author: HALL, Judge.

text:
    STATE of Louisiana, Appellee, v. Columbus Lee HOLMES, Appellant.
    No. 16463-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.

      David G. Haynes, West Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Earl Cox, Asst. Dist. Atty., Monroe, for appel-lee.
    Before HALL, SEXTON and NORRIS, JJ.
   HALL, Judge.

The defendant, Columbus Lee Holmes, appeals his conviction of theft of property of $1,425 in value, contrary to LSA — R.S. 14:67. The trial court sentenced the defendant to serve seven years at hard labor. We affirm.

Facts

At approximately 9:30 a.m. on December 31, 1981, the defendant and his brother, Theallas Holmes, Willie Collins, and Bernard Burns, entered the Red Barn Western Wear Store in Ouachita Parish. Marie Wil-coxon, a salesclerk, testified that after entering the store, Willie Collins asked to try on some boots. As Ms. Wilcoxon helped Collins with the boots, the defendant and the other two persons browsed around the front of the store near a rack of leather jackets. Approximately 30 to 45 minutes later the four men were leaving the store when the store clerk noticed that six leather coats with a value of $285 each were missing from the rack.

Bernard Burns testified that as he was entering their automobile, he observed the defendant lying on the floorboard holding three or four coats. Collins testified that he was driving the vehicle and looked back over the back seat and observed the defendant lying on the floorboard with four or five coats.

Ms. Wilcoxon testified that after she noticed the coats missing, she ran out the store and attempted to flag down the four men. However, they just backed out and sped off at a high rate of speed.

None of the leather jackets were introduced as evidence in the defendant’s trial. Ms. Wilcoxon and Tommy Dodson, sales clerks at the store, testified that six coats valued at $285 each were missing. The jury found the defendant guilty of theft of property of a value of $1,425, the approximate value of five of the leather jackets.

On June 30, 1982, the trial court sentenced the defendant to serve seven years at hard labor. An out-of-time appeal was granted by the trial court on March 8, 1984.

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

“(1) The Trial Court erred in its decision not to relieve Court appointed attorney DAVID G. HAYNES as attorney for defendant, and order appointment of a new attorney to represent the defendant herein, after numerous repeated request and written or oral Motions made by defendant herein, based upon the contention by defendant COLUMBUS LEE HOLMES that he could not communicate with said attorney.
“(2) That the defendant was convicted of Felony Theft at Trial on June 10,1982, upon evidence introduced by the State that was gathered in an unlawful search of said defendant COLUMBUS LEE HOLMES.
“(3) The Trial Court erred in failing to adhere to the Guidelines of the Code of Criminal Procedure Article 894.1 in determining the appropriate sentence for defendant herein.
“(4) The trial court erred in pronouncing a sentence for defendant that is unduly harsh and excessive in view of the facts of the case.”

Assignment of Error No. 1:

By this assignment, the defendant contends that the district court erred in failing to grant his several oral and written motions for appointment of new counsel. The defendant maintains that there occurred a breakdown in communication damaging the attorney/client relationship making it impossible, according to defendant’s view, to receive adequate representation in further proceedings.

The transcript of proceedings on May 12, 1982, before Judge Fudickar, shows that the defendant requested appointment of another counsel because: “I’m not satisfied with the defense, you know, we didn’t discuss anything prior to my coming here about the theft of five (5) leather coats. I explained my bond and all things that I had urged, I explained it to him, you know, and I feel that I am being coerced into pleading guilty to a crime ....” The defendant’s request was not granted.

The minutes of the court reflect that on June 2, 1982, in open court, the defendant’s request for new counsel was denied by Judge Farr. The minutes also reflect that again on June 2, before Judge Joyce, the court found defendant’s guilty plea not to be acceptable and denied defendant’s request for appointment of other counsel. The transcript of the proceedings of June 2, 1982, before Judge Joyce, shows that the defendant stated: “You know, counselor, he hasn’t went over anything, any possibilities of witnesses or nothing, you know, he just brought me the proposition of a plea bargain, you know, he hasn’t consulted with me but two times, and each one of these times is based on a plea bargain and ... outlined to me about my being multi-billed if I didn’t plead guilty to a charge which the Judge dismissed in February, you know, so I don’t ... I don’t know nothing about law, you know .... ” The court ruled: “Well I know Mr. Haynes, Mr. Holmes, and I know him to be a very competent lawyer and I’m sure he’ll be interviewing you now to get the names of any people that might be beneficial to you because they’re holding you over for trial. I am denying your request for the appointment of additional counsel.” Judge Joyce’s per curiam states that the court found nothing to indicate that the attorney for the defendant was not properly handling the defendant, and saw no reason for appointing new counsel.

The minutes also reflect that on June 3, before Judge Farr, defendant again renewed his request for new counsel and the motion was denied.

The record shows the filing on June 3, 1982 of a handwritten motion for recusation of judge in which the defendant asserts that his attorney “ ‘cussed’ your petitioner ... when he decided to bring his case to trial, and not submit to pressures of attorney to plead guilty” and that “attorney has only interviewed petitioner three times, and on those occasions only spoke of your petitioner pleading guilty, and not of the facts of the case.”

The per curiam of Judge Hightower, who presided over trial of the case, states that as of the trial date defendant had filed no written motion for appointment of new counsel but orally requested such as he had done on two prior occasions. The per cu-riam states that at the time of the request before the undersigned judge on the trial date, defense counsel informed the court that he had investigated the case and was prepared to present a fair and adequate defense although the defendant himself had been uncooperative in aiding those efforts. Considering those representations and the fact of the earlier denials, the request did not appear to present any new issue. Hence, the trial proceeded.

LSA — C.Cr.P. Art. 515 provides as follows:

“Assignment of counsel shall not deprive the defendant of a right to engage other counsel at any stage of the proceedings in substitution of counsel assigned by the court. The court may assign other counsel in substitution of counsel previously assigned or specially assigned to assist the defendant at the arraignment.”

In the present case, the defendant only made a showing that he and his counsel did not personally get along with each other and that defendant was dissatisfied with his representation. The defendant offered no evidence that his counsel had failed in his duties of representation in any way. The court cannot be called upon to appoint other counsel than the one originally appointed by the court merely to please the desires of the indigent accused, in the absence of a showing that the court-appointed attorney is inept or incompetent to represent the accused. State v. White, 256 La. 36, 235 So.2d 84 (1970); State v. Austin, 258 La. 273, 246 So.2d 12 (1971).

The trial judges who ruled on defendant’s motions were satisfied with the competence and performance of appointed defense counsel. A review of the pre-trial proceedings and trial transcript discloses no basis for concluding that counsel’s representation of the defendant was lacking in professional competence, nor any basis warranting the appointment of other counsel.

The failure of counsel to perfect a timely appeal in accordance with defendant’s request seems inexcusable, but since the out-of-time appeal was ultimately granted and the assignments of error found to be without merit, there appears to be no prejudice to defendant bearing on his conviction and sentence.

This assignment of error is without merit.

Assignment of Error No. 2:

By this assignment, the defendant asserts that the court erred in admitting evidence retrieved in an illegal search and seizure. Defense counsel asserts in brief that the defendant personally requested this assignment on appeal.

The record reflects that there was no motion to suppress evidence prior to trial. Additionally, the transcript of defendant’s trial reflects that no physical evidence was presented at trial. Therefore, it is apparent that the defendant mistakenly asserts that the trial court erred in allowing evidence from an illegal search and seizure.

This assignment of error is without merit.

Assignments of Error Nos. 3 and 4:

By these assignments, the defendant asserts that the trial court failed to comply with the guidelines set forth in LSA — C. Cr.P. Art. 894.1 and that the sentence imposed is unduly harsh and excessive.

It is well settled that the sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Square, 433 So.2d 104 (La. 1983); State v. Browning, 454 So.2d 1241 (La.App.2d Cir.1984).

The sentencing guidelines of LSA— C.Cr.P. Art. 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Browning, supra. While the trial judge need not articulate every aggravating and mitigating circumstance outlined in Article 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Browning, supra.

In sentencing the defendant, the court found that the defendant was a second felony offender, having been convicted in Texas and serving at least 10 years in the Department of Corrections at Huntsville. The court found that the defendant was not eligible for suspension of sentence or probation. The court noted that the evidence at his trial reflected that defendant’s involvement was more serious and more extensive than the involvement of the other individuals in the crime. The court found that there was a high risk that if the defendant was not committed to an institution that he would commit other criminal acts because of his attitude and history of criminality and conduct while he was in the Department of Corrections -at Huntsville and the fact that he committed the present offense less than four months after being discharged from the Texas Department of Corrections.

Our review of the record and the defendant’s pre-sentence investigation report reflect that the trial court did adequately comply with Article 894.1 in particularizing the sentence to the defendant.

Next, the defendant contends that his sentence imposed is illegal and unconstitutional and that the sentence is harsh and excessive in light of the particular facts and circumstances of this case. A sentence is unconstitutionally excessive in violation of Art. 1, § 20 of the Louisiana Constitution of 1974 if the sentence is grossly out of proportion to the severity of the offense or nothing more than a needless and purposeless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Browning, supra.

LSA-R.S. 14:67 provides that whoever commits the crime of theft when the misappropriation or taking amounts to a value of $500 or more, shall be imprisoned, with or without hard labor, for not more than 10 years, or may be fined not more than $3,000, or both. In the present case, the trial court sentenced the defendant to seven years at hard labor.

As pointed out by the trial court, the defendant committed the present crime after being out of prison for only four months. It does not appear from the record that the sentence imposed was out of proportion to the severity of the offense or a needless and purposeless imposition of pain and suffering.

These assignments of error are without merit.

Decree

Having found no merit to defendant’s assignments of error, the defendant’s conviction and sentence are affirmed.

Affirmed.

      . Near the conclusion of the trial, the defendant informed the trial judge that his attorney had informed him that he was not filing an appeal in his case if he was convicted. However, the attorney denied making that statement. The record reflects that at the conclusion of the trial on June 10, 1982, the defendant wrote a letter to the trial court informing it that defendant wished to appeal his conviction and requested that the court order defense counsel to file an appeal in his behalf. The trial court filed defendant’s letter in the court record and forwarded a copy of the letter to the defendant’s appointed attorney.
      On August 2, 1982, the defendant wrote a letter to the Deputy Clerk of Court for the Fourth Judicial District Court, inquiring as to whether his attorney had filed an appeal. The defendant stated that it was his understanding that the judge ordered his counsel to file an appeal. The deputy clerk responded to defendant’s letter informing him that orders of appeal had not been entered on his behalf and sent a copy of defendant's letter to his counsel.
      On March 30, 1983, defendant wrote another letter to the judge informing him that his appointed counsel had not filed an appeal in his case and that it was his understanding that the court had ordered him to do so. Defendant requested new counsel and the filing of an appeal in his behalf. The judge did not respond to defendant’s request.
      On September 8, 1983, the defendant filed an application for post-conviction relief asserting that he had been denied his right to an appeal. On the same date, the trial judge ruled that defendant’s appeal was untimely and that the district court was without authority to grant an out-of-time appeal.
      On November 10, 1983, this court granted the defendant’s application for supervisory review and ordered the trial court to make a determination if the defendant made a knowledgeable waiver of his right of appeal. State v. Holmes, 440 So.2d 1384 (La.App.2d Cir.1983).
      On February 28, 1984, defendant filed a writ of mandamus with this court asserting that the trial court had failed to comply with this court’s November 10, 1983 order concerning his motion for out-of-time appeal. After an inquiry by this court, the trial court entered an order of appeal on March 8, 1984. This court subsequently denied defendant’s application for a writ of mandamus as moot, based upon the trial court's action.


source: Caselaw Access Project

author: JASPER E. JONES, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Freddie L. CANN, Appellant.
    No. 16489-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.
    Writ Granted March 15,1985.

      Davenport, Files & Kelly by Thomas W. Davenport, Jr., Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Robert S. Kennedy, Jr., and Bruce G. Whittaker, Asst. Dist. Attys., Monroe, for appellee.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

The defendant, Freddie L. Cann, was charged by bill of information with one count of distribution of marijuana in violation of LSA-R.S. 40:966 and with three counts of distribution of cocaine in violation of LSA-R.S. 40:967. He was tried by a jury and found guilty on all counts. He subsequently received consecutive sentences totalling 65 years at hard labor. Defendant appeals his convictions and sentences relying on three assignments of error. We affirm.

Facts

Defendant sold the illegal substances to the same undercover narcotics agent on four separate occasions. The agent was equipped with an electronic surveillance device each time he made a purchase from defendant. Backup agents recorded the agent’s conversations with defendant. Pri- or to trial defendant moved to suppress the recordings. The motion was denied and the recordings on three of the transactions were admitted at trial.

The following is a brief description of each transaction on which defendant was charged and the sentence he received on each charge:

(1) October 18, 1982—The agent purchased 2.41 ounces of marijuana for $250.00—5 years.
(2) November 10, 1982—The agent purchased a small amount of cocaine for $125.00—15 years.
(3) November 19, 1982—The agent purchased a small amount of cocaine for $125.00—15 years.
(4) November 24, 1982—The agent purchased approximately one ounce of cocaine for $2,800.00—30 years.

Assignment No. 1

By this assignment defendant contends the trial court erred in denying his motion to suppress. He argues the recording of his conversations with the agent was an unreasonable invasion of his constitutional right to privacy. This argument was rejected and such recordings were held to be admissible in State v. Reeves, 427 So.2d 403 (La.1982). See also State v. Terracina, 430 So.2d 64 (La.1983).

This assignment of error lacks merit.

Assignment No. 2

By this assignment defendant contends the trial court failed to comply with LSA-C.Cr.P. art. 894.1 when imposing the sentences and the sentences imposed were based in part upon the trial court’s consideration of improper information.

LSA-C.Cr.P. art. 894.1 contains a list of aggravating and mitigating factors the trial judge should consider in determining the appropriate sentence to be imposed on a particular defendant. The trial judge need not articulate every aggravating and mitigating factor contained in the article; however, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Hammonds, 434 So.2d 452 (La.App.2d Cir.1983); State v. Cunningham, 431 So.2d 854 (La.App.2d Cir.1983); State v. Smith, 433 So.2d 688 (La.1983).

Defendant first complains the trial judge failed to adequately articulate and consider several mitigating factors including his military record, his stable employment history and the fact that he is obligated to support six children from two marriages. The trial judge stated for the record that he considered all the 894.1 mitigating factors. However, he found it unnecessary to articulate all these factors because they were far outweighed by the number of offenses involved in the instant case and the fact that defendant has been convicted on drug related charges on four prior occasions. One of the convictions was for distribution of marijuana. Another was for possession of marijuana. The other two, which were for possession of marijuana and possession of cocaine, were overturned on appeal. State v. Cann, 319 So.2d 396 (La.1975); State v. Cann, 392 So.2d 381 (La.1980).

We agree with the trial judge’s determination that the number of charges against defendant in the instant case and his past record far outweigh any possible mitigating factors. The trial judge adequately articulated his sentencing reasons.

Defendant complains the trial judge improperly considered the two convictions overturned on appeal as factors militating for lengthy terms of imprisonment.

When imposing sentence the trial judge may consider the defendant’s history of prior criminal activity. 894.1 B(7). Pri- or criminal activity is not restricted to convictions. The judge may consider the defendant’s entire record and the implications contained therein. State v. Brown, 410 So.2d 1043 (La.1982); State v. Washington, 414 So.2d 313 (La.1982).

The trial judge mentioned the two reversed convictions while going over the information contained in defendant’s pre-sentence investigation report. It does not appear that he gave any particular weight to these convictions- other than as indications that defendant has a past involvement with drugs. The conviction overturned in 392 So.2d 381 was reversed because the prosecution made an impermissible reference to other crimes. It was not overturned for insufficiency of the evidence. In the conviction reversed in 319 So.2d 396 defendant was one of several people arrested in a house where marijuana was found. The conviction was overturned because the mere fact that defendant was in the house was not an indication he possessed the marijuana. Although defendant may not have possessed marijuana, the case supports an inference that he was at least associated with people involved with the substance.

We find no error in the trial court’s determination that the convictions overturned on appeal are indications of past involvement with drug related offenses and/or offenders. In making this determination we note that defendant had a drug related conviction prior to his arrest on the first of the two charges giving rise to the convictions overturned on appeal.

This assignment of error lacks merit.

Assignment No. 3

By this assignment defendant contends the sentences imposed are excessive.

The sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Hammonds, supra; State v. Brooks, 431 So.2d 866 (La.App.2d Cir.1983); State v. Square, 433 So.2d 104 (La.1983).

A sentence is constitutionally excessive in violation of Louisiana Constitution of 1974 Art. 1, § 20 if it is grossly out of proportion to the severity of the offense or nothing more than a needless and purposeless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Cunningham, supra.

The 65 year total sentence imposed is well within the statutory limits. Defendant could have received maximum consecutive sentences totalling 100 years; 10 years for the distribution of marijuana conviction, R.S. 40:966 B(2), and 30 years each on the distribution of cocaine convictions, R.S. 40:967 B(l).

The presentence report reveals the following information. In addition to the offenses for which he was convicted, defendant has been arrested on a number of previous occasions for drug related and other offenses. The defendant’s first arrest and conviction was for distribution of marijuana. He received a suspended sentence and was placed on five years probation for that offense. While on probation defendant was arrested four times and he was charged with eight offenses. Six of the offenses were drug related. Within a month after being released from probation defendant was arrested and charged with three drug related offenses. Since that time, not including his arrest for the instant offenses, defendant has been arrested five additional times and charged with eight offenses; two of which are drug related.

Defendant argues the trial court erred in imposing consecutive sentences. It is within the trial court’s discretion to order sentences to run consecutively. LSA-C.Cr.P. art. 883. Consecutive sentences may be justified when, due to his past conduct or repeated criminality over an extended period of time, the offender poses an unusual risk to public safety. State v. Carter, 412 So.2d 540 (La.1982).

Defendant’s criminal record dates back to 1973 when he was convicted of the felony of distribution of marijuana and placed on probation. Defendant’s extensive prior record of involvement in drug related offenses and the fact that he was convicted of four distribution offenses in the instant case, justify the trial court’s conclusion that he will continue to engage in this type conduct and, as such, poses an unusual risk to the public safety. We find no error in the trial court’s ordering the sentences to run consecutively.

Defendant also contends the trial court erred in imposing the maximum 30 year sentence on one of the cocaine charges. He argues the relatively small amount of cocaine involved, one ounce, does not warrant the imposition of the maximum sentence.

As a general rule, maximum sentences are appropriate only in cases involving the most serious violation of the charged offense and the worst type offender. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Jones, 398 So.2d 1049 (La.1981). Defendant’s extensive history of involvement in drug related offenses and the number of offenses here involved indicate he is among the worst type offender. The fact that the ounce of cocaine sold for $2,800.00 indicates that an ounce of the substance is a substantial quantity. While the distribution of one ounce of cocaine may not be the most serious violation of the offense, it is, nevertheless, a most serious violation of the offense. We find no error in the trial court’s imposition of the maximum sentence on one of the four convictions.

For the foregoing reasons we find no manifest abuse of the trial court’s discretion in the sentences imposed.

This assignment of error lacks merit. Defendant’s convictions and sentences are AFFIRMED.

      . Defendant was also fined $5,000.00 on the marijuana charge or in iieu of the fine an additional year of imprisonment.


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

text:
    STATE of Louisiana, Appellee, v. Morty L. WILLIAMS, Appellant.
    No. 16493-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.
    Rehearing Denied Jan. 4, 1985.

      Roy M. Cascio, Gretna, John H. Craft, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, James David Caldwell, Dist. Atty., Tallulah by George F. Fox, Jr., Asst. Dist. Atty., Lake Providence, for appellee.
    Before JASPER E. JONES and FRED W. JONES, Jr., JJ., and PRICE, J. Pro Tern.
   FRED W. JONES, Jr., Judge.

The defendant, Morty Williams, was found guilty by a jury of second degree murder (R.S. 14:30.1). The mandatory sentence of life imprisonment at hard labor without benefit of parole was imposed. The defendant appealed, relying for reversal of his conviction upon eight assignments of error, two of which were abandoned.

Factual Context

On the night of July 1, 1982, the defendant and Frank Rogers along with several other men were gambling in the Rainbow Lounge in Lake Providence. When the defendant ran out of money he borrowed some from Rogers, pawning to Rogers his ring as security for the loan. Later the defendant won back enough money to reimburse Rogers for the funds borrowed and requested the return of his ring. When Rogers replied that he did not have the ring an argument ensued which was broken up by Melvin Banks, the lounge owner, and other patrons.

About 45 minutes later the defendant encountered Banks across the street from the lounge on a grocery store parking lot and started arguing with him. Banks returned to his lounge and called the police. In the meantime, Rogers appeared on the parking lot and he and the defendant resumed their argument over the ring. Both were armed with pistols. The argument culminated with each pulling his weapon and firing at the other. When the guns were empty, the defendant went over to his brother’s car and the two drove off. Rogers, who was seriously wounded, died later that night. The defendant was arrested and charged with the second degree murder of Rogers.

ASSIGNMENT OF ERROR No. 1

Defendant contends that the trial court erred in denying the motion to suppress his confession because the police initiated his interrogation after he had invoked his constitutional privilege against self-incrimination and his right to have counsel present during questioning. As authority for this position defendant cites Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The holding of this case is that an accused, having expressed a desire to deal with the police only through counsel, is not subject to interrogation by the officers until a lawyer has been made available to him, unless the defendant himself initiates further communication with the police.

In this case the trial judge accepted as true the testimony of Deputy Warner that the defendant sent word, after asking for a lawyer, that he desired to talk to the deputy. Consequently, it was the finding of the trial court that the defendant waived his Edwards rights by initiating the contact with the police and then making the confession.

The trial judge’s assessment of the credibility of Deputy Warner, the only witness who testified at the motion to suppress, is entitled to great weight. State v. Willie, 410 So.2d 1019 (La.1982). Therefore, we conclude that the state discharged its burden of proving that the confession was free and voluntary. As a result, no error was committed in admitting into evidence the confession.

This assignment lacks merit.

ASSIGNMENT OF ERROR No. 3

Defendant argues that the trial court committed error when she refused to permit defense counsel to elicit testimony concerning the dangerous character of the victim, which he sought to bring out during cross-examination of Melvin Banks. The question posed was: “Did you know what kind of disposition he (Rogers) had?” The state’s objection to the question was sustained.

Defendant relies upon the case of State v. Edwards, 420 So.2d 663 (La.1982) for the proposition that it is reversible error for the trial judge to forbid the defendant to present evidence concerning the dangerous character of the victim. However, as pointed out in Edwards, “only evidence of general reputation, not evidence of specific acts or personal opinion, is admissible to establish who was the aggressor in the conflict.” La.R.S. 15:479.

Here, defense counsel did not ask Banks if he was familiar with the victim’s reputation in the community and, if so, what that reputation was. To the contrary, his query was directed to the witness’s personal opinion concerning the “disposition” of the victim. This interrogation was improper and the objection thereto was properly sustained.

This assignment is without merit.

ASSIGNMENT OF ERROR No. 5

Defendant asserts that the trial judge erred in sentencing him immediately after denying his motion for a new trial, rather than waiting 24 hours as required by La.C. Cr.P. Article 873.

As we pointed out in State v. Keleman, 444 So.2d 1328 (La.App.2d Cir.1984), absent a showing that the defendant was prejudiced by failure to observe the described delay, there is no necessity to remand for resentencing. Also see State v. White, 404 So.2d 1202 (La.1981).

In this case there is no showing that the defendant was prejudiced when the trial court immediately imposed the mandatory life sentence rather than delaying sentencing 24 hours after denial of the motion for a new trial.

This assignment lacks merit.

ASSIGNMENTS OF ERROR Nos. 6 & 7

These assignments deal with sufficiency of evidence and burden of proof.

For purposes of this offense, second degree murder is defined as “the killing of a human being: (1) when the offender has a specific intent to kill or to inflict great bodily harm.”

In Assignment No. 6 the defendant maintains that the evidence presented by the state was insufficient to support the verdict.

In order to satisfy due process standards, the record evidence, viewed in the light most favorable to the prosecution, must be sufficient for a rational trier of fact to conclude that the essential elements of the crime were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In Assignment No. 7 the defendant asserts that the state failed to prove beyond a reasonable doubt that the homicide was not committed in self-defense.

As often happens, eyewitnesses presented the jury with conflicting accounts of the shooting. Van Archie Smith stated that he had been gambling with the defendant and Rogers in the lounge and was present during their argument on the grocery store parking lot. He testified that the defendant thrust his gun in Rogers’ face and demanded the return of his ring. Rogers then asked the police officer, Jackson, if he was going to do anything because “the man has murder on his mind.” The defendant next shot over Rogers’ head and told him to draw his gun. Rogers pulled his weapon and both fired until their guns were empty. The defendant’s third or fourth shot struck Rogers and spun him around.

Smith’s testimony concerning the defendant pulling his gun on Rogers and telling him to draw his weapon was corroborated by Melvin Banks and Larry Smith. Eddie Brown also stated that the defendant fired first.

On the other hand, Officer Jackson testified that the first shot was fired by Rogers, hitting the defendant in the ear. He said that the defendant did not begin shooting until after that. Jackson further asserted that an individual sitting nearby in a parked car also began firing a weapon.

Apparently the jury exercised its lawful prerogative and chose to believe the version of the shooting presented by Van Archie Smith, Banks and Larry Smith rather than Officer Jackson.

Under the circumstances, viewing the evidence in the light most favorable to the prosecution, it was sufficient for a rational juror to conclude that the essential elements of second degree murder were proven beyond a reasonable doubt. Furthermore, the state proved beyond a reasonable doubt that the defendant was not acting in self-defense when he shot the victim. One who is the aggressor cannot claim self-defense unless he withdraws from the conflict in good faith in such manner that his adversary knows, or should know, that he desires to withdraw or discontinue the conflict. State v. Williams, 438 So.2d 1212 (La.App.3rd Cir. 1983); La.R.S. 14:21. There was ample evidence here to support the jury’s conclusion that defendant was the aggressor in the shooting incident and never manifested an intention to withdraw from the conflict.

These assignments are without merit.

ASSIGNMENT OF ERROR No. 8

Defendant herein assigns all errors patent on the face of the record. Finding none, we deem that this assignment lacks merit.

Decree

For the reasons explained, we affirm defendant’s conviction.


author: SEXTON, Judge.

text:
    David P. McCART, Plaintiff-Appellant, v. SEARS, ROEBUCK AND COMPANY, Defendant-Appellee.
    No. 16518-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.
    Writ Denied Feb. 4,1985.
    Joseph W. Greenwald, Shreveport, for plaintiff-appellant.
    Wilkinson, Carmody & Gilliam by Jerald N. Jones, Shreveport, for defendant-appel-lee.
    Before HALL, MARVIN and SEXTON, JJ.
   SEXTON, Judge.

Plaintiff appeals the rejection of his demand for damages against Sears, lessee of the building where plaintiff fell through a suspended ceiling and sustained serious injury. We affirm.

In the spring of 1982, Sears, Roebuck and Co. began moving from its location in the Heart O' Bossier Shopping Center to its new store in Pierre Bossier Mall. Toward this end, Sears contracted with Randy McCoy to collect and prepare to auction equipment, fixtures and unmerchantable inventory at the old location. Plaintiff, a friend of Mr. McCoy’s, volunteered to help him with the task. At Mr. McCoy’s direction, McCart sought to retrieve a Christmas ornament hanging from the rafters of the ceiling of the main building and partially over an enclosed room which had a suspended ceiling. In order to reach the ornament, plaintiff crawled along a “catwalk” or shelf and then onto the suspended ceiling which gave way to his weight. In the fall, plaintiff sustained a broken wrist and a compression fracture to a lumbar vertebrae.

David McCart filed suit on December 2, 1982 against Sears, Roebuck and Co. for his injuries. He sought recovery under both negligence and strict liability theories. Sears answered the suit and filed a third party demand for indemnity in the event it was found liable for the injuries sustained by plaintiff, naming Randy McCoy, Coy Pettigrew, Randy McCoy Auction Service, and their insurers as third party defendants.

The trial court rejected plaintiffs claims, reasoning that Sears had no duty toward plaintiff and that no unreasonable risk of harm existed, thus barring recovery under both the negligence and strict liability theories.

It is now axiomatic that in order to recover under a strict liability theory, grounded in LSA-C.C. Art. 2317, the injured plaintiff must show that a defective aspect of the thing in defendant’s custody posed an unreasonable risk of injury to others, and that his damage occurred through this risk. Loescher v. Parr, 324 So.2d 441 (La.1975).

Plaintiff contends that the false ceiling as constructed, from his vantage point for retrieval of the ornament, presented a similar appearance to a concrete ceiling the plaintiff had previously traversed in the automotive section. He argues that this circumstance presented a defect posing an unreasonable risk of harm. The standard for assessment of an unreasonable risk of harm was recently clarified and clearly enunciated in Entrevia v. Hood, 427 So.2d 1146 (La.1983).

In Entrevia, the Supreme Court explained:

The judicial process involved in deciding whether a risk is unreasonable under Article 2317 is similar to that employed in determining whether a risk is unreasonable in a traditional negligence problem. Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980), and in deciding the scope of duty or legal cause under the duty/risk analysis. Hill v. Lundin Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Green, the Causal Relation Issue, 60 Mich.L.Rev. 543, 563 (1962). This is not because strict liability under Article 2317 is equivalent to liability for negligence, but because in both delictual areas the judge is called upon to decide questions of social utility that require him to consider the particular case in terms of moral, social and economic considerations, in the same way that the legislator finds the standards or patterns of utility and morals in the life of the community. B. Cardozo, The Nature of the Judicial Process, at p. 105 (1921); See also, Green, The Causal Relation Issue, 60 Mich.L.Rev. 543 (1962).

Assuming arguendo the correctness of plaintiffs argument that the ceiling posed a risk, our analysis, as directed by Entre-via, leads us to conclude that the trial court correctly found that the ceiling created no unreasonable risk of harm. The ceiling through which plaintiff fell was a conventional and widely-used suspension type ceiling, with two-feet by three-feet rectangular acoustical tiles placed between metal runners. The ceiling was suspended by visible wires which hung from the main rafters of the building. The ceiling, which was approximately eight feet high, was inaccessible except by ladder. Here plaintiff not only used a ladder, but crawled on his hands and knees across a catwalk in order to traverse the ceiling. The probability of a person gaining access to and walking across this ceiling under these circumstances was miniscule. Thomas Hinton, the Sears employee in charge of the store’s display department, testified that in years past, he had put the ornament up before Christmas and taken it down when the holiday season was over. He stated that he performed this task each year using a ladder, and that he never found it necessary to walk across the suspended ceiling of the substructure to remove the ornament.

In short, the risk presented by this ceiling would be the same as that normally associated with other suspended ceilings. Against this risk must be weighed the utility of the thing. The economic advantage of such a ceiling in terms of insulation benefits are obvious. Equally obvious is the ceiling’s functional as well as aesthetic contribution to the substructure. Considering these factors, the likelihood and gravity of the harm is outweighed by the utility of the thing and the burden of eliminating the risk. A custodian of a thing cannot be held responsible for all risks posed by the thing under his control, but only those risks creating an unreasonable risk of harm to others. We specifically hold that the ceiling in question posed no unreasonable risk of harm. Plaintiffs claims founded upon negligence and strict liability based on Sears’ custody of the building were properly rejected.

Plaintiff cites with reliance Fonseca v. Marlin Marina Corp., 410 So.2d 674 (La.1981). That decision, which predates the Entrevia balancing analysis, focused on the latent dangerous condition or defect of the thing. There, the court found that the owner of a barn was held to be liable to a construction worker who fell from an un-nailed scaffolding built by the owner when one of the boards, which was unsupported by joists, see-sawed. The court concluded that the boards gave the appearance of solid support; consequently, the scaffold created a latent defect in the building. This case is clearly distinguishable. There the owner built the scaffold for the purpose of aiding construction on the barn’s upper portion, such as the roof. When analyzed in the manner espoused by Entre-via, a balancing of the risks posed by such a scaffold against its utility clearly indicate that the owner and custodian should be liable for injuries caused by the enormity of that risk. In this case, the ceiling was not installed to support a workman but was only for esthetic and insulation purposes. Any risk posed by such a ceiling was clearly outweighed by its utility.

For these reasons, we affirm the judgment of the trial court at appellant's cost.

AFFIRMED.


author: SEXTON, Judge. SEXTON, Judge,

text:
    Gradis L. CUTCHALL, Plaintiff-Appellee, v. GREAT AMERICAN PUMP COMPANY, et al., Defendants-Appellants.
    No. 16536-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.
    Rehearing Denied Jan. 4, 1985.

      Sockrider, Bolin & Anglin, Shreveport, and Bolin, Elkins & Pearce by James E. Bolin, Minden, for plaintiff-appellant Grad-is L. Cutchall.
    Mayer, Smith & Roberts by Alex F. Smith, Jr., Shreveport, for defendants-appellants Great American Pump Co. and Canal Indem. Co.
    Bodenheimer, Jones, Klotz & Simmons by Harry D. Simmons, Shreveport, for defendant and third party plaintiff-appellee Remmele Engineering, Inc.
    Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., for defendant-ap-pellees Duggan Mach. Co., Duggan Equipment, Inc. and Royal Ins. Co.
    Cook, Yancey, King & Galloway by Sidney E. Cook, Jr., Shreveport, for interve-nor-appellee Aetna Cas. and Sur. Co.
    Before HALL, MARVIN and SEXTON, JJ.
   SEXTON, Judge.

Plaintiff’s suit was precipitated by his injury in the course and scope of his employment as a derrickman on a drilling rig owned by Jett Drilling Company, a subsidiary of Transcontinental Drilling Company. His injury occurred as he was performing a maintenance function on one of the rig’s mud pumps which circulate the drilling mud into the hole to lubricate the drill bit. While engaged in this maintenance procedure, plaintiffs hands were crushed by one of the mud pump’s reciprocating pistons. As a result of this incident, plaintiff’s little finger on his left hand was amputated; his index finger and thumb of his dominant right hand were crushed; and his thumb, after reconstructive surgery, was left in an angulated position. Eventually, his right index finger was also removed.

Cutchall instituted suit against Great American Pump Company, designers of the mud pump, and Remmele Engineering, Inc., the company who manufactured the pump pursuant to a contract with the Great American Pump Company and in accordance with Great American Pump Company’s plans and specifications. Plaintiff proceeded against these defendants on the theory that they were strictly liable as manufacturers of the mud pump which was unreasonably dangerous in normal use. Alternatively, plaintiff sought to recover against these defendants on the basis of negligence. Plaintiff also named as defendants Duggan Machine Company, Inc. and Duggan Equipment, Inc., who, as a subcontractor to Bovard Supply, Inc., assembled the entire drilling rig for delivery to Transcontinental Drilling Company as part of a package deal.

Also made defendants were Sentry Insurance, the liability carrier for Remmele Engineering, Inc.; Canal Indemnity Company, the liability insurer of Great American Pump Company; and Royal Insurance Company, the liability carrier for Duggan Machine Company, Inc. and Duggan Equipment, Inc.

Aetna Casualty and Surety Company filed an intervention as the workers’ compensation insurer of plaintiff’s employer, seeking to recover worker’s compensation benefits and medical expenses paid to and on behalf of plaintiff.

All defendants answered plaintiff’s suit and denied liability. Alternatively, all defendants pled contributory negligence and/or comparative negligence on the part of the plaintiff.

The case was tried by jury. At the conclusion of plaintiff’s evidence, the trial court granted a motion for directed verdict on behalf of Duggan Machine Company, Inc. and Duggan Equipment, Inc. The jury returned a verdict in favor of plaintiff and against Great American Pump Company and Canal Indemnity Company in the amount of $425,000. The jury found that Great American Pump Company was guilty of negligence assessed at ninety percent and that plaintiff, Gradis L. Cutchall, was guilty of negligence assessed at ten percent. Aetna Casualty and Surety Company, intervenor, was recognized in the judgment entered on the jury’s verdict to be entitled to a reimbursement of the worker’s compensation benefits and medical expenses paid to and on behalf of plaintiff. Remmele Engineering, Inc. was absolved of liability by the jury.

Great American Pump Company and its insurer have appealed. Plaintiff has likewise appealed the jury verdict. Remmele and its insurer; Duggan Machine Company, Inc. and Duggan Equipment, Inc. and their insurer; and Aetna, the worker’s compensation carrier and intervenor, have answered the appeal.

The Liability of Great American Pump Company

Appellant, Great American Pump Company contends that the jury erred in its conclusion that plaintiff proved by a preponderance of the evidence that the mud pump was unreasonably dangerous in normal use. Alternatively, they assert that the jury erred in finding that plaintiff’s injuries were caused by the defective mud pump, as opposed to his negligence. We will initially address appellant’s claim relative to the sufficiency of evidence adduced to support plaintiff’s claims. Thereafter, we will turn to the issue of whether negligence under these circumstances may be compared.

A manufacturer of a product that 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 product, which injury might reasonably have been anticipated. However, the injured plaintiff bears the burden of proving that the product is defective, or unreasonably dangerous in normal use, and that his injuries were caused by the product’s normal or intended application. Weber v. Fidelity and Casualty Insurance of New York, 259 La. 599, 250 So.2d 754 (1971).

Therefore, it follows that a product is defective under Louisiana law if the product is unreasonably dangerous. “Unreasonably dangerous” means simply that the product which injured plaintiff was dangerous to an extent beyond that which would be contemplated by an ordinary user. Hebert v. Brazzel, 403 So.2d 1242 (La.1981); DeBattista v. Argonaut-Southwest Insurance Company, 403 So.2d 26 (La.1981); Braxton v. Georgia Pacific Corp., 419 So.2d 125 (La.App. 2d Cir.1982), writ denied, 423 So.2d 1150 (La.1982).

If the product is proven defective by reason of its hazard to normal use, plaintiff need not prove any particular negligence by the maker in its manufacture or processing, as the manufacturer is presumed to know of the vices in the things he makes, whether or not he has actual knowledge of them. Weber, supra.

The mud pump in question is a duplex pump, meaning it has two operational piston rods. On each side of the pump is a cavity which houses the workings of the piston wash system. The piston wash system lubricates and cools the piston rods which reciprocate up to 70 times per minute. As the piston rods stroke continuously, an uninterrupted flow of lubricant is required. The absence of the lubricant causes the piston to smoke as a result of the heat it generates by its movement. A smoking piston rod indicates to the derrick-man that the pump needs immediate attention.

The hose which conducts the lubricating fluid to the piston rod is, under normal circumstances, inserted into a hole in the circumference of the packing nut, also referred to as the gland nut. The gland nut is attached to the piston rod. In a horizontal line, the piston rod strokes between the gland nut and the jam nut, which separates the piston rod from the larger pony rod. The distance between the top of the gland nut where the hose is inserted and the piston rod below is approximately five inches.

On the occasion of his injury, plaintiff noticed smoke emanating from the mud pump. He then attempted to reinsert the disengaged lubricating hose into the appropriate hole on the gland nut. This process required that plaintiff assume a crouching position on the metal skid or platform on which the mud pump rested, and insert one or both hands into the cavity containing the reciprocating rod. While in this position, plaintiff lost his balance and slipped, causing his hands to be thrust downward into the path of the operating piston. Mr. Cutc-hall’s fingers were amputated and his hands crushed by the reciprocation of the piston rod, which pinned his hands between the gland nut and the jam nut.

Plaintiff contends that the design of the piston wash system which necessitates the manual insertion of the lubricating hose into the gland nut only five inches above the piston and while the pump is in operation, constitutes a defect in the mud pump which renders it unreasonably dangerous in its normal and intended usage. In special interrogatories, the jury found that Great American Pump Company was liable for plaintiffs injuries. Implicit in their verdict was the finding that the mud pump in question, by virtue of the design of its piston wash system, was defective. We agree.

The hose through which the lubricant flowed was approximately %ths of an inch in diameter. The corresponding hole in the gland nut was approximately ⅛⅛ of an inch larger. Dr. Percy Miller, plaintiffs expert, testified that the vibration of the 550 horsepower engine, coupled with the reaction velocity, or backward force created by the flowing liquid, caused the hose to naturally become disengaged from the hole. Plaintiff testified that in this particular pump, the hose had a tendency to come out of the hole. Two other witnesses verified this fact. William Harkins, who was a derrickman on the same rig as Cutchall but who worked on another shift, testified that the hose disassociated itself from the hole from five to ten times during an eight-hour shift. He also testified that he had had a near miss with the pump where his fingers brushed against the operating piston rod while he was replacing the hose.

The pump’s designer, Jack Amerman, Sr., testified that he was aware that this hose would have to be manually inserted by a worker while the pump was running; that he expected that the derrickman would have to handle this hose once or twice a day; and that at the time he designed the pump he knew that hand injuries had occurred in this area of the machine, although he did not know if they were specifically caused by the pump’s piston wash system. Mr. Amerman testified that Great American Pump Company never performed any safety testing for the piston wash system of the pump nor did they request that Remmele perform these tests.

Plaintiff also adduced expert testimony that alternate piston wash system designs existed at the time of the design of the instant pump, and that the manufacture of a pump implementing one of these alternate designs would cost the same as or less than the cost of manufacturing the pump in question. One of the designs utilized a permanently fixed hose for transporting the lubricant to the piston rod; the other made use of a quick coupling retention device which held the hose in the hole securely. Both of these designs eliminate manual hose insertion.

While the law does not require that the manufacturer make a “foolproof” or “accident proof” product, it does require the manufacturer to exercise reasonable care in the design and fabrication of its products which are of a nature that, if not carefully made, can cause foreseeable injury to persons using the product for purposes which the manufacturer may reasonably expect them to be used. Leathern v. Moore, 265 So.2d 270 (La.App. 1st Cir. 1972); Gauthier v. Sperry Rand, Inc., 252 So.2d 129 (La.App. 3rd Cir.1971).

We find that plaintiff has proven by a preponderance of the evidence that the mud pump was defective, i.e., that it was unreasonably dangerous while engaged in its normal or intended usage. Plaintiff has also sufficiently proved that his injuries resulted from the unreasonable risk posed by this mud pump. The jury verdict was correct insofar as it found defendant Great American Pump Company liable to plaintiff for his injuries.

Having thus concluded, we now focus on whether plaintiff, as a matter of law, was negligent to an extent that would reduce his recovery. The issue then, is whether defendant owes a legal duty to plaintiff and, if so, whether that duty extends to the particular risk encountered by this particular plaintiff. Stated differently, the present inquiry is whether the risk encountered by plaintiff fell within the ambit of the manufacturer’s duty to produce a mud pump which is not unreasonably dangerous in normal use.

In this regard, we note that the harm which befell plaintiff is easily associated with the risk created by the manufacturer’s design of this mud pump. The record reflects that as part of his duties plaintiff was required to maintain these mud pumps. The smoking mud pump indicated an interrupted flow of lubricant to the piston rods, portending potentially serious consequences. Of necessity, and as part of plaintiff’s job responsibilities, he was required to rapidly cross the metal skid and reinsert the loosened hose only five inches above the operating pistons, while the machine leaked the slippery drilling mud. His refusal or failure to quickly perform this function could cause serious complications and possibly jeopardize the drilling operation of his employer. Inherent in plaintiff’s testimony and that of the other derrickman who testified that they were responsible for the maintenance of the mud pumps was the inference that they had to reinsert the hose and correct the problem or lose their job.

A workman, in a suit against the executive officers of his employer, is not held to be negligent when he works under dangerous conditions for which his employer is responsible and at which assignment he must work or suffer dismissal. Brown v. White, 430 So.2d 16 (La.1982); Wilson v. Aetna Casualty and Surety Company, 401 So.2d 500 (La.App. 2d Cir.1981); Payton v. Travelers Insurance Company, 373 So.2d 1324 (La.App. 4th Cir.1979), writ denied, 377 So.2d 119 (La.1979); Coco v. Winston Industries, Inc., 330 So.2d 649 (La. App. 3rd Cir.1976), reversed as to quantum, 341 So.2d 332 (La.1976). This fear of losing a job because one is a complainer is a realistic fear of an employee who is assigned daily to perform tasks which necessarily involve a degree of danger because of the nature of the job. Brown, supra.

Here, we are concerned with the jury’s verdict finding plaintiff ten percent at fault as compared to the pump manufacturer, not the employer, being ninety percent at fault. The negligence of the employer or of an executive officer of that employer is not at issue, although plaintiff’s employer demanded that the hose be reinserted without stopping the pump. ■

However, in this instance, the plaintiff derrickman is legally situated much in the same predicament as was the workman in Brown. The pump manufacturer was aware of and anticipated the necessity of manual reinsertion of the hose while the pump was in operation. Additionally, Great American Pump was aware of the demands made by drilling rig employers on its employees relative to this maintenance function. What might be characterized as unreasonable conduct in other circumstances becomes reasonable in these circumstances even as against the pump manufacturer. The defendant pump manufacturer was aware of, and expected, the fact that it would be necessary, several times during the workday, for a derrick-man or other rig worker to have to reinsert the hose without stopping the operating pump. The derrickman’s “realistic fear” of losing his job if he failed to take this risk, renders the conduct of the derrickman reasonable and, therefore, not negligent under the circumstances. See Brown, supra.

We therefore find as a matter of law that the fact finder was clearly wrong under the circumstances of this case in reducing plaintiff’s award as a result of negligence found on the part of the plaintiff. We are cognizant that in so doing, we have preter-mitted the broad issue of whether fault, in products liability litigation, may be compared. We simply hold that in the instant case, as a matter of law under the facts of this case, plaintiff’s recovery may not be reduced by a percentage attributable to his own fault.

The Liability of Remmele Engineering, Inc.

Remmele Engineering custom-built the mud pump according to the plans and specifications of Great American Pump Company. With- respect to this defendant, plaintiff claims that Remmele should be held liable to plaintiff under the recent pronouncement of Brown, supra. Brown held that a manufacturer cannot be held negligent when it has no part in the design of a system, when it is the system design which presents dangerous risks to the employees, unless the danger is or should be apparent to the manufacturer.

The jury was instructed in accordance with the holding of Brown. Inherent in their verdict absolving Remmele of legal responsibility is the determination that under that standard, the danger was not, in this instance, apparent to Remmele. The finder of fact was not clearly wrong in this determination, and may not be reversed on appeal absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The Liability of Duggan

Plaintiff asserts that the trial court erred in granting a directed verdict as to Duggan.

Jack Jerome, an officer of Duggan, testified that Duggan became involved in the assembly of the rig at the request of Bo-vard Supply Company. Bovard is a large oil field equipment supplier, who purchases machinery from various manufacturers and then resells these products to its customers. In order to build the new drilling rig, Transcontinental Drilling contacted Bovard Supply Company to furnish the equipment for the rig. Bovard, in turn, contacted Duggan to fabricate some of the structural components of the rig and to supervise and assist Transcontinental in the assembly of the rig.

Jerome testified that the fact that a Great American pump was incorporated into the rig was the result of one of two reasons: Transcontinental specifically requested a Great American pump from Bo-vard; or Bovard had a Great American pump in stock and made that particular pump available to Transcontinental. Jerome stated that Duggan had nothing to do with the assembly of the mud pump, neither did the company alter, reassemble, or repair this particular pump.

Thus, the record reflects that Duggan acquired various major parts of the rig, such as the mast, the rotary table, the swivel, and the mud pumps from Bovard. Duggan furnished other major parts, such as the draw works and the mud tanks. Using its own steel, pipes, and labor, Dug-gan assisted Transcontinental in assembling all of these parts into a complete drilling rig.

Plaintiff contends that the assembly of these parts into a whole product, the drilling rig, makes Duggan liable as a manufacturer within the meaning of Spillers v. Montgomery Ward & Company, Inc., 294 So.2d 803 (La.1984).

In Spillers, the defendant, G & S Manufacturing, modified plaintiffs truck for the purpose of hauling lumber. In order to do so, they purchased a sixteen year old wheel which was once owned by a junkyard. The tire subsequently exploded, causing serious injury to plaintiff. The court found that G & S was liable to plaintiff, and in so doing, rejected their argument that they did not actually manufacture the wheel and rim.

A manufacturer is no less a manufacturer because his product is composed in part of units manufacturer (sic) by another. Radalec, Inc. v. Automatic Firing Corp. [228 La. 116, 81 So.2d 830 (1955)], supra. The argument made by G & S would be more impressive if it had purchased the wheel and rim new from a maker on whom it was entitled to rely. The failure to inspect for size the sixteen year old wheel, once purchased from a junk yard, cannot fulfill the responsibility of care which the law places on the manufacturer of an object which, if defective, can reasonably be expected to cause injury.

Roberts v. St. Bernard Parish School Board, 427 So.2d 676 (La.App. 4th Cir. 1983), writ denied, 433 So.2d 1053 (La. 1983), recently reiterated the criteria the trial judge must employ in deciding a motion for directed verdict, quoting the federal standard for the rule which is the genesis of the Louisiana directed verdict article, LSA-C.C.P. Art. 1810:

On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.

After reviewing the record in this light, we conclude that the granting of the motion for a directed verdict as to Duggan was proper. Duggan is simply an oil field machine shop and fabrication facility. Duggan provided a location for assembly of the drilling rig and fabricated certain structural components of the rig as a service to its general contractor, Bovard. The pump involved was new, and the record indicates that it was either supplied by Bovard or requested by Transcontinental. We therefore find under the circumstances of this case that Duggan was not a manufacturer within the meaning of Spillers, supra.

Quantum

Plaintiff contends that the jury’s award of $425,000 is so inadequate as to represent an abuse of discretion.

At the time of his injury, Cutchall was 28 years old. He is married and the father of two children. In school he attended special education classes. He has an IQ of 76, and is unable to read or write. He has a speech impediment which is the result of a cleft palate, and his hearing is slightly impaired.

Plaintiff had worked in various jobs in the oil industry since he was 18 years old. Before that time, the only other employment he had undertaken was mowing yards.

After a period of recuperation following the accident which occurred in September, 1981, plaintiff went to work in January, 1982 for Lagerson Drilling Company. He was initially employed as a chain man but his injury prevented him from performing this work. He was also unsuccessful in his position as a derrickman and as a driller because of his inability to handle ropes or a brake handle. He was eventually employed by that company as a “dry watcher,” one who guards an inactive rig against theft. In December of 1982 he was employed by Nicor Drilling. Once again, he was unable to manipulate the tools necessary to perform satisfactorily.

In connection with his post-accident oilfield employment, Cutchall has twice sustained injury to his right thumb because of its angulated and stationary position. This angulated position leaves the thumb vulnerable to further injury. Moreover, as a result of the accident and treatment, the bones in the thumb are in a constant process of deterioration. The thumb was broken once in January, 1983, when plaintiff was making a connection with drilling pipe and tongs hit the protruding thumb. It was broken again and the pins securing the bone in place became dislodged while plaintiff worked with a breaker bar on a mud pump, and the thumb hit an object.

After reconstructive surgery in which a bone from plaintiff's hip was grafted onto his thumb in February of 1983, plaintiff returned to work for Nicor Drilling in May of 1983. His recurring problems caused him to quit that job and seek employment outside the oil industry.

He obtained employment as a construction worker for Tri-State Construction Company but was unable to carry lumber. From August, 1983 to October, 1983, plaintiff was employed part-time washing cars at a used car lot. His lack of manual dexterity and the pain caused from the cold temperature of the water resulted in his terminating this employment. Since October, 1983, plaintiff has remained unemployed.

Before an appellate court can disturb a quantum award, the record must clearly reveal that the trier of fact abused its discretion in making the award. An award made in the trial court may not be modified unless it is unsupported by the record. The appellate question is not whether a different award may have been more appropriate, but whether the trial court’s award can be reasonably supported by the record. Coco v. Winston Industries, Inc., supra; Bitoun v..Landry, 302 So.2d 278 (La.1974); Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971); Winterrowd v. Travelers Indemnity Co., 452 So.2d 269 (La.App. 2d Cir.1984); Black v. Ebasco Services, Inc., 411 So.2d 1159 (La.App. 1st Cir.1982), writ denied, 414 So.2d 1253 (La.1982); Greene v. Wright, 365 So.2d 551 (La.App. 1st Cir.1978). Moreover, the appellate function in reviewing quantum is limited to raising inadequate awards to the lowest amount the trial court could have reasonably awarded, and lowering excessive awards to the highest amount the trial court could have reasonably awarded. Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., supra; Winterrowd, supra; Alexander v. Leger, 423 So.2d 731 (La.App. 3d Cir.1982); Greene v. Wright, supra.

The appropriate procedure for testing whether the jury abused its discretion by making an excessive award is to determine whether the award can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the jury. The converse of this rule is also true: in determining whether the trier of fact abused its discretion by making an inadequate award, the evidence must be viewed in the light most favorable to the defendant. Schexnayder v. Carpenter, 346 So.2d 196 (La.1977); Wilson v. Aetna Casualty and Surety Company, supra. Further, we note the cautionary language of Reck v. Stevens, supra, to the effect that an appellate court must reach a determination that the trier of fact abused its discretion before a resort to prior awards is appropriate for purposes of determining what would then be an appropriate award.

In reviewing this unitemized award to determine whether the plaintiffs award is the lowest acceptable amount which the jury could assess on the evidence, we find that plaintiff proved medical expenses in the amount of $25,427.14, which represents his expenses incurred through February 4, 1982. Plaintiff also incurred medical expenses totalling $8,511.66 for treatment after February 4, 1982. Defendants argue that the injuries which precipitated this treatment were caused by subsequent mishaps for which they are not liable. Liability for medical expenses of $8,511.66 is therefore contested. Plaintiff proved lost wages of $30,678.00 from the date of the accident to January 24, 1984, the first day of trial. Subtracting the amount of medical expenses, $33,938.80, and the proven lost wages, $30,678.00 from the total award of $425,000 leaves $360,383.20. We must now determine whether this sum adequately compensates plaintiff for his loss of future wages and general damages.

It is plaintiffs burden of proving that his disability will cause him to suffer a lack of income. Winterrowd, supra; Holmes v. Texaco, Inc., 422 So.2d 1302 (La.App. 5th Cir.1982); Profit v. Linn, 346 So.2d 253 (La.App. 1st Cir.1977). In evaluating plaintiffs evidence, we are to consider his physical condition prior to the accident, his work record, the extent of his earnings, and the probability that he would have earned similar sums in future years except for his disability. Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968).

In order to sustain his burden, plaintiff offered the testimony of two expert witnesses. Dr. Richard Galloway, a vocational evaluation and rehabilitation expert, interviewed plaintiff and testified on his behalf. Dr. Galloway opined that Cutchall would no longer be able to perform oilfield related work because of his injuries, and further opined that Cutchall could not function in the job market except for light janitorial work. Galloway classified plaintiffs future wage earning capacity as that of a marginal minimum wage earner.

Dr. Melvin W. Harju testified on behalf of plaintiff as an expert in economics, finance and calculations of economic loss. Using an inflation rate of 7.5%, and a variable discount rate of 9.5-11.82%, Dr. Harju calculated the present value of plaintiffs future lost wages projected over his expected work life of 28.7 years. In arriving at his total figure for future lost wages, Dr. Harju assumed plaintiffs ability to maintain a minimum wage job and subtracted plaintiffs projected future earnings as a minimum wage earner ($139,869.00) from his future earnings calculated at the rate he was earning prior to his accident ($563,083.00) to obtain a total of $423,-214.00 representing lost wages.

Loss of future earning capacity cannot be calculated with mathematical certainty. Philippe v. Browning Arms Co., 395 So.2d 310 (La.1981); Wilson, supra. As discussed in Wilson, supra, the testimony of an economist is entitled to weight, but since it is necessarily based on uncertain future events, it is not conclusive. The figures arrived at by Dr. Harju could have been discounted by a reasonable trier of fact to account for various factors such as the instability of the oil market. The amount of damages awarded should, however, compensate plaintiff for the difference between his ability to earn immediately prior to the injury and his ability to earn after the injury. Coco, supra; Wilson, supra.

We conclude that $100,000 is the lowest possible award, on the basis of this record and in accordance with plaintiffs particular circumstance, to compensate plaintiff for his general damages. Subtracting $100,000 from the total amount of the award allocated to the compensation of plaintiff for loss of future earnings and general damages leaves $260,383.20. Viewing the evidence and the calculations of plaintiffs economist in the light most favorable to the defendant as might a reasonable finder of fact, we conclude that this figure, while low in view of his limited prospects for future employment, is within the ambit of the jury’s discretion.

The judgment of the trial court reflecting the jury’s verdict is therefore amended to strike the phrase “less a reduction of 10% for plaintiff’s comparative negligence, pursuant to the jury’s special interrogatory answer 4,” and as amended is affirmed. Costs of this appeal are assessed to defendants-appellants.

AMENDED, AND AS AMENDED, AFFIRMED.

SEXTON, J., assigns additional concurring reasons.

SEXTON, Judge,

additionally concurring.

I offer this concurrence even though I am the author because I was unable to convince my brothers of this panel of a) the correctness of the analysis in Frain v. State Farm Insurance Company, 421 So.2d 1169 (La.App. 2d Cir.1982), and b) its applicability to this case with respect to the negligence of the plaintiff.

They contend that under Brown v. White, 430 So.2d 16 (La.1982), (and the other cases cited with respect thereto), that the actions of our plaintiff do not equal negligence. On the other hand, I believe that the plaintiff in Brown (and the other cases) was negligent. I believe that if a system of pure comparative negligence had then been in existence, those plaintiffs would have been assessed a minor degree of negligence. However, because of the severity of contributory negligence, those plaintiffs were simply held not to be negligent.

As I indicated in a footnote in Frain, I agree that pure comparative negligence is better law than that espoused there, but the Legislature did not intend pure comparative negligence. In other words, in my view, the better law is that our plaintiff was negligent to the degree assessed by the jury and that negligence should be compared. However, since the Legislature did not intend pure comparative negligence, I would say that the manufacturer’s duty was so great under the circumstances of this case (the slippery deck, rapidly stroking piston, small opening, and necessity for speedy action) as' to encompass or obviate plaintiff’s negligence. By the clear wording of LSA-C.C. Art. 2323, since comparative negligence is used only “when contributory negligence is applicable,” this plaintiff’s negligence may not be compared. Frain v. State Farm Insurance Company, supra; Bays v. Lee, 432 So.2d 941 (La.App. 4th Cir.1983); Dulaney v. Travelers Insurance Co., 434 So.2d 578 (La.App. 1st Cir.1983). Johnson, Comparative Negligence and the Duty/Risk Analysis, 40 La.L.Rev. 319 (1980).


text:
    Hance V. NORRIS, et al., Plaintiffs-Appellees, v. POOL WELL SERVICE, INC., et al., Defendants-Appellants.
    No. 16573-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.
    John F. Colowich, New Orleans, for defendants-appellants.

      Dimos, Brown, Erskine & Burkett by Donald R. Brown, Monroe, for plaintiffs-ap-pellees.
    Before HALL and SEXTON, JJ., and PRICE, J. Pro Tem.
   SEXTON, Judge.

This personal injury litigation arose as a result of an automobile collision between plaintiffs motor home and defendant’s pick-up, which was being driven by its employee, Homer M. Jones. The defendant Pool Well Service, Inc. and its liability carrier stipulated liability. After a trial, the instant appeal limited to the issue of quantum followed. We affirm.

Mr. and Mrs. Norris were traveling in their motor home when Homer Jones crossed the centerline into their path. At the time of the collision, plaintiff, Ida Norris, was driving the motor home, Hance Norris was in the passenger seat, and their eight year old daughter, Tina, was in the back seat.

In the crash, the minor child Tina received a blow to the head which caused an earache which subsided after medication. She also received an injury to her left knee, which healed completely in about six weeks, leaving a small but visible scar. The judgment appealed awarded her father, in his capacity as administrator, the sum of $2,500.00.

Hance Norris suffered various cuts and bruises which were untreated, and a severely bruised kneecap for which no medication was prescribed and which healed completely within six weeks. Additionally, Mr. Norris testified that he suffered severe mental anxiety over the possibility that the motor home would explode from the butane fuel leak at the crash site, and over the possibility that the wreck would cause his fourth heart attack. For these injuries and mental anguish, the trial court awarded Mr. Norris $2,500.00.

After the collision, an initial medical examination revealed the following injuries to Mrs. Norris: a small laceration of the nose; a small infected red laceration of the left side of her face; a bruise of her left knee; a large bruise on her right thigh; a painful left hip; tenderness and soreness of the epigastric area, the right posterior neck, and left sacroiliac and lumbosacral area; and a slight decreased range of motion. There was also an initial gastritus and duo-denitis which was diagnosed as a benign, superficial ulcer, which, in the doctor’s opinion, could have been caused by the accident’s accompanying stress. Mrs. Norris testified that immediately after the impact, she had a burning sensation all over her body. Within one week, her legs had begun to swell, and she began to break out in multiple small red punctate lesions on various parts of her body including her face, hand, forearm, foot, buttocks, legs, upper chest and neck. These lesions subsequently became infected by an antibiotic resistant Staphylococcus aureus bacteria. Mrs. Norris experienced itching and pain from these lesions. Some of the lesions, particularly those on her lower legs, persisted until the date of trial, some three years after the collision.

At trial, defendants contested the causal link between the skin lesions and the automobile accident. The trial court found that the lesions resulted from glass imbedded in Mrs. Norris’ skin from the impact of the two vehicles. For her injuries, Mrs. Norris was awarded the sum of $45,000.00.

Causation is a fact question on which the trial judge’s finding cannot be disturbed absent manifest error. Downey v. Clark, 426 So.2d 331 (La.App. 2d Cir. 1983); Smith v. State, through the Department of Transportation, etc., 412 So.2d 685 (La.App. 2d Cir.1982), writ denied, 413 So.2d 907 (La.1982). Our independent evaluation of the record in this case reveals no abuse of the trial court’s discretion. Dr. Creighton Chandler, Jr., a determologist who first examined Mrs. Norris for her recurring lesions some eight months after the collision stated that the glass could have caused or contributed to her injury. He qualified this opinion later in his testimony by stating that he could not relate the lesions to the accident unless she had open sores continuously since the time of the accident. Mrs. Norris’ general practitioner, Dr. Samuel Scurria, testified that the lesions on her body were consistent with glass fragments imbedded in her body. In his opinion, the glass wounds and imbedded particles served as an entry place into her body for the Staph bacteria. Another doctor in Dr. Scurria’s firm first saw Mrs. Norris two days after the wreck on August 20, 1980. In his report, he noted the location of the lacerations on her body. Mrs. Norris saw Dr. Scurria on September 17, 1980, and complained of a low grade fever. At this time, the doctor noted lesions on her face, right hand, left forearm, and buttocks.

In addition to the medical testimony, plaintiff also introduced lay testimony to support her claim. Hance Norris testified that immediately after the crash, his wife had red specks all over her face and arms and looked like she had measles. Mr. and Mrs. Norris, as well as Tina, testified that Mrs. Norris had not had problems with her skin prior to the wreck. Both Mr. and Mrs. Norris testified that glass had been extruded from these wounds on her skin.

When the medical and lay testimony are considered, we are unable to find a clear error in the trial court’s .finding of a causal connection between these lesions and the accident.

Defendant Pool Well Service, Inc. further claims that the general damage awards to all three plaintiffs were so excessive as to constitute a clear abuse of discretion.

Before an appellate court can disturb a quantum award, the record must clearly reveal that the trier of fact abused its discretion in making the award. An award made in the trial court may not be modified unless it is unsupported by the record. The appellate question is not whether a different award may have been more appropriate, but whether the trial court’s award can be reasonably supported by the record. Coco v. Winston Industries, Inc., 330 So.2d 649 (La.App. 3rd Cir. 1976), reversed as to quantum, 341 So.2d 332 (La.1976); Bitoun v. Landry, 302 So.2d 278 (La.1974); Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971); Winterrowd v. Travelers Indemnity Co., 452 So.2d 269 (La.App. 2d Cir.1984); Black v. Ebasco Services, Inc., 411 So.2d 1159 (La.App. 1st Cir.1982), writ denied, 414 So.2d 1253 (La.1982); Greene v. Wright, 365 So.2d 551 (La.App. 1st Cir.1978). Moreover, the appellate function in reviewing quantum is limited to raising inadequate awards to the lowest amount the trial court could have reasonably awarded, and lowering excessive awards to the highest amount the trial court could have reasonably awarded. Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., supra; Winterrowd, supra; Alexander v. Leger, 423 So.2d 731 (La.App. 3d Cir.1982); Greene v. Wright, supra.

The appropriate procedure for testing whether the jury abused its discretion by making an excessive award is to determine whether the award can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the jury. The converse of this rule is also true: in determining whether the trier of fact abused its discretion by making an inadequate award, the evidence must be viewed in the light most favorable to the defendant. Schexnayder v. Carpenter, 346 So.2d 196 (La.1977); Wilson v. Aetna Casualty and Surety Company, supra. Further, we note the cautionary language of Reck v. Stevens, supra, to the effect that an appellate court must reach a determination that the trier of fact abused its discretion before a resort to prior awards is appropriate for purposes of determining what would then be an appropriate award.

We are thus contrained to view the evidence in the light most favorable to plaintiffs to determine whether these awards are excessive. While the awards to Mr. Norris and Tina test the upper limits of the trial court’s discretion, we are unable to conclude that the trial court clearly abused this discretion with respect to these plaintiffs. Both testified that they suffered some anxiety due to the collision besides their bodily injury. Further, Tina was left with a small but permanent scar.

With respect to the general damage award to Mrs. Norris, we note that her lesions, particularly those on her lower legs, persisted until the trial, some three years after the accident. Dr. Scurria testified that due to the resistance of the bacteria to treatment by antibotics, Mrs. Norris’ skin problems would continue. The lesions which have healed have left circular, pigmented scars, approximately 5 millimeters in diameter. The trial court described these scars as extremely unsightly. This observation is clearly supported by the pictures received in evidence.

Because of these infected lesions, Mrs. Norris’ activities were restricted for approximately one year since her legs would swell if she remained on her feet for an extended period of time. Mrs. Norris also testified that during this one year period she was unable to perform her usual housework because of her inability to stand on her feet.

Mrs. Norris testified that due to the extensive and unsightly scars and remaining lesions, she is unable to wear shorts or a swimsuit. Since she can no longer swim, family outings including this activity have been curtailed. She stated that she has suffered great embarrassment over the appearance of her skin, even among close relatives.

Other than her skin problems, Mrs. Norris testified that she still has difficulty with • her neck and back which prevents her from turning completely to the left side. She also stated that she continues to have digestive problems and must therefore restrict her diet.

When the evidence is viewed in the light most favorable to plaintiff, we find that while this award is in the upper range, it does not constitute a clear abuse of discretion. Accordingly, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


text:
    Helen Kulikowski SCHUELER, Plaintiff-Appellee, v. Irvin O. SCHUELER, Defendant-Appellant.
    No. 16587-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1984.
    Rehearing Denied Jan. 4, 1985.
    Writ Denied March 8, 1985.

      Delaune, Blondeau & Hall by A.L. Blon-deau, Bossier City, for defendant-appellant.
    Love, Rigby, Dehan, Love & McDaniel by Kenneth Rigby, Shreveport, for plaintiff-appellee.
    Before HALL and SEXTON, JJ., and PRICE, J. Pro Tem.
   SEXTON, Judge.

Irvin Otto Schueler, husband-appellant, appeals a trial court judgment awarding his former wife, Helen Kulikowski Schueler, forty-one percent of his military retirement benefits. We affirm.

Irvin Otto and Helen Kulikowski Schueler were married on November 3, 1956 in Spokane, Washington. The couple moved to Louisiana in 1971 when Mr. Schueler, a member of the Armed Forces since 1953, was transferred to Barksdale Air Force Base in Bossier City. Subsequently, Mr. Schueler retired with the rank of Major on April 1, 1973, after 20 years service. The Schuelers were judicially separated on October 29, 1975, and each was decreed to be a one-half owner of the community. They were divorced in 1977. Apparently all of the community property was amicably partitioned with the exception of Mr. Schueler’s military retirement. Mrs. Schueler filed this action in Caddo Parish District Court on November 22, 1977, pleading the previous divorce and asserting her one-half ownership in those retirement benefits.

The defendant answered that he was a resident of the state of Wyoming for the entire period during which his retirement benefits had been earned, and that as Wyoming was not a community property state, Mrs. Schueler was not entitled to a portion of the benefits. Plaintiff amended her petition to allege that she was entitled to a share of the benefits under Wyoming law. The trial court applied Wyoming law, which calls for just and equitable distribution of property upon dissolution of marriage and found that the Schuelers were married eighty-two percent of the time Mr. Schueler was in the military, entitling Mrs. Schueler to forty-one percent of his retirement pay, both prospectively and retroactively. Following this opinion, both parties applied for a new trial.

In the interim between application for new trial and rendition of the judgment forming the basis of this appeal, significant changes were made in the law relative to division and distribution of military retirement benefits. McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589, decided June 26, 1981, held that the federal scheme of military retirement benefits preempts state community property law. Under the rule of McCarty, federal law precludes a state court from dividing military retirement benefits pursuant to state community property law.

Congress reacted to this decision with an amendment to 10 U.S.C.A. § 1408, the Uniformed Services Former Spouses’ Protection Act, Pub.L. No. 97-252, Title X, § 1002(a), 96 Stat. 718, 730-738 (1982), effective February 1, 1983. In pertinent part the Act provides:

(c)(1) Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court. (Emphasis ours)

After the effective date of the abovemen-tioned act, judgment was rendered in the instant case adhering to the original opinion on the merits, but limiting Mrs. Schueler’s interest in the retirement benefits to those accruing since June 25, 1981, in accordance with the limitation set forth in 10 U.S.C. § 1408(c)(1). The instant appeal by defendant followed. Plaintiff has neither appealed nor answered the appeal of defendant.

Appellant contends that the phrase in 10 U.S.C.A. § 1408(c)(1), “in accordance with the law of the jurisdiction of such court” means that Louisiana may only apply Louisiana community property law and may not apply Louisiana conflicts principles. In other words, the argument is that the section at issue means that the divorcing forum may use its law to divide military retirement pay between the spouses only when that divorcing forum is also the matrimonial domicile.

The congressional intent in enacting the Uniformed Services Former Spouses’ Protection Act of 1982 is explained in the Senate report on the new law quoted in Simmons v. Simmons, 453 So.2d 631 (La.App. 3rd Cir.1984) at page 633:

“Congress’ intent in enacting subsection (c)(1) is discussed in the Senate Report on the new law. That report states:
The purpose of this provision is to place the courts in the same position that they were in on June 26, 1981, the date of the McCarty decision, with respect to treatment of nondisability military retired or retainer pay. The provision is intended to remove the federal pre-emption found to exist by the United States Supreme Court and permit State and other courts of competent jurisdiction to apply pertinent State or other laws in determining whether military retired or retainer pay should be divisible. Nothing in this provision requires any division; it leaves that issue up to the courts applying community property, equitable distribution or other principles of marital property determination and distribution. This power is returned to the courts retroactive to June 26, 1981. This retroactive application will at least afford individuals who were divorced (or had decrees modified) during the interim period between June 26, 1981 and the effective date of this legislation the opportunity to return to the courts to take advantage of this provision.
S.Rep. No. 502, 97th Cong., 2d Sess. 16 (1982), U.S.Code Cong. & Admin.News 1982, 1555, 1611.”

We refuse to construe 10 U.S.C. § 1408(c)(1) as a restriction on the authority of a state court to apportion military retirement pay only in those limited instances in which the parties are divorced in the state of the matrimonial domicile, or otherwise be governed by federal law. Such a ruling would merely perpetuate the federal preemption rule of McCarty which 10 U.S.C. § 1408(c)(1) was intended to eliminate.

We agree with the Third Circuit that Congress intended 10 U.S.C. § 1408(c)(1) to have retrospective application in a manner that would totally eliminate the McCarty decision and thus allow state courts to render judgments consistent with decisions preceding McCarty. We note that no congressional intent was manifested to deprive a forum state court of its power to apply the conflicts of law principles existing in that forum in cases involving the distribution of military retirement pay.

The court below in a well reasoned opinion correctly analyzed the problem. The trial court found that the domicile of the parties during the marriage was Wyoming. This finding is supported in the record. Mr. Sehueler testified that he had lived in Wyoming in excess of three years when he entered military service in 1953. He also stated that Wyoming was his home of record on military records. Mrs. Sehueler offered no controverting proof. The trial court held that the rights to the retirement benefits accrued continuously throughout the husband’s period of service and that the wife’s entitlement to benefits should be determined under the law of the state in which the parties were domiciled for the respective period during which retirement benefits were accrued.

We are constrained by 10 U.S.C.A. § 1408(c)(1) to treat the retirement pay at issue solely “as the property of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.” The trial court, in applying Wyoming law, obviously determined that this phrase meant that Louisiana conflicts principles should apply and that the application of those principles required the application of Wyoming law in this cause.

We agree. LSA-C.C. Art. 10 specifically states that movables are subject to the law of the domicile of the acquiring spouse. Since there is a specific codal provision on the subject, it is unnecessary that we conduct a modern interest analysis per Jagers v. Royal Indemnity Company, 276 So.2d 309 (La.1973). Shaw v. Ferguson, 437 So.2d 319 (La.App. 2d Cir.1983).

Having concluded that the trial court made the appropriate choice of law, we turn to a consideration of whether the' award of forty-one percent of retirement benefits is supported by Wyoming law. Section 20-2-114 of the Wyoming Statutes, 1977, provides that:

§ 20-2-114. Disposition of property to be equitable; factors; alimony generally.
In granting a divorce, the court shall make such disposition of the property of the parties as appears just and equitable, having regard for the respective merits of the parties and the condition in which they will be left by the divorce, the party through whom the property was acquired and the burdens imposed upon the property for the benefit of either party and children. The court may decree to either party reasonable alimony out of the estate of the other having regard for the other’s ability and may order so much of the other's real estate or the rents and profits thereof as is necessary be assigned and set out to either party for life, or may decree a specific sum be paid by either party.

Like the trial court, we were unable to find a Wyoming case dealing directly with the issue of distribution of military retirement. However, under Wyoming law, the trial court is not restricted in a property division action to a distribution of property acquired during the marriage, but may award property to one party which was the separate property of the other spouse. Paul v. Paul, 616 P.2d 707 (Wyo. 1980); Craver v. Craver, 601 P.2d 999 (Wyo.1979). The trial court relied on Storm v. Storm, 470 P.2d 367 (Wyo.1970), in construing the aforementioned statute. We believe that reliance is well-placed. As the Storm Court stated at page 371, “it is our conclusion that a just and equitable property settlement is for plaintiff to have approximately an equal share with her husband in all property which the wife has a part in accumulating.”

Furthermore, on review, there must be a clear abuse of discretion before a Wyoming appellate court will upset or adjust a property settlement fixed by a trial judge. Abuse of discretion is defined as such abuse as shocks the conscience of the court. It must appear so unfair and une-quitable that reasonable persons could not abide it. Bereman v. Bereman, 645 P.2d 1155 (Wyo.1982). Moreover, it appears that most of the “equitable distribution states” have recognized a spouse’s entitlement to military retirement benefits. Rohring v. Rohring, 441 So.2d 485 (La.App. 2d Cir.1983). Accordingly, we believe there is no error in the trial court’s determination that, under Wyoming law, an equitable distribution is to award plaintiff forty-one percent of defendant’s retirement benefits from June 26, 1981.

We note with interest, however, appellant’s contention that the plaintiff, Mrs. Schueler, is not entitled to a percentage of the retirement benefits because Wyoming’s equitable distribution principle contemplates a determination of the respective economic circumstances of the parties at divorce, considering all property and debts however acquired; and, therefore, does not envision a division of property subsequent to divorce as a separate proceeding. As we appreciate appellant’s argument, it is that Wyoming’s equitable distribution principle does not allow a subsequent determination of property rights after a divorce if there has not been such a determination in previous proceedings.

Appellant is correct that under Wyoming law a decree of divorce precludes a subsequent determination of property rights. Cassas v. Cassas, 276 P.2d 456 (Wyo.1954). However, appellant’s argument overlooks the fact that in the original separation decree herein in 1975, the plaintiff, Mrs. Schueler, was decreed to be an undivided one-half owner of all of the community property existing between the parties. Thus, the trial court originally indeed adjudicated the property rights of the parties herein — contrary to appellant’s assertion. Our view of Wyoming law is that since the property rights of the parties were dealt with in the original separation herein, plaintiff may now specifically assert the extent of those property rights.

Finally, appellant contends that the trial court erroneously overruled his exception to the jurisdiction of the Caddo Parish court. He argues that since the separation and divorce were granted in Bossier Parish, that LSA-C.C.P. Art. 3941 provides for venue only in Bossier Parish. He asserts that the venue provided by that article is jurisdictional and non-waivable. Appellant is correct that the venue provided in that article is jurisdictional and non-waivable. However, appellant overlooks the fact that the article speaks only of actions “for an annulment of marriage, for separation from bed and board, or for a divorce .... ” This cause does not seek relief in any of those respects and is thus not governed by that article. Since this statute provides an exception to the general rules of venue and is therefore in derogation of common rights, it is to be strictly construed and applied only to cases clearly falling within its provisions. Dupre v. Pelotto, 336 So.2d 329 (La.App. 1st Cir.1976).

Thus, in summary, the trial court, using appropriate conflicts of law principles, correctly applied Wyoming law and the applicable federal statute to render judgment for the wife for a portion of appellant’s previously vested military retirement.

Accordingly, the judgment below is affirmed at appellant’s cost.

AFFIRMED.

      . Of course, under Louisiana law, the retirement pay at issue is community property (Rohring v. Rohring, 441 So.2d 485 (La.App. 2d Cir. 1983) yielding the same result as that found by the district court here. It could perhaps be argued that Mr. Schueler’s retirement in Louisiana operated to change his domicile to Louisiana. However, neither party has so contended. Both have urged the application of Wyoming law to different effect.

      . We note that the law of Wyoming is not as clearly established in this regard as we would like, but the aforestated is our view thereof. We further note that when the law of another state is not clearly established, it may be presumed that the law of that state is the same as that of Louisiana. Rohring, supra.