants for parole, probation or suspension of sentence to the first year of their terms in accordance with the statute. See State v. Conley, 411 So.2d 448 (La.1982) and State v. Boowell, 406 So.2d 213 (La.1981).

In Ogletree’s case, the trial judge’s failure to comply with the sentencing provisions of the statute inures to this defendant’s benefit. If we were to remand Ogle-tree’s case to the trial court for resentenc-ing in accordance with the statute, the remand would be to the defendant’s detriment by resulting in the imposition of a harsher penalty. Because the defendant alone has appealed and the State seeks no modification of the sentence, this result could have a chilling effect on defendant’s exercise of his right to appeal. See State v. Williams, 439 So.2d 387 (La.1983) and State v. Napoli, 437 So.2d 868 (La.1983). Under these circumstances, we decline to remand the Ogletree matter to the trial court for resentencing.

In contrast, defendant Young’s six year sentence provided the restriction “without benefit of probation, parole or suspension of sentence”, but failed to restrict defendant's, ineligibility to the first year.

In compliance with the statute and State v. Napoli, supra,, we amend and reduce defendant Young’s six year sentence to restrict the ineligibility provision in compliance with the statute’s minimum one year term.

Our examination of the remaining documents in the record did not disclose additional errors patent. Upon review of the 141 page transcript of the jury trial in accordance with State v. Raymo, 419 So.2d 858 (La.1982), we conclude there was sufficient evidence upon which a rational trier of fact could find the defendants guilty beyond a reasonable doubt.

Consistent with the foregoing, the conviction and sentence of defendant Ogletree are affirmed. Young’s sentence is amended to six years, without benefit of probation, parole or suspension of sentence during the first year of his sentence, to run consecutively with a previously imposed 18 month sentence for contempt of court.

AFFIRMED IN PART.

AMENDED IN PART.

LOBRANO, J., concurs and assigns reasons.

LOBRANO, Judge,

concurring.

Because of our Supreme Court’s pronouncements in State v. Williams, 439 So.2d 387 (La.1983) and State v. Napoli, 437 So.2d 868 (La.1983), we are required to affirm the sentence in Ogletree’s case even though it is illegal. I disagree with the rationale of those cases, and adhere to the view that an illegal sentence, whether favorable to defendant or state, can be corrected by the sentencing court. See La.C. Cr.P. Art. 882.

      . LSA-R.S. 14:62.2 provides in pertinent part:
      "Whoever commits the crime of simple burglary of an inhabited dwelling shall be imprisoned at hard labor for not less than one year, without benefit of parole, probation or suspension of sentence, nor more than twelve years."

      . In State v. Conley, supra, and State v. Boowell, supra, both defendants appealed their sentences for violations of LSA-R.S. 14:62.2 without benefit of parole, probation or suspension of sentence, contending that the ineligibility provision attached only to the statute's minimum one-year term. In holding that the trial judges erred and both sentences were illegal, the Louisiana Supreme Court remanded both cases for resentencing.

      . We distinguish the instant case from State v. Telsee, 425 So.2d 1251 (La.1983) in which the defendant assigned as errors on appeal the failure of the judge to comply with sentencing guidelines provided in La.C.Cr.P. Art. 894.1 and the imposition of a constitutionally excessive sentence. The Louisiana Supreme Court found the sentence excessively long yet unlawfully lenient because the trial court had failed to specify that two years of the sentence were to be served without benefit of parole, probation or suspension of sentence. The Supreme Court reduced the sentence, yet withdrew those benefits in defendant's favor for two years of it, even though the state had not objected to the error. Unlike Tehee, the instant case does not involve excessiveness of a sentence under La.C.Cr.P. 894.1.
      In State v. Jackson, 439 So.2d 622 (La.App. 1st Cir.1983), our brothers cited Tehee, supra, as authority to amend an erroneous sentence to provide that it was to be served without benefit of parole, probation or suspension, even though defendant alone had appealed the ex-cessiveness of the sentence and the State had not raised the sentencing error. The Supreme Court, however, recently granted writs, without dissent, in State v. Jackson, 443 So.2d 1123 (La.1984), on defendant's assignment of error that the First Circuit had erred in effectively enhancing defendant's sentence.


author: SCHOTT, Judge.

text:
    STATE of Louisiana v. Robert J. BROWN.
    No. KA 1218.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    M. Craig Colwart, New Orleans, for defendant-appellant.
    Before SCHOTT, KLEES and CACCIO, JJ.
   SCHOTT, Judge.

Defendant was convicted of theft of a $12,000 automobile in violation of LSA-R.S. 14:67 and sentenced to ten years at hard labor. His only assignment of error is that the sentence was unconstitutionally excessive.

A review of the record discloses no errors patent.

We have further reviewed the record for sufficiency of evidence in accordance with State v. Raymo, 419 So.2d 858 (La.1982).

On January 24, 1983, Jerry White borrowed his step-daughter’s 1982 Chrysler automobile in order to obtain a spare tire for his own ear from an automobile dealer. When the salesman, John Coble, went behind the building to get the tire he saw defendant enter the Chrysler and flee. White and Coble gave chase in Coble’s car. This took them through the streets of New Orleans and onto the expressway at high speeds until defendant crashed into a post in an exit from the expressway. The car had been purchased about a year before and was in perfect condition until the incident. Afterward it required $900 in repairs. These facts were established by the uncontradicted testimony of Coble, White, and his step-daughter. Defendant offered no evidence in his defense.

Having reviewed the evidence in the light most favorable to the prosecution, we have concluded that a rational fact finder could have found that the state proved beyond a reasonable doubt each element of the offense charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Returning to the assignment of error regarding the sentence defendant argues that the maximum sentence of ten years was excessive, the trial judge failed to adhere to the sentencing guidelines prescribed by C.Cr.P. Art. 894.1, and he failed to articulate his reasons for the sentence in accordance with State v. Oubichon, 422 So.2d 1140 (La.1982).

At the sentencing hearing defendant stood mute refusing to answer any questions put to him by the court. The judge noted that defendant was born in July, 1945. The state revealed that he pled guilty in 1965 to simple robbery and served three months in parish prison and he pled guilty in 1969 to simple burglary and served eighteen months in the state penitentiary. In imposing sentence the trial judge said:

“The only reason why you are not being multiple billed is because of the prescriptive period intervened. It is therefore the sentence of this Court that you shall serve ten years at hard labor in the custody of the Department of Correction of the State of Louisiana. The court cannot give you a suspended sentence because of the fact that you have prior felony convictions. If I could, there is an undue risk, almost a mortal cinch, that during the period of a suspended sentence or probation, you would commit another crime. The court feels that you are in need of correctional treatment in a custodial environment, and that can be best provided by committing you to an institution. It seems like the only way to protect society from you and your rampages is to keep you in jail as long as possible. A lesser sentence than the one that I just gave you would deprecate the seriousness of your crime.”

While this statement does include comments on some of the elements contained in C.Cr.P. Art. 894.1 it does not contain an articulation of the reasons why this defendant should receive the maximum penalty as required by State v. Oubichon, supra. On the other hand, such an articulation is unnecessary where there is evidence elsewhere of record which illumines the sentencing choice. State v. Martin, 400 So.2d 1063 (La.1981). We conclude that there is such evidence in this case.

The behavior of this defendant after he took the automobile in and of itself is illuminating. When he realized he was seen taking the car he embarked on a high speed flight without regard for the safety of the public. He was apprehended only because he wrecked the victim’s expensive and in-perfect-eondition automobile. He could have ended the chase anytime but instead was determined to complete his crime even at the risk of great harm to innocent bystanders. Furthermore, he has previously been convicted of two serious crimes involving moral turpitude and jail sentences have not deterred him from embarking on still another such crime. Finally, during the sentencing hearing the defendant failed to produce any evidence or information in mitigation.

We conclude that the assignment is without merit and affirm the conviction and sentence.

AFFIRMED.


text:
    Eliza DAVIS v. SECURITY INDUSTRIAL INSURANCE COMPANY.
    No. CA 1066.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    James E. Marchand, Talbot, Sotile, Car-mouche, Marchand & Marcello, Donaldson-ville, for defendant-appellee.
    Edmond R. Eberle, New Orleans, for plaintiff-appellant.
    Before SCHOTT, KLEES and CIACCIO, JJ.
   SCHOTT, Judge.

This action by the beneficiary of a life insurance policy for the proceeds was filed over eighteen months after the insured’s death. Defendant filed an exception of prescription based on the policy’s prohibition against such action unless brought within one year and sixty days from the date of the insured’s death. From a judgment sustaining the exception and dismissing her suit, plaintiff-beneficiary has appealed. The issue is whether the time-limit-stipulation is enforceable where there is no showing by defendant that there was consent to the stipulation on the part of the insured or the beneficiary.

According to her pleadings and brief, plaintiff, on August 18, 1980, purchased this $3,000 policy on her son, Walter Rose, Jr, and named herself beneficiary. At the time Rose was an inmate at a Missouri hospital for federal prisoners. The policy was issued on August 15 (three days prior to the application). According to her brief, because the policy’s beneficiary designation was erroneous (Eliza Ross being named instead of Eliza Davis), plaintiff requested defendant’s agent to change it and this was done on November 6, 1980. Eight days later Rose died of a heart attack while still in the Missouri hospital.

The case was submitted for adjudication of the exception on the pleadings, memo-randa of counsel, written interrogatories and answers exchanged between the parties, and copies of the application, change of beneficiary form and policy. No testimony was taken although the parties were given an opportunity to present it. In her trial court memorandum plaintiff stated that she submitted the policy to defendant who retained it while denying payment and that after plaintiff obtained counsel and at his request defendant sent a copy of the policy on July 28, 1981.

Plaintiff argues that the ten year prescription of LSA-C.C. Art. 3544 applies to an action on an insurance policy unless there is a showing of consent by the insured to a shorter term of limitation. Thus, she contends that defendant failed to carry its burden of proof and the exception was erroneously sustained.

The first problem with plaintiffs position stems from the unusual circumstances of the case. The application and the beneficiary change form, both purport to be signed by Rose. Nonetheless, plaintiff alleged that she purchased the policy and changed the beneficiary. Thus, the contract of insurance was between her and defendant.

In Suire v. Combined Insurance Company of America, 290 So.2d 271 (La.1974) the court held that a clause in an insurance policy fixing a reasonable time to institute suit is valid and will be enforced against a beneficiary, unless there is a legal basis for excuse from compliance. The court found plaintiffs allegations — that through no fault of her own she discovered the existence of the policy after its time limit for filing suit had expired — to be sufficient to state a cause of action.

In the instant case a different result follows because plaintiff had the policy presumably from the time she had the beneficiary changed or from the date of Rose’s death or, at least, from the time she surrendered the policy requesting payment. She admits regaining possession of the policy on July 28, 1981, some five and one-half months before prescription would have run. Under these circumstances she failed to prove a legal basis for excuse from compliance with the policy’s limitation on the time for filing suit.

Accordingly, the judgment is affirmed.

AFFIRMED.


author: SCHOTT, Judge. CIACCIO, Judge,

text:
    GIBBENS POOLS, INC. v. Mr. & Mrs. John William CORRINGTON.
    No. CA 1048.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Writ Denied March 23, 1984.

      John M. Garic, Post, Reinhardt & Rouge-lot, Metairie, for plaintiff-appellant.
    Martin L. Broussard, Jr., New Orleans, for defendants-appellees.
    Before SCHOTT, KLEES and CIACCIO, JJ.
   SCHOTT, Judge.

This suit was brought by a swimming pool contractor for the balance of the price ($3,156 out of the total price of $22,315) due under a contract for the construction of a pool for defendants. The trial court found that plaintiff failed to prove completion of the pool and dismissed plaintiffs suit. The court also awarded defendants $857.30 on their reconventional demand. Plaintiff has appealed but defendants have not appealed or answered plaintiffs appeal. The issues are whether or not plaintiff substantially performed the contract and whether the action of the trial court was the correct application of the doctrine of substantial performance.

Plaintiff worked on the pool from March until October, 1979, when defendants employed another contractor to complete the work. At this point the gas connection had not been made for the pool’s heater; the electrical work was defective in that the pump was not grounded, an interior light was inoperative because it was never connected, the operation of the pool equipment caused fuses in the house to be blown necessitating connection to the main circuit breaker and installation of an extra electrical panel, the wiring from the pool to the junction was enclosed in plastic tubing rather than concrete or metal as required by the code, and the junction box was below the pool’s water level with the result that water came out of the switch; the pool water was not treated so that it was green and contained construction debris, the relief valve did not operate; the vacuum equipment was improperly installed; there were two leaks in the skimmer openings; the drain line was not connected to the city drainage system; and operating instructions and warranty manuals were never delivered. In addition, the contour of the pool was not in compliance with the architect’s specifications so that it was dangerous for swimmers to use the diving board. These facts, although denied by plaintiff, were established by defendants’ witnesses to the apparent satisfaction of the trial judge, and his findings are not manifestly erroneous.

When a building contract is substantially performed, the contractor is entitled to recover the contract price less whatever damages the owner proves are attributable to the breach, that is, the cost to the owner of remedying defects. If the contractor fails to prove substantial performance he is entitled to recover on a quantum meruit basis only for the work performed. Whether or not there has been substantial performance is a fact question depending upon the extent of the defect or non-performance, the degree to which the purpose of the contract is defeated, the ease of correction, and the use or benefit to the owner of the work performed. LSA-C.C. Art. 2769; Airco Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So.2d 880 (La.1961); Pete’s Plumbing & Heating, Inc. v. Geissert, 413 So.2d 554 (La.App. 4th Cir.1982).

In the present case the trial court did not make a specific determination on the question of substantial performance. In his findings the judge stated only that “plaintiff failed to offer proof of the completion of the pool as per the contract.” He went on to reject defendants’ claim for $2,000 of expenses they incurred to complete the pool because “these expenses are not properly documented as to amount.” Nonetheless, he dismissed plaintiff’s suit for the contract balance.

We cannot reconcile the court’s judgment with the principles summarized above. Thus, we have considered remanding the case for a factual determination of substantial performance or not together with a corresponding adjudication of damages for defendants or quantum meruit for plaintiff. However, we have concluded that the fairer, more efficient, and practical result is to decide the case on the record considering that there was legal error implicit in the fact finding process by the trial court and the record before us is otherwise complete. Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707 (La.1980).

The testimony of the second contractor who was hired to complete the work establishes that all of the defects except the one regarding the contour of the pool were corrected with relative ease. There was not a great deal of time required for the work and the charges, $2,000, even if reasonable, were not substantial in relation to the contract price of over $22,000. Even before the corrections the pool was useable as such even though with inconvenience because of the defects. We cannot conclude that the purpose of the contract was defeated to a substantial degree. Defendants obtained the use of a pool despite the presence of defects to be corrected.

The most serious defect bearing on the question of substantial performance was with the contour of the pool. Defendants’ architect specified that the pool was to have a more gradual change from deep water under the diving board to shallow water than the one installed by plaintiff. As constructed, the grade from deep to shallow water was abrupt and so close to the diving board that its use was dangerous. Divers had to be warned to dive straight down to avoid accidents. However, we are not persuaded that plaintiff failed to prove substantial performance because of this defect. Although the pool was below the standards required for public pool construction where diving was contemplated it was built in accordance with residential pool standards. At some point early in the construction stage of the pool’s contours the architect called defendant’s attention to the problem but the latter declined to take action because he envisioned an interminable delay in the project considering how slowly the pool progressed to that point. However, when the pool was completed defendant realized the extent of the inconvenience caused by the defect which was clearly the result of plaintiff’s failure to build the pool as planned. Defendants could use the pool for swimming and for diving — although with caution. Since the pool was fit for the purpose intended the contract for its construction was substantially performed. Airco Refrigeration Service, Inc. v. Fink, supra. Thus, plaintiff is entitled to judgment on the main demand.

Turning to defendants’ reconven-tional demands, the record shows that they paid another contractor $2,000 to finish the work, but the trial judge questioned this amount. Even so, this work did not encompass the defective contour of the pool. There was no evidence as to what it would have cost to remedy this defect, but even at the time it was discovered, remedial work would have been extensive. The bottom of the pool would have been torn up and extensive work would have been required to prevent leakage when the bottom was reconstructed. Clearly, the cost of this work plus the remedying of all the other defects would have exceeded the contract balance of $3,156. Thus, we agree with the observation made by defendants’ counsel in his brief that the ultimate result reached by the trial court was fair.

As to the award to defendants on their reconventional demand for additional architectural fees in the amount of $857.30, the record supports the award. The testimony of the architect and defendant established that this fee was incurred for services rendered after plaintiff left the job in the completion of the work and was paid by defendants.

Accordingly, the judgment is affirmed.

AFFIRMED.

CIACCIO, J., concurs.

CIACCIO, Judge,

concurring:

I concur in the result.


author: GARRISON, Judge.-

text:
    STATE of Louisiana v. Willie HARRISON, Jr.
    No. KA 0856.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Criminal Div., Harry F. Connick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    Before GARRISON, GULOTTA and LO-BRANO, JJ.
   GARRISON, Judge.-

The defendant, Willie Harrison, Jr., was charged by bill of information on September 9, 1982 with armed robbery in violation of La.Rev.Stat. 14:64 and with attempted first degree murder in violation of La.Rev. Stat. 14:27 and 14:30. On January 25, 1983, he was found guilty on both counts and was later sentenced to serve ninety-nine years at hard labor without benefit of parole, probation, or suspension of sentence for his armed robbery conviction and fifty years at hard labor for his attempted first degree murder conviction. These sentences are to be served concurrently and both are the maximum sentences allowed for these offenses. The defendant does not appeal these convictions. The only issue on appeal is whether the sentences imposed are unconstitutionally excessive.

The facts of this case are as follows: On August 18, 1982, at approximately 1:00 a.m., the defendant approached Ms. Burdel-lia Edwards at the house which she shared with Wordell Hughes. Harrison asked Edwards where he could find Hughes. Ms. Edwards had known Harrison for a long time and, therefore, told him that Hughes could be found at a friend’s house about three blocks away. The defendant then left in the direction of the friend’s house. At that time, Harrison was wearing dark pants and a dark shirt. (Tr. pp. 12-15).

Wordell Hughes testified that he was watching television at his friend’s house when Harrison entered the house and asked to speak to him. They went into the hallway, and Hughes gave Harrison $4.00. Harrison then left. He was still dressed in jeans and a shirt. (Tr. pp. 16; 28).

Sometime later, Harrison again appeared at this friend’s house. He was dressed in a flowered dress with a stocking over his face. Harrison tossed a bag into Hughes’ lap, put a gun to Hughes’ head, and told him to “put it all in here.” When Hughes tried to turn his head, Harrison fired the gun, the bullet hitting Hughes in the head. Hughes gave approximately $40.00 to Harrison. Harrison then left the house. (Tr. pp. 29-30).

Hughes testified that he had known Harrison for many years and that he recognized his voice before even turning around to look at him. Although Harrison had a stocking over his face, both Hughes and another person at the house, Ms. Charle Bass, recognized Harrison’s face. Ms. Bass testified that she saw a jeans leg rolled up under the dress Harrison was wearing. (Tr. pp. 19-21; 29-30).

After Harrison left, a few people who witnessed the shooting helped Hughes back to his own house. Prom there, Ms. Edwards accompanied him to the hospital. (Tr. pp. 12; 31).

Both Ms. Betty Richburg and Harrison testified that they were together at the time of the shooting. They maintained that they had spent the night together at his mother’s house, and that Harrison had not left the house after about 9:15 p.m. the night before the shooting. Harrison testified that he knew Hughes but had never had any problems with him. He denied robbing or shooting Hughes, and he denied being at the scene of the shooting.

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, 309, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306, 310 (La.1982).

The appellant was convicted of armed robbery and attempted first degree murder. In order to support his conviction for armed robbery, 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. Here, approximately $40.00 were taken from Hughes after he was shot in the head. He unhesitatingly identified the appellant as the man who shot and robbed him. 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).

The appellant was also convicted of attempted first degree murder. First degree murder, as defined by R.S. 14:30, includes the killing of a human being “(w)hen the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of ... armed robbery.” R.S. 14:30(1). See State v. Thomas, 427 So.2d 428 (La.1982); State v. Tuckson, 414 So.2d 360 (La.1982). The Louisiana Supreme Court has held that specific intent to kill or inflict great bodily harm may be inferred from the fact that the defendant shot his victim at close range. State v. Noble, 425 So.2d 734, 736 (La.1983); State v. Boyer, 406 So.2d 143, 150 (La.1981). According to R.S. 14:27, an attempt occurs when a person, “having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward” the accomplishment of the offense.

In the case at bar, the appellant was perpetrating an armed robbery when he put the gun to Hughes’ head and then shot him. Hughes received serious injuries. Viewing the evidence in the light most favorable to the prosecution, the jury could have found the appellant guilty of attempted first degree murder beyond a reasonable doubt. His convictions for both armed robbery and attempted first degree murder should be affirmed.

In his only properly raised assignment of error, defendant contends that the sentences imposed are unconstitutionally excessive as prohibited by Article I, Section 20 of the 1974 Louisiana Constitution. In the recent case of State v. Telsee, 425 So.2d 1251 (La.1983), the Louisiana Supreme Court held that maximum sentences will be reserved for the most egregious or blameworthy of offenders, and that others of similar conduct will not receive lighter sentences than the defendant in a particular case. The Telsee case places emphasis on the conduct of the offender and on the circumstances of the offense in a particular case. The trial judge in his reasons for sentencing stressed the vicious manner in which these crimes were committed and noted that although the defendant has no prior convictions, he does have a record consisting of thirty-six arrests. The pertinent portion of the trial judge’s reasons for sentencing follows:

“The defendant is 25 years old and has a record of criminal violations dating back to 1971. This record consists of some 36 arrests for a variety of crimes; including theft, receiving stolen things, burglary, aggravated assault, armed robbery, and attempted murder.
The defendant’s conduct in the instant case was deliberate and calculated to cause death or serious bodily harm. He shot his victim in the face for no apparent reason before he even gave the victim chance to comply with his commands to give up his money. Such conduct shows a viciousness which is untreatable.” (Tr. pp. 56-57)

The sentences imposed are severe but the crimes committed call for severe punishment. State v. Donahue, 408 So.2d 1262 (La.1982).

The Louisiana Code of Criminal Procedure Article 894.1 requires that the trial judge enumerate his reasons for sentencing and that the sentence be tailored to fit the particular offense and the particular offender. A review of the trial judge’s reasons for sentencing clearly shows that there was compliance with the requirements of Louisiana Code of Criminal Procedure Article 894.1. For these reasons, the imposition of these maximum sentences for the armed robbery and attempted first degree murder convictions was not an abuse of the trial judge’s discretion.

In a supplemental brief filed by the defendant, he alleges that he was denied effective assistance of trial counsel. It is well settled that the issue of whether de1 fendant was denied effective assistance of counsel is more properly raised by application for a writ of habeas corpus in the district court, where a full evidentiary hearing may be conducted if warranted. State v. Brown, 384 So.2d 983 (La.1980); State v. Malveaux, 371 So.2d 820 (La.1979).

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

AFFIRMED.


author: GARRISON, Judge.

text:
    Okbay GELA v. Shaker HAMDAN and Asad Esmail Individually and d/b/a Shugs Grocery.
    No. CA 0989.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Rehearing Denied March 21, 1984.
    Writ Denied April 23, 1984.

      Thomas L. Smith, New Orleans, for plaintiff-appellant.
    Craig J. Cimo, Gretna, for defendants-ap-pellees.
    Before GARRISON, GULOTTA and LO-BRANO, JJ.
   GARRISON, Judge.

Plaintiff appeals from a judgment of the district court granting defendants’ motion for summary judgment and dismissing plaintiffs demand. We reverse this judgment and remand the case to the district court for trial on the merits.

On June 7, 1982, plaintiff, Okbay Gela, filed suit against defendants, Shaker Ham-dan and Asad Esmail, individually and d/b/a Shug’s Grocery, alleging that he was employed by defendants from on or about January 2, 1981 through January 2, 1982. His principal claim was that defendants owed him past due wages, the amount of which was to be determined in accordance with the Fair Labor Standards Act, 29 U.S.C. Section 201 et seq., commonly referred to as the minimum wage law. Alternatively, plaintiff claimed that defendants owed him past due wages, based on the minimum wage law, within three days of his discharge in accordance with Louisiana Revised Statute 23:631.

On November 23, 1982, defendant filed a motion for summary judgment and attached affidavits of income tax returns for the defendants’ grocery business prepared by the defendants’ accountant. According to defendants, these returns proved that neither the defendants nor the défendants’ business enterprise was subject to the Fair Labor Standards Act because they did not meet the minimum annual gross income required by the Fair Labor Standards Act for any of the years 1977-1982. Defendants further alleged that because they were not subject to the Fair Labor Standards Act, plaintiff cannot assert a cause of action against the defendants based upon Louisiana Revised Statute 23:631.

Plaintiff filed a memorandum in opposition to defendants’ motion for summary judgment on February 3, 1983. In this memorandum, plaintiff asserted that an issue of fact exists as to whether or not plaintiff was employed by the defendants. This assertion was based on the fact that defendants denied that plaintiff was ever their employee in their answers to interrogatories propounded by the plaintiff and did not address this issue in their motion for summary judgment. Plaintiff also alleged that defendants’ business was an “enterprise” as contemplated by the Fair Labor Standards Act in that defendants allegedly' had control over other grocery stores in the New Orleans area. If this last allegation is found to be correct, plaintiff contends that defendants could be subject to the minimum wage law in that their annual gross income could be in excess of the minimum amount required by the Fair Labor Standards Act. According to plaintiff, these issues raise questions of fact thereby making summary judgment inappropriate.

It is well settled that a motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.C.C.P. Art. 966; Industrial Sand and Abrasives, Inc. v. Louisville and Nashville Railroad Company, 427 So.2d 1152 (La.1983); Thornhill v. Black, Sivalls and Bryson, Inc., 394 So.2d 1189 (La.1981); Chaisson v. Domingue, 372 So.2d 1225 (La.1979).

In a motion for summary judgment, the burden is on the mover to show clearly that there is not a genuine issue of material fact in dispute, and any reasonable doubt as to the existence of a genuine issue of material fact must be resolved against the mover and in favor of trial on the merits. “The pleadings, affidavits, and documents of the mover must be scrutinized closely, while those of the opponent to the motion are to be indulgently treated.” Industrial Sand and Abrasives, Inc. v. Louisville and Nashville Railroad Company, supra; Meyers v. Gulf Insurance Company, 413 So.2d 538 (La.App. 4th Cir.1982), denied at 420 So.2d 442 (La.1982).

After a review of the record, we are of the opinion that the defendants-movers have not met their burden of proving the non-existence of a material fact in dispute. Despite the very detailed affidavits submitted by defendants in support of their motion for summary judgment, it is quite clear from the record as a whole that questions of fact, remain as to whether plaintiff was employed by defendants and whether defendants gross income was of an amount which would subject them to the Fair Labor Standards Act.

The information contained in defendants’ affidavits is insufficient to resolve plaintiff’s allegations that defendants had control over other businesses in the New Orleans area thereby making defendants an enterprise engaged in commerce within the meaning of the Fair Labor Standards Act. The Act, in pertinent part, defines “enterprise” as:

“related activities performed (either through unified operation or common control) by any person or persons for a common business purpose, and includes all such activities whether performed in one or more establishments or by one or more corporate or other organizational units including departments of an establishment operated through leasing agreements ...” 29 U.S.C. Section 203(r)

It is clear from eases defining the elements of this definition that plaintiff’s allegations, if proven correct, could possibly bring defendants within this definition. See Brennan v. Arnheim and Neely, Inc., 410 U.S. 512, 93 S.Ct. 1138, 35 L.Ed.2d 463 (1973). This presents a question of fact.

Therefore, we reverse the judgment of the trial court in granting defendants’ motion for summary judgment and we remand this case to the district court for trial on the merits.

REVERSED AND REMANDED.


text:
    STATE of Louisiana v. Albora SOSA.
    No. KA 1011.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Rehearing Denied March 21, 1984.
    Writ Denied May 11, 1984.

      Harry F. Connick, Dist. Atty. of Orleans Parish, Joanne C. Marier, Asst. Dist. Atty. of Orleans Parish, New Orleans, for plaintiff-appellee.
    Edward G. Koch, Jr., New Orleans, for defendant-appellant.
    Before GARRISON, KLEES and CIAC-CIO, JJ.
   GARRISON, Judge.

Defendant Albora Sosa appeals his conviction by a unanimous twelve-member jury of aggravated rape and aggravated crime against nature. He was sentenced by the trial court to serve a term of life imprisonment for the aggravated rape and a term of five years at hard labor for the aggravated crime against nature, both sentences to run concurrently.

FACTS

At approximately 5:30 a.m. on July 19, 1981, the victim was awakened by a man in her bedroom, lying on top of her. She began to struggle in an attempt to push him off, but stopped resisting him when he placed what she thought was a knife to her throat and threatened to kill her if she moved. The man first forced her to have sexual intercourse with him, and then forced her to engage in various unnatural sexual acts. He then went with-the victim into the bathroom, where she later stated she had had a perfect view of his face. She testified that “(a)t this point, I felt there was no question that I would be able to identify this man.”

The victim then offered the perpetrator something to drink in an effort to get downstairs in order to create an opportunity to escape. When he returned upstairs to get his cigarettes, she ran to her neighbors’ home and called the police. The perpetrator ran from the victim’s apartment in a pair of white shorts and fled on foot.

When the police arrived, the victim was extremely angry and upset but after several minutes calmed herself and gave the officers a detailed description of her assailant. She stated that he was a young, dark, latino male, approximately twenty-five years old, five feet four inches tall, stocky, weighing approximately 125-130 pounds, with curly, almost kinky hair and a noticeable dark birthmark under his right eye.

During their investigation, the officers found the weapon used by the perpetrator, a screwdriver, next to the victim’s bed. They noted a torn window screen where the assailant entered the victim’s apartment, and observed abrasions on her neck caused by the screwdriver. Tests were conducted later that day at Charity Hospital, the results of which were introduced into evidence by the State at trial. A police artist did a composite drawing of the assailant based upon the victim’s description; however, the victim testified that she did not feel that this sketch was entirely accurate.

Approximately two weeks later, Officers Fortunato and Imbraguglio, the investigating officers, were driving in the 2100 block of Magazine Street, approximately three blocks from the victim’s apartment, when they saw the defendant, Albora Sosa, and noticed that he fit the victim’s description of her assailant. The officers stopped their vehicle and placed Sosa under arrest for aggravated rape. The victim made a positive identification of Sosa from a photographic-lineup composed of six photographs. She had previously been unable to identify her assailant from two photo-lineups which did not include a photograph of the defendant.

ASSIGNMENT OF ERROR NUMBER 1

By this assignment, appellant maintains that he was denied a fair trial because of pretrial tensions between the trial judge and defense counsel which continued throughout the trial. While it is clear that there was a conflict between the trial judge and the defense counsel at a pretrial hearing, it does not appear that these ill feelings carried over into the trial stage of these proceedings. A review of the record does not indicate that the trial was tainted by these pretrial events or that the defendant was denied a fair trial.

This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER 2

By this assignment, appellant maintains that he was denied his right to a speedy trial and that the case should therefore be ■ dismissed.

The pertinent dates with respect to appellant’s argument are as follows:

August 4, 1981 — arrest and incarceration
October 22, 1981 — indictment by Grand Jury
November 20, 1981 — arraignment
February 17, 1982 — case set for trial (continued on State’s motion)
March 25, 1982 — defense filed Motion for Speedy Trial
April 29, 1982 — Motion for Speedy Trial denied; trial began

Article 701 of the Louisiana Code of Criminal Procedure sets forth the time limitations for the institution of proceedings against a defendant. At the time of Sosa’s incarceration, this article required that:

“D. After the filing of a motion for a speedy trial by the defendant, the time period for commencement of trial of a felony or misdemeanor shall be as follows: (1) Trial of a defendant charged with a felony shall commence within one hundred twenty days of arraignment if he is in continued custody...”

The defendant filed a Motion for a Speedy Trial requesting that he be granted a speedy trial or, alternatively, released from incarceration. At the hearing on this motion, the trial court inquired whether counsels were prepared to proceed and when they answered in the affirmative, the trial commenced. Admittedly this was after the statutory 120-day period had elapsed. However, while the trial court denied defendant’s motion, it granted defendant’s request for a speedy trial by beginning the trial the same day it ruled on the motion. Moreover, we note that the defendant did not seek to quash the indictment because of the State’s delay, which would have been the proper procedural vehicle. State v. Reeves, 376 So.2d 136 (La.1979). He merely sought a speedy trial, which he was granted. Appellant has shown no prejudice, therefore, resulting from the delay in instituting proceedings against him.

It should also be noted that Art. 701 is not the equivalent of the constitutional right to a speedy trial embodied in Art. 1, Sec. 16 of the Louisiana Constitution of 1974. Appellant did not contend that his constitutional rights were abridged, only that, under Article 701, he- should be brought to trial or released from incarceration.

We find this assignment to be without merit.

ASSIGNMENT OF ERROR NUMBER 3

By this assignment, appellant contends that he was deprived of his right to a full voir dire examination of a particular prospective juror whom the court dismissed for cause. Appellant’s objection is based on the following exchange, which occurred during the State’s voir dire:

“Q. Okay. And, would you have any problems with police testimony?
A. Yes.
Q. You would? In other words, you would not be able to be fair, and listen objectively to the testimony of a police officer.
A. Not too much.
BY MR. WILLIAMS:
Your Honor, based on the juror’s answer, I would challenge for cause.
BY MR. KOCH:
Well, if Your Honor says he has answered positively to conclusions reached by the district attorney. He does not say whether or not he can change his mind under instructions of the court as to what to do. I think that’s the fair question.”

The trial court then repeatedly offered defense counsel an opportunity to rehabilitate the juror; however, counsel refused to question the juror at that time, opting to question the entire panel at one time:

“BY THE COURT:
Well, you want to ask him some questions, sir?
BY MR. KOCH:
Sir?
BY THE COURT:
You want to ask him some questions? BY MR. KOCH:
When my time comes, yes, sir.
BY THE COURT:
Well, your time is right now because I’ve got to rule on the challenge ...
BY MR. KOCH:
Well, I’m making my motion ... I’m not voir diring right now. I’m making my motion for the ...
BY THE COURT:
I don’t care whether you’re voir diring or not, I’m telling you to question the man now.
BY MR. KOCH:
No, sir. I’m not going to do it now. I’m going to wait for my turn ... respectfully ... I don’t feel that the district attorney has covered this man’s so-called prejudice.
BY THE COURT:
Well, I’m offering you an opportunity to do it.
BY MR. KOCH:
When my time comes, Your Honor, I will do so.
BY THE COURT:
Now, is your time.
BY MR. KOCH:
No, sir. I do not relinquish my right to wait until my proper time to talk to everybody.
BY THE COURT:
I’m telling you your time is now. You’re not going to question him now? BY MR. KOCH:
All right. I’m not going to argue with the court anymore, Your Honor.
BY THE COURT:
The challenge is good. Go back to the jury lounge, sir.
BY MR. KOCH:
Let my objection be stated for the record.”

The Louisiana Supreme Court has stated that the essential elements of fairness require that defense counsel be given the same chance at rebuttal and rehabilitation of prospective jurors that is consistently afforded the prosecution. State v. Claiborne, 397 So.2d 486 (La.1981). The defense counsel was given this opportunity yet he refused to exercise it, and thereby waived the opportunity.

In ruling on challenges for cause, the trial judge is vested with broad discretion; his ruling will be reversed only when a review of the entire voir dire reveals that the judge’s exercise of discretion was arbitrary and unreasonable with resultant prejudice to the accused. State v. Knighton, 436 So.2d 1141 (La.1983). It does not appear to us that the trial judge abused his broad discretion in this case. He gave counsel an opportunity to rehabilitate a prospective juror, and counsel declined to do so.

This assignment of error is, therefore, without merit.

ASSIGNMENT OF ERROR NUMBER 4

Appellant argues in this assignment of error that the trial judge erred in restricting defense questioning of a witness as to her personal knowledge of the victim’s drinking habits. Appellant contends that this issue was relevant in ascertaining whether the victim’s perception may have been affected by alcohol and her description and identification of the defendant thus mistaken.

Accordingly, a question addressed to the victim regarding to amount of alcohol or other intoxicants consumed on the night of the incident would be proper since it bears on the witness’ ability to perceive that which she is testifying about and is a proper subject for cross-examination. State v. Williams, 410 So.2d 217 (La.1982). The record reflects that the victim was, in fact, cross-examined by defense counsel on this issue. Evidence of a witness’ habitual intemperance or drug addiction, however, is not admissible for these reasons, because it bears little relevance to the credibility of the witness or any relevant matter at trial. State v. Landry, 359 So.2d 99 (La.1978); State v. Sutfield, 354 So.2d 1334 (La.1978).

In the instant case, defense counsel questioned the victim regarding her drinking on the night of the offense, and would have been permitted to question the neighbor, Ms. Casias, as to whether the victim was intoxicated on the night of the offense since the victim’s perception, or lack thereof, is a relevant issue at trial. However, defense counsel attempted to elicit testimony of the victim’s reputation for drinking, which is totally irrelevant to any issue at trial. Thus, the trial court’s ruling was not an abuse of discretion.

This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER 5

By this assignment, the defendant contends that the evidence was insufficient to support the jury’s finding of aggravated rape.

Aggravated rape, as defined in LSA-R.S. 14:42, is

... a rape committed where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) Where the victim resists the act to the utmost, but whose resistance is overcome by force; or
(2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power or execution; or
(3) Where the victim is prevented from resisting the act because the offender is armed with a dangerous weapon; or
(4) Where the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.

Rape is defined as “the act of anal or vaginal sexual intercourse with a male or female person who is not the spouse of the offender, committed without the person’s lawful consent.” LSA-R.S. 14:41.

Evidence presented at trial established that the defendant had sexual intercourse with the victim without her consent; that she was prevented from resisting the act by the defendant’s threats to kill her and his apparent ability to execute those threats with the screwdriver; and additionally, that she was prevented from resisting because Sosa was armed with the screwdriver, a dangerous weapon under the circumstances.

Following the criteria first enunciated by the U.S. Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 2781 (1979), we conclude that any rational trier of fact, viewing the evidence in a light most favorable to the prosecution, could have found in this case that the essential elements of the crime of aggravated rape were proved beyond a reasonable doubt. State v. Fuller, 414 So.2d 306 (La.1982); State v. Willie, 422 So.2d 1128 (La.1982); State v. Campuzano, 404 So.2d 1217 (La.1981).

The appellant also maintains by this assignment that the distinction between aggravated rape and forcible rape is vague and blurred. This issue, however, has previously been decided adversely to appellant. In State v. Parish, 405 So.2d 1080 (La.1981) (on rehearing), also, 429 So.2d 442 (La.1983), the court found that although the legal definition of aggravated rape as set forth in LSA-R.S. 14:42(2) and forcible rape are virtually identical, a distinction can be made based on the “degree of force employed and the extent to which the victim resists.” However, in the instant case, it is clear that the defendant’s actions constitute aggravated rape as defined by LSA-R.S. 14:42(3) because he was armed with a dangerous weapon, and there exists, therefore, no “grey area” to cloud our review of the facts of this case.

This assignment is without merit.

For the reasons stated above, the defendant’s conviction is affirmed.

AFFIRMED.

      . The record shows that defense attorney was not present on the day pretrial hearing was scheduled and was attached by the court. He subsequently requested to be allowed to withdraw from the case, which request the judge denied.

      . This article was amended in 1982 to provide that the 120 day period ran from the day the Motion for a Speedy Trial was filed, not from the day the defendant was arraigned.

      . Evidence admitted at trial of a defendant’s drug addiction or alcohol addiction has been held to be reversible error. See State v. Landry, supra; State v. Sutfield, supra.


text:
    Honie Ann HERQUET v. Norman P. FORD, Michael Chaisson, Affiliated Foods, Inc., Aetna Insurance Company and Ryder Truck Rental Service, Inc.
    No. CA 1167.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Writ Denied March 23, 1984.
    Norman Mopsik, J.D., P.C., New Orleans, for plaintiff-appellant.
    Paul W. Grego, Schafer & Schafer, New Orleans, for defendants-appellees.

      Before GARRISON, GULOTTA and LO-BRANO, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court rendered on December 13, 1982, granting judgment as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that there by judgment herein in favor of defendants, Michael Chaisson, Affiliated Foods, Inc. and Aetna Insurance Co. and against plaintiff Honie Ann Her-quet dismissing plaintiffs suit.” From that judgment, which we affirm, plaintiff appeals.

The trial judge further provided the following written reasons for judgment:

“The record in this ease is devoid of any proof of negligence by Michael Chaisson. The record amply supports defendants’ contention that the cause of plaintiffs injuries was the negligence of Norman P. Ford. It is regrettable that Mr. Ford is not able to respond in damages to compensate the innocent victim of his negligent conduct.”

FACTS

On July 30, 1980, plaintiff Honie Herquet was a guest passenger on a motorcycle owned and driven by defendant Norman P. Ford. Michael P. Chaisson was driving a rental truck owned by Ryder Truck Rental Service. It is conceded that at the time of the accident Chaisson was acting in the scope of his employment and on behalf of his employer, Affiliated Foods, Inc.

On July 30, at approximately 6:10 p.m. plaintiff and defendants were involved in an accident at the intersection of Canal Street and Roman Street in New Orleans. Defendant Chaisson was driving an eighteen wheel tractor-trailer in a lakebourid direction on Canal Street, a non-truck route. At the Roman Street intersection, Chaisson began to execute a left turn from the center lane. The driver of the motorcycle, Norman Ford, applied his brakes and the motorcycle skidded over one hundred feet. There was no impact between the motorcycle and the truck. Plaintiff Honie Herquet, a guest passenger on the motorcycle was rendered unconscious. Both defendants received traffic citations, Ford for reckless operation and Chaisson for improper lane usage.

On appeal, plaintiff raises the following specifications of error:

“1. There was at least slight negligence on the part of the tractor-trailer driver, Michael Chaisson, which contributed in someway to the damages and injureis sustained by the Appellant to her person.
2. Michael Chaisson, the tractor-trailer driver was at all times acting with in the course and scope of his employment which would result in his employer and his employers’ insurance carrier being held responsible for Mr. Chaisson’s negli-gences.
3. All of the appellees are liable to the Appellant IN SOLIDO.” (Plaintiff’s brief, p. 2). •

■ Turning to the first issue presented, we note that plaintiff testified that the truck “cut” in front of the motorcycle, giving a turn signal as it moved in front of the bike, thus forcing Norman Ford to take sudden evasive action. Defendant testified that he was travelling in the left lane, changed to the middle lane, activated his left turn signal well in advance, and had completely stopped, having successfully negotiated the turn, all prior to the time when he first heard the sound of the motorcycle’s commencement of the skid. The investigating officer testified that from the location of the truck, which had not been moved prior to his arrival, the truck had successfully completed the turn. Defendant’s accident reconstruction expert testified that Norman P. Ford must have been speeding in order to leave skid marks of such length on that roadway.

Upon our independent review of the evidence and testimony presented, we cannot conclude that the trial court was manifestly erroneous in its factual determinations. Cantor v. Koehring Co., 283 So.2d 716 (La., 1973); Arceneaux v. Domingue, 365 So.2d 1330 (La., 1978).

Turning to issues of law presented, the trial judge found total negligence on the part of Norman Ford. From the service returns contained in the record, it appears that Ford may not have been served. There is -no return for Ford indicating either that he had been served or had not been served, although plaintiff had requested service on her petition. Thus, there is no judgment dealing with Ford. Plaintiff argues that Ford and Chaisson are debtors in solido to plaintiff as joint tort feasors. The trial judge’s specific findings, however, that Chaisson was not negligent, specifically excludes a finding that he is a joint tortfeasor. It could conceivably be argued that “but for” Chaisson’s truck blocking the lane, the motorcycle driver would have not attempted to stop, thus injuring Herquet, as plaintiff is attempting to argue in the instant case, however Chaisson is not a joint tortfeasor.

While Chaisson’s legitimate actions gave rise to the situation, they are not grave enough to be deemed “negligence” under the old law. The comparative negligence scheme became effective August 1, 1980 or two days after the instant accident on July 30, 1980. While under comparative the case could potentially have reached an opposite result, comparative negligence was not in effect at the time.

Having affirmed the actions of the trial court on this issue, it is unnecessary to address plaintiff’s other specifications of error.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.


text:
    Armand J. DUVIO, Sr. v. CONTINENTAL CASUALTY COMPANY.
    No. CA 1176.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.

      Stephen P. Bruno and Frank S. Bruno, Bruno & Bruno, New Orleans, for plaintiff-appellant.
    James Ryan, III and Peter S. Title, Sessions, Fishman, Rosenson, Boisfontaine & Nathan, New Orleans, for defendant-appel-lee.
    Before GARRISON, AUGUSTINE and BYRNES, JJ.
   GARRISON, Judge.

This is an appeal by plaintiff from the trial court’s judgment in a worker’s compensation suit.

Plaintiff Armand Duvio was employed by Building Engineering Services Co. Inc. (BESCO) as a plumber when he fell from a ladder on May 26, 1976, while working on the plumbing system at the Louisiana Su-perdome. His employer’s worker’s compensation insurer, Continental Casualty Co. (CCC) paid him benefits of $85.00 per week from the time of the accident until March 9, 1980, when CCC, based on a surveillance report, concluded that Duvio was again working as a plumber. CCC terminated benefits and Duvio instituted suit, alleging that the discontinuation of benefits was without cause.

The trial court found that as a result of the accident, Duvio was permanently partially disabled under La.R.S. 23:1221 and therefore entitled to two-thirds of the difference between his wages at the time of the injury and any lesser wages he might earn, not to exceed $85.00 per week, with credit for the benefits paid through March 9, 1980. The court also found that Duvio failed to show that he has earned lesser wages since March 9, 1980, and that he is thus not entitled to any benefits since that time. The court additionally held that Du-vio was entitled to $350.00 attorney’s fees based on CCC’s arbitrary and capricious failure to pay plaintiff $25.00 for a doctor’s office visit in August 1980.

Plaintiff has appealed the trial court’s judgment, contending that the trial court erred in the following respects: (1) concluding from the evidence that plaintiff was partially, rather than totally disabled; (2) failing to award plaintiff benefits for treatment of his cervical disc disease; and (3) awarding only $350.00 as attorney fees.

The facts surrounding appellant’s accident and subsequent medical condition are. as follows. On May 26,1976, appellant had been employed by BESCO as a maintenance plumber for eleven months. His duties included general maintenance of drains, air conditioner condensate lines and sewer lines, as well as repair of water leaks, hand washers, toilets and water fountains.

At the time of the accident, appellant was standing upon a six-foot ladder changing a drain line. He was pushing on a large wrench in an attempt to loosen a piece of pipe, when he apparently lost his balance and fell. Plaintiff landed on his buttocks, back and elbow. He was immediately taken to the emergency room of Hotel Dieu hospital where he was hospitalized for an acute cervical sprain, pain in his neck, limited motion radiating into his arm, and pain and swelling from a contusion of his right elbow. His treating physician, Dr. Walter Brent, an orthopedic surgeon, prescribed rest and medication.

In the months that followed, Mr. Duvio developed dizziness and partial hearing loss in one ear, the result of a vestibular contusion which his doctors associated with the May accident. He was hospitalized for testing and, when tests proved normal, he was placed on medication to suppress imbalances in his inner ear and lessen dizziness. By mid-October 1976, appellant’s dizziness had receded and he was back at his job. His neurologist, Dr. Trahant, felt at that time that Mr. Duvio could return to full duties.

Appellant’s cervical condition, however, deteriorated to the point that he required surgery in February 1977 for a herniated C5-6 cervical disc. This surgery was performed by Dr. Joseph Nadell, a neurosurgeon, who did not testify at trial.

Further, appellant continued to experience pain and limited motion in his elbow such that surgery was performed in March 1978 for what Dr. Brent in his deposition termed chronic radiohumeral bursitis. Dr. Brent noted that by July 1978, appellant had only minimal limitation of motion in his elbow, and that he did not see Mr. Duvio again until an April 1980 re-evaluation, when he had complaints of continuing elbow pain. He further stated that as of August 1980 he was of the opinion that Mr. Duvio had a partial permanent disability of 15-20%, and therefore could not engage in activities that required heavy manual labor.

Based on the evidence, we find that the trial court’s finding of partial disability was correct. Permanent total disability is defined by La.R.S. 23:1221(2) as “total disability of an employee to engage in any gainful occupation for wages, whether or not of the same or a similar occupation as that in which the employee was customarily engaged when injured...” Permanent partial disability is the disability of the employee to perform “the duties in which he was customarily engaged when injured or duties of the same or similar character, nature or description for which he was fitted by education, training and experience ...”

The only expert opinion introduced with respect to the measure of appellant’s disability was in the form of Dr. Brent’s deposition, in which he asserted that Mr. Duvio could not engage in activities which required heavy lifting, but that he could perform lighter work. It is clear that the injury to appellant's elbow leaves him with a partial rather than total disability.

This is especially true in light of the fact that between 1979 and 1982 Mr. Duvio was engaged in a plumbing contracting business, Armand Plumbing, which he took over from his father and where he acted primarily in a supervisory capacity. Accordingly, we conclude that the trial court was not manifestly erroneous on this issue.

Turning to the question of wages earned, we note that plaintiff testified as to the gross amount of various contracts awarded to him. As pointed out by plaintiff, the gross amount of the contract does not necessarily equal his profit or income therefrom, as it fails to take into account his costs of materials, labor, overhead, etc. Plaintiff attempted to prove his costs by testifying from a list that he had prepared after reviewing Sewerage & Water Board records. He did not, however, produce the records. When the trial judge prevented plaintiff from testifying from the list on the grounds that it was a self-serving document and hearsay, plaintiff failed to proffer the document. As plaintiff failed to proffer, he cannot now be heard to complain on appeal. Greene v. Wright, 365 So.2d 551 (La.App. 1st, 1978); Carroll v. Guillot, 337 So.2d 310 (La.App. 3rd, 1976); Nettles v. Evans, 303 So.2d 306 (La.App. 1st, 1974).

We further note that plaintiff could have introduced other evidence, such as his own business records, payroll checks, income tax returns, but failed to do so.

Turning to the question of unpaid medical bills and penalties to attorney’s fees, we note the trial court ordered CCC to pay Mr. Duvio’s medical bill of $25.00 for an office visit to Dr. Brent and awarded attorney’s fees to plaintiff on the grounds that the insurer’s refusal to pay was arbitrary and capricious.

Plaintiff argues that the trial court erred in failing to order the insurer to pay another outstanding bill in the amount of $235.00. Plaintiff had never submitted this bill to the insurer for payment. For the trial court to have awarded payment prior to presentment for payment would clearly have been premature. We find that the trial court is correct in its ruling on this matter.

The insurer had received the $25.00 bill awarded and provided no reason for refusal of payment. Accordingly, the trial judge was correct in his factual determination that the insurer acted in an arbitrary and capricious manner such that attorney’s fees were due.

Turning to the amount of attorney’s fees awarded, we find that the amount awarded is not a clear abuse of discretion. Lastly, we note, as did the trial judge, that plaintiff is entitled to re-open this matter pursuant to R.S. 23:1331.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.


author: BARRY, Judge.

text:
    STATE of Louisiana v. Leroy OLSEN.
    No. KA-1058.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.
    Rehearing Denied March 21, 1984.
    Writ Denied June 1, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry' P. Connick, Dist. Atty., Beryl M. McSmith, Susan Scott Hunt, Asst. Dist. Attys., New Orleans, for plaintiff-appellee.
    Anthony L. Glorioso, Glorioso & Fleming, New Orleans, for defendant-appellant.
    Before REDMANN, C.J., and BARRY and WILLIAMS, JJ.
   BARRY, Judge.

Defendant Leroy F. Olsen pled guilty to three counts of gambling, LSA-R.S. 14:90, but reserved his right to appeal the denial of his motion to suppress. He was fined $500.00 on each count or five months in Parish Prison; two counts were suspended.

Defendant attacks the search warrant on two grounds: affiants made false statements in the affidavit and the affidavit was insufficient for the magistrate to determine that evidence of a crime was in the premises to be searched, 7700 New Castle Street. By brief defendant argues the trial judge erred by refusing to allow disclosure of the confidential informant.

The record is void of any request by defendant for the identity of the informant, except for a statement in the motion to suppress asking for the right to cross-examine. By entering a guilty plea defendant waived all non-jurisdictional defects. He only reserved his right to appeal the denial of the motion to suppress. The defendant may test the veracity of the affiant at the suppression hearing. However, a motion to suppress is an inappropriate means to challenge the informant's credibility or to request the informant’s identity. State v. Paster, 373 So.2d 170 (La.1979). Therefore, this issue is not before us.

The affidavit recounted information from the informant, such as the phone number to place bets with defendant and a telephone number forwarding system, both of which were verified in defendant’s name. The officers knew the defendant from prior arrests for gambling. They conducted a stakeout of defendant’s residence at 7700 New Castle and observed his movements to 7579 Forest Glynn Road in a blue and white Cadillac. With an officer listening, the informant dialed defendant’s phone number and placed a bet with “Leroy”. The affidavit provided detailed information on the surveillance which occurred on January 7-8, 1981.

A warrant was issued to search 7700 New Castle Street and the return lists the following seized property:

“one brown wall telephone
one Texas calculator
one stapler
numerous pages of illegal wagers
two beige telephones
pens
other gambling paraphernalia
turf & sports mirrors.”

At the hearing on the motion to suppress, the State submitted the matter based on the warrant and affidavit. The defense offered two alibi witnesses and the defendant.

George Strickland, a-mutual manager at the Fairgrounds, testified that window sheets and a balance sheet dated January •8, 1981 (the second day of the surveillance) indicated the defendant, an employee at the Fairgrounds, worked' a full day during which the alleged stakeout took place. Strickland admitted he did not remeber seeing defendant on that date and it was possible another person used defendant’s identification card.

Dominick Petaglia, a friend of defendant’s, testified the blue and white Cadillac police saw defendant allegedly drive between New Castle Street and 7579 Forest Glynn Road belonged to his wife. He stated the defendant never drove the car which was always parked at the Petaglia home, 7579 Forest Glynn Road. He maintained that he and his wife were home on January 7 and 8 and the defendant did not go there.

Defendant identified his signature on the Fairgrounds balance sheet and asserted he was working there on January 8, 1981. He insisted he never drove the blue and white Cadillac. On cross-examination he admitted a gambling conviction in 1973 and acknowledged that he lied on his application for employment at the Fairgrounds by stating he had never been arrested or convicted of gambling.

The trial judge had to compare and assess the facts in the affidavit with the account given by defendant and his witnesses. • That determination of credibility is given great weight and will not be overturned absent an abuse of discretion. State v. Loyd, 425 So.2d 710 (La.1982). The trial judge made a fact call which is fairly well supported by the record and we have no,basis to find error.

Defendant’s next assignment claims the affidavit fails to present sufficient factual information to support the search warrant. Art. 1 Sec. 5 of the 1974 Louisiana Constitution requires that a search warrant issue only upon an affidavit that establishes probable cause to the satisfaction of the issuing magistrate. C.Cr.P. Art. 162. “Probable cause exists when the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched.” State v. Johnson, 408 So.2d 1280, 1283 (La.1982).

Where an informant’s tip is an essential part of the affidavit, it must set forth underlying circumstances which inform the magistrate that the informant and the information given by him are credible and reliable. State v. Tranum, 384 So.2d 367 (La.1980). The determination of probable cause to issue a search warrant does not involve proof beyond a reasonable doubt, but turns on probabilities within the particular factual context.

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit, there is a “fair probability” that evidence of a crime will be found in a particular place; and the task of the reviewing court is simply to insure that the magistrate had a “substantial basis” for concluding that probable cause existed. (Emphasis in original) State v. Lingle, 436 So.2d 456, 460 (La.1983) citing Illinois v. Gates, — U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

The magistrate’s determination of probable cause is entitled to great deference by the reviewing court and marginal cases should be resolved in favor of finding the magistrate’s assessment reasonable. State v. Rodrigue, 437 So.2d 830 (La.1983).

This case began with a confidential informant. The warrant’s affidavit states the informant had been reliable and previous information led to convictions involving illegal gambling. The “tip” was allegedly based on the informant’s personal participation in the gambling activities. Thus, the warrant provided sufficient facts to support the informant’s credibility. Additionally, the officers corroborated the information by verifying the phone number listed to defendant and the call forwarding system at 7700 New Castle Street. The surveillance and the officer’s listening on an extension phone while the informant placed a bet with defendant further corroborated the informant.

The affidavit is also sufficient to support a reasonable belief that evidence of the crime could be found at either address, particularly at 7700 New Castle Street. The phone number was listed to defendant at that address. On January 7 and 8, 1981 police officers observed defendant exit New Castle Street carrying papers and arrive at Forest Glynn Road with the papers. While defendant was at Forest Glynn, the informant, with an officer watching and listening, called and made a wager with “Leroy.”

The totality of circumstances presented to the issuing magistrate established a “fair probability” that evidence of a crime would be found in 7700 New Castle Street.

The judgment of the district court denying the motion to suppress is affirmed.

AFFIRMED.

      . A hearing was held on August 31, 1981. That transcript was lost and a second hearing was held on September 3, 1982.