author: HALL, Judge.

text:
    Elizear G. DAVIS, Plaintiff-Appellee, v. Frank G. SHOLTE, Defendant-Appellant.
    No. 16563-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.

      Wiener, Weiss, Madison & Howell by Susie Morgan, Shreveport, for defendant-appellant, Frank G. Sholte.
    Bodenheimer, Jones, Klotz & Simmons by James P. Bodenheimer, Shreveport, for third-party defendant-appellant, United Services Automobile Association (U.S.A.A.).
    Hal V. Lyons, Shreveport, for plaintiff-appellee.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   HALL, Judge.

The defendant and third-party plaintiff, Frank G. Sholte, and the third-party defendant, United Services Automobile Association (USAA), appeal the trial court’s judgment awarding $14,446 to the plaintiff, finding Sholte’s pickup truck covered under the USAA policy, and awarding Sholte $3,500 in attorney fees against USAA. Sholte claims additional attorney fees as well as penalties should be awarded against USAA; USAA claims Sholte’s truck was not covered under the USAA policy involved. The $14,446 award to the plaintiff, Elizear G. Davis, is not at issue. We affirm the judgment of the trial court.

The Factual Setting

In September 1980, Sholte bought a 1954 Chevrolet pickup truck in restorable condition with the intent to restore the truck to its original condition. On September 12 or 19, 1981, Sholte sold his 1970 Impala and decided to replace it with the 1954 pickup truck he had recently restored to a usable condition. The 1970 Impala and a 1977 Datsun 280Z were both covered by a USAA liability insurance policy originally issued in October 1979 and renewed for successive six-month periods, the most recent renewal policy period being from April 27, 1981 through October 27, 1981. Sholte obtained a state vehicle inspection sticker for the pickup on September 17, 1981, and began using the pickup for transportation about that time. On October 27, 1981, Sholte and Davis were involved in the collision which gave rise to the present lawsuit. Sholte’s wife immediately notified USAA of the accident, but several months later USAA notified Sholte that USAA did not intend to provide coverage for the pickup involved in the collision or to provide a defense against any suit by Davis.

Davis filed suit against Sholte; Sholte filed an answer, as well as a third-party demand against USAA. USAA answered the third-party demand, denying coverage.

Subsequently, USAA filed a motion for judgment on the pleadings, contending the USAA policy did not cover Sholte’s pickup because the pickup was not, under the language of the policy, a replacement vehicle whose ownership was acquired during the policy period. The trial court denied this motion and this court denied USAA’s application for writs.

At trial, it was stipulated that plaintiff was entitled to recover damages in the amount of $14,446. Evidence was heard on the third-party demand. In a written opinion, the trial court found that the USAA policy covered Sholte’s pickup. Judgment was rendered in favor of plaintiff against both Sholte and USAA (although USAA was not named as a defendant in the suit) and awarding Sholte judgment against USAA for $3,500 attorney fees. Both Sholte and USAA appealed.

Issue No. 1 — Coverage of the Pickup

The pertinent language of the policy at issue reads:

“... ‘owned.automobile’means:
“(a) a private passenger, farm or utility automobile described in this policy for which a specific premium charge indicates that coverage is afforded;
“(b) a trailer owned by the named insured;
“(c) a private passenger, farm or utility automobile ownership of which is acquired by the named insured during the policy period, provided:
“(1) it replaces an owned automobile as defined in (a) above, or
“(2) the company insures all private passenger, farm and utility automobiles owned by the named insured on the date of such acquisition and the named insured notifies the company during the policy period or within 30 days after the date of such acquisition of his election to make this and no other policy issued by the company applicable to such automobile, or
“(d) a temporary substitute automobile.” (Emphasis added)

The liability insurance policy involved in this case was originally issued for the “policy period” October 27, 1979 to April 27, 1980. It was thereafter renewed for successive six-month “policy periods” through the date of the accident and beyond.

The defendant would interpret the provision as requiring that for an automobile other than one described by the policy to be covered it must have been acquired and have replaced a described vehicle during the same policy period. The policy provision does not so provide. It requires (1) that an automobile be acquired during the policy period and (2) that it replace a described vehicle. The pickup was acquired during the policy period April 27, 1980 to October 27, 1980 while the policy was in full force and effect, meeting the first requirement. It replaced the described Impala during the policy period April 27, 1981 to October 27, 1981, while the policy was in full force and effect. At the time the replacement took place, the second requirement was met and the automatic coverage of the pickup became effective. The accident occurred during the latter policy period, after coverage became effective.

This court’s decision in Traders & General Insurance Company v. Tillman, 349 So.2d 1370 (La.App.2d Cir.1977), relied on by the trial court, supports a finding of coverage in the instant case. In that case, where the pertinent language of the insurance policy was the same as that of the policy in the instant case, the insured owned two vehicles insured by Traders. In November or December 1974, she sold one of the vehicles and replaced it with a 1971 Volkswagen, but failed to inform her agent of this change. The insured’s automobile liability policy was renewed in April 1975, listing the two vehicles originally insured and not the Volkswagen. In May 1975, the Volkswagen was involved in an accident. Traders claimed the Volkswagen was not covered because, when the previous policy period expired and a new policy issued, the Volkswagen could no longer be considered a replacement vehicle since it was not acquired during the new policy period. This court found the Volkswagen was covered, reasoning that under the terms of the policy, the Volkswagen qualified as a replacement vehicle during the policy period in which it was purchased. When the policy was renewed, the insurer was in effect offering to reinsure the same vehicles which were covered at the expiration of the old policy. Thus, the Volkswagen was covered under the new policy as well.

The Traders case is, as argued by USAA, distinguishable in some respects from the instant case. In that case the automobile was acquired as a replacement automobile during the previous policy period, triggering automatic coverage, and the court found an intent to renew coverage of the automobiles insured during the previous policy period. Here, automatic coverage was not triggered during a previous policy period because the vehicle, although acquired during a previous policy period, did not replace a described automobile until the current policy period.

Although Traders is distinguishable on its facts, the distinction is, as noted by the trial judge, without a difference, and the underlying reasoning and rationale is applicable. In Traders, the court noted that liability policies are interpreted liberally in favor of coverage. The insured was paying for coverage on two automobiles and had replaced one automobile with another, as in this ease. There was no increased risk to the insurance company and no reason why coverage of the replacement vehicle would or could have been denied, as in this case. The court looked beyond the specific policy period in which the accident occurred to the previous policy period of the renewed insurance policy to determine whether or not there was coverage during the policy period in which the accident happened, as in this case.

The Sholte pickup, having been acquired during a policy period and having replaced a described vehicle during a policy period, became an “owned automobile” and was covered under the terms of the insurance policy.

Issue No. 2 — Attorney Fees

Sholte, as third-party plaintiff, objects to the trial court’s awarding $3,500 in attorney fees for defending the action and litigating the coverage issue, rather than the $4,182 established by the affidavit of Sholte’s attorney. The proper amount of attorney fees is a consideration within the discretion of the trial court and the award made in this case will not be disturbed as no abuse of discretion is found.

Sholte is, however, entitled to an additional award for attorney fees for the services rendered on appeal. We fix that amount at $1,410, the amount substantiated by the affidavit of Sholte’s attorney.

Issue No. 3 — Penalties under LSA-R.S. 22:658

Sholte contends he is also entitled to recover a penalty of 12 percent of the amount of the attorney fees incurred by him as provided for in LSA-R.S. 22:658, citing Little v. Kalo Laboratories, Inc., 424 So.2d 1065 (La.App.2d Cir.1982).

Sholte did not pray for statutory penalties in either his original or supplemental third-party demand. After judgment was rendered on the coverage issue but before judgment was signed, Sholte filed a rule to set attorney fees and to show cause why penalties under the statute should not be awarded. The record does not reflect service of the rule on USAA. The minutes' do not reflect that a hearing was held on the rule to show cause and the judgment, signed on the return day of the rule, did not award penalties. The rule to show cause was not sufficient to put statutory penalties at issue and the matter is not properly at issue before this court on appeal.

Decree

For the reasons assigned, the judgment of the district court is amended to increase the award of attorney fees from $3,500 to $4,910 and, as amended, is affirmed. Costs are assessed to United Services Automobile Association.

Amended, and as amended, affirmed.


source: Caselaw Access Project

author: NORRIS, Judge.

license: Public Domain

text:
    Deborah Miller HICKMAN, Appellee, v. William HICKMAN, Jr., Appellant.
    No. 16566-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Campbell, Campbell & Johnson by James M. Johnson, Minden, for appellee.
    Fish, Montgomery & Robinson by John W. Montgomery, Minden, for appellant.
    Before PRICE, FRED W. JONES, Jr. and NORRIS, JJ.
   NORRIS, Judge.

Plaintiff in rule-appellant, William Hickman, Jr., appeals a judgment of the lower court ordering joint custody of the parties’ three year old daughter. Defendant in rule did not appeal or answer the appeal. The issue on appeal is whether or not the joint custody plan ordered by the trial court is in the best interest of the child. We conclude it is and affirm.

This case involves the custody of the litigants’ three year old daughter, Lindsay Rebecca Hickman. The parties were judicially separated in 1982 and obtained a judgment of divorce on May 6, 1983. The divorce judgment awarded custody of Lindsay to Mrs. Hickman, subject to specific visitation rights granted to Mr. Hickman.

On September 2, 1983, Mr. Hickman filed a motion seeking joint custody under provisions of La.C.C. art. 146. After a hearing on the rule, judgment was rendered on February 16, 1984, awarding joint custody, pursuant to a plan of implementation.

During the months of September through May, Deborah Miller Hickman was awarded the physical custody and possession of the child for three weeks of each calendar month and appellant was awarded the physical custody and possession of the child for one week of each calendar month with an additional weekend from 6:00 p.m. on Friday until 6:00 p.m. the following Sunday. During the months of June, July and August, Mr. Hickman was awarded the physical custody and possession of the child for two full weeks during each of those calendar months, “beginning at 6:00 p.m. on a Friday and ending at 6:00 p.m. on the second Friday thereafter.” Holiday periods for Easter, Fourth of July, Thanksgiving and Christmas were spelled out and alternated. The parties were to afford each other the opportunity to babysit should the need arise. Other provisions involving domicile and information exchanges which have no bearing on this appeal were also included.

The provisions of this judgment give Mr. Hickman physical custody of the child for approximately 130-140 days per year, with the opportunity for more. Mr. Hickman appeals claiming that the lower court erred by not granting him equal custody on a 50/50 basis. He asks, in the alternative, that if the trial court’s judgment is proper, the judgment as signed does not accurately reflect the intent of the court as stated in its oral reasons for judgment. ■ *

Before we address appellant’s contentions we briefly mention the significant facts concerning the parties which were established at trial. The trial court found that Mr. and Mrs. Hickman were good, moral persons and fit parents. Both worked and adequately cared for and supported their child. Mr. Hickman is an owner of a new business, which provides an adequate income to support himself and the child. Mrs. Hickman works for a law firm in Minden. When Lindsay is with Mr. Hickman she stays at a local child care center while he works. She stays with her maternal grandparents while Mrs. Hickman is at work. There exists some conflict between the maternal grandparents and Mr. Hickman. The court found that although the parties did have some animosity and suspicions toward each other and some differences on certain aspects of rearing the child regarding schooling and clothing, both love the child and were willing to work together for Lindsay’s best interest. While Mr. Hickman had some emotional problems in dealing with the parties’ divorce, he had sought and received professional help for these problems and according to Reverend Heaeock, an expert witness, he has those problems under control. Based upon these facts, the court found both parties to be equally fit parents and joint custody to be applicable.

Two expert witnesses, both board certified social workers, testified they felt the circumstances of this case presented an ideal situation for an equal sharing of custody. Their opinions were based on the fact that since the parties lived less than one mile apart, regardless of which parent had custody, Lindsay would be attending the same school, church and would have contact with the same friends. The experts were of the opinion that the child needed to be exposed to both parents about equally.

The law applicable to this controversy is La.C.C. arts. 146 and 157 as amended. Article 157 provides that in cases of change in custody after an original award, custody shall be granted to the parents in accord-anee with article 146. Article 146 provides that custody shall be awarded according to the best interest of the child, with custody to both parents jointly as the first preference. The article establishes a rebuttable presumption that joint custody is in the best interest of a minor child. The article defines joint custody as meaning “the parents shall share the physical custody of children” and provides that “physical care and custody shall be shared by the parents in such a way as to assure a child of frequent and continuing contact with both parents.”

However, when the court finds that a decree of joint custody is in the best interest of the child, it does not necessarily require an equal sharing of physical custody. Peters v. Peters, 449 So.2d 1372 (La.App.2d Cir.1984); Adams v. Adams, 441 So.2d 490 (La.App.2d Cir.1983); Plemer v. Plemer, 436 So.2d 1348 (La.App.4th Cir. 1983). But in appropriate situations equal sharing of physical custody may be in the best interest of the child.

Every child custody case must be viewed within its own peculiar set of facts and the relationships involved, with the paramount goal of reaching a decision which is in the best interest of the child. In all cases involving a child custody judgment, great weight is given to the trial court’s decision which will not be overturned in the absence of a clear abuse of the trial court’s much discretion. Stephenson v. Stephenson, 404 So.2d 963 (La.1981); Cleeton v. Cleeton, 383 So.2d 1231 (La.1980); Peters v. Peters, supra; Adams v. Adams, supra; Plemer v. Plemer, supra.

Appellant argues that the trial court abused its discretion in failing to award an equal sharing of physical custody. He claims that based upon the situation of the parties and the recommendations of the two expert witnesses, the failure to order such an arrangement amounts to an abuse of discretion. We disagree. It is well settled that the trial judge is not bound by expert testimony. Such testimony is to be weighed by the court the same as any other evidence. Braxton v. Georgia Pacific, 419 So.2d 125 (La.App.2d Cir.1982); Gleason v. City of Shreveport, 393 So.2d 827 (La.App.2d Cir.1981).

Appellate courts should be reluctant to interfere with custody plans ordered by trial courts in the exercise of their discretion. Custody decisions reached by trial courts after careful consideration, should only be overturned where a clear abuse of discretion is apparent. No such abuse of discretion is present in this case. Considering the age of the child, the sole custody enjoyed by Mrs. Hickman in the past, the need for resolution of minor conflicts and disagreements through cooperation and the fact that both parents work, we find the lower court’s plan reasonable, feasible and in the best interest of Lindsay.

Appellant also argues in brief that the written judgment signed by the court does not accurately reflect the orders of the court as stated in its oral reasons for judgment. We note that the written judgment was approved by appellant’s counsel and appears to us to accurately follow the trial judge’s wishes. However, certain portions of the judgment appear to us likely to cause some confusion and conflict between the parties. Therefore, for the purpose of clarity, we amend paragraphs 1(a), (b) and (c) as follows:

1. Mrs. Hickman shall have the physical custody or possession of the child except Mr. Hickman will have the physical custody and possession during the following periods, to-wit:
(a) During the calendar months of September through May, for one week each month beginning at 6:00 p.m. on the first Friday of the month until 6:00 p.m. of the second Friday of said month.
(b) For one additional period each month during the months of September through May, beginning at 6:00 p.m. on the third Friday of the month until 6:00 p.m. the following Sunday.
(c) During the months of June, July and August, for two weeks each month, beginning at 6:00 p.m. on the first Friday of the month until 6:00 p.m. of the third Friday of the month.

All other portions of the judgment shall remain unchanged.

Given the evidence that both parents deeply love their child and are quite capable of providing the child with a comfortable home environment, the award of joint custody in this instance was within the court’s discretion. Judge Wyche’s advice to the parties, given in his oral reasons for judgment, reflects our sentiments:

I do want to emphasize that this will work only if you work hard. Now both of you, and your attorneys have both asked you, if you will try to work at it. This means you are going to have to not be so suspicious and, of course, you are going to have to not give any reason to the other to be suspicious, but you are going to have to have some faith in this other person as the other parent of the child and you are going to have to put aside your personal animosities and try to work together for her interest. And that’s not going to be easy. Its not easy to be a parent when you are married with your spouse and living together. I know it has to be more difficult when the other way is presented to you, but you are both parents and when I use the word “parents” I include in this case the grandparents who are so closely involved and will continue to be. The grandparents need to realize that it is the parents who have the final responsibility and the final say-so. The hard times that you have had with each other and the instances that have happened that have caused bad words and hard feelings and all I can say to you is that those things happen in most every life and I don’t certainly mean to try to lecture to you, you know that, but you need to put these things aside and to do what you can of course, recognize that you are going to have to do it. That’s just it, because you are still parents.

For the foregoing reasons the judgment of the lower court is affirmed as amended, at appellant’s cost.

AFFIRMED AS AMENDED.


author: JASPER E. JONES, Judge.

text:
    Florence V. JENKINS and Tommy Joe Jenkins, Plaintiffs-Appellants, v. OUACHITA PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 16570-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Rehearing Denied Nov. 29, 1984.
    Writ Denied Jan. 14, 1985.

      Simmons & Nelson by Otha Curtis Nelson, Sr., Baton Rouge, for plaintiffs-appellants.
    McLeod, Swearingen, Verlander & Dollar by David E. Verlander, Monroe, for defendant-appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

The plaintiffs, mother and son, filed suit against the Ouachita Parish School Board and Mr. Oliver Wright, the principal of the son’s school, for damages for the son’s alleged wrongful expulsion from the parish school system. The plaintiffs’ suit also demands that the son be reinstated as a student in the school system or in the alternative to have his school records cleared of all notations of misconduct. The defendants filed peremptory exceptions of prescription, no right of action and no cause of action. The trial judge sustained all exceptions and ordered plaintiffs’ suit dismissed. Plaintiffs appeal. We affirm in part and reverse in part.

The son, Tommy Joe Jenkins, was expelled from the school system after a hearing before the school board on November 17, 1982. The petition, which was filed November 7, 1983, alleges that the action of the board in expelling Tommy Joe constituted racial discrimination, a violation of equal protection and a taking of property without due process of law. The petition also alleges that Tommy Joe was defamed in connection with the expulsion proceedings.

Prescription

The grounds for and procedure which must be followed to expel a student are contained in LSA-R.S. 17:416. Section C of that statute provides that the parent or tutor of the expelled student may, within ten days, appeal the board’s ruling to the district court. Plaintiffs argue their suit is not subject to the ten day period of limitation because their cause of action is in tort and is subject to a one year prescriptive period under LSA-C.C. art. 3536. Defendants argue that regardless of how the petition is couched, plaintiffs are in essence seeking to overturn the board’s action and as such suit had to be brought within the delay provided for in 17:416 C.

In the case of Duer & Taylor v. Blanchard, Walker, Etc., 354 So.2d 192 (La.1978) the supreme court set out the rules for determining the applicable prescriptive period as follows:

Louisiana jurisprudence is well settled that the character of an action given by a plaintiff in his pleadings determines the prescription applicable to it ... It is equally well settled that prescription is stricti juris and the statutes on the subject cannot be extended from one action to another, nor to analogous cases beyond the strict letter of the law... Therefore, in resolving the certified question, we must examine the character of the action between the parties to determine the applicable prescriptive period, (cites omitted)

This court has found 17:416 C contemplates only that judicial review of the expulsion will be afforded. Williams v. Turner, 382 So.2d 1040 (La.App.2d Cir. 1980). There we recognized that a claim for damages for wrongful expulsion is a separate and distinct cause of action from a demand to have the expulsion reversed. Since the claim for damages is not within the contemplation of 17:416 C, it is not subject to the prescriptive period contained therein but is covered by the one year prescriptive period for torts.

The judgment of the trial court is reversed insofar as it holds that plaintiffs’ claim for damages has prescribed. The judgment is affirmed insofar as it holds that the demand for reinstatement has prescribed.

No Right of Action

The exception of no right of action is directed at the mother’s claim. She seeks to recover damages in the nature of mental anguish because she was required to send Tommy Joe to a private school to complete his education.

A person cannot recover in tort for mental anguish resulting from injuries suffered by another. Steele v. St. Paul Fire & Marine Ins. Co., 371 So.2d 843 (La.App.3d Cir.1979); Parker v. St. Paul Fire & Marine Ins. Co., 335 So.2d 725 (La.App.2d Cir.1976). Here the alleged tort was suffered by Tommy Joe. His mother has no right to recover for mental anguish resulting from the alleged tort committed upon her son.

The judgment sustaining the exception of no right of action is AFFIRMED.

No Cause of Action

One of the leading supreme court decisions on exceptions of no cause of action is Haskins v. Clary, 346 So.2d 193 (La.1977) which summarizes the rules applicable to the exception as follows:

The peremptory exception of no cause of action tests the legal sufficiency of the petition, and is triable on the face of the papers. For the purpose of determining the validity of the exception, all well-pleaded allegations of fact are accepted as true, and if the allegations set forth a cause of action as to any part of the demand, the exception must be overruled ...
Liberal rules of pleading prevail in Louisiana and each pleading should be so construed as to do substantial justice... When it can reasonably do so, the court should maintain a petition so as to afford the litigant an opportunity to present his evidence...
The general rule applicable to trial of such exceptions is that an exception of no cause of action must be overruled ... unless plaintiff has no cause of action under any evidence admissible under the pleadings ... Because a petition is subject to more than one interpretation or is vague, does not mean that it is fatally deficient. A vague, uncertain, or indefinite petition is subject to an exception of vagueness, but not to an exception of no cause of action... (cites omitted, emphasis supplied)

Defendants argue the petition fails to state a cause of action because the allegations that the board’s action constitutes racial discrimination, a violation of equal protection and a denial of due process are eonclusory in nature and there are no facts alleged to support the conclusions. While we agree with this contention, we find the trial court erred in sustaining the exception because the petition, in part, states a cause of action for defamation.

To maintain an action in defamation, the following elements must be shown: (1) defamatory words; (2) publication (communication to someone other than the person defamed); (3) falsity; (4) malice, actual or implied; and (5) resulting injury. Cangelosi v. Schwegmann Bros., Etc., 390 So.2d 196 (La.1980); Carter v. Catfish Cabin, 316 So.2d 517 (La.App.2d Cir.1975).

In paragraph 5 of the petition it is alleged:

The principal (referring to Wright) signed a statement for plaintiff, Tommy Joe Jenkins’ suspension and explusion (sic) from school and should have known that the statements made against him were untrue.

Although this allegation is vague, it is broad enough to require the admission of evidence showing: a false and defamatory statement was made; the statement was communicated to the school board; and injury, Tommy Joe’s expulsion, resulted from the statement. Evidence of malice (actual or implied) could be admitted on the allegation that the principal made statements which he should have known were false and which caused Tommy Joe to be expelled from school.

Defendants argue that in order to state a cause of action for defamation, the plaintiff must allege with particularity the statement he contends is false. No authority has been cited for this contention and we found none. ■ The defendant could have required the false statement to have been alleged with particularity by filing an exception of vagueness.

The judgment sustaining the exception of no cause of action is reversed and the case is remanded to the trial court for further proceedings according to law. Costs are to be assessed at the conclusion of the litigation.

      . The petition states other unnamed employees of the school board are made defendants. Plaintiffs attempted to secure the names of these individuals by way of interrogatories.

      . The applicable portion of article 3536 was vacated and reenacted as LSA-C.C. art. 3492 by Acts 1983, No. 173 effective January 1, 1984.

      . The expenses of attending private school are included as an item of damages in Tommy Joe’s claim.

      . Defendants also address plaintiffs’ prayer for a jury trial in the exception of no cause. The function of a peremptory exception is to have plaintiffs’ action declared legally nonexistent. LSA-C.C.P. art. 923. Defendants cannot raise the issue of whether plaintiffs are entitled to a jury trial by this exception.

      . Had we found that the petition failed to state a cause of action we would be compelled to find the trial court erred in ordering Tommy Joe's action dismissed without giving him an opportunity to amend his petition. LSA-C.C.P. art. 934.


author: MARVIN, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HEALTH & HUMAN RESOURCES, SUPPORT ENFORCEMENT SERVICES, In the Interest of Jennifer Lynn MILLER, minor Child of Barbara Miller, Plaintiff-Appellee, v. Henry SMITH, Defendant-Appellant.
    No. 16572-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.

      Lacroix & McKeithen by Leslie L. La-croix, Jr., Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Lillian Dunlap, Asst. Dist. Atty., Monroe, for plaintiff-appellee.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

In this action under LRS 46:236 et seq., defendant appeals a judgment recognizing him as the natural father of a child born May 11, 1974. He contends that the preponderance of the evidence does not prove his paternity and that expert testimony should not have been considered. LRS 9:397. We affirm.

The State of Louisiana, Department of Health and Human Resources, Support Enforcement Services, brought the action on behalf of the child. Defendant answered and denied his paternity of the child. Defendant had counsel who answered the action and interrogatories and who signed a pre-trial statement. Trial occurred about a year after the action was filed but neither defendant nor his counsel appeared at the trial.

FACTS

The child’s mother identified defendant as the brother of her sister’s husband. She testified that the child was conceived when she and the defendant had sexual relations on one occasion in August 1973. She said that she did not have sexual intercourse with anyone else for a six month period surrounding the conception in August 1973.

The mother said that defendant visited the child twice during the first week she was out of the hospital and that he visited the child every other week for several months after that, once accompanied by his sister. According tó the mother, defendant continued to visit the child occasionally over the next several years and on some occasions gave the child clothes, toys, a bicycle, and money. The mother also testified that defendant acknowledged to his legitimate daughter, who accompanied him on one visit, that the child was also his daughter.

In answers to interrogatories, the defendant admitted that he knew the child’s mother, that he had sexual relations with her in 1973, that he knew the child, that he had visited the child’s residence, and that he had given money to the child.

Samples and test results of blood from the child, the mother, and defendant, which were taken under the authority of LRS 9:397, were introduced in evidence. Two experts, Linda Armstrong, a blood technician, and Pat Wojtkiewicz, a biologist-microbiologist, who were appointed by the court, testified at trial. Ms. Armstrong, an expert in blood typing, testified about the procedure she used to draw and type the blood from the three donors.

The report signed and identified by these two witnesses, and by their superior, Mr. Ray Herd, the director of the Louisiana Criminalistics Laboratory, was admitted into evidence. This report concluded that defendant could not be excluded as the father of the child, and that it was 305 times more likely that defendant was the father than another randomly selected black male.

Mr. Wojtkiewicz, an expert in paternity testing, explained the genetic principles on which the testing is based, identified that part of the report which he had prepared after analyzing the results of Ms. Armstrong’s tests, reviewed the report, and opined that it was 99.6 percent probable that defendant was the father of the child.

Defendant and his attorney were given notice of the trial but did not appear to cross-examine the mother or the expert witnesses. The joint pre-trial statement signed by defendant’s lawyer shows that defendant did not name any witnesses or evidence which he intended to present.

A “Narrative of Facts” was prepared by a deputy clerk and was certified by the clerk of court in lieu of a transcript. CCP Arts. 2130, 2131. The narrative and the pre-trial statement indicate that the state was prepared to call two other witnesses besides the mother and the two experts. These witnesses were not called because the court stated that it was prepared to rule without further evidence.

Defendant argues that the expert testimony should not have been considered because only one expert testified as to the probability of defendant being the father of the child. Defendant contends that LRS 9:397 requires the appointment of at least two experts to testify to the possibility of paternity. Defendant argues that under such circumstances, the court abused its discretion and that its findings must be reversed.

Whether the Uniform Act on Blood Tests to Determine Paternity, LRS 9:396-398, requires the appointment and testimony of more than one expert is a question which has not been expressly answered in Louisiana. Dicta in McGowan v. Poche, 393 So.2d 278, 281 (La.App. 1st Cir.1980), indicates an affirmative answer. “The statute clearly requires the appointment of experts who shall be called by the court to testify to their findings ... Here ... Experts were not appointed ... Such procedure is clearly not contemplated by the statute. At least two individual experts should have been appointed.”

In McGowan, a single expert witness had concluded that the defendant could not possibly have sired that child. The trial court granted defendant’s motion for summary judgment. The court of appeal correctly held that the procedural device of summary judgment was not available in such a situation. McGowan correctly ruled on the summary judgment because, in our opinion, the Uniform Act contemplates that one or more expert witnesses will testify at trial.

Under the Uniform Act, the court has the usual discretion in admitting and weighing evidence. The only constraint is contained in Section 397.2 which mandates that a court resolve the question of paternity in the defendant’s favor “if the court finds that the conclusions of all the experts, as disclosed by the evidence based upon the tests, are that the alleged father is not the father of the child.”

In Jones v. Thibodeaux, 445 So.2d 44 (La.App. 4th Cir.1984), the expert testimony came from a single doctor who had based his opinion on his analysis of the results of tests done by his staff technicians. The defendant there argued that the blood test evidence was not admissable because plaintiff did not lay proper foundation. The court of appeal answered that “LRS 9:397.2 provides for the effect of the test results and states in part, if the experts conclude that the blood tests show the possibility of the alleged father’s paternity, that admission of this evidence is within the discretion of the court, depending upon the infrequency of the blood type.”

The Jones defendant did not argue and the court did not expressly consider the question whether the statute requires the testimony of more than one expert. Jones based its ruling, in part, on the opinion of a single expert who analyzed the results of tests performed by others under his employ.

Section 7 of Act 521 of 1972 states that the Uniform Act on Blood Tests to Determine Paternity “shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states, including Louisiana, which enact it.” State v. Sargent, 100 N.H. 29, 118 A.2d 596 (1955), is analogous to McGowan because only one expert testified and his results excluded the possibility of that defendant being the father. The supreme court of New Hampshire held that a trial court has the discretion of admitting and giving whatever weight it deems appropriate to the opinion of the one expert. We find no other case in point.

The Uniform Act does not compel a court to exclude evidence. The only mandate of the act is that mentioned, the court shall decide in favor of the defendant when all experts agree that the defendant could not be the father.

When the experts disagree as to the possibility of the defendant being the father, or the experts agree that the defendant could possibly be the father of the child, the act does not limit the trial court’s admission of relevant and material evidence. See LRS 9:397.2. We see no error when only one expert testifies as to the possibility of the alleged father’s paternity, especially if the report of that expert is cosigned by two other experts, one of whom was also available for cross-examination.

Under this record, we do not find any error in the admitting of the expert evidence. The court did not abuse its discretion under the statute by admitting blood test evidence.

PREPONDERANCE OF THE EVIDENCE

Plaintiff has the burden of proving defendant’s paternity of the child by a preponderance of the evidence. Succession of Washington, 308 So.2d 892 (La.App. 2d Cir.1975); State v. Sharplin, 431 So.2d 864 (La.App. 2d Cir.1983). Defendant argues that the state did not prove him to be the father by that standard. We do not agree.

We do not disturb a trier of fact’s determination of factual and credibility issues in the absence of manifest error. Reck v. Stevens, 373 So.2d 498 (La.1979); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring, 283 So.2d 716 (La.1973).

State v. Wiggins, 409 So.2d 1264 (La. App. 2d Cir.1982) does not support defendant’s argument that expert evidence of blood test results and testimony of the mother that defendant is the father of the child is not legally sufficient to constitute a preponderance of the evidence.

The Wiggins defendant introduced evidence which contradicted the mother’s testimony. The Wiggins defendant denied his paternity of the child, denied that he had ever given the child money or other things, and asserted that after the birth of the child there had been no relationship between him and either the mother or the child. The Wiggins defendant also produced evidence to show that the mother was a woman of “dissolute manners,” both before and after her delivery of the child in question. See CC Art. 210 before Act 549 of 1980. Defendant was present and cross-examined the witnesses in Wiggins. Wiggins did not specify the type of blood evidence there under consideration or explain the qualification or substance of the expert testimony as does this record.

The expert evidence that there was a 99.6 percent probability that defendant was the father is unrebutted. The testimony of the mother that defendant is the father of the child and about the particulars of the child/father relationship is not contradicted.

Defendant’s admissions in his answers to the interrogatories and the totality of all the evidence convince us that the trial court did not err in declaring defendant to be the natural father of the child.

At appellant’s cost, judgment is AFFIRMED.

      . "The tests shall be made by experts qualified as examiners of blood types who shall be appointed by the court. The experts shall be called by the court as witnesses to testify to their findings and shall be subject to cross-ex-animation by the parties. Any party or person at whose suggestion the tests have been ordered may demand that other experts, qualified as examiners of blood types, perform independent tests under order of court, the results of which may be offered in evidence. The number and qualifications of such experts shall be determined by the court."


author: FRED W. JONES, Jr., Judge.

text:
    Charles Everett BERRY and Betty Dauphin Berry, Plaintiffs-Appellees, v. James FARMER, Sr., Defendant-Appellant.
    No. 16583-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.

      R. Clyde Lawton, Jr., Vivian, for defendant-appellant.
    Nelson, Hammons & Johnson by John L. Hammons, Shreveport, for plaintiffs-appel-lees.
    Before PRICE, FRED W. JONES, Jr. and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

James Farmer, Sr. appeals a judgment for $8,173 for the unauthorized cutting of trees and brush belonging to Mr. and Mrs. Charles Berry. For the reasons hereinafter explained, we amend and affirm.

Farmer asserts that the trial judge erred in overruling his plea of prescription, in holding that the Berrys were entitled to exemplary damages, in awarding damages based on replacement costs, and in awarding damages for mental anguish.

The facts of the case are not complicated. The Berrys and a Mr. Lumas own adjoining tracts of land near Ida, Louisiana. James Farmer, Sr. contracted with Mr. Lumas to cut timber on his land. Farmer had an agreement with a shipper that he would supply and it would accept a maximum of two loads (20 cords) of timber per week. This maximum on his output caused Farmer to spread the job over a period stretching from mid-August to late September. During this period, Farmer crossed Lu-mas’s northern boundary and cut 10 large trees and approximately 20 small trees from the southeast corner of the Berrys’ lot. The Berrys sued Farmer after he refused to pay for the trees.

The first issue is whether the trial judge erred in finding that the action had not prescribed. The Berrys filed suit on August 31, 1983. The timber operations admittedly were ongoing on August 31 of 1982. The sole dispositive question of fact is: when was the last tree cut from the Berrys’ land? The trial judge specifically made a credibility assessment and believed the testimony of Mr. and Mrs. Berry as corroborated by their phone records and the testimony of one of Farmer’s laborers. The trial court found that the cutting operation on the Berrys’ land was after September 1, 1982, consequently the plea of prescription failed. Credibility of witnesses is a determination particularly well-suited to the trial court. After reviewing the record, we find that the trial judge was not clearly wrong.

The second issue is whether the trial judge erred in granting “exemplary damages.” There was no such award. An award for “mental anguish” is not an award for “exemplary damages.” Turner v. Southern Excavation, Inc., 322 So.2d 326, 327 (La.App. 2d Cir.1975), citing Loeblich v. Garnier, 113 So.2d 95 (La.App. 1st Cir.1959). Furthermore, the trial judge did not award treble damages since the plaintiffs abandoned the claim during the course of trial. Appellant’s claim of error on this basis is meritless.

The third issue raised by Farmer is whether the trial judge erred by awarding damages based on replacement costs rather than the relative value of the land before and after cutting, or the timber value of the trees taken. The trial judge acknowledged that the standard is generally to award the change in value of the land. However, he also noted that where there is a willful and wanton disregard for the interest of the property owner, the trial court has the discretion to apply a different measure of damages. The trial judge found that while Farmer may not have intentionally cut the Berrys’ trees, he showed a wanton and reckless disregard. We note that the Berrys’ expert testified that the diminution of the value of the land was the equivalent of the replacement value of the trees in this case. However, the record does indicate that the small trees and brush would have ultimately been eliminated in a “thinning out” process for the benefit of the larger ornamental trees. Therefore, error was committed in awarding $1800 for this item.

Finally, Farmer contends the trial judge erred in awarding $2,000 damages for mental anguish. We agree. First, no mental anguish was proved on the part of Mr. Berry. Second, that of Mrs. Berry was minimal. We find that the sum of $500 would be adequate to compensate her for that item, and so reduce the award.

To summarize, we eliminate the award of $1800 for loss of the small trees and brush and the award of $1000 to Charles Berry for mental anguish. Further, we reduce the award of $1000 to Mrs. Berry for mental anguish to $500.

For these reasons, we amend the judgment by reducing it to $4,873 and, as thus amended, affirm. Costs of appeal are divided equally between the appellant and the appellees.


text:
    Floyd J. SEPULVADO, Plaintiff-Appellee, v. WILLIS-KNIGHTON MEDICAL CENTER, INC., et al., Defendant-Appellant.
    No. 16598-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Writ Denied Dec. 14, 1984.

      Booth, Lockard, Politz, LeSage & D’Anna by John R. D’Anna, Shreveport, for plaintiff-appellee.
    Watson, Blanche, Wilson & Posner by Felix R. Weill, Baton Rouge, for defendant-appellant.
    Before PRICE, FRED W. JONES, Jr. and NORRIS, JJ.
   NORRIS, Judge.

This appeal is from a jury verdict in a personal injury case. The plaintiff, Floyd Sepulvado, won $175,000 in damages from an unanimous twelve-man jury. Defendant, Willis-Knighton Medical Center, was denied a request for remittitur or a new trial. Defendant now seeks reduction by means of appeal, claiming manifest error and abuse of discretion. We affirm the lower court judgment recognizing the jury award.

The injury which gave rise to this lawsuit occurred on September 17, 1980, as plaintiff was being rolled out the hospital in a wheelchair. He had entered the hospital on September 10 to undergo a laminectomy and lysis surgery. The operation was an apparent success. After a week in the hospital for recuperation, plaintiff was discharged and boarded a wheelchair for the trip to his car. The aide driving the wheelchair attempted to pass through a doorway with a threshold raised about ¾ inch high. The wheels struck the threshold head-on, stopping the chair and jolting plaintiff from his seat, almost onto the floor. He experienced a sudden, sharp pain in his back and had to be returned to his room. Insistent on going home, he was released later the same day despite considerable pain and soreness in the back. This pain, he asserts, is the same kind as he experienced before the operation and is what the operation corrected, except that it has worsened and spread to other parts of his body, particularly to his legs and feet. The pain is now constant and although it sometimes diminishes for short intervals, it is often excruciating and always serious enough to require medication. Plaintiff is unable to sit or stand for long periods of time and has been unable to work since the accident.

Mr. Sepulvado has a history of back problems. At the time of the accident he was 53 years old. He was a carpenter, contractor and house builder. Some twenty years earlier, he had suffered his first ruptured disk and had undergone surgery. Then, about three to five years later, he had another ruptured disk and another surgery. A myelogram was made for the second surgery but it was not used at trial. Both these operations were performed by Dr. Bonn, who is now deceased. According to Mr. Sepulvado, these operations were successful and enabled him to resume his regular active work routine virtually without pain. Then in 1978 he “stepped awkwardly” into a hole while doing carpentry work and began to have new pain in his back, left leg, and foot. He went to see Dr. Bennett Young, who could find no serious problem but prescribed pain medicine. Plaintiff claims that after a few days’ rest he was able to return to work. Then in late August of 1980 he fell in a ditch, experienced severe pain, and went to see Dr. Young again. Dr. Young placed him in the hospital for tests, including a myelo-gram that was introduced at trial. The doctor found an extradural defect at L-4, 5 and diagnosed a herniated disk, disk fragment, or arachnoiditis. He scheduled surgery for September 10 in order to pinpoint the problem and correct it. Dr. Young testified at trial.

The hospital accident occurred one week after surgery. In the meantime, plaintiff had been recuperating and had begun walking. After the accident, he was taken home. Plaintiff testified that he reported the injury and resultant pain to Dr. Young soon afterwards. Dr. Young testified that he received his first knowledge of the accident on March 30,1981, the date he noted it in his records. The nurses clinical and progress report from the hospital, however, contains the notation dated September 17, 1980 at 3:45 p.m., “Dr. Young notified of condition; stated OK for discharge,” indicating that he had notice of the incident within fifteen minutes of its occurrence.

Since Willis-Knighton is a “health care provider” under the Louisiana Medical Malpractice Act, LSA-R.S. 40:1299.47, plaintiffs claim was originally heard by a medical review panel. The panel concluded that the hospital accident had only aggravated a pre-existing condition and that it had not caused permanent impairment. One member of the panel, Dr. Austin Gleason, testified at trial.

Before trial, Willis-Knighton stipulated its liability. Thus the jury’s only question was quantum. After a two day trial, the jury rendered a verdict for $175,000. As mentioned earlier, defendant moved for a remittitur or, alternatively, a new trial. The trial judge denied the requested relief.

On appeal, defendant argues the trier of fact committed manifest error in finding that plaintiff’s injuries caused by the wheelchair accident were permanent and not temporary. Defendant stresses the results of the medical review panel as well as testimonial remarks from other physicians. Our approach to review is guided by the holdings in Canter v. Koehring Co., 283 So.2d 716 (La.1973), clarified by Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). In Arceneaux, the Supreme Court said:

As an aid to the exercise of the appellate function of review of facts in civil cases, we attempted to explain, in Canter v. Koehring, supra, without great detail, the appropriate standard. We said that “even though the appellate court may feel that its own evaluations and inferences are as reasonable,” it should not disturb reasonable findings of the trial court when there is conflict in the testimony. We prefaced this observation: “When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court 'should not disturb this factual finding in the absence of manifest error. 283 So.2d 716, 724 (emphasis added).
We did not foresee that this explanation would be misunderstood to mean that: “There is no manifest error when the evidence before the trier of fact furnishes a reasonable basis for its finding.” We said the appellate court should not disturb this factual finding in the absence of manifest error. The difference is important. “Manifestly erroneous,” in its simplest terms, means “clearly wrong.” We said, then, that the appellate court should not disturb such a finding of fact unless it is clearly wrong. Therefore, the appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong (manifestly erroneous). 365 So.2d at 1333.

Therefore we shall review the evidence to see whether the verdict is clearly wrong.

Plaintiff first called Dr. Young, who tes: tified about his examinations of plaintiff. The myelogram of September 1980 showed that he had either a herniated disk, a herniated disk fragment, or arachnoiditis (an inflammation of spinal tissue due to the earlier surgeries). Dr. Young said he performed a laminectomy and lysis surgery and considered it a success. He admitted, however, that he could not recall plaintiff mentioning the accident until the following March, in spite of plaintiffs testimony and hospital records to the contrary. He also said that plaintiff had arachnoiditis. This condition could be causing some of plaintiffs pain, plaintiff had it before September 1980, and it is a permanent condition.

Plaintiff next called Dr. Boykin, who examined him in April 1981, after he had reported the hospital accident. Dr. Boykin said plaintiff did very well postoperatively until the accident. By April 1981, plaintiff was totally disabled and unable even to sit down for a long period of time. He complained of pain all the way from his lower back to his feet, with a burning sensation in his feet and toes. After an examination, Dr. Boykin’s impression was that plaintiff had an extrusion of disk material and that it was due to the hospital accident. He said that persons who have just undergone a laminectomy are “vulnerable” to reinjury in the same spot. He then performed a myelogram which was “virtually similar” to the one of September 1980, a CT scan which showed some hypertrophic spurring but no disk fragments, and an EMG that was normal. He saw plaintiff again in December 1981, when the pain was at its worst. He told plaintiff that surgery could possibly alleviate the pain, but that he could guarantee only 80% mobility at best and that the surgery was very risky. Then, on cross examination, Dr. Boykin stated that in his opinion the accident had not caused permanent injury.

Plaintiff also called Dr. Robert Holladay, who examined him in June 1982 for his disability insurer. He diagnosed postoperative diskectomy on the lumbar spine and a recurrent herniated disk. This condition had disabled plaintiff from using his back or lower extremities for lifting, bending, or climbing stairs. He said the hospital accident “more probably than not” caused plaintiff’s present condition. On cross examination, however, he admitted that he formed this opinion without a complete, detailed knowledge of plaintiff’s prior back troubles. He had reviewed Dr. Young’s discharge summary as well as Dr. Boykin’s discharge summary, with its evaluation of plaintiff, but he had not reviewed any prior myelogram (except for Dr. Boykin’s), nor the CT scan, nor the EMG.

Plaintiff took the stand and said he felt “real good” on the sixth day after the operation. He was ambulating well until the accident. Plaintiff and his wife both testified to the extent of plaintiffs pain and discomfort. They both described his inability to work, his difficulty standing or sitting without pain, his curtailment of social and family activities, and the serious abridgment of his recreational pursuits. Mr. Sepulvado indicated, however, that he had killed two four-point deer during the recent season.

The hospital called one witness, Dr. Austin Gleason, who had served on the medical review panel. His opinion was the plaintiff suffered a temporary disability that lasted twelve weeks. Another panel member, Dr. Smith, thought the disability lasted only four weeks. The third member, Dr. Kelly, found an aggravated pre-existing condition but no permanent impairment. Dr. Kelly is reportedly a friend of plaintiffs. On cross examination, Dr. Gleason said the September 10 surgery appeared to be a complete success. He also admitted that he had never personally examined plaintiff.

On review of this evidence, we can find no clear, manifest error. There is in fact ample evidence to support the finding of permanent injury to plaintiff resulting from the wheelchair accident. Although the medical panel said the injury could have lasted no longer than twelve weeks, Dr. Boykin said plaintiff was still in excruciating pain in December 1981, some fifteen months after the accident. The jury placed great weight on Dr. Holladay’s expert opinion that plaintiff had suffered a recurrent herniated disk in his lumbar spine as a result of the wheelchair accident, leaving plaintiff very disabled. Furthermore, the jury chose to believe the general medical descriptions offered by Drs. Young and Boykin, more than they believed their conclusory statements, elicited on cross examination, that plaintiff was not permanently injured. This is a case of conflicting testimony and the jury’s determination must stand. Finally there is plaintiffs own testimony, corroborated by his wife, that he still cannot work and must constantly take pain medicine.

In sum, we can find no manifest error as defendant claims.

Defendant next argues that the award is too large for the injury sustained. Our guidelines for approaching such an argument are laid out in Reck v. Stevens, 373 So.2d 498, 501 (La.1979):

Thus, the initial inquiry must always be directed at whether the trier [sic] court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s “much discretion”, La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reasons, be considered either excessive, ... or insufficient ... Only after such determination of abuse has been reached, is a resort to prior awards appropriate ... for purposes of then determining what would be an appropriate award for the present case.
In the initial determination of exces-siveness or insufficiency, an examination of prior awards has a limited function — if indeed the facts and circumstances of the prior awards are closely similar to the present. The prior awards may serve as an aid in the determination only where, on an articulated basis, the present award is shown to be greatly disproportionate to past awards (not selected past awards, but the mass of them) for (truly) “similar” injuries ... (citations omitted)

See also Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

Our first duty is to consider whether this plaintiff’s particular injuries are worth so much less than the sum awarded as to amount to an abuse of discretion. The facts already articulated in this opinion show that plaintiff is under constant pain. Sometimes his legs have a. “tingling” or sleepy sensation; other times, a burning sensation. His back remains sore and tender. In short, plaintiff has made a very strong showing of pain and suffering.

Furthermore, plaintiff is considering a difficult and expensive surgery in hopes of relieving his pain. Otherwise, he can expect medical and drug expenses for the rest of his life. At least part of the jury’s general award can be attributed to future medical.

Finally, plaintiff has sustained a great loss of earning capacity. It is fairly certain that he will not be able to pursue his livelihood, carpentry and housebuilding. Calculations of this sort are necessarily uncertain. Hill v. Sills, 404 So.2d 1323 (La.App.2d Cir.1981). Nevertheless we cannot find an abuse of discretion here. Even if we disregard the pain and suffering and future medical elements of the award, which are considerable, and assume that plaintiff had eight or ten working years left, reckoned from the time of trial, this judgment will compensate him between $17,500 and $22,000 per year, which is not excessive. See also Bize v. Boyer, 408 So.2d 1309 (La.1982); Folse v. Fakouri, 371 So.2d 1120 (La.1979).

Defendant maintains, however, that plaintiffs case is not so simple. The hospital contends plaintiff had been suffering some pain for many years and great pain since 1978. By comparison, it says, plaintiffs present pain is only marginally greater. They cite Perniciaro v. Brinch, 384 So.2d 392 (La.1980), as authority that a low award is suitable for a tort plaintiff with a pre-existing back problem. In that case, Ms. Perniciaro was already suffering from osteoarthritis when defendant, going 25 miles per hour, rear-ended her car. The jury gave her only $500. The Supreme Court elevated the quantum to $5,000, saying that was the lowest possible award. The Supreme Court actually said that the trial court improperly credited her with a short period of disability by attributing most of it to her prior condition. The court said plaintiff must receive damages for any aggravation of her prior condition, and it was only the deference to the trial court’s special factfinding duties that prevented the Supreme Court from reaching a higher award. The hospital also cites Flettrich v. Jacob, 427 So.2d 492 (La.App.5th Cir.1983); Anthony v. New Orleans Public Service Inc., 449 So.2d 666 (La.App. 4th Cir.1984) writ denied 450 So.2d 968 (La.1984); and Spears v. Aguilar, 436 So.2d 672 (La.App. 4th Cir.1983). We have examined these cases and find them inapposite to Mr. Sep-ulvado’s case. True, Mr. Sepulvado had been suffering much pain since his fall in August 1980 and before the wheelchair accident. But just days before the s wheelchair accident, he had undergone a complex • surgery to alleviate the condition. By all accounts the surgery was a success. Plaintiff was entitled to expect and had already experienced an improvement in his health.

Instead, plaintiff was re-injured at a time when he was unusually susceptible to re-injury. We think the controlling principle is that announced in Sansonni v. Jefferson Parish School Board, 344 So.2d 42, 46 (La.App. 4th Cir.1977):

We follow the rule of tort law set forth in Rachal v. Bankers and Shippers Ins. Co., [146 So.2d 426, La.App. 3d Cir.1962, writ ref’d]. “A tort feasor must take his victim as he finds him. The tort feasor is responsible for all the natural and responsible consequences of his wrong, even [though] the consequences of the tort are made much more serious or harmful by reason of a pre-existing physical defect or weakness of the injured person.”

We are not in a position to question how much of plaintiff’s present pain and disability was caused by the accident and how much was due to earlier back problems. The jury made that determination based on their assessment of the evidence and we can find no abuse of discretion.

For all these reasons, we can find neither manifest error nor abuse of discretion and we affirm the judgment of the trial court. All costs will be paid by appellant, Willis-Knighton Medical Center.

AFFIRMED.


text:
    Della Mae Warren HOLCOMB and Gladys Jean Holcomb McAllister, Plaintiffs-Appellants, v. Catherine Sue Hickingbottom BAKER and Carolyn Hickingbottom Crumpton, Defendants-Appellees.
    No. 16599-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Writ Denied Dec. 14, 1984.

      Kidd & Kidd by Paul Henry Kidd, Jr., Monroe, for plaintiffs-appellants.
    Theus, Grisham, Davis & Leigh by Paul D. Spillers, Monroe, for defendants-appel-lees.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

This case involved an attempt to set aside an inter vivos donation of immovable property made by Arthur C. Holcomb, now deceased, to Catherine Baker and Carolyn Crumpton, his two stepdaughters. The plaintiffs in the action are decedent’s mother, Delia Holcomb, and sister, Gladys Holcomb McAllister. The trial judge refused to annul the donation and assigned written reasons.

The plaintiffs’ appeal is based on four principles of law: (1) lack of donative capacity, (2) impingement on the legitime of decedent’s mother, (3) donation omnium bo-norum, and (4) a creditor’s rights on a gift donated by a debtor. We affirm the trial judge’s findings of capacity to donate and insufficient proof of donation omnium bo-norum. We remand for inventory of the estate and figuring of the active mass in order that the legitime of Delia Holcomb and any creditor’s rights she may have can be properly assessed in light of the law herein discussed. Gladys McAllister is dismissed from the suit as having no right of action to the remaining claims.

FACTS

The donor in this case was undisputedly an alcoholic. In 1972, he had surgery to save him from advanced cirrhosis of the liver. For approximately three years after the operation he did not drink. During that time he married Nannie Lee Fleming Hickingbottom and moved to some farmland in Jones, Louisiana. His wife had two daughters by a former marriage. The younger daughter lived with them throughout her high school years and the older daughter frequently visited. As time went on, the farm sank deeper and deeper into debt. The donor returned to drinking. As his drinking increased, so did his physical ailments. As a result of his drinking, he was hospitalized from May 1, 1981 to June 3, 1981; from June 13, 1981 to June 28, 1981; and finally, on July 3, 1981. He died on July 4, 1981.

On April 7, 1981, the donor and his wife visited the office of Don Carroll, attorney-at-law, in Oak Grove, Louisiana. There the donor executed the inter vivos donation of his interest in the farm to his two stepdaughters. It is this donation that the heirs of the donor attack.

DONATIVE CAPACITY

All persons are presumed capable of donating their property whether by donation inter vivos or mortis causa. Louisiana Civil Code Article 1470 (1870). This presumption of capacity puts the burden of proving lack of capacity on the party attacking the donation. Succession of Kil-patrick, 422 So.2d 464 (La.App. 2d Cir. 1982), writs denied 429 So.2d 126. Proof of lack of capacity should overcome the presumption of capacity by clear and convincing evidence. Succession of Lyons, 452 So.2d 1161 (La.1984). It is sufficient that the capacity to donate exists at the moment the donation is made. La.C.C. Art. 1472. In sum, the party alleging incapacity has the burden of proving by clear and convincing evidence that the donor was incapable of donating at the moment of the donation.

In this case, the capacity alleged to be lacking is the soundness of mind requirement of Civil Code Article 1475. Sufficient soundness of mind can be determined from a showing that the donor knows what he is doing, knows what he has, and knows what he wants to do with it. Succession of Turner, 157 So.2d 740 (La.App. 2d Cir.1963). The question of capacity is a question of fact, and the trial judge’s determination will not be disturbed unless clearly erroneous. Succession of Kilpatrick, supra.

The trial judge correctly put great weight on the “lay testimony” in this case. The experts who testified did not see the donor until almost a month after the act of donation. Their testimony was primarily speculating whether or not the donor’s condition on May 1 necessitated the conclusion that the donor was mentally incapable on the April 7th immediately preceding. The lay testimony consisted of individuals who saw him on April 7th. The trial judge said:

In determining decedent’s mental capacity the Court also has the benefit of observations of several credible lay witnesses. Mr. Donald Carroll prepared the Act of Donation and Mr. Holcomb executed it before him on April 7, 1981. Although Mr. Holcomb was physically unable to sign the instrument, Mr. Carroll testified he clearly understood what he was doing. Mrs. Lee Holcomb was present when her husband signed the donation. She testified that he was mentally competent and was doing something he had a desire to do for several years. Mr. Charlie Fleming testified that he saw decedent several hours after the donation and Mr. Holcomb said: “I’ve done something I wanted to do for a long time.” He said Mr. Holcomb was not intoxicated and understood what he had done. Other lay witnesses corroborated the competent mental state of Mr. Holcomb during this relevant period. The Court must conclude in view of the persuasive lay testimony that Mr. Holcomb was not mentally incompetent at the time he donated the property to defendants.

Appellants did not prove the incapacity of the donor by a preponderance of the evidence or by clear and convincing evidence. The trial judge did not err on this issue.

DONATION OMNIUM BONORUM

Appellants also urge that the trial judge erred when he refused to find the donation null under Civil Code Art. 1497 as a donation omnium bonorum (i.e., a donation of all his property). We note in passing that this cause of action was originally written into the Civil Code to protect the donor and consequently is most reasonably construed as a personal right that is not heritable. While this approach would pretermit a discussion of the merits of this claim since the heirs would have no right of action, we feel obliged to decide on the merits since the conflicting jurisprudence has often characterized the donation omnium bonorum as a nullity ab initio (i.e., an absolute nullity) which would allow the heirs to assert the nullity.

Plaintiff has the burden of proving that the donation divested the donor of all of his property and that the donor did not reserve enough for his subsistence. C.C. Art. 1497 (1870). In this case, the donor divested himself of all his interest in his immovable property, but retained all of his personal belongings. Furthermore, the donor received monthly social security and veterans benefits totaling $477.33. No evidence was introduced relating to the donor’s living expenses nor was evidence presented showing that the donor could not meet his needs. Under these circumstances we find this case indistinguishable from Ellis v. Benedict, 408 So.2d 987 (La.App. 2d Cir.1981). We therefore affirm the trial judge on his holding that there was not a donation omnium bonorum.

IMPINGEMENT ON LEGITIME

The donor’s mother complains that the donation prevented her from receiving her legitime under the law applicable at the donor’s death. On July 4, 1981, Civil Code Articles 911 and 1494 (now both repealed) were still in effect. Article 1494 (Acts 1956, No. 313, § 1) provided:

Donations inter vivos or mortis causa can not exceed two-thirds of the property, if the disposer, having no children, leaves a father, mother, or both, provided that where the legal portion of the surviving father, mother, or both is less than one-third the forced portion shall not be increased to one-third but shall remain at the legal portion.

Article 911 (1870) provided:

If a person dies, leaving no descendants, and his father and mother survive, his brothers and sisters, or their descendants, only inherit half of his succession.
If the father or the mother only survive, the brothers and sisters, or their descendants, inherit three-fourths of his succession.

The two articles read together provide that the donor’s mother would be entitled to a forced portion of one-fourth. She therefore would be able to force a reduction of any donations to the extent of the value of her legitime. C.C. Article 1502.

However, in order to determine the value of the legitime it is necessary to first calculate the active mass under C.C. Article 1505. The record does not provide this court with adequate evidence to compute the active mass; therefore we must remand.

CREDITORS’ RIGHTS

The appellants cite C.C. Articles 1552 and 1553 claiming they give a creditor the right to look to a “universal donee” for the debts of the donor. In this case, Delia Holcomb has a judgment against the unopened succession of the donor for debts prior to the donation. There is one case defining a “universal donee,” Porche v. Moore, 14 La.Ann. 241 (1859). This case states that the distinction between universal and particular legacies is not analogous to a universal donation. In Porche, it was held that the donation of land and slaves which constituted the whole of the donor’s property, with reservation of an annuity to himself, was not a donation omnium bono-rum but was a universal donation. It was found that the donor had reserved scarcely enough property for his subsistence. We find Porche to be applicable in this case and remand to the trial court to determine if the donor reserved an insignificant amount of property above subsistence; if so, C.C. Articles 1552 and 1553 should be applied.

We therefore affirm the judgment rejecting plaintiffs’ demands based on incapacity of the donor and on the donation being a donation omnium bonorum. Otherwise, we reverse and remand to the trial court for a determination,of the active mass and legi-time in accordance with Succession of Gomez, 226 La. 1092, 78 So.2d 411 (1955), and the applicability of Articles 1552 and 1553. We also render judgment rejecting all claims of Gladys McAllister. The costs of appeal are to be divided equally between appellants and appellees.


author: PRICE, Judge.

text:
    STATE of Louisiana, Appellee, v. Jerry Glen McCUTCHEN, Appellant.
    No. 16640-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Rehearing Denied Nov. 29, 1984.
    Writ Denied Feb. 4, 1985.
    Indigent Defender’s Office by Wayne J. Blanchard and Richard E. Hiller, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., Robert W. Gillespie, Jr., and John A. Broadwell, Asst. Dist. At-tys., Shreveport, for appellee.
    Before PRICE, FRED W. JONES, Jr. and NORRIS, JJ.
   PRICE, Judge.

Defendant, Jerry Glen McCutchen, pled guilty to armed robbery in violation of LSA-R.S. 14:64 and to forcible rape in violation of LSA-R.S. 14:42.1. Defendant appeals the sentence of twenty-five years at hard labor without benefit of parole, probation or suspension of sentence on the armed robbery charge and a concurrent sentence of twenty-five years at hard labor with two years of that sentence without benefit of parole, probation or suspension of sentence on the forcible rape charge. We affirm.

The uncontroverted facts reveal that on October 8, 1983, an eighty-one year old female was watching television in her home located in Belcher, Louisiana. At approximately 3:00-4:00 p.m., the victim heard a noise and turned around to find the defendant in her living room. The defendant had made a forced entry into the home by cutting a hole through a screen door. The defendant was armed with a knife and a claw hammer and displayed his weapons to the victim. After making demands for money, the defendant placed the victim on the floor and removed her clothing. The defendant placed a small pillow on the victim’s face. After a brief struggle, defendant then forced the victim into the bedroom onto'the bed where he raped her. During intercourse, the victim told the defendant that she was old and she believed that she was going to faint. At this time, defendant got up and started a window fan. He then returned to the bed and resumed intercourse.

After the offense was completed, defendant continued his demands for money. Defendant removed some money from the victim’s purse and then fled from the residence.

The victim recognized the defendant as having done some yard work for her in the past and she knew the defendant’s first name. The victim immediately reported the incident and an investigation ensued.

An officer pursuing the defendant came in contact with a sixteen year old girl who stated that the defendant had given her some money with instructions to hide the money and not to reveal that he had given it to her. The defendant was subsequently arrested that night at the home of his grandmother.

Fingerprints of the defendant were found on the window fan in the victim’s residence. The hammer used in the attack was found discarded in a field near the victim’s home and the knife was recovered later. Laboratory tests on samples from the victim revealed seminal acid phosphatase which indicated sexual intercourse had occurred. The defendant was sixteen years old at the time of the offense.

Defendant was originally charged with aggravated burglary, armed robbery and aggravated rape. Pursuant to plea negotiations, defendant was allowed to enter a guilty plea to armed robbery with a stipulated range of imprisonment of not less than five years nor more than thirty years hard labor without benefit of parole, probation or suspension of sentence and a guilty plea to forcible rape with a stipulated range of imprisonment of not less than two years nor more than thirty years at hard labor with a minimum of two years without benefit of parole, probation or suspension of sentence, said sentences to run concurrently. The charge of aggravated burglary was dismissed by the state.

After the guilty pleas were accepted, defendant was sentenced to twenty-five years at hard labor without benefit of parole, probation or suspension of sentence on the armed robbery charge and a concurrent sentence of twenty-five years at hard labor on the forcible rape charge with two years of that sentence without benefit of parole, probation or suspension of sentence.

Defendant’s sole contention on appeal is that the sentence imposed is excessive. Defendant argues that the sentence is excessive under the standard enunciated in Article 1 Section 20 of the Louisiana Constitution of 1974, and that the considerations taken into account by the trial court in determining the sentences under La.C. Cr.P. 894.1 were not adequately supported by the facts. Defendant essentially claims that the trial court found that the severity of the crime was the predominant factor in sentencing the defendant under the guidelines set forth in La.C.Cr.P. Art. 894.1 rather than the defendant’s age, lack of a prior criminal record and that the victim did not suffer any serious injury. Further, the defendant argues that the court failed to consider a comparison of the defendant’s punishment with sentences imposed for similar crimes by other courts.

It is well-settled that the sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Square, 433 So.2d 104 (La.1983), State v. Brooks, 431 So.2d 865 (La.App.2d Cir.1983), State v. Hammonds, 434 So.2d 452 (La.App.2d Cir.1983), writ denied 439 So.2d 1074 (La.1983).

The purpose of La.C.Cr.P. Art. 894.1 is to adapt the sentence to the offender as well as the offense so that the sentence imposed by the court is individualized. State v. Jackson 360 So.2d 842 (La.1978).

The guidelines of La.C.Cr.P. Art. 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Sepulvado, 367 So.2d 762 (La.1979) and State v. Tully, 430 So.2d 124 (La.App.2d Cir.1983). While the trial court need not articulate every aggravating and mitigating circumstance outlined in Art. 894.1, the record must reflect that the court adequately considered these guidelines in particularizing the sentence to the defendant. State v. Hammonds, supra; State v. Cunningham, 431 So.2d 854 (La.App.2d Cir.1983) and State v. Smith, 433 So.2d 688 (La.1983).

Examining the record, it is clear that the trial court properly and carefully articulated all of the sentencing considerations affecting this particular defendant. The court found that based upon the severity of the crime, the defendant was in need of correctional treatment and that a lesser sentence would deprecate the seriousness of the offense. The court carefully examined the mitigating factors which include the defendant’s somewhat poor educational background, his claim that he had been drinking alcohol prior to the offense, the lack of a prior criminal record and the defendant’s age.

The offenses committed by the defendant are extremely serious offenses which merit serious penalties. There were numerous aggravating circumstances noted by the court which support these sentences. The sentences imposed by the court are not excessive and were within the range of the plea bargain agreement, fitting both the offenses and the offender.

As noted earlier, the purpose of La. C.Cr.P. 894.1 is to individualize the sentence to each particular defendant. The court is not required to conduct a lengthy review into similar eases to compare the sentences imposed. Such a requirement would necessarily act to defeat the very purpose behind the article.

Under Article 1, Section 20 of the Louisiana Constitution, a sentence is excessive if it is grossly out of proportion to the severity of the crime or if it is nothing more than the needless and purposeless imposition of pain and suffering. State v. Howard, 414 So.2d 1210 (La.1982); and State v. Brooks, supra.

The record clearly supports a finding that the sentences imposed by the court are not out of proportion to the severity of the offenses nor is it the needless imposition of pain and suffering.

For the foregoing reasons, the sentences of the defendant, Jerry Glen McCutchen, are affirmed.


text:
    STATE of Louisiana in the Interest of P.S.
    No. 16646-CAJ.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Gamm, Greenberg & Kaplan, by Alex Rubenstein, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Stephen M. Waller, Tommy J. Johnson, Asst. Dist. Attys., Shreveport, for appellee.
    Before PRICE, HALL and SEXTON, JJ.
   HALL, Judge.

The appellant, P.S., appeals his adjudication as a juvenile delinquent resulting from a finding that he committed the crime of simple burglary of an inhabited dwelling, LSA-R.S. 14:62.2. The record reflects that the appellant’s adjudication results from a burglary of the home of Mr. M.B. Range, Jr. at 4914 Waters Place, Shreveport, Louisiana, on January 16, 1984. The sixteen year old appellant was committed to the department of corrections for a term not to exceed his 21st birthday on November 19, 1988.

On appeal, the appellant asserts the following assignments of error:

1. That the state did not prove beyond a reasonable doubt each and every element of the delinquent act of simple burglary of an inhabited dwelling.
2. The trial court erred in finding the minor’s statement to Detective Stevens was a confession.

Assignment of Error No. 1:

A review of the record in the instant case indicates that there are conflicting versions of the defendant’s participation or nonpar-ticipation in the burglary. Mr. M.B. Range, Jr. testified that on January 16, 1984, after arriving home from work, he discovered a broken window in a bedroom of his home. Mr. Range determined that a television set and a jacket were missing. In order to recover his stolen property, Range began checking local business establishments for information. At Mr. T’s Club on Hollywood Ave., in Shreveport, a person known as Mitchell Glen Washington offered to sell Range his own television set for $80.00. Range asked Washington to ride with him to his father’s house in order to get the money to purchase the television set. When Range got to his father’s house, he called the Shreveport Police Department.

Officer D.E. McDaniel of the Shreveport Police Department responded to the call at the father’s house. Officer McDaniel testified that when he arrived at the home he found Mr. Range, an unidentified female, and Mitchell Glen Washington. At that point, Mr. Range informed Officer McDaniel that his home had been burglarized and that Washington had just previously attempted to sell him his own television set. Officer McDaniel then arrested Washington and advised him of his rights as per Miranda. Officer McDaniel also went to Range’s home on Waters Street, and testified at trial that the home had been broken into.

D.E. Stevens, a detective for the Shreveport Police Department interviewed Washington concerning the burglary of the Range residence. During that interview, Washington implicated the appellant in the burglary. Resulting from that interview, the appellant was arrested by Officer McDaniel. Officer McDaniel transported the appellant to the Shreveport Police Department with Detective Stevens, who also contacted the appellant’s mother.

Detective Stevens testified that after appellant and his mother arrived at the police department he advised her of the information he had. Additionally, Detective Stevens said that he read standard juvenile Miranda warnings to both appellant and his mother. Detective Stevens then left his office so that appellant and his mother could discuss the problem alone while in his office. After he returned to his office, appellant and his mother indicated that they understood their rights and that they were willing to talk to him about the burglary.

According to Detective Stevens, appellant first informed him that he was not involved in the crime whatsoever. Detective Stevens then had Mitchell Glen Washington tell his version of the burglary in the presence of both appellant and his mother. Washington told his version of what happened, appellant then admitted that he went with Washington to burglarize the Range residence. According to Detective Stevens, appellant stated that he was a lookout for Washington and that he never went inside the residence. He described how Washington used a knife to take the windowpane out of the window and enter Range’s house and that Washington removed a small television from the house.

Appellant’s mother, testified in the appellant’s behalf and told a somewhat different version of what appellant had confessed to at the interview with Detective Stevens. According to appellant’s mother, appellant stated that he started out with Washington but turned around at the “Illinois Apartments”, started back, and Washington caught up with him after he supposedly burglarized the house. According to appellant’s mother, appellant said he was aware that Washington was going to burglarize the house before it happened; however, he did not participate in the crime. She did not recall appellant telling the officer he acted as lookout.

In view of the conflicting testimony, the appellant asserts on appeal that there was insufficient evidence upon which the juvenile court could have found that he had committed the crime of simple burglary of an inhabited dwelling, and thus adjudicated a juvenile delinquent.

In a juvenile delinquency proceedings, the state must prove beyond a reasonable doubt that the juvenile committed the delinquent act which is the basis of the adjudication. LSA-C.J.P. Art. 73. Thus, in a delinquency proceeding, the state’s burden of proof is the same as in a criminal proceeding against an adult. State In Interest of Cason, 438 So.2d 1130 (La.App.2d Cir.1983).

In the instant proceeding, charging the juvenile with the offense of simple burglary of an inhabited dwelling in violation of LSA-R.S. 14:62.2, it was incumbent upon the state to prove each element of the offense as charged; that is, the unauthorized entry of an inhabited dwelling with the intent to commit a theft therein. Since the evidence adduced at the juvenile proceeding does not indicate that the defendant directly participated in the burglary, the state was required to prove that the defendant acted as a principal under LSA-R.S. 14:24 by aiding and abetting in the commission of the crime.

This court has previously determined that the due process standard of appellate review established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) applies to juvenile delinquency cases. State v. Redd, 445 So.2d 126 (La.App.2d Cir.1984); State In the Interest of Cason, supra; State In the Interest of Thomas, 395 So.2d 912 (La.App.2d Cir.1981). Accordingly, in a juvenile delinquency case the appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have concluded that the state proved the essential elements of the crime beyond a reasonable doubt. State v. Captville, 448 So.2d 676 (La.1984).

Further, in a juvenile delinquency proceeding, the appellate court is constitutionally mandated to review the law and the facts. La.Const. of 1974, Art. 5, Sec. 10(B). Accordingly, under the standard of appellate review in civil cases annunciated in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), the appellate court must determine, after a review of the entire record, whether the findings of the trial court are clearly wrong or manifestly erroneous. State In the Interest of Cason, supra; State In the Interest of Thomas, supra. Review of the law and facts under the Arceneaux standard is, perhaps, a somewhat a broader scope of appellate review than that mandated by the Jackson v. Virginia standard. State In the Interest of Cason, supra.

A review of the record in the present case indicates the only testimony implicating the appellant in the crime of burglary is that of Detective Stevens. As previously stated, Detective Stevens stated that after Washington was brought into the interview, the appellant confessed to, acting as a lookout for Washington in the burglary. Appellant’s mother contradicts Detective Stevens in that she testified that the appellant only indicated that he was aware that Washington was going to burglarize the residence, that after discovering Washington’s plan, he parted company with Washington, and that Washington caught up with him later.

This court likewise found conflicting testimony in the case of State In the Interest of Thomas, supra. In that case the court was persuaded by the opinion of the Louisiana Supreme Court in State v. LeBlanc, 213 La. 404, 34 So.2d 905 (La.1948). In State v. LeBlanc, supra, the supreme court stated:

“In determining whether the guilt of a defendant in any case which is appeala-ble to us from the juvenile court has been established, we have only the record as made up in the lower court and are deprived of the benefit of seeing the witnesses and observing their conduct and demeanor while testifying either for the state or for the defense, and of observing the manner in which they give their testimony. The trial judge sees, hears, and observes all this, and therefore is in a better position to determine the credibility of the witnesses and the weight to be given their testimony — all of which is denied us on appeal.
“For these reasons, when the oral testimony is conflicting, we must give weight to the trial judge’s findings on questions of fact and to his determination of the credibility of the witnesses and the weight to be given to their testimony.”

In finding that the appellant had committed the crime, the trial court noted that the case hinges on the statement of the appellant and the content of it as given to Detective Stevens. The trial court additionally noted that the question arises on whether or not there was enough evidence to cast some doubt upon the statements made. The court stated because of the testimony of appellant’s mother that she was unable to remember the appellant’s entire statement to Detective Stevens, the court accepted the testimony of Detective Stevens.

Giving due weight to the trial judge’s opportunity to see, hear, and observe the witnesses in order to determine the credibility of the witnesses and the weight to be given their testimony, we do not find the trial court clearly wrong. From the evidence adduced at the trial, it appears that a rational fact finder could have found the appellant guilty of the crime beyond a reasonable doubt. The trial court chose to accept the testimony of Detective Stevens in view of the lack of full recollection by appellant’s mother of the statement given by appellant. Even her recollection of the statement places appellant with Washington immediately before and immediately after the burglary.

This assignment of error is without merit.

Assignment of Error No. 2:

By this assignment, the appellant asserts that the trial court erred in finding the appellant’s statement to Detective Stevens a confession. The appellant does not assert a legal basis for finding the statement was not a confession. Essentially, the appellant is asserting that as a factual matter, the trial court should not have believed the testimony of Detective Stevens in view of the testimony of appellant’s mother. The appellant does not challenge the voluntariness of the statement. It seems clear that if Detective Stevens’ testimony is to be believed, the appellant’s statement to Detective Stevens would constitute a confession since the appellant’s purported statement that he acted as a lookout in the burglary did constitute an admission of guilt. As is pointed out in LSA-R.S. 15:453, a confession need not be the spontaneous act of the accused and may be obtained by means of questions and answers.

Next, the defendant asserts that a confession is not in and of itself sufficient to support a conviction. Appellant erroneously argues that the case of State v. Morgan, 157 La. 962, 103 So. 278 (1925), stands for the proposition that a confession is not sufficient to support a conviction. Morgan establishes that when a confession is relied on by the state for a conviction, there cannot be a lawful conviction of the crime unless the corpus delicti is established, that is, unless it is shown that a crime has been committed by someone. In the present case, it is clear that the victim of the burglary testified that a crime had been committed at his home. Mr. Range testified that when he entered his home he found a bedroom window broken out and a portable television set missing. Therefore, appellant’s reliance upon State v. Morgan is misplaced.

This assignment of error is without merit.

The delinquency adjudication is affirmed.

Affirmed.


text:
    STATE of Louisiana, Appellee, v. Elizabeth JACKSON, Appellant.
    No. 16661-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.

      Steven R. Thomas, Public Defender, Mansfield, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, James L. Davis, Dist. Atty. by Herman L. Lawson, Asst. Dist. Atty., Many, for appellee.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Defendant, Elizabeth Jackson, was charged with the illegal carrying of a weapon (La.R.S. 14:95). She filed a motion to suppress the introduction into evidence of the weapon involved. After a contradictory hearing, the motion was denied without the trial judge giving reasons. By joint agreement the charge was then submitted on the same evidence presented at the hearing on the motion to suppress. The judge found the defendant guilty as charged. She was sentenced to pay a fine of $400 and to serve 120 days in jail. The jail sentence was suspended and the defendant placed on unsupervised probation for two years.

We granted this writ of review upon defendant’s application urging as error the trial court’s denial of her motion to suppress.

According to evidence presented at the hearing on the motion to suppress, on February 4, 1984, officers from the DeSoto Parish sheriff’s office conducted a raid on an establishment known as Belton Green Paradise. The purpose of the raid was to execute a search warrant asserting that Belton was operating a “blind tiger”, or selling alcoholic beverages without a license.

Deputy Bounds, who testified at the hearing, stated that prior to entering the restaurant, law enforcement officers surrounded the building to assure that no one left the scene. When other officers entered the building all of the patrons, including defendant, were instructed not to move. Thereupon, defendant placed her hands on a table and complied with the officers’ directions. She made no threatening gestures. Her purse was lying about one foot from the defendant.

Although defendant’s person was not searched, Bounds stated that her purse was searched “for our protection.” Therein was found the .38 caliber revolver which was the subject of this prosecution. It was seized, of course, without a search warrant. At the hearing the State relied upon the “stop and frisk” [La.C.Cr.P. Art. 215.1] exception to the search warrant requirement.

As explained in the landmark “stop and frisk” case of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), before a police officer may stop or detain a person for investigatory purposes, he must reasonably suspect that the individual has committed or is about to commit a criminal offense. There was no evidence presented in this ease to indicate a suspicion on the part of the officers that the defendant fell into that category. Therefore, since the original detention of defendant was invalid, there was no justification for the officers to conduct a “pat-down” of her.

Furthermore, as Terry also points out, while an officer is never justified in conducting a “pat-down” for weapons unless the original detention was valid, a lawful detention for questioning does not necessarily give the office the authority to conduct a “pat-down” for weapons. Even after a lawful investigatory detention, an officer is justified in frisking an individual only under circumstances where a reasonably prudent man would be warranted in the belief that his safety or that of others was in peril. That belief is not reasonable unless the officer is able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.

A person may not be searched simply because he is present with others suspected of criminal activity or at a location where such activity is occurring. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1980). Consequently, defendant’s presence in Belton’s “blind tiger” provided no justification for the search of her purse without a warrant.

To summarize, even assuming that a “pat-down” of the defendant for weapons included a search of her purse, we hold that the search was invalid because the state did not prove a lawful basis for detaining the defendant nor did it prove any justification for either frisking her or searching her purse. Therefore, the trial judge should have sustained the motion to suppress the introduction of the weapon as evidence.

For these reasons, the motion to suppress is sustained and defendant’s conviction and sentence are set aside and the case is remanded to the trial court for further proceedings.