author: EDWARDS, Judge.

text:
    STATE of Louisiana v. Rickey Lee BROWN.
    No. 82-KA-0896.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Stephen E. Caillouet, Asst. Dist. Atty., Thibodaux, for State of La., plaintiff.
    F. Smith Knobloch, Thibodaux, for Rickey Lee Brown, defendant.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

By writ, No. 83-KH-2575, the Supreme Court, 444 So.2d 1215, has remanded this case to this court for reconsideration of our patent error ruling in light of State v. Williams, 439 So.2d 387 (La.1983). In Williams, the Supreme Court reversed this court’s remand and reinstated the trial court’s prison sentence. The Supreme Court said that because LSA-R.S. 14:52 sets only a maximum fine, and not a minimum, the imposition of a prison sentence without a fine is not illegal. The court went on to say that increasing a lawful sentence chills the right to appeal.

We disagree with the Supreme Court’s interpretation of LSA-R.S. 14:52. The second paragraph of that statute provides for a mandatory imposition of both a fine and imprisonment where the damage caused by the arson is $500.00 or more:

“Whoever commits the crime of simple arson, where the damage done amounts to five hundred dollars or more, shall be fined not more than fifteen thousand dollars, and imprisoned at hard labor for not less than two years nor more than fifteen years.” (Emphasis added.)

If the damage done is less than $500.00, then the trial judge has the discretion to impose either a fine not more than $2500.00 or imprisonment or both:

“Where the damage is less than five hundred dollars, the offender shall be fined not more than twenty five hundred dollars or imprisoned for not more than five years, or both.”

Id., paragraph 3. (Emphasis added.)

Under a genuine construction (see LSA-R.S. 14:3) of that statute, a trial court is required to impose both a fine and a prison term. He may within his discretion suspend the sentence of either or both under LSA-C.Cr.P. art. 892.1 C.

Although we disagree with the Supreme Court’s interpretation of LSA-R.S. 14:52, we must abide by that court’s rulings. We therefore recall and vacate our previous order to remand, 434 So.2d 11, and reinstate the district court’s original sentence.


source: Caselaw Access Project

author: CARTER, Judge: WATKINS, Judge

license: Public Domain

text:
    Norman JAECKLE v. DRESSER INDUSTRIES, INC.
    No. 83 CA 0137.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Writ Denied May 11, 1984.

      David B. Allen, Houma, for plaintiff and appellant.
    Robert M. Johnston, New Orleans, for defendant and appellee.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This is an action for workmen’s compensation benefits brought by Norman Jaeckle against Dresser Industries, Inc., his employer at the time of the accident giving rise to the present claim for benefits. The trial court denied benefits. We affirm.

The facts of the accident are not in dispute. Jaeckle was employed by Dresser as a wire line operator. The job required that Jaeckle drive a truck and lift heavy objects. On January 24, 1982, Jaeckle was lifting a heavy object in the course and scope of his employment when he felt something pop in his back. The next day he reported the accident to his supervisor, complaining of severe pain in his back and neck.

Jaeckle first went to see the company doctor, Dr. Warren, who ordered x-rays and prescribed medication and rest. After a week, Dr. Warren referred Jaeckle to Dr. Chris Cenac, an orthopedic surgeon, who similarly ordered x-rays, placed him on medication, and told him to go home and rest. Dr. Cenac told Jaeckle he could go back to work within ten days. After the ten days, Jaeckle testified he was still “having a lot of pain,” so he went to see Dr. Michael Flynn, a chiropractor. Jaeckle saw Dr. Flynn every day for two weeks and thereafter three days a week. Dr. Flynn told Jaeckle to do light duty, which did not involve lifting or climbing. Jaeckle went on light duty until March 10, 1982, when he went to see Dr. Gary Guidry, another orthopedic surgeon, who took some x-rays and ordered Jaeckle to refrain from working.

Dr. Guidry had Jaeckle undergo a CT scan, an electromyelogram, and a lumbar myelogram, all of which indicated a disc protruding at L-5 which indented the dural sac. All of the tests were done in late May and early June 1982. Dr. Guidry saw Jaeckle approximately every other week until Jaeckle returned to his former home in Buffalo, New York, at the end of June, 1982. Dr. Guidry last saw Jaeckle when Jaeckle had returned to Louisiana from Buffalo, New York on October 4, 1982, the day before the trial of the present claim. Dr. Guidry testified that the results of the CT scan, electromyelogram, and lumbar myelogram all furnished objective evidence that Jaeckle was unable to return to his former occupation.

The only other physician who examined Jaeckle was Dr. James Williams, an orthopedic surgeon, who saw Jaeckle at the request of defendant on June 1, 1982, and October 6, 1982. Dr. Williams did not agree with the previous interpretation of the diagnostic tests. He observed no objective indications of plaintiffs injury in either the cervical or lumbar regions. In fact, plaintiff showed no discomfort during Williams’s orthopedic examination, other than a complaint of pain when pressure was applied over the spinous processes of the lower lumbar vertebrae. Dr. Williams found nothing suggestive of a ruptured lumbar disc. No spasm was found. The straight leg raising test, both at the sitting and lying positions, were completely negative. Plaintiff had a complete range of motion without complaint.

Dr. Williams also reviewed the CT scan and lumbar myelogram which had been performed. He rendered an opinion that neither test indicated a ruptured lumbar disc. He read the tests as revealing only a spinal abnormality totally unrelated to the patient’s complaints of pain.

After a trial on the merits, the trial court found that plaintiff was not currently disabled and denied compensation benefits. Plaintiff appeals.

Plaintiff contests the trial judge’s assessment of the credibility of witnesses, particularly medical experts. Plaintiff emphasizes that Dr. Guidry was the treating physician and that, as such, his testimony should be given greater weight than that of Dr. Williams.

Generally, the testimony of a treating physician who has had the benefit of repeated examinations and sustained observation of the plaintiff under his direct care and treatment should be accorded greater weight and probative value than that of a physician who examined him merely for evaluation purposes, and the testimony of a specialist in a particular field of medicine should be accorded greater weight than that of a nonspecialist in such field, but only if it is credible and of such a nature as to carry the greater weight or is more convincing or is the more probable. Wild v. Continental Casualty Company, 234 So.2d 783 (La.App. 1st Cir.1970).

In the case sub judice, the trial judge found the testimony of Dr. Williams concerning the June and October examinations convincing. He noted that Dr. Williams found no objective or subjective symptoms of injury. Further, plaintiff’s initial complaints were of pain in the right leg, a symptom Dr. Williams found inconsistent with the interpretation of the diagnostic tests made by Dr. Guidry. The trial court also found it significant that from the time plaintiff left for New York until he returned to Louisiana (a period of three months), plaintiff did not see either Dr. Guidry or Dr. Williams. Additionally, the trial judge found that plaintiff’s own testimony raised serious questions about his credibility. The trial judge stated:

“At the trial of this matter defendant attempted to establish that plaintiff’s alleged continued disability was the result of an intervening altercation instead of the work-related accident. Plaintiff admitted the altercation and his seeking treatment at the emergency room of Ter-rebonne General Hospital in early February, 1982. But he denied having injured his back, other than by laceration, at that time.
Defendant introduced into evidence the reports of the emergency room treatment which state that Mr. Jaeckle was complaining of pain his neck, back and both sides following ‘several beatings’.
Although the defense falls short of proof of intervening cause, there are sufficient discrepancies between the records and plaintiff’s testimony to discredit the witness.”

A careful review of the pleadings, testimony, and exhibits filed into evidence convinces us that the conclusions reached by the trial court (that Jaeckle is not permanently disabled and is not entitled to compensation benefits) are not manifestly erroneous. The trial judge simply concluded that given plaintiff’s version of his injury, the conflicting medical testimony, and the emergency room reports, the testimony given by Dr. Williams was more probable.

The factual findings of the trial court will not be disturbed in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). No such error can be found here.

For the above and foregoing reasons, we can not say that the trial court committed manifest error in the assessment of the credibility of the witnesses, and the judgment of the trial court is affirmed. Costs are to be assessed against plaintiff-appellant.

AFFIRMED.

WATKINS, J., dissents and assigns reasons.

WATKINS, Judge

(dissenting).

The majority opinion minimizes the strength of the objective evidence obtained by Dr. Guidry as a result of tests. Dr. Guidry had Jaeckle undergo a CT scan, an electromyelogram, and a lumbar myelo-gram, all of which indicated a disc protruding at L-5, which indicated a dural sac, as the majority opinion states, but then overlooks. The results of the tests were not susceptible to alteration by feigning injury which did not exist. Thus, while the trial court correctly stated that there were discrepancies between the records and Jaeck-le’s testimony, the results of the tests, which are independent of a subjective recitation of symptoms of the patient, cannot seriously be questioned. Nor is there sufficient evidence of a cause of injury other than the accident, as the quotation in the majority opinion from the Written Reasons for Judgment of the trial court amply demonstrates.

While Dr. Williams sought to challenge Dr. Guidry’s conclusions Dr. Williams saw Jaeckle only twice. As the majority opinion concedes, the testimony of a treating physician is to be given greater weight than that of a physician who saw the patient only for purposes of litigation. Schouest v. J. Ray McDermott & Co., Inc., 411 So.2d 1042 (La.1982). Thus, the testimony of Dr. Guidry, who saw Jaeckle frequently over a period of several months and treated Jaeckle for the injury, should have been considered that of the treating physician and preferred to that of Dr. Williams, if the testimony of each was equally credible, as was the case here.

The trial court did not accord Dr. Gui-dry’s testimony the weight to which it was entitled because it found that since Jaeckle did not see Dr. Guidry during the three month period when he was in New York, that Dr. Guidry was no longer to be considered the treating physician. The record clearly demonstrates that Dr. Guidry did in fact medically administer to the plaintiff for the alleged injury, and that plaintiff had not engaged any other physician to treat him. It follows, therefore, that Dr. Guidry was the treating physician, and that the trial court was in error in finding that he was not. Had the trial court found that Dr. Guidry was the treating physician, in my opinion it would have awarded benefits to plaintiff.

Furthermore, testimony of both physicians was limited to deposition, by stipulation of counsel. When the trial court relies upon depositions, the rules of Canter v. Koehring Company, 283 So.2d 716 (La.1973), and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) do not apply, because the trial court is unable to observe the demeanor of the witness and the trial court is in no better position to assess credibility than the appellate court. In such a case, the appellate court must determine the sufficiency and the preponderance of the evidence. Gould v. State, through La. Dept. of Correct., 435 So.2d 540 (La.App. 1st Cir.1983); F & S Offshore v. Serv. Mach. & Shipbuilding, 430 So.2d 1167 (La.App. 1st Cir.1983).

It does not appear to me that the majority has demonstrated that the testimony of Dr. Williams should be preferred to the testimony of the treating physician, nor can I concur in the majority’s application of the manifest error rule in a case in which the testimony of the physicians was obtained solely by deposition. I agree with the majority that Jaeckle’s testimony was discredited, but the application of the Workmen’s Compensation statute does not depend in a case of clear objective fact upon the veracity of the claimant on matters that do not bear upon the result.

I respectfully dissent.


author: CARTER, Judge:

text:
    Michael DONELLAN v. CITY OF BATON ROUGE OF EAST BATON ROUGE PARISH, Baton Rouge Municipal Fire and Police Civil Service Board.
    No. 83 CA 0307.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Teddy W. Airhart, Jr., Baton Rouge, for plaintiff-appellant Michael Donellan.
    A. Foster Sanders, III, Baton Rouge, for defendant-appellee City of Baton Rouge of East Baton Rouge Parish; Baton Rouge Municipal Fire and Police Civil Service Bd.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This is an appeal by plaintiff, Michael Donellan, from a judgment ordering that his dismissal from the Baton Rouge police force be reversed and that he be placed on indefinite suspension. Donellan asks that he be reinstated on the force rather than placed on indefinite suspension.

On January 7, 1982, Donellan was placed on indefinite suspension pending an investigation into allegations of misconduct with a juvenile. Donellan was ordered to take a polygraph, refused to do so, and, as a result of such refusal, was dismissed from the force on February 2, 1982. On appeal to the Baton Rouge Municipal Fire and Police Civil Service Board, Donellan’s dismissal was upheld. Donellan then appealed to the 19th Judicial District Court naming as defendants the City of Baton Rouge, Parish of East Baton Rouge, and Baton Rouge Municipal Fire and Police Civil Service Board (Board). The court rendered judgment in favor of Donellan ordering that the dismissal be vacated and placing Donellan back on indefinite suspension, pending any further action against him by the Board on the initial charges. Defendants have not appealed the judgment.

Donellan has appealed the judgment of the trial court assigning two errors.

ASSIGNMENT OF ERROR NO. 1

Appellant argues that the court erred in ordering that he be placed on indefinite suspension in light of LSA-R.S. 33:2500 which provides that indefinite suspension may not exceed 90 days in any 12 month consecutive period.

LSA-R.S. 33:2500(B) provides as follows:

“B. Unless the cause or condition justifies an employee being permanently removed from the service, disciplinary action may extend to suspension without pay for a period not exceeding the aggregate of ninety days in any period of twelve consecutive months, reduction in pay to the rate prevailing for the next lower class, reduction or demotion to a position of any lower class and to the rate of pay prevailing therefor, or such other less drastic action that may be appropriate under the circumstances. Nothing contained herein shall prevent any employee who is physically unable to perform the duties of his position from exercising his rights of voluntary retirement under any applicable law.”

In the case sub judice, Donellan was placed on indefinite suspension on Ja'nuary 7, 1982, and was dismissed on February 2, 1982. The trial court judgment ordering Donellan placed on indefinite suspension was signed on November 29, 1982. On February 22, 1983, Donellan filed the present appeal. It is clear that the 90-day limit mandated by LSA-R.S. 33:2500 has been exceeded and therefore, the judgment rendered by the trial court is illegal. We vacate the ruling of the trial court and remand the case for rendition of a legal judgment.

Because of our ruling on the first assignment of error, we need not address Donel-lan’s second assignment of error. Costs of the appeal in the amount of $225.39 are to be paid by defendant-appellee.

VACATED AND REMANDED.

      . Defendant Parish of East Baton Rouge was dismissed following an exception of no right of action and no cause of action.

      . Defendants argue in brief that the issue of Donellan's indefinite suspension is not properly before this court. Defendants contend that the Board has only reviewed Donellan’s dismissal and not his indefinite suspension, and therefore, the issue of indefinite suspension should first be reviewed by the Board. We note that both the Board and the district court have ruled on the substantive issue of whether Donellan could be removed from the force for refusing to take the polygraph. No appeal has been taken from the district court’s ruling and it is now a final judgment.


author: SHORTESS, Judge.

text:
    Sheila B. CRESCIONNE, as Tutrix for Jean Claude Crescionne, Jr., and Michelle Crescionne v. LOUISIANA STATE POLICE RETIREMENT BOARD.
    No. 83 CA 0311.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Writs Granted April 13, 1984.

      Floyd J. Falcon, Jr., Baton Rouge, for plaintiff-appellant Sheila B. Crescionne, as Tutrix for Jean Claude Crescionne, Jr. and Michelle Crescionne.
    William C. Toadvin, Baton Rouge, for defendant-appellee Board of Trustees of the Louisiana State Police Retirement System.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Jean Claude Crescionne (decedent), a Louisiana State Police trooper, was killed in the line of duty on April 20, 1982. At the time of his death, he was a member of the Louisiana State Police Retirement System. Prior to his death, he had been married three times. His first marriage was to the plaintiff, Sheila B. Crescionne. Two children were born of this marriage, Jean Claude Crescionne, Jr., and Michelle Cres-cionne, before it was terminated by divorce. The second marriage was childless and was also terminated by divorce. The third marriage was to Sara Gaddy Crescionne (inter-venor), and one child was born of this marriage before intervenor and decedent obtained a judicial separation on October 29, 1981.

After decedent’s death, intervenor was awarded survivor benefits pursuant to La. R.S. 40:1431. The Louisiana State Police Retirement Board (defendant) denied plaintiff’s application for survivor benefits for her two minor children. Whereupon, plaintiff, on behalf of these children, filed this suit alleging that when decedent was killed, he had no “surviving spouse” as that term is used in La.R.S. 40:1431 and that her minor children were therefore entitled to the survivor benefits provided pursuant to La.R.S. 40:1432.

Sara Gaddy Crescionne intervened in the suit, and both intervenor and defendant filed exceptions of no right of action on the grounds that intervenor was the surviving spouse under the applicable provisions of law which legally precluded plaintiff, as her minor children’s representative, from any interest in this action. After a hearing the trial court maintained the exceptions and dismissed the suit.

Survivor benefits awarded to intervenor were pursuant to La.R.S. 40:1431, which states as follows:

The surviving spouse of any state police employee whose death results from injury received in line of duty shall be pensioned at seventy-five percent of the salary being received by the employee at the time of the injury. This pension shall be paid only so long as the surviving spouse is eligible under the provisions of this Subpart.

Plaintiff argues that intervenor was not decedent’s surviving spouse as that term is used in La.R.S. 40:1431. Intervenor and decedent were judicially separated. Inter-venor received no alimony from decedent and was not dependent upon him in any way at the time of his death. His three children, on the other hand, were all dependent upon him and received child support on a monthly basis. Plaintiff asserts that survivor benefits should be paid to his three minor children pursuant to La.R.S. 40:1432. The applicable portion of that statute reads as follows:

If there is no surviving spouse to receive the pension due a spouse of any police employee under R.S. 40:1431, R.S. 40:1434, or R.S. 40:1436, the minor children of the deceased employee, if any, shall receive a monthly pension in the proportions set out herein: ...

Unfortunately, “surviving spouse” is not defined in the statutes which govern the State Police Retirement System. Defendant has cited the cases of Harris v. Lumberman’s Mutual Casualty Co. of Chicago, Ill., 48 So.2d 728 (La.App. 1st Cir.1950), and Jones v. Massachusetts Bonding and Insurance Company, 55 So.2d 88 (La.App. 1st Cir.1951), to illustrate the rights of a judicially separated spouse. These cases are factually inapposite. Both dealt with an interpretation of “surviving spouse” as set forth in Civil Code art. 2315. Here, we are dealing with special statutes enacted by our Legislature to provide benefits under the Louisiana State Police Retirement System to retirees and their dependants. The statutes must be considered as a whole. When doing so, the clear intent of the Legislature becomes obvious. A surviving spouse is intended to be one who was married to and living with the deceased at the time of death as per the requirements of La.R.S. 40:1436. In so concluding, we have noted that La.R.S. 40:1432, when amended in 1981, mentions La.R.S. 40:1431, 1434, and 1436 when speaking of a surviving spouse.

For these reasons, the decision maintaining the exceptions of no right and no cause of action and dismissing plaintiffs suit is reversed, and this case is remanded to the trial court for further proceedings consistent with this opinion. All costs are taxed to defendant.

REVERSED AND REMANDED.

      . Decedent’s children would at least share in a Civil Code art. 2315 wrongful death damage award. Here, the harsh results of appellee’s position would leave them without any recourse.


text:
    Florence Fruge ARABIE v. Joseph ARABIE.
    No. 83-CA-0317.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      Rhett R. Ryland, Baton Rouge, for plaintiff-appellee Florence Fruge Arabie.
    Teddy W. Airhart, Jr., Baton Rouge, for defendant-appellant Joseph Arabie.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

On November 15, 1982, plaintiff, Joseph Arabie, filed a motion to reduce a $200.00 per month alimony award on the ground that his former wife is no longer in necessitous circumstances. The trial judge denied the motion on January 20, 1983. Plaintiff appeals, alleging abuse of discretion. We affirm.

Florence Fruge Arabie (Flo) obtained a divorce from Joseph Arabie (Joe) on September 2, 1977. Flo was awarded custody of their minor child Rhonda, who was eleven years old at the time. Joe was ordered to pay $200.00 per month alimony and $200.00 per month child support. On April 25, 1978, Joe filed a motion to suspend payment of the alimony and child support awards until he could find work. The record does not indicate the disposition of that motion.

At the time of the divorce, Flo had only one “small part-time job,” from which she earned an average of $80.00 a month ($12.00 a day sitting for an old woman who later died). Sometime in 1979, she went to work for the Basile Care Center, Inc. After Rhonda came down with hepatitis in September of 1980 and required hospitalization, Flo went to work full time at the Southwest Louisiana State School in October of 1980, retaining her job at the Basile Care Center on a part-time basis. She averages anywhere from 20 to 48 hours every two weeks (no more than four hours on any one day) at Bazile, and works a full eight-hour day, five days a week at the school. She has poor health and is troubled with a crippled left foot. She testified that she is working against her doctor’s advice.

Since the divorce, Joe has remarried and is now gainfully self-employed. He and his new wife own a grocery store in Livingston. He has a gross income of $2,012.01.

Flo’s gross income from her two jobs, plus the $400.00 alimony and child support payments, total $1,447.14 per month. Subtracting the $400.00 alimony and child support awards and her itemized payroll deductions, totalling $267.88, her monthly net income equals $779.26. Flo claims the following monthly itemized expenses, total-ling $1,165.00:

Housing. $150.00
Food and household supplies. 250.00
Clothing. 30.00
Transportation. 60.00
Medical and dental. 25.00
Utilities (Electrical Gas, Water & Telephone) . 175.00
Personal and grooming. 20.00
Educational expenses (School, lunch, books, etc.). 15.00
Entertainment. 28.60
Fixed Obligations (Finance Co., Bank Loan, etc.)
Gulfco & Southwest (loan). 187.00
Car note . 198.00
Bazile & Elton (bank loan). 162.00
Hosp. (Rhonda, hepatitis). 25.00
Howard Brothers. 17.00
Western Auto . 25.00
Life & Burial Insurance . 67.00

LSA-C.C. art. 160 authorizes alimony after divorce to the spouse, not at fault, who proves that he or she is in necessitous circumstances. Frederic v. Frederic, 302 So.2d 903 (La.1974); Kean v. Kean, 388 So.2d 398 (La.App. 1st Cir.1980). But the spouse seeking alimony is limited to a sum sufficient for his “maintenance,” which includes the expenses for food, clothing and shelter, as well as reasonable and necessary transportation or automobile expenses, utilities, household expenses and the income tax liability generated by the alimony payments made to the former spouse. Loyacano v. Loyacano, 358 So.2d 304 (La.1978); Kean, 388 So.2d 398. The alimony award shall be revoked if it becomes unnecessary, LSA-C.C. art. 160, but to prevail in an action to reduce or terminate the previous alimony award, the plaintiff must prove a change in the defendant’s or his own circumstances from the time of the divorce to the time of the motion which justifies the reduction or termination. Sonfield v. Deluca, 385 So.2d 232 (La.1980); Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973); Jordan v. Jordan, 406 So.2d 322 (La.App. 3rd Cir.1981). Although the expenses of the second marriage should be considered in an action to reduce alimony, the paying spouse’s remarriage alone is not enough to warrant a reduction if the receiving spouse is still in need. Sonfield, 385 So.2d 232; Jordan, 406 So.2d 322. Finally, a trial court’s determination whether to reduce, increase, or continue the amount of alimony should not be overturned or modified by an appellate court absent a clear abuse of discretion. Id.

Appellant contends mainly that the trial judge improperly considered certain listed expenses which do not fall within the category of expenses allowed under the term “maintenance.” He also argues that certain listed expenses were acquired by ap-pellee’s own unwise purchases and that he should not be penalized for them.

In particular, he points out that since the divorce, Flo has bought and sold four automobiles — a 1977 Toyota, two secondhand Malibus, and her currently owned 1981 Chevy Citation. She also secured two loans, one from Southwest Loan with an outstanding balance of $1,257.86, and one from Gulfco with a balance due of $1,700.00, to buy furniture for her house. Her monthly note for both loans totals $187.00. She also borrowed some money from the Bazile & Elton Bank for an unspecified purpose. That monthly note is $162.00. Finally, she listed monthly expenses for life and burial insurance ($67.00), credit purchases from Western Auto ($25.00) for tires and the baby bed for Rhonda’s baby, Rhonda’s hospitalization during her bout with hepatitis ($25.00), educational expenses ($15.00), and entertainment ($28.60)' — none of which are maintenance expenses.

We do not think the $198.00 a month ear note on the Citation is an unreasonable transportation expense, even though Flo purchased four cars in a little over four years. As Flo explained, she traded in the Toyota for a secondhand Malibu because of maintenance problems. The Malibu’s engine burned up, so she bought another one. Her second Malibu, with a large V-8 engine, proved uneconomical to operate, so she purchased a more economical four-cylinder Citation. She is entitled to transportation to and from her two jobs, and under the circumstances, her purchase of a new but economical four-cylinder automobile, after experiencing maintenance and operation difficulties with larger, uneconomical used automobiles, was not unreasonable. Cf. Oddo v. Oddo, 416 So.2d 241 (La.App. 1st Cir.1982).

Nor do we think that her furniture expenses are either disallowed under art. 160 or unreasonable under the circumstances. However, if we exclude that expense along with the above listed expenses which do not fall within the listed items allowed for her maintenance, her monthly expenses still total $740.40, which when subtracted from her net income minus the alimony and child support payments, leaves her with an excess of only $38.86 a month. See Palmatier v. Palmatier, 394 So.2d 731 (La.App. 3rd Cir.1981).

Because of her crippled foot, Flo testified she intends to quit her second job after she pays off Rhonda’s hospital bill. She nets only $250.00 every two weeks from her job at the Southwest State School. Thus, even though Flo’s situation has changed since the divorce, it has not significantly improved. Joe’s situation on the other hand has improved. Unemployed after the divorce, he is now self-employed, earning over $2,000.00 a month. Even though the trial judge did not consider the expenses of Joe’s second marriage, we cannot say that under the circumstances he abused his discretion in continuing the $200.00 monthly alimony award.

For the foregoing reasons, the decision of the trial court is affirmed. The plaintiff-appellant is to pay all costs of these proceedings.

AFFIRMED.

      . Flo testified that Joe has not helped out at all with Rhonda's hospital bills: Joe had hospitalization insurance covering Rhonda but refused to let her file a claim for the coverage. Moreover, Rhonda, now 16, gave birth to an illegitimate child about three weeks prior to the hearing on the motion to reduce alimony. The child’s father and his parents have been helping out with the support of the child, but Rhonda and the child still live at home with Flo.

      . Civil Code art. 160 was amended twice in 1982 by Acts, No. 580, § 1, and Acts, No. 293, § 1, both effective September 10, 1980. These two acts present an apparent conflict which is irrelevant to the proceedings before us.

      . Actually, no evidence of Joe’s financial situation beyond Kis gross monthly income was ever introduced. His counsel correctly agreed with the judge that evidence of Joe’s expenses is irrelevant to the determination of Flo’s needs. See Kean, 388 So.2d at 401. But his counsel thereafter did not attempt to re-introduce that evidence which is relevant to the determination of Joe’s financial means, or ability to pay.


text:
    William DUNCKELMAN v. T. BAKER SMITH & SONS, INC. and the Travelers Insurance Companies.
    No. 83-CA-0332.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Cleveland J. Marcel, Jr., Houma, for plaintiff and appellant.
    Philip J. McMahon and Rudolph D. Har-gis, Jr., Houma, for defendants and appel-lees.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

After a tortuous and confusing procedural journey to judgment, certainly not worth retelling here, this case comes before this court a second time, where we hope to end its sojourn by a decision on the merits.

The plaintiff, William Dunckelman, contends he contracted toxoplasmosis, a rare blood disease allegedly rendering him permanently and partially disabled, on May 25, 1977, while working for the defendant, T. Baker Smith & Sons, Inc., as a chairman on a crew surveying certain swampy areas around Gonzales, Louisiana. In his reasons for judgment, the trial judge found that plaintiff failed to establish a causal relationship between the disease and plaintiff’s unemployment, and accordingly rendered judgment in favor of defendants. In this appeal, plaintiff argues that the trial court’s finding is erroneous. The sole issue then is whether plaintiff proved a work-related injury or disability. We find that he did not and therefore affirm the judgment.

Plaintiffs evidence, tending to establish the occurrence of a work-related injury or disability, on which the trial judge based his finding, consists solely of the two following stipulations and the deposition testimony of plaintiffs treating physician, Dr. Joseph P. Rumage:

1. That on May 25th, 1977 and at all times pertinent thereto, William Dunckelman was employed by T. Baker Smith and Sons, Inc. at a wage of $2.75 per hour as a chainman with a survey crew and during that periot [sic] of time, he, along with his crew, was employed on a job in Gonzales, La., which required him to go into the marsh or swamp.
2. That the work that he was doing was classified as hazordous [sic] under the act.

According to the deposition taken on May 31, 1978, Dr. Rumage, as of that date, was Associate Professor of Ophthalmology at Tulane Medical School and was rendering professional services for the State Bureau of the Blind at its visual aid clinic. He was accepted as an expert on toxoplas-mosis without objection. He first examined the plaintiff at the clinic in January 1975. His examination revealed a visual acuity of 20/40 in the plaintiffs right eye and 20/200 in his left, with correcting lenses. He discovered congenital myopia, or nearsightedness with astigmatism, and some scarring of the retinas in both eyes. Following standard Bureau procedures, he next examined plaintiff some two years later on February 3, 1977, and found no significant changes in plaintiffs diagnosis.

Plaintiff returned to the clinic on May 27, 1977, complaining of irritation in his right eye. Dr. Rumage’s examination revealed that plaintiff was suffering from a cold, and that the retinal scars discovered in 1975 had become inf lammed, swollen and congested. The visual acuity of the right eye was reduced to 20/100. Alerted by the inflammation to a possible fungal infection, Dr. Rumage ordered a blood test, which revealed the presence of toxoplasmosis, a rare fungal disease endemic to warm, moist swampy regions, such as those found in the lower Mississippi River Valley.

Dr. Rumage testified that the fungus is usually transmitted by wild animals through their fecal deposits, so that any exposure to regions populated with wild animals could result in contraction of the disease. The disease is also found in butcher shops, where infected meat from slaughtered cattle is distributed. As with malaria, the infecting agents can never be eliminated from the body, and if the body’s resistance is lowered because of overexertion or environmental conditions, relapses of inflammation of the weaker organs, such as the eyes or lungs, may occur.

Dr. Rumage could not establish precisely when or where plaintiff contracted the disease. ' He said that plaintiff told him that he had been treated for a similar eye irritation in 1973 by a Dr. Bourgeois in Houma and had been hospitalized for that condition for five days. Dr. Rumage never spoke with Dr. Bourgeois, nor does his testimony indicate whether he ever examined plaintiffs medical records from that time, yet he concluded that plaintiffs eye irritation in 1973 was probably not caused by toxo-plasmosis because the treatment, which he understood they gave him, did not include the drug Daraprim, specifically used to treat toxoplasmosis. The record does not disclose where Dr. Rumage acquired this understanding. He did testify however that toxoplasmosis could have caused the scarring found in 1975.

The following dialogue between Dr. Ru-mage and plaintiffs counsel is instructive:

Q Is there any way for you to know whether this toxoplasmosis that he has now, that he had it when he first came to you or he had it before, or is there any way for you to know?
A No exact way, unless — unless certain tests were taken in 1973.
Q These tests were not taken?
A I figured that.
Q So, if—
A It would be an assumption.
Q Okay.
A The assumption would be there.
Q Okay. Based on what you know, and there are no previous tests that I know of, but based on what you know, if you assume that in his job, working on a survey crew, that he went out in the swamps and got in the water, and was in close contact with rodent feces, and things like this, from nutrias, could you say there was a medical certainty or medical probability that this is where he contracted the toxoplasmo-sis?
A I would say it would be a medical probability.
Q Would you say it’s more possible than not, that he did get it from the water and soil and feces?
A Yes, because it is known that this— all these agents do — are present in animal reservoir.

Continuing,

Q Now, would you conclude from what you know about toxoplasmosis, that if a person worked in the swamp, and the water, sometimes, water up to his waist, and was certainly in very, very close contact with rodent feces, with nutria feces, which is everywhere in the swamp—
[DEFENSE COUNSEL]
Are you asking him to assume all of this?
[PLAINTIFF’S COUNSEL]
Right.
[DEFENSE COUNSEL]
Because I can agree with your statement that it’s normal in the swamp.

This testimony, coupled with the two stipulations, is the only evidence linking plaintiff’s disease to his employment. In his reasons for judgment, the trial court said,

After reviewing the testimony and the arguments, the court finds that the plaintiff has failed to show a causal relationship between the disease and the work in which he was engaged at the time. The deposition of Dr. Joseph Rumage indicates that given a set of assumptions then the disease probably would have been contracted. However, the basis for these assumptions were not proven to the court’s satisfaction.

We agree with the trial court’s assessment of the evidence.

To prevail in a worker’s compensation suit, the claimant must prove by a preponderance of the evidence that his disability was caused by conditions to which he was exposed by virtue of his employment, that is, that the disability is job-related, whether it be the result of an injury by accident or the result of an occupational disease. See Prim v. City of Shreveport, 297 So.2d 421 (La.1974); Page v. Pre-stressed Concrete Co., 399 So.2d 657 (La.App. 1st Cir.), cert. denied, 401 So.2d 994 (La.1981); see generally W. Malone and H.A. Johnson, 1 Louisiana Civil Law Treatise, Workers’ Compensation Law and Practice, § 143 (2d ed. 1980). If the evidence leaves the probabilities evenly balanced or if it shows only a possibility of a work-related event or leaves it to speculation or conjecture, then the plaintiff fails to carry his burden. Page, 399 So.2d at 661.

All that the evidence firmly establishes in the present case is that the plaintiff contracted toxoplasmosis sometime pri- or to his examination on May 27, 1977; that toxoplasmosis is a rare disease endemic to moist, swampy areas; and that plaintiff was working for defendant during the summer of 1977 in the swampy area around Gonzales, Louisiana. While the possibility exists that he contracted the disease while on the job, the possibility equally exists that he contracted it elsewhere at some earlier time, possibly before 1975, possibly even as early as 1973 in Houma. We take judicial notice of the fact that moist, swampy areas constitute much of the outdoors in south Louisiana. Moreover, as defendant correctly points out in brief, there is no evidence tending to prove that on the day plaintiff alleges he contracted the disease, May 25, 1977, he was actually working in a swamp, or otherwise exposed to infected soil or infected animal feces. No soil tests of the region were ever made, or if they were, they were not introduced into evidence.

For reasons unilluminated by the record, plaintiff did not testify on his own behalf. There is a rule in our jurisprudence, based upon the duty litigants owe the courts to assist in elucidating the truth of the controversy, that a party’s failure to testify on matters material to his case and peculiarly within his knowledge creates a presumption that his testimony would be damaging to his case. See Ruthardt v. Tennant, 252 La. 1041, 215 So.2d 805 (1968); Istre v. South Central Bell Telephone Company, 329 So.2d 486 (La.App. 3rd Cir.1976), cert. denied, 333 So.2d 233 (La.1976); cf. Morgan v. Matlack, Inc., 366 So.2d 1071 (La.App. 1st Cir.1979). This court has recognized the limitation that the “adverse inference” rule is but one factor to weigh in adjudicating the case, and may not always be fatal. Gulf States Utilities Company v. Guidry, 183 So.2d 122 (La.App. 1st Cir.1966).

In the present case, however, plaintiff was in the best position to elucidate when and where he was exposed to toxoplasmo-sis, not his physician whose conclusions are based on assumptions of facts never adequately established by the evidence. Without the benefit of his testimony, we agree with the trial court’s conclusion that the evidence presented fails to preponderate in his favor and therefore affirm the trial court’s judgment.

All costs of these proceedings are to be paid by the plaintiff.

AFFIRMED.

      . The first leg of the journey is captured in Dunckelman v. T. Baker Smith & Sons, Inc., et al., 413 So.2d 669 (La.App. 1st Cir.1982). The second leg began with plaintiff’s unsuccessful attempt to secure a new trial after final judgment was signed on February 24, 1982. After the motion for new trial was denied on Decern-ber 2, 1982, plaintiff timely appealed to this court on February 3, 1983.

      . Because we affirm the judgment, we need not decide whether plaintiff is permanently and partially disabled.


text:
    Algiers MUSE v. ROY H. SPEARS LUMBER COMPANY, et al.
    No. 83 CA 0367.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Arlene D. Knighten, Hammond, for plaintiff-appellant.
    Charles V. Genco, Amite, for defendant Roy Spears Lumber.
    James A. McGraw, Baton Rouge, for Office of Employment Security La. Dept, of Labor.

      James J. Brady, Alexandria, for Gulf States Underwriters of La., Inc.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Algiers Muse (plaintiff) sued his former employer, Roy H. Spears Lumber Company (defendant) and Gulf States Underwriters of Louisiana, Incorporated, for benefits under the Louisiana Workman’s Compensation statutes. After hearing all the evidence, the court found for defendant, prompting this appeal by plaintiff.

Plaintiff was employed by defendant doing a variety of tasks, from cutting and edging lumber to cleaning around the lumber yard. On June 3,1980, he was working an edger when a piece of lumber jammed while passing through the machine. When it was ejected, it struck him, forced him back into a pile of lumber and caused a cervical strain.

At trial, the court heard testimony from plaintiff, his wife, three of defendant’s employees, and the examining physician, Dr. C.G. Forrest. Plaintiff also introduced the deposition of Dr. Homer D. Kirgis, a neurosurgeon with the Ochsner Clinic in Jefferson, Louisiana.

Plaintiff saw Dr. Forrest on the day following the injury. He examined plaintiff and found some tenderness at the base of plaintiff’s skull. He concluded that the injury would not prevent plaintiff from returning to work. Plaintiff testified that he tried to continue to work but could not because of the pain and that after seeing Dr. Forrest a few times began to go to Lallie Kemp Charity Hospital for lower back and neck pain.

Defendant introduced plaintiff’s weekly time cards covering the period from May 7, 1980, through July 16, 1980. The cards established that for the five weeks between May 7 and June 4, 1980, plaintiff worked 52½ hours, 49¾ hours, 46 hours, 53 hours, and 47 hours, respectively. The latter period, May 29 through June 4, includes the day of the injury (June 3) and concludes on the date of plaintiff’s first doctor visit.

For the pay periods from June 5 through July 16 (after the accident), plaintiff worked 407⅛ hours, 1772 hours, 25 hours, 58 hours, 3274 hours, and 9¾ hours. Although the hours worked each week are slightly less for the weeks after the accident than for the weeks before the accident, we note that the daily totals do not indicate an employee who is working four or five hours per day and then succumbing to unbearable pain. . Instead, the cards show the plaintiff averaging approximately an eight-hour work day for the days on which he did any work at all. The cards indicate, however, that he was wholly absent from work some days. Typical was the week of June 19 through June 25 which shows zero hours on June 19, eight hours on June 20, zero hours on June 21 and 22 (Saturday and Sunday), IV4 hours on June 23, and 7¾ hours each on June 24 and 25. We also note that a little less than a month after the accident, during the week of June 26 through July 2, plaintiff logged 58 hours, working a seven-day week, the individual daily hours ranging from 7¾ hours to 97⅛ hours.

Plaintiff testified on redirect examination that he customarily punched his own time card. When confronted on cross-examination with the hours recorded on his time cards, he repeatedly claimed that he did not know anything about all that.

Plaintiff complained of pain whenever he tried to “work steady.” He admitted hauling paper wood since he left defendant but claimed he had to quit this job, also, since stooping and bending his neck and back brought on pain. Plaintiff also admitted doing other types of work since the accident, including raking and cutting yards and complained of minimal pain from these activities. He said that he can work in his garden at home for up to three hours before feeling pain. The testimony of Ethyl Lee Muse, plaintiffs wife, was substantially the same as that of plaintiff.

Two of defendant’s office workers, Minnie Alford and Beatrice Wall, testified. Alford said that the reason some of the time cards had no times punched on certain days was that plaintiff just didn’t show up for work on those days. She also testified that she was not aware of any practice among the employees of punching each other’s time cards in and out.

Plaintiff’s last day of work with defendant was Friday, July 11. Beatrice Wall testified that on that day “Mr. Spears let him go ... for not following orders.” She said that Spears’ action had nothing to do with plaintiff’s physical condition.

Roy Eugene Spears, son of defendant’s namesake, testified that on July 11 plaintiff had been standing by the water cooler. He was approached by the elder Spears; the two had “some words” and then Spears fired plaintiff. The witness testified that the exchange between the two men was “fairly heated.” This coincides with plaintiff’s own testimony that on July 11 Spears “got hot and he run me off.”

Finally, we note the testimony of Dr. Forrest and the deposition of Dr. Kirgis. Dr. Forrest stated that he would not rate plaintiff as disabled. At his initial examination of plaintiff on June 4, Forrest noted tenderness at the base of plaintiff’s skull. On June 6, plaintiff complained that he had not improved. He would not let Forrest turn or move his head, but Forrest noticed that as plaintiff moved about the office he moved his head freely. Dr. Forrest also examined the x-rays taken by Dr. Fred Lewis at Hood Memorial Hospital but found nothing abnormal other than a minor narrowing of the cervical discs and minor spur formation on a vertebra. When plaintiff was last seen on June 16, Forrest again noticed plaintiff moving his head and neck freely when he was not being examined.

The deposition of Dr. Homer Kirgis was introduced by plaintiff. Kirgis saw plaintiff in October of 1980 and stated that after examining him, his diagnosis was that plaintiff “probably had sustained a straining injury of the muscles of the neck. I thought that the symptoms would clear in the relatively near future.” He also stated that he did not believe plaintiff was capable of doing manual labor at that time, although he felt that plaintiff’s condition should resolve itself within three or four months. Kirgis saw plaintiff again approximately one year later and said that plaintiff indicated that moving his head and neck caused hypersensitivity over the left side of his body, including the left side of his face and head. When Dr. Kirgis questioned him about this, he observed that plaintiff said, “It was the left side that was hurt.” Dr. Kirgis observed that this statement was made “as though inferring that because this object may have struck more on the left side of the body that in some way caused him to be unduly sensitive to the left side of the body. It was at this time he did not appear to me that he was cooperating completely with the testing, and if he was, that he had developed a psychiatric problem.” Kirgis stated that he did not observe anything else significant in that September, 1981, visit and further testified, “I don’t believe he has any disability at this time referrable to the neck that would keep him from working, that is, no physical disabilities.”

The trial court rendered judgment for defendant and set forth his written reasons for judgment as follows:

In the opinion of the Court the plaintiff was injured in the course and scope of his employment, but that ... injury did not cause plaintiff to be disabled. Plaintiff continued to work fairly regularly from the date of the accident until he and Mr. Spears had a disagreement which resulted in plaintiffs dismissal. The disagreement and resulting dismissal was the real reason that plaintiff was unable to continue working.

In said reasons, the trial court noted that the plaintiff continued to work “fairly regularly” from the date of the accident until his disagreement with Spears. The court found that the disagreement resulted in plaintiffs dismissal, not any physical incapacity of plaintiff.

We find support for these conclusions in the evidence adduced at trial. The time cards indicate the plaintiffs ability to work eight-hour days after the accident, and the testimony of the physicians provides a basis upon which the trial court could reasonably make a credibility evaluation adverse to plaintiff regarding his allegations of pain. Both physicians noticed some tenderness in plaintiffs neck, but not so much as to make him disabled. Dr. Forrest noticed that the soreness and limitation of motion coincided with his examinations and that the limitation disappeared when plaintiff moved around his office. Finally, Dr. Kir-gis noted plaintiffs inference that because the object struck him on the left side of his body, it would cause him to be unduly sensitive on that side and attributed plaintiffs attitude and lack of cooperation to the development of a possible “psychiatric problem.”

Although it is clear from the record that plaintiff did suffer an accident, the trial court was apparently not convinced after hearing all the testimony that the plaintiff endured such substantial pain as to render him disabled. The value of such findings and our duty regarding them was succinctly set forth by the Third Circuit Court of Appeal in Downs v. Rapides General Hospital, 398 So.2d 116, 118 (La.App. 3rd Cir.1981), writ denied, 409 So.2d 611 (La.1981):

“[Pjhysical inability to return to work and inability to return to work due to substantial pain are questions of fact. The determination of fact made by a trial court will not be disturbed when there is evidence before the court, which evidence, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s findings, unless those findings are clearly wrong. Crump v. Hartford Accident and Indemnity Company, 367 So.2d 300 (La.1979). In this regard, we stated in Conlay v. Houston General Insurance Company, supra, 370 So.2d 196 at page 200 (La.App. 3 Cir.1979) [writ granted, 371 So.2d 618 (La.1979), appeal dismissed, 374 So.2d 650 (La.1979)]: ‘... The trial court’s favored position in seeing and hearing live witnesses is especially important when the factual determination involves a concept as subjective as pain. Colorful inflections and subtle nuances’ given to spoken and physical expressions describing the degree of pain simply do not come out in the black and white transcription of testimony contained in the appellate record.’ ”

Based upon the entirety of this record, we cannot say that the trial court was clearly wrong in holding that, under the available standards for proof of disability under the Louisiana Workman’s Compensation scheme, plaintiff failed to prove such disability as to entitle him to recover. For the foregoing reasons, the judgment of the trial court is affirmed. All costs are taxed to plaintiff.

AFFIRMED.

      . The time card for the week of July 3 through July 9 was missing. However, defendant's exhibit No. 2 was a photocopy of the company's earnings record for Algiers Muse, which indicated the time worked for that period.

      . This diagnosis was made after this history was taken from plaintiff: "The history that I recorded was he had to stop working at once and was seen by Dr. Forrest, who gave him medication and advice that he apply heat. Subsequently he was seen at weekly intervals by Dr. Forrest and was discharged, but he said, or at least I recorded that he told me he had never thought he was able to return to work. It was my impression he had stopped working at the time of the injury, but I might be mistaken."


author: CRAIN, Justice. SHORTESS, Judge,

text:
    James D. MACK v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, J.T. Howell, Monroe Nelson, Frank Selders, Jr. and the State Farm Mutual Automobile Insurance Company.
    No. 83 CA 0401.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Writ Denied April 23, 1984.

      See also La.App., 434 So.2d 594.
    J. Arthur Smith, III, Baton Rouge, for plaintiff-appellee.
    Robert J. Vandaworker, Baton Rouge, defendants-appellants (Southern Farm Bureau Cas. Ins. Co., J.T. Howell, Monroe Nelson).
    Thomas A. Lane, Baton Rouge, for defendant (State Farm Mut. Auto. Ins. Co.).
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Justice.

This appeal is from a judgment of the trial court based upon a jury verdict which dismissed plaintiffs suit. The judgment assessed jury costs against defendants Monroe Nelson (Nelson), J.T. Howell (Howell) and Southern Farm Bureau Casualty Insurance Company, (Southern). These parties appealed. Plaintiff appealed and answered the appeal asking for a reversal of the jury verdict against him.

On May 9,1981, plaintiff, James D. Mack (Mack), was driving a Dodge wrecker in an easterly direction on Louisiana Highway 10 in East Feliciana Parish. On that date, at approximately 7:15 a.m., Frank Selders, Jr., (Selders) driving a mail delivery truck, was rear-ended by a two-ton Chevrolet truck being driven by Nelson. The collision between the Nelson and Selders’ vehicles caused the Selders’ vehicle to rear-end Mack’s wrecker. The collision caused the Mack vehicle to careen into a steep ditch and come to rest at about a 30-35 degree angle.

Selders was employed by Mr. Simuel Ward and insured by State Farm Mutual Automobile Insurance Company (State Farm). Nelson was employed by Howell and insured by Southern.

Mack subsequently filed suit against defendants Nelson, Selders and Howell, and their respective insurers, alleging that their joint and concurring negligence caused him to suffer serious disabling injuries for which he sought damages.

After trial, the jury answered interrogatories concluding that at the time of the collision Mack’s vehicle was stopped and he was standing outside of it. The jury found that although Mack had suffered a ruptured cervical disc, the May 9, 1981 accident was not a cause of the injury. The jury also answered interrogatories finding Nelson 80% at fault, Selders free of fault, and Mack 20% at fault. Based upon the verdict, judgment was rendered in favor of defendants rejecting plaintiff’s demands. Mack was cast for all court costs except the jury costs which were assessed to the defendants, Southern, Howell and Nelson. These defendants appeal from the portion of the judgment casting them for the costs of the jury trial. Mack answered the appeal complaining the entire judgment on the merits was in error and seeking reversal of the trial court judgment and a judgment in his favor for $100,871.53 against defendants, Southern, J.T. Howell, Nelson, State Farm, Simuel Ward, and Selders, in solido. Mack filed a separate appeal to bring in Ward and State Farm since they did not appeal from any portion of the judgment.

Mack argues that the jury verdict is factually and legally erroneous and that the trial court erred in denying the motion for directed verdict as to the liability of the defendants Nelson, Howell and Southern. He also claims in his last assignment of error that the jury was in error in failing to find that the proof established he was injured in the accident.

In support of the argument that the jury verdict was erroneous, Mack alleges that the jury’s credibility determination was clearly unreasonable and that the trier of fact may not select a clearly improbable version of an accident. He alleges his own testimony along with the testimony of his family and two doctors established a prima facie case, which was not rebutted, that the accident caused his ruptured disc.

THE CORRECTNESS OF THE JURY VERDICT

Conflicting versions of how the accident actually happened were presented. At the time of the accident Mack reported to State Trooper William Cook, the investigating officer, that he was traveling easterly on Highway 10 at approximately 45 m.p.h. when he was struck in the rear by the vehicle behind him. This collision caused his wrecker to go into the ditch resulting in his injuries.

Selders reported to Trooper Cook that he was following behind Mack’s vehicle when he was struck in the rear by the Nelson vehicle.

Nelson reported to Trooper Cook that he came up too fast on the mail truck driven by Selders so he went into the left lane to pass. However, he observed an oncoming vehicle, so he swerved back into his lane and applied his brakes. The truck started sliding on the wet road, and he hit the rear of the mail truck.

After suit was filed, Selders gave a version of the accident to Southern’s adjuster that differed substantially from the version he had previously given Trooper Cook. Selders claimed that Mack was not even in the wrecker when the accident occurred; that Mack was stopped in the highway out of gas before the accident and that he (Selders) was also stopped in the highway conversing with Mack when struck in the rear by Nelson; that Mack bribed him and Nelson to falsify their reports to the trooper; that he accepted the bribe; and that it was physically impossible for Mack to have been injured in the May 9, 1981 accident.

Selders testified to this version of the accident at trial. Mack testified to his original version and Nelson changed to the extent that his trial testimony was that Mack and Selders’ vehicles were stopped in the road ahead of him prior to the collision.

The medical evidence does not assist in resolving the conflicting testimony. Dr. Piker, Mack’s treating physician, and Dr. Flynn, a neurosurgeon, both examined Mack with reference to cervical complaints after the May 9 accident. Both found a possible cervical strain. However, Dr. Flynn recommended no follow-up after his June 11, 1981 examination. He did not see Mack again until March 4, 1982, at which time a diagnosis was made of a ruptured cervical disc and nerve root compression which was surgically repaired. However, Mack had been involved in another accident on February 16, 1982.

When there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluation and inferences are as reasonable. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Upon review of the record, we find the jury did not select a clearly improbable version of the accident and that the jury’s credibility determination was not clearly unreasonable.

We are not persuaded by Mack’s argument that the defendants had the burden of proving their defense by clear and convincing evidence because it constitutes an allegation of fraud. Defendants simply denied Mack’s injury and introduced the proof they had in support of that denial. No objection was made to the admissibility of their evidence. The answer of the jury to the interrogatories indicates only that they did not find the accident to be a cause of the injury. A finding of fraud is not necessary to reach this conclusion, simply a refusal to accept plaintiff’s claim. This assignment of error is without merit.

Mack argues that the trial court erred in denying the motion for directed verdict as to the liability of Nelson, Howell and Southern Farm and in submitting the question of Mack’s negligence to the jury. Our review of the record reveals sufficient evidence of Mack’s negligence to require submitting the question to the jury. In doing so the trial court was not in error.

JURY COSTS

Appellants, Southern, Nelson and Howell argue the trial court erred in casting them for the costs of the jury trial solely on the ground that they requested the jury trial.

La.C.C.P. art. 1920 provides for assessment of costs to the party cast in judgment, except costs may be rendered against any party the court considers equitable. Jury costs cannot be assessed against a party not found liable on the sole ground that the party requested the jury trial. Gholar v. Security Ins. Co. of Hartford, 366 So.2d 1015 (La.App. 1st Cir.1978). This rule applies even though a party is found negligent but not liable. Gholar, 366 So.2d at 1016. Therefore, that portion of the judgment assessing the jury costs to the appellants, Southern, Nelson and Howell is reversed.

For the reasons assigned, the judgment of the trial court in favor of defendants is affirmed. That portion of the judgment assessing the jury costs to defendants, Southern, Nelson and Howell is reversed. Costs of the jury are taxed to the plaintiff as well as the costs of this appeal.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

SHORTESS, J., concurs for reasons assigned.

SHORTESS, Judge,

concurring.

I respectfully concur.

I agree with the majority in this case but add the following observations which I consider pertinent.

The diagram prepared by Trooper Cook together with his testimony convinced me that the Selders' version of the accident was correct, notwithstanding any confusion created by the medical evidence. He testified that plaintiff traveled approximately 35 feet after the point of collision. He said the other vehicle traveled about 20 feet. It is highly improbable that vehicles in motion in a straight line and going between 35 and 45 miles per hour would come to rest so quickly after such a severe impact from the rear. As Cook so aptly stated, “The law of physics would indicate that once a mass is in motion it tends to remain in motion....”

Accordingly, I concur.

      . It appears that the legislature may intend to prohibit the assessment of civil jury costs as court costs altogether, thus requiring the party requesting the jury and posting the bond to be responsible for all jury costs. The only costs that can be taxed against a litigant are those provided for by a positive law. Gore v. American Motorists Insurance Company, 244 So.2d 894 (La.App. 1st Cir.1971). La.R.S. 13:3050 required that civil jury costs be assessed as court costs. Acts. 1983, No. 534 repealed La.R.S. 13:3050 and re-enacted it as La.C.C.P. arts 1733 and 1734. Assessment of jury costs as court costs was omitted. However, the legislature failed to amend La.R.S. 13:4533. We had interpreted this article to allow the cost of feeding civil jurors as court costs. Meyers v. Basso, 381 So.2d 843 (La.App. 1st Cir. 1980). Certainly, if the meals can be taxed as costs, mileage, per diem and other relevant jury costs are also taxable. Thus, an amendment of La.R.S. 13:4533 or our overruling of Meyers, 381 So.2d 843 will be necessary in order to accomplish what obviously should be done; requiring the party requesting the civil jury trial to bear the expense.


author: COLE, Judge.

text:
    Billy Wayne SINCLAIR v. Larry K. SULLIVAN.
    No. 83 CA 0423.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Billy Wayne Sinclair in pro per.
    Gerard E. Kiefer, Baton Rouge, for defendant-appellee Larry K. Sullivan.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The issue in this case is whether or not the trial court erred in dismissing the plaintiffs suit which alleged defendant gave perjured testimony at the plaintiffs criminal trial, holding that the claim had prescribed.

The sequence of events giving rise to this litigation are as follows. Plaintiff, Billy Wayne Sinclair, was convicted of first degree murder for the killing of a man during the course of an armed robbery which occurred on December 5, 1965. The defendant, Larry K. Sullivan, testified at plaintiffs trial on June 6, 1966. He testified he saw plaintiff the night of the murder between 7:10 and 7:80 P.M. at a restaurant close to the scene of the felony murder. The felony murder occurred at approximately 8:06 P.M.

Alleging that the defendant’s testimony was perjurious and the result of a prosecu-torial conspiracy to have him convicted of a capital crime, the plaintiff brought suit against the defendant for damages under La.Civ.Code art. 2315. The defendant filed the peremptory exception, raising the objections of no cause of action and prescription. The trial court dismissed plaintiffs action as having prescribed.

We have reviewed the trial court’s reasons for judgment, find them articulate, well-reasoned and legally correct. We hereby adopt them as our own. Costs are to be paid by appellant.

AFFIRMED.

BILLY WAYNE SINCLAIR VERSUS LARRY K. SULLIVAN

NUMBER 288,307 DIVISION M 19TH JUDICIAL DISTRICT COURT PARISH OF EAST BATON ROUGE STATE OF LOUISIANA

WRITTEN REASONS FOR JUDGMENT

Plaintiff was convicted of first degree murder for a killing during the armed robbery of a grocery store. State v. Sinclair, 258 La. 84, 245 So.2d 365 (1971) (The Supreme Court opinion, apparently in error reflects the killing was “November 5, 1965,” rather than December 5, 1965, as plaintiff alleges and the police report reflects. 245 So.2d at 366). Under then existing law (La.R.S. 14:30) the sentence upon a conviction for the killing of a person “when the offender is engaged in the perpetration of an armed robbery (even though he had not intended to kill) was death.” The death penalty was imposed but later vacated in light of intervening U.S. Supreme Court decisions. State v. Sinclair, 263 La. 377, 268 So.2d 514 (1972).

Plaintiff admits killing the victim, during an armed robbery. (See Plaintiff’s “Answers to Interrogations”) He, however, contends that “the defendant’s testimony contributed to the jury returning a verdict of “guilty as charged” against the plaintiff.” (Petition, para. 14). More specifically, he contends that the defendant’s testimony regarding the time at which the petitioner left the defendant’s restaurant was intentionally false or perjured. Further he contends he was damaged because he was sentenced to death row and speculates that the testimony has injured his chances of obtaining a wholly-discretionary gubernatorial pardon or clemancy. See 1974 La. Const. Art. 4 Section 5E.

The allegation of intentional misrepresentation is predicated upon the plaintiff obtaining a copy of an “Offense Report”, allegedly in March 1980. The report (made a part of the petition) was obviously retyped from notes of several officers and reflects that Mr. Sullivan told the investigating officer that he saw Sinclair between “approximately” 7:10 to 7:30. (Petition p. 2). The report reflects the statements «were made at Mr. Sullivan’s place of business on December 8, 1965, three days after the killing.

While this court, if necessary, would without hesitation rule that the plaintiff has failed to state a cause of action, such is not necessary for a resolution of this matter. Cf. Restatement of Torts 2d 588 (and comments thereunder). Merritt-Chapman & Scott Corp. v. Elgin Coal, Inc., 358 F.Supp. 17, 22 (1972) affirmed without opinion 477 F.2d 598 (6 Cir.1973); Martirano v. Frost, 25 N.Y.2d 505, 307 N.Y.S.2d 425, 255 N.E.2d 693 (N.Y.1969); La.R.S. 14:50(2); Immunity of Witness From Suit Due to Their Testimony, 13 La.L.Rev. 280; Briscoe v. LaHue, - U.S. -, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983).

Plaintiff has cited no Louisiana case which supports this far-fetched claim. He admits that habeas corpus relief previously was denied on the ground asserted here (Memorandum in Support of Traverse To The Commissioner’s Report, p. 3), State ex rel. Sinclair v. Blackburn, 385 So.2d 1213 (1980).

The nature of the allegations, including that these statements were made in open court, in plaintiff’s presence and were innately of such a nature that plaintiff immediately knew they were false (if they were false) preclude any justification for considering the later “discovery” in the offense report. If defendant’s statements were false, plaintiff knew that at the time of the trial (June, 1966) as he affirmatively alleges in Article 16 of his petition that he was not even in the Chicken Diner on the night of December 5, 1965. Ignorance of the alleged facts is not present. Additionally, at least by the time of the affirmation of the jury's verdict and the death penalty by the Louisiana Supreme Court (rehearing denied March 29, 1971) any alleged harm that could have accrued to the plaintiff had accrued with his knowledge. See e.g. Youngblood v. Dettenheim, 352 So.2d 265 (2nd Cir.1977).

Civil Code Article 3536 provides a one-year prescriptive period for “injurous words.” Article 3537 states clearly that the prescription commences to run from the day “on which the injurous words, disturbance or damages were sustained.”

Allowing plaintiff the most beneficial interpretation of applicable prescription principles (which no equities indicate he deserves), liberative prescription began to run no later than March 29, 1971, when the death penalty was affirmed by the Louisiana Supreme Court. The alleged claim had long prescribed before the filing of this action on August 3, 1980.

Accordingly, written judgment will be signed dismissing this action at plaintiff’s costs.

March 22, 1983.

/s/ Charles Win. Roberts _ JUDGE, 19TH JUDICIAL DISTRICT COURT

FILED MAR 22 1983

Patricia Kennedy DY. CLERK OF COURT

I hereby certify that on this day a notice of the written reasons for judgment above judgement was mailed by me, with sufficient

postage affixed to: Billy Wayne Sinclair-Gerald E. Keifer

Done and signed on March 23,1983

Patricia Kennedy Deputy Clerk of Court

      . The trial court’s reasons are attached hereto and made part hereof.


author: COVINGTON, Judge.

text:
    COMMERCIAL UNION INSURANCE COMPANY v. A-1 CONTRACTING CO. OF LOUISIANA, INC., et al.
    No. 83 CA 0427.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Charles W. Rea, Baton Rouge, for plaintiff-appellee Commercial Union Ins. Co.
    David L. Dawson, Jr., Baton Rouge, for defendant-appellant A-l Contracting Co. of La., Inc., Bruce Hunt Contracting Co., Bruce Hunt, Individually.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

This is an appeal from a judgment for $4,773.00 in favor of plaintiff, Commercial Union Insurance Company, against defendants, in solido, A-l Contracting Co. of Louisiana, Inc., Bruce Hunt Contracting Co., Inc. and Bruce Hunt, individually, for premiums due for insurance. We affirm.

Wright and Percy Insurance Agency, as agent for Commercial Union, issued a combined comprehensive general liability, workers’ compensation and automobile policy naming defendants as the insureds. This policy was later endorsed to include Alex J. Hunt Contracting Company, Inc., as an additional named insured. An estimated premium was billed at the time the policy was issued and, after the policy period of one year expired, the insureds’ books were audited and a premium audit notice was issued by the insurance company to the insureds in order to reflect the correct premium based on the insureds’ payroll and operations records. In this case, the premium audit notice and invoice reflected an additional premium due in the amount of $4,773.00. The issuance of the policy and the amount of the premiums are not disputed. When this amount was not paid, Corn-mercial Union filed the present suit. The trial court rendered judgment in favor of the plaintiff against all defendants in soli-do.

The defendants contend that none of them are liable for the premium and that the premium should have been billed to and paid by Alex J. Hunt Contracting Company, Inc., which was not made a party to this suit. The basis for this contention is that A-l Contracting and Bruce Hunt, individually, had no employees or payroll during the policy period and there is no corporation named Bruce Hunt Contracting Co., Inc. Only Alex J. Hunt Contracting Co., Inc., had employees covered by this policy, according to defendants.

The testimony in this case disclosed that Bruce Hunt had been in the contracting business for many years, using various corporate names. During the past thirty years, Bruce Hunt had purchased insurance covering all of his business activities from Wright and Percy Insurance Agency. He also testified that he generally ordered his insurance by telephone and that the agency would send him the appropriate application, which he would execute and return by mail. This procedure was followed in the instant case. The agency was requested to insure all of the Hunt businesses and the application was mailed to Bruce Hunt for his execution as the insured. Bruce Hunt executed the application for the policy at issue without any corporate designation. Later, after another telephone call to the agency from Bruce Hunt, an endorsement was issued naming Alex Hunt Contracting Co., Inc. as an additional insured. Both Bruce Hunt and Alex Hunt testified that the agency was given only general instructions concerning the issuance of any policies and that the agency was never told to remove any of the named insureds from this policy or that the premiums should be billed to any particular entity.

The court in Liberty Mutual Insurance Company v. Petroleum Venture Capital Corporation, 216 So.2d 925 (La.App. 2nd Cir.1968), considered a factual situation which was similar to the present case. The court in that case found that the various insureds were owned by one defendant, either directly as subsidiaries, or indirectly through the ownership of stock. The court held that the defendant which had made application for and purchased the policies was responsible for payment of the premiums.

We find that Commercial Union insured Hunt’s businesses, irrespective of the name or names Hunt used. Hunt admitted that he never instructed Wright and Percy to remove any of the named insureds from the policies, and the testimony is clear that Hunt did not tell the agency that the premiums should be billed to any specific corporation, or that he would not be personally responsible for the premiums, or that he was not representing the various corporations.

As stated in the Liberty Mutual case, this situation arises out of the corporate structures of the insured defendants, and the ownership of these corporations by Bruce Hunt and his son, Alex Hunt. The trial court correctly concluded that Bruce Hunt made application for and purchased the insurance for all of the businesses involved, in his individual capacity and as the representative of the businesses, and consequently all of the defendants are responsible for the premiums.

For the reasons assigned, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.

      . This defendant’s correct legal name is A-l Contracting Company of Louisiana, Inc. and the judgment correctly uses that name.


author: SAVOIE, Judge.

text:
    Floyd S. SAIZAN v. CENTURY 21 GOLD KEY REALTY, INC.
    No. 83 CA 0433.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    William E. LeBlanc, White Castle, for plaintiff-appellant.
    J.R. Schmidt, Hammond, for defendant-appellee.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Plaintiff appeals the trial court’s finding that no right of action exists on his petition to rescind a contract for lesion beyond moiety.

Plaintiff entered into an agreement to sell certain property to Century 21 Gold Key Realty, Inc. (hereinafter referred to as Century 21). This agreement stated that Century 21 agreed to pay $120,000.00 for the subject property upon the following terms: “$90,000.00 Cash at act of sale thru — property exchanges with the balance ($30,000.00) to be financed for 12-Months $ ten (10%) interest.” Thereafter, by document entitled “Act of Exchange Between Century 21 Gold Key Realty, Inc., Floyd S. Saizan,” plaintiff transferred to Century 21 the property for and in consideration of (1) certain immovable property, (2) a $10,-000.00 promissory note, (3) a $30,000.00 promissory note, and (4) $25,405.00 cash. The “Act of Exchange” stated that this exchange was being made mutually by the parties and that the properties exchanged were of equal value. Several months later, plaintiff brought this action to rescind the contract, alleging lesion beyond moiety. Defendant filed a Peremptory Exception of No Right of Action under L.S.A.-C.C. art. 2666, which exception was maintained by the trial court.

We note that the trial court failed to provide either written or oral reason for judgment. However, we assume his decision was based on the law advanced in the exception, that being, L.S.A.-C.C. art. 2666.

On appeal, plaintiff alleges two assignments of error. However, neither assignment has any bearing on the question posed to the trial court at the hearing on defendant’s exception, that being, whether plaintiff is barred by L.S.A.-C.C. art. 2666 from bringing this action. Accordingly, we will not address the specific assignments raised by plaintiff on appeal but will address that issue which faced the trial court.

An exchange is a contract by which the parties to the contract give to one another one thing for another, whatever it be, except money, for in that case, it would be a sale. L.S.A.-C.C. art. 2660.

It is clear from the facts that the contract in question was that of exchange. As consideration for the property plaintiff transferred, he received certain immovable property, three promissory notes, and some cash.

Contracts of exchange are subject to rescission on account of lesion except in two cases: (1) when one party gives immovable property to the other in exchange for movable property, and (2) if a balance has been paid in money or immovable [in movable] property, and if the balance paid exceeds by more than one-half the total value of the immovable property given in exchange by the person to whom the balance has been paid. L.S. A.-C.C. arts. 2664, 2665, and 2666, respectively.

Under the present factual circumstances, L.S.A.-C.C. art. 2665 is not applicable because the exchange was not immovable property for movable property. The exchange was immovable property for immovable property and movable property. Thus, L.S.A.-C.C. art. 2666 is controlling.

Using L.S.A.-C.C. art. 2666 as our legal basis, we pretermit a factual finding of whether the balance paid exceeds by more than one-half the total value of the immovable property given in exchange by the person to whom the balance has been paid. We note that a factual determination thereon is not necessary because under L.S.A.-C.C. 2666, it is only the person who has paid such balance who may demand rescission of the contract on account of lesion, and that person is not the plaintiff herein.

Since factual circumstances of plaintiffs exchange fail to invoke the application of either exception, plaintiffs contract of exchange cannot be rescinded on account of lesion.

Accordingly, the judgment of the trial court is affirmed. Plaintiff is to pay all costs.

AFFIRMED.

      . Plaintiff contends that the trial court erred in: (1) finding that his agreement to purchase did not constitute a counter-letter, and (2) denying its admission into evidence.

      . The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself. L.S.A.-C.C. art. 2439.


author: CARTER, Judge.

text:
    STATE of Louisiana v. Carey Paul SMITH.
    No. 83 KA 0814.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      James L. Alcock, Asst. Dist. Atty., Hou-ma, for State of La., plaintiff.
    John W. Reed, Glass & Reed, New Orleans, for Carey Paul Smith, defendant.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge.

This criminal appeal arises from the conviction of Carey Paul Smith for second-degree murder, LSA-R.S. 14:30.1. Defendant received the mandatory sentence under LSA-R.S. 14:30.1, life imprisonment at hard labor without benefit of probation, parole or suspension. Defendant appeals this conviction specifying one assignment of error.

FACTS

On July 22, 1981, at approximately 8:30 p.m., Jesse Trevathan, defendant, and defendant’s brother, Craig Smith, went to a trailer in Terrebonne Parish rented by Rick Whitener, the victim in the instant case, and knocked at the door. Whitener was not at home, and Trevathan was informed by George Cunningham, Whitener’s roommate, that the victim had not yet returned from work. Trevathan and the Smith brothers then left and returned at approximately 9:00 p.m. the same evening. Treva-than knocked on the door and when Cunningham again answered the door, Treva-than used a small .25 automatic pistol and ordered Cunningham to back up. Defendant, his brother, and Trevathan then entered the trailer. Both defendant and his brother were armed with clubs.

Upon entering the trailer, defendant and his brother searched the various rooms to determine if anyone else was present. When it was ascertained that there were no other individuals in the trailer, defendant and his brother cut the cord to the wall telephone in the kitchen of the trailer. Craig Smith tied George Cunningham’s hands behind his back with Jesse Treva-than holding the gun on Cunningham. Before the victim arrived, Carey Smith took possession of the gun for a short time while Trevathan used the bathroom.

Whitener returned home at approximately 9:30 p.m. Upon hearing the victim’s car pull up, all three perpetrators hid in the bedroom of the trailer. When Whitener entered the trailer, the three pounced on him, and the defendant and Craig Smith tied Whitener up with the cord taken from the telephone and a television cord found on the premises. Shortly thereafter, the five men left the trailer in an automobile. Craig Smith drove the car with Cunningham and defendant beside him in the front seat. Trevathan sat with Whitener in the back seat. They drove around for approximately half an hour before they stopped at the instructions of defendant in the Devil Swamp area in Terrebonne Parish. Cunningham was then released from the vehicle. At the time he was released, Cunningham’s hands were still tied. Defendant, Trevathan and Craig Smith then drove Whitener to a point off of Louisiana Highway 659 in Terrebonne Parish, where Whitener was shot five times in the head, dragged to a nearby bayou, and thrown in. These events occurred at approximately 11:00 p.m. on July 22, 1981. Defendant Carey Smith, Craig Smith, and Jesse Treva-than were arrested for the murder of Rick Whitener on July 29, 1981. Later on the same day, the body of Rick Whitener was recovered from Bayou Blue where it had been placed by the defendant and his co-perpetrators. An autopsy was performed on Whitener’s body, and the cause of death was determined to be multiple gunshot wounds to his head.

TRIAL COURT

Carey Paul Smith was indicted for second-degree murder for the killing of Rick Whitener. Following a trial by jury, defendant was found guilty on March 25, 1983, and sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. This criminal appeal followed.

ASSIGNMENT OF ERROR

Defendant, Carey Paul Smith, contends that the trial court erred in failing to provide an instruction which would give the jury a clear and understandable definition of the term “great bodily harm,” despite the jury’s specific request for such definition.

It is well established that the ruling of the trial court on an objection to a portion of his charge to a jury will not be disturbed unless the disputed portion, when considered in connection with the remainder of the charge, is shown to be erroneous and prejudicial. State v. Perry, 408 So.2d 1358 (La.1982). The court instructed the jury that there was no precise legal definition of “great bodily harm,” and therefore, the term would have to be defined by each juror in accordance with his own best experience. LSA-R.S. 14:30.1 is not unconstitutionally vague. State v. Mitchell, 412 So.2d 547 (La.1982). We find no error or prejudice in this ruling.

This assignment is meritless.

DECREE

Therefore, for the above and foregoing reasons, the defendant’s conviction is affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. David Thomas ELLIS.
    No. 83 KA 0955.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      Ossie Brown, Dist. Atty. by Brenda Cres-well, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Michele Fournet, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

The defendant, David Thomas Ellis, was charged by bill of information with the attempted first degree murder of Clyde Payne in violation of LSA-R.S. 14:27, 30 (Count 1) and attempted armed robbery of Clyde Payne in violation of LSA-R.S. 14:27, 64 (Count 2).

The jury returned a responsive verdict of guilty of aggravated battery to Count 1, and acquitted defendant of Count 2. The defendant was sentenced to five years at hard labor. He has appealed, assigning fourteen errors. Assignments of error one through thirteen were not briefed, and are therefore considered abandoned. Uniform Rules of the Courts of Appeal, Rule 2-12.4.

The victim was shot in the leg with a .38 caliber pistol during an altercation at a car wash in Baton Rouge. The defendant approached the victim and demanded money at gunpoint. The victim refused and a fight ensued, during which the victim was shot by the defendant. Defendant testified to a different version. He stated that he had given the victim $240.00, about two days before the shooting, to obtain drugs for him, and that the shooting was accidental when he tried to get either the drugs or the money back.

In the only assignment of error briefed, defendant contends that the trial court imposed an excessive sentence. The maximum sentence which can be imposed for the crime of aggravated battery is imprisonment at hard labor for not more than ten years. The penalty actually imposed by the trial court was five years, or one-half of the maximum assessable penalty.

The trial judge has wide discretion, though not unbridled, in the imposition of a sentence within statutory limits, State v. Sepulvado, 367 So.2d 762 (La.1979); and given compliance with the sentencing criteria of LSA-C.Cr.P. art. 894.1, the sentence will not be set aside in the absence of manifest abuse of discretion. State v. Washington, 414 So.2d 313 (La.1982); State v. Fleming, 428 So.2d 947 (La.App. 1st Cir.1983).

Article 1, Sec. 20 of the Louisiana Constitution of 1974 prohibits the imposition of excessive punishment. A sentence will be determined to be excessive if it is grossly disproportionate to the crime, or nothing more than the needless imposition of pain and suffering. State v. Guiden, 399 So.2d 194 (La.1981); State v. Bonanno, 384 So.2d 355 (La.1980). The determination turns upon the punishment and the crime in light of the harm to society and whether the penalty is so disproportionate that it shocks our sense of justice. State v. Pearson, 425 So.2d 704 (La.1982).

Sepulvado states that adequate appellate review must consider whether the trial judge gave due consideration to the statutory guidelines and has specifically stated his reasons for imposition of sentence as related to the particular defendant and the crime committed. While the trial judge need not articulate every mitigating and aggravating circumstance presented in LSA-C.Cr.P. art. 894.1, the record must reflect that the judge adequately considered the guidelines in particularizing the sentence to the defendant. State v. Guiden.

A review of the record in the case reveals that the trial judge particularized the sentence, considering the mitigating and aggravating factors as set out in LSA-C. Cr.P. art. 894.1, with respect to Ellis. Some of the factors required to be considered by LSA-C.Cr.P. art. 894.1 include the accused’s personal history, prior criminal record, the seriousness of the offense, the likelihood that another crime will be committed, and the potential for rehabilitation. State v. Trahan, 412 So.2d 1294 (La.1982).

In State v. Cox, 369 So.2d 118, 121 (La.1979), the Supreme Court enunciated its policy in reviewing sentences on the ground of excessiveness:

... [The Court] may vacate a sentence and remand for re-sentencing, when the reasons for an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record.

Moreover, the Court held in State v. Brown, 395 So.2d 1301 (La.1981), that a sentence must be grossly out of proportion to the crime before the appellate court will vacate and remand for resentencing.

The record reflects that the trial judge did not abuse his discretion in sentencing the defendant. He set out the factors which he considered in the sentencing, as follows:

The court having received all information deemed appropriate does, therefore, sentence the defendant as follows: The defendant shall be committed to the custody of the Louisiana Department of Corrections to be imprisoned with hard labor for a period of five years. This sentence shall be served consecutively with any other sentence the defendant may be condemned to serve at this time. The defendant is ordered to pay costs of court to the East Baton Rouge Parish Clerk of Court in the amount of $329.45. In pronouncing this sentence and in accordance with the provisions of Article 894.1 of the Louisiana Code of Criminal Procedure, the court cites that confinement is appropriate because there is an undue risk that during the period of a suspended sentence or probation the defendant would commit another crime, and the court cites that the subject’s juvenile record consists of arrests for aggravated battery, disturbing the peace for which he was counseled and warned and released. His adult record consists of six arrests since 1978 for charges including aggravated battery, simple battery — two counts, misdemeanor theft — one count, forgery — nineteen counts, felony theft— one count, accessory after the fact to fourteen counts of forgery, theft by fraud, attempted second degree murder — two counts, attempted first degree murder — one count, and contempt of court — three counts. In most cases the subject was found either not guilty or no probable cause was found and the court notes that the subject does have two pending charges in the District Court at this time. The defendant is scheduled to be tried on July 11, 1983, before this court for the charge of aggravated battery, which has been reduced — which had been reduced from attempted second degree murder from the arrest of March 17, 1982. The defendant is also awaiting trial on that date on the charge of one count of forgery, which has been reduced from nineteen counts of forgery to one count of felony theft — or in addition to one count of felony theft and accessory after the fact to fourteen counts of forgery and theft by fraud. The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution, and the court cites the defendant’s self-admitted drug addiction and his expulsion from the East Louisiana State Hospital for smoking marijuana while he was undergoing treatment following voluntary admission there for his drug problem.

The court noted defendant’s lengthy history of arrests in imposing sentence. State v. Marchese, 430 So.2d 1303 (La.App. 1st Cir.1983). He noted that, with his history of criminal conduct and admitted problems with drugs, it was likely that defendant would commit another crime. Although the court did not specifically address the question of victim inducement, we note that the record does not establish any prior involvement of the victim with defendant, and the jury obviously did not accept the defendant’s version of the incident.

We hold that the trial judge was within his discretion in sentencing the defendant to five years imprisonment under the circumstances of this case. The judge properly used the criteria as set forth in Article 894.1 of the Louisiana Code of Criminal Procedure. Due to the nature of the present offense and all of the factors considered, a lesser sentence would tend to diminish the seriousness of the crime. The maximum penalty allowable by law for a conviction of aggravated battery is a fine and imprisonment for ten years. The imposition of one-half of the maximum prison sentence allowable is not excessive under the circumstances.

It is clear from the record of the instant case that the jury found the defendant guilty of aggravated battery. The judge was justified in taking the defendant’s pri- or criminal record and any aggravating and mitigating circumstances into consideration in imposing sentence. Therefore, the sentence, which was in the middle of the statutory range (showing that the mitigating factors were given due weight), was within the discretion of the trial judge and not excessive when considering all of the factors involved. In the instant case, the sentence is neither apparently severe nor grossly out of proportion to the crime.

The assignment of error is without merit.

DECREE

For the foregoing reasons, defendant’s conviction and sentence which are the subjects of this appeal are affirmed.

AFFIRMED.

      . The bill of information incorrectly cites the statute for attempted armed robbery. The defense, the prosecution and the trial court all indicated throughout the trial, and on appeal, that they were aware of the relevant statute, and thus we find no reversible error patent on the face of the record. State v. Albert, 430 So.2d 1279, 1281 fn. 1 (La.App. 1st Cir.1983); LSA-C. Cr.P. art. 464. In any event, inasmuch as defendant was acquitted of the attempted armed robbery charge, the issue is moot.