author: KNOLL, Judge. STOKER, Judge,

text:
    Carlyle Phillip WHITTINGTON, Individually and on Behalf of the Minor, Michael Shane Collum, Plaintiff-2nd Appellant, v. SOWELA TECHNICAL INSTITUTE, et al., Defendant-1st & 3rd Appellants.
    No. 83-143.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 16, 1983.
    Rehearing Denied Oct. 12, 1983.
    Writs Denied Dec. 16,1983.

      Woodley, Barnett, Cox, Williams & Fen-et, J.L. Cox, Jones, Tete, Nolen, Hanchey, Swift & Spears, Bret L. Barham, Lake Charles, for defendant-appellee-appellant.
    Brame, Bergstedt & Brame, Joe A. Brame, Lake Charles, Roy A. Mongrue, Baton Rouge, Stockwell, Sievert, Viccellio, Clements & Shaddock, Robert W. Clements, Thomas W. Sanders, Lake Charles, McGlin-chey, Stafford, Mintz & Cellini, Ernest P. Gieger, Jr., New Orleans, Scofield, Bergst-edt, Gerard, Mount & Vernon, John B. Sco-field, Lake Charles, for defendant-appellee.
    Raggio, Cappel, Chozen & Berniard, Fred L. Cappel, Lake Charles, for defendant-ap-pellee-appellant.
    Before STOKER, DOUCET and KNOLL, JJ.
   KNOLL, Judge.

Carlyle Phillip Whittington filed suit individually and on behalf of the minor child, Michael Shane Whittington (Michael was the son of the deceased from a prior marriage. His natural father [Mr. Collum] was also deceased. After the death of his mother, he was legally adopted by his stepfather, Mr. Whittington.), for the death of Wanda Whittington, plaintiffs’ wife and mother respectively. Named as defendants were Sowela Technical Institute (hereafter Sowe-la) and the State Board of Elementary and Secondary Education (hereafter BESE), and their insurer, Travelers Insurance Company (hereafter Travelers); Jean B. Teel and her insurer, Allstate Insurance Company (hereafter Allstate); American International Rent-A-Car Corporation; Chrysler Corporation; E.G. McFillen d/b/a American International of Lake Charles; and National Union Fire Insurance Company (hereafter National Union).

Third party demands were filed by all defendants including third party demands against Acme Truck Line, Inc. Additionally, Sowela filed a third party demand against Continental Insurance Company (hereafter Continental).

Prior to trial summary judgment was granted in favor of American International Rent-A-Car dismissing it from the suit.

LSA-R.S. 13:5105 prohibits jury trials against public bodies. Accordingly, plaintiffs’ claims against Sowela, BESE, and Sowela’s third party demand against Continental were reserved to the trial judge. The determination of the extent of coverage provided by the National Union insurance policy was also reserved to the trial judge. All other issues were tried before a jury.

After a ten day jury trial a verdict was returned in favor of plaintiffs, Carlyle Phillip Whittington, individually and on behalf of the minor, Michael Shane Whittington, and against Jean Teel, Travelers as insurer of Sowela and BESE, National Union, and Allstate, assessing damages in favor of plaintiff, Carlyle Phillip Whittington, in the amount of $102,000.00 and in favor of plaintiff, Michael Shane Whittington, in the amount of $300,000.00. A verdict was rendered in favor of defendant, E.G. McFillen, d/b/a American International of Lake Charles. Also, judgment was rendered in favor of Acme Truck Line on the various third party demands filed by the defendants.

All remaining matters were submitted to the trial judge who assigned written reasons for judgment against Sowela and BESE, awarding $179,395.00 to plaintiff, Carlyle Phillip Whittington, and $226,781.00 to Michael Shane Whittington. .The trial judge also rendered judgment in favor of Continental on the demand by Sowela, and further held that the policy of insurance issued by National Union provided limits of $10,000.00.

On November 23, 1982, a formal judgment was rendered on the verdicts handed down by the jury and by the trial judge. A suspensive appeal was timely filed on behalf of Sowela, BESE, and Travelers. Subsequently, a devolutive appeal was taken by plaintiffs to preserve certain issues not raised by first appellant. A devolutive appeal was also taken on behalf of Jean B. Teel. Allstate has deposited its policy limits into the registry of the court.

Sowela, BESE, and Travelers urge the following ten assignments of error:

1.) The Court erred in withholding evidence that releases had been signed by all the nurses taking this trip, including Wanda Whittington.

2.) The court erred in withholding evidence that plaintiff, Carlyle P. Whittington, had remarried.

3.) The court erred in excluding testimony from the jury regarding an impending separation between plaintiff and decedent.

4.) The court erred in limiting coverage of National Union to $10,000 rather than $100,000 for this accident.

5.) The court and the jury erred in finding that Jean Teel was an agent for Sowela in procuring the vehicle to be used for the field trip.

6.) The court and the jury erred in finding that Jean Teel was an agent for Sowela while operating the vehicle on the field trip.

7.) The court and the jury erred in not finding that the students on the field trip were engaged in a joint venture with the imputation of any negligence on the part of Jean Teel to each of them.

8.) The damages awarded by both the court and the jury were excessive.

9.) The court and the jury erred in finding that Jean Teel was negligent in her operation of the van.

10.) The court erred in dismissing Sowela’s third party demand against Continental.

The plaintiffs urge the following three assignments of error:

1.) The trial court erred in holding that the policy of insurance issued by National Union on the van had limits of $10,000 rather than $100,000.

2.) The trial judge erred in holding that there was no independent negligence on behalf of Sowela through its administrative or instructional personnel.

3.) The damages assessed by the trial judge and the jury were inadequate.

FACTS

Wanda Whittington was a member of the senior nursing class at Sowela located in Lake Charles. On April 6, 1979 the senior nursing students were participating in a field trip to tour M.D. Anderson Hospital in Houston, Texas. Mrs. Whittington, along with 15 other class members and 2 Sowela faculty members were occupying a 15 passenger Plymouth Voyager van owned by the Terry B. Mack Corporation and/or E.G. McFillen, d/b/a American Rent-A-Car of Lake Charles. The van was driven by Jean Teel, a member of the nursing class. While proceeding west on Interstate 10 in the vicinity of Hankamer, Texas, the van was “tail-gated” by an “18-wheeler” tractor-trailer unit. The accident occurred when Jean Teel negotiated the van from the inside lane to the outside lane to allow the “18-wheeler” to pass. In this maneuver, the van strayed from the main traveled portion of the highway onto the shoulder. Jean Teel, attempted to drive the van back onto the highway, lost control and overturned, resulting in the deaths of Mrs. Whittington and another student, as well as multiple injuries to the other passengers. Mrs. Whittington showed signs of life for 15 to 20 minutes.

RELEASE

As a requirement to participate in the trip to M.D. Anderson Hospital, Sowela distributed a mimeographed “release” form to each student nurse for signature. The Whittington document read as follows:

“Sowela Technical Institute Practical Nursing Department
I, Wanda Whittington, voluntarily agree to participate in the following activity:
List activity — M. D. Anderson Senior Trip place- Houston, Texas date- 4-6-1979
and hereby relieve Sowela Technical Institute of any and all liability associated with the above.
s/Wanda Whittington_ Name
4-2-1979_ Date”

Mrs. Whittington signed the document and returned it to the school personnel.

Plaintiffs filed a motion in limine to preclude the introduction of any evidence concerning the “releases”. The trial court sustained the motion. Sowela, BESE and Travelers made a proffer of this evidence.

Where a contract is not contrary to public order or good morals, LSA-C.C. Art. 11 permits an individual to waive personal rights that the law has established. The codal article provides:

"Individuals can not by their conventions, derogate from the force of laws made for the preservation of public order on good morals.
But in all cases in which it is not expressly or impliedly prohibited, they can renounce what the law has established in their favor, when the renunciation does not affect the rights of others, and is not contrary to the public good.”

Sowela, BESE, and Travelers urge that the contract which Mrs. Whittington signed was validly executed and not in contravention of Civil Code Article 11. In support of their position four cases are cited: Forsyth v. Jefferson Downs, Inc., 152 So.2d 369 (La.App. 4th Cir.1962), writ refused 244 La. 895, 154 So.2d 767 (1963); Celestin v. Employers Mutual Liability Insurance Co. of Wisconsin, 387 F.2d 539 (5th Cir.1968); Battig v. Hartford Accident & Indemnity Co., 482 F.Supp. 338 (W.D.La.1977), affirmed 608 F.2d 119 (5th Cir.1980); and, Robillard v. P. & R. Racetracks, Inc., 405 So.2d 1203 (La.App. 1st Cir.1981).

The first Louisiana case which bears on the determination of the public policy question' was Sandel & Lastrapes v. City of Shreveport, 129 So.2d 620 (La.App. 2nd Cir.1961). That case stands for the broad proposition that: “It is contrary to public policy to allow a contractee to stipulate exemption from negligent acts which cause injury.”

Since Lastrapes, supra, was first penned only five Louisiana cases have dealt with the public policy issue herein presented. Three of the cases, Forsyth v. Jefferson Downs, Inc., supra, Celestin v. Employers Mutual Liability Insurance Co. of Wisconsin, supra, and, Robillard v. P. & R. Racetracks, Inc., supra, are readily distinguishable, as recognized in Diamond Crystal Salt Company v. Thielman, 395 F.2d 62 (5th Cir.1968), which held:

“There is clearly a distinction between holding that public policy forbids a contract whereby an attempt is made to prospectively absolve one of liability for injuries negligently caused through instru-mentalities in his exclusive control and holding that public policy allows a contract whereby one agrees to assume the risk of injuring himself when he is apprised of the nature of a dangerous condition and voluntarily continues to act.”

The fourth case, Battig v. Hartford Accident & Indemnity Co., supra, involves the execution of a release by a parent in connection with the enrollment of their mentally retarded child in a parochial boarding school. That case involved multiple defendants who, with the exception of the parochial school, amicably settled with the plaintiffs. In its discussion of that release the court relied upon an intent analysis based on Polozola v. Garlock, Inc., 343 So.2d 1000 (La.1977), and upheld the release. In Bat-tig, supra, the contracting parties to the release could freely and deliberately contract to release from any and all liabilities. The element of consent was a valid consent.

Under our civilian tradition a release is viewed as a contract. Richardson v. Ward, 202 So.2d 327 (La.App. 1st Cir.1967), writ refused, 251 La. 389, 204 So.2d 573 (1967). In order for a release or waiver to have legal validity it must possess the essential elements of any other contract. Branch v. Alexander, 231 La. 487, 91 So.2d 767 (1956). Consent is an essential element of a contract. LSA-C.C. Arts. 1779, 1797. The consent of each party to a contract must be a free and deliberate exercise of the contracting party’s will. LSA-C.C. Art. 1819.

Although Mrs. Whittington signed a document which stated that she agreed to voluntarily participate in the trip to M.D. Anderson Hospital, the context surrounding the execution of that document negates her statement. The school trip for the senior nursing students occurred annually. Before leaving on the field trip, form “releases” were distributed to all of the students. Twelve credit hours (double the normal hours earned per day) were earned for participating. The school did not offer alternative classes for any student who chose not to participate in the field trip. The circumstances attending the execution of the release clearly show that the parties were not dealing at arm’s length and upon an equal footing. Sowela dictated the terms of a purported release of any and all liabilities in an attempt to release it from a reasonably foreseeable danger. Under these circumstances we find that Mrs. Whittington could not give her free and deliberate consent. Public policy forbids the release whereby an attempt was made to prospectively absolve Sowela of liability for injuries negligently caused through in-strumentalities in the exclusive control of Sowela.

We therefore find that the trial judge was correct in sustaining plaintiffs’ motion in limine to preclude introduction of evidence concerning the “releases”.

REMARRIAGE

The plaintiffs utilized the motion in limine to prevent the defendants from introducing evidence of the remarriage of Carlyle Phillip Whittington after the death of Wanda Whittington. Sowela’s purpose in opposing the motion was for the mitigation of damages.

McFarland v. Illinois Central Railroad Co., 241 La. 15, 127 So.2d 183 (1961) controls this issue. In Lofton v. Cade, 359 So.2d 1074 (La.App. 3rd Cir.1978), writ refused 360 So.2d 1177 (La.1978) we reaffirmed McFarland, supra, and stated:

“The Louisiana jurisprudence is well settled that the remarriage or engagement to remarry of a surviving spouse can have no effect upon that spouse’s right of recovery, and is not to be considered in mitigation or reduction of the damages otherwise due. In McFarland v. Illinois Central Railroad Company, 241 La. 15, 127 So.2d 183 (1961), the Supreme Court stated that ratio decidendi of this doctrine is that the loss suffered by the surviving spouse is determinable by conditions which exist at the date of the wrongful death, as this is the time when a right and a cause of action for the damages arises; and that the tort feasor will not be permitted to show, and rely on, and hence to benefit from, a remarriage, or an intended remarriage in seeking a reduction of the damages for which he is responsible.”

We therefore find the trial judge correctly excluded the evidence.

HEARSAY

Sowela, BESE, and Travelers attempted to elicit testimony from three nursing school instructors regarding purported conversations which they had with Mrs. Whittington before her death concerning marital problems which existed between the decedent and Carlyle Whittington. The trial judge correctly excluded this testimony as being hearsay evidence. “The only declarations by a person since deceased, which are admissible as exceptions to the hearsay rule, are dying declarations, statements against interest and in rare instances pertaining to family history, relationship and pedigree, where they are received as a matter of necessity.” Miller v. Miller, 226 La. 273, 76 So.2d 3 (1954); Heap v. Newark Ins. Co., 129 So.2d 801 (La.App. 1st Cir.1961); Reed v. Thomas, 355 So.2d 277 (La.App. 2nd Cir.1978), writ denied, 357 So.2d 1153 (La.1978); Baker v. Life General Sec. Ins. Co., 405 So.2d 1162 (La.App. 1st Cir.1981). The testimony in this case was hearsay and did not fall within any of the recognized exceptions to the hearsay rule.

NATIONAL UNION COVERAGE

As a result of the rental agreement Jean Teel signed with E.J. McFillen, d/b/a American International Rent-A-Car, National Union provided liability coverage in favor of the Whittingtons for the damages caused by the negligent operation of the van. Since the amount of coverage was a legal question its determination was reserved to the trial judge who concluded that the limits of liability under the insurance contract was $10,000. We agree.

The rental agreement which Jean Teel signed provided the following definition of the word “customer”:

"... in consideration thereof, Customer, meaning the person(s) signing this Agreement and any other party to whom the charges incurred are billed at the express direction of such party or the person signing this Agreement, both being jointly and severally liable for such charges, agree to the following ...”

Under the clear and unambiguous terms of the rental agreement the customer is defined as being either the person signing the rental agreement or the party to whom the rental charges are billed. Jean Teel signed the agreement as customer; her name and address appear under the data portion of the agreement which pertains to “customer”; Jean Teel paid for all of the charges; Sowela received no bills as a result of this rental transaction. Under the definition of the rental contract we reach the inescapable conclusion that Jean Teel was the customer.

The liability coverage of the rental contract provided:

Customer is covered by an automobile liability insurance policy with limits of liability for bodily injury including death equal to the GREATER OF:
a) The limits of liability under the Customer’s personal automobile liability insurance policy in force as of the date of the execution of this Agreement, or
b) The statutory limits prescribed under the Financial Responsibility Law or other applicable statute of the state in which the Vehicle is rented.
PROVIDED HOWEVER that such limits shall not exceed $100,000.00 for each person and $300,000.00 for each accident and property damage of $25,000.00 for each accident. A copy of said policy is available for inspection at the main office of Lessor....”

Since it was stipulated that Jean Teel had a personal automobile liability insurance policy with Allstate Insurance Company in the sum of $10,000, the trial judge concluded that under the terms and conditions of the rental agreement the National Union coverage would be limited to a like amount.

The Whittingtons, Sowela, BESE, and Travelers present two arguments. First, they argue that the provision of the rental contract limiting Jean Teel’s coverage under the National Union policy to that provided by her Allstate policy is invalid and unenforceable under LSA-R.S. 22:628 which requires that provisions affecting insurance coverage be attached to the policy. R.S. 22:628 states in pertinent part:

“No agreement in conflict with, modifying, or extending the coverage of any contract of insurance shall be valid unless it is in writing and physically made a part of the policy or other written evidence of insurance, or it is incorporated in the policy or other written evidence of insurance by specific reference to another policy or written evidence of insurance.”

They argue that in order to determine insurance coverage a two-step reference procedure (from the endorsement of the National Union policy to the rental agreement and from the rental agreement to Jean Teel’s personal automobile liability policy) is required. This argument and the cases cited in support thereof, Jones v. Breaux, 289 So.2d 110 (La.1974); Spain v. Travelers Insurance Company, 332 So.2d 827 (La.1976); and LeBoyd v. Louisiana Transit Co., 375 So.2d 749 (La.App. 4th Cir.1979), were meritorious prior to the 1977 amendments to R.S. 22:628. However, under the current wording of that statute, incorporation by reference as utilized in the National Union policy is permissible. Accordingly, we find no merit to this first argument.

Second, they argue that because the jury found Jean Teel to be an agent of Sowela, that Sowela became the “customer” under the rental agreement and coverage under the National Union policy should be $100,000. As an agent, Jean Teel bound Sowela to the terms of the rental contract, including the restricted definition of “customer”. Under the contract definition of customer, Sowela could have been treated as a customer only if the rental agency had been expressly directed to bill it for the van rental. No such directive was ever effected.

Accordingly, the trial judge was correct in limiting the National Union policy to $10,000.

AGENCY-SERVANT STATUS

The trial judge and the jury found that Jean Teel was acting as the agent for Sowela when she rented the van and also in her operation of the van. Sowela, BESE, and Travelers disagree with these findings and further urge that even if Jean Teel was an agent for Sowela, under the rationale of Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968), they are not liable for the tor-tious acts of their agent. Certain restrictions were placed by the school administration, e.g.: the trip had to have an educational purpose relating to nursing; travel had to be done on a Friday and had to be completed in one day; the students could not travel in their private vehicles; two nursing instructors were required to attend and supervise the trip; and, the trip had to meet with the approval of the director of Sowela.

The trip to M.D. Anderson Hospital was a school function. Its purpose was to expose the students and supervisory personnel to actual nursing and medical experiences. Although no student was forced to attend, there existed a strong compulsion for their attendance. In order to graduate from Sowela a nursing student was required to accumulate a certain number of hours. Attendance at this field activity yielded twice the number of daily credits earned. This sanction clearly impresses us of the close educational function assigned to this activity and the high priority established by the school to attend. Additionally, Sowela required that school supervisory personnel be in attendance and paid their expenses for the trip.

The question of agency involves an analysis of the relationship between the principal and agent, and the right of control which the former has over the latter. In this case the senior class was to attend a field trip promoted by Sowela. Transportation of the students and two instructors for the trip was delegated by Sowela to the senior class, but subject to Sowela’s approval. There existed a close connexity between the authorized activity and the delegation of responsibility regarding transportation. The two activities are integral and inseparable. Jean Teel had no reason to independently rent the van. Her actions were as an agent for Sowela in securing transportation for the field trip.

Sowela, BESE and Travelers urge that even if Jean Teel was an agent of Sowela in driving the van she was not a servant of the school; therefore, her negligence could not be imputed to Sowela. In support of their contention they cite the case of Blanchard v. Ogima, supra.

In Blanchard the court held that a principal is not liable for the harm caused by the negligent activities of a non-servant agent. It found that Ogima was an independent free lance agent equating him to be a non-servant agent. Rather than disregard the holding of the Blanchard decision as being distinguishable on the facts, we conclude as did the trial judge, that the principles of law enunciated in Blanchard when applied to the case sub judice mandate a different result. The trial judge’s well reasoned opinion clearly distinguishes Blanchard, as follows:

“This court, of course, does not disagree with the Supreme Court’s enunciation of the principles of law in Blanchard, but it does believe that the facts of that case are readily distinguishable from the facts of this case. It further believes that the same principles of law when applied to the facts of this case dictate a different result than that reached in Blanchard. In Blanchard, the court held that a principal is not liable for the harm caused by negligent physical activities of a ‘non-servant agent.’ It found the defendant, Ogima, to be a non-servant agent. He was described as an independent freelance agent or salesman for one sale. The court stressed the lack of control by the principal over the agent.
The relationship between a car owner and a free-lance car salesman bears no resemblance to the relationship between a school and a person commissioned to drive students on a compulsory school function trip.
These nursing students were as compelled to go on this field trip as any student of any school is ever compelled to attend any school function. The only compulsion that can be used upon any student in any school is the use of sanctions in the event he fails to attend. The sanctions may include loss of credits, a failing or lower grade, expulsion, etc. In this sense, he is required to attend. At Sowela, the nursing students are required to accumulate a certain number of hours to graduate. If they went on this field trip to Houston, they would be given two days hourly credits. Of course, they did not have to go on the field trip. No one could force them to do so, but if they did not go, the sanction of loss of two days hourly credits would be imposed. The field trip was as much a required school function as any classroom activity.
The mode of transportation was not optional to any one student. Use of private cars was prohibited by the school. They had to go as a group-an act of control over the student. Two instructors whose expenses were paid by Sowela were to go with them — another act of control. The date of the trip was subject to the school’s approval.
While Sowela did not designate the particular conveyance to be used or the particular driver, it permitted, in fact, required, the class to select the means of transportation, but subject to the director’s approval. It is a further interesting fact that the only arrangement not subject to approval (control) was the selection of the driver. An implied agency relationship was created with the individual selected by the class to rent the van and with the individual selected by the class to drive the van.
Mrs. Teel was not simply a non-servant agent as was the salesman in Blanchard. She was an agent who was also a servant. She served the school by assisting it in the performance of its function as a school.”

The key principle enunciated by Blanchard in determination of the “agent-servant” status was: what right of control does the principal have over the physical movements of the agent? As discussed above, Sowela maintained great control over the physical activities of Jean Teel. It mandated the time and date of the proposed field trip. It had final approval of the destination to be visited. It had authority (whether or not actually utilized) over the mode of transportation and the selection of the driver. It had continuing control over the actions of the driver and the students by placing supervisory personnel to be in attendance with the senior nursing class at all times during the field trip.

In opposition, Sowela, BESE and Travelers assert that there existed no economic relationship between Jean Teel and the school. Although the existence of an economic relationship between principal and agent may be utilized as a criteria for the determination of the existence of a master-servant relationship, it is not essential to that determination. In order for an agency relationship to exist it is not a requirement that the agent receive compensation for the services rendered. Aucoin v. Hanson, 207 So.2d 834 (La.App. 3rd Cir.1968). The same is true of the master-servant relationship. Smith v. Foucha, 172 So.2d 318 (La.App. 4th Cir.1965), writ refused 247 La. 678, 173 So.2d 542 (La.1965); Bates v. Lagars, 193 So.2d 375 (La.App. 2nd Cir.1966), writ refused 250 La. 267, 195 So.2d 146 (1967); Ricker v. Thompson, 394 So.2d 831 (La.App. 4th Cir.1981).

In summation it is the employer’s right of control over the time and activities of the agent which is determinative of the status of servant. Blanchard, supra; Ricker, supra. Sowela had as much control over the time and physical activities of Jean Teel as any employer has over a compensated driver-employee. Accordingly we hold that the evidence fully supports the findings of the trial judge and jury that Jean Teel was the agent-servant of Sowela in both procuring the van and in its actual operation.

JOINT VENTURE

A joint venture is an undertaking by two or more persons to combine their property, capitol, labor or skill in any combination of these elements in the conduct of a particular line of trade or general business for joint profits, thus creating the status of a partnership, although the facts do not show a formal partnership. LSA-C.C. 2801; Huffman Technical Drilling, Inc. v. Smith, 424 So.2d 435 (La.App. 5th Cir.1982). In order to constitute a joint venture involving a vehicle, there must be not only joint interest in the objects and purposes of the enterprise, but also an equal right, express or implied, to direct and control the conduct of each other in the operation of the vehicle. Squyres v. Baldwin, 191 La. 249, 185 So. 14 (1938). As discussed in Frazell v. United States, 213 F.Supp. 457 (W.D.La.1963) reversed on other grounds 335 F.2d 487 (5th Cir.1964), writ denied, 380 U.S. 961, 85 S.Ct. 1104, 14 L.Ed.2d 152 (1965), “[t]he ultimate criterion is whether the parties actually intended to enter a joint venture, and, in arriving at this determination there are no hard and fast rules fixing the legal requisites. Each case must be considered sui generis ...

Although the nursing students shared a common destination, their individual interests were inseparable from that of Sowela. This was a school trip. There was no intention among the individual nursing students to form a joint venture separate from their enrollment as students at Sowe-la. The existence of the trip rested solely with Sowela and its administrative staff. The fact that the nursing students raised the funds for the entire expense of the van rental and gasoline is insufficient to establish the creation of a joint venture. See Orrell v. Southern Farm Bureau Casualty Ins. Co., 172 So.2d 180 (La.App. 3rd Cir.1965), reversed on other grounds 248 La. 576, 180 So.2d 710 (1965).

The jury and the trial judge found no joint venture to have existed. There was no intent to form a joint venture and Mrs. Whittington lacked the right to control the van or the manner of its operation. Sowe-la, even though it chose not to exercise its control, had the sole right, actual and theoretical, to control the use of the van and its manner of operation.

We concur with the conclusion of the jury and the trial judge in finding that neither Wanda Whittington, nor her senior nursing class was involved in a joint venture with Sowela.

TEEL’S NEGLIGENCE

Sowela, BESE and Travelers contend that the proximate cause of the accident was the “18-wheeler” and not any negligence by Jean Teel. Both the trial judge and the jury found that Jean Teel was negligent in her operation of the van.

From the outset we note that there was no collision between the “18-wheeler” and the van. The tractor-trailer was “tail-gating” the van which excited Jean Teel. She lost control which caused the van to overturn, killing Wanda Whittington and another student. The evidence clearly establishes that Jean Teel was traveling at an excessive rate of speed and failed to maintain proper control of the van.

The defendants contend that the doctrine of sudden emergency should apply. We disagree. In order to successfully assert the doctrine of sudden emergency it must be clearly established that the claimant’s own negligence did not precipitate the emergency. Palmieri v. Frierson (Palmieri v. Fireman’s Fund Insurance Company), 275 So.2d 214 (La.App. 1st Cir.1973), affirmed 288 So.2d 620 (La.1974); Powell v. State Farm Mutual Insurance Co., 304 So.2d 798 (La.App. 3rd Cir.1974) writ denied 309 So.2d 339 (La.1975).

We therefore find that the jury and trial judge were correct in their finding of negligence by Jean Teel.

SOWELA’S INDEPENDENT NEGLIGENCE

The jury found independent negligence on the part of Sowela but the trial judge in his written reasons did not decide this issue. Those written reasons deal solely with the question of vicarious liability. Since the trial judge did not determine the issue of independent negligence on the part of Sowela, plaintiffs assign as error and take the position in their brief that the trial judge found no- independent negligence on the part of Sowela and ask for a determination of this issue. Taking the position of contradictory findings as contended by plaintiffs, we must make our own determination in order to harmonize the judgments. See Thornton v. Moran, 348 So.2d 79 (La.App. 1st Cir.1977), writs denied 350 So.2d 897, 898, and 900 (La.1977).

We find that Sowela owed a duty to its students to provide transportation under safe conditions. The student trip to M.D. Anderson Hospital in Houston, Texas was a school function. We have consistently held that a greater degree of care must be exercised if students are required to engage in an activity where it is reasonably foreseeable that an accident or injury may occur. Prier v. Horace Mann Ins. Co., 351 So.2d 265 (La.App. 3rd Cir.1977), writ refused 352 So.2d 1042 and 1045 (La.1977). Transportation of 16 students and 2 instructors on a highly traveled interstate highway for a great distance is an activity where it is reasonably foreseeable that an accident may occur.

Sowela made the field trip a part of its curriculum but failed to have a uniform policy for the transportation of its students. Sowela remained in full control requiring the students to travel in a group and not allowing them to utilize their private vehicles. Sowela knowingly approved of an overcrowded condition in the van by allowing 18 persons to travel in a van designed to carry 15 passengers.

The 2 supervisors were on duty just as though they were in the classroom. Numerous complaints were heard in the van about the driving of Jean Teel, and comments about her ability to drive were made to the instructional personnel who failed to take any corrective measures to protect the students.

Sowela failed to ensure that a trained competent driver would be used to transport the students. Sowela’s only requirement for the driver of the van was to have a valid driver’s license. We find the fulfillment of this minimal requirement fails to meet the duty of the school to provide a driver qualified and trained in transporting a large group of students over a long distance on a heavily traveled interstate highway. The record reflects that, under these circumstances, Jean Teel was obviously an inexperienced driver. If the school had properly fulfilled its duty of providing a trained driver, e.g. a licensed chauffeur, the particular risk encountered may well have been averted. The failure of Sowela to meet this requirement was basis enough to justify the jury’s determination of independent negligence on the part of Sowela. The evidence as a whole clearly establishes the independent negligence of Sowela.

Accordingly, if the fact that the trial judge made no determination on the issue of independent negligence of Sowela, and if this constitutes a finding of no independent negligence on the part of Sowela as contended by plaintiffs-appellants, then we find the trial judge committed manifest error in not finding Sowela negligent and we reverse the trial judge’s determination of this fact.

THIRD PARTY DEMANDS AGAINST CONTINENTAL

This issue involves the third party demand brought by BESE and Sowela against Continental.

Continental issued a comprehensive general liability insurance policy insuring BESE and Sowela for “all sums which the insured shall become legally obligated to pay as damages because of A. bodily injury or B. property damage ... caused by an occurrence.” Coverage was limited by specific exclusions provided in the policy in Section 4 of endorsement G404 which reads:

“4. Transportation of Pupils: With respect to the transportation of students or pupils, exclusions (b) and (e) of the policy are replaced by the following: The insurance does not apply to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of any aircraft, automobile or watercraft owned, operated or hired by or for the insured or any officer, employee or member of the teaching, supervisory or administrative staff thereof. For the purpose of this exclusion the word ‘hired’ shall be deemed to include any contract to furnish transportation of pupils to and from schools.”

Continental’s policy did not provide coverage to Sowela for its liability arising out of the operation or use of an automobile. Coverage of that type was provided by Travelers.

Having already determined that Mrs. Teel was an agent for Sowela, we find that Sowela falls within the above exclusion. We therefore find the trial judge to have been correct in his dismissal of the third party demands against Continental.

QUANTUM

The defendants argue that the award of damages are excessive. The plaintiffs contend that the damages are inadequate. We have before us a bifurcated trial where the award to the plaintiffs by the trial judge and the jury are in different amounts. The jury gave a lump sum award of $102,000 to Carlyle Phillip Whittington and $300,000 to Michael Shane Whittington. The trial judge itemized his award granting to Carlyle Phillip Whittington $179,395 and to Michael Shane Whittington $226,781.

In our careful review of the record we do not find the trial judge’s award nor the jury’s award to be excessive or inadequate, but within the sound discretion of each. However, with two varying awards we are compelled to harmonize the differing awards in accordance with the standard set forth in Thornton v. Moran, supra. Further, this court held in Bunkie Bank & Trust Co. v. Avoyelles Parish Police Jury, 347 So.2d 1305 (La.App. 3rd Cir.1977) that where the judge and the jury reach conflicting decisions, it is not necessary for the trial judge to grant a new trial in an effort to seek a jury verdict which would be in harmony with the judge’s view of the case, and, the preferable procedure is that the court of appeal harmonize any conflict in decisions by the jury and the judge.

We therefore select and affirm the award of damages of the trial judge, as follows:

HUSBAND SON
Economic loss $124,281 $124,281
Loss of love and affection 50,000 100,000
Pain and suffering of Mrs. Whittington prior to her death 2,500 2,500
Funeral expenses 2,614 _
$179,395 $226,781

DECREE

For the foregoing reasons the judgment of the trial court is hereby amended so as to be consistent with the views expressed above in the award of damages and finding Sowela to be negligent. In all other respects the judgment is affirmed. The amended judgment shall read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of CARLYLE PHILLIP WHITTINGTON, on behalf of the minor, MICHAEL SHANE WHITTINGTON against JEAN B. TEEL, SOWELA TECHNICAL INSTITUTE, the BOARD OF ELEMENTARY AND SECONDARY EDUCATION, ALLSTATE INSURANCE COMPANY, TRAVELERS INSURANCE COMPANY, and NATIONAL UNION FIRE INSURANCE COMPANY, in solido, in the amount of TWO HUNDRED TWENTY-SIX THOUSAND SEVEN HUNDRED EIGHTY-ONE DOLLARS AND NO/lOO ($226,781.00) together with legal interest from judicial demand until paid.
IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment in favor of CARLYLE PHILLIP WHIT-TINGTON, individually, against JEAN B. TEEL, SOWELA TECHNICAL INSTITUTE, the BOARD OF ELEMENTARY AND SECONDARY EDUCATION, ALLSTATE INSURANCE COMPANY, TRAVELERS INSURANCE COMPANY, and NATIONAL UNION FIRE INSURANCE COMPANY, in solido, in the amount of ONE HUNDRED SEVENTY-NINE THOUSAND THREE HUNDRED NINETY-FIVE DOLLARS AND NO/lOO ($179,395.00) together with legal interest from judicial demand until paid. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the total liability of TRAVELERS INSURANCE COMPANY under the judgments set forth above be limited to its policy limits of $300,000 together with legal interest on the amount of said policy limits from judicial demand until paid.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the total liability of NATIONAL UNION FIRE INSURANCE COMPANY under the judgments set forth above be limited to its policy limits of $10,000, together with legal interest on the amount of said policy limits from judicial demand until paid. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the total liability of ALLSTATE INSURANCE COMPANY under the judgments set forth above be limited to its policy limits of $10,000 together with legal interest on the amount of said policy limits from judicial demand until paid.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the said jury verdict be, and it is hereby made the judgment of this Court, and, accordingly, judgment is rendered herein against third party plaintiffs, JEAN B. TEEL, ALLSTATE INSURANCE COMPANY, E.G. McFILLEN d/b/a AMERICAN INTERNATIONAL OF LAKE CHARLES, TERRY B. MACK CORPORATION, NATIONAL UNION FIRE INSURANCE COMPANY, SOWELA TECHNICAL INSTITUTE, THE STATE BOARD OF ELEMENTARY AND SECONDARY EDUCATION, TRAVELERS INSURANCE COMPANY, AND CHRYSLER CORPORATION, and in favor of third party defendant, ACME TRUCK LINE, INC., rejecting all of the demands of the third party plaintiffs and dismissing their suit, at their cost.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of third party defendant, CONTINENTAL INSURANCE COMPANY, and against third party plaintiff, SOWELA TECHNICAL INSTITUTE, rejecting all demands set forth in said third party demand, with prejudice. All costs of the trial court are assessed to defendants, JEAN B. TEEL, SOWELA TECHNICAL INSTITUTE, BOARD OF ELEMENTARY AND SECONDARY EDUCATION, TRAVELERS INSURANCE COMPANY, NATIONAL UNION FIRE INSURANCE COMPANY and ALLSTATE INSURANCE COMPANY.

For the above and foregoing reasons the judgment of the trial court is affirmed as amended. Costs of this appeal are assessed to the defendants.

AFFIRMED AS AMENDED.

STOKER, J., concurs and assigns written reasons.

STOKER, Judge,

concurring.

I fully concur in the holding of the majority opinion in this case. This concurrence is prompted because I entertain doubt that a master-servant relationship may be found absent a close economic relationship between a master and servant in addition to the element of close control of the employer. The majority holds it is not a requirement in order for an agency relationship to exist that the agent receive compensation for the services rendered and that the same holds true for a master-servant relationship. For these propositions the majority cites the cases of Aucoin v. Hanson, 207 So.2d 834 (La.App. 3rd Cir.1968); Smith v. Foucha, 172 So.2d 318 (La.App. 4th Cir.1965), writ refused 247 La. 678, 173 So.2d 542 (1965); Bates v. Lagars, 193 So.2d 375 (La.App. 2d Cir.1966), writ refused 250 La. 267, 195 So.2d 146 (1967); and Ricker v. Thompson, 394 So.2d 831 (La.App. 4th Cir.1981).

Sowela Technical Institute, State Board of Elementary and Secondary Education and Travelers Insurance Company rely on the case of Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (La.1968) for the proposition that no vicarious liability flowed from whatever relationship existed between Sowela and Jean B. Teel. The Blanchard case held that vicarious liability of the sort sought to be imposed here must be founded upon a master-servant relationship. The relationship must be based on a “close economic relationship” as well as close control. A servant is defined as “one who offers his personal services for a price.” Cf. LSA-C.C. art. 163.

With the exception of Ricker v. Thompson, supra, the four cases cited in the majority opinion were decided prior to the rendition of the Louisiana Supreme Court’s decision in Blanchard v. Ogima, supra. In the Ricker case the Court of Appeal for the Fourth Circuit found no employer-employee relationship. Hence, the statement in Rick-er that “lack of an economic relationship will not bar the existence of a principal-agent relationship” was not particularly significant. The case was decided on the absence of control by the alleged employer. Moreover, the statement just quoted was not original with the Court of Appeal, but was quoted from the trial court’s reasons for judgment with which the Court of Appeal stated it found no error. The Court of Appeal in Ricker then quoted at length from Blanchard v. Ogima, including that portion which holds that a close economic relationship (based on a price for services) is necessary to support the relationship. The two propositions are patently inconsistent.

In view of the in-depth consideration given in Blanchard v. Ogima to the principal-agent relationship necessary to support vicarious liability, the soundness of the Hanson v. Aucoin line of cases is questionable. In Bates v. Lagars the Court of Appeal for the Second Circuit held that a master-servant relationship may arise by implication and is applicable “where a volunteer renders services for another under circumstances such as those shown to exist in the instant case.” The circumstances were that a passing motorist stopped and was using his vehicle in an attempt to assist another motorist to get his vehicle out of the ditch when the plaintiff’s vehicle ran into the volunteer’s vehicle. In denying writs the Louisiana Supreme Court stated: “On the facts found by the Court of Appeal we find no error of law in its judgment.” Nevertheless, the Supreme Court in the following year decided Blanchard v. Ogima without mention of Bates v. Lagars or the Aucoin v. Hanson line of cases.

In view of the tenuous nature of the authority of the holding in the Aucoin v. Hanson line of cases, the question of independent negligence on the part of Sowela becomes quite significant. As ably demonstrated by the majority opinion in this case, Sowela exercised tight control of the field trip arrangements and conditions through laying down rules. It avoided the administrative chore of making actual arrangements for hired transportation including a driver by shifting that chore to the student nurses. Nevertheless, Sowela maintained such actual control that its role was little different from what might have been the case had Sowela actually rented the van and provided its own driver. No one would contest Sowela’s liability under such circumstances should the driver negligently caused harm to a passenger.

Under the circumstances of this case, Sowela, BESE and Travelers Insurance Company are liable to plaintiffs under Articles 2317 and 2320 of the Louisiana Civil Code. The factual circumstances necessary to support this liability (including the fact that Sowela could have prevented the accident and did not) was determined by the jury. The trial court’s written reasons for judgment deal with the question of vicarious liability only. No mention is made of the question of independent negligence of Sowela. If this constitutes rejection of plaintiffs demands on that ground, I agree that the trial court should be considered as having committed manifest error in this respect. Inasmuch as the trial court found vicarious liability, the judgment against Sowela and BESE as state agencies was supported, and there is no error in the judgment.

For these reasons I concur in the majority opinion.


source: Caselaw Access Project

author: YELVERTON, Judge.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Chester R. FORD, Defendant-Appellant.
    No. CR82-637.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 19, 1983.
    Rehearing Denied Oct. 18, 1983.
    Patrick L. Durusau, Jena, for defendant-appellant.
    Dan B. Cornett, and Norris Dale Jackson, Asst. Dist. Attys., Jena, for plaintiff-appel-lee.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

The defendant, Chester R. Ford, was charged by bill of information with the crime of possession of marijuana with intent to distribute in violation of former LSA-R.S. 40:964 Schedule 11(A)(5) and LSA-R.S. 40:967(A)(1). After entering a guilty plea, defendant was sentenced to five years imprisonment and a $1,000 fine. From this sentence he has appealed.

No assignments of error were perfected as required by LSA-C.Cr.P. art. 844. Therefore, this court is limited to a review of the record for errors that are discoverable by a mere inspection of the pleadings and proceedings. C.Cr.P. art. 920; State v. Jackson, 332 So.2d 211 (La.1976); State v. Gerald, 325 So.2d 574 (La.1976). We have reviewed the record and find no error.

Accordingly, the conviction and sentence are affirmed.

AFFIRMED.


author: YELYERTON, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Henry HORNE, Defendant-Appellant.
    No. CR82-840.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 19, 1983.
    Rehearing Denied Oct. 18, 1983.
    Richard V. Burnes, Alexandria, for defendant-appellant.
    Lamar P. Culpepper, and R. Greg Fowler, Asst. Dist. Attys., Alexandria, for plaintiff-appellee.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   YELYERTON, Judge.

Defendant, Henry Horne, pleaded guilty to the charge of possession of methamphetamine, a controlled dangerous substance. He was sentenced to two years in the parish prison and fined $500. He has appealed on four assignments of error. All four assignments relate to the sentence.

The facts of the offense appear in the presentence investigation report in the record. The defendant told the probation officer that he owned and operated the Rainbow Club in Alexandria. He explained that one of his employees (who was also an undercover agent) asked defendant if he could provide her some “speed” (methamphetamine). He told her to look in his wallet. The agent found the methamphetamine in defendant’s wallet and told him she would go into the back room to take it.

Defendant was later arrested and charged with distribution of methamphetamine [LSA-40:967(A)(1) ]. He was permitted to plead guilty to the lesser and amended charge of possession [LSA-R.S. 40:967(C) ].

The four sentencing errors assigned are that the trial court

(1) Failed to follow the sentencing guidelines of LSA-C.Cr.P. art. 894.1;
(2) Accorded undue weight to other charges against defendant based on alleged criminal activity which occurred between the time of his guilty plea to the present charges and the actual sentencing;
(8) Imposed illegal conditions on an un-probated sentence; and
(4) Imposed an excessive, cruel and unusual sentence.

Assignments one and two are interrelated and will be discussed together.

ASSIGNMENTS 1 AND 2

These assignments allege that the trial judge failed to comply with the sentencing guidelines of C.Cr.P. art. 894.1 and that he gave undue weight to impermissible criteria.

In passing sentence the trial judge referred to the presentence investigation report and observed that the defendant had a criminal record noting, however, that it was not a serious one. The court also commented that defendant had been originally charged with distribution but was allowed to plead guilty to the amended and lesser charge of possession of the controlled dangerous substance. The court observed that both charges were serious matters. Finally, the sentencing court noted that after defendant pleaded guilty to possession of methamphetamine, he had been “engaged in an alleged criminal activity.” The criminal activity alluded to consisted of charges involving eight counts of deer hunting violations.

Defendant argues specifically that the trial court failed to comply with the statutory guidelines by failing to enumerate existing mitigating circumstances. The sentencing judge mentioned only one circumstance mitigating against a heavier sentence, and that was that defendant’s criminal record contained no serious offenses. The trial court was not made aware of any other mitigating circumstances and therefore did not commit reversible error in failing to mention any. See State v. Smith, 404 So.2d 210 (La.1981). Both during the preparation of the presentence investigation report and at the sentencing hearing the defendant was afforded an opportunity to provide mitigating factors, but he did not do so. Where the record clearly illumines the sentencing choice, the failure to fully comply with art. 894.1 does not invalidate the sentence. State v. Martin, 400 So.2d 1063 (La.1981); State v. Roberts, 427 So.2d 1300 (La.App. 2nd Cir.1983).

Defendant further argues that the trial judge erred in considering that he was originally charged with distribution of methamphetamine and allowed to plead to a reduced charge. This was not error. The trial court correctly observed that the defendant had been afforded an initial degree of leniency in being allowed to plead guilty to a lesser offense. This is a proper sentencing criterion, which supports the imposition of a sentence in a higher statutory range of the lesser offense. See State v. Lanclos, 419 So.2d 475 (La.1982) and State v. Washington, 414 So.2d 313 (La.1982).

Defendant’s final argument in connection with these two assignments is that the trial judge erred in considering the hunting violation charges lodged against him after he entered the guilty plea to possession of methamphetamine. This was not error. Both arrests and convictions may be considered in imposing sentence. State v. Williams, 412 So.2d 1327 (La.1982).

Neither of these assignments of error has merit.

ASSIGNMENT OF ERROR NO. 3

After imposing the prison sentence the judge told defendant that after his release he was not to associate with any known drug users or drug distributors. Defendant contends that this portion of the sentence was illegal since, not having been given a suspended sentence and probation, no such condition could be imposed upon him.

This assignment of error might have merit except that immediately following sentence, when the trial judge’s attention was called to the apparent error, he corrected it by stating for the record that his statement was “more of a warning to the defendant, rather than a condition of probation”. We accordingly find no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 4

Through this assignment defendant contends that his sentence is excessive.

The presentence report, unchallenged by defendant at the sentencing hearing, contained his description of activity which would constitute the crime of distribution of methamphetamine. He was, therefore, subjected to the possibility of a term of imprisonment at hard labor for ten years and to the payment of a $15,000 fine. LSA-R.S. 40:967(B)(3). The crime to which defendant pled guilty was possession of methamphetamine. That crime is punishable by a maximum of five years imprisonment with or without hard labor and by a fine of up to $5,000. LSA-R.S. 40:967(C)(2). The sentence imposed was two years imprisonment without hard labor and a $500 fine.

The penalties imposed are appropriate to both the offense and the offender. They are not so disproportionate as to shock our sense of justice. See State v. Bonanno, 384 So.2d 355 (La.1980). Therefore, this assignment is without merit.

For the foregoing reasons the sentence is affirmed.

AFFIRMED.


author: GARRISON, Judge.

text:
    STATE of Louisiana v. Charles HODGES.
    No. KA 0760.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 26, 1983.

      Harry F. Connick, Dist. Atty. of Orleans Parish, William R. Campbell, Jr., Asst. Dist. Atty. of Orleans Parish, New Orleans, for plaintiff-appellee.
    Steve Stinson and Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    Before GARRISON, AUGUSTINE and LOBRANO, JJ.
   GARRISON, Judge.

Defendant Hodges appeals from his jury conviction of armed robbery.

On June 9, 1981, Charles Hodges was charged with armed robbery, a violation of La.R.S. 14:64, along with David Hender-shot. Both Hodges and his co-defendant pled not guilty at arraignment. On the day of trial, June 29, 1982, Hodges moved for a severance, which was granted. Trial continued as to Hodges only on the following day. After hearing the evidence the 12-member jury returned a unanimous verdict of guilty as charged. The trial court sentenced Hodges on July 9, 1982, to serve ninety-nine years at hard labor. From this conviction and sentence the defendant appeals.

On appeal the defendant requests only that this court review the entire record for errors patent on the face of the record. Our review of the record reveals no such error patent. Recent jurisprudence, however, suggests that we also review the record for “sufficiency of evidence.” Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Raymo, 419 So.2d 858 (La.1982). We have therefore done so.

The record reveals the following facts: On January 15,1980, at about 9:00 p.m., the defendant entered the Fast Stop Food Store on Gentilly Boulevard in New Orleans, accompanied by David Hendershot and Jessie Johnson. Hodges and Hendershot robbed an employee at gunpoint, taking money and hats, and Johnson was the “wheel man.” The armed robbery was recorded on videotape, and the employee of the store positively identified Hodges both at a pre-trial lineup and at trial.

The co-perpetrators, Hendershot and Johnson, both testified against Hodges at trial. Hodges himself readily admitted participation in the armed robbery; however, he denied any recollection of the actual incident because, he testified, he had been smoking marijuana which must have been laced, without his knowledge, with “angel dust” (PCP).

The evidence against the defendant is overwhelming: (1) two separate positive identifications of Hodges by the victim of the robbery; (2) the testimony of the two co-perpetrators; (3) the filming of the robbery on videotape; and (4) Hodges’s own admissions. The jury obviously rejected the defendant’s claim that he did not know where he was or what he was doing because of his drugged condition.

Although intoxication or a drugged condition can be a defense to a crime which requires specific intent, La.R.S. 14:15, the evidence in this case is such that the jury could easily have rejected this defense. Not only did the jury have the benefit of direct testimony by the victim and the two co-perpetrators of the crime, it also had a videotape of the incident, and the defendant’s own testimony which, while attempting to be exculpatory, was replete with contradictions. Hodges claimed to have drawn a blank as to the robbery itself, yet he recalled such details as how many joints he rolled and smoked prior to the robbery, as to dropping the gun and seeing it discharge during the robbery, and as to the police chase after the robbery. The jury was not in error in rejecting the defendant’s selective memory of the robbery.

We conclude that any rational finder of fact, viewing the evidence in a light most favorable to the State, could have concluded that every element of the crime or armed robbery had been proved beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Fuller, 414 So.2d 306 (La.1982).

Defendant’s conviction and sentence are therefore affirmed.

AFFIRMED.

      . David Hendershot pled guilty on the same day and received consideration for his testimony against Hodges.


text:
    Emilio C. GARCIA v. Alma Ludwig, Wife of Emilio C. GARCIA.
    No. 13170.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 26, 1983.
    Liskow & Lewis, Stephen T. Victory, New Orleans, for plaintiff-appellant.
    Reed & Reed, Bruce G. Reed, New Orleans, for defendant-appellee.
    Before GARRISON, AUGUSTINE and CIACCIO, JJ.
   GARRISON, Judge.

This is an appeal by a non-custodial parent from a district court judgment awarding child support of $1700.00 per month for the support of one minor child.

Emilio Garcia brought an action for divorce against his wife, Alma Ludwig Garcia, on September 9,1981, on the grounds of living separate and apart for more than one year from the date of a judgment of separation from bed and board. Mrs. Garcia answered and sought custody of the couple’s thirteen-year-old son, Eric, as well as a continuation of a support award contained in the earlier judgment of separation.

After a hearing on the merits, the trial court entered a judgment of divorce in favor of plaintiff and against defendant, and awarded Mrs. Garcia custody of Eric and $1700.00 per month for child support. Emilio Garcia appeals from that judgment, contending that it is so excessive as to constitute an abuse of discretion. The thrust of his argument is that the amount awarded far exceeds the criteria of reasonable needs of the minor, and a more reasonable figure to meet those needs would be from $500-$700 per month.

LSA-C.C. Article 227 imposes on parents a mutual obligation of support, maintenance and education of their children. The degree of support is determined by the needs of the child, as well as the circumstances of those who are obligated to pay it. Guinn v. Guinn, 405 So.2d 620 (La.App.3d Cir.1981); Graval v. Graval, 355 So.2d 1057 (La.App. 4th Cir.1978); Marcus v. Barnett, 282 So.2d 122 (La.1973).

The record reflects that Mr. Garcia is a naval architect in the City of New Orleans, and that he has extensive property holdings and investments. Although neither his gross nor net income was established, the evidence indicates that he apparently has a net worth of well over $800,000. His financial ability to pay the amount awarded is clearly established by the evidence.

Moreover, it is evident from the record that Mr. Garcia has over the years enjoyed a high standard of living because of his income and investments. The mode of living created by Mr. Garcia allowed his family almost unlimited financial freedom, including expensive ski vacations, frequent travel, vacation homes, opera, theater and symphony subscriptions, and numerous other privileges made possible by Mr. Garcia’s financial status. In short, Mr. and Mrs. Garcia and their son Eric have enjoyed an extravagant lifestyle, both before and after the spouses’ separation.

Appellant contends that the primary issue is the “needs” of his son, and places great emphasis on an itemization of those needs to show that the award was excessive. We are convinced, however, that a court need not rely solely on an itemization of needs to fix the amount of child support. In discussing this issue, the appellate court in Nelson v. Nelson, 335 So.2d 787 (La.App. 1st Cir.1976), stated:

“An itemization of needs’of the child is merely one way of showing the needs of a child. A ‘child’s needs’ just does not lend itself to a ‘by-the-numbers’ approach for resolution. There is no magic mathematical formula available to solve the problem. See Fall v. Fontenot, supra, 307 So.2d [779] at 781. There is not any one approach that is satisfactory in all cases. A case for child support, as the Poydras court recognized, [155 So.2d 221 (La.App. 1st Cir.1965) ] and as we recognize ‘... must, of necessity, be determined on its own facts and circumstances... ’, Harris v. Harris, 127 So.2d 747 (La.App., 3 Cir.1961); see also Litton v. Litton, 299 So.2d 458 (La.App., 2 Cir.1974).” 355 So.2d at 789.

The courts of this state have consistently recognized that child support should be provided not only in proportion to the needs of the child, but also in proportion to the circumstances of the parent who is to pay. Fellows v. Fellows, 267 So.2d 572 (La.App. 3rd Cir.1972). In Fellows, the appellate court reasoned that “... (c)hildren are thus entitled by birthright to a life harmonious with the father’s station.” 267 So.2d at 575.

The Louisiana Supreme Court discussed this concept at some length in Ducote v. Ducote, 339 So.2d 835 (La.1976), wherein it stated:

“If the parents are divorced and the children are living with their mother, the children are entitled to the same standard of living as if they resided with their father whenever the financial circumstances of the father permit. Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (1953); Sarpy v. Sarpy, La.App. 323 So.2d 851 (1975), cert. denied, La., 328 So.2d 166 (1966); Phillips v. Phillips, La.App., 319 So.2d 566 (1975).” 339 So.2d at 838.

See also Updegraff v. Updegraff, 421 So.2d 1165 (La.App.2d Cir.1982); Prados v. Prados, 341 So.2d 1286 (La.App.3d Cir.1977).

Although the record fails to substantiate the actual basic expenses for Eric’s support as being $1700.00 per month, nevertheless we cannot ignore the obvious ability of Mr. Garcia to pay according to his income and station in life, and the luxuries and enjoyment to which Eric was accustomed when the family was together.

The trial court is vested with considerable discretion in fixing child support payments, and it is only where there is a clear abuse of that discretion that appellate courts will disturb the trial court’s awards of support. Fellows v. Fellows, supra; Ducote v. Ducote, supra; Nelson v. Nelson, supra.

After careful review of the record, we find that the award of $1700.00 per month made by the trial court for child support, while extremely generous, is not excessive. We therefore find no abuse of the trial judge’s discretion.

Accordingly, the judgment of the trial court is affirmed. Costs of this appeal are to be assessed against appellant.

AFFIRMED.

      . The couple actually has four children; the others, however, have attained majority.

      . That judgment, No. 242-377 of the 24th Judicial District Court for the Parish of Jefferson, awarded Mrs. Garcia $250.00 per month child support, plus Eric’s school tuition and other educational expenses and medical and other insurance premiums, as well as $1250.00 per month alimony pendente lite, all expenses of the operation of White Oaks farm (the residence of Mrs. Garcia and Eric), and all monthly notes on all immovable property, vehicles and life insurance policies owned by the couple.

      . Mr. Garcia testified that prior to the separation of the parties in July 1980, the monthly household expenses for the family totalled some $15,000 per month.


text:
    Avery J. USAND v. NEW ORLEANS PUBLIC SERVICE, INC. Marie Foster, Wife of/and Newton FOSTER, Individually and For his Minor Child, Vicki Foster v. Avery J. USAND, Mary T. Simmons and New Orleans Public Service, Inc.
    Nos. 13210, 13211.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 26, 1983.

      Abadie, Cooper & Harang, Charles B. Col-vin, New Orleans, for plaintiff-appellee.
    James J. Morse, Carl L. Aspelund, New Orleans, for Avery J. Usand and The Travelers Ins. Co., defendants-appellants.
    Edward P. Comeaux and James C. Witch-er, II, New Orleans, for Marie Foster, Wife of/and Newton Foster, Individually and For His Minor Child, Vicki Foster, plaintiffs-appellees.
    Floyd F. Green, New Orleans, for New Orleans Public Service, Inc. and Mary Simmons, defendants-appellants.
    Before GARRISON, AUGUSTINE and CIACCIO, JJ.
   GARRISON, Judge.

This appeal arises from a vehicular collision which occurred on December 9,1978, at the intersection of North Galvez and Desire Streets in New Orleans, between a New Orleans Public Service, Inc. (NOPSI) bus and an automobile driven by Avery Usand. Usand filed suit for personal injuries and property damage sustained as a result of the collision. In another suit fare-paying passengers on the bus, Marie Foster and Newton Foster on his own behalf and for their minor child Vicki, sued Avery Usand, his insurer, Travelers Insurance Company, NOPSI and the bus operator, Mary T. Simmons, for injuries the Fosters sustained in the collision.

The cases were consolidated for trial, and after hearing the evidence and judging the credibility of the witnesses the trial judge held that the accident was due solely to the negligence of the bus driver, and rendered judgment in favor of the various plaintiffs and against NOPSI.

NOPSI has appealed the trial court’s finding of liability, as well as the measure of damages awarded to plaintiff Usand.

LIABILITY

Appellant NOPSI contends that the trial judge erred in finding that the bus operator was negligent in running a red light and additionally that the plaintiff Usand was not negligent.

Our review of the record reveals the following facts. On December 9, 1978, the NOPSI bus was being driven by Mary T. Simmons in a northerly direction on Desire Street, and the Usand vehicle was traveling west on Galvez Street. The intersection of Desire and Galvez is controlled by a semaphore traffic light. The driver brought the bus to a stop at the corner of Desire and Galvez to pick up three passengers, and as the Usand vehicle entered the intersection from Galvez Street, the bus pulled away from the corner and entered the intersection, running a red light and striking the Usand vehicle from the left and driving it into the curb on the far side of the street. The Usand automobile then struck a second automobile driven by Jack Augustine, in which his brother, Joseph Augustine, was a passenger. The Augustine vehicle had been traveling in the opposite direction on Galvez Street before it was struck.

With the exception of the bus driver, every witness who saw the lights at the intersection testified at trial that at the time of the collision the Galvez Street traffic had a green light and that the bus entered the intersection on a red light and struck Usand’s automobile. Those witnesses included one of the bus passengers, Vicki Foster, Mr. Usand, and Joseph and Jack Augustine. The trial judge evidently believed this testimony over that of the bus driver, and concluded:

“The issue of liability in this case is dictated by a determination of the facts as they were presented to this Court by the several witnesses. Every witness, who was in a position to observe the traffic signal in this intersectional collision, except the operator of the New Orleans Public Service bus, declared that the bus failed to heed a red light facing traffic on Desire Street, immediately pri- or to and at the moment of impact. This Court listened carefully to the testimony of the two (independent) eyewitnesses called by the plaintiffs and this Court concludes that they were motivated only by their desire to be impartial and to assist the Court in arriving at truth. This Court concludes that the sole and only cause of this accident was the failure of the bus operator to remain stationary until the traffic signal changed from red to green.”

Based on the evidence, we do not find the trial judge’s factual conclusions to be manifestly erroneous under the standards of Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). Therefore, we affirm the trial court’s findings of liability.

QUANTUM

Appellant has raised the issue of damages only as to the amount of property damage sustained by plaintiff Avery Usand. The trial judge awarded Mr. Usand $1600.00 for the loss of his automobile, a 1968 Oldsmobile Cutlass.. He based that award on a calculation of $2000.00 as its fair market value, less a salvage value of $400.00.

With regard to the value of the vehicle, Robert Fine, an expert automobile damage appraiser, testified that repairs to the vehicle would easily exceed $2000.00, which was probably more than the car was worth, and that he had therefore declared the car a total loss. He was unable to refer to a specific National Automobile Dealers Association “blue book” value, he stated, because the book did not include models produced earlier than 1974.

The plaintiff, however, apparently convinced the trial judge that the automobile was unique. He stated that since purchasing the car he had virtually rebuilt it from scratch in order to enter it in the “World of Wheels” Auto Show held in New Orleans in January 1979. The plaintiff explained that among other things, he had stripped the car down to the metal, fixed all dents and chips, put on new bumpers and a tilted steering wheel, and completely rebuilt the transmission and replaced the motor.

Courts of this state have in the past taken into account values of a car which do not correspond with the “blue book” value or with other customary methods of estimating market value. In American Insurance Co. v. Richard, 212 So.2d 481 (La.App. 3d Cr.1968), writ ref. 252 La. 949, 215 So.2d 125, the court held that the actual value of the 1961 Mercedez-Benz sedan that was destroyed in an accident was $2000.00 rather than the book value of $1,835.00, recognizing “the fact that the mechanical condition of the car and the equipment which was on it may have some effect on its value, and it may cause the car to be worth more or less than the value listed in the N.A.D.A. Guidebook.”

In a similar case, Simmons v. Holman, 45 So.2d 374 (La.App. 2nd Cr.1950), the court awarded a value less salvage of $600.00 for a vehicle whose approximate market value at the time of the accident was between $250.00 and $400.00, but where the plaintiff had spent over $800.00 overhauling the vehicle shortly before the accident, installing new upholstery, a new motor and other major parts.

Based upon the above jurisprudence, we cannot say that the trial judge erred in accepting the testimony of the owner and finding that the automobile in question was “unique”; we will therefore not disturb the award of $1600.00 for damage to Mr. Usand’s car.

Accordingly, the judgment of the trial court is in all respects affirmed.

AFFIRMED.

      . Usand and Travelers Insurance Company were dismissed as defendants in the suit by the Fosters.

      . The Louisiana Supreme Court set forth this formula in Coleman v. Victor, 326 So.2d 344 (La.1976), wherein it declared that if property is totally destroyed, then the plaintiff should be awarded the value of the property prior to the accident, less any salvage value.


text:
    Helen Mayberry, wife of Lindell HARRISON v. GULF SOUTH BEVERAGES, INC., and Pepsi Cola, Inc., North Rivers Insurance Company.
    No. CA 0715.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 29, 1983.
    Writ Denied Dec. 9,1983.
    Norman Mopsik, P.C., New Orleans, for plaintiff.
    Franklin D. Beahm, Hammett, Leake & Hammett, New Orleans, for defendants.
    Before GULOTTA, GARRISON and LO-BRANO, JJ.
   GARRISON, Judge.

This is a suit for damages for personal injuries which the plaintiff, Helen Mayber-ry, allegedly sustained as the result of drinking the partial contents of a bottle of Pepsi-Cola on November 5, 1980. The defendants include Gulf South Beverages, Inc., Pepsi-Cola, Inc., and North River Insurance Company, as insurer for Gulf South Beverages, Inc.

At trial the evidence revealed that Ms. Mayberry became ill after taking a few swallows from a Pepsi-Cola bottle she had purchased at a Tenneco Service Station in New Orleans. She began experiencing nausea and vomiting, and at that time noticed a foreign substance inside the bottle.

The trial court found the defendants liable for plaintiffs nausea and vomiting after ingesting the Pepsi-Cola. The court did not, however, find additional damages claimed for hair loss to have been caused or aggravated by her ingesting of the beverage. The court awarded damages to Ms. Mayberry for medical expenses ($264.00) and for pain and suffering ($4000.00).

Both plaintiff and defendants have appealed to this court. The plaintiff, Helen Mayberry, has appealed the amount awarded by the trial court, contending that the trial court erred in failing to find that her hair loss was directly related to the ingesting of the beverage, and in failing to award her an additional amount for that hair loss. Defendants, on the other hand, appeal the trial court’s finding that they were liable for plaintiff’s injuries. They point out that the plaintiff failed to prove that they manufactured, bottled, sold or were otherwise related to the soft drink in question, and they contend that the trial court consequently erred in awarding damages to Ms. Mayberry.

Defendants alternatively appeal the issue of quantum, asserting that should liability be found, the medical testimony does not support an award of $4000.00 for an ailment such as the one in question.

The threshold issue before this court, then, is whether the trial court erred in holding the defendants liable for plaintiff’s injuries.

The courts of this state have held that an individual’s consumption of a bottled beverage contaminated with unwholesome matter from its original container establishes a prima facie case for the assessment of damages against the manufacturer of the beverage. LeBlanc v. Louisiana Coca-Cola Bottling Co., Ltd., 221 La. 919, 60 So.2d 873 (1952); Reine v. Baton Rouge Coca-Cola Bottling Co., 126 So.2d 635 (La.App. 1st Cir.1961). The first requirement of proof, therefore, in a case where plaintiff seeks damages from a manufacturer or its liability insurer is to show that the beverage was manufactured or bottled by the alleged manufacturer. Paul v. Hardware Mutual Ins. Co., 254 So.2d 690 (La.App. 3d Cir.1971).

In this case, plaintiff Helen Mayber-ry and a witness, Chassie Medious, both testified that Ms. Mayberry purchased a bottle of Pepsi-Cola from a Tenneco Service Station located at the intersection of North Claiborne and Franklin Avenues in New Orleans. Upon reaching her home, Ms. Mayberry opened the bottle and took a few sips of the soft drink. She then became nauseated and began vomiting. Both Ms. Mayberry and Mr. Medious testified that they saw a whitish, gelatinous substance in the bottom of the bottle. Ms. Mayberry sought treatment two days later from her family physician, who diagnosed her condition as gastroenteritis and prescribed appropriate medication. He continued treating plaintiff over a four-month period.

Plaintiff failed to produce any evidence whatsoever concerning the manufacture or distribution of the soft drink in question, or any evidence whatsoever which would relate the bottle or its contents to any of the defendants. Simply stating that the beverage was a Pepsi-Cola does not identify the manufacturer, bottler, distributor, vendor, or anyone else who placed the product into commerce.

In Paul v. Hardware Mutual Ins. Co., supra, the court was faced with a similar situation, in which plaintiff became ill after drinking the contents of a bottle of Dr. Pepper which contained a foreign substance. The court found that plaintiff failed to produce any evidence whatsoever concerning the manufacture or distribution of the soft drink by the insured, the Lake Charles Dr. Pepper Bottling Company, noting that:

“. .. (e)vidence was introduced to show that plaintiffs’ son purchased the soft drink unopened from the C.J. Fontenot Grocery Store, however no testimony was adduced from the store owner, or anyone else to show where he obtained the soft drink which he sold, nor was any other evidence introduced to connect the bottling of the soft drink in question with the said Lake Charles Dr. Pepper Bottling Company.”

The court continued:

“It is axiomatic that the plaintiffs bear the burden of proving their case in all material respects. While the Louisiana jurisprudence regarding foreign substances in soft drinks has considerably lessened the burden to be borne by such a plaintiff, some connection must still be shown between the manufacturer and/or bottler and the allegedly tainted beverage.” (Emphasis added).

It is clear that Paul is directly on point. In view of the complete lack of any showing that there was any connection between Gulf South Beverages, Inc., Pepsi-Cola, Inc., or North River Insurance Company and the contaminated beverage, we find that plaintiff has failed to establish a prima facie case of liability against any of the defendants.

We therefore reverse the judgment of the trial court.

REVERSED.


author: REDMANN, Chief Judge.

text:
    Dennis J. TALLEY v. John R. HUGHES.
    No. CA-0589.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1983.
    Appellant in pro. per.
    Val A. Schaff, III, Schaff & Currier, New Orleans, for appellee.
    Before REDMANN, C.J., and AUGUSTINE and BYRNES, JJ.
   REDMANN, Chief Judge.

Appellant in person moved on June 27, 1983 (on the basis that appellant’s counsel had withdrawn as counsel of record, by motion in the district court and order signed by the district judge on April 18, 1983) to reinstate an appeal this court had dismissed under Rule 2-8.6 on April 20, 1983. Rule 2-8.6 reads:

“Abandonment of Appeal. If an appellant does not file a brief within the time prescribed by Rule 2-12.7 or any extension thereof granted by the court as provided by Rule 2-12.8, a notice shall be mailed by the clerk to counsel for the appellant, or to the appellant if not represented, that the appeal shall be dismissed 30 days thereafter unless a brief is filed in the meantime. If an appellant does not file a brief within 30 days after such notice is mailed, the appeal shall be dismissed as abandoned.”

Under Rule 2-12.7, appellant’s brief was due on February 25, 1983 and appellant’s counsel of record was-so notified. When appellant’s brief was not filed by that date (plus a few days in ease it was in the mail to this court), appellant’s counsel of record was notified by letter of March 2,1983 that the appeal would be dismissed under Rule 2-8.6 unless appellant’s brief was received by April 1, 1983. Appellant did not file a brief by then and on April 8 opposing counsel moved dismissal under the Rule, sending a copy of the motion to appellant’s counsel of record. In accordance with this court’s internal rule of waiting ten days after a motion is filed in order that opposing counsel might file an opposition if he or she desires, the clerk waited ten days, during which no opposition was filed, and then on April 20 dismissed the appeal (and the clerk sent a copy of the dismissal to appellant’s counsel of record).

Even if we were to adopt the impractical position that appellant’s counsel’s withdrawal in the district court would terminate his status as counsel of record in the court of appeal, and therefore consider appellant’s motion to reinstate (or for rehearing) as timely on the theory that C.C.P. 2166’s 30-day period for applying for rehearing never started to run (because our notice went to “withdrawn” counsel rather than to appellant personally, see Rule 2-17.1), we cannot reinstate this appeal. This appeal was properly dismissed under rule 2-8.6.

Rule 2-8.6 merely sets a time by which an appellant is obliged to make his argument by written brief to this court and then, if that first time is not met, the rule provides that the court notifies the appellant that his or her appeal will be dismissed if the brief is not filed by a specified date 30 days after the notice. If the brief is still not filed, the rule provides that the appeal “shall” be dismissed.

If appellant’s counsel was supposed to have filed a brief for appellant or owed some other duty to appellant that he did not perform, appellant may complain against him, but that does not oblige other litigants to wait forever, never knowing whether a lawsuit is over. Rule 2-8.6 and the Code of Civil Procedure, art. 2165, are designed to protect other litigants from unending delay. It is a reasonable rule, both in itself and in its application in this case.

Motion denied.


author: GARRISON, Judge. KLEES, Judge,

text:
    CITY OF NEW ORLEANS, et al. v. UNITED GAS PIPE LINE COMPANY.
    No. CA 0748.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1983.

      Michael R. Fontham, Wayne J. Lee, Paul L. Zimmering and Stephen G. Bullock, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, Marshall B. Brinkley, Baton Rouge, for appellant, Louisiana Public Service Commission.
    Donald R. Mintz, Constance Charles Wil-lems, Ellis B. Murov, McGlinchey, Stafford, Mintz & Cellini, New Orleans, for Blake Arata, et al., Individually and as Representatives of the Class of Electric Ratepayers of NOPSI.
    C. Murphy Moss, Jr., Ernest L. Edwards, George Frazier, and Mary Ann Coffey, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, W. DeVier Pierson, Peter J. Levin, David J. Hill, and Mark Ely Green-wold, Pierson, Semmes, Crolius & Finley, Washington, D.C., for defendant-appellee.
    Before GARRISON, KLEES and AUGUSTINE, JJ.
   GARRISON, Judge.

This is an appeal from a November 29th, 1982 judgment of the district court denying the Louisiana Public Service Commission’s (hereinafter L.P.C.) motion to intervene in a suit by New Orleans Public Service Incorporated (hereinafter NOPSI) against United Gas Pipeline.

On July 1, 1952, NOPSI and United Gas Pipeline entered into a contract whereby United Gas agreed to supply gas to NOPSI. The contract was for a 23 year term and was due to and did expire on June 1, 1975. In the instant suit NOPSI, as co-plaintiff with the City of New Orleans and a certified class of citizen ratepayers, alleges that around 1971 defendant breached the contract. NOPSI seeks to recover the costs of alternative fuels, conversion of generating facilities, increased taxes, and lost profits, all resulting from the alleged breach.

The instant appeal deals solely with the judgment of the district court denying L.P. C.’s motion to intervene in the suit between NOPSI and United Gas Pipeline.

On November 8, 1982, L.P.C. filed its motion to intervene in the NOPSI suit. In its motion, L.P.C. states the following grounds for intervention:

“3. By virtue of the foregoing, (the January 1st transfer), the Louisiana Public Service Commission became vested with the authority and responsibility of regulating the rates and other fees and assessments charged by NOPSI to its rate payers and accordingly, acquired an interest in assuring that there be a recovery in this action so that the Louisiana Public Service Commission may subsequently determine the appropriate application of any sums recovered, for the benefit of NOPSI’s rate payers.” (emphasis supplied).

In its initial petition, NOPSI prayed that any sums recovered be placed in the registry of the court for distribution to the consumers. The City and the Class both joined in this request, long before the motion to intervene was filed. L.P.C. had previously opposed the certification of the class, arguing that it should be deemed the sole representative of the consumers. That argument was denied by the trial court and the class was certified. The question of the certification is not now before this court.

Counsel for the class argues that L.P.C.’s “interest” in the matter before us is in awarding and distributing damages for the alleged breach. Counsel further argues that the awarding of damages is solely a judicial function under Art. V, Louisiana Constitution of 1974 and C.C.P. Art. 1. We agree.

Article V § 1, Louisiana Constitution of 1974 provides as follows:

“The judicial power is vested in a supreme court, courts of appeal, district courts and other courts authorized by this article.”

The concept of separation of powers is a long-standing and consistent one under both the American and the Louisiana system. Thus the 1878 holding in State v. Police Jury, 30 La.Ann. 287, 291 that “Judicial power can be exercised only by the courts mentioned in the constitution” is still good law in 1965, in Creasman v. Gilpin, 175 So.2d 879, 880 (La.App.2d 1965), “Determination of the amount an injured party is entitled to recover against the wrongdoer to repair his damage is a function entrusted to the judicial branch of our government.”

In the instant case L.P.C. suffered no injury or damage, was not party to the contract, and was not a party to or injured by the breach. In short, L.P.C.’s “interest” is not in the principal object of the suit. L.P.C. seeks to assert an “interest” in the monetary by-product of the judicial process. L.P.C.’s “interest” in this case is more than a passing fancy or curiosity but certainly much less than a legal interest. L.P.C. seeks to substitute its own judgment for that of the trial judge in awarding and allocating damages. Such action, if allowed, would constitute a dangerous precedent — an untenable usurpation and encroachment of the judicial function.

We feel that some of the confusion in this case arises from the class action type of trial. In the class action suit, issues are trifurcated. In phase one, liability is argued and decided, in phase two, quantum for the whole group of recipients is argued and decided such that the funds are placed in the registry of the court in a lump sum, and in phase three, individual members of the class prove their individual amount of loss to the trial judge and are awarded an individual amount or the trial judge may order a fluid class recovery method. The City and class argue that L.P.C. is trying to usurp a judicial function in prescribing the phase three area of the trial judge’s function and we agree. On these grounds, we find that the trial judge properly denied L.P.C.’s motion to intervene. Lastly, we note that if the intervention had been granted, it would have been subjected to the challenge of an exception of no right or no cause of action — a challenge which the intervention could not withstand.

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

AFFIRMED.

KLEES, J., concurs with written reasons.

KLEES, Judge,

concurring.

I agree with the majority opinion in its well reasoned analysis. In my view however, I find that LSA-C.C.P. Art. 1033 allows an incidental demand to be filed after the time the answer to the principal demand is filed only with leave of Court. In this instance the Motion of the Louisiana Public Service Commission to file a Petition of Intervention was filed November 8, 1982 some eleven months after the start of a complex and tedious trial.

In his Reasons for Judgment the Trial Court stated,

“A resolution of this litigation in the not too distant future on the trial level is mandated. The intervention herein requested by Louisiana Public Service Commission would breach the mandate and cannot be justified either in law or equity.”

His denial of the motion was well within his authority and I can find no manifest error in his decision.

      . There are also two other suits, Gulf States Utilities v. United Gas Pipeline and LP & L v. United Gas Pipeline, which have been consolidated with this case. The other consolidated suits are not before us at this time as the L.P.C. is already a party to those suits.

        . • We note that the City of New Orleans is a party. The City’s petition alleges that it is a party in two capacities “as an individual member of the class, and in its regulatory capacity..(Tr. Vol I, p. 1). The City, a major consumer, is indeed a member of the class. The question of whether the City could be a party in its “regulatory capacity”, however, is not before this court as the present appeal deals only with the judgment of November 29, 1982.


text:
    STATE of Louisiana v. Charles HODGES.
    No. KA 0812.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1983.
    Harry F. Connick, Dist. Atty. of Orleans Parish, Beryl M. McSmith, Asst. Dist. Atty. of Orleans Parish, New Orleans, for plaintiff-appellee.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    Before GARRISON, AUGUSTINE and LOBRANO, JJ.
   GARRISON, Judge.

Defendant Charles Hodges appeals from his jury conviction of first degree murder.

On January 29,1980, Charles Hodges was indicted for the murder of Jean Marban while in the perpetration of an armed robbery (R.S. 14:30). Also indicted were David Hendershot and Jesse Johnson.

On August 18, 1982, trial was held and a twelve-member jury unanimously found Hodges guilty as charged. The sentencing phase of the trial was held the following day, and the jury recommended life imprisonment. The defendant was sentenced on August 27, 1982, to serve the rest of his natural life at hard labor without benefit of probation, parole or suspension of sentence. Defendant has appealed.

Defendant requests on appeal only that we examine the record in this case for patent error. We have done so, and find no error patent on the face of the record. The recent case of State v. Raymo, 419 So.2d 858 (La.1982), however, suggests that a record should also be reviewed for sufficiency of evidence under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Accordingly, we have so reviewed the record.

The facts of the case are as follows. The State’s principal witness, Isadore Fisher, testified that on January 15, 1980, at about 8:25 p.m. he and the victim, Jean Marban, were at Paul’s Grocery and Liquor Store at 8201 Chef Menteur Highway in New Orleans. Jean Marban was tending the store for her uncle, the owner, who was ill. The witness, who was her boyfriend, was keeping her company. Ms. Marban was standing near the register and Mr. Fisher was watching television and playing solitaire, when he heard Ms. Marban say, “Oh, my God.” He looked up and saw a gun in his face and another gun pointed at Ms. Mar-ban. She dropped to the ground, face down, and the man who held the gun on Mr. Fisher ordered her to get up. Mr. Fisher backed off the stool and raised his hands. The man who held the gun on him said they wanted “money, plenty of money.” Mr. Fisher identified David Hendershot as the man who held the gun on him and was giving orders, and identified the defendant, Charles Hodges, as the man who had the gun on Ms. Marban.

Hodges then went behind the counter, instructed Ms. Marban to open the register, and took out all the money. Hendershot walked over to Hodges and told him to bag the change. Hodges said they had no time, so Hendershot scooped out the change and put it in his pockets. Hodges asked for more money and was given bills from a drawer. Hendershot asked for a carton of cigarettes, and when given these, started toward the door.

Hodges then came from behind the counter and went around the front, still facing Ms. Marban and the witness, who was edging closer to the cash register to press the silent alarm. Hodges was backing out with the gun pointing at Ms. Marban and Hen-dershot was walking out the double doors with his back to them. As the witness looked down to press the alarm button, a shot went off, breaking a bottle of liquor on the shelf behind him. He looked at Ms. Marban, who was sagging, and saw that she had been shot. When the alarm button was pressed, Hodges was within two to four feet of the door and twelve to fifteen feet from the victim with his gun pointed at her.

David Hendershot testified that he, Jesse Johnson and the defendant, Charles Hodges, went to Paul’s Liquor and Grocery Store to rob it. He stated that he and Hodges walked into the store and both pulled guns, and the victim screamed and fell on the floor. He said that when he told her nothing was going to happen, she got up, and Hodges went around the counter to empty the cash register. Hendershot said he asked Ms. Marban for a carton of cigarettes, which she gave him. Hodges then pulled some money out of a bottom drawer. Hendershot testified that he started to walk out of the store, and as he got outside the door he heard a shot and the sound of breaking glass, and that when he turned around he saw Hodges come out of the store. Hendershot stated that Hodges told him he had shot out a window. Hendershot also testified that at the time he was “pretty high on angel dust” (PCP), and that Hodges had taken two “hits,” but was fairly coherent.

Charles Hodges testified that he and David Hendershot had gone to Paul’s Package Liquor Store to rob the store, which was Hendershot’s idea. When they entered the store, both with guns drawn, three people were in the store: Mr. Fisher, Ms. Mar-ban and an unidentified person who went up one aisle and ran out of the store. Hodges stated that Hendershot, who was giving the orders, had the gun on Mr. Fisher and that he had his gun on Ms. Marban. Hendershot asked for money and reached over and pushed the button on the cash register, and Ms. Marban started removing the money but was so nervous that Hodges went behind the counter to hurry it up. Hodges stated that he then asked for and was gitfen the money in a bottom drawer, and next asked for some liquor, stashing four fifths of whiskey. Hendershot got a carton of cigarettes and they started to leave.

Hodges’s version of the shooting was that as they were leaving the store, Hendershot went first and was at the door. He, Hodges, was backing out with the liquor in one hand and the pistol in the other hand, holding it up in the air and backing out “kind of fast”. He claimed he was not sure whether Hendershot said something to draw his attention, but he stumbled and as he stumbled, he gripped the gun and it went off. He stated he heard glass shattering and went out the door, and that he had no knowledge whatsoever that anybody was shot. Hodges testified he had not gone to the store with the intention of robbing it or killing anyone and that he did not shoot at either Ms. Marban or Mr. Fisher; the gun was pointed in the air, not at the people, and went off when he stumbled.

On cross-examination the defendant testified that he had been convicted of another armed robbery which took place the same night as the robbery and killing in question. He admitted that the gun went off during that robbery also, but claimed that it went off as he placed it on the floor in order to remove something from a safe.

Our review of the case has revealed a positive identification by an eyewitness who saw the defendant pointing a gun at the victim seconds before the shot was fired, and who further testified that the defendant showed no signs of intoxication or incoherence, or other lack of control over his coordination; the testimony of a coperpe-trator; and the testimony of the defendant himself, who admitted firing the fatal shot. The jury obviously did not believe the defendant’s story that the gun went off accidentally when he stumbled.

The standard of review for sufficiency of evidence is whether a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have concluded that each and every element of first degree murder had been proved beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Fuller, 414 So.2d 306 (La.1982). Under the facts as stated above, we believe that standard has been met.

AFFIRMED.