text:
    Johnny TOBIAS v. DEPARTMENT OF STREETS.
    No. CA 1713.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 26, 1984.
    Bernette J. Johnson, Deputy City Atty., Douglas P. Wilson, Chief Deputy City Atty., Salvador Anzelmo, City Atty., New Orleans, for defendant-appellant.
    Johnny Tobias, in pro. per.
    Before GULOTTA, SCHOTT and WILLIAMS, JJ.
   SCHOTT, Judge.

This is an appeal by the Department of Streets of the City of New Orleans from a decision of the Civil Service Commission of the City reinstating Johnny Tobias to the position of Equipment Operator I from which he had been dismissed by the Department.

Tobias was fired for stealing gasoline from the department’s equipment yard on September 3, 1982. He appealed to the Civil Service Commission which referred the case to a referee in accordance with LSA-Const.1974, Art. 10, Section 12. On the basis of the record of testimony taken by the referee the Commission concluded that the Department failed to carry the burden of proof placed on it by Const.1974, Art. 10, Section 8 A.

The Department established that there had been a rash of thefts of gasoline from equipment while it was in the yard overnight. This led the police to place the area under surveillance. Officer Stephen Vil-lere testified that early on the morning of September 3 he and his partner caught Tobias slipping out of the yard through a hole in the fence with a five gallon plastic container filled with gasoline and heading for his truck parked nearby. They arrested him and he was subsequently convicted of theft in the criminal district court.

Tobias denied the theft. He claimed that Villere was the same policeman who had apprehended him some time previously and unsuccessfully attempted to have him convicted. Thus, Tobias charged that Villere was out to get him. He further testified that on the morning of September 3, as was his habit, he had arrived at the yard early, parked his truck near the coffee room, had coffee with some co-workers, and was on his way back to his truck with the intention of moving it to the other side of the yard when he was stopped by the officers. He further testified that he had been convicted of burglary in Mississippi in 1971, had come to work for the city in 1975 as a laborer, and had been promoted twice to reach his present position. He was thirty-six years of age, married with three children, and lived in Algiers which required him to cross the bridge to get to work and led him to the habit of arriving at work early so as to avoid traffic congestion.

His co-worker testified that Tobias drank coffee with him on September 3 and left to move his truck as usual when he heard that Tobias was arrested.

Several workers testified that the only gasoline burning equipment on the yard were two rollers which usually contained no more than five gallons. Everything else burned diesel fuel.

In reversing the Department’s dismissal of Tobias the Commission made the following findings:

“On the surface, this case seemed to be ‘open and shut.’ The appellant had been convicted in criminal court and the testimony of the Police Officer, including the statement of the prior conviction and suspicions of Mr. Tobias, was almost overwhelming. Nevertheless, a careful review of the hearing en toto, including the statements of the witnesses and the appellant, leaves much doubt as to what the actual facts are in connection with the incident which occurred on the morning of September 3, 1982.
The appellant tells a convincing story. It is supported by witnesses whose testimony upholds that story. First, it was never proven that there actually was gasoline in the containers that were found outside the fence of the yard. Secondly, the appellant was not actually seen in possession of the containers. It was verified that the appellant’s truck was parked some distance away from the location of the cans. Based on the testimony of witnesses brought by the appellant, it seems highly unlikely that the amount of gasoline allegedly in the containers could have been acquired from the vehicles in the yard. (The testimony by the City did not refute this contention.)

We have some difficulty with these findings because Officer Villere testified unequivocally that Tobias was carrying a container which contained gasoline. While no chemical tests were made of the substance the officer’s testimony that it looked and smelled like gasoline was sufficient to prove that it probably was. We also recognize that in a case such as this, where the testimony was taken by a referee, the Commission has no advantage over this court in evaluating the credibility of the witnesses as does the usual trier of fact. Under such circumstances we need not defer to the Commission’s determination of the credibility issue. Merchant v. Department of Finance, 391 So.2d 587 (La.App. 4th Cir.1980). Thus, we are free to reject the Commission’s ultimate conclusions of disbelieving Officer Villere and believing Tobias.

We are faced with the Constitutional requirement that the Department had the burden of proof in this case. It presented Officer Villere, whose testimony was directly contradicted by Tobias whose testimony on the cold record does have the ring of truth in it. The Department rested on Villere’s testimony without calling Vil-lere’s partner and without explaining why he wasn’t called. The appropriate standard of appellate review of an action by the Civil Service Commission is to determine whether the conclusion reached by the Commission was arbitrary or capricious. Newman v. Department of Fire, 425 So.2d 753 (La.1983). We are not convinced that the present decision was arbitrary or capricious considering the record before us and, accordingly, the decision is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jack SEGURA.
    No. CR83-640.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    Writ Granted Sept. 28, 1984.

      Richard T. Haik, Haik, Haik, Minvielle & Patout, New Iberia, for defendant-appellant.
    Ralph K. Lee, Jr., Asst. Dist. Atty., New Iberia, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   DOMENGEAUX, Judge.

The defendant, Jack Segura, eighteen years of age, was indicted by an Iberia Parish grand jury on June 1, 1982, and charged with the second degree murder of Todd Broussard, in violation of La.R.S. 14:30.1.

On September 29, 1982, following a trial by jury, the defendant was found guilty as charged by a unanimous decision. On November 16, 1982, defendant Segura moved for a new trial, alleging that his own testimony at the original trial on the merits was fabricated and that he had not murdered Todd Broussard. The defendant alleged that a young man named Lancon had committed the murder. The defendant had originally pled self-defense but there was direct evidence which seriously contradicted that claim. During the hearing on defendant’s motion for a new trial the defendant maintained that Mr. Lancon stabbed the victim first and then defendant stabbed him again, allegedly under duress.

Following a hearing on the motion for a new trial, the trial judge denied the motion. On March 21, 1983, the trial judge imposed a mandatory sentence of life imprisonment. Defendant appeals his conviction and sentence.

The defendant has submitted briefs arguing unparticularized assignments of error. However, as the appellant failed to designate and file assigned errors with the trial court within the time prescribed by La.C.Cr.P.Art. 844, we are precluded from considering those errors on appeal. State v. Zeno, 322 So.2d 136 (La.1975); State v. Walker, 434 So.2d 1315 (La.App. 3rd Cir.1983). Thus, we are limited in this appeal to a consideration of those errors that are discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence, i.e., patent errors. La.C.Cr.P.Art. 920(2).

The defendant was indicted on April 24, 1982, by an Iberia Parish grand jury. The bill of indictment was in proper form, signed by the grand jury foreman and by the district attorney.

On June 17, 1982, the defendant, accompanied by retained counsel, appeared before the court, waived arraignment and entered a plea of not guilty. The court minutes reflect that the defendant was present during the selection of the jury, at all times during the trial, and was present when judgment was rendered.

The defendant requested a trial by jury and was subsequently tried before a twelve person jury. The defendant was charged with violation of La.R.S. 14:30.1, a crime punishable by a mandatory sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The charge constitutes a felony offense which must be tried before a twelve (12) person jury returning a vote of guilty by at least ten jurors. The defendant was found guilty by a unanimous decision. The sentence imposed, life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, falls within the statutory limits.

The minutes of the court reflect the sentence imposed. Sentencing was had after proper delays following a pre-sentence investigation.

There is no question presented herein as to the constitutionality of La.R.S. 14:30.1.

We have conducted a careful examination of the record before us pursuant to the provisions of La.C.Cr.P.Art. 920, and finding no errors patent on the record, we hereby affirm the conviction and sentence imposed upon the defendant by the district court.

AFFIRMED.


author: REDMANN, Chief Judge.

text:
    Samson THOMAS v. DEPARTMENT OF WELFARE.
    No. CA 1096.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1984.
    Lawrence M. Lehmann, Midlo, Lehmann, Norman & Rihner, New Orleans, for plaintiff.
    Salvador Anzelmo, City Atty., Douglas P. Wilson, Chief Deputy City Atty., Bernette J. Johnson, Deputy City Atty., New Orleans, for defendant.
    Before REDMANN, C.J., and BARRY and WILLIAMS, JJ.
   REDMANN, Chief Judge.

A classified employee appeals from a decision of the New Orleans civil service commission that reversed his dismissal but ordered him suspended without pay from the date of the reversed dismissal until the date of the commission’s decision. The employee seeks reversal of the suspension without pay or reduction of its period to 120 days, the maximum that an appointing authority could have imposed under commission rules. The employer by answer to the appeal seeks restoration of the dismissal. We affirm.

We have denied plaintiff’s motion to dismiss the answer to the appeal as untimely. The answer was filed within 15 days, La.C.C.P. 2133, of the lodging of the transcript portion of the record and is therefore timely; Deutsch, Kerrigan & Stiles v. Rault, 389 So.2d 1373 (La.App. 4 Cir.1980), writ refused 396 So.2d 883 (La.1981).

We now reject that answer’s argument that we should reinstate the firing of the employee. We might ourselves have upheld the firing, and we could easily have affirmed the commission had it done so. But the judgment of the commission was that the proven incidents were not so grave as to constitute cause sufficient for dismissal. This case is therefore different from Branighan v. Department of Police, 362 So.2d 1221 (La.App. 4 Cir.1978), where the commission conceded that cause to fire did exist. Branighan ruled that when sufficient cause does exist, it is the appointing authority (the employer) and not the commission that has the discretion to fire or not. But the courts must also recognize that the commission has the duty and therefore the inescapably necessary discretion to decide whether cause is sufficient to justify firing. “In judging the commission’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, the court should not modify the commission’s order unless it is arbitrary, capricious or characterized by abuse of discretion.” Walters v. Department of Police, 454 So.2d 106, 114 (La.1984). We cannot so describe the commission’s action in this case.

The commission did agree that the employee was at fault in two incidents of some seriousness. First, the employee (an institutional counselor) let two boys just admitted to an institution sleep rather than have their baths, call their parents, etc., as departmental rules require. The commission deemed this an “error of judgment” but not “serious enough for termination.” Second, the employee was insubordinate in insisting on talking with two boys about a head-knocking incident while an investigation was still underway. Here, too, the commission thought the insubordination not serious enough to warrant firing because by the time it occurred the supervisor had already interviewed the boys individually and therefore the employee’s talking to the boys could not produce the serious interference with the investigation (affecting the boys’ stories) intended to be avoided by the order not to do so.

The commission found the relationship between the employee and his superintendent very strained. Noting that the employee must obey his superior, the commission nevertheless concluded that the employee’s other violations (e.g., tardiness, missing meetings) did not, when added to the two more serious incidents, warrant termination.

We cannot say that that determination was “arbitrary, capricious, or characterized by abuse of discretion.”

We also affirm the commission’s decision denying back pay to the employee for the period between his firing and his restoration to his employment. The commission substituted the penalty of “suspension” for firing. The employee argues that, because the appointing authority only had authority to impose “suspension without pay not exceeding ... 120 days ...,” the commission itself could not “suspend” for over 120 days without pay.

We respond that the authority also had no authority to suspend with pay for over 120 days. At issue is not the appointing authority’s power to suspend an employee without future pay (for the period of the suspension specified by the authority), but the commission’s power to reinstate a fired employee without back pay (for the period from firing to reinstatement, not specified by anyone but affected by many factors over which the appointing authority may have no control). Formerly, La. Const. 1921 art. 14 § 15(0)(3) provided that the commission, upon reinstating an employee, “may order full pay for lost time.” That detail was omitted from the greatly-condensed 1974 constitution. But that omission does not warrant a reading that the commission now “may not” award back pay — nor a reading that it “must” award back pay — to reinstated employees. The employee cites no authority that would deprive the commission of its discretion to order back pay or not, depending on the circumstances.

The employee cites only a rule that was adopted after his termination, that expressly provides that the commission’s modification of disciplinary action “may include reducing the penalty of a dismissal to that of a suspension for a period in excess of ... 120 calendar days.” The employee argues that this rule cannot justify the commission’s action in his case because it was not in force at the time he was dismissed. We have already expressed our view that no rule is necessary to allow the commission to award back pay, and none is necessary to allow it to deny back pay, when reinstating an employee. Perhaps the rule was adopted to make clear that, although another rule prevents an appointing authority from suspending over 120 days without pay, that other rule does not apply to the commission (as we have ourselves concluded above). In any case, the cited rule does not by implication oblige the commission to award back pay in cases of dismissals prior to its enactment.

Affirmed.


text:
    Rosemary BRUMFIELD v. BORDENAVE ACCEPTANCE CORPORATION.
    No. CA 1729.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1984.
    Warren J. Pickle, George Troxell, New; Orleans, for plaintiff.

      Rodney J. Madere, Metairie, for defendant.
    Before REDMANN, C.J., and GARRISON and BARRY, JJ.
   REDMANN, Chief Judge.

Plaintiff appeals from the dismissal on exceptions of her attempted class action, challenging a practice of stipulating fixed-percentage attorney’s fees in notes, when Louisiana law (see Leenerts Farms, Ins. v. Rogers, 421 So.2d 216 (La.1982)) allows only a reasonable fee. We affirm.

Defendant finance company obtained a judgment by default against plaintiff for a $984.32 balance on a note with specified interest from date of judgment, plus 25% attorney’s fees. Thus the attorney’s fee that defendant was condemned to pay was $246.08 (as of the date of the judgment).

An attorney’s fee of $246.08 for reviewing a loan file and note, preparing a form petition, filing it, checking service upon the defendant, taking a default judgment by proving the claim, and obtaining execution, cannot be said to be an unreasonably high fee.

Our plaintiff is therefore not among, and therefore cannot represent, the class of persons who have been harmed by the alleged concerted action of lenders in including in loan contracts a fixed-percentage attorney’s fee provision.

Plaintiff’s petition affirmatively shows that plaintiff has no right of action, “no interest in the plaintiff to institute the suit,” La. C.C.P. 927.

Affirmed.


author: BOUTALL, Judge.

text:
    Edward MAGEE, v. JEFFERSON RENTAL, J-R Equipment Corporation, Desa Industries, and Best Construction Equipment Co.
    No. 5-330.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 30, 1984.

      C. David Schumacher and Carl J. Schu-macher, Jr., Schumacher Law Corp., Ltd., New Orleans, for Edward Magee, plaintiff-appellee.
    Russell M. Cornelius, Normann & Nor-mann, New Orleans, for Desa Industries, Inc., defendant-appellant.
    Charles W. Schmidt, III, Christovich & Kearney, New Orleans, for Industrial In-dem. Corp., intervenor-appellee.
    Before BOUTALL, KLIEBERT and DU-FRESNE, JJ.
   JUDGMENT ON REHEARING

BOUTALL, Judge.

This is an appeal by a manufacturer from a judgment awarding a workman damages based on product liability, amended to include payment by preference of worker compensation benefits paid. We affirm the judgment.

This matter comes before us on rehearing after a rather long and tortuous process through the courts. In brief, Edward Magee, a forty-two year old manual laborer, brought suit against the manufacturer of a concrete saw, appellant Desa Industries, Inc. and others for damages and injuries arising out of the operation of the saw. After a lengthy trial, judgment was rendered on January 13, 1981 in favor of Desa Industries dismissing plaintiff’s suit. Thereafter new trial was granted and at the conclusion of that trial, the court rendered judgment on December 1, 1981 in favor of plaintiff Edward Magee against Desa Industries in the amount of $309,-174.26, which was later amended by stipulation to provide for reimbursement by preference out of this amount to Magee’s worker’s compensation insurer. On this appeal we originally rendered a judgment decreeing that the motion for new trial came too late, that the first judgment became executory, and there was no jurisdiction for us to entertain the appeal from the second judgment. 434 So.2d 421.

Magee then applied to this court for a rehearing presenting us with a statement by the trial judge which indicated that the new trial may have been timely granted. Accordingly, we granted rehearing and remanded this matter to the trial court for a factual determination of the events surrounding the new trial. This matter is now back before us.

For the reasons expressed in our original decree, the motion for new trial filed by the plaintiff came too late. However, the evidence obtained on remand causes us to conclude that the controlling date for the grant of new trial was not the date upon which the mover’s attorney actually filed the motion for a new trial, but the date of January 20, 1981 on which date there was a conference between the mover’s attorney and the judge. At that conference, the judge realized that there was some confusion as to the evidence in this case and decided to grant a new trial, so notifying the attorney. Apparently the judge concluded that a new trial should be granted because this was a case in which enforcement of the judgment would be inequitable and unconscionable and the later hearing confirmed his belief. See for comparison Pfeiffer v. Hemisphere International Corp., 153 So.2d 467 (La.App. 4th Cir.1963) and Hairston v. Monroe Gas Corp., 308 So.2d 809 (La.App.2nd Cir.1975).

By virtue of Code of Civil Procedure article 1971, the trial judge is authorized to grant a new trial on his own motion. However, in this case nothing was placed in the record except the formal later-filed motion of the attorney, which afforded opposing party a chance to be heard on the issue. The grant of a new trial is not a final judgment which requires the formalities of a final judgment under the provisions of C.C.P. arts. 1911 and 1841. We hold that the judge’s determination on January 20, 1981 is controlling as to the grant of new trial. Because that date is within the time allotted for grant of new trial, the subsequent new trial was timely applied for.

Accordingly, we hold that our original decree was in error and that this court does have jurisdiction to entertain the merits of the appeal from the judgment of December 1, 1981.

ON THE MERITS

Plaintiff Edward Magee was an unskilled laborer employed by Young America Corporation on one of their construction sites. His duties were mainly cleaning and sweeping with odd chores as he may be called upon to do. On January 17, 1984, he was asked to use a rented concrete saw to cut an improperly laid slab, and while he was so engaged, the cutting wheel shattered and a portion of it lodged in Magee’s forehead. The resulting injuries and damages formed the basis of this law suit.

Magee filed suit against the manufacturer of the saw, Desa Industries, Inc., the manufacturer of the blade guard, Bodine Aluminum, the manufacturer of the abrasive cutting wheel, Edmar Abrasive, the renter of the saw, Jefferson Rental (J.R. Equipment Corporation), and the supervisor who ordered him to use the saw. The other defendants were dismissed from plaintiff’s suit, and plaintiff proceeded to trial only against Desa Industries, the manufacturer. From an adverse judgment in the amount of $309,174.26, Desa appeals.

In arriving at this judgment, the trial judge rendered detailed and cogent reasons both in fact and in law upon which he based the judgment. We agree with both his reasons and the applicable law and we affirm. In reaching this determination, we have considered the factual findings of the trial court not by the usual standard of appellate review, i.e. whether the findings of the trial court are manifestly erroneous, but upon the standard of whether there is a preponderance of the evidence in support thereof. Our examination of the evidence causes us to conclude that there is a preponderance in favor of plaintiff.

The basis of Magee’s suit is that Desa Industries manufactured a concrete saw which contained a defective blade guard. When the abrasive wheel or blade flew apart while Magee was cutting the concrete, a portion of the blade went through the guard and flew up lodging in plaintiffs head. The overwhelming evidence shows this to be a fact.

The standard which sets out the liability of a manufacturer is stated in Weber v. Fidelity and Casualty Insurance Company, 250 So.2d 754 (La.1971). We quote at pages 755 and 756:

“[1, 2] A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i.e., unreasonably dangerous to normal use, and that the plaintiffs injuries were caused by reason of the defect. (Citations omitted)
“[3] If the product is proven defective by reason of its hazard to normal use, the plaintiff need not prove any particular negligence by the maker in its manufacture or processing; for the manufacturer is presumed to know of the vices in the things he makes, whether or not he has actual knowledge of them.” (Citations omitted)

As we view the evidence, the blade guard furnished by Desa with its machine was made of an aluminum alloy which was simply not strong enough to withstand the impact of an exploding wheel, permitting a shard of the blade to pass through and injure the user of the machine. The safety standards show that the composition of the safety guard is preferred to be of iron or steel, and that if other material is used, that materia] must still have enough strength to withstand passage of the wheel through it. The evidence shows that it is common knowledge that the abrasive wheels do fly apart because they are composed of an abrasive material bonded together by a bonding agent. Accordingly care must be taken to prevent broken parts from flying around because of the great speed at which the wheel is rotated. Indeed, a flying piece of wheel may be compared to a speeding bullet or similar projectile.

Nevertheless, defendant argues that its blade guard is sufficient to protect the operator, and suggests to the court that somehow the blade guard was damaged due to the use given it after being purchased by Jefferson Rental, and that they are relieved of liability either through negligent care or operation, or failure to correct prior damage. While these suggestions are possibilities, there is no evidence to show that any of them occurred. Additionally, if Desa’s position is that the blade guard could be easily damaged by being knocked out of position, or weakened because of prior contact with the abrasive material striking it, then Desa is under an obligation to warn purchasers and prospective users of these foreseeable dangers so that they may be reasonably avoided. See Chappuis v. Sears Roebuck and Company, 358 So.2d 926 (La.1978). The evidence preponderates that the blade guard was defective and unreasonably dangerous to normal use, and we so hold.

Similarly, we do not find contributory negligence on the part of plaintiff Magee. He was an untrained operator and this is the first time he ever attempted to operate such a machine. There is a considerable question as to how deep a cut Magee was attempting to make with the machine and whether that operation may have caused the wheel to fly apart. The evidence does not show that his operation was so improper as to cause the wheel to fly apart. The testimony of his co-workers would seem to corroborate that he was operating it within normal procedural limits. In any event, the guard should have been designed to prevent penetration of a breaking wheel through the guard and from that standpoint alone, it matters little what caused the wheel to break. We find the use of the machine to be within the foreseeable application by its prospective users.

For the foregoing reasons, we hold that Desa Industries is liable to plaintiff for his injuries, and we also affirm the trial judge’s conclusion as to the amount.

Magee was 42 years old when the piece of saw blade struck him in the forehead penetrating into the right frontal lobe of his brain. The trauma caused the loss of some brain tissue, and the operation required the removal of more brain tissue. He was subsequently hospitalized to install a plastic plate where a portion of his skull was removed.

During his hospitalization he developed an acute organic brain syndrome and became violent necessitating psychiatric treatment. He has been treated intermittently since his accident by several doctors, and has been a patient at the Veterans Administration Hospital. Both the medical and lay testimony show that he continues to suffer from epileptic seizures, some Grand Mai seizures and some of lesser degree despite his medication. One such seizure caused him to lose control of his automobile while driving and have a collision. In other episodes, he has fallen, receiving slight injuries, in addition to which he sometimes bites his tongue and lips during seizures. The evidence shows that he is effectively prevented from work because of these seizures, and that he will have to refrain from placing himself in dangerous positions when a seizure may occur. He will be required to be on medication for the rest of his life to control the seizures, and this imposes further restraints upon his personal habits and life style.

The trial judge awarded Magee damages for loss of past and future wages, past and future medical expenses, past pain and suffering and future pain and suffering, together with loss of brain tissue, epileptic seizures, headaches, loss of memory and personality changes, for sums which he itemized amounting to a total of $309,-174.26. We do not see the necessity of going into these various items in great depth because they are obviously supported by the record and within the trial judge's discretion.

The last issue for our resolution is the contention of appellant Desa Industries that this damage award should be reduced because the other defendants were jointly liable with Desa. The plaintiff settled with the other defendants prior to suit and proceeded solely against Desa. As a result, Desa reasons that it is only responsible for its virile share.

Our examination of the record does not support Desa’s argument. The preponderance of the evidence shows that Desa was liable for manufacturing a defective concrete saw, in that the blade guard was insufficient and unreasonably dangerous. There is no showing that Bodine, which actually made the blade guard for Desa, made it in any way other than under Desa’s specifications. There is no evidence that the saw blade itself was defective and there is no responsibility upon Edmar, the manufacturer of the blade. There is no evidence that Jefferson Rental caused the saw to be defective or caused it to be damaged such as to make it dangerous or cause the particular accident complained of. Accordingly, there is no basis upon which Desa can be said to be jointly liable with any of the other three defendants. Desa argues that because of the lateness of settlement, i.e. the original trial date, that it was handicapped in its attempt to produce such evidence. However, this trial took place over a period of months and the new trial was not had until an even greater period of months. At that time it was submitted upon the record as already taken. Certainly Desa cannot complain of lack of opportunity at this time.

For the reasons enumerated above, the judgment appealed from is affirmed at appellant’s costs.

AFFIRMED.


author: BOWES, Judge.

text:
    STATE of Louisiana, v. David MICHAEL.
    No. 83-KA-800.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 30, 1984.
    Dorothy A. Pendergast, Asst. Dist. Atty., Parish of Jefferson, Gretna, for plaintiff-appellee.
    Martha E. Sassone, Staff Appeals Counsel, Indigent Defender Bd., Gretna, for defendant-appellant.
    Before KLIEBERT, BOWES and GAU-DIN, JJ.
   BOWES, Judge.

David Michael was charged by a bill of information in the 24th Judicial District Court with two counts of possession of cocaine, violations of R.S. 40:967. The record reveals that originally there were at least three bills of information filed charging various combinations of the defendants involved in this case with narcotics offenses. These bills were ordered transferred to one division of court and were consolidated for trial. Since they involved a single fact situation, the District Attorney filed a single all embracive bill of information joining the matters as counts. This bill of information was numbered as 82-3822 and it is this bill and the accompanying record that has been lodged on appeal. As noted previously, the appellant is only charged in counts 1 and 2 of the combined bill.

The record does not specifically show that Michael was arraigned on either count. This, however, is of no importance since failure to conduct an arraignment does not constitute error patent. La.C.Cr.P. art. 555 provides:

Any irregularity in the arraignment, including a failure to read the indictment, is waived if the defendant pleads to the indictment without objecting thereto. A failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.

On January 20, 1983, the trial judge consolidated for hearing the Motion for Disclosure of Name and Address of Confidential Informant, and the Motion to Suppress. At the conclusion of the evidence on January 21, 1983, the judge denied the disclosure motion and took the Motion to Suppress under advisement. On January 24, 1983, Michael returned to court and entered a plea of guilty to count one of the information. During the plea colloquy, the judge denied the Motion to Suppress previously taken under advisement.

Although a sentence of ten (10) years at hard labor and a fine of $10,000.00 had been agreed to by the defendant as a condition of the plea bargain, imposition of the sentence was deferred until May 13, 1983. On that date the trial judge committed Michael to the custody of the Department of Corrections for a term of only six years at hard labor. A fine of $10,000.00 and court costs were to be paid within six months of Michael’s release from prison. Following the imposition of sentence, Michael moved for an appeal and his motion was granted.

FACTS

On the morning of July 20, 1982, Agent Devlin of the Jefferson Parish Sheriffs office, Narcotics Division, met with a confidential informant (C.I.), referred to during the suppression hearing as “Robert”, “Bobby”, or “Bobby Benedict”. The informant advised Devlin that he knew a man by the name of David who was interested in selling about five ounces of cocaine. Devlin instructed the C.I. to set up a buy. Later that day the C.I. again contacted Devlin and told him that “David” was in the parking lot of Bennigan’s Restaurant. Devlin agreed to meet the C.I. there, so that the C.I. could arrange an introduction. Devlin arrived at the parking lot at about 2:10 p.m., surreptitiously accompanied by several other agents. Devlin met with the C.I. and together they walked to the location where David’s automobile was parked. The C.I. introduced the two and then left the area. Agent Devlin made a request to see the cocaine he was to purchase and the man known as “David” removed a clear plastic bag containing a white powder from a paper bag on the front seat of his car. Devlin indicated that he had to return to his car to get the money to complete the transaction, and he moved away, gave a pre-arranged signal to the waiting agents who moved in and arrested “David” for possession of cocaine. “David” was subsequently identified as David Michael.

The agents then requested the defendant to give consent for the search of his room at the Landmark Hotel. Although the agents testified that the defendant was cooperative, the consent forms were not completed at the arrest location. Ostensibly because a thunderstorm moved into the area, the agents returned to the Narcotics Bureau a short distance away to finish the paperwork. At approximately 3:15 p.m., the consent forms were signed. By 3:45 p.m. the agents arrived at the Landmark Hotel, accompanied by the defendant. After ascertaining that Michael was the sole registered occupant of the room, the agents entered, using his key. Two persons were within, watching television. They were frisked for weapons and immobilized during the search proceedings.

Approximately five ounces of cocaine were found on the dresser. Within an open briefcase on the table, an additional quantity of cocaine was discovered. Since it was ascertained that the briefcase belonged to Michael’s guests, they were also arrested and charged as co-defendants. Later, a search of their motel room uncovered more cocaine.

DISCUSSION

The defense filed four assignments of error in the trial record:

1. The trial court committed reversible error in denying the Defendant’s Motion to Suppress.
2. The trial court committed reversible error in denying Defendant’s Motion to Disclose the Name and Address of the Confidential Informer.
3. The trial court committed reversible error in denying Defendant’s Motion for an In Camera Examination of the Confidential Informer.
4. The trial court committed reversible error in imposing a cruel, unusual, and excessive sentence.

One additional assignment was alleged in the supplemental record lodged in this court on December 13, 1983:

The trial court committed reversible error in accepting defendant’s plea of guilty, which plea was not freely and voluntarily made.

We find the defendant has waived review of assignments of errors 1, 2, 3 and 5. Nevertheless, we have reviewed these assignments and find that they contain no merit.

The following is excerpted from the plea colloquy of the appellant on January 24, 1983:

THE COURT:

I guess I should have ruled on the Motion to Suppress. I’m going to deny the Motion to Suppress. Let the record reflect that.
Do any of the defendants intend to take any appeals from that ruling, Mr. Barnett?
MR. BARNETT:
Not on behalf of Mr. Coll, Your Honor. THE COURT:
How about Mr. Escher? [counsel for defendant, David Michael]
MR. ESCHER:
Yes, I’d like to take an appeal on the Motion to Suppress and also the motion to disclose the confidential informer. You are denying that. Do you want me to approach the Bench, Your Honor?
THE COURT:
Yes.
(Let the record reflect that Mr. Escher approaches the Bench.)
THE COURT:
Hard labor means the state penitentiary, whether they accept them at a satellite or any other form of the Department of Corrections doesn’t matter. I just want to make sure the defendants understand what hard labor is.
Let me hear again, Mr. Escher—
MR. ESCHER:
Your Honor, at this time we do not wish to reserve any assignments of error on my motion rulings, [emphasis ours]
THE COURT:
How about you, Mr. Mancuso?
No. Your Honor, we do not plan to pursue any appeal in this matter.
THE COURT:
Did the defendants understand that there will be no appeals taken on the Motion to Suppress?
(Let the record reflect that all three defendants answered in the affirmative) [emphasis ours]
[...]
THE COURT:
In the event of a conviction, you would have a right to appeal at all stages of the proceedings. Included in the appeal, you would have a right to have an attorney represent you during the trial stages of these proceedings.
By entering this plea of guilty, you are now waiving and giving up these rights to have an attorney represent you during the appeal stages of these proceedings. Do you understand that?
(Let the record reflect that all three defendants answered in the affirmative.)
THE COURT:
You would have the right to have an attorney represent you on appeal. Okay, the only thing left to appeal after this is for the jurisdiction of the Court and the sentence the court may impose. Do you understand that?
(Let the record reflect that all three defendants answered in the affirmative.)

From the foregoing colloquy, (and other portions of the record), it is apparent that the astute trial judge was very explicit and extremely careful to make it absolutely clear on the record that neither the defendant, Michael, nor his counsel, George Escher, specifically reserved appellate rights at the time of the plea. Quite to the contrary, the dialogue between the court, the defendant, and defense counsel unmistakably indicates — not once, but three times — that both the defendant and his counsel clearly understood that they specifically waived appellate review of all non-jurisdictional defects prior to Michael’s plea. Further, at item nine of the Defendant’s Acknowledgment of Constitutional Rights and Waiver of Rights on Plea of Guilty form, the defendant indicated “No” to the following question: “Do you intend to appeal any rulings or orders entered by the Court pri- or to your guilty plea?”

Although, within a Motion for Appeal filed on the day of sentencing, the defendant through counsel asserted “that his guilty plea was entered only after the trial court had ruled adversely on several pre-trial motions” and moved to appeal under the authority of State v. Crosby, infra, such request does not preserve the right to appeal those issues, even though an appeal is granted by the trial court.

In State v. Moore, 420 So.2d 1099, 1100 (La.1982), the Louisiana Supreme Court stated: “[i]t is well settled that entry of an unqualified plea of guilty waives all non-jurisdictional defects occurring prior thereto, and precludes review thereof either by appeal, or where appeal is unavailable by supervisory review.” [emphasis added]

In State v. Crosby, 338 So.2d 584 (La.1976), an exception was made to the general rule. The court held:

For the reasons more fully articulated below we have determined that we are not barred from reviewing the assignments of error specifically reserved at the time of the plea of guilty, where the trial court accepted the plea of guilty so conditioned (which the court had discretion to refuse, if proffered upon such reservation), [emphasis added].

Crosby, supra at 588.

The court in Crosby observed that at least three American jurisdictions permitted appellate review of pre-trial rulings refusing to suppress evidence as illegally seized, even upon entry of an unqualified plea of guilty. But it did not adopt that policy. Later cases confirm that the holding of Crosby was to be strictly interpreted. The failure of the defendant to expressly stipulate that he was reserving his right to review at the time he entered a guilty plea would result in a waiver of that right. See State v. Moore, supra; State v. McKinney, 406 So.2d 160 (La.1981).

Consequently, the defendant has no right to appeal assignments one, two, three and five and these are improperly before this court. We feel constrained to add that we question the good faith and integrity of an appeal after one has made a crystal-clear agreement or bargain with the trial judge on the record and then tries to circumvent the terms of that agreement by clever manipulation. We will not honor nor consider this clever, but distasteful, effort.

ASSIGNMENT OF ERROR NUMBER 4

The trial court committed reversible error in imposing a cruel, unusual, and excessive sentence.

Although the jurisprudence permits an appeal of the sentence imposed, despite the entry of a plea of guilty, the Supreme Court held in State v. Bell, 412 So.2d 1335, 1336 (La.1982), that “where a specific sentence has been agreed to as a consequence of a plea bargain, that sentence cannot be appealed as excessive and there is no need for the trial judge to give reasons for the sentence as required by Article 894.1_” This court has recently subscribed to that position in State v. Blaine Meredith, 447 So.2d 1207 (La.App. 5th Cir.1984) and we see no reason to alter our stand. Moreover, we are astounded by the unmitigated brashness of the defendant to ask us to review as excessive a sentence 40% less than the sentence to which he agreed at the time of his plea bargain, and which was approximately 10% of the maximum sentence he could have received prior to plea bargaining. In addition, the record reveals that Michael had a previous conviction for possession of cocaine and could have been “double-billed” by the State.

Therefore, for the reasons stated above, the conviction and sentence of the defendant is affirmed.

AFFIRMED.


author: GRISBAUM, Judge.

text:
    STATE of Louisiana, v. John SCOTT.
    No. 83-KA-510.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 30, 1984.

      Daniel T. McKearan, Jr., Harahan, for defendant-appellant.
    Dorothy A. Pendergast, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
    Before BOWES, GRISBAUM and DU-FRESNE, JJ.
   GRISBAUM, Judge.

John Scott was charged by Bill of Information with armed robbery in violation of La.R.S. 14:64. On March 16, 1982 he was arraigned and pleaded not guilty. Thereafter, a trial was commenced on December 13, 1982, and on the following day the jury returned a verdict of guilty as charged. On February 11, 1983, the defense appeared and filed a motion in arrest of judgment, which was denied. The defense also moved for a new trial and a judgment of acquittal or alternatively a modification of the verdict. These motions were also denied. The trial judge sentenced the defendant to five years at hard labor without benefit of parole, probation, or suspension of sentence with credit for time served. From this conviction and sentence the defendant now appeals. We affirm.

The defendant assigned as errors the following:

(1) The failure of the District Attorney to prove what he stated he would prove in his opening statement in that an automobile license plate number would be introduced connecting the robber’s car with one owned by the defendant.
(2) The Court’s admission into evidence of clothing, money, and a gun taken from the defendant, when not shown to be the clothing worn by the robber or the gun used in the robbery.
(3) The jury’s verdict is contrary to the law and evidence and is contrary to the dictates of Jackson v. Commonwealth of Virginia, 443 US 307, 99 Sup.Ct. 2781, 61 L.Ed. 560, and deprives the defendant of his rights under the 5th and 14th Amendment to the Constitution of the United States in due process clauses thereof; and further contrary to the Laws of the State of Louisiana Article 1, Sections 2 & 3 and the due process clauses thereof. Defendant complains that the State’s evidence was insufficient to prove every element of the crime and overall the evidence when considered in its entirety, presented by both State and defendant, failed to establish the guilt of defendant beyond reasonable doubt, contrary to the ruling in Jackson v. Commonwealth of Virginia, “That no reasonable, rational trier of facts should find the defendant guilty under this circumstance and evidence.”
(4) Court’s denial of post-trial motion for acquittal or in the alternative for modification of judgment and motion for new trial.

Three issues are raised:

(1) Whether the district attorney’s reference in his opening statement to an automobile license number, which was subsequently at trial held inadmissible (as hearsay), caused substantial prejudice requiring a reversal of the trial court judgment;

(2) Whether the clothing, cash, and gun taken from the defendant at the time of his arrest were improperly admitted into evidence due to irrelevancy or undue prejudice;

(3) Whether the trial court erred in denying the defendant’s post-trial motion for acquittal or in the alternative for modification of judgment based upon insufficiency of the state’s evidence under the review as set out in Jackson v. Commonwealth of Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

On December 23, 1981, Ms. Lisa Marie Cooper who was employed as assistant manager of the Tenneco store located at the corner of Barataría and the Westbank Expressway in Marrero, Louisiana, was robbed. At about 7:30 p.m. the Tenneco lot was empty when a man drove up in a red car. A woman seated on the passenger side called Ms. Cooper over to the car to ask for directions. As the victim leaned over to look into the car, the woman looked over to the driver, at which time Ms. Cooper’s attention was directed to him. She saw he was wearing a red flowered shirt and a black jacket and was pointing a gun at her. Ms. Cooper testified she generally carried a small money pouch with her in order to facilitate collection from customers and in order to make change. The man told her to place the money pouch into a bag in his car. He appeared to be agitated and upon her hesitation, he repeated the order at which time she dropped the bag. The car then sped off, and Ms. Cooper was able to see the license plate number which she memorized, repeating it to herself over and over until she was able to get back to the booth and signal the police. When the deputies arrived, she gave them the license number. About an hour later, she was presented with a photographic lineup consisting of five black and white mug shots. She picked out one photograph, and on its back she signed and dated it and noted it was of the man who had robbed her of about $250. The person in this photograph was the defendant, John Scott.

ISSUE ONE

The district attorney, in his opening statement, referred to a license plate number which was never introduced into evidence. The pertinent part of the district attorney’s statement is as follows:

... Detective Gordon will tell us how he went to the scene, and how through investigation, he learned that — not only the description of the perpetrators but also a license number ... took the license number and through police work, identified the vehicle that was driven by the holdup people, belonging to John Scott.

The defendant suggests that as a result of the district attorney’s opening statement, the jury made a leap of faith as to the course of the investigation which ultimately led to the defendant’s identification and arrest. Because the State failed to produce the listing and properly present it when the State’s witness, Detective Gordon, began to mention it at trial, the defendant’s objection to the admission of this testimony was sustained as hearsay.

Article 766 of the Louisiana Code of Criminal Procedure states that the State’s opening statement shall explain the nature of the charge and set forth, in general terms, the nature of the evidence by which the State expects to prove the charge. In State v. Green, 343 So.2d 149, 151 (La.1977), the court stated:

The general rule is that, absent bad faith on the part of the prosecutor or clear and substantial prejudice, the reference in the opening statement to evidence later ruled inadmissible is not a ground for a mistrial. The rule takes into account that proof frequently falls short of professional expectations.

Additionally, the court in Clark v. Blackburn, 605 F.2d 163, 165 (5th Cir.1979), citing Green, supra, held that under Louisiana law, failure to prove a part of the prosecution’s opening statement does not constitute grounds for reversal.

The defendant has not alleged or proven bad faith on the part of the prosecution, and we find there is no clear and substantial prejudice to the defendant resulting from the district attorney’s opening statements. The reference by the district attorney to the match-up of the license number of the robber’s car to the defendant was very brief, a mere summarization of his investigation, and devoid of any particular evidentiary fact. The victim testified at trial that the robber drove up in “a red car, a Monte Carlo or something, a Pontiac ...” and, similarly, Detective Gordon testified the defendant was occupying a red Pontiac with a black top at the time of his arrest, and the victim identified a photograph of the defendant. Thus, the jury could have connected the defendant with the car used in the robbery without the introduction of any public record of license plate numbers, and there is sufficient evidence to connect the defendant with the crime for which he is charged independent of any inference in the district attorney’s opening statement.

ISSUE TWO

Scott contends a flowered shirt, black leather jacket, gun, and cash, all of which were taken from him at the time of his arrest, were improperly admitted into evidence due to irrelevancy and undue prejudice. According to Detective Gordon, Scott was wearing a “flowered type shirt with yellow pineapples and green leaves and a blue jean jacket,” at the time of the arrest. A multi-colored flowered shirt and a black jacket which matched the description by the victim of the clothing worn by the armed robber was seized inside Scott’s house at the time of the arrest. Scott submits that prior to the time of his arrest outside his house, there had been no opportunity to go into the house undetected to change his clothes.

To the contrary, the record reflects the robbery was committed at 7:30 p.m. and the defendant was arrested at his home at 12:30 a.m. The police officers had been waiting at the defendant’s house from 11:30 p.m. Therefore, the defendant and his wife had approximately four hours from the time of the robbery in which to return home and place the multi-colored shirt and black leather jacket inside.

On the night of the arrest, a Ruger .357 Magnum revolver was recovered from the front seat of the defendant’s car and $291 in small bills was found in the defendant’s wife’s purse which she had brought into the house when she arrived. The defendant submits the gun found on the front seat was a necessary tool for his employment as a security guard, thus unconnected to the crime and irrelevant. The gun used by the perpetrator was described by the victim as being a .38 with a silencer on the end of the barrel, whereas the defendant’s gun was a .357 with neither a silencer nor an attachment for the same. The victim stated at trial her knowledge of guns was acquired from watching television.

Louisiana Revised Statute 15:441 provides in pertinent part:

Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.

Determination of admissibility by the trial court is within its sound discretion and such a ruling will not be disturbed on appeal unless there is a clear abuse of discretion. State v. Chaney, 423 So.2d 1092, 1100 (La.1982). We find each of the items of evidence was directly connected to the accused, having been taken either from his car or his house at the time of his arrest, and it falls to the jury to determine the weight of the evidence in relation to the crime charged. State v. Robertson, 421 So.2d 843, 845 (La.1982). If there had been any weaknesses or inconsistencies in the evidence and witnesses’ testimony, the jury had all evidence before it and was in a position to make this determination.

More importantly, the defendant’s objection was not properly preserved for review on appeal. Louisiana Code of Criminal Procedure article 841 provides that an error at trial cannot be the subject of an appeal unless it was objected to contemporaneously and the grounds for objection given. No grounds for the objection are included in the transcript.

ISSUE THREE

Scott contends the jury’s verdict is contrary to the law and evidence, and specifically contrary to the testimony of his relatives who supported his alibi that he was at a party at the time of the robbery.

In addressing whether the trial court erred in denying the defendant’s post-trial motion for acquittal or in the alternative for modification of judgment based upon insufficiency of the State’s evidence, we note Section B of our Code of Criminal Procedure in article 821 provides:

B. A post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty.

The defendant’s relatives’ testimony regarding his alibi poses a question of credibility which is to be determined within the broad discretion of the trier of fact on the trial court level. State v. Coleman, 432 So.2d 323, 325 (La.App. 1st Cir. 1983); State v, Klar, 400 So.2d 610 (La. 1981). Such factual determinations will not be disturbed on review unless clearly contrary to the evidence. We find there is sufficient evidence to support the jury’s determination of the witnesses’ credibility and to meet the Jackson v. Commonwealth of Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) review standard. In the light most favorable to the prosecution, we note any rational trier of fact could have found the essential elements of the crime of armed robbery proven beyond a reasonable doubt.

The record reflects the victim’s description of the defendant, while somewhat general, was accurate. Furthermore, the victim identified Scott’s photograph and described his car. The arresting officers found in Scott’s house a black leather jacket and a multi-colored flowered shirt which matched the victim’s description of the clothing worn by the perpetrator. In addition, the officers found a Ruger .357 Magnum revolver in his car on the night of the robbery and $291 cash in Scott’s wife’s purse.

For the reasons assigned, the conviction and sentence are affirmed.

AFFIRMED.

      . Because the defendant alleges insufficiency of the evidence and does not allege there was no evidence to convict him, article 821 of the Code of Criminal Procedure is applicable. As stated in State v. Gonday, 442 So.2d 703, 705 in footnote 2:
      La.C.Cr.P. art. 821 sets the standard of review where the sufficiency of the evidence is at issue. Accordingly, the principles of appellate review as stated by [the Louisiana Supreme Court] in State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983), are applicable where the question is sufficiency of the evidence. "No evidence” is still properly raised by motion for new trial ...


text:
    KLIEBERT EDUCATIONAL TRUST, and Timothy A. Becnel Inter Vivos Trust, v. WATSON MARINES SERVICES, INC.
    No. 83-CA-713.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 30, 1984.

      Kliebert & Heltz, Thomas J. Kliebert, Jr., Gramercy, for plaintiffs-appellees.
    McCollister, McCleary, Fazio & Holliday, William C. Shockey, Baton Rouge, for defendant-appellant.
    Before CURRAULT, GRISBAUM and DUFRESNE, JJ.
   GRISBAUM, Judge.

This is an appeal by the defendant, Watson Marine Services, Inc., devolutively taken from a judgment granting a preliminary injunction requiring it to discontinue mooring barges in the Mississippi River bordering on the plaintiffs’ property and suspen-sively taken from that part of the judgment requiring the defendant remove any anchor, buoy, or piling in the bed of the river immediately bordering on the plaintiffs’ property. We affirm.

Three issues are presented:

(1) Whether plaintiffs, riparian landowners, have standing to assert their action requesting the defendant’s mooring operations on the Mississippi River be enjoined;

(2) Whether LSA R.S. 9:1102.1 is preempted by federal legislation enacted pursuant to the Commerce Clause; and

(3) Whether the trial court erred in granting the landowners injunctive relief.

Watson Marine is engaged in barge fleeting operations which are conducted in the Convent, Louisiana area of St. James Parish in the Mississippi River on both sides of, as well as in front of, the land owned by the plaintiffs and abutting the river. The plaintiffs filed suit against Watson Marine Services, Inc. seeking to enjoin the warehousing of barges immediately in front of their properties and seeking removal of buoys and anchor pilings from the river bed. Watson Marine admits mooring operations were conducted without the approval or permission of the South Louisiana Port Commission or the plaintiffs but solely upon the authority of a permit issued by the United States Corps of Engineers to Ryan-Walsh Stevedoring Company and assigned ultimately to Watson Marine. Within the contract of assignment is a specific requirement that either batture leases or authorization be obtained from the landowners.

In the trial court, the defendant filed exceptions of no right or cause of action and improper use of summary proceedings. The court overruled the exceptions and determined from the trial on the merits the plaintiffs were entitled to relief as prayed.

Watson Marine contends the plaintiffs do not own any part of the bed of the Mississippi River and have no standing to assert claims involving the use by others of the waterway bordering on their property. Article 681 of the Louisiana Code of Civil Procedure allows that an action be brought only by a person having a real and actual interest which he asserts. We find the plaintiffs have asserted a real and actual interest. While it is true the State of Louisiana, pursuant to article 450 of the Louisiana Civil Code, is the owner of the river bottom, the banks of navigable rivers subject to public use are privately owned by the riparian landowners as provided by article 456 of our Civil Code. Riparian landowners, by virtue of Louisiana Revised Statute 9:1102.1, own the right to erect and maintain on the batture, banks, and bed of the river, buildings and improvements as may be required for commerce, navigation, or other public purposes. This right is subject only to a requirement that the landowner obtain a permit from the South Louisiana Port Commission authorizing such work, and such permit is to be denied only when the Port Commission finds denial to be in the best interest of the public for no reason other than violation of safety or accepted navigation regulations. Thus, the state legislature has granted a real right to these riparian landowners to erect and maintain buildings and improvements on the river subject only to the Port Commission’s duty to protect the public’s best interest.

There is no Louisiana statute which grants a right to erect and maintain buildings and improvements on the river to persons other than riparian landowners and their lessees, the negative implication being that only landowners and their lessees have this right. The language of Louisiana Revised Statute 9:1102.1, “and their lessees,” indicates a presupposition that a non-landowner must obtain a lease from the riparian owner before seeking authorization of his commercial purposes from the Port Commission. The plaintiffs have standing to protect their right against the defendant who, prior to the trial court’s judgment, had been warehousing barges on the river without first negotiating a lease agreement or attempting to obtain authorization from anyone in this state.

Secondly, it is asserted by Watson Marine, Inc. that state legislation regulating the erection and maintenance of buildings and improvements in navigable waterways in Louisiana is unconstitutional because the United States Congress, pursuant to the Commerce Clause of the United States Constitution, has enacted 33 U.S.C. § 10 and 33 U.S.C. § 403 and thus preempted the field.

The United States Supreme Court in Cummings v. Chicago, 188 U.S. 410, 431, 23 S.Ct. 472, 477, 47 L.Ed. 525 (1903) held the authority of a state to prohibit the erection, without its permission, of a structure in a navigable river wholly within its limits, was not superseded by 33 U.S.C. § 403. The court addressed whether Congress had intended to ignore Illinois legislation regulating the erection of structures in a navigable river wholly within the state by empowering the Secretary of War to issue permits for construction in the navigable waterway:

... the effect of that act, reasonably interpreted, is to make the erection of a structure in a navigable river, within the limits of a State, depend upon the concurrent or joint assent of both the National Government and the State Government. The Secretary of War, acting under the authority conferred by Congress, may. assent to the erection by private parties of such a structure. Without such assent the structure cannot be erected by them. But under existing legislation they must, before proceeding under such an authority, obtain also the assent of the State acting by its constituted agencies.

In Zabel v. R.P. Tabb, 296 F.Supp. 764, 765 (M.D. SLA 1969), the court acknowledged the Cummings rule that a party is required to seek approval for the erection of structures in a navigable waterway from local agencies as well as federal agencies. The court in Norfolk Dredging Company v. Radcliff Materials, Inc., 264 F.Supp. 399, 401 (E.D.Vir.1967), followed the Cummings decision and stated that a permit issued by the Federal Government merely expresses the assent of the Federal Government so far as concerns the public rights of navigation but in no way obviates the necessity of obtaining state assent to the work authorized. Reflecting the Cummings rule is the United States Army Corps of Engineers permit, issued to Ryan-Walsh and ultimately assigned to the defendant Watson Marine, Inc., which specifically states the concurrent consent of state and local authorities for erection and maintenance of buildings and improvements in the navigable waterway is required.

The State of Louisiana in article 450 of the Civil Code has reserved to itself the ownership of the beds of the navigable waterbodies within its borders. The Louisiana legislature in creating the South Louisiana Port Commission and empowering it to enact certain regulations governing constructions on the river (LSA R.S. 34:2471-2477) and in enacting Louisiana Revised Statute 9:1102.1 did not unreasonably interfere with navigation but acted within its concurrent jurisdiction.

Finally, we are called upon to decide whether the trial court erred in ordering, as requested by the plaintiffs, the defendant’s mooring operations be discontinued and any buoy, anchor, or piling located in the river in front of the plaintiffs’ property be removed. The defendant contends the preliminary injunction mandating permanent removal of any buoy, anchor, or piling located in front of the plaintiffs’ property was granted subsequent to a summary judgment and therefore improper. Article 3602 of the Louisiana Code of Civil Procedure provides that a preliminary injunction is decided in summary proceedings whereas a hearing for a permanent injunction is by way of ordinary proceedings, with a fully-developed trial on the merits. Louisiana jurisprudence, however, allows an injunction on ex parte application only in eases where the purpose to be accomplished is to restrain or prohibit something from being done. Red River v. Noles, 406 So.2d 294, 298 (La.App. 3d Cir.1981). In its mandatory form, when it commands the doing of something, it cannot be issued without a hearing on the merits. Red River v. Noles, supra. The removal of any anchor, buoy, or piling from the bed of the river is in mandatory form, and thus requires a full hearing on the merits. Watson Marine further contends that because in their petition the plaintiffs requested merely a rule to show cause, it was not given adequate notice of the plaintiffs’ intention to proceed with a full trial on the merits on the issue of the mandatory injunction requiring removal of anchors, buoys, or pilings. Article 3602 provides that a preliminary as well as a permanent injunction shall not issue unless notice is given to the adverse party and there is an opportunity for a hearing.

The trial court, in its reasons for denying the exception of improper use of summary procedure, stated:

This defense was raised for the first time on the morning of the hearing at which time it was argued and overruled. After the exception was overruled the defendant then proceeded to trial without apparent difficulty. Witnesses, expert and otherwise, were called and testified and other evidence introduced. There is neither allegations nor showing that any disadvantage resulted ... Defendant has not been prejudiced by the procedural method employed and ... Plaintiffs are entitled to the relief for which they have prayed.

In Red River v. Noles, supra, a preliminary injunction requiring an owner to remove permanent buildings from a servitude of a levee district was upheld because, as the appellate court found, the evidence presented at the hearing was not limited, both parties presented testimony, and the trial court permitted a full hearing on all issues in controversy, and therefore, the injunction had not been issued merely upon a prima facie showing.

Accordingly, we find, as the trial court did, Watson Marine Services, Inc. has not been prejudiced by the procedural method employed. The defendant is unable to show any disadvantages to itself, and it is clear from the record Watson Marine was given full opportunity to present evidence on the merits of the case. The plaintiffs’ pleadings were sufficient and adequate to put the defendant on notice that the plaintiffs had requested relief in the form of the permanent removal of any buoy, anchor, or piling located in front of their property. While the plaintiffs in their petition requested a rule to show cause, no technical forms of pleading are required in Louisiana, pursuant to article 854 of our Code of Civil Procedure, and additionally, article 865 of the Louisiana Code of Civil Procedure provides that every pleading shall be so construed as to do substantial justice.

The defendant claims the injunction was improperly issued in that the plaintiffs suffered no irreparable harm which is pursuant to article 3601 of the Louisiana Code of Civil Procedure, a necessary element that must be proven in order to obtain injunctive relief. However, an injunction granted pursuant to article 3663 of the Louisiana Code of Civil Procedure may be granted without any showing of irreparable injury. Elliot v. Louisiana Intrastate Gas Corporation, 336 So.2d 925, 926 (La.App. 3d Cir.1976). Article 3663 provides in pertinent part that injunctive relief is available to a person who is disturbed in the possession which he has had for more than a year of a real right of which he claims the ownership. The trial court concluded the plaintiffs proved a trespass, and injunctive relief pursuant to article 3663 was properly granted.

Accordingly, we affirm the judgment of the trial court, all costs to be paid by the appellant.

AFFIRMED.

      .The plaintiffs’ petition states in pertinent part: ... In order to protect plaintiff’s rights and interest in the premises, it is necessary that defendants be ordered to cease any and all operations with respect to mooring and/or anchoring barges in the front of plaintiffs' properties, that they be ordered to remove the mooring buoy set in the river in the front of plaintiffs’ properties and any mooring lines from the waters of the river to the shore and to restore the surface of plaintiffs’ properties to the same condition as it was prior to the defendants’ entry thereon and action above described taken in connection with said operations, and from interfering with plaintiffs’ properties in any manner, either on the shore or in connection with plaintiffs’ rights appertaining to said properties as riparian owners.

      . The South Louisiana Port Commission was created by the Louisiana legislature as expressed in Louisiana Revised Statute 34:2471 and empowered to enact regulations and issue permits authorizing the erection and maintenance of buildings and improvements on the river pursuant to Louisiana Revised Statute 34:2473.1(B) and (C).

      . 33 U.S.C. § 10 provides that all navigable rivers shall remain public highways.

      . Pursuant to § 403, nothing obstructive can be built outside harbor lines or where there are not harbor lines except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army. (Emphasis added)


author: DUFRESNE, Judge.

text:
    Many HEYMANN, v. ALLSTATE INSURANCE CO., INC.
    No. 83-CA-846.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 30, 1984.

      Edmond J. Harris, New Orleans, for plaintiff-appellant.
    Robert M. Johnston, New Orleans, for defendant-appellee.
    Before BOWES, GRISBAUM and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This is an appeal by Many Heymann, plaintiff-appellant, wherein he seeks an increase of a jury award of $12,000 in his favor and against Allstate Insurance Co., Inc., defendant-appellee, for damages sustained in an automobile-motorcycle accident. Because we find that the trier of fact abused its much discretion in fixing this award, the judgment is increased to $30,000.

The facts of the accident are simply that Heymann was riding his motorcycle shortly after midnight on a boulevard when he was struck from behind by an automobile driven by Sherryl Kay, Allstate’s insured. The jury found that the sole cause of the accident was Kay’s negligence, and that finding has not been contested here.

At trial, Heymann attempted to prove that as a result of the accident he suffered 1) a shoulder injury, 2) damage to his motorcycle, and 3) cervical and lumbar spinal injuries which prevent him from returning to his prior work. The'jury awarded Hey-mann $12,000, but did not apportion this damage award among the specific injuries claimed. Heymann now brings this appeal on the sole ground that the jury abused its “much discretion” in fixing this award, and asks this court to increase it to $60,000.

In order for an appellate court to change an award for damages fixed by the trier of fact in suits for quasi offenses, it must first make an articulated analysis of the particular facts of the case before it. Only if this analysis discloses an abuse of discretion may the award be considered insufficient or excessive. Once such a determination of abuse has been made, the court may then resort to prior awards in comparable cases for guidance in fixing the appropriate award in the case before it, Reck v. Stevens, 373 So.2d 498 (La.1979).

Turning to the facts before us, it is clear to this court that this award is an abuse of the trier of facts’ much discretion in that the award is insufficient. Of the three general areas of damages claimed by Hey-mann, we first address briefly the shoulder injury. Heymann admits in his brief that there was sufficient evidence before the jury to support the conclusion that this injury was not causally related to the accident. We agree, and therefore eliminate from consideration here any damages related to that injury.

As to damage to the motorcycle, the undisputed expert testimony of Michael Goff was that to restore it to its original condition at the time of the accident would cost $3,516.00. Allstate argues to the contrary that because Goff also stated that an ordinary motorcycle of the same make and age as Heymann’s would be worth $2,500.00, that that is the proper figure. It fails to mention however, that Goff further testified that the higher estimate was based on certain rare and, in motorcycle circles, widely sought after parts and equipment which were damaged in the accident. We therefore find that the motorcycle was damaged in the amount of $3,516.00.

The third area of damages, the back and neck injuries, require a more detailed analysis. On May 23, 1980, two days after the accident, Heymann was seen by Dr. Bert Bratton, a neurosurgeon. On that date Heymann complained of pain in the cervical and lumbar areas of his spine. Dr. Bratton originally diagnosed the problem as soft-tissue injuries, and prescribed pain and muscle relaxant medication. By August of 1980, Heymann’s pain had subsided, and he was discharged by the physician.

However, in March, 1981, Heymann returned to Dr. Bratton complaining of weakness in his left arm. The physician immediately suspected that this symptom may have been related to possible cervical nerve damage, and ordered Heymann hospitalized for a cervical and lumbar myelogram. The result of that test showed only a minor disc defect in the cervical region, but also revealed a more serious defect, possibly a ruptured disc in the lumbar area.

Because of this lumbar disc problem, it was Dr. Bratton’s unrefuted opinion that Heymann suffers a permanent bodily disability of 15% to 20% and that he must in the future avoid activities which place stress on his spine. He should also limit his work to jobs which do not require excessive bending and lifting of more than 25 pounds. It was the doctor’s further opinion that in all probability, Heymann will need either surgery, or another “invasive”' type of treatment later in life to ameliorate the disc problem. However, he did not recommend such treatment at the moment because it would not cure the disability and might lead to other adverse consequences. The existence of this disc injury and resulting disability was unrefuted at trial and is not contested by Allstate here.

The next question is whether this back problem was causally related to the accident. Allstate admits that Heymann suffered an injury to his back in the accident. However, it contests the assertion by Hey-mann that the disc problem discovered by the physician in March, 1981, was also caused by the accident. Our review of the evidence reveals that it preponderates in favor of a finding that the accident did indeed cause the disc problem.

Dr. Bratton testified that his initial diagnosis was a soft tissue injury in the back which he expected would resolve itself within a few months. He further stated, however, that this was a “working diagnosis”, as opposed to a “proven diagnosis” which would have required further testing. These further tests were not conducted during the three months of treatment immediately following the accident because it was the doctor’s opinion that the back pains were resolving themselves in the expected manner for soft tissue injuries. He further stated that when he discharged Heymann in August, 1980, the patient was still complaining of some back pain which was related to his physical activities, but he expected these pains to disappear in time.

When Heymann returned to the doctor in March, 1981, complaining of numbness in his arm, it was decided that further testing for possible nerve damage in the cervical area was necessary. A myelogram was performed and it showed no serious neck problem, but revealed instead the somewhat unexpected disc damage in the lumbar area. It was Dr. Bratton’s unrefuted opinion that this lumbar injury was related to the accident of May, 1980.

Allstate contends to the contrary that the disc problem was not shown to have been caused by the accident. It argues on the one hand that Bratton’s discharge of Hey-mann in August, 1980, showed that the original back pains had resolved themselves by that date, and therefore that the disc problem must have developed after the accident from unrelated causes. In further support of this position, Allstate points out that when Heymann returned to Bratton in March, 1981, he had no complaints of continuing back pain. These assertions are not supported by the evidence.

While it is true that Heymann made no specific complaint of back pains in March, 1981, it was Bratton’s testimony that this was not unusual because often patients will report only present symptoms and not mention other problems which they fail to relate to their immediate pain. We also note that Heymann was still complaining of back pains to Bratton in August, 1980, but related these to his activities. Moreover, Heymann testified that he continued to have occasional back problems between August, 1980, and March, 1981, especially when he did heavy work. Finally, Bratton corroborated Heymann’s testimony on this point when he stated that heavy work would probably cause back pains. In these circumstances, we find that the lumbar disc injury was proved to have been caused by the accident, and if the jury found otherwise, it was manifestly erroneous. Perni-ciaro v. Brinch, 384 So.2d 392 (La.1980).

Allstate also argues in the alternative that the back injury predated the accident. It bases this assertion on Bratton’s statement that he could not answer “with any medical certainty” the question of whether the disc injury may have existed before the accident. This argument is also without merit because the preexistence of the injury is mere speculation and completely uncorroborated by any other evidence in the record.

We must next turn to the damage award itself. The record shows that Hey-mann is a motorcycle and marine mechanic. It further shows that both of these occupations require extensive bending and stooping and the lifting of weights above 25 pounds. The unrefuted testimony of Dr. Bratton is that he should abandon both of these types of work or risk a serious worsening of his back condition. We also note that Heymann was earning over $18,000 per year from August, 1980, to February, 1982, as a shipyard worker, and that during this period he suffered frequent back pains. Finally, as shown above, Heymann sufferes a 15 to 20% permanent disability and will in all probability require major medical treatment sometime in the future.

Therefore, Heymann clearly suffered the following special damages:

Medical expenses $1973.03
Motorcycle damage $3516.61
Towing fee $ 5.00
Total: $5524.64

The jury thus awarded Heymann only $6,475.36 for all other damages including past and future lost wages, future medical expenses, and pain and suffering. This award is clearly insufficient and we so hold. The record supports a finding that plaintiff was injured substantially and has suffered the effects of the injury. We feel that the award of $6,475.36 for the plaintiffs damages is definitely inadequate in view of the damages outlined above. In our review of awards in similar cases we are of the opinion that the total jury award here should be increased to $30,000.00, thus giving the plaintiff a sum of slightly less than $25,000.00 for pain and suffering and all other general damages including lost wages and future medical expenses.

Accordingly, the judgment of the trial court is affirmed in favor of Many Hey-mann and against Allstate Insurance Company, Inc., but is amended and increased to the sum of $30,000.00, together with legal interest thereon from date of judicial demand until paid, and for all costs of the proceedings. All costs of this appeal are assessed against the defendant, Allstate Insurance Co.

AFFIRMED AND AMENDED.


text:
    Salvador A. LORIO, v. The SAN ANTONIO INN.
    No. 83-CA-858.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 30, 1984.

      Steve Lemoine, New Orleans, for defendant-appellant.
    Jacques F. Bezou, New Orleans, for plaintiff-appellee.
    Before BOWES, GRISBAUM and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This is an appeal by the San Antonio Inn, defendant-appellant, from a judgment in the amount of $15,000 in favor of Salvador A. Lorio, plaintiff-appellee, for injuries he suffered when he fell on wet stairs on defendant’s premises. Because we find no manifest error in the trial court’s findings of fact, no abuse of its discretion in fixing the award, and no error of law, we affirm.

The facts of this case are straightforward. Lorio, his wife and his brother checked into the San Antonio Inn, a'hotel, at about 9 P.M. on Saturday, February 14, 1981. They were informed by the desk clerk that an ice machine was located near the bottom of the stairs near their rooms. After depositing their luggage in their rooms, all three proceeded down the stairs for ice. When Lorio was on the last flight of stairs, he slipped and fell, injuring his back. It was stipulated at trial that he suffered a lumbar muscle strain.

Lorio testified that later that evening and again the next morning he reported the fall to the desk clerk on duty and asked for the manager. On both occasions he was told that the manager was not available. At least one of these clerks further told Lorio that he knew nothing about handling accident reports, and apparently no such report was ever completed by the hotel.

Lorio’s explanation for his fall was that the stairway was poorly lit, and the stairs were wet and slippery. The source of the water on the stairs was identified by him as a puddle at the foot of the stairway caused by the leaking ice machine. Water from the puddle had apparently been tracked up the stairs by other guests. Moreover, Lorio’s testimony was substantially corroborated by that of his wife. She also stated that after she and Lorio’s brother helped him to his feet, the three of them returned to their rooms with some ice.

By the way of rebuttal, the hotel called as witnesses the manager and the maintenance man. Neither of these people had any specific recollection about either the wet stairs or the lighting conditions of the stairwell on the night in question. Both testified, however, that the ice machine was not operating and was disconnected at the time of the accident.

Based on this testimony, the trial judge found that the hotel had failed to maintain proper lighting and had failed to maintain the steps in a proper and safe manner. Although not explicit in the reasons for judgment, it is obvious that the court con-eluded that the hotel had thus breached the duty of care owed by an inn to its guest, and therefore that it was liable for Lorio’s injuries which were found to be $15,000.

The hotel now appeals, alleging three errors on the part of the trial court, as follows:

1. It was manifest error to find that the stairs were improperly lighted and maintained;
2. The hotel breached no duty of care owed to a guest, and;
3. If the hotel is liable, the trier of fact abused its discretion in fixing the award.

Because the first two allegations are interrelated, we address them together here. The rule applicable to this case is that while an innkeeper does not insure his guests against the risk of injury, he nonetheless owes his guest a high degree of care, Kraaz v. La Quinta Motor Inns, Inc., 410 So.2d 1048 (La.1982). A basic element of this duty is to maintain the premises in a reasonably safe condition. To this end, reasonable inspections of the premises and mechanical equipment are required, Brasseaux v. Stand-By Corp., 402 So.2d 140 (La.App. 1st Cir.1981). In addition, an innkeeper is held to have constructive knowledge of a dangerous condition if that condition has existed for such a time as to reasonably have been discovered by the innkeeper, Kauffmann v. Royal Orleans, Inc., 216 So.2d 394 (La.App. 4th Cir., 1968).

Applying these rules to the facts before us, it is clear that the hotel breached its duty to Lorio, and is therefore liable for his injuries. Lorio’s testimony was that the stairs were poorly lighted, that the ice machine was leaking water, that the water had accumulated at the foot of the stairs, and had apparently been tracked onto the stairs. It is not disputed here that this water existed, nor that Lorio slipped and fell.

The hotel’s rebuttal evidence was only the testimony of the manager and maintenance man. The manager stated that she had no recollection of having been on the stairway on the night in question, and therefore could not say whether the lights were burning. She did state, however, that the ice machine had been disconnected some months before the accident. The maintenance man similarly testified that he did not recall this specific night, but stated that the ice maker was not connected to any source of water at that time. In regard to the lights, he explained that they were turned on automatically by a photo electric cell at dusk and that each light fixture had two independent circuits so that if one circuit failed, the other would continue to operate. He next stated that he usually leaves the hotel at 5 P.M. on Fridays and does not return until Monday mornings. He also noted that there were three other maintenance people at the hotel, but did not say whether any of them worked on weekends. Finally, he admitted that he could not say whether the lights on the stairs were burning or whether there was water on the stairs the night of the accident.

The only conflict in testimony was, therefore, whether the ice machine was connected and leaking when Lorio slipped. Resolution of this factual issue depended solely on a decision by the trier of fact as to the credibility of the witnesses. Lorio said the machine was leaking. His wife said they brought ice back to their room. There is nothing in the record to show that there was another ice machine at the hotel from which this ice could have been obtained. The hotel's rebuttal was testimony that the ice machine was not connected to a water source, and thus could not have been leaking. It also contends that the only reasonable explanation for the water was therefore rain, but it offered no evidence that it had indeed rained on that night. Neither did it explain where the ice obtained by the Lorios came from. In this court’s opinion, there is nothing manifestly erroneous in the trial judge’s decision to believe Lorio and his wife, rather than the other witnesses, on this point, and therefore we will not disturb this finding of fact, Canter v. Koehring, 283 So.2d 716 (La.1973).

We finally note that although the trial judge made no explicit mention of the defective ice machine in his reasons for judgment, given the evidence before him, his conclusion that the stairs were improperly maintained could have rested on no other finding than that the water originated from that ice machine.

As to the lights, again Lorio and his wife testified that those on the stairs were not burning. The hotel’s witnesses both admitted that they did not know whether the lights were burning or not. The maintenance man did explain that there were two circuits on each fixture, but this tells nothing about whether both bulbs simply burned out. Again, on this testimony there was no manifest error in the trial judge’s conclusion that the stairs were improperly lit, Canter v. Koehring, supra.

The final issue on this point is whether the defective conditions existed for a length of time sufficient for a reasonably prudent innkeeper to have discovered and corrected them. The hotel’s witnesses both testified that they had no idea of the conditions at the stairs when the slip occurred. The maintenance man said that he routinely left the hotel on Friday afternoons at 5 P.M. While he further testified that there were other maintenance men employed by the hotel, he did not state whether any of them worked on weekends. Neither was there any testimony to show whether any other employee was responsible for checking the premises on weekends, or how frequently such checks might have been made if there was any employee with this responsibility. On this evidence, the clear inference to be drawn is that the stairs may have been checked on Friday afternoon, but were not re-checked subsequent to that time. Further, the fact that water from the puddle was apparently tracked up the stairs by other guests would indicate that the puddle had been there for an appreciable time. We finally note that the hotel was notified twice by Lorio of his fall and the conditions causing it, yet it made no effort to so much as investigate the alleged defects. This evidence was certainly sufficient to lead the trial judge to conclude, as he must have, that the defective conditions had existed for a sufficient time to be discovered and corrected by the hotel. Its failure to do so was a breach of its duty toward a guest, and it is therefore liable for the injuries suffered by that guest.

The third error urged by the hotel here is that the trier of fact abused its much discretion in fixing the award at $15,-000. Again we disagree. The well established rule is that an award for damages will not be disturbed on appeal unless an appellate court can give articulable reasons why on the particular facts of the case before it the award is an abuse of the trier of fact’s “much discretion”, Reck v. Stevens, 373 So.2d 498 (La.1979). We find no such abuse here. It was stipulated that Lorio suffered a lumbar muscle strain. He received chiropractic treatments for about a month, but could not afford further treatments. His unrefuted testimony was that he was still suffering back pains at the time of trial, over two years after the injury. He further stated that he works in a grocery and at least once a week must do heavy lifting, and that this lifting causes him to “see stars” from back pains. The hotel put on no medical evidence to refute the continued existence of the injury or the ensuing pain. Under these circumstances we do not find that the trier of fact abused its much discretion in fixing the present award.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal to be borne by defendant-appellant.

AFFIRMED.